Robert Sotello v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

 

No. 04-07-00163-CR

 

Robert SOTELLO

Appellant

 

v.

 

The STATE of Texas,

Appellee

 

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2005-CR-8949

Honorable Catherine Torres Stahl, Judge Presiding

 

Opinion by: Karen Angelini , Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: March 5, 2008

 

AFFIRMED

 

Robert Sotello was charged with and convicted of the offense of Assault-Family Violence, Second Offense. The charge was enhanced because Sotello was a repeat offender. Although the guilt-innocence phase of the trial was conducted before a jury, Sotello requested sentencing before the judge, who assessed a sentence of sixty years confinement. In three issues on appeal, Sotello contends he was denied effective assistance of counsel. We affirm the trial court's judgment.

STANDARD OF REVIEW

We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986)(applying Strickland test). The appellant must first show that his attorney's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, assuming the appellant demonstrates deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, the appellant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

An appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective, and we look to the totality of the representation and the particular circumstances of each in evaluating the effectiveness of counsel. Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. When reviewing a claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid the "deleterious effects of hindsight." Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.

 
DISCUSSION

1. In his first issue on appeal, Sotello claims his trial attorney provided ineffective assistance of counsel due to counsel's "bizarre actions" with regard to the complaining witness, Evangelina Escobedo. Escobedo, Sotello's former girlfriend, testified that she met with Sotello on the night of the assault to obtain money from him for their children. According to Escobedo, she rented a hotel room for her and Sotello. They then went to a bar and to the home of some friends, but later returned to the hotel room. Sotello then assaulted Escobedo and dropped her off on the side of the road.

The "bizarre behavior" about which Sotello complains took place during defense counsel's cross-examination of Escobedo:

Q: Okay. This is not the first time you and I have talked; is that correct?

A. Oh, this is not the first time, correct.

Q: In fact, we have talked here in this courtroom before; is that correct?

A: Uh-huh.

Q: All right. And do you remember the last time you and I talked?

A: Yeah.

Q: That you saw me?

A: Uh-huh.

Q: Do you remember that I was walking out of this courtroom and you were coming in or something?

A: Uh-huh.

Q: Remember that?

A: Uh-huh.

Q: Okay. Do you remember that you were surprised to find out that I was Robert's - -

A: Right.

Q: Do you remember that?

A: Uh-huh, yeah, because you told me that you were my lawyer. That's what you told me.

Q: No, I didn't.

A: Yes, you did. That's what you told me.

Q: I said I was a lawyer in the case.

A: No. You said you were my lawyer.

Q: Okay. But back to the time that - - the last time you saw me that you found out that I was Robert's attorney, you became very irate and - -

 

On redirect the State questioned Escobedo further in this regard:

 

Q: What did you understand [defense counsel] to mean when he spoke to you? What did you understand - -

A: I understood - -

Q: - - him to tell you?

A: Very - - Very well, I understood completely that he was my attorney.

Q: Is that what he told you?

A: He gave me - - Yes, he told me that he was my attorney. That's why I was willing and I would be able to speak to him privately. I e-mailed him at work. I told him where I lived and that kind of stuff, my God.

Q: Did you give him personal information that you would not have otherwise given him?

A: Yes, and that's why I found out he wasn't my attorney. That's why I freaked out. That's why.

 

Then, on re-cross-examination, defense counsel inquired further regarding his meeting with Escobedo:

Q: When you and I talked on that occasion, you were the one who approached me in the court on that day; isn't that correct?

A: I approached you - -

Q: I did not approach you.

A: What day are we talking about?

Q: On the day, remember, when you and I first talked, you approached me?

A: Sir, you called me. You called me to go outside with you. I was here in the back. You told me - - You signaled for me to come with you, and that is exactly what I did.

Q: The question was, you approached me on that occasion; isn't that correct?

A: No.

Q: All right.

A: No, that is not true.

Q: Okay. Did you - - Did you ask me for a ride to your home on that occasion?

