ROBERT GENE LEOS GARZA v. THE STATE OF TEXAS--Appeal from 398th District Court of Hidalgo County

NUMBER 13-05-174-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

ROBERT GENE LEOS GARZA, Appellant,


v.

THE STATE OF TEXAS, Appellee.

On appeal from the 398th District Court

of Hidalgo County, Texas

MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez

This is an appeal from a guilty verdict in a jury trial. Count two of the indictment charged appellant, Robert Gene Leos Garza, with the attempted capital murder of Karla Espino Ramos, while count three charged him with the attempted capital murder of Magda Torres Vasquez. See Tex. Penal Code Ann. 15.01, 19.03 (Vernon 2003). (1) The jury found appellant guilty of both charges and assessed a life sentence as to each one. By five points of error, appellant contends the following: (1) the trial court erred in denying his motion to suppress his statement because the statement was not given voluntarily; (2) trial counsel offered ineffective assistance by failing to object to hearsay testimony admitted during trial, a violation of the confrontation clause, and by failing to provide or offer any mitigating evidence; (3) his Fifth Amendment constitutional right against self-incrimination was violated when he was forced to show his tattoos to the jury; (4) the factual sufficiency of the evidence fails to substantiate the jury's finding of guilt; and (5) trial counsel offered ineffective assistance by failing to provide or offer any mitigating evidence and by not objecting to hearsay evidence which was admitted during the punishment phase of the trial. We affirm.

I. Direct Appeals to the Court of Criminal Appeals of Counts One and Four

Garza was also charged in count one with the offense of capital murder, based on an allegation that he had caused the deaths of Celina Linares Sanchez, Lourdes Yesenia Araugo Torres, Danitzene Liseth Vasquez Beltran, and Maria De La Luz Bazaldua Cobarrubias during the same criminal transaction, see id. 19.03(a) (Vernon Supp. 2006), and charged in count four with the offense of engaging in organized criminal activity for causing the deaths of those individuals by shooting them with a firearm during the same criminal transaction and committing the offense as a member of a criminal street gang. See id. 71.02 (Vernon Supp. 2006). The jury found appellant guilty of those charges and answered "Yes" to the future dangerousness and anti-parties death penalty special issues and "No" to the mitigating circumstances issue as to both counts. The trial court imposed death sentences as to counts one and four. See Tex. Code Crim. Proc. Ann. art. 37.071, 2(g) (Vernon 2006).

Appellant sought direct review in the Texas Court of Criminal Appeals of the death sentences imposed as to counts one and four. See id. art. 37.071, 2(h) (Vernon 2006); Tex. R. App. P. 71.1. In his direct appeals, appellant raised five points of error, virtually identical to those raised in this Court, including the following: (1) the trial court erred in denying his pre-trial motion to suppress his statement given to investigators on January 26, 2003, because the statement was involuntary; (2) trial counsel rendered ineffective assistance because he failed to object to hearsay evidence that violated the confrontation clause, specifically counsel's failure to object to Sifuentes's testimony about information received from T.C.B. members who did not testify at trial; (3) the trial court erred in requiring him to display his T.C.B. tattoos to the jury because this violated his Fifth Amendment right against self-incrimination; (4) the evidence was factually insufficient to support the jury's finding of guilt; and (5) trial counsel rendered ineffective assistance because he failed to provide or offer any mitigating evidence during the punishment phase of the trial. See Garza v. State, 213 S.W.3d 338, 344-48 (Tex. Crim. App. 2007). (2)

On August 4, 2006, pending the outcome of the direct appeals, this Court abated the present appeal. On January 31, 2007, the court of criminal appeals handed down its published opinion in regard to the death penalty direct appeals rejecting appellant's challenges to the trial court's denial of his motion to suppress his statement, the trial court requiring him to display his tattoos to the jury, and the factual sufficiency of the evidence to support his conviction. See id. at 344-47. It also rejected appellant's claims that his attorneys had failed to render effective assistance of counsel by failing to object to an investigator's mention of information received from gang members who did not testify at trial and by failing to present any mitigating evidence at the punishment phase of trial. Id. at 347-48. On March 29, 2007, after the court of criminal appeals disposed of the direct appeals, we reinstated the present appeal.

II. Analysis

A. Points of Error Addressed by the Court of Criminal Appeals

Based on the sound reasoning in the court of criminal appeals' January 31, 2007 opinion in the related death penalty direct appeals, see id. at 344-48, we overrule the following: (1) point of error one challenging the trial court's denial of his motion to suppress his statement; (2) point of error two complaining of trial counsel's alleged failure to object to hearsay testimony admitted during trial; (3) point of error three challenging the trial court's requiring appellant to show his tattoos to the jury; and (4) the part of point of error five challenging trial counsel's alleged failure to provide or offer any mitigating evidence during the punishment phase of trial.

