Ernest Ortiz v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

Nos. 04-97-00897-CR, 04-97-00898-CR,
04-97-00899-CR, & 04-97-00900-CR
Ernest ORTIZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court Nos. 96-CR-6231, 96-CR-6232, 96-CR-6233, & 96-CR-6234
Honorable Raymond Angelini, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 30, 1998

AFFIRMED

A jury convicted Ernest Ortiz of four offenses, including murder and aggravated assault, which arose from the same transaction. The jury assessed separate but concurrent sentences. For the murder of David Cevallos (appeal no. 04-97-00898-CR), the jury assessed punishment at 65 years confinement. For the aggravated assault of Frances Herrera (appeal no. 04-97-00897-CR), the jury assessed 15 years confinement. For the aggravated assault of Monica Fernandez (appeal no. 04-97-00899-CR), the jury assessed 18 years confinement. For the aggravated assault of Emilio Polendo (appeal no. 04-97-00900-CR), the jury assessed 8 years confinement. On appeal, Ortiz complains about the trial court's suppression findings, charge error, improper jury argument, and ineffective assistance of counsel. Finding no reversible error, we affirm.

Voluntary Statement

1. Findings of Fact

In his seventh point of error, Ortiz complains the trial court failed to make specific, written findings about the voluntariness of an inculpatory statement he made to police. In rebuttal, the State contends the court's oral findings are sufficient. We agree with the State.

When a defendant contests the voluntariness of his statement, the trial court must conduct a hearing outside the jury's presence to determine whether the statement was voluntary. Tex. Code Crim. Proc. Ann. art. 38.22, 6 (Vernon 1979). If the trial court finds the statement was voluntarily made, it must "enter an order stating its conclusion . . . with the specific finding of facts upon which the conclusion was based." Id. These findings may be dictated to the court reporter. Parr v. State, 658 S.W.2d 620, 623 (Tex. Crim. App. 1983); Amunson v. State, 928 S.W.2d 601, 608 (Tex. App.--San Antonio 1996, pet. ref'd).

Finally, no findings of fact or conclusions of law are required when a statement did not stem from custodial interrogation. Garza v. State, 915 S.W.2d 204, 211 (Tex. App.--Corpus Christi 1996, pet. ref'd).

After conducting a hearing on the voluntariness of Ortiz's statement, the trial court dictated the following findings into the record:

I find that he made these statements voluntarily, he was not under arrest, not in custody, and he was free to go after he made both of these statements and in fact he did leave. He went down in a police car with his mother, and he was in no way, shape, or form coerced.

In fact, even according to him, he was given choices about State's Exhibit 2, and he made those choices himself. So I'm going to find that they're voluntary and in compliance with the Code of Criminal Procedure and admissible.

Because the trial court found the statement to be noncustodial, which Ortiz does not challenge in his brief, the court was not required to enter findings of fact. Furthermore, the oral findings satisfied the Code of Criminal Procedure and sufficiently explained the court's ruling. Accordingly, we overrule Ortiz's seventh point of error.

2. Jury Charge

In his first point of error, Ortiz contends the trial court erred by denying his requested jury instruction about the voluntariness of his statement. The State maintains Ortiz was not entitled to an instruction because he was not in police custody at the time he made his statement. We agree with the State.

If the trial evidence raises a fact issue about voluntariness, a defendant is entitled to a corresponding jury instruction. Tex. Code Crim. Proc. Ann. art. 38.22, 6-7 (Vernon 1979); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). The instruction is not required, however, if the statement did not stem from custodial interrogation. Land v. State, 943 S.W.2d 144, 149 (Tex. App.--Houston [1st Dist.] 1997, no pet.).

In this case, Ortiz did not testify. His mother, Erlinda Fernandez, testified that she went to the police department with two police officers and her son. After Ortiz met with the officers, he told his mother, "I didn't do nothing. . . . They told me if I didn't tell that I did it, that they were not going to let me go." Fernandez said the officers then let them go but they arrested her son shortly thereafter. In contrast, the officers testified that Ortiz had not been arrested and that he was free to go at any time.

