EUGENIO FERNANDEZ MENDEZ v. THE STATE OF TEXAS--Appeal from 93rd District Court of Hidalgo County

   NUMBER 13-03-127-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

EUGENIO FERNANDEZ MENDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 93rd District Court

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, Eugenio Fernandez Mendez, was convicted of the offense of murder. In two issues, appellant appeals his conviction on grounds of ineffective assistance of counsel and factual insufficiency. We affirm the judgment of the trial court.

I. Facts and Procedural History

Appellant and decedent Lydia Ramirez lived together in Pharr, Texas. According to the testimony offered at trial, in the early morning hours of May 4, 2002, they became engaged in a domestic dispute at their home. During the argument, appellant took a razor blade and started slashing his left forearm. Ramirez took the razor blade and held it to the side of appellant=s neck, telling him if he was going to kill himself to Ado it right.@ Appellant took back the razor blade and choked Ramirez with both hands until she appeared to pass out. He unsuccessfully attempted to revive her. Appellant left the home to buy cigarettes, and upon returning, tried a second time to revive her. When he realized Ramirez was not breathing, appellant administered CPR. Ramirez failed to respond, so appellant left the home to find a police officer. He found one in the neighboring city of McAllen and told the officer that Ramirez was dead and he had choked her. The officer called for an ambulance so that appellant=s arm could be treated and alerted the Pharr authorities, who found Ramirez=s body at the house. After medical treatment at the hospital, appellant made a statement to the Pharr police and signed a written statement.

During the trial, appellant testified that he had never previously attempted to hurt Ramirez. The State then introduced a phone conversation between Ramirez and her sister from the summer of 2001. In that conversation, Ramirez allegedly told her sister that appellant had hit her and attempted to choke her, and she was afraid he would kill her. Defense counsel objected to this evidence as hearsay, but the objection was overruled. On cross-examination, appellant denied that the incident referred to in the phone conversation had occurred. Defense counsel did not request a limiting instruction as to the jury=s proper use of this testimony. The jury found appellant guilty of murder and sentenced him to 99 years= imprisonment.

II. Ineffective Assistance of Counsel

In his first issue, appellant contends he received ineffective assistance of counsel. Appellant argues counsel was ineffective because counsel failed (1) to request a limiting instruction and a corresponding jury instruction on reasonable doubt with respect to extraneous offenses introduced by the State, (2) to make a rule 403 objection so that the court would consider whether the information would be more prejudicial than probative, and (3) to seek suppression of appellant=s signed statement by contesting whether he voluntarily signed it. The Sixth Amendment guarantees the right to reasonably effective assistance by counsel. U.S. Const. amend. VI. The Sixth Amendment applies to state criminal prosecutions. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To prevail on a claim of ineffective assistance of counsel, appellant must establish that (1) counsel's performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness under the prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Allegations of ineffective assistance of counsel must be firmly founded in the record. Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004). Where the record is silent, we assume strategic motivation and sound trial strategy unless counsel's conduct is so outrageous that no competent attorney would have so acted. Garcia, 57 S.W.3d at 440.

A. Failure to Request a Limiting Instruction

Appellant first argues that when the State introduced the prior choking event in 2001, his counsel should have requested (1) a limiting instruction as to the jury=s proper use of that information and (2) an instruction that the jury should first find beyond a reasonable doubt that he committed the act. Appellant argues that without such an instruction, the jury probably perceived that information as direct evidence of guilt, increasing the likelihood of finding him guilty of murder and not manslaughter.

Because the record is silent as to why the attorney chose not to make the request, we must presume counsel was acting pursuant to a reasonable trial strategy. Id. An attorney=s decision not to request a limiting instruction has been recognized as valid trial strategy, such as when counsel does not wish to draw attention to certain testimony. See, e.g., Garcia v. State, 887 S.W.2d 862, 880 (Tex. Crim. App. 1994), overruled in part by Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001) (disavowing any language in Garcia that requires objections as a prerequisite to limiting instructions). Appellant offers no evidence that counsel's decision fell below an objective standard of reasonableness under prevailing professional norms and therefore fails the first prong of the Strickland test.

B. Failure to Raise a Rule 403 Objection

The trial court admitted testimony of the prior choking over an objection based on rule 404(b). See Tex. R. Evid. 404(b) (requiring the State give reasonable notice in advance of trial of intent to introduce extraneous offenses). Appellant argues his counsel should then have made an objection under rule 403 seeking a balancing test to determine whether the information was more prejudicial than probative. See Tex. R. Evid. 403; Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Again, appellant asserts admission of the extraneous offense demonstrated ineffective assistance of counsel and made it more likely that the jury would find he had intent to commit murder.