A: Sir. You volunteered. I thought you were my attorney. You volunteered to take - - to give me a ride. I would not go with you if I knew you were Robert Sotello's.

 

Sotello cites to the above-referenced exchange to support his argument that prejudice should be presumed because his defense counsel entirely failed to subject the prosecution's case to meaningful adversarial testing. See United States v. Cronic, 466 U.S. 648, 658-59 (1984) (enumerating three "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified," including where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing"). Sotello argues that defense counsel's questioning of Escobedo was so outrageous that "[n]o competent attorney would engage in such behavior much less present evidence of such actions to the jury." Specifically, Sotello complains of defense counsel asking Escobedo to admit that when she discovered defense counsel was Sotello's attorney, Escobedo "became very irate"; asking if it is "fair to say that [Escobedo] can be vile"; asking whether finding out defense counsel was Sotello's attorney "[made her] mad"; and whether on one occasion in court, Escobedo "attempted to assault [defense counsel]." According to Sotello, asking such questions allowed the jury to "view [counsel's] unethical acts in person," thereby depriving him of a fair trial.

Without a record in which defense counsel is afforded the opportunity to explain his actions, we are unable to conclude his manner of cross-examination was anything other than trial strategy. In fact, if any trial strategy can be reasonably assumed from this questioning, it could be that defense counsel was attempting to demonstrate that Escobedo was a violent person herself and, therefore, was perhaps the aggressor in the altercation with Sotello. That Sotello believes defense counsel should have conducted cross-examination in another manner does not rebut the presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Resendiz v. State, 112 S.W.3d 541, 548 (Tex. Crim. App. 2003); see also Garcia v. State, 04-02-00476-CR, 2003 WL 22439594, *4 (Tex. App.--San Antonio Oct. 29, 2003, no pet.) (not designated for publication) (where nothing appears in the record to demonstrate why counsel chose to examine witnesses in a certain manner, the presumption of reasonableness has not been rebutted).

Next, Sotello urges his trial counsel was ineffective because a conflict of interest arose between counsel's personal interest and Sotello's interest. Sotello opines that his defense counsel created the conflict when he placed before the jury the fact that he led Escobedo to believe he was her attorney and gained her trust so that she would reveal personal knowledge about the case to him that she would not otherwise have revealed. According to Sotello, defense counsel created an actual conflict between representing Sotello and protecting his own interests, particularly because defense counsel violated several rules of professional responsibility in his dealings with Escobedo.

In order to show a violation of his right to effective assistance of counsel based on a conflict of interest, the defendant must show (1) that his counsel was actively representing conflicting interests, and (2) that the conflict had an adverse effect on specific instances of counsel's performance. Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997). Sotello has failed to demonstrate that his defense counsel was actively representing conflicting interests. Although Escobedo testified that Sotello's counsel represented to her that he was her attorney and that she revealed information to him she would not otherwise have revealed, the record contains nothing to corroborate Escobedo's testimony. Based on Sotello's attorney's questioning of Escobedo, it is apparent he had a very different version of his prior encounter with Escobedo. Furthermore, whether Sotello's counsel actually violated any rules of professional responsibility is dependent upon what actually occurred between counsel and Escobedo. Based on this record, we cannot find ineffective assistance of counsel because Sotello's allegations of a conflict of interest are not firmly founded in the record.

Sotello further complains that his counsel's conflict of interest as a de facto witness at trial prevented effective cross-examination of Escobedo. Specifically, Sotello argues that defense counsel's questioning of Escobedo was counterproductive because his attempts to show that Escobedo was an aggressive individual were not helpful to the defense. And, according to Sotello, defense counsel's questioning of Escobedo allowed the jury to view counsel as an extension of Sotello's "manipulative and controlling" behavior in his relationship with Escobedo. Finally, Sotello contends defense counsel's questioning of Escobedo led to counsel becoming a witness that "diluted his efficacy as an advocate at trial" and caused confusion in the jurors' minds. Again, we cannot second-guess counsel's cross-examination of Escobedo because Sotello's allegations are not firmly founded in the record. We overrule Sotello's first issue on appeal.

