JUAN ERNESTO GONZALEZ APARICIO v. THE STATE OF TEXAS--Appeal from 206th District Court of Hidalgo County

   NUMBER 13-04-049-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JUAN ERNESTO GONZALEZ APARICIO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court

of Hidalgo County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

A jury convicted appellant, Juan Ernesto Aparicio, of manslaughter.[2] The jury assessed punishment at a term of twenty years in the Institutional Division of the Texas Department of Criminal Justice. By two issues, Aparicio assertsineffective assistance of counsel and erroneous admission of evidence. We affirm.

I. Background

Aparicio's thirteen-month-old son died of a broken spine, ruptured heart, and punctured lung. Aparicio gave police and his wife different accounts of events leading to the child=s death. His written statement to police and three letters addressed to his wife while in jail were admitted in evidence. The sole consistency in his statements was that he was the only adult with the child when the child sustained the fatal injuries. The jury rejected the State=s theory of capital murder and convicted Aparicio of manslaughter.

II. Effective Assistance of Counsel

By his first issue, Aparicio asserts that his trial counsel was ineffective because the totality of the representation shows that defense counsel failed to object to (1) hearsay, (2) the admission of his three letters to his wife while incarcerated, and (3) autopsy photographs. Aparicio argues that the ineffectiveness is so apparent from the record that it may be disposed of on direct appeal. See Thompson v. State, 9 S.W.3d 808, 814 n.6 (Tex. Crim. App. 1999).[3]

A. Standard of Review

There are just a few situations in which a conviction can be overturned even though the trial court has done nothing wrong.[4] One such situation is where defense counsel fails to act on behalf of the defendant in any meaningful way or commits errors that prejudice the defendant. See id. If the misconduct in question does not amount to the complete denial of counsel, then some standard of harm, variously phrased as "prejudice" or "materiality," is required to establish a constitutional violation leading to reversal of the conviction. Id. at *14-*15. Ineffective assistance of counsel claims are governed by the Strickland materiality/prejudice standard: whether "there is a reasonable probability that . . . the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). To meet the prejudice prong of Strickland, a defendant must show a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different.[5]

Under Strickland, a defendant claiming ineffective assistance of counsel must demonstrate by a preponderance of the evidence that (1) counsel's conduct "fell below an objective standard of reasonableness," and (2) this incompetence caused the defendant prejudice.[6] Strickland, 466 U.S. at 687 88; Salinas v. State, No. AP-74524, 2005 Tex. Crim. App. LEXIS 741 at *9 *11 (Tex. Crim. App. May 18, 2005) (designated for publication). Under Strickland, however, there are few situations in which prejudice under the second prong will be presumed because these errors are both "easy to identify" and "easy for the government to prevent." Ex parte McFarland, No. A.P.-75,044, 2005 Tex. Crim. App. LEXIS 740, at *18 (Tex. Crim. App. May 18, 2005) (designated for publication). Such presumed prejudice errors include the "actual or constructive denial" of counsel. Id.

Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: "in the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004) (citing Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)). A reviewing court can frequently speculate on both sides of an issue, but ineffective assistance claims are not built on retrospective speculation; rather, they must "be firmly founded in the record." Id.

B. Discussion

The record shows, as Aparicio asserts, that defense counsel did not object to his wife=s testimony that Aparicio denied knowledge regarding the child=s injuries. Defense counsel also did not object to testimony from the police officer Aparicio flagged down while en route to the hospital, who testified that Aparicio requested an ambulance.[7] The police officer testified that Aparicio gave her two different explanations regarding how he found the injured child and told her the child fell off a chair.

The record also shows, as Aparicio argues, that the trial court admitted, without objection, three letters he wrote to his wife while he was in jail. In the letters, Aparicio professed his love for his deceased son. In the first, he stated he entered the room and saw the couple=s daughter standing on the child and then falling on him. In the second letter, Aparicio denied he harmed the child and stated the child accidentally lost his life. He stated he accepted the charge of manslaughter but not the "other" charge. In the third letter, Aparicio explained that he stepped on the child, when Aparicio awoke and arose quickly from the sofa. Aparicio does not complain that the trial court admitted his written statement to police. In that statement, Aparicio explained that he laid across the child when wrestling with him.

Aparicio further complains that defense counsel did not object to three autopsy photographs admitted in evidence. The photographs show the broken vertebra, the clot enveloping the heart, and the burst chamber in the heart.[8]

The Texas Court of Criminal Appeals has held several times that in cases like this "the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003). The United States Supreme Court generally agrees. Id. (citing Massaro v. United States, 538 U.S. 500, 508-09 (2003) (stating that when ineffective assistance of counsel claim is raised on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose)).