The record does not reflect counsel's reasoning for failing to object under rule 403, and thus appellant's ineffective assistance claim is not sufficiently founded in the record and is presumed a sound strategy. See Garcia, 887 S.W.2d at 880. Furthermore, a trial court may admit extraneous offense evidence to rebut a defensive theory. Santellan, 939 S.W.2d at 168-69 (quoting Montgomery v. State, 810 S.W.2d 372, 387 88 (Tex. Crim. App. 1990) (op. on reh'g)). Given that appellant had previously testified in his defense that he had never before choked his wife, he cannot show that the court would have committed an error in overruling the objection if it had been made. Therefore, there is no reasonable probability that, but for counsel's deficient performance, the jury finding would have been different. See Strickland, 466 U.S. at 687; Bone, 77 S.W.3d at 833.

C. Failure to File a Motion to Suppress

Appellant argues his attorney should have filed a motion to suppress his statement to the police and was ineffective for failing to do so. Appellant claims he should have attempted to suppress the statement by contesting whether it was truly voluntary under Jackson v. Denno, 378 U.S. 368, 391 (1964), given that appellant was exhausted, possibly medicated by the hospital, or otherwise incapable of making any type of independent, informed, and meaningful decision to confess.

Counsel had in fact prepared a motion to suppress the statement but withdrew it on the day of trial. The record is silent as to why the defense decided not to pursue this particular strategy, so we must presume there was some sound strategy. See Garcia, 57 S.W.3d at 440. The record shows appellant personally affirmed to the judge his abandonment of this motion, indicating he was aware of it, had discussed it with his counsel, and agreed to withdraw it. The fact that another attorney may have pursued a different strategy under the same circumstances does not prove ineffective assistance of counsel. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979).

We overrule appellant=s first issue.

III. Factual Sufficiency

In his second issue, appellant contends the trial evidence for his murder conviction was factually insufficient to prove the requisite elements of intent or knowledge, and that the evidence supports instead a conviction for manslaughter.

A person is guilty of murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. ' 19.02(b)(1) (Vernon 2003). A person acts knowingly when he is aware his conduct is reasonably certain to cause the result. Tex. Pen. Code Ann. ' 6.03(b) (Vernon 2003).

In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if "proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We are not bound to view the evidence in the light most favorable to the verdict, and may consider the testimony of all the witnesses. Johnson, 23 S.W.3d at 10 12. In our factual sufficiency review, we are again required to accord due deference to the jury's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Johnson, 23 S.W.3d at 7. We also measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd). The jury may accept or reject all or any part of any witness's testimony. Garza v. State, 82 S.W.3d 791, 793 (Tex. App.BCorpus Christi 2002, no pet.).

During the trial, appellant testified that he merely grabbed Ramirez by the throat and shook her two or three times, after which she collapsed and he placed her on the bed. He insisted that he did not intend to kill her. However, lack of a specific intent to kill does not render the evidence for murder insufficient. Canedy v. State, 507 S.W.2d 743, 744 (Tex. Crim. App. 1974). The jury may instead find murder if appellant acted with knowledge that death was a reasonably certain result of choking her. See Tex. Pen. Code Ann. '' 6.03(b), 19.02(b)(1).

After reviewing the entire record, the essential evidence may be distilled to the following: Before his arrest, appellant signed a statement that stated, AI started squeezing her throat and she was kicking me and I kept on squeezing.@ The officer who prepared the statement testified appellant read it back to two witnesses before signing it. Appellant admitted in his testimony that he knew if he were to put his hands on someone=s neck and squeeze long enough, that act would cause death. The forensic pathologist who performed the autopsy testified that the type of injuries he found on Ramirez were consistent with a strangulation that would have taken an estimated two to three minutes.

In light of the above evidence and lack of evidence to the contrary, we conclude that the proof of guilt is not so obviously weak as to undermine confidence in the jury's determination nor is the proof of guilt greatly outweighed by contrary evidence. See Johnson, 23 S.W.3d at 7. Accordingly, we conclude the evidence is also factually sufficient to support the verdict. Appellant's second issue is overruled.

IV. Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 4th day of August, 2005.