B. Factual Sufficiency

In his fourth point of error, appellant contends that the evidence was factually insufficient to support the jury's finding of guilty of attempted capital murder. (3) In a factual sufficiency review, an appellate court views all of the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Id. at 344 (citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). "A clearly wrong and unjust verdict occurs where the jury's finding is 'manifestly unjust,' 'shocks the conscience,' or 'clearly demonstrates bias.'" Id. (citing Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997)).

Appellant was indicted for two attempted capital murders. In count two, he was indicted for attempted capital murder--with the specific intent to commit the offense of capital murder of Karla Espino Ramos, by shooting Karla Espino Ramos with a firearm, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended; during the same criminal transaction appellant intentionally and knowingly caused the deaths of Celina Linares Sanchez, Lourdes Yesenia Araujo Torres, Danitzene Liseth Vasquez Beltran, and Maria De La Luz Bazaldua Cobbarrubias. In count three, appellant was indicted for the attempted capital murder of Magda Torres Vasquez during the same criminal transaction. The charge authorized the jury to convict appellant if it found that either he attempted to shoot the victims with a firearm or acted with intent to promote or assist Mark Anthony Reyna, Guadalupe Guerra, and Ricardo Martinez in committing capital murder, and appellant did then and there solicit, encourage, direct, aid or attempt to aid Reyna, Guerra, and Martinez in committing the offense. Because the jury was charged on the law of parties, see Tex. Penal Code Ann. 7.02(a)(2) (Vernon 2003), proof that appellant actually fired the shots is not necessary. Garza, 213 S.W.3d at 344 (citing Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App. 1992) (en banc)).

Appellant contends that although there was a substantial amount of evidence collected at the scene of the crime, none of it was linked to him. He also argues that the evidence was insufficient because "aside from the tainted and coerced confession, there is no lawfully obtained evidence, physical or otherwise, linking [a]ppellant to the shooting." "However, in evaluating whether the evidence is sufficient to sustain a conviction, we consider all the evidence that the trial judge permitted the jury to consider, including erroneously admitted evidence." Id. (citing Knox v. State, 934 S.W.2d 678 (Tex. Crim. App. 1996); Gribble v. State, 808 S.W.2d 65 (Tex. Crim. App. 1990)).

In his statement, appellant admitted that he received instructions on September 5, 2002, to carry out a "hit" with Martinez, Reyna, and Manny that "resulted in the death of four Donna [wo]mans [sic]." Appellant told Martinez where to get a vehicle that had been left for them. They went to a bar in Donna located "off old [highway] 83." Appellant's statement also indicates that Martinez picked up appellant and Reyna, that Martinez had several weapons with him including an AK-47 and a TEC-9, that appellant, Martinez, and Reyna picked up Manny to check out Garcia's Bar and to get a second vehicle, and that appellant and Reyna got into that vehicle and followed Martinez and Manny back to Donna. A Grand Am passed them, and appellant saw the first car pull over and both vehicles take off again. Appellant stated he saw the first car turn into what looked like a big house or an apartment complex, the second car kept going and then pulled over, and Manny and Martinez "jumped off the v[e]hicle" and ran toward the house. Appellant heard gunshots and saw Manny running toward the house, shooting as he ran, and Martinez shooting as he stood at the edge of the street. Manny and Martinez ran back to the vehicles; Martinez got into the car appellant was in and Manny into the other car.

As the court of criminal appeals set out, the State presented corroborating evidence that the shooting took place on September 5, 2002, just outside the Donna city limits and that sixty-one shots had been fired at a parked Pontiac Grand Am. Id. at 345. Four of the six women inside the vehicle died. All of the women worked at Garcia's Bar, located off Business 83 in Donna. Forensic evidence further corroborated appellant's statement. Testimony established that a TEC-9 fired eighteen of the nine-millimeter casing found at the scene, and that three SKS rifles, which looked like AK-47 rifles, could have fired some of the casings found at the scene. As the court of criminal appeals concluded, "[t]his was consistent with the appellant's observation of an AK-47 and a TEC-9 in the shooters' trunk." Id.

And appellant's complaint that other suspects were identified as the shooters, is not persuasive because, under the law of parties, the State was not required to prove appellant was one of the shooters. Also, as noted by the court of criminal appeals, the State showed that several of the other suspects had been eliminated after further investigation. Id. Finally, appellant matched one of the witness's description of one of the shooters. Id.

Although the State's evidence does not affirmatively show appellant fired the shots in an attempt to murder Ramos and Vasquez, at the very least the evidence established beyond a reasonable doubt his participation in the offense as a party. The evidence was not so weak that the verdict was clearly wrong and manifestly unjust, and the contrary evidence was not so strong that the standard of proof beyond a reasonable doubt could not have been met. Point of error four is overruled.

