Joe Anthony Garcia v. State of Texas--Appeal from 227th Judicial District Court of Bexar County

No. 04-00-00363-CR
Joe Anthony GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 1996-CR-0005
Honorable Mike M. Machado, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez , Justice

Sarah B. Duncan, Justice

Delivered and Filed: July 25, 2001

AFFIRMED

A jury found appellant, Joe Anthony Garcia, guilty of felony murder, and assessed punishment at confinement for life. We affirm.

SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant asserts the evidence is factually insufficient to support the verdict. In considering a factual sufficiency challenge, we do not view the evidence through the prism of "in the light most favorable to the prosecution." Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Instead, we examine all the evidence impartially, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 958 S.W.2d at 410; Clewis, 922 S.W.2d at 129. We must defer to the factfinder, and may find the evidence factually insufficient only where necessary to prevent manifest injustice. See Cain, 958 S.W.2d at 407.

On an October evening in 1995, a group of men, including Frank Trujillo, were outside Trujillo's home on Arbor Street when they noticed a white van drive slowly in their direction. Four witnesses testified that appellant began to shoot from the van at the people standing outside Trujillo's house. Appellant yelled, "This is big time Kings. F-- the Raiders. Mother f-----, what are you going to do now." Six people were shot: Ray Barbosa, Ernest Barbosa, James Contreras, Joe Arce, Roger Morgan, and Bruno Hernandez. Ray Barbosa died. Another witness testified that appellant looked at the people he shot and laughed.

Officers investigating a traffic accident that occurred shortly after the shooting and about a quarter of a mile from Trujillo's house found appellant inside a wrecked white van. A witness to the accident saw five or six males running away from the van; he assumed they had come from out of the van. Appellant looked disoriented and shocked, he was bleeding from a head wound, and he was sitting on a handgun. Trujillo was taken to the accident scene, where he identified the white van in the accident as the same van from the shooting.

Appellant and the driver of the other vehicle involved in the accident, Joe Silva, were taken to the hospital. At the hospital, Silva overheard appellant talking to another man, whom Silva assumed was appellant's friend. Silva overheard them talking about the shooting on Arbor Street.

At the scene of the shooting, officers recovered nine spent shell casings. A firearms expert testified that the weapon recovered from appellant at the traffic accident was the weapon that fired the shell casings.

Appellant contends the evidence is factually insufficient because the blood found in the wrecked van, on his hands, and on the statement he signed after being questioned by police should have been compared to the blood found on the gun. Appellant also contends the State did not present ballistic evidence tying the shell casings found at the scene to the gun found in the van. However, after reviewing all the evidence impartially, we find the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. We hold the evidence was factually sufficient to support the jury's verdict.

PHOTO OF APPELLANT

In his second issue, appellant asserts the trial court erred in allowing the State to show the jury his "mug shot," which he contends is evidence of an extraneous offense. The record does not contain a copy of the photograph, although it was admitted into evidence. It is the appellant's burden to secure a record on appeal that demonstrates error. Salazar v. State, 5 S.W.3d 814, 816 (Tex. App.--San Antonio 1999, no pet.). Assertions in an appellate brief or its attachments that are not supported by the record will not be accepted as fact. Id. We are bound by the record that is before us, and the record before us shows no error committed by the trial court.

VICTIM IMPACT EVIDENCE

In his third issue, appellant asserts the trial court erred in allowing Ernest Barbosa's wife to testify about Ernest's injuries during the punishment phase of trial. Appellant contends the court erred because Ernest was not a victim named in the indictment.

Before Christina Barbosa took the witness stand, defense counsel made the following objection, which was overruled:

There's just one matter I want to put on the record and lodge objection to. The State informed me about an hour ago that they intended to submit evidence during the punishment phase of the wife of one of the victims that was injured during this drive by shooting. I believe the victim is the one where there was an attempted murder case filed against the Defendant, and I'm just, for the record, lodging an objection to that kind of victim impact testimony, because it doesn't have any bearing on the case in terms of what punishment they should assess. Since those offenses were submitted to the jury for the purposes of showing intent, our position is that the victim impact information on a victim not the victim of the murder case, should not be admissible and should not come before the jury for their consideration, Your Honor.

Christina Barbosa testified about her presence at the scene of the shooting, that Ernesto had been hit by two bullets in the back of his head, about how many children Ernesto had, about the length of his stay in the hospital, and about his disabilities when he left the hospital. Although defense counsel objected several times during her testimony that the prosecutor was leading the witness, counsel lodged no other objections to Christina's testimony. On cross-examination, defense counsel elicited some of the same testimony about which appellant complains on appeal. By not specifically objecting to the testimony that appellant contends was inadmissible and by eliciting similar testimony on cross-examination, appellant has waived any error. Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (objection must be specific to inform judge of basis of objection and to afford counsel opportunity to remove objection or supply other testimony).

CROSS-EXAMINATION OF STATE'S WITNESS

In his fourth issue, appellant asserts the trial court erred in not allowing him to cross-examine Juan Viramontes, a witness to the shooting, as it was relevant to impeach Detective Cole's testimony about how Cole attempted to take Viramontes' statement.

Defense counsel tried to elicit testimony from Viramontes about how long he had lived at a particular address in October 1995 and when he moved from that address. The State objected that the testimony was not relevant, to which defense counsel responded, "Well, Your Honor, the reason I'm asking is because this man never gave a statement, and I need to establish how long he was available to give a statement that would have been, in my mind, more fresh two and a half years ago than it is today. I need to establish his whereabouts." After the court sustained the objection, defense counsel asked, "The Court is not allowing me to ask how long he was living at that address?" The court replied, "The objection is sustained."

Although appellant contends on appeal that Viramontes' testimony was necessary to impeach Cole, defense counsel did not bring that fact to the trial court's attention. Further, the nature of appellant's complaint could not have been clear to the trial court because Cole had not yet testified. Therefore, appellant waived any error. See Long, 800 S.W.2d at 548 (while specific objection is usually required to preserve error, a general objection will suffice if the complaint is obvious from the surrounding context).

INEFFECTIVE ASSISTANCE OF COUNSEL

In his fifth issue, appellant asserts defense counsel was ineffective because he did not object when witnesses testified that others were shot by appellant in the same incident.

To prevail on this point of error, appellant has the burden to prove by a preponderance of the evidence that: (1) counsel's performance was deficient, i.e., his assistance fell below an objective standard of reasonableness; and (2) appellant was prejudiced, i.e., a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. To defeat the 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. Id.

Appellant contends the admission of the extraneous offenses was not necessary for the jury to gain an understanding of the offense; therefore, counsel should have objected. The State argues the testimony was necessary to help the jury understand that appellant's bullets did not strike the decedent by mistake and appellant intended his bullets to hit people.

The record provides no reference to explain why counsel chose not to object, or failed to object, to the testimony. Because this court does not have the authority to speculate about counsel's possible trial strategies or lack thereof, and we must presume that trial counsel was in a better position to judge the practical aspects of his case and that counsel made all significant decisions in the exercise of reasonable professional judgment, we hold that appellant has not met his burden of showing that counsel's assistance fell below an objective standard of reasonableness.

We affirm the trial court's judgment.

Tom Rickhoff, Justice

DO NOT PUBLISH