Albert Delgado v. State of Texas--Appeal from 81st Judicial District Court of Wilson County

No. 04-00-00440-CR
Albert DELGADO,
Appellant
v.
STATE of Texas,
Appellee
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 99-11-169-CRW
Honorable Phil Chavarria, Jr., Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: July 25, 2001

AFFIRMED

The Appellant, Albert Delgado ("Delgado"), asserts two broad points of error, both relating the conduct of trial counsel. In his first point of error, Delgado complains that the jury was unduly prejudiced by the State's closing statement which contained numerous impermissible and erroneous jury arguments. Specifically, Delgado points to five instances of manifestly improper jury argument: (1) commenting on Delgado's failure to testify; (2) commenting on the trial court's previous ruling; (3) commenting on harmful facts not ruled admissible; and (4) and (5) two separate instances of injecting new and harmful facts not in evidence. Delgado's second point of error pertains to his own attorney, whom he asserts rendered ineffective assistance of counsel during the punishment phase by failing to object to Delgado's appearing in jail clothes.

Factual Background

Delgado was convicted of aggravated assault and sentenced to 20 years imprisonment. According to the testimony offered a trial, Delgado and three friends came into a bar being patronized by two brothers, Hernando and Daniel Rodriguez. Delgado was carrying a blade of some kind. After a brief confrontation, Delgado lunged at Hernando Rodriguez, cutting him on the face. During the ensuing brawl, both Hernando and Daniel Rodriguez were hit with pool cues, though neither of them were armed. After sustaining several more injuries, an ambulance was summoned to treat Daniel Rodriguez, while his brother, Hernando, required an airlife lift to the hospital. Roughly a month after the incident, the bar owner found a box cutter with human blood on it outside of the bar.

Improper Jury Arguments

Delgado contends that the prosecution made a manifestly improper jury argument when, in closing arguments, the State said, "If [Delgado] wanted to give his story up, it was up to him to take the stand." This quote is part of a much more detailed closing argument. The prosecutor mentions on two separate occasions that Delgado was within his rights not to testify. The quoted portion was part of a larger attempt at illustrating the importance of having a witness take the stand in order to avoid hearsay. To be objectionable, the statement must be manifestly intended or of such a character, that the jury would necessarily find it a comment on the defendant's failure to testify. Losada v. State, 721 S.W.2d 305, 313 (Tex. Crim. App. 1986). "[T]he language used must necessarily have referred to the defendant's failure to testify." Calderon v. State, 950 S.W.2d 121, 135 (Tex. App.-El Paso 1997, no pet.) (citing McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985)). Assuming arguendo that the statement is objectionable, there was no objection. Any error is waived.

Delgado also complains that the State's reference to the absence of instructions on self-defense left the jurors to speculate about the reason for the "omission." By stating that the trial judge did not allow Delgado to include this defense in the charge, Delgado contends that the State was impermissibly allowed to comment on whether the judge believed or disbelieved the validity of a self-defense argument. Delgado argues that this constitutes reversible error. However, at no time during the State's closing did Delgado object to the prosecution's argument.

The prosecution also made reference to facts about a "feud" that existed between Delgado's family and the family of Hernando and Daniel Rodriguez. During an in camera hearing, the trial judge indicated that testimony regarding this purported feud was highly prejudicial. The trial court held its ruling on the testimony's ultimate admissibility in abeyance, however, and the State never sought to introduce the evidence during the trial. Delgado complains that the prosecution referred to evidence which the State had been barred from introducing. We find that because there was never a formal determination of admissibility, this point of error is better characterized under the heading of injecting new and harmful facts not in evidence, as addressed in Delgado's fourth and fifth points of error.

The fourth and fifth allegedly improper jury arguments involve what Delgado characterizes as injecting new and harmful facts not in evidence. According to Delgado, the State's comments characterizing him as a "drug snitch" impugned his character by implying that Delgado associated with drug dealers. These were not facts in evidence, therefore, Delgado argues that they only served to ensure his conviction as a "bad person."

