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

No. 04-99-00690-CR
Manuel LEVINE,

Appellant

v.

STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 91-CR-4469

Honorable James E. Barlow, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: April 11, 2001

AFFIRMED

Manuel Levine was convicted of burglary of a motor vehicle and sentenced to thirty-five years imprisonment. Through a conditional writ of habeas corpus by the Court of Criminal Appeals, Levine was granted permission to file an out-of-time appeal to this Court. In two points of error, Levine complains the evidence is insufficient to support the verdict and brings an ineffective assistance of counsel claim. We affirm Levine's conviction.

Background

On or about July 11, 1991, Mary Jane Guajardo pulled her car into an apartment complex to visit a friend. As she stopped the car and began rolling up the windows, she saw a man reach into the car and take her purse. Guajardo testified the man was Hispanic, had tattoos on his arms, and had a bandana on his head. Guajardo yelled at the man, and Guajardo's friend's father chased the man down the street.

The following day, Guajardo returned to her friend's apartment complex to look for the man. Guajardo saw Levine standing outside and recognized him immediately as the man who took her purse. A confrontation occurred between Guajardo and Levine. Guajardo left the apartment complex in an attempt to find an individual called "Chino." After Guajardo was unable to locate Chino, Guajardo called the police and identified Levine as the man who stole her purse.

The State charged Levine, and at trial, Levine testified although he was present at the apartment complex on the night in question, he did not take the purse. Levine testified and showed the jury he had no tattoos on his arms. He testified he saw Guajardo's car drive up, and two of his friends got into the car. Sometime later, Guajardo returned claiming Levine's friends had stolen from Guajardo. Levine testified Guajardo threatened that Levine would "take the rap" if he refused to tell her the names of his friends. After Levine refused to reveal the names, Guajardo called the police identifying Levine as the perpetrator. The jury returned a verdict of guilt, and the judge sentenced Levine to thirty-five years imprisonment.

Sufficiency of the Evidence

Standard of Review

In reviewing sufficiency points of error, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Goff v. State, 777 S.W.2d 418, 419-20 (Tex. Crim. App. 1989). In determining the sufficiency of the evidence, we remember it is within the province of the jury to assess credibility and give weight to witness testimony. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982) (upholding conviction despite inconsistencies in eyewitness's identification of defendant).

If a conviction is based on circumstantial evidence, we apply the "analytical construct" test. (1) The "analytical construct" test provides a conviction based on circumstantial evidence is improper "if the circumstances do not exclude every other reasonable hypothesis except that of guilt of the defendant. . . . [I]f the evidence supports a reasonable inference other than appellant's guilt, a finding of guilt beyond a reasonable doubt is not rational." Goff, 777 S.W.2d at 420.

Application

Levine concedes an eyewitness identification by the victim would ordinarily constitute direct rather than circumstantial evidence. However, Levine argues that because Guajardo's identification is questionable, namely that she claimed he had tattoos, her testimony is mere circumstantial evidence, thus triggering the analytical construct test. We disagree. This is not a case of circumstantial evidence, but of direct, eyewitness testimony. Garcia v. State, 887 S.W.2d 862, 869 (Tex. Crim. App. 1994) (noting eyewitness testimony is direct evidence). Any contradictions in a victim's eyewitness identification goes to the credibility of the witness not the character of the evidence. See Bowden, 628 S.W.2d at 784. As such, we need not conduct the "analytical construct" test.

Guajardo identified Levine as the man who stole her purse, not only the day after the incident but also during the trial. Although she remembered the assailant having tattoos on his arms, she testified she also recognized Levine because of his face, his hair, and his mustache. Viewing the evidence in the light most favorable to the State, we hold the evidence sufficient to support the conviction. Id.; see Cooks v. State, 844 S.W.2d 697, 708 (Tex. Crim. App. 1992); Welch v. State, 993 S.W.2d 690, 693-94 (Tex. App.-San Antonio 1999, no pet.) (holding issues of credibility are for the jury, not the reviewing court); Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex. App.-San Antonio 1997, no pet.).

Ineffective Assistance of Counsel

In his second point of error, Levine claims his trial counsel was ineffective because: (1) he failed to properly clarify and discuss the State's burden of proof; (2) his direct examination of Levine led to the admission of normally inadmissible evidence about his prior arrests; and (3) he failed to object to the State's improper jury argument. (2)

A. Standard of Review

To review an ineffective assistance of counsel claim, we use the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). The Strickland test requires a defendant to demonstrate by a preponderance of the evidence: (1) defense counsel's performance was deficient; (3) and (2) the deficient performance prejudiced the defendant's case to such a degree the defendant was deprived of a fair trial. (4)

Whether the defendant satisfies this burden is judged by the totality of the representation rather than by scrutinizing defense counsel's individual acts or omissions. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986); Paez v. State, 995 S.W.2d 163, 170 (Tex. App.-San Antonio 1999, pet. ref'd). On review, great deference is given to defense counsel's representation at trial. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Further, allegations of ineffective assistance of counsel must be firmly founded in the record, and the defendant must overcome the strong presumption trial counsel rendered adequate assistance and counsel's actions were the result of sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Comments on "Reasonable Doubt"

First, Levine argues his counsel was ineffective because he failed to object to or clarify the State's misleading comments during voir dire and closing argument regarding the State's burden of proof in criminal matters. To support this allegation, Levine points to such statements as:

[The State's burden is not] beyond a shadow of a doubt . . . . [T]he law allows the State to prove beyond a reasonable doubt . . . [i]f it's not a reasonable doubt, if you look at it and it's not a reasonable doubt, then the law says you dismiss that and find the person guilty. . . . [Any discrepancies] must be so strong that you have a reasonable doubt that this element happened, not just a little discrepancy . . . [t]hose little discrepancies don't go to the burden of proof on the State on each element of this offense . . . . [T]he law only holds me to prove the elements of this indictment beyond a reasonable doubt."

