Blanco v. State, 08-15-00082-CR
| Decision Date | 15 February 2017 |
| Docket Number | No. 08-15-00082-CR,08-15-00082-CR |
| Parties | ALDO IVAN BLANCO, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from 243rd District Court of El Paso County, Texas
(TC # 20140D04668)
Aldo Ivan Blanco was found guilty of burglary of a habitation on February 24, 2015. The trial court sentenced him to ten years' imprisonment in the Texas Department of Criminal Justice, but suspended execution of the sentence and placed him on community supervision for ten years. Appellant timely filed his motion for new trial and a hearing was held on April 15, 2015. At the hearing, Appellant asserted that his trial counsel, Jeff Allder, rendered ineffective assistance of counsel and as a result, he should be granted a new trial. For the reasons that follow, we affirm.
FACTUAL BACKGROUND
Guilt-Innocence Phase Testimony
On May 17, 2014, El Paso Police Department Officer James Morales and Officer Lorenzo Ontiveros responded to an assault-family violence call on Sun Fire Street in El Paso, Texas. They spoke with the victim, Nydia Garcia, regarding the events that took place. Garcia appeared emotional, excited, and upset while talking to the officers. She related that her former boyfriend, Appellant, showed up at her apartment, forced his way in, and assaulted her. Officer Morales recorded the interview with Garcia and took pictures of a few bruises on her arms. These pictures were admitted as State's Exhibit 1.
Garcia testified that she and Appellant dated for approximately one year, but at the time of the assault, the relationship had been over for about a year. On May 17, Garcia was alone in her apartment. Thirty minutes before Appellant arrived, her ex-husband picked up their three daughters. When Garcia heard the doorbell ring, she thought it might have been one her daughters, and she opened the door without checking to see who was there. Garcia opened the door only to find Appellant, who told her that he wanted to reconcile with her. Appellant put his foot in the door and pushed his way inside without her permission. Right from the start, Appellant wanted to check Garcia's phone. He asked Garcia to unlock her phone, and when she told him she did not want to, he pushed her. Once the phone was unlocked, Appellant grabbed it and called a man by the name of Alex. Garcia testified that she and Alex were "kind of" in a relationship. Appellant told Alex to stop sending Garcia pictures and messages because he and Garcia were partners. Garcia and Appellant then began fighting over the phone and Appellant threw it at the living room floor. During their struggle over the phone, Appellant roughly grabbed Garcia by the arms, causing her arms to bruise. After the struggle was over, Garcia told Appellant she was going to the bathroom to take a shower. Appellant pushed her and grabbed her by the arms again. Garcia screamed and returned to the living room. There, the two began arguing again and Garcia repeatedly told Appellant to leave. They struggled over the door and Appellant smashed Garcia's finger. Garcia was unsure if Appellant's finger had also beensmashed in the door. Thereafter, Appellant left, and ten minutes later, Garcia called the police.
On cross-examination, Garcia denied seeing Appellant the day before the assault. She reiterated that she did not invite Appellant into her apartment. She also denied that she and Appellant had an agreement to trade phones for the day--that she would show him her phone and he would show her his phone. She admitted that during the struggle near the front door, she punched Appellant a few times to defend herself. Garcia made an in-court identification of Appellant as the person who entered her apartment without permission on May 17, 2014. After Garcia testified, the State rested its case.
Appellant testified on his own behalf and explained that he and Garcia had broken up approximately six months before the assault occurred. He met with Garcia at her apartment the evening before the assault. They spoke outside and Garcia knew that Appellant's birthday was the next day. According to Appellant, Garcia kissed him, and told him she missed him and "wanted [him] to make love to her." She told Appellant to come back the next day between 2:30 and 3 p.m.
