Diaz, Pedro v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed December 18, 2003

Affirmed and Memorandum Opinion filed December 18, 2003.

In The

Fourteenth Court of Appeals

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NOS. 14-02-01224-CR

14-02-01225-CR

14-02-01226-CR

14-02-01227-CR

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PEDRO DIAZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 911394, 911395, 919051 & 919050

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

Appellant, Pedro Diaz, pleaded guilty to two counts of aggravated kidnapping and two counts of aggravated robbery and not true to the corresponding aggravated assault enhancements. A jury found appellant guilty, the enhancement allegations to be true, and assessed punishment at four life sentences. The trial court ordered the sentences served concurrently, and assessed a fine of $10,000 in each case. Appellant challenges his

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convictions on the following grounds: (1) the trial court erred in admitting into evidence a letter authored by appellant; (2) appellant received ineffective assistance of counsel; and (3) the State committed fundamental error by improperly applying parole law to appellant during its closing argument. We affirm.

I. Factual Background

On April 24, 2002, while Peggy Hannsz was delivering items to an unoccupied house owned by a friend, appellant and Josue Delgado confronted her, pointing a shotgun at her. They taped Peggy s hands and feet with duct tape[1] and forced her to lie down in the back of her vehicle. Appellant then drove Peggy s truck to various locations around the city of Houston, purchasing items with Peggy s credit cards and cash withdrawn from her bank account. Throughout the ordeal appellant and Delgado repeatedly threatened to harm Peggy if she refused to cooperate. Ultimately, Peggy was able to escape by going into a ladies restroom at a department store where appellant and Delgado had stopped to purchase clothes. Peggy told a store employee of her circumstances and the employee called police. Appellant entered the ladies restroom and attempted to force Peggy to leave with him, but she refused. Eventually, appellant left the store, driving away in Peggy s truck.

Two days later, on April 26, 2002, appellant and another man, nicknamed Ice, broke into Laurie McDonald s home and pointed a shotgun at her. Appellant forced Laurie to lie on her stomach, tied her hands behind her back with cable, and placed a towel over her head. While one man guided Laurie from her home to her vehicle, the other held the shotgun to her head. Appellant drove Laurie s car to a bank and attempted to withdraw money from her account using her ATM card; however, the machine kept the card and they drove off. Laurie then offered to write a check and cash it at the bank. Appellant s accomplice untied Laurie s hands, allowing her to drive so as to appear natural. While waiting in line at the drive-

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through, Laurie was able to escape from the car. Appellant was later arrested and charged with the aggravated kidnapping and aggravated robbery of both Peggy and Laurie.

II. Discussion

A. Admission of Appellant s Letter

In his first issue, appellant contends the trial court erred by admitting into evidence an eight-page letter written by appellant while in custody, and sent to a juvenile in the custody of the Texas Youth Commission. Specifically, appellant argues the letter should have been excluded under Texas Rule of Evidence 403 because the probative value of the letter was substantially outweighed by its prejudicial effect on the jury. The State contends appellant failed to preserve error and, alternatively, the letter s probative value was not substantially outweighed by its prejudicial effect.

In the letter, appellant discussed the subject offenses, including his arrest, and other crimes he claimed to have committed with Iceman. Appellant also discussed how the subject offenses had resulted in the use of a tougher D.A., which he interpreted to mean he is rollin with the big boyz. Appellant described his involvement in the robberies, stating:

I tried to put in work but I had nothing but scared ass punks. I just needed someone to come along[. A]ll of them even tell you they were scared[.] I always the one to go first & make sure the area was clear[,] house or store; I basically did everything but I always split even just for coming & all they do come along[.] I load up the s--- & tie them up & all. I was comfortable just when I had someone with me. They were even scared to come along or hold a 410 shotgun, rifle; 380, 32 handgun. I was about to stop cause I had the feeling some s--- was going to happen like this. But I didn t have the chance to; I was going to chill on the serious & take the s--- serious by doing it right with the down ass laws. I just hope y all don t make the same mistake I did by not taking it serious. . . . I made the mistake so I ain t tripping about paying the due[.] I just hope it s no more then 15 years straight cause I sign for no more [than] 20[. I]f they try to force me, you all going hear about how I acted a fool in court on all the people I assaulted including the Judge and DA.

