Martinez, Alfred Lee v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Affirmed and Opinion filed June 20, 2002

Affirmed and Opinion filed June 20, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00674-CR

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ALFRED LEE MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria  County, Texas

Trial Court Cause No. 36,102

O P I N I O N

Appellant, Alfred Lee Martinez, was convicted by a jury of two counts of aggravated sexual assault of a child and one count of indecency with a child. The jury assessed punishment at five years confinement for each of the aggravated sexual assault counts and ten years probation for indecency with a child. In six issues, appellant contends (1) the trial court erred in allowing trial to proceed on multiple alleged causes arising from separate episodes; (2) the court erred in running the sentences consecutively; and (3) his trial counsel was ineffective. We affirm.

I. Proper Joinder of Offenses

In his first issue, appellant contends that joinder of multiple offenses in a single indictment prevented a fair trial and proper sentencing. Appellant=s trial counsel, however, failed to object or otherwise raise this issue in the trial court. Article 1.14(b) of the Texas Code of Criminal Procedure provides:

If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post conviction proceeding.

Tex. Code Crim. Proc. Ann.art. 1.14(b) (Vernon Supp. 2002); see also Sanchez v. State, 928 S.W.2d 255, 257 (Tex. App.CHouston [14th Dist.] 1996, no pet.) (holding art. 1.14(b) requires objection to preserve alleged misjoinder error); Anderson v. State, 905 S.W.2d 367, 369-70 (Tex. App.CFort Worth 1995, pet. ref=d) (same). We therefore find that appellant has waived this complaint.

Furthermore, even if the appellant had not waived his right to object on appeal, the offenses were properly joined. Article 21.24(a) of the Texas Code of Criminal Procedure allows the joinder of two or more offenses in a single indictment if the offenses arise out of the same criminal episode. Tex. Code Crim. Proc. Ann. art. 21.24(a) (Vernon 1989). The Penal Code defines Acriminal episode@as:

[T]he commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses.

Tex. Pen. Code Ann. '3.01 (Vernon 1994).

The appellant was charged in the indictment with two counts of aggravated sexual assault and two counts of indecency with a child. All four counts involve sexual acts directed at young boys, and all occurred in the same trailer park. Indecency with a child is a lesser included offense of aggravated sexual assault. Read v. State, 768 S.W.2d 919, 920 (Tex. App.CBeaumont 1989, pet. ref=d). The two offenses are therefore similar. Howell v. State, 795 S.W.2d 27, 28 (Tex. App.CEl Paso1990, pet. ref=d) (holding that indecency with a child and sexual assault of a child are similar offenses under section 3.01). That the acts were committed at different times is of no bearing on the similarity analysis. See Guidry v. State, 909 S.W.2d 584, 585 (Tex. App.CCorpus Christi 1996, pet. ref=d) (finding that A[s]ection 3.01(2) does not impose a time differential between the commission of the same or similar offenses.@). Because the offenses were the repeated commission of the same or similar offenses, they arose out of the same Acriminal episode@ and were properly joined. Appellant=s first issue is overruled.

II. Ineffective Assistance of Counsel

In issues two, five, and six, appellant contends his counsel was ineffective in: (1) failing to move for a severance of the offenses; (2) failing to allow the appellant to testify on his own behalf; and (3) failing to request a limiting instruction on extraneous acts and the consideration of multiple charged offenses in a single trial.

To prevail on a claim of ineffective assistance of counsel, the appellant must establish: (1) that his lawyer=s performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability the result of the proceeding would have been different but for counsel=s deficient performance. Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The review presumes defense counsel=s actions were reasonable. Id. at 63. AAny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent as to defense counsel=s motivations for making a tactical decision, the appellant usually cannot overcome the presumption of reasonableness. Mallett, 65 S.W.3d at 63. In the majority of cases, the record will not adequately reflect the motives behind defense counsel=s actions. Id.[1]

A. Severance

In his second issue, appellant argues that his trial counsel was deficient in failing to file a motion for severance of the offenses. However, the charges against appellant were for indecency with a child and aggravated sexual assault of a minor; therefore, in order to obtain a severance as a matter of right, appellant would have had to show that he would have been unfairly prejudiced by a single trial. See Tex. Pen. Code Ann. ' 3.04(c) (Vernon Supp. 2002); Prudhomme v. State, 47 S.W.3d 683, 691 (Tex. App.CTexarkana 2001, pet. ref=d). The record does not reflect counsel=s strategy in making the decision to not seek a severance. See Mallett, 65 S.W.3d at 63. Counsel may simply have decided that he would not be successful in arguing unfair prejudice. See Prudhomme, 47 S.W.3d at 691. When severance is not available as a matter of right, the failure to seek such relief is nothing more than a tactical decision. Cf. United States v. Garza, 563 F.2d 1164, 1166 (5th Cir. 1977) (under Federal Rules of Criminal Procedure); Woods v. State, 998 S.W.2d 633, 635-36 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (in context of severance between co-defendants, not severance of offenses). Because the record is silent as to defense counsel=s rationale for not seeking a severance, we cannot judge the validity of that decision. See Stults v. State, 23 S.W.3d 198, 209 n.6 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Accordingly, appellant has failed to meet his burden of showing that his lawyer=s performance fell below an objective standard of reasonableness. See Mallett, 65 S.W.3d at 62-63. His second issue is overruled.