C. Ineffective Assistance of Counsel

By his remaining sub-issue in his fifth point of error, appellant contends that his trial attorney provided ineffective assistance by failing to object to "volumes of hearsay testimony offered by the State during the punishment phase." The specific records about which appellant complains include the following: (1) a certified copy of a judgment issued by the court on February 13, 1997, that placed appellant outside his home and at the Hidalgo County Youth Village; (2) a certified copy of a November 21, 1997 court order committing appellant to the Texas Youth Commission; (3) a certified copy of a February 2002 judgment for the offense of escaping while confined and placement in the Texas Department of Corrections Institutional Division; and (4) a certified copy of a July 9, 2002 judgment placing appellant on probation--community supervision--for the same offense. He complains that because the reports were "testimonial" and were read by witnesses for the State who had no first-hand knowledge of the facts, they were inadmissible under the Confrontation Clause.

The challenged evidence, however, consisted of court records concerning appellant's juvenile and adult criminal records, which are admissible in the punishment phase under Texas Code of Criminal Procedure article 37.07, section 3(a), (4) and which were properly admitted under the public records exception to the hearsay rule pursuant to Texas Rule of Evidence 803(8). (5) See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a) (Vernon 2006); Tex. R. Evid. 803(8); Gamble v. State, 717 S.W.2d 14, 15 (Tex. Crim. App. 1986) (en banc) (allowing State to admit copies of judgments of prior misdemeanor convictions at punishment phase); see also Webb v. State, 840 S.W.2d 543, 548 (Tex. App.-Dallas 1992, no pet.) (citing Fairris v. State, 515 S.W.2d 921, 923 (Tex. Crim. App. 1974) (providing that pleadings such as an indictment, complaint, and information, are admissible under section 37.07 to prove a defendant's criminal history). Additionally, the case upon which appellant relies regarding his confrontation argument, Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005), is distinguishable. Russeau relied on Crawford v. Washington, 541 U.S. 36, 59 (2004), to hold that graphic and detailed jail incident reports and prison disciplinary reports were testimonial in nature and, thus, were improperly admitted at the punishment phase of trial as business records because Russeau did not have the opportunity to confront the declarants. See id. at 880-81. In the present case, however, the challenged evidence consisted of certified court documents concerning appellant's juvenile and adult criminal records, not incident reports and disciplinary reports. Thus, appellant's reliance on Russeau is misplaced.

Finally, even were we to determine that the complained-of exhibits violated article 37.07 or were hearsay, counsel's reasons for his actions or intentions do not appear in the record. Under Strickland, because counsel's conduct could have been part of a reasonable trial strategy, without more, we must defer to counsel's decisions not to object to this material being admitted as evidence, and deny relief. See Garza, 213 S.W.3d at 348 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002); Chambers v. State, 903 S.W.2d 21, 33 (Tex. Crim. App. 1995)).

We overrule the remaining sub-issue of appellant's fifth point of error, that appellant's trial attorney provided ineffective assistance by failing to object to "volumes of hearsay testimony offered by the State during the punishment phase."

III. Conclusion

Accordingly, we affirm the judgment of conviction and punishment as to counts


two and three.


NELDA V. RODRIGUEZ

Justice


Do not publish.

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


Memorandum Opinion delivered and

filed this 9th day of August, 2007.

1. For convenience we cite to the current versions of the penal code, code of criminal procedure and rules of evidence because no substantive amendments, if any, have been made since the time of appellant's offense.

2. After original submission, the court of criminal appeals ordered the parties to brief the following additional issues: (1) does section 1.02 define organized criminal activity as an offense susceptible to capital punishment when the offense that the accused commits as a member of a criminal street gang is capital murder, which is one of the offenses enumerated in subsection (1)(a); and (2) if so, does it violate the multiple-punishment prohibition of the Double Jeopardy Clause of the Fifth Amendment to assess the death penalty against appellant both for the capital murder itself and for committing capital murder as a member of a criminal street gang. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).

Regarding these issues, the court of criminal appeals held that capital punishment was not available under these circumstances. Id. It also concluded that it did not violate double jeopardy to try and to punish appellant in a single proceeding for both the capital murder offense and the organized criminal activity offense. Id. The court of criminal appeals set aside appellant's conviction as to count four, the engaging in organized criminal activity charge, and remanded that count to the trial court for re-sentencing as a first degree felony. Id. at 351-52. Because this analysis relates only to count four, we need not address it in the present appeal.

3. As did the court of criminal appeals, we note that in a single point of error appellant challenges the factual sufficiency of both attempted capital murder charges. See id. at 344 n.11. Because appellant does not distinguish them, neither shall we.

4. Article 37.07, section 3(a), generally provides that, after a finding of guilty, evidence of appellant's prior criminal record relevant to the sentencing may be offered during the punishment phase. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a) (Vernon 2006).

5. Rule 803(8) of the rules of evidence provides a hearsay exception for the following:


Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth: (A) the activities of the office or agency; (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or (C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law; unless the sources of information or other circumstances indicate lack of trustworthiness.


Tex. R. Evid. 803(8).