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At trial, appellant objected to admission of the letter based on its relevancy and stating further, Rule 403. [2] See Tex. R. Evid. 403. The State argues appellant failed to preserve error on his Rule 403 argument, because he did not specifically object to those portions of the letter he deemed inadmissible. We agree. When an exhibit contains both admissible and inadmissible evidence, the objection must specifically refer to the challenged material to apprise the trial court of the precise objection. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). In those instances, when an exhibit contains both admissible and inadmissible evidence, a trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection. Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992), abrogated on other grounds by Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001).

Moreover, appellant s objection was also too general to preserve error because he failed to identify any specific Rule 403 grounds for excluding the evidence. See Phelps v. State, 999 S.W.2d 512, 520 (Tex. App. Eastland 1999, pet. ref d) (finding appellant waived his Rule 403 objection because it was too general); Williams v. State, 930 S.W.2d 898, 901 (Tex. App. Houston [1st Dist.] 1996, writ ref d) (same). Rule 403 provides that evidence, although relevant, may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. Because Rule 403 provides five distinct grounds for excluding otherwise relevant evidence, a defendant must specify which of the five grounds is applicable. Phelps, 999 S.W.2d at 520; Williams, 930 S.W.2d at 901. Otherwise, a trial judge is forced to determine which of the

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grounds to rule on. See Williams, 930 S.W.2d at 901. Here, because appellant s general objection failed to specify the applicable grounds, he waived the Rule 403 objection.

Regardless, even if appellant s objection had been sufficiently specific, we would conclude the probative value of the letter is not substantially outweighed by its prejudicial effect. We begin by noting that there is a presumption that relevant evidence is more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Further, the admissibility of evidence under Rule 403 is within the trial court s discretion and is reviewed only for an abuse of that discretion. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). To determine whether the admission of evidence constitutes an abuse of discretion under Rule 403, our analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the evidence s potential to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent s need for the evidence. Reese v. State, 33 S.W.3d 238, 240 41 (Tex. Crim. App. 2000).

At the punishment phase, the circumstances of the offense and of the defendant himself are admissible. Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1988); Henson v. State, 794 S.W.2d 385, 396 (Tex. App. Dallas 1990, writ ref d). One circumstance of the defendant is his character. Murphy, 777 S.W.2d at 63.

The letter at issue contains numerous admissions and provides insight into the appellant s attitude about committing these crimes, as well as directing others to participate. Also, it is replete with evidence demonstrating appellant s character. It provided the jury with an opportunity to learn more about appellant s motives and plans. For example, in the letter, appellant spoke candidly about his thoughts and feelings pertaining to the instant offenses and cautioned the young recipient of the letter, don t make the same mistake I did by not taking it serious. Further, we agree with the State s assertion, that it needed the letter as evidence of appellant s character, the circumstances surrounding the offense, and the degree of appellant s culpability.

Also, although eight witnesses were utilized to admit the letter into evidence, their testimony was relatively short and was required to establish the authenticity of the letter to make it properly admissible. See Williams v. State, 916 S.W.2d 53, 55 (Tex. App. Houston [1st Dist.] 1996, no writ) (holding incriminating letter improperly admitted because it was not properly authenticated). Finally, we note that appellant concedes the probative value of the letter weighs in favor of the State and that it was relevant to show the results and foreseeable consequences of appellant s actions and violent and vicious nature.

Based on the foregoing, we find the trial court did not abuse its discretion in finding the letter s probative value was not substantially outweighed by the danger of unfair prejudice. Accordingly, we overrule appellant s first point of error.

B. Ineffective Assistance of Counsel

Appellant contends in his second issue that he received ineffective assistance of counsel during the punishment phase of trial because counsel failed to object to both (1) the State s closing remarks and (2) the imposition of four life sentences and assessed fines as cruel and unusual punishment under the Eighth Amendment of the United States Constitution.