C. Disposition

Aparicio related four different versions regarding the child=s injury. His core complaint is that defense counsel=s failure to object to the admission of his statements and autopsy photographs denied him effective assistance of counsel. The jury rejected the State's theory of capital murder and convicted on the lesser included offense of manslaughter. We conclude that trial counsel's errors, if any, are not properly reviewable on direct appeal. See Thompson, 9 S.W.3d at 814 n.6. Thus, based on the record before us, we could only speculate as to why counsel acted or failed to act at trial. Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (en banc); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc) (Baird, J., concurring). We cannot speculate whether defense counsel relied on legitimate trial strategy.[9] Id. Therefore, without more, we must presume that counsel acted pursuant to a reasonable trial strategy. Id.; Scheanette, 144 S.W.3d at 510; see Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). We overrule the first issue.

III. Admission of Evidence

By his second issue, Aparicio asserts that the trial court abused its discretion by admitting (1) evidence that (a) the child sustained a sprained ankle when he was two months old while in Aparicio's care, (b) Aparicio battered his wife, and (2) autopsy photographs.[10]

A. Harm Analysis

Even assuming that Aparicio preserved error and the trial court abused its discretion in admitting the evidence, Aparicio is not entitled to reversal unless he shows that the error was: (1) of constitutional magnitude; or (2) affected a substantial right. See Tex. R. App. P. 44.2(a), (b). A violation of rules of evidence that results in erroneous admission of evidence is non constitutional error. Couchman v. State, 3 S.W.3d 155, 160 (Tex. App.BFort Worth 1999, pet. ref'd). We begin our harm analysis under rule 44.2(a), which imposes a more stringent standard than rule 44.2(b). Guidry v. State, 9 S.W.3d 133, 151 n.14 (Tex. Crim. App. 1999). Under rule 44.2(a), if the appellate record in a criminal case reveals constitutional error subject to harmless error review, we must reverse a judgment of conviction or punishment unless we determine beyond a reasonable doubt the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a); Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000) (en banc); Aguirre Mata v. State, 992 S.W.2d 495, 498 (Tex. Crim. App. 1999). In making a harmless error determination under rule 44.2(a), we do not focus on the weight of other evidence of guilt. Montgomery v. State, 821 S.W.2d 314, 317 (Tex. App.BDallas 1991, pet. ref'd) (en banc) (citing Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989) (en banc)); see Erazo v. State, 144 S.W.3d 487, 489-92 (Tex. Crim. App. 2004). Rather, we determine whether the error might have prejudiced a juror's decision making process.[11] Montgomery, 821 S.W.2d at 317.

Whether the evidence is sufficient to convict without the inadmissible evidence is not the sole determinant in a rule 44.2(a) harm analysis. See Cardenas, 971 S.W.2d at 651. Rather, we assess whether a reasonable probability exists that the erroneously admitted evidence contributed to the jury's verdict. Id. Thus, we must calculate as closely as possible the probable impact of the error on the jury in the context of the other evidence introduced at trial. Harris, 790 S.W.2d at 587. In making this determination, Harris directs us to examine six factors: (1) the source of the error, (2) the nature of the error, (3) whether and to what extent the State emphasized the error, (4) any collateral implications of the error, (5) the weight a juror would probably place on the error, and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. Id.; Mosley v. State, 960 S.W.2d 200, 204 05 (Tex. App.BCorpus Christi 1997, no pet.). We are "obligated to examine the entire record in a neutral, impartial and even handed manner and not 'in the light most favorable to the prosecution.'" Harris, 790 S.W.2d at 586.

B. Disposition

We have reviewed the record. The source and nature of the error, if any, was the trial court's admitting the autopsy photographs, evidence of the child=s sprained ankle while in Aparicio's care, and evidence of Aparicio's prior assaults on his wife. On this record, we cannot conclude that the State emphasized the evidence. See id. Further, while other evidence of guilt is not a sole determinant, any collateral implications of admitting the evidence and the amount of weight the jury placed on the evidence were minimal because the jury heard other, substantial evidence related to Aparicio's conduct, particularly from his own oral and written statements. We also cannot say that it is likely that the State will repeat this type of error, if any, with impunity. See id. In addition, photographs were used at trial in conjunction with the medical examiner's testimony to show the victim's wounds, illustrate the cause of death, and exclude any potential causes of death other than the injuries inflicted by Aparicio. See Izaguirre v. State, 695 S.W.2d 224, 226 (Tex. App.BCorpus Christi 1985, no pet.).

