GERMAN ELITO LOPEZ TORRES v. THE STATE OF TEXAS--Appeal from 389th District Court of Hidalgo County

NUMBER 13-05-00778-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GERMAN ELITO LOPEZ TORRES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 389th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and VelaMemorandum Opinion by Chief Justice Valdez

German Elito Lopez Torres appeals the trial court's judgment revoking his community supervision for aggravated robbery and sentencing him to 7 years in prison. Tex. Penal Code Ann. 29.03 (Vernon 2003). Torres's sole issue on appeal is ineffective assistance of trial counsel. He contends that his counsel (1) failed to object to certain evidence, (2) failed to provide witnesses to support Torres's defensive theories, (3) failed to request a Presentence Investigation Report ("PSI"), and (4) failed to argue Torres's minor role in the offense and conduct an adequate closing argument. We affirm.

I. BACKGROUND

On December 22, 2000, Lucio Medrano was working as the night watchman at an auto supply store. Several subjects robbed the store at gunpoint. Medrano was severely injured during the robbery. There is conflicting evidence regarding Torres's level of participation in the robbery. In any event, Torres entered a plea of guilty to the aggravated robbery charge, had the adjudication of his guilty plea deferred, and was sentenced to 10 years community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon 2006). Additionally, he was ordered to pay a $5,000 fine, $7,304.27 in restitution, and court costs.

On January 5, 2005, the State filed the underlying motion for adjudication. The State's motion, as amended, alleged that Torres violated numerous community supervision conditions. Those violations included, among others, driving while intoxicated, possessing a controlled substance, failing to remain in a restitution center, and failing to make restitution payments. Id. at 23.

An adjudication hearing was held on August 19, 2005. Torres pled "not true" to the allegations made in the State's motion for adjudication. Jose Gonzalez, Torres's most recent probation officer, testified for the State as to Torres's behavior while on probation.

Gonzalez testified that Torres failed to make restitution payments, failed to report to probation officers on time, and had been arrested for driving while intoxicated. Much of Gonzalez's testimony came by referencing what were referred to as "chronos," which are reports prepared by four of Torres's former probation officers. Torres's counsel objected to the chronos as hearsay. The State then offered them as business records, and they were admitted without objection.

The State also called McAllen Police Officers Robert Leija and Leonel Escalon to testify about their arrest of Torres for drunk driving on September 7, 2004. The officers testified that they saw Torres nearly hit several vehicles while he was pulling out of a parking lot at 2:08 a.m. When they approached Torres, he smelled of alcohol, had slurred speech, and flunked three field sobriety tests.

The trial court found that Torres had violated numerous probation conditions and then made a finding of guilt as to the aggravated robbery charge. During the punishment phase, the State reintroduced the evidence used in the adjudication of guilt without objection. Torres received a seven year prison sentence. This appeal ensued.

II. DISCUSSION

A. Applicable Law

In reviewing claims of ineffective assistance of counsel, we apply a two-prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687(1984)). To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel's representation was deficient in that it fell below the standard of prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 814. When the record is silent as to the reasons for counsel's conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court. Stults, 23 S.W.3d at 208. Absent specific explanations for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

B. Sub-Issue 1: State's Introduction of Evidence at Punishment Phase

Torres first contends that he was denied effective assistance of trial counsel when Gonzalez's testimony was admitted during the punishment phase. Torres argues that Gonzalez's testimony contained hearsay statements and that its introduction at the punishment phase violated his constitutional rights under the Confrontation Clause. U.S. Const. amend. VI; see also Tex. R. Evid. 802 (providing that hearsay is not admissible except as provided by statute, the rules of evidence, or other rules prescribed pursuant to statutory authority).

Torres's first sub-issue fails to pass Strickland's first prong. For a criminal defendant to successfully maintain an effective assistance argument premised on his trial counsel's failure to object to the State's questioning and argument, he must show that the trial court would have committed error in overruling such an objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). During the adjudication phase, the "chronos" were admitted under the business records exception to the hearsay rule without objection. Tex. R. Evid. 803(6). Probation records may have probative value and can constitute evidence of facts. Hardman v. State, 614 S.W.2d 123, 128 (providing that probation payment records constituted evidence of defendant's failure to pay required fees). The trial court, therefore, could have properly considered Gonzalez's testimony and the "chronos" when assessing a sentence. Moreover, the trial court could have also considered the live testimony of Officers Leija and Escalon in determining Torres's punishment. Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (any error in admitting evidence cured when same evidence comes in elsewhere without objection)

Regarding Torres's Confrontation Clause argument, he fails to explain how the "chronos" are more testimonial in a constitutional sense than they are business records, and we may not speculate on that issue. Tex. R. App. P. 38.1(h) (providing that a brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). Torres's first sub-issue is overruled.

C. Sub-Issue 3: Trial Counsel's Failure to Request a PSI

Torres argues in sub-issue three that trial counsel was ineffective because he purportedly failed to request a PSI. We disagree.

A defendant's counsel has the option to request the judge to issue a PSI report. Tex. Code Crim. Proc. Ann. art. 42.12 9(a) (Vernon 2006). The judge is not required to issue a PSI report in a felony case where imprisonment is the only punishment available to the defendant. Tex. Code Crim. Proc. Ann. art. 42.12 9(g)(3) (Vernon 2006). The effect of not requesting a PSI report can only be speculative. See Bone v. State, 77 S.W.3d 808, 835 (Tex. Crim. App. 2002) (stating ineffective assistance of counsel claims cannot be speculative).

Torres must show the alleged errors by trial counsel had an adverse affect on the defense; otherwise, the trial counsel's actions must be considered sound trial strategy. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (quoting Strickland, 466 U.S. at 689). Torres does not provide sound evidence to demonstrate that he was prejudiced at the sentencing hearing because trial counsel failed to request a PSI report. See Rylander, 101 S.W.3d at 111 (discussing how an undeveloped record cannot reflect trial counsel's motives). Additionally, trial strategy can be instrumental in influencing defense counsel's decision on whether to request the PSI report. Trial counsel may have chosen not to request the PSI report to prevent the trial court from seeing Torres's past because of other incidents not yet apparent to the court. See Bone, 77 S.W.3d at 835. Torres's third sub-issue is overruled.

D. Sub-Issues 2 and 4: Inadequately Briefed

In his second sub-issue, Torres contends that his trial counsel failed to present witnesses on his behalf to explain why he did not comply with certain community supervision terms and also that his trial counsel failed to adequately prepare for the punishment phase. In his fourth sub-issue, Torres alleges that his trial counsel was ineffective because he failed to argue that Torres played a minor role in the aggravated robbery. Additionally, Torres alleges that his trial counsel failed to present a more compelling closing argument.

Sub-issues two and four do not contain a single citation to legal authority. They are inadequately briefed. Tex. R. App. P. 38.1(h) (providing that a brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record). Accordingly, sub-issues two and four are overruled.

III. CONCLUSION

We overrule Torres's sole issue on appeal. The judgment of the trial court is affirmed.

ROGELIO VALDEZ

Chief Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this the 19th day of July, 2007.