The prosecution referred to the three men who accompanied Delgado to the bar, and told the jury that these men did not have charges pending against them. Delgado asserts that not only did the statement inject new facts not in evidence, but that the argument was harmful. It implied that Delgado was the only one charged because he was the only one guilty of the crime. Delgado now argues that such statements were improper, constituting reversible error. However, no objections were made at trial.

Delgado argues that because there are four permissible areas that may be addressed during jury argument, any arguments that fall outside of these areas are improper and should be the basis for a reversal. The four well-recognized areas are: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to arguments made by opposing counsel; and (4) pleas for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231(Tex. Crim. App. 1973). Delgado acknowledges the fact that any improper jury argument is waived by a party's failure to object. Landry v. State, 706 S.W.2d 105, 109 (Tex. Crim. App. 1985).

Any analysis of an improper jury argument claim centers around preservation of error. Even a defendant's "right" to a closing statement free from incurable erroneous jury arguments will be forfeited if there is a failure to insist upon it. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). There is no evidence in the record of an objection to the State's jury argument, therefore, Delgado failed to preserve error on appeal. Delgado contends that the prosecution's comments were so egregious that no instruction to disregard could have cured the error. However, the Texas Court of Criminal Appeals has held that even incurable jury arguments require an objection to preserve the defendant's right to appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (expressly overruling prior caselaw that did not require an objection to what had previously been considered an incurable jury argument). "Before a defendant will be permitted to complain on appeal about an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling." Id. Delgado raised no objection to any portion of the State's closing statements, therefore, he has forfeited any right to complain on appeal.

Delgado's first point of error is overruled.

Ineffective Assistance of Counsel

Ineffective assistance of counsel claims must be analyzed according to the two-prong test established in Strickland v. Washington. 466 U.S. 668, 609 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). Delgado must demonstrate that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) Delgado was prejudiced, i.e., a reasonable probability exists that, but for trial counsel's errors, the results of the proceedings would have been different. Strickland, 466 U.S. at 690. This court has held that absent a showing of both prongs by a preponderance of the evidence, the conviction cannot be considered to have been the product of a breakdown in the adversary process, rendering the result unreliable. Martinez v. State, 675 S.W.2d 573, 575 (Tex. App.-San Antonio 1984, no writ); see also Grant v. State, 696 S.W.2d 74, 77 (Tex. App.-Houston [1st Dist.] 1985, writ refused). There is a strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To defeat this presumption, an allegation of ineffectiveness must be firmly founded in the record, with the record affirmatively demonstrating the alleged ineffectiveness. Id. at 814. If, however, there is any basis or trial strategy for trial counsel's action, then further inquiry is improper. Van Sickle v. State, 604 S.W.2d 93, 98 (Tex. Crim. App. 1979).

This court agrees with Delgado that there is no rational trial strategy that would permit a defendant to go before a jury in jail clothes. But see Estelle v. Williams, 425 U.S. 501, 512-13 (1976) (suggesting that there may be occasions where appearing in jail clothes is a sound defense strategy). Whether there is any logical basis for allowing Delgado to appear in jail clothes or not, or whether this was a defense tactic or simply indifference, the Strickland test must be applied. See generally Strickland, 466 U.S. 668 (1984). Forcing a defendant to go to trial wearing jail clothes is reversible error. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999). There is no evidence in this case that Delgado was forced to do anything. He was in jail clothes and his attorney did not object. It does not necessarily follow that the failure of Delgado's attorney to object amounts to reversible error due to ineffective assistance of counsel. We must look at Strickland's second prong: prejudice.

There is no caselaw distinguishing when a defendant appeared in jail clothes: whether it was the guilt-innocence or the punishment phase. It would seem logical, however, that there would be less prejudice if the jury has already found the defendant guilty. This was the situation in Delgado's case.

After viewing the record in its totality, we conclude that Delgado was not so prejudiced by his clothing in the punishment phase that the result would have been different had he worn different clothes. We overrule the second point of error.

Conclusion

We affirm the trial court's decision.

Phil Hardberger, Chief Justice

DO NOT PUBLISH