Richard Rodriguez v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

No. 04-97-00761-CR
Richard RODRIGUEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 94-CR-3903
Honorable Peter Michael Curry, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: November 4, 1998

AFFIRMED

Richard Rodriguez appeals his capital murder conviction, contending that ineffective assistance of counsel, factually insufficient evidence, and improper conduct by the trial court contributed to an improper conviction. Because we find no reversible error, we affirm the trial court's judgment.

Factual and Procedural Background

Two versions of events are offered by the parties to explain the victim's death. The State contends that Rodriguez, either acting alone or with Danny Sanchez, planned to rob and kill the victim, Bill Waltenbaugh. Rodriguez admits being present at the shooting of Waltenbaugh, but argues that he was not the shooter and that the events leading up to the shooting were not planned, but the result of an argument. The jury found Rodriguez guilty of capital murder and the judge imposed a sentence of life imprisonment.

The facts, according to Rodriguez, are as follows: A few days before the incident, Rodriguez obtained a .380 Beretta handgun from a friend at school. On the day of the murder, Rodriguez and Danny Sanchez, another high school student, drove around for several hours, and in the early evening they parked their car in front of Rodriguez's house. Rodriguez went to knock on his front door because he was locked out. The victim, Bill Waltenbaugh, lived across the street from Rodriguez. Waltenbaugh came outside and complained that the car radio was too loud. Sanchez and Waltenbaugh began to argue, which continued as they moved toward Waltenbaugh's front door, where Sanchez and Waltenbaugh began to scuffle. Rodriguez walked over to the house when he saw the struggle at the front door. Sanchez knocked Waltenbaugh to the floor and told Rodriguez to "go see what he could get." As Rodriguez went to look for the TV, he heard a gun shot and ran back into the living room to discover Waltenbaugh lying on the floor. Rodriguez then placed a VCR and a camcorder in Waltenbaugh's car and drove away, following Sanchez in his car.

Conduct of the Trial Court

In Rodriguez's first point of error, he argues that the trial court improperly commented on his right to testify, impugning his credibility before the jury. The record reflects that the following dialogue transpired in the presence of the jury when Rodriguez took the stand:

THE COURT: Mr. Rodriguez, it's my duty to inform you that you have a constitutional right not to testify. You may testify if you want to. If you testify, your testimony may be used against you and you may be cross-examined on it. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Do you desire to testify?

THE DEFENDANT: Yes.

Rodriguez admits that trial counsel failed to preserve error because he did not object to the judge's warnings. We nonetheless address this claim of error because Rodriguez also claims the failure to object constitutes ineffective assistance of counsel. Based on our review of the record, we conclude that even if the claim of error had been preserved, the trial court's statements do not constitute improper conduct.

A trial judge is required to maintain an attitude of impartiality throughout the trial. Clark v. State, 878 S.W.2d 224, 226 (Tex. App.--Dallas 1994, no pet.). The Code of Criminal Procedure specifically prohibits a trial judge from commenting on the weight of the evidence or from making any remark calculated to convey to the jury the judge's opinion of the case. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). A violation of article 38.05 constitutes reversible error if the court's comment is reasonably calculated to benefit the State or prejudice the defendant's rights. Marks v. State, 617 S.W.2d 250, 252 (Tex. Crim. App. 1981).

To determine whether the comment is reasonably calculated to benefit the State or prejudice the defendant, a court must first examine whether the trial court's statement was material to the case, or in other words, if the jury had the same issue before it. Clark v. State, 878 S.W.2d at 226. Improper comments include statements that imply approval of the State's argument, indicate any disbelief in the defense's position, or diminish the credibility of the defense's approach to the case. Id. Error will be harmless if the court determines beyond a reasonable doubt that the trial court's error made no contribution to the conviction. Id.

Rodriguez relies on Webb v. Texas, 409 U.S. 95 (1972), to support his contention that the trial court acted improperly. In Webb, the trial court thoroughly admonished a witness about the consequences of taking the stand and the consequences of perjury. Id. at 95-96. The court held that the witness was precluded from making a free and voluntary choice because the judge did not stop at warning the witness of his right to refuse to testify and of the necessity to tell the truth, but implied that he expected the witness to lie and assured him of prosecution if he did lie.

