CALIXTO GOMEZ v. THE STATE OF TEXAS--Appeal from 185th District Court of Harris County

NUMBER 13-03-625-CR

13-03-626-CR

13-03-627-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CALIXTO GOMEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 185th District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo and Garza

Memorandum Opinion by Justice Garza

Following a jury trial, Calixto Gomez was convicted of one count of possession of a controlled substance and two counts of delivery of a controlled substance and sentenced to fifty years imprisonment. Gomez appeals his convictions by two issues: (1) he was given ineffective assistance of counsel at trial and (2) attorney Ralph Martinez was improperly allowed to represent him. We overrule appellant s two issues and affirm the judgment of the trial court.

I.

A two-prong test is used to determine whether representation was so inadequate that it violated the Sixth Amendment right to counsel. Munoz v. State, 24 S.W.3d 427, 433 (Tex. App. Corpus Christi 2000, no pet.) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54 55 (Tex. Crim. App. 1986)). First, trial counsel s performance must fall below an objective standard of reasonableness. Id. (citing Strickland, 466 U.S. at 687 88). To make this showing, appellant must overcome a strong presumption that counsel s performance fell within the wide range of reasonable professional assistance. Id. at 434 (citing Thompson v. State, 9 S.W.3d 808, 812 14 (Tex. Crim. App. 1999); Tijerina v. State, 921 S.W.2d 287, 289 (Tex. App. Corpus Christi 1996, no pet.)). Second, appellant must prove, by a reasonable probability, that counsel s deficient performance prejudiced the defense that, but for counsel s errors, the result of the proceeding would have been different. See id. at 433 (citing Strickland, 466 U.S. at 694). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id. at 433 34 (citing Strickland, 466 U.S. at 693).

Appellant bases his ineffectiveness claim on seven alleged deficiencies in counsel s representation: (1) trial counsel repeatedly conceded appellant s guilt; (2) trial counsel s cross examination of witnesses bolstered the State s case; (3) trial counsel made only one objection during trial; (4) trial counsel failed to object to inadmissible testimony; (5) trial counsel failed to make an opening statement; (6) trial counsel presented no evidence; and (7) trial counsel s closing argument presented a theory supporting conviction rather than acquittal.

Having reviewed the record, we cannot conclude that counsel s performance fell below an objective standard of reasonableness. See id. Three of the alleged deficiencies in counsel s performance are not necessarily deficiencies at all. For instance, whether to deliver an opening statement is entirely optional. See Calderon v. State, 950 S.W.2d 121, 127 (Tex. App. El Paso 1997, no pet.) ( The option for defense counsel to deliver an opening statement immediately after the State makes its opening statement is entirely discretionary. ). Few matters during a criminal trial could be more imbued with strategic implications than the exercise of this option. Id. Likewise, there is no precedent mandating that effective representation involve more than one objection during trial. Finally, the decision to present testimony lies well within counsel s professional judgment. See id. at 127 28 (holding that counsel s representation was not ineffective even though counsel did not make an opening statement or present testimony). Although the remaining complaints about counsel s performance are also without merit, they require closer examination.

At trial, the State presented overwhelming proof of appellant s guilt on all three counts. Appellant was arrested during an undercover sting operation. The evidence, including a surveillance video, shows that appellant sold four ounces of black tar heroin to an undercover police officer for $4,800. Roughly a week later, appellant sold twenty ounces of heroin to the same officer for $20,000. After the transaction, the undercover officer arrested appellant, and appellant was taken to his apartment, where he gave police officers written consent to search the premises for more drugs. Inside the apartment, the officers discovered eight pounds of heroin, worth approximately $1.3 million. According to the State, this is the largest amount of heroin ever seized by the Houston Police Department.

