Joel Torres v. The State of Texas--Appeal from 206th District Court of Hidalgo County

 NUMBER 13-00-00473-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

 CORPUS CHRISTI  B EDINBURG

JOEL TORRES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 206th District Court of Hidalgo County, Texas.

O P I N I O N

 Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Hinojosa

A jury found appellant, Joel Torres, guilty of two counts of forgery[1] and one count of theft,[2] and the trial court assessed his punishment at two years imprisonment for each count of forgery and five years imprisonment for the theft. The trial court ordered the three sentences to run concurrently and signed three separate judgments.

By four points of error, appellant contends: (1) the evidence is legally insufficient to support his conviction, (2) the trial court erred by refusing to allow certain evidence to be presented to the jury, and (3) he received ineffective assistance of counsel because his counsel failed to object to evidence of an extraneous offense and failed to request a mistake of fact instruction. We affirm.

A. Background

Sisters, Carmen Mead and Alejandra Garza own a tract of land in Hidalgo County known as the MeGa Ranch. During hunting season, the ranch is leased to game hunters. Appellant received access to the property by obtaining a lease from the son of one of the owners. He then proceeded to forge the names of the two owners on lease contracts and sublease the property to unsuspecting hunters under the guise of being the lease-master for the property. After learning of these events, the owners refused to allow the hunters to have access to the property. No hunter was allowed to hunt on the property.

B. Legal Sufficiency

By his first point of error, appellant complains that the evidence is legally insufficient to support his conviction for theft of property of the value of $20,000 or more, but less than $100,000. He contends the State only proved he received $16,860.

When we review the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The standard is the same for both direct and circumstantial evidence cases. Vela v. State, 771 S.W.2d 659, 660 (Tex. App.CCorpus Christi 1989, pet. ref'd). In conducting this analysis, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We measure the legal sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof. Id.

The hunters testified that they paid appellant the following amounts of money to hunt at the ranch:

(a) Rolando Alaniz $ 700.00

(b) Oscar Buentello 600.00

(c) Robert Estrada 1,200.00

(d) Sabas Fonseca 250.00

(e) Carlos Gonzales 600.00

(f) Atanacio Hinojosa 5,600.00

(g) Joe Longoria 1,910.00

(h) Joe Lopez 700.00

(i) Hector Montalvo 600.00

(j) Nick Perez 700.00

(k) David Salinas 600.00

(l) Mateo Solis 1,050.00

(m) Rene Solis 2,500.00

(n) Francisco Torres 2,800.00

(o) Moises Torres 1,000.00

Total $ 20,810.00

Accordingly, we conclude that any rational trier of fact could have found the essential elements of the offense of theft of property of the value of $20,000 or more, but less than $100,000, beyond a reasonable doubt. We hold that the evidence is legally sufficient to support appellant=s conviction. Appellant=s first point of error is overruled.

C. Admissibility of Evidence

By his second point of error, appellant complains the trial court erred by refusing to allow him to present evidence of a letter which referred to him as the lease-master for the ranch.

In considering a trial court=s ruling on the admissibility of evidence, an appellate court must utilize an abuse-of-discretion standard of review. Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999). In other words, the appellate court must uphold the trial court=s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990). In addition, an appellate court must review the trial court=s ruling in light of what was before the court at the time the ruling was made. Weatherredv. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

Defense Exhibit Number One was a facsimile transmission of a letter written by Atanacio Hinojosa to the Hidalgo County Sheriff=s Office. The letter detailed Hinojosa=s complaint against appellant. In the letter, Hinojosa stated that Robert Garza, the brother of the owners of the MeGa Ranch, had informed him that appellant was the lease-master.

The State objected that the letter was hearsay and that it was not within any recognized exception to the rule.[3] Appellant argued that the letter fell under the present sense impression exception to the rule.[4] The trial court sustained the objection. On appeal, appellant asserts he offered the letter for impeachment purposes and contends the trial court abused its discretion by refusing to allow him to present the evidence to the jury.

If an objection made in the trial court differs from the complaint made on appeal, a defendant has not preserved any error for review. See Tex. R. App. P. 33.1(a); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986); Doyle v. State, 24 S.W.3d 598, 602 (Tex. App.BCorpus Christi 2000, pet. ref=d). Accordingly, we hold appellant has waived this complaint and there is nothing for us to review. Appellant=s second point of error is overruled.

