Pedro Garcia v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00476-CR
Pedro GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 1996-CR-3466
Honorable Juanita Vasquez-Gardner, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 29, 2003

AFFIRMED

Pedro Garcia ("Garcia") appeals his conviction of aggravated assault with a deadly weapon. Garcia raises two issues on appeal, contending: (1) the evidence is legally and factually insufficient to support his conviction; and (2) he received ineffective assistance of counsel. We affirm the trial court's judgment.

Background

Officer Mark Kochheiser was dispatched for a possible theft of a vehicle. Upon arriving at the scene, Officer Kochheiser found Delia Lopez with two small puncture wounds in her upper-left abdominal area. According to Officer Kochheiser's testimony, Lopez told him that she was assaulted by Garcia, her ex-boyfriend, and gave a physical description. Officer Kochheiser did not locate a weapon at the scene. Other officers patrolled in a "cornered off" area looking for a weapon and the suspect for about thirty minutes to no avail. Officer Kochheiser testified that Lopez stated that she did not see a weapon.

Lopez's co-worker, Roman Gonzales, testified that he saw Lopez sitting in her car with a man Gonzales did not know. Gonzales became concerned when he heard their raised voices and saw the man punch Lopez in the abdomen area. By the time Gonzales notified his superiors, Lopez was lying on the ground by her car. Gonzales noticed a plastic grocery bag in the man's hand. As a group of male co-workers were walking toward the car, the man grabbed something from Lopez's purse, got nervous, and eventually ran away. By this time, Lopez had been taken into the company's office by a female co-worker.

Lopez testified that she and Garcia dated and lived together until August 1995, when he was incarcerated. Lopez saw Garcia again when he was released in March 1996. They dated for a few weeks after that, until Garcia began physically abusing Lopez. In April of 1996, Lopez decided that she did not want to be involved with Garcia, but Garcia continued to repeatedly call her.

On the day in question, Lopez walked out to the parking lot after work with a female co-worker who knew about Lopez's history with Garcia. Both women saw Garcia standing by Lopez's car, but Lopez assured her friend that she would be okay. Her friend still circled around the block to make sure Lopez was all right.

When Lopez reached her car, Garcia told her they needed to talk. As Lopez opened the driver's side door of her car, Garcia pushed her over to the passenger side. Garcia wanted to drive, but Lopez would not give him her keys. When Garcia told Lopez to drive instead, Lopez exited the car, walked around it, and got into the driver's side. By this time, Lopez was very nervous and wanted to get away from the situation. Garcia told her that they were going to leave now or else she would "get it" here. Lopez had a bad feeling, particularly because she noticed that Garcia had an H.E.B.-type plastic bag but she did not know what it contained. Lopez also noticed that Garcia appeared dazed, like he was "on something." Lopez began struggling with Garcia as she tried to grab her keys and open her car door. Lopez eventually fell out onto the ground, where she still struggled with Garcia for her keys. Lopez finally stood up and began screaming. Some of the mechanics came over and began chasing Garcia down the street. Lopez ran into the office building. She did not realize she had been stabbed until someone told her she was bleeding. She found two small puncture wounds about an inch apart on her abdomen. The police and an ambulance arrived, and she was taken to the hospital. Lopez stayed in the hospital for three days while the doctors performed exploratory surgery to determine the extent of the wounds.

Dr. James Feig, a medical examiner assistant, examined Lopez's medical records, particularly the operation notes and a description of the injuries. Dr. Feig testified that the descriptions in the records coincided with pictures of Lopez's wounds. According to the report, one of Lopez's wounds punctured all the way through the abdominal cavity wall, while the other wound went about halfway through the abdominal cavity wall. Dr. Feig stated that the type of injuries sustained by Lopez created a substantial risk of death or serious bodily injury. The fact that the abdominal cavity was penetrated created a "significant risk of primarily hemorrhagic bleeding problems or infection." Although Lopez's wounds did not result in injury to any of her organs, the area in which she was stabbed was by her spleen, stomach, and some of her intestine. If the spleen had been penetrated, the bleeding risks could have been very serious or fatal. If the stomach or intestines were penetrated, the contents of each could leak out into the body causing chemical irritation or bacterial peritonitis, both of which can be fatal. Although Dr. Feig could not determine what type of weapon was used, he did find that it would be capable of causing death or serious bodily injury.

On cross-examination, Dr. Feig admitted that he did not perform Lopez's examination and was not at the hospital during that time. Dr. Feig's job is to perform autopsies, review medical records, determine causes and manners of death, and generate autopsy reports. The last time he had examined a live person was in 1997. Although Dr. Feig could not vouch for the veracity of the records because he did not write them, Richard Guerrero, custodian of the hospital's records, testified that a person with firsthand personal knowledge makes the hospital's records.

The jury found Garcia guilty of aggravated assault with a deadly weapon. Garcia was sentenced to 35 years imprisonment.

Sufficiency of the Evidence

Garcia contends the evidence is legally and factually insufficient to support a guilty verdict. Particularly, Garcia argues that the State did not prove his intent to use a deadly weapon to cause bodily injury to Lopez or that he was even the person who inflicted the injuries.

In reviewing the legal sufficiency of the evidence, the court views the evidence "in the light most favorable to the prosecution" and asks whether "any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Jackson v. Virginia, 443 U.S. 307, 319 (1979). Factual sufficiency review requires the court to view "all the evidence without the prism of 'in the light most favorable to the prosecution,' . . . [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." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Appropriate deference must be given to the jury's decision to "prevent an appellate court from substituting its judgment for that of the fact finder." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). "[A]ny evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony." Id.