Appellant s trial counsel did not present any testimony at trial but did cross examine the State s witnesses. Despite appellant s contentions to the contrary, we cannot conclude that counsel s questioning bolstered the State s case. In fact, counsel s cross examinations appear to have been designed to undermine the State s case. Counsel apparently sought to prove that other individuals were involved in the transactions and that these other individuals actually had possession of the enormous quantity of heroin found in appellant s apartment. To this end, counsel questioned the police officers about a vehicle seen in the vicinity where the drug transactions occurred and asked whether the occupants of the vehicle could have been conducting counter-surveillance. Counsel also questioned one of the officers as to whether he saw a second individual, known as Aguirre, exit appellant s apartment and deliver heroin to appellant, which appellant then delivered to the undercover officer.

Counsel s closing argument also emphasized the involvement of other individuals in the transactions. According to counsel, it was the big boss who actually owned and controlled the heroin found in appellant s apartment. It was also the big boss who profited from the transactions. In counsel s words You see, the big boss, the owners of the drugs, the ones who control things, the big players, the guys who should be held responsible if you really want to make a dent in this ugly business you will never see. Never. They re not the ones who make the deals. They are not the ones that negotiate. They re the ones that watch. They re the ones that create buffers. They re the ones that tell . . . ignorant people, desperate people how they can make money, use them and hide them.

What you saw when they were engaged in those negotiations, you saw a puppet, a flunky, you might have seen someone who was a front but you didn t see the person who put the drugs in that house and you didn t see the ones who were controlling the transaction.

Counsel apparently conceded appellant s guilt on the counts involving delivery of heroin to an undercover police officer and instead focused on creating a reasonable doubt as to whether appellant had possession of the heroin in his apartment. Given the seemingly irrefutable proof of appellant s guilt on the delivery counts, we cannot conclude that counsel s strategy fell below an objective standard of professional reasonableness. See Jordan v. State, 859 S.W.2d 418, 422 (Tex. App. Houston [1st Dist.] 1993, no pet.) ( It is logical to conclude that trial counsel, faced with overwhelming evidence of appellant s guilt, chose to placate the jurors rather than to possibly antagonize them with an impassioned, though weakly supported, plea for a verdict of not guilty. ). To the contrary, the record shows that, throughout trial, counsel sought to mitigate appellant s culpability by portraying him as a mere underling in a multi-million-dollar drug-trafficking enterprise. This strategy culminated in a closing argument in which counsel asked the jury to find that appellant did not have possession of the drugs discovered in his apartment. Based on the record before us, we cannot conclude that counsel s performance amounted to ineffective assistance. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (stating that appellate court cannot conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it).

Appellant s final complaint regarding counsel s performance is that he did not object to certain testimony that appellant now contends was inadmissible. // The record provides no insight into counsel s reasons for not objecting to the testimony, and we will not speculate as to such reasons. Davis v. State, 930 S.W.2d 765, 769 (Tex. App. Houston [1st Dist.] 1996, no pet.) (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). Whether to make an objection is a strategic decision within an attorney s professional judgment. See Heiman v. State, 923 S.W.2d 622, 626 (Tex. App. Houston [1st Dist.]1995, pet. ref d n.r.e.) (holding that failure to object to inadmissible testimony can constitute a sound and plausible trial strategy ). Given that the record affords no basis for reviewing the reasons for counsel s decisions not to object, we cannot conclude that counsel s assistance was ineffective. See Garcia, 57 S.W.3d at 440. Appellant s first issue is overruled.

II.

In his second issue, appellant contends that the trial court erred in allowing attorney Ralph Martinez to substitute for attorney Israel Santana, appellant s retained counsel. The record does not show that Martinez substituted for Santana; it indicates that both attorneys were present during appellant s trial. Furthermore, appellant agreed on the record to allow Martinez to represent him. If the trial court erred by allowing Martinez to act as counsel for appellant, such error was waived by appellant s failure to object. See Tex. R. App. P. 33.1(a); Emerson v. State, 756 S.W.2d 364, 369 (Tex. App. Houston [14th Dist.] 1988, pet. ref d). Appellant s second issue is overruled.

III.

The judgment of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered and

filed this the 21st day of April, 2005.