D. Ineffective Assistance of Counsel

By his third and fourth points of error, appellant contends he received ineffective assistance of counsel because his counsel failed to object to evidence of an extraneous offense and failed to request a mistake of fact instruction.

Our review of counsel's performance must be highly deferential. Strickland v. Washington, 466 U.S. 668, 689 (1984); Garcia v. State, 887 S.W.2d 862, 880 (Tex. Crim. App. 1994). The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex. Crim. App. 1991); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). An allegation of ineffective assistance of counsel will be sustained only if it is firmly founded and if the record affirmatively demonstrates counsel's alleged ineffectiveness. Ex parte McWilliams, 634 S.W.2d 815, 819 (Tex. Crim. App. 1980).

Effective assistance of counsel is gauged by the totality of the representation from the pretrial representation of the accused through the punishment stage of the trial. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990) (quoting Strickland, 466 U.S. at 689); Ex parte Walker, 777 S.W.2d 427, 431 (Tex. Crim. App. 1989). Thus, the trial as a whole must be reviewed and not isolated incidents of counsel's performance. Cannon, 668 S.W.2d at 403.

The standard of review for ineffective assistance of counsel is the same for all phases of the trial. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). A defendant seeking relief must demonstrate: (1) that counsel's performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness under the prevailing professional norms and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome.@ Strickland, 466 U.S. at 694; Ex parte Walker, 777 S.W.2d at 430. The "reasonably effective assistance" standard does not mean errorless counsel nor does it mean counsel is judged ineffective by hindsight. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991).

We begin our analysis with a rebuttable presumption that counsel is better positioned than the appellate court to judge the pragmatism of the particular case and that he made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). The presumption may be rebutted by evidence in counsel's reasoning, or lack thereof. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Performance of counsel cannot generally be adequately examined based on a trial court record. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.CHouston [1st Dist.]1994, pet. ref'd). A proper review should focus on a record specifically targeting the conduct of trial counsel. Id. Such a record is best developed during a hearing on application for writ of habeas corpus or motion for new trial. Id.; see Jackson, 877 S.W.2d at 772 (Baird, J., concurring). To find that trial counsel was ineffective based on a record silent as to why trial counsel conducted the trial as he did would call for speculation, which we are not permitted to do. See Jackson, 877 S.W.2d at 771; Lozada Mendoza v. State, 951 S.W.2d 39, 44 (Tex. App.CCorpus Christi 1997, no pet.).

1. Failure to Object to Extraneous Offense Evidence

By his third point of error, appellant contends he received ineffective assistance of counsel during trial because his counsel failed to object to the introduction of allegedly prejudicial extraneous offense evidence.

Appellant complains of testimony presented by Hidalgo County Deputy Sheriff Jose Jasso that his investigation revealed thirty-five hunters had leased the property from appellant. Appellant contends Jasso=s testimony that there were more victims than were alleged in the indictment is highly prejudicial extraneous offense evidence. To successfully argue that trial counsel=s failure to object amounted to ineffective assistance, an appellant must show that if trial counsel had objected, the trial judge would have committed error in refusing to sustain the objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). After reviewing the record, we conclude appellant failed to present such evidence.

Further, appellant presented no evidence showing that his counsel=s decisions were not made in the exercise of reasonable professional judgment. Accordingly, we hold that appellant failed to prove by a preponderance of the evidence that he received ineffective assistance of counsel during trial. Appellant=s third point of error is overruled.

2. Failure to Request a Mistake of Fact Instruction

By his fourth point of error, appellant complains he received ineffective assistance of counsel during trial because his counsel failed to ask the trial court to include a mistake of fact instruction in the jury charge. Appellant contends the evidence raised the possibility of a mistake of fact defense and argues he was entitled to such an instruction.

The record contains no evidence showing counsel=s reasoning, or lack thereof, to rebut the presumption of effectiveness. Further, the record contains no evidence that counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms. Accordingly, we hold that appellant failed to prove by a preponderance of the evidence that he received ineffective assistance of counsel during trial. Appellant=s fourth point of error is overruled.

The judgments of the trial court are affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

23rd day of May, 2002.

[1]See Tex. Pen. Code Ann. '32.21 (VernonSupp. 2002).

[2]See Tex. Pen. Code Ann. '31.03 (VernonSupp. 2002).

[3] Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Generally, hearsay evidence is inadmissible unless it is rendered admissible by an exception or rule. Tex. R. Evid. 802.

[4] Texas Rule of Evidence 803(1) defines present sense impression as a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Tex. R. Evid. 803(1).