While Ortiz raised a fact issue about the voluntariness of his statement, he did not raise a fact issue about his custodial status. See Sliva v. State, 936 S.W.2d 721, 726 (Tex. App.--El Paso 1996, no pet.) (finding no custody although defendant claimed "[t]hat's what I was told to do"). Therefore, Ortiz was not entitled to a jury instruction, and the trial court did not err in denying his requested instruction. Accordingly, we overrule Ortiz's first point of error.

Jury Argument

In his second through fifth points of error, Ortiz complains about improper jury argument. However, in his sixth point of error, addressing ineffective assistance of trial counsel, Ortiz concedes no objection was made during the argument. By failing to object, Ortiz waived his appellate complaint. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (overruling cases that did not require objections); Jenkins v. State, 948 S.W.2d 769, 779 (Tex. App.--San Antonio 1997, pet. ref'd). Accordingly, we overrule Ortiz's second through fifth points of error.

Assistance of Counsel

In his sixth point of error, Ortiz claims he was denied effective assistance of trial counsel. Specifically, Ortiz complains: (1) defense counsel did not object to the admission of his statement at the suppression hearing; (2) defense counsel should not have called a particular witness to the suppression hearing; (3) defense counsel led the jury to believe Ortiz would testify; (4) and defense counsel failed to object to the State's closing argument. We discuss each complaint separately.

We must presume that Ortiz received adequate assistance of counsel and that all significant decisions were made in the exercise of reasonable professional judgment. See Strickland v. Washington, 466 U.S. 668, 690 (1984); Roberson v. State, 852 S.W.2d 508, 512 (Tex. Crim. App. 1993). To obtain a reversal based on ineffective assistance of counsel during the guilt-innocence phase of trial, a defendant must show that (1) counsel's performance was so deficient that he was not functioning as the counsel guaranteed by the sixth amendment; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Craig v. State, 825 S.W.2d 128, 129 (Tex. Crim. App. 1992). Furthermore, counsel's performance must be evaluated from counsel's perspective at the time of trial, considering the totality of the representation. Strickland, 466 U.S. at 689; Ex parte Duffy, 607 S.W.2d 507, 516 (Tex. Crim. App. 1980).

1. Admission of Statement

Ortiz maintains counsel was ineffective at his suppression hearing because counsel affirmatively offered "no objection" when the State proffered Ortiz's statements as evidence.(1) As the State notes, Ortiz fails to identify what objection would have been viable at the suppression hearing. Thus, Ortiz does not show how counsel's performance was deficient.

2. Admission of Testimony

Ortiz alleges trial counsel was ineffective because he called Detective Britt as a witness during the suppression hearing, and Detective Britt contradicted Ortiz's testimony that his statement was involuntary. Assuming counsel's performance was deficient, Ortiz fails to show how the outcome would have been different, as the witness could have been called by the State.

3. Voir Dire

Ortiz argues defense counsel misled the jury by indicating Ortiz would take the stand. Ortiz refers to counsel's remark during voir dire that "most of the time the defendant takes the stand." This remark was made in response to a venire member's question and was not made again. We agree with the State that trial counsel did not mislead the jury into thinking Ortiz would testify. Thus, Ortiz does not show how counsel's performance was deficient.

4. Jury Argument

Ortiz contends his trial counsel's failure to object to the State's closing argument was objectively unreasonable. In this portion of his brief, Ortiz refers to only one remark during the jury argument; but, in the interest of fairness, we refer to all the remarks addressed in the context of Ortiz's second through fifth points of error.