The State argues that the present case is more analogous to Rodriguez v. State, 903 S.W.2d 405 (Tex. App.--Texarkana 1995, pet. ref'd). In Rodriguez, the trial judge informed the witness "You have a right to invoke that privilege if you choose to and not answer any questions put to you by either side. Now you understand that?" Id. at 408. The court held that the trial judge simply explained the right to testify and the right against self-incrimination, although somewhat incorrectly or incompletely. The comments did not constitute reversible error. Id. See also Safari v. State, 961 S.W.2d 437, 444 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd, untimely filed) (holding that warnings to a witness did not impair a defendant's right to compulsory process when the tenor of the trial court's questions and warnings were inquisitive and the evident focus was an attempt to ascertain whether the witness knew his rights).

These cases, however, involve admonishments given to a witness, not to the defendant, and do not consider the prejudicial effect on the jury, which is our focus under article 38.05. While generally speaking, a defendant should be treated as any other witness, we must consider whether these statements would have had a prejudicial effect on the jury. Our review of the record indicates that the trial court's inquiry was simply an effort to discover whether Rodriguez was aware of his rights. No where in the dialogue can it be discerned that the trial court disbelieved the defense's position or approved of the State's, or that the jury would have perceived that to be the case. This simple explanation of rights neither benefitted the State nor prejudiced the defendant's case. Accordingly, Rodriguez's first point of error is overruled.

Invocation of Fifth Amendment Rights

Rodriguez contends that it was reversible error for the trial court to excuse Danny Sanchez from testifying. Sanchez was sworn in as a witness and called to the stand outside the presence of the jury. Sanchez informed the court that he did not want to testify. In a subsequent hearing also outside the presence of the jury, Sanchez indicated that he had discussed the matter with his attorney and stated that he wished to claim the Fifth Amendment privilege. The court was also informed by Sanchez's attorney that Sanchez intended to invoke his right against self-incrimination.

A determination of a claim of self-incrimination is reviewed for an abuse of discretion. See Clark v. State, 947 S.W.2d 650, 654 (Tex. App.--Fort Worth 1997, pet. ref'd); Decker v. State, 734 S.W.2d 393, 395 (Tex. App.--Houston [1st Dist.] 1987, pet. ref'd). A trial court abuses its discretion if its decision is outside the zone of reasonable disagreement. See Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App. 1992). A defendant's Sixth Amendment right to compulsory process does not override a potential witness's Fifth Amendment privilege against self-incrimination. Ellis v. State, 683 S.W.2d 379, 383 (Tex. Crim. App. 1984). In determining whether a witness may invoke the Fifth Amendment right against self-incrimination, the court need only be informed by a party's attorney that the party intends to invoke the Fifth Amendment privilege at the attorney's advice. See Castillo v. State, 901 S.W.2d 550, 552 (Tex. App.--El Paso 1995, pet. ref'd). Once so informed, the trial court need not make further inquiry of that party before ruling that the party will not be required to testify. Id. While a judge is entitled to determine if the invocation of the right is based on a good faith claim and is justifiable, it is not required to do so. See Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972); Chennault v. State, 667 S.W.2d 299, 302 (Tex. App.--Dallas 1984, pet ref'd).

Rodriguez argues that the judge erred (1) by misstating the proper Fifth Amendment standard to Sanchez by telling him that "You have a constitutional right not to testify if you don't want to because whatever you testify to may be used against you," and (2) by failing to allow counsel to examine Sanchez to determine if he, in fact, would have incriminated himself. The record reflects, however, that Sanchez made his decision to invoke his right after having the opportunity to speak to his attorney. It can be presumed from the record then that his decision not to testify was the result of his attorney's advice. Thus, even if the judge misstated the standard to the witness, it was cured by compliance with the requirements of Castillo. Rodriguez's second point of error overruled.

Factual Sufficiency of the Evidence

Rodriguez contends in his third point of error that the evidence is factually insufficient to prove he intentionally caused the death of Waltenbaugh. Rodriguez argues that at most, the evidence supports the contention that he is guilty of felony murder, which requires intent to commit only the underlying felony, not intent to kill.

Rodriguez was charged with capital murder by intentionally causing the death of Waltenbaugh by shooting him with a handgun while in the course of committing robbery. A person commits the offense of capital murder if that person intentionally commits murder in the course of committing or attempting to commit kidnapping, burglary, robbery . . . . Tex. Penal Code Ann. 19.03(a)(2) (Vernon 1994). A person acts intentionally "when it is his conscious objective or desire to engage in the conduct or cause the result." Tex. Penal Code Ann. 6.03(a) (Vernon 1994). The jury was properly instructed under the law of parties that "if in the attempt to carry out a conspiracy to commit one felony, another felony is committed, then all conspirators are guilty of the felony actually committed, though having no intent to commit it . . . ." See Tex. Penal Code Ann. 7.02 (Vernon 1994).

In reviewing a case for factual sufficiency, the court "views all the evidence without the prism of 'in the light most favorable to the prosecution' and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Deference should be given to the jury so that the court is not merely substituting its judgment for the jury's. Id. at 135. The court of appeals should "set aside the verdict only when the factual finding is against the great weight and preponderance of the evidence so as to be clearly wrong and unjust, manifestly unjust, shocking to the conscience, or clearly demonstrative of bias." Warren v. State, 971 S.W.2d 656, 659 (Tex. App.--Dallas 1998, no pet.).

Rodriguez points first to his own testimony as evidence of his lack of intent. Rodriguez testified that he agreed to rob Waltenbaugh knowing that Sanchez had the gun, but that he did not believe Sanchez would use it. He also testified that he was not even present when Waltenbaugh was shot. Second, Rodriguez notes that the physical evidence consisted of only his palm print on the TV stand. The gun was never recovered to complete ballistic testing, and Rodriguez contends that his earlier possession of the gun does not prove his intent to kill Waltenbaugh.

Evidence supporting the finding of Rodriguez's specific intent to kill was presented in testimony from witnesses Cabino, Nelson, and Araiza. Cabino stated that Rodriguez wanted the gun to kill some old man who lived up the street from him. Nelson testified that Rodriguez said he was going to shoot someone. Araiza's written statement noted that Rodriguez said he was going to kill an old man, although he testified that Rodriguez only had the intent to rob. Witnesses Hernandez, Cabrera, Nelson, and Araiza all testified that after the incident, Rodriguez stated that "'he' or 'we' shot some old man." Garth Nelson specifically testified that Rodriguez admitted that he forced Waltenbaugh to his knees and then shot him in the back of the head.

Given the totality of the evidence presented, we hold that there was sufficient evidence for the jury to determine beyond a reasonable doubt that Rodriguez possessed the specific intent to kill. The jury heard testimony that Rodriguez expressed his plan to kill someone before the murder, and that he bragged about the event after the murder. Even under Rodriguez's version of the murder, under the law of parties, the jury could properly determine that Rodriguez had the specific intent to kill Waltenbaugh. Finally, regardless of whether Sanchez or Rodriguez pulled the trigger, the jury could infer the intent to kill from the use of the handgun. See Adanandis v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993). Because the evidence supports the jury's finding that Rodriguez had the specific intent to kill, the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Point of error three is overruled.

Ineffective Assistance of Counsel

We next consider Rodriguez's numerous allegations of ineffective assistance of counsel. An accused criminal has the right to effective assistance of counsel under the Sixth Amendment. To show that a defendant has not received effective assistance, a defendant must prove (1) that counsel's performance was deficient, and (2) that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Craig v. State, 825 S.W.2d 128, 129 (Tex. Crim. App. 1992). The defendant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence, and the reviewing court applies a strong presumption that counsel's actions fell within the wide range of reasonable professional assistance. Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).

Under the first prong of the Strickland test, an appellant must show that counsel's representation fell below an objective standard of reasonableness based on prevailing norms. Id. at 83. In reviewing the record, every effort must be made to eliminate distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time considering the "totality of the representation" rather than isolated acts of trial counsel. Strickland, 466 U.S. at 688-89. The appellant must also rebut the presumption that counsel's actions "might be considered sound trial strategy." Id. at 689; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In reviewing the second prong, the court must determine whether there is reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different, a probability that is sufficient to undermine confidence in the outcome of the trial. Strickland, 466 S.W.2d at 694; Jackson, 877 S.W.2d at 771.

A. Failure to call corroborating witnesses

Rodriguez argues that counsel failed to call two witnesses who could have corroborated his testimony. He alleges that his neighbors, the Carlisles, could have verified that Rodriguez came over to their house asking for his brother, corroborating Rodriguez's statements. In his cross-examination of Rodriguez, the prosecutor emphasized the absence of the neighbor to corroborate his presence at her house. Another neighbor whose lights went on when Sanchez drove up with his loud stereo was also not called as a witness. Rodriguez contends that these neighbors could have potentially corroborated several events visible from across the street.