The element of intent is a fact question for the jury, which is normally proven through evidence of the circumstances surrounding the crime. Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998). The jury is permitted to infer intent from any facts which tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime and from the nature of the wounds inflicted on the victims. Id.

Lopez testified that on the day in question she had a violent encounter with Garcia in her car at work. Gonzales also testified regarding the violent encounter. Lopez identified her assailant as Garcia and noticed he was holding, or hiding, something in a plastic grocery bag. Lopez was found bleeding after the encounter. Exploratory surgery determined that Lopez sustained a stab wound that penetrated into her abdominal cavity. Dr. Feig testified that Lopez's injuries created a substantial risk of death of serious bodily injury. From the testimony of Lopez and Gonzales, the jury could have inferred that Garcia intended to use a deadly weapon to cause serious bodily injury, and Lopez clearly identified Garcia as her assailant.

We hold that the evidence is legally and factually sufficient to support the conviction.

Ineffective Assistance of Counsel

Garcia also contends that he was denied effective assistance of counsel. In order to prove ineffective assistance of counsel, a defendant must first show that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant." Strickland v. Washington, 466 U.S. 668, 687 (1984). This means that counsel did not provide reasonably effective assistance as is determined by the prevailing legal profession's norms. Id. Second, the defendant must show that the counsel's performance prejudiced the defense. Id. Under this second prong, the defendant must show that the errors were so serious that he was deprived of a fair trial, and that, but for the erroneous performance, the result would have been different. Id.

When analyzing ineffective assistance of counsel issues, the court must presume that the counsel's actions were reasonable. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Allegations of ineffectiveness "must be firmly founded in the record," and the record must "affirmatively demonstrate the alleged ineffectiveness." Id. at 813; Mares v. State, 52 S.W.3d 886, 890 (Tex. App.-San Antonio 2001, pet. ref'd). Where the record is silent regarding the reason for trial counsel's actions or failure to act, the presumption of reasonableness is not rebutted. Thompson, 9 S.W.3d at 813.

Garcia complains that counsel's failure to file any pretrial motions is ineffective assistance of counsel and that the trial court questioned whether the failure to file pretrial motions was a strategic decision in stating, "I don't know what the strategy is for having or not having filed any pretrial motions." The trial court's statement, however, seems only to demonstrate that the court was not passing any judgment on the counsel's actions, not that it was questioning counsel's strategy. In Mares v. State, 52 S.W.3d at 891, this court found that the failure to file pretrial motions could have been part of counsel's strategy. Because the record does not demonstrate the reason counsel did not file pretrial motions, we must presume counsel chose not to file any motions as part of his strategy.

Garcia also complains of counsel's failure to request notice of the State's intention to introduce extraneous act evidence and failure to voir dire Officer Kochheiser regarding his weapons expertise. The record, however, does not reveal the reason trial counsel did not request notice or voir dire the officer. Accordingly, none of these complaints are firmly founded in the record.

Garcia further contends that counsel erred in failing to object to the admission of extraneous offense evidence; however, the record shows that counsel objected on several occasions to the admission of extraneous act evidence. In addition, Garcia contends that counsel failed to object to the prosecutor's statement that the State would prove that Garcia "became abusive and violent" during the course of his relationship with Lopez because the prosecutor never attempted to prove that during the trial; however, Lopez testified that Garcia was physically abusive to her during their relationship. Accordingly, the record does not support Garcia's contentions.

Garcia further argues that counsel's re-cross examination of Gonzales and cross-examination of Grand Juror Dora Fogle constituted ineffective assistance of counsel and that counsel's cross-examination of Grand Juror Dora Fogle allowed Fogle to express a personal opinion regarding Garcia's credibility and guilt. However, the evidence counsel elicited was repetitious of what the witnesses had testified to under direct examination, and Fogle simply stated that the evidence in the folder to which counsel was referring contained the evidence the grand jury used in deciding to indict. Nothing in the record demonstrates why counsel chose to examine these witnesses in such a manner. Therefore, the presumption of reasonableness has not been rebutted.

Finally, Garcia argues that counsel did not adequately prepare the defense. Specifically, Garcia contends counsel did not seek the appointment of a medical expert to challenge the credibility of Dr. Feig. However, the record is silent as to why counsel made this decision. Therefore, we must presume that the decisions made were part of the defense strategy.

Having reviewed the record in its entirety and the totality of the representation, we conclude that Garcia has failed to prove that trial counsel was ineffective or that he was constructively denied counsel. Garcia's first and second points of error are overruled.

In point of error three, Garcia argues that the Texas Constitution provides more protection for the right to counsel than the U.S. Constitution. However, the Court of Criminal Appeals in Hernandez v. State, 988 S.W.2d 770, 772-73 (Tex. Crim. App. 1999), found that "while we have never squarely decided the scope of Texas' right to counsel constitutional provision, we have consistently held it is no more protective that its federal counterpart." Also, this court has specifically stated that "because the test for ineffective assistance of counsel is the same under the state and federal constitutions, both inquiries are subsumed into one." Lemmons v. State, 75 S.W.3d 513, 526 (Tex. App.-San Antonio 2002, pet. ref'd). Therefore, Garcia's third point of error is overruled.

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH