Louis Anthony Martinez v. The State of Texas--Appeal from 365th Judicial District Court of Zavala County

MEMORANDUM OPINION

No. 04-04-00057-CR

Louis Anthony MARTINEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 365th Judicial District Court, Zavala County, Texas

Trial Court No. 03-01-02873-ZCR

Honorable Amado J. Abascal, III, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 7, 2005

AFFIRMED

Louis Martinez was convicted by a jury of capital murder and sentenced by the trial court to life in prison. Martinez s court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he concludes that Martinez s appeal of his conviction is frivolous and without merit. Counsel provided Martinez with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App. San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App. San Antonio 1996, no pet.). Martinez filed a pro se brief raising several issues including that his arrest was illegal, his post-arrest statement to law enforcement was improperly admitted, the evidence supporting his conviction was legally insufficient, and he was denied effective assistance of counsel. Based upon our review of the record, we agree with Martinez s appointed counsel that the issues raised by Martinez on appeal are frivolous and without merit.

Legality of Arrest

Martinez claims that his arrest was illegal because there was no warrant issued until after he was taken into custody. The record includes testimony from Deputy Sheriff Ricardo Rios, Martinez s arresting officer, that he went to Martinez s residence to arrest him only after an arrest warrant had been issued. Crystal City police officer Willie Villalobos also testified that after taking a statement from a witness who had seen Martinez at the scene of the crime, Officer Villalobos located a judge to have a warrant issued for Martinez s arrest. The officer further testified that after the warrant was issued, he proceeded to the location where the arrest warrant was executed by Deputy Rios. Because the record indicates that law enforcement officers properly obtained a warrant for Martinez s arrest before he was taken into custody, we conclude that Martinez s contention that his arrest was illegal is without merit. See Garza v. State, 161 S.W.3d 636, 641 (Tex. App. San Antonio 2005, no pet.) (where arrest is made pursuant to a warrant, probable cause determination has been made by the issuing magistrate and arrest is lawful); see also Tex. Code Crim. Proc. Ann. art. 15.01 (Vernon 2005).

Admissibility of Written Statement

Martinez contends that his statement to law enforcement was inadmissible because it was not voluntary, he did not have counsel present during the statement, and the statement did not comply with the requirements of article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). // Although Martinez forfeited the issue of his statement s admissibility by failing to object to its admission at trial, // we address the issue because Martinez also points to his trial counsel s failure to file a pre-trial motion to suppress the statement and failure to preserve error regarding the statement s admission as examples of his counsel s deficient performance in his claim for ineffective assistance. In order to succeed on his claim for ineffective assistance, Martinez must show that his counsel s assistance fell below an objective standard of reasonableness as well as a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 68, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). If Martinez cannot establish a reasonable likelihood that a pre-trial motion to suppress or proper objection to the admission of his statement would have been successful, thereby changing the outcome of the proceeding or resulting in a proceeding that was fundamentally unfair, these omissions by counsel cannot support his ineffective assistance claim. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (appellant is obliged to prove that a motion to suppress would have been granted in order to satisfy Strickland).

Article 38.21 of the Code of Criminal Procedure provides that an accused s statement is admissible against him if it was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). To meet constitutional standards, a statement must be both voluntary and taken in compliance with Miranda. Moss v. State, 75 S.W.3d 132, 139 (Tex. App. San Antonio 2002, pet. ref d). A confession is not voluntary if it was induced by a promise. Davis v. State, 961 S.W.2d 156, 159 (Tex. Crim. App. 1998). Additionally, a statement is not voluntary if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker. Moss, 75 S.W.3d at 139 (internal citation omitted).

At trial, Crystal City police officer Willie Villalobos testified that prior to taking the written statement from Martinez, Officer Villalobos read Martinez his rights. Officer Villalobos and a Texas Ranger, Doyle Holdridge, then took the statement from Martinez, typing it into a computer as it was given. A copy of Martinez s statement containing the required warnings was printed, each warning was read to Martinez, Martinez was asked if he understood each of them, and Martinez then initialed each of the warnings on his written statement. Officer Villalobos testified that Martinez s statement was made freely and voluntarily, Martinez was not forced or coerced in any way, and no promises were made to him in exchange for his statement. Officer Villalobos also testified that Martinez made no request for an attorney at any time before or during his statement. The completed statement was read to Martinez and each page of the statement was then signed by Martinez, Officer Villalobos, Ranger Holdridge, and a second witness, Ranger David Rainwater. Officer Villalobos testimony regarding the procedure used in taking Martinez s statement, including Martinez s failure to invoke his right to counsel, was corroborated by the testimony of Rangers Holdridge and Rainwater. During Officer Villalobos testimony, Martinez s written statement was admitted without objection from defense counsel and was read to the jury in its entirety.

Martinez testified that it was his understanding that if he did not sign the written statement, his girlfriend would be taken into custody and charged. He also testified he was promised that if he gave a statement, law enforcement officers would go easier on [him]. Martinez acknowledged that he was read his rights prior to making the statement, and that he initialed each of the warnings on the written statement that he signed. Martinez admitted making the statement as it was written, but testified that he did so only because he desired to protect himself and his girlfriend. Aside from Martinez s own testimony, there is no other evidence in the record supporting Martinez s contention that his statement was involuntary or that it was the result of promises or coercion by law enforcement. Based on the evidence in the record, we conclude that there is sufficient evidence to support a finding that the statement was voluntary and taken in compliance with the requirements of the Code of Criminal Procedure. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997) (voluntariness is determined by consideration of the totality of the circumstances under which the statement was obtained); Moss, 755 S.W.3d at 139. Therefore, it would have been within the trial court s discretion to deny a motion to suppress Martinez s statement. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Clay v. State, No. 04-03-00326, 2004 WL 1618573, at *3 (Tex. App. San Antonio July 21, 2004, no pet.) (not designated for publication)(where determination of voluntariness requires an evaluation of the credibility and demeanor of witnesses, trial court s evaluation is given great deference). Because a motion to suppress the statement or objection to its admission at trial would not likely have changed the outcome of the proceeding, we conclude that counsel s failure to do so also could not constitute ineffective assistance of counsel. See Jackson, 973 S.W.2d at 957.

Sufficiency of the Evidence

Martinez contends that the State failed to prove two elements of the offense of capital murder, including that the offense was committed knowingly or intentionally, and that it occurred while Martinez was committing or attempting to commit a robbery. See Tex. Pen. Code Ann. 19.02(b)(1), 19.03(a)(2) (Vernon 2003 & Supp. 2004-05). To determine the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In his testimony at trial, Martinez admitted that he had intentionally caused the death of the victim. In his voluntary written statement, Martinez described the incident as occurring during a robbery that I attempted to commit. Martinez further states that he planned to rob the store to obtain money to travel to Atlanta, Georgia. We conclude that Martinez s statement and his own testimony at trial contain legally sufficient evidence to support his conviction for capital murder. See Butler v. State, 981 S.W.2d 849, 853 (Tex. App. Houston [1st Dist.] 1998, pet. ref d).

Ineffective Assistance of Counsel

Martinez complains of several actions that he contends trial counsel failed to take. // To prevail on a claim for ineffective assistance of counsel, Martinez must first show by a preponderance of the evidence that counsel s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 812. In addition, Martinez must show a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Id.

There is a strong presumption that counsel s conduct fell within the wide range of reasonable professional assistance. Id. at 813. 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. at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). In cases where the alleged errors are primarily errors of omission de hors the record rather than errors of commission revealed in the trial record, the record is rarely adequate on direct appeal to overcome the presumption of reasonable assistance. Id.

With regard to the issues raised in Martinez s pro se brief, the record is silent as to the reasons trial counsel failed to take the actions about which Martinez now complains. Since the record is silent, Martinez is unable to overcome the presumption that trial counsel s conduct and decisions during trial fell within the wide range of reasonable professional assistance. See Nichols, 954 S.W.2d at 86 (requiring further action by appellate court only if independent examination of record reveals nonfrivolous grounds for appeal exist). There is no evidence in the record establishing that counsel failed to adequately prepare for trial, confer with Martinez, or conduct the requisite investigation of the facts. On the contrary, the record as a whole demonstrates that Martinez s counsel was familiar with the facts of the case, conducted appropriate examination of witnesses, and properly presented Martinez s self-defense theory of the case to the jury throughout the trial. In addition, as discussed above with respect to the admission of Martinez s voluntary written statement, Martinez has failed to establish that absent counsel s alleged errors, the outcome of the proceedings would have been different. See Thompson, 9 S.W.3d at 813 (failure to make the required showing of either deficient performance or sufficient prejudice defeats one s claim for ineffective assistance). Therefore, we conclude that Martinez s claim of ineffective assistance of counsel based on the alleged errors is without merit.

We have reviewed the record, counsel s brief, and Martinez s pro se brief. We agree that the appeal is frivolous and without merit. Accordingly, the judgment of the trial court is affirmed, and appellate counsel s motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

Phylis J. Speedlin, Justice

Do Not Publish