Rodriguez cites several cases in which the court found ineffective assistance of counsel where counsel failed to contact and interview witnesses. In each of these cases, however, this failure was firmly founded in the record. See Ex parte Duffy, 607 S.W.2d 507, 524 (Tex. Crim. App. 1980) (habeas hearing revealed that counsel did not thoroughly discuss testimony with witness); Winn v. State, 871 S.W.2d 756, 760-61 (Tex. App.--Corpus Christi 1993, no pet.) (evidentiary hearing showed that an expert's testimony may have been enough to prevent a finding of homicide). But see Flores v. State, 576 S.W.2d 632, 633-34 (Tex. Crim. App. 1978) (counsel testified under oath that he had not conducted a factual investigation or spoken to witnesses and court held that there was nothing in the record to indicate that efforts were made to contact and interview the witness to corroborate appellant's testimony).

The State cites cases which also illustrate the importance of the record. McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996), cert. denied, __ U.S.__, 117 S. Ct. 966 (1997) ("Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness."); Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.--Tyler 1996, pet. ref'd) ("no evidence in the record that either witness was available or that they would have testified as defendant suggests"); Harling v. State, 899 S.W.2d 9, 13 (Tex. App.--San Antonio 1995, pet. ref'd) ("record contains no indication of who these witnesses were and what testimony favorable to appellant they could have provided").

These cases indicate that the record must reflect that these witnesses were available, how their testimony would have benefitted the defendant, and that counsel did not seek them out. See Tutt, 940 S.W.2d at 121 (holding that ineffective assistance of counsel required a showing that the witnesses were available and that the defendant would have benefitted from their testimony). In the present case, the record does not clearly support any of these propositions. Even appellate counsel did not clearly indicate whether their testimony would have been available or that they would have even testified as Rodriguez contends, but only that they might have corroborated Rodriguez's testimony. Thus, failure to call these two witnesses does not constitute ineffective assistance of counsel.

Rodriguez also complains that counsel failed to subpoena Sanchez, but, as noted, Sanchez was called and invoked his Fifth Amendment right against self-incrimination. Rodriguez cannot claim that harm resulted from counsel's failure to subpoena when counsel was able to call the witness and the witness rightfully refused to testify. Rodriguez's fourth point of error is overruled.

B. Failure to urge pre-trial motions and to suppress juvenile statement

Defense counsel filed only one pre-trial motion, a motion in limine to prohibit the State from referring to any gang membership or affiliation. Counsel then failed to object when Cabino was asked about Rodriguez's gang membership. Cabino answered that Rodriguez was not in a gang but stated that Rodriguez associated with one. Rodriguez has failed to explain how counsel's failure to object to such an innocuous reference fell below the standard of professionalism required of counsel. Such an omission could have been an effort to avoid further calling the subject to the jury's attention. Rodriguez's conviction was not contingent upon his affiliation with a gang nor was it even asserted that the wrongful acts were committed in relation to any gang activity. Under the circumstances, Rodriguez has not shown that this isolated reference to gang association caused the jury to render the guilty verdict.

Rodriguez also asserts that the following motions were not filed: motion for discovery, motion for the production of prior statements, motion for exculpatory evidence, motion for appointment of a psychiatrist or other expert, and motion requesting a comparison of the fingerprints taken. Unless there is evidence in the record showing that a ruling on any of the motions would have changed the outcome of the case, counsel will not be ineffective for failing to assert the motion. See Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993). Rodriguez provides little indication of what these motions would have accomplished. Without any clear indication in the record of the benefits of these motions, we will not find ineffective assistance of counsel.

Rodriguez also notes that counsel made no effort to challenge the admissibility of his juvenile statement for impeachment purposes. The juvenile statement was the only statement in which Rodriguez stated that he, not Sanchez, pointed the gun at the victim. Counsel filed no motion to suppress and no motion for a Jackson v. Denno hearing for voluntariness. This statement was used without objection to impeach Rodriguez on cross-examination.

In Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998), the Court of Criminal Appeals considered the failure of counsel to make a motion to suppress evidence. The court held that to satisfy the Strickland standard, the appellant was still obliged to prove that a motion to suppress would have been granted. Id. at 957. Thus, the appellant must show (1) the motion to suppress would have had merit and (2) that a ruling on the motion would have changed the outcome of the case. See Jackson, 973 S.W.2d at 956-957.

In the present case, Rodriguez asserts that his confession was given under duress and coercion during custodial interrogation while Rodriguez was at the detention center. Rodriguez argues that the court improperly allowed its use at trial as the statement may have been obtained in violation of Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Pamph. 1998) and Tex. Fam. Code Ann. 51.09 (Vernon Supp. 1998). Rodriguez contends that he was prejudiced by both the unchallenged use of the statement at trial and counsel's failure to preserve any error for appeal. However, because the confession was not admitted into the record, little evidence in the record exists to support these contentions.(1) Rodriguez testified that he lied in the juvenile statement and that he was scared and he believed making the confession would get him out of jail. But Rodriguez also testified that his attorney was present for at least a portion of this confession. Rodriguez must establish by a preponderance of the evidence that the motion to suppress should have been granted. The evidence in the record does not clearly support this contention.