Specifically, appellant claims remarks made during the State s closing argument were an impermissible application of parole law to appellant. In his closing, the prosecutor commented as follows:

I have never enjoyed standing up here and asking for a long sentence or worse. It s not something I enjoy, but I submit to you for the protection of the rest of the community, this man needs a life sentence. You know the irony of it? The irony of it is someday he will get out and he will probably be younger than Mr. Cornelius and myself. That s

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saying something about our age, ladies and gentlemen. This young man here, you need to fear. Fear him. A person not only does hijacks at the point of a shotgun, sticks shotguns in women s faces, but goes into homes.

The standard for appellate review of the effectiveness of counsel is dictated by the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984).[3] Under the first prong, appellant must show that his counsel s performance was deficient. Strickland, 466 U.S. at 687. Specifically, appellant must prove by a preponderance of the evidence that his counsel s representation fell below the objective standard of professional norms. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Under the second prong, appellant must show that this deficient performance prejudiced his defense, that is, he must show a reasonable probability that, but for his counsel s errors, the result of the proceeding would have been different. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). A reasonable probability is one sufficient to undermine confidence in the outcome. Id. There is a strong presumption that counsel s conduct fell within the wide range of reasonable professional assistance. Bone, 77 S.W.3d at 833.

To defeat the strong 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 v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). When there is no evidence of counsel s reasons for the challenged conduct, an appellate court presumes a strategic motivation if one can be imagined, and will not conclude that counsel s action was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 814.

Here, there is nothing in the record that assists appellant in overcoming the presumption that counsel s conduct was reasonable and professional. There was neither a motion for new trial filed nor a petition for writ of habeas corpus, either of which would help to explain trial counsel s actions; therefore, we must presume that counsel had a plausible reason for his actions. See Freeman v. State, No. 2156-01, slip op. at ___, 2003 WL 22510582, at *1 (Tex. Crim. App. Nov. 5, 2003); Safari v. State, 961 S.W.2d 437, 445 (Tex. App. Houston [1st Dist.] 1997, pet. ref d); see generally Mitchell, 68 S.W.3d at 642 (stating that a writ of habeas corpus is the appropriate vehicle to investigate ineffective assistance of counsel claims).

In sum, appellant failed to establish that his trial counsel s representation fell below the objective standard of professional norms. Accordingly, we overrule appellant s second issue.

C. Fundamental Error

In his third issue, appellant contends the State s closing remarks, discussed above, amount to fundamental error and thus, no objection was required at trial. To support this contention, appellant cites to Clay v. State, 741 S.W.2d 209, 210 (Tex. App. Dallas 1987, writ ref d). However, although formerly an appellant could complain of unobjected to improper argument if the argument was so egregious that its harm could not be cured by an instruction to disregard, this is no longer the rule. Simmons v. State, 100 S.W.3d 484, 495 (Tex. App. Texarkana 2003, pet. ref d). Now, before complaining on appeal about an erroneous jury argument, an appellant must show that he timely and properly objected to the argument and pursued the objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Simmons, 100 S.W.3d at 494 95. Here, even assuming for the sake of argument that the State s remarks were improper, appellant did not object to the State s argument and therefore has waived any alleged error.[4] Accordingly, we overrule his third issue.

For the foregoing reasons, appellant s conviction is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 18, 2003.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] At one point, appellant removed the duct tape from Peggy s hands and accidentally cut her hand open, a wound requiring six stitches.

[2] In his appellate brief however, appellant concedes the letter is relevant and argues only that it should have been excluded under Rule 403. Accordingly, we limit review to that argument. See Tex. R. App. P. 38.1; see generally Phagan v. State, 510 S.W.2d 655, 659 (Tex. App. Fort Worth 1974, writ ref d n.r.e.) (holding because appellant failed to brief and argue a point, it is waived and he is not entitled to have it considered on appeal).

[3] The Strickland test was held applicable to reviewing ineffective assistance claims at the punishment phase of a non-capital offense in Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

[4] Even assuming appellant preserved any error, Clay v. State is clearly distinguishable because there the prosecutor misstated the law as outlined in the jury charge by informing the jury they could consider how parole law applied to the defendant. These are not the circumstances before us. Here, the State merely made a plea for law enforcement or responded to council s accusations that the prosecutor did not consider appellant a human being. The prosecutor s statements did not request the jury consider parole as it applied to appellant.