Appellant returned to Garcia's apartment the next day, and waited for her to arrive. Garcia arrived around 3 p.m. and the two walked to her apartment. Initially, Garcia told Appellant not to come inside, but then she changed her mind and invited him in. Garcia immediately went to her bedroom and Appellant followed. She told Appellant that she was going to give him his birthday present. She took her clothes off and according to Appellant, they had sex. Afterwards, Garcia asked Appellant if he had any "friends with benefits," and when he said he did not, Garcia told him that she did. Garcia then asked for Appellant's phone because she wanted to see if he had any pictures on it. Appellant suggested that they switch phones, but Garcia's phone was locked. After she unlocked her phone, Appellant went through it and foundpictures of men in their underwear, and recognized a man named Alex, who goes by the nickname, "Cuban." Garcia told Appellant to go ahead and call Cuban. When the conversation between Appellant and Cuban ended, Garcia thanked Appellant sarcastically, indicating that Cuban did not previously have her phone number, and now that he did, he was going to start bothering her. Garcia became upset and started arguing with Appellant. She then got up to go take a shower and threw Appellant's phone at him. Garcia started to kick and punch Appellant so he hugged her and tried to calm her down. Garcia then asked Appellant to leave and he did.
Appellant denied entering Garcia's apartment without her permission and assaulting her. After leaving the apartment, he went to work. When he arrived home, his mother informed him that the police had come to the house looking for him. Appellant called his bail bondsman the following day, and learned there was a warrant out for his arrest. Upon learning of the warrant, Appellant turned himself in.
The Motion for New Trial
On April 15, 2015, the trial court held a hearing on Appellant's motion for new trial. Appellant testified about five text messages he sent to Garcia before the incident on May 17, 2005. He claimed his trial counsel did not inform him of the State's offer of deferred adjudication despite his not having any issues with Allder negotiating a plea agreement on his behalf. Appellant next requested that the trial court take judicial notice of an affidavit submitted by Allder in which he admitted he rendered ineffective assistance of counsel. Appellant submitted this affidavit because he did not intend to call Allder to testify. The trial court indicated that it was not comfortable ruling on the motion without Allder's in-court testimony. The trial court gave Appellant an opportunity to subpoena Allder and on April 29, 2015, the hearing resumed. Allder testified that everything in the affidavit was true and correct and agreedthat Appellant should have a new trial. Specifically, Allder enumerated that he rendered ineffective assistance by failing to: (1) file a motion to have the 911 call translated from Spanish to English; (2) file a motion to request the appointment of an investigator; (3) file a motion to obtain Garcia's telephone and text numbers; (4) file a motion to view the crime scene; (5) subpoena Garcia's phone-service carriers; (6) file a motion in limine to preclude the State from presenting Appellant's criminal history; and (7) properly prepare Appellant to testify at trial.
On cross-examination, Allder admitted that he did not know what effect, if any, his omissions might have had on the outcome of Appellant's case. The trial court informed the parties it needed time to consider the evidence before making a decision. The record does not contain a ruling on the motion such that it was overruled by operation of law.
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant raises eleven sub-issues on appeal to support the proposition that he received ineffective assistance of counsel. He complains that Allder failed to: (1) request a mistake-of-fact instruction; (2) file a discovery request under Article 39.14 of the Texas Code of Criminal Procedure; (3) file a motion to translate the 911 call; (4) file a motion to appoint an investigator; (5) file a motion to obtain Garcia's telephone and text numbers and issue subpoenas to phone-service carriers; (6) file a motion to visit the crime scene; (7) file a motion in limine regarding Appellant's criminal history; (8) admit Garcia's video-recorded statement; (9) properly prepare Appellant to testify; and (10) admonish Appellant in writing of the consequences of testifying at trial. He finally contends that all of these alleged failings constitute cumulative error. We will address Appellant's First, Second, and Eleventh Issues. The State argues that Appellant failed to preserve Issues Three through Ten for review. We agree.
We follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), to determine whether a defendant received ineffectiveassistance of counsel. To prevail on an ineffective assistance of counsel claim, Appellant must show that: (1) his attorney's performance was deficient; and (2) that his attorney's deficient performance prejudiced his defense. Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Appellant must satisfy both Strickland components, and the failure to show either deficient performance or prejudice will defeat an ineffectiveness claim. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App. 2010); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003).
Under the first prong, the attorney's performance must be shown to have fallen below an objective standard of reasonableness. Perez, 310 S.W.3d at 893; Thompson v. State...
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