It is also not clear that a ruling on the motion would have changed the outcome of the trial. Even if Rodriguez's credibility was not put in contention by the juvenile confession, as previously noted, the evidence would still support a conviction under Rodriguez's version of the facts. Therefore, we cannot hold that failure to present a motion to suppress the confession constitutes ineffective assistance of counsel. Rodriguez's fifth point of error is overruled.

C. Failure to preserve error and failure to request lesser included offense instruction

Rodriguez contends that counsel consistently failed to preserve error for appeal with respect to the trial court's comments, Sanchez's testimony, and the juvenile statement. However, as we have held, none of these complaints present harmful error, and consequently they do not warrant a finding of ineffective assistance of counsel.

Rodriguez contends that counsel was also deficient in failing to request any lesser included offense instructions raised by the evidence, such as involuntary manslaughter (recklessly causing the victim's death) and felony murder (knowingly causing the victim's death). Counsel only obtained an aggravated robbery instruction.

A defendant is entitled to a charge on a lesser included offense if (1) the lesser included offense is included within the proof necessary to establish the offense charged, and (2) evidence exists in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty of only the lesser included offense. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). In evaluating this standard, the court should review all the evidence presented at trial. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). Anything more than a scintilla of evidence is sufficient to entitle a defendant to the lesser included charge. Id.

Involuntary manslaughter and felony murder are lesser included offenses of capital murder. See Tex. Penal Code Ann. 19.03(c) (Vernon 1994); Rousseau, 855 S.W.2d at 673; Ross v. State, 861 S.W.2d 870, 874 (Tex. Crim. App. 1992). Under the second prong, then, some evidence must indicate that Rodriguez could be found to have only recklessly or knowingly caused Waltenbaugh's death.

A person commits involuntary manslaughter if he recklessly causes the death of an individual. Tex. Penal Code Ann. 19.04 (Vernon 1994). A person acts recklessly when he is aware of, but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex. Penal Code Ann. 6.03(c) (Vernon 1994). The evidence shows that Waltenbaugh was shot execution-style in the back of his head from close range while he was on his knees. Even under Rodriguez's own version of the facts, he does not indicate that Waltenbaugh was shot recklessly, but simply argues that he did not shoot him. No evidence indicates that Waltenbaugh's death was the result of reckless behavior. Thus, no evidence exists in the record to support the inclusion of an involuntary manslaughter instruction.

Felony murder occurs when a person commits or attempts to commit a felony, other than manslaughter, and "in the course of . . . the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual." Tex. Penal Code Ann. 19.02(b)(3) (Vernon 1994). The State argues that submitting aggravated robbery to the jury was part of the defense's strategy. It notes that in some cases, it may be more effective to focus on a relatively narrow defense, rather than arguing every defense available. The thrust of the defense's case was that Rodriguez was responsible for the robbery but not the murder. Even if the jury concluded that Rodriguez only intended to rob the victim, under the law of parties, the charge correctly stated that he would have then been guilty of capital murder. See Tex. Penal Code Ann. 7.02 (Vernon 1994). Indulging the strong presumption that trial counsel was following sound strategy, we hold that failure to request a felony murder instruction does not constitute ineffective assistance of counsel.

Additionally, capital murder committed in the course of a robbery does not require that the intent to cause death be premeditated or formulated prior to the commission of the robbery. Rousseau, 855 S.W.2d at 674. Under Rodriguez's version of the event, Sanchez aimed the gun at the victim and fatally shot him. The jury could have concluded that Sanchez had the intent to kill and acted on it. Under the law of parties, that crime is also attributable to Rodriguez. Rodriguez's sixth point of error is overruled.

D. Cumulative effect

Because we have determined that no single action committed by counsel constituted ineffective assistance, our review of the totality of counsel's representation produces the same result. Since the record does not indicate reversible harm committed by counsel, Rodriguez's claim of ineffective assistance of counsel is overruled.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. Like the Court of Criminal Appeals in Jackson v. State, we recognize that the record on direct appeal may not be fully developed because of the very alleged ineffectiveness below, especially where the alleged ineffectiveness is due to omission rather than commission. See Jackson, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Consequently, collateral attack may be the more effective route to develop a record. Id. See also Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980).

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