(emphasis added). Levine argues his counsel's failure to clarify these statements led to the State benefitting from a lowered burden of proof to secure his conviction.

At the time of Levine's trial, no specific definition of "reasonable doubt" existed in Texas law; rather, Texas courts relied on the statutory "non-definitional" charge found in Section 2 of the Texas Penal Code. Geesa, 820 S.W.2d at 161 n.10; see Tex. Pen. Code Ann. 2 (Vernon 1989). Viewing the comments made by counsel throughout the trial, we do not see how the above comments lowered the State's burden of proof as claimed by Levine. See Stevens v. State, 820 S.W.2d 930, 936 (Tex. App.-Fort Worth 1991, pet. ref'd) (rejecting ineffective assistance of counsel claim after considering counsel's comments "as a whole").

Levine's Prior Arrests

Second, Levine argues his counsel was ineffective because his improper questioning led to the admission of Levine's prior arrests. Levine chose to testify, and as a result, his felony convictions were admissible. Cisneros v. State, 692 S.W.2d 78, 83 (Tex. Crim. App. 1985); see Tex. R. Crim. Evid. 609. During direct examination, Levine's counsel asked an overly broad question regarding Levine's criminal history, "Would you care to tell the jury your past history of what you have been convicted for, or arrested for and convicted of?" (emphasis added). Levine responded by only addressing his prior convictions, leaving, as the State argued, a false impression before the jury that he had only been arrested for offenses leading to convictions.

On cross-examination, the State argued it could inquire into Levine's normally inadmissible arrest record because Levine's counsel had "opened the door" by leaving a false impression about Levine's arrests before the jury. Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988). After allowing the State to admit evidence of Levine's arrests, the trial court included in the jury charge an instruction providing:

You are instructed that the fact that a defendant has been arrested, confined, indicted for, or otherwise charged with a criminal offense gives rise to no inference of guilt.

Although it was error for Levine's counsel to open the door to Levine's arrest record, that error was presumably cured by the trial court's limiting instruction. Bauder v. State, 921 S.W.2d 796, 798 (presuming judicial instructions effectively cure prejudice). Levine has presented no evidence to rebut this presumption.

Pretrial Motions & Failing to Object to the State's Closing Argument

Third, Levine complains his counsel was ineffective because he failed to re-urge a motion limiting the State's closing argument and failed to object during the State's improper jury argument. Specifically, Levine points to the State's argument that the defendant and other defense witnesses were "mak[ing] up stories . . . to confuse [the jury]" and the State's argument that Levine attempted to "foil the identification" by applying temporary tattoos and then removing them after the theft.

There are four areas of acceptable jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). Advocates are given wide latitude in drawing inferences from the evidence so long as they are reasonable, fair, and offered in good faith. Allrige v. State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988). In reviewing challenges to jury argument, we examine the argument in the context of the case. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case. Id. at 398; Everett v. State, 707 S.W.2d 638, 640 (Tex. Crim. App. 1986).

The portions of the State's argument complained of by Levine constitute proper jury argument. The State permissibly questioned the credibility and trustworthiness of the defense witnesses. Satterwhite v. State, 858 S.W.2d 412, 425 (Tex. Crim. App. 1993); Gaffney v. State, 937 S.W.2d 540, 543 (Tex. App.-Texarkana 1996, pet. ref'd) (finding no error where prosecutor referred to defense witness as "Mr. Liar"). Further, the State's arguments were in response to questions raised by defense counsel about "[h]ow can you . . . take tattoos off without having any signs of tattoos on there? That's ludicrous." The State, in its argument, gave its theory of the case, namely that Levine could have purposefully applied temporary tattoos to "foil" any identification of him as the perpetrator.

None of the statements complained of by Levine constitute improper argument. When, as here, the State's comments were within the bounds of permissible argument, defense counsel's failure to move to limit the State's argument or failure to object to such argument does not constitute ineffective assistance of counsel. King v. State, 649 S.W.2d 42, 45 (Tex. Crim. App. 1983); Suniga v. State, 733 S.W.2d 594, 601 (Tex. App.-San Antonio 1987, no pet.).

Conclusion

Having overruled Levine's two points of error, we affirm his conviction.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH

1. Goff, 777 S.W.2d at 420. We note the use of the "reasonable hypothesis analytical construct" has been abrogated. Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 572-73 (Tex. Crim. App. 2000). However, because the Geesa holding is not to be retrospectively applied, Levine's claim must be decided under the analytical construct test, if applicable. Id.

2. Levine also complained his counsel prejudiced his case by failing to seek post-trial remedies for his conviction. However, Levine was permitted by the Court of Criminal Appeals to file an out-of-time appeal despite his counsel's failure to file notice of appeal timely. Any prejudice was remedied by the court's order.

3. To prove deficiency, the defendant must show counsel's performance fell below an objective standard of reasonableness and rebut the presumption that counsel's trial decisions are based on sound strategy. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

4. To prove prejudice, the defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Phillips v. State, 992 S.W.2d 491, 494 (Tex. Crim. App. 1999); Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988).