2. In his second issue on appeal, Sotello contends his right to effective assistance of counsel was violated when his pretrial motion to dismiss trial counsel was denied. In making this argument, Sotello points to a pro se pretrial "Notice of Appeal" in which he states he is giving notice of appeal if his motion to dismiss his court-appointed attorney is not granted. Although the "Notice of Appeal" refers to a motion to dismiss, there is no such motion contained in the record. Sotello nevertheless argues this document shows he and his attorney were having problems and the trial court should have held a hearing in order to discover the reasons Sotello wished to dismiss his attorney. Sotello also refers to another pro se pretrial motion in which he details Escobedo's history of drug addiction and requests the court to dismiss the charges against him. Although Sotello contends that when the trial court ignored these pro se motions without further inquiry, it "led to Mr. Sotello's mockery of a fair trial," Sotello has cited no authority in support of his argument. The record contains no motion to dismiss nor are any reasons given in the pro se pleadings filed by Sotello from which we could conclude that the trial court should have conducted a hearing sua sponte. Based on this record, we are unable to find Sotello was rendered ineffective assistance of counsel. We overrule Sotello's second issue on appeal.

3. In his third issue on appeal, Sotello argues his right to effective assistance of counsel was violated when defense counsel failed to properly preserve error when the trial court denied a challenge for cause during jury voir dire, which in turn violated his right to an impartial jury. Specifically, Sotello points to defense counsel's questioning of juror #6 who indicated a leaning in favor of the State:

Q: . . . While we were going through the questions and you, I believe, made a comment that, because of the prior assault, that he must be guilty of this - - of this case that he is accused of. Is that the case? Am I paraphrasing correctly?

 

A: Well, my opinion would be - - and where I get it from, I don't know, but if he has abused before, my first thought most likely is it happened again, but you know, what would I base it on, I don't know.

 

Q. So because of your prior experience, then you would not - - you will have a leaning towards the State, which the law calls a bias or prejudice for the State, because of his prior conviction for the same thing?

 

. . .

 

Q: A leaning, which in law calls it bias or prejudice. Have you heard that before, counsel [sic]?

 

A: I mean, it's frustrating, but I feel like I would, because I feel like I'm this great big liberal, and suddenly, you know, I don't feel that way, you know. I feel like there is bias, whatever you want to call it.

 

Q: It is bias, so you will not start out evenly and impartially towards the defense or the State, and you will have a leaning in favor of the State or the Defense in this case?

 

A: I feel like I would, yeah.

 

Although defense counsel challenged juror #6 for cause, the trial court refused the challenge. Defense counsel did not exercise a peremptory challenge to juror #6, thus failing to preserve the issue for appellate review. See Sells v. State, 121 S.W.3d 748, 758 (Tex. Crim. App. 2003)(stating that to preserve error on denied challenges for cause, appellant must demonstrate that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venireperson; (3) all his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury).

Sotello argues his counsel's failure to preserve error prejudiced him because juror #6 had preconceived notions as to Sotello's guilt that he likely took with him into deliberations, thus denying Sotello a fair trial. As with Sotello's other complaints of ineffective assistance of counsel, defense counsel's reasons for failing to exercise a peremptory challenge are not contained in the record. Thus, because Sotello has not overcome the presumption that trial counsel's actions were reasonable, we are unable to conclude that Sotello's trial counsel's performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)(holding appellate court unable to conclude counsel's performance was deficient where there is a lack of evidence in the record regarding counsel's reasons for not challenging or striking venire member). We overrule Sotello's third issue on appeal.

CONCLUSION

We conclude that Sotello was not denied his right to effective assistance of counsel. Having overruled all issues, we affirm the trial court's judgment.

 

Karen Angelini, Justice

DO NOT PUBLISH