Calderon v. State

• Decision Date: 08 May 1997
• Docket Number: No. 08-94-00221-CR,08-94-00221-CR
• Citation: 950 S.W.2d 121
• Parties: Aurora CALDERON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 121

950 S.W.2d 121

Aurora CALDERON, Appellant, v. The STATE of Texas, Appellee.

No. 08-94-00221-CR.

Court of Appeals of Texas,

El Paso.

May 8, 1997.

Norbert J. Garney, El Paso, for Appellant.

Jaime E. Esparza, District Attorney, El Paso, for Appellee.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

McCLURE, Justice.

This appeal addresses the issue of whether the Appellant, Aurora Calderon ("Calderon"), was denied effective assistance of counsel. It also provides this Court an opportunity to clarify its position on the question of whether, and under what circumstances, an instruction to disregard will cure the prosecution's improper comment on a criminal defendant's failure to testify. Calderon was found guilty of possessing less than twenty-eight grams of heroin with the intent to distribute it. She was sentenced to twenty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

SUMMARY OF THE EVIDENCE

On October 1, 1993, members of the Culberson County Sheriff's Department raided Calderon's residence following a tip by a confidential informant that Calderon and another person were at her home packaging heroin and cocaine for distribution. Deputies of the department executed a search warrant and found Calderon and four others sitting around a coffee table. On the couch, they discovered a plate with strips of plastic wrap, tiny squares of a black tarry substance that later turned out to be heroin, and more squares of heroin already packaged. They also found a police scanner tuned to their frequency. Calderon was arrested but she was not searched at the scene. Instead, Department of Public Safety Officer Damas Lopez transported her to the jail where she was searched. Several days later, Officer Lopez discovered a small package of cocaine in his vehicle. Calderon was charged with possession of less than twenty-eight grams of heroin with the intent to distribute it and with possession of less than twenty-eight grams of cocaine. She was acquitted of the cocaine possession charge.

EFFECTIVE ASSISTANCE OF COUNSEL

In her first point of error, Calderon asserts that she was denied the effective assistance of counsel due to fatal mistakes made during voir dire, during the guilt-innocence phase, and during the punishment phase. In her second point of error, Calderon alleges that the prosecution, during closing arguments, persistently made comments on her failure to testify. A defendant is entitled to "reasonably effective assistance." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App.1991). However, a defendant is not entitled to errorless counsel or counsel whose competency is judged by hindsight. Stafford, 813 S.W.2d at 506.

With respect to the guilt-innocence phase of a trial, the proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington. Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App.1992). Under the first prong, the defendant must show that counsel's performance was deficient, to the extent that counsel failed to function as the "counsel" guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). The defendant must demonstrate that his attorney's representation fell below an objective standard of reasonableness under prevailing professional norms. Vasquez, 830 S.W.2d at 949. Under the second prong, the defendant must establish that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771.

When a claim of ineffective assistance of trial counsel is reviewed by this Court, we must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W.2d at 771; Lyon v. State, 885 S.W.2d 506, 519 (Tex.App.--El Paso 1994, pet. ref'd). Consequently, allegations of ineffectiveness of counsel must be firmly founded in the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App.1983); Lyon, 885 S.W.2d at 519. Under the Strickland test, the appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Jackson, 877 S.W.2d at 771; Lyon, 885 S.W.2d at 519.

Voir Dire

Calderon asserts that her trial counsel was ineffective during voir dire in that he challenged one veniremember who had stated that he could not under any circumstances impose the maximum punishment for the charged crime of heroin possession with intent to distribute. The judge granted his challenge. Calderon also alleges that her counsel was ineffective during voir dire because he did not challenge three veniremembers who in varying degrees stated that they would have difficulty in granting the minimum punishment of five years' probation for the same crime. Her counsel, however, did elicit from these veniremembers that they would be willing to impose probation for some time greater than the minimum. Finally, Calderon notes the fact that her counsel opposed a challenge to a veniremember who had only a second grade education and who spoke very little English. The trial court granted the State's challenge.

The purpose of Strickland's first prong is to obviate the prejudicial effect of hindsight. See, e.g., Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex.Crim.App.) ("A fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel's perspective at the time."), cert. denied, 510 U.S. 840, 114 S.Ct. 122, 126 L.Ed.2d 87 (1993); Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App.), cert. denied, 506 U.S. 885, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992). In other words, the question of sound trial strategy is determined by viewing all the circumstances as they appeared to counsel at the time of trial. As such, Calderon bears a tremendous burden in proving that her counsel fell below some objective norm of reasonable practice in his representation. We note that the record is devoid of evidence of the precise reasoning that her counsel employed during the voir dire process. See, e.g., Jackson, 877 S.W.2d at 770-71 (refusing to infer ineffectiveness during voir dire when the record did not reflect the attorney's reasoning for failing to challenge a veniremember); Delrio v. State, 840 S.W.2d 443, 446-47 (Tex.Crim.App.1992)(same). Therefore, any number of strategic theories can be inferred from his actions that could reasonably explain the choices he made for each challenged situation. For example, the State suggests that Calderon's counsel may have challenged the first veniremember who could not consider the maximum punishment because he had other reasons for wanting to strike that veniremember and opted to use what would otherwise be considered a State's challenge, thus preserving his preemptory challenges. Additionally, Calderon's counsel may have reserved challenging the three veniremembers who could not consider the minimum because he felt that they would be more favorable to his client during the guilt or innocence phase of the trial or because he felt that they would be more willing to impose probation though they could not consider the minimum. In all the complained of situations, Calderon has failed to prove Strickland's first prong. With respect to Strickland's second prong, the record does not reflect whether any of the three veniremembers that could not impose the minimum punishment even sat on the jury. Certainly, the veniremember who could not speak English was not empaneled. Therefore, Calderon has failed to show that her counsel's actions during voir dire prejudiced her case in any way.

Guilt-Innocence

Calderon suggests that her counsel's failure to give an opening statement demonstrates his overall ineffectiveness, yet provides no argument, authority, or evidence of how this alleged lapse on her counsel's part constituted ineffectiveness. The option for defense counsel to deliver an opening statement immediately after the State makes its opening statement is entirely discretionary. See TEX.CODE CRIM.PROC.ANN. art. 36.01(b)(Vernon Supp.1996). Few matters during a criminal trial could be more imbued with strategic implications than the exercise of this option. Evidently, Calderon's counsel had this in mind when he explicitly reserved his opening statement. Calderon elected not to present a defense after the State rested. As is obvious from her counsel's closing arguments, her primary trial strategy was to demonstrate that the State had not proven its case beyond a reasonable doubt. She argued that her mere presence at the scene did not implicate her in any criminal activity. She also urged that the State had not proven any affirmative links tying her to the drugs. Given this tenor as the trial unfolded, an opening statement may have been deemed unnecessary, if not strategically undesirable.

Calderon further alleges that her counsel was factually unprepared. She offers as proof an incident at trial concerning the admissibility of the police scanner taken from her home. Her counsel...