B. Testimony

In his fifth issue, appellant contends that his counsel was deficient because he did not allow appellant to testify. Appellant cites no authority in support of this contention and provides no analysis of the evidence. Appellant simply argues: A[U]nder the facts and circumstances of the instant case, it would be foolharded [sic] to think that any defendant would have even a remote chance of acquittal without taking the stand in his own behalf.@ Conclusory statements unsupported by argument or authority are inadequately briefed, and thus are waived. Vasquez v. State, 22 S.W.3d 28, 31 (Tex. App.BAmarillo 2000, no pet.); Lockett v. State, 16 S.W.3d 504, 505 n.2 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d); see also Tex. R. App. P. 38.1(h) (AThe brief must contain a clear and concise argument . . . with appropriate citations to authorities and to the record.@). Additionally, the record does not reflect counsel=s strategy in making this decision. See Mallett, 65 S.W.3d at 63. There are a number of reasons why it might not be in the best interest of a defendant to testify. For example, if a Defendant testifies, his testimony might reveal prior convictions. Also, some Defendants make poor witnesses. Because the record is silent as to defense counsel=s rationale in not calling his client as a witness, we cannot judge the validity of that decision. See Stults, 23 S.W.3d at 209 n.6. Appellant=s fifth issue is overruled.

C. Limiting Instruction

In his sixth issue, appellant contends that defense counsel was deficient because no limiting instruction was requested to advise the jury that they must determine culpability for each charged offense separately, without consideration of the other charged offenses. The record reflects that trial counsel did request and receive a standard limiting instruction regarding extraneous acts; however, no instruction was requested concerning the consideration of charged offenses.

Although appellant cites two cases concerning the propriety of a standard instruction on extraneous offenses, he fails to cite any cases supporting his contention that an additional, similar instruction is necessary when multiple offenses are tried together. In failing to provide any support for his contention that the instruction at issue would have been proper, appellant has not met his initial burden to demonstrate that counsel=s representation was not reasonable under prevailing norms. See Perez v. State, 56 S.W.3d 727, 730-31 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).[2]

Furthermore, the record is silent as to whether counsel had any strategic motives for not requesting the instruction, such as to prevent juror confusion or a belief that the extraneous offense issue was sufficiently covered by the charge as presented to the jury. We therefore decline to speculate on counsel=s motives. See Stults, 23 S.W.3d at 209 n.6. In sum, appellant has failed to rebut the presumption that counsel=s actions were reasonable. Accordingly, appellant=s sixth issue is overruled.

III. Concurrent Sentences

In his third and fourth issues, appellant claims that his sentences of confinement on counts one and two (aggravated sexual assault) should run concurrently rather than consecutively with his probated sentence on count four (indecency with a child). Appellant has apparently misread the record. The AFelony Supervision Order@ shows that appellant=s ten year probated sentence on count four began on April 17, 2001, which is the same day the sentencing document states his confinement sentence began on counts one and two. Furthermore, the trial judge stated in his oral pronouncement of sentence that the sentences were to be concurrent and not stacked, and the written judgment states AConcurrent Unless Otherwise Specified.@ As appellant=s sentences are, in fact, concurrent, appellant=s third and fourth issues are moot.[3]

The judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Opinion filed June 20, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish CTex. R. App. P. 47.3(b).

[1] The record regarding the effectiveness of counsel is best developed through an application for a writ of habeas corpus or a motion for new trial. Jensen v. State, 66 S.W.3d 528, 542 (Tex. App.CHous. [14th Dist.] 2002, no pet.) (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)).

[2] The State=s brief indicates that it did not find any cases authorizing such an instruction, and our research has likewise revealed no such cases. We refuse to find counsel ineffective for failing to anticipate a future decision. See Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998). A defendant is entitled to reasonably effective counsel, not perfect counsel judged by hindsight. Perez, 56 S.W.3d at 730. We take no position as to whether such an instruction would have been appropriate if requested.

[3] Appellant also contends that he improperly received two separate judgments and two separate sentences. Because the only harm he identified is the consecutive running of his sentences and we have determined that his sentences run consecutively, this sub-issue is also rendered moot.