To be proper, jury argument must fall within the realm of (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, or (4) plea for law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). A prosecutor "may argue his opinions concerning issues in the case so long as the opinions are based on the evidence in the record." Penry v. State, 903 S.W.2d 715, 756 (Tex. Crim. App. 1995) (citing Felder v. State, 848 S.W.2d 85, 95 (Tex. Crim. App. 1992)). It is improper, however, for a prosecutor to inject personal opinion if he implies a special expertise the jury should rely on in deciding the contested issues. See Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985); Maupin v. State, 930 S.W.2d 267, 270 (Tex. App.--Fort Worth 1996, pet. ref'd).

Ortiz first complains about the prosecutor's statement that he believed Ortiz was guilty:

I've been here 29 years, I've worked under six different attorneys. I don't think I would have been able to do that because we are hired at will of the District Attorney, if I didn't have some amount of credibility in my career.

I've built my career on telling the truth, presenting all of the evidence; and that's what we have done in this case. I believe this defendant is guilty. He says he is not guilty. I believe he is guilty.

(Emphasis added). This argument was improper because the prosecutor not only stated a personal opinion but also implied the jury should rely on his expertise.

Ortiz also complains about the prosecutor's statement that he believed the witnesses:

[T]he State doesn't get to choose their witnesses, and I don't mean by that to apologize in any way for Emilio Polendo, Frances Herrera or Monica Fernandez,(2) but this is a case that happens in the community. These are ordinary people from ordinary life. And you may not agree with their lifestyle, the ones that you heard from, you may not like them very much, but I can believe their testimony in this case.

(Emphasis added). Unlike the first remark, this argument was proper because the prosecutor relied on the evidence in the record and did not imply the jury should rely on him in deciding issues of credibility.

Finally, Ortiz challenges the prosecutor's statement about the quality of the police department because the remark bolstered the credibility of the officers who took Ortiz's statement:

I guess the defense wants you to believe that Detective Britt didn't have anything better to do, but to sit down and write out a story . . . . That isn't the way professional police officers work in any condition, under any circumstances. We've got a good police department, believe me. It's one of the best.

(Emphasis added). Like the first remark, this statement is also improper because it not only injected personal opinion, but it also implied the jury should rely on the prosecutor's expertise.

We agree with Ortiz that his trial counsel was deficient by failing to object to the prosecutor's first and third remarks. We disagree, however, with Ortiz's evaluation of the second prong of Strickland. Ortiz contends the improper argument "went to the central issues in the case, that is, Ortiz'[s] statement and the identification of Ortiz and his car by Polendo and Monica." Unlike the cases cited by Ortiz, however, this case does not solely rely on the credibility of the complainant. See, e.g., Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981) (finding reversible error when prosecutor's remarks bolstered the testimony of the only witness); Vasquez v. State, 819 S.W.2d 932, 936 (Tex. App.--Corpus Christi 1991, pet. ref'd) (same).(3) Thus, Ortiz does not show how, in reasonable probability, the outcome of the trial would have been different had trial counsel objected to the prosecutor's remarks.

Finally, Ortiz argues that trial counsel's errors, taken together, constitute ineffective assistance of counsel. Although Ortiz correctly recognizes that effective assistance of counsel should be gauged by the totality of the circumstances, he fails to recognize that counsel's performance, in each instance, must be objectively unreasonable. Because Ortiz's trial counsel was not deficient in each instance, there was no "cumulative error." Accordingly, we overrule Ortiz's sixth point of error.

Conclusion

Having overruled all of Ortiz's points of error, we affirm the trial court's judgment.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Counsel objected at trial.

2. Herrera and Fernandez were lovers and had been drinking the night of the offense. In addition to being a transsexual prostitute, Polenda had been drinking and using drugs the night of the offense.

3. Ortiz also relies on Robillard v. State, 641 S.W.2d 910, 912 (Tex. Crim. App. [Panel Op.] 1982), which we find inapposite. In Robillard, the State attempted to explain why it admitted only a portion of the defendant's statement by saying, "[A] prosecutor . . . is not going to put evidence before this jury that he himself does not believe is true."

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