The most significant concern in a rule 44.2(a) harm analysis is the effect of any erroneously admitted evidence on the integrity of the trial process. Harris, 790 S.W.2d at 586. While not determinative of the harm question, the presence of overwhelming evidence supporting a jury's finding of guilt is a factor in the evaluation of harmless error under rule 44.2(a). Id. The evidence in this case permitted the jury to find all of the elements of the charged offense. The evidence was not contradicted. Given this evidence, the jury was clearly not equally balanced on the issue of guilt or innocence. Indeed, nothing suggests the jury would have returned a different verdict "but for" admission of the evidence. Tibbs v. State, 125 S.W.3d 84, 96 (Tex. App.BHouston [14th Dist.] 2003, no pet). We conclude Aparicio was not harmed by the admission of the evidence.[12] We overrule the second issue.

IV. Conclusion

Finding no reversible error, we affirm the trial court judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and filed

this 28th day of July, 2005.

[1] See Tex. R. App. P. 47.2. and 47.4.

[2] The indictment alleged that, on or about July 4, 2003, Aparicio caused the death of a child, Juan Ernesto Aparicio, Jr., by placing his body on top of the victim's body. A person commits capital murder if he causes the death of an individual under six years of age. SeeTex. Pen. Code Ann. ' 19.03(a)(8) (Vernon Supp. 2004-05). The jury convicted on the lesser included offense of manslaughter. See id. ' 19.04(a) (Vernon 2003).

[3] See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (generally, the record on direct appeal will not be sufficiently developed to show that counsel's representation was deficient under first prong of Strickland); Thompson v. State, 9 S.W.3d 808, 814 n.6 (Tex. Crim. App. 1999) (noting that holding should not be construed to mean that an ineffective assistance claim can never be adequately reviewed on direct appeal).

[4] Johnson v. State, No. PD 1623 03, 2005 Tex. Crim. App. LEXIS, at *12 (Tex. Crim. App. May 25, 2005).

[5] While the "structural" nature of a complained deprivation may impact the prejudice inquiry,

Strickland still provides the basic framework when such deprivations flow solely from defense counsel. Johnson, 2005 Tex. Crim. App. LEXIS 818, at *22-*23. Except for the complete denial of counsel, only a trial court's commission of structural error can give rise to automatic reversal, with no harm analysis whatsoever. Id. A "structural" error is a federal constitutional error labeled by the United States Supreme Court as such. See id. (citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (en banc)). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." See Strickland, 466 U.S. at 686 (emphasis added); see also United States v. Cronic, 466 U.S. 648, 656 57 (1984) (stating that the critical question is whether counsel's performance was so deficient that the process lost its character as a confrontation between adversaries).

[6] To satisfy the second prong of the Strickland test, we do not require that the appellant show that there would have been a different result if counsel's performance had not been deficient. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). The defendant must show only that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

[7] Evidence showed that Aparicio removed the child from the residence, placed him in the vehicle, and flashed the headlights to attract the officer=s attention.

[8] The defense theory at trial, in part, was that the bruise to the child's back was an inch and a quarter long and that the medical examiner could not testify what instrumentality caused the blunt force.

[9] "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." See Goodspeed v. State, No. PD-1882-03, 2005 Tex. Crim. App. LEXIS 520, at *5 (Tex. Crim. App. April 6, 2005) (designated for publication). Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. The fact that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance. Scheanette v. State, 144 S.W.3d 503, 509 10 (Tex. Crim. App. 2004) (citing McFarland v. State, 845 S.W.2d 824, 844 (Tex. Crim. App. 1992) (en banc)).

[10] See Erazo v. State, 144 S.W.3d 487, 491 92 (Tex. Crim. App. 2004).

[11] In performing a harmless error analysis under rule 44.2(a), we isolate the effect of the error and determine how much weight a juror would probably place on the error. Harris, 790 S.W.2d at 587. If the error was of such a magnitude that in reasonable probability it disrupted the jury's orderly evaluation of all the evidence, no matter how overwhelming other evidence of guilt might have been, then the conviction must be reversed. Id. at 588. Unless the overwhelming evidence dissipates the error's effect on the jury's function in determining the facts, so that it did not contribute to the verdict, the error is harmful. Id. at 587. We ask if a reasonable probability exists that the evidence, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion beyond a reasonable doubt. Wesbrook, 29 S.W.3d at 119; Cardenas v. State, 971 S.W.2d 645, 651 (Tex. App.BDallas 1998, pet. ref'd). If so, the error is harmful. Wesbrook, 29 S.W.3d at 119.

[12] A conviction will not be reversed "merely because the jury was exposed to numerous admittedly gruesome pictures." See Drew v. State, 76 S.W.3d 436, 453 (Tex. App.BHouston [14th Dist.] 2002, pet. ref'd) (quoting Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991)).