Cavazos v. State, No. 13-04-00325-CR (Tex. App. 8/30/2007)
| Decision Date | 30 August 2007 |
| Docket Number | No. 13-04-00325-CR.,13-04-00325-CR. |
| Parties | ENRIQUE CAVAZOS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 332nd District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices BENAVIDES and VELA
A jury convicted appellant, Enrique Cavazos, of four counts of aggravated robbery and one count of evading arrest. See Tex. Penal Code Ann. §§ 29.03, 38.04 (Vernon 2003 & Supp. 2006). The jury assessed punishment at thirty years in prison on each count of aggravated robbery and two years in a state jail facility on the evading arrest count. In six issues, appellant asserts (1) that he was provided ineffective assistance of counsel; (2) the evidence is legally and factually insufficient to support his conviction; (3) the trial court erred in overruling his objection to the State's improper closing argument; (4) the trial court erred in submitting the case to the jury without requiring the jury to agree on which of six alternative acts was applicable to appellant; (5) the trial court erred in including in the jury charge six alternative acts when the evidence was insufficient to support five of the six acts; and (6) he was denied a fair and impartial trial and due process of law. We affirm.
The evidence showed the following sequence of events: four men entered a home in Alamo, Texas on March 4, 2004. The home was occupied by Angelica Durante (homeowner); Jaime Durante; Javier Durante, and Gloria Longoria.
Angelica Duarate, testified that she was watching television in her bedroom with her seven-year-old daughter S.D. She heard a noise, went to the living room, and then saw that "some men" were forcing her brother, Jaime Durante, to the ground with his arms behind his back. She did not recognize any of the intruders. Angelica further testified that one of the men then placed a gun to her head and forced her to lie face down on her bed. She further stated that the men asked for her purse and began looking through her closet. She added that she had just cashed her income tax refund check and thus had approximately $1,300.00 in her purse. After the intruders left, Angelica went to the front door and saw that they were fleeing in a red pickup truck. Angelica then called the police.
Jaime Durante testified that he was sleeping on the living room sofa when he heard a knock at the door. He looked out the front window and saw a man hitting the door with his shoulder and leg. After the door was forced open, Jaime testified that a man held a "short" gun to the back of his head and put his arm behind his back. He was told not to look at them and that if he moved they would "fire." Jaime testified that he did not know any of the men and did not get a good look at their faces. The men took Jaime's wallet and over $200.00 he had in his pocket.
Javier Durante testified that he was asleep in his bedroom when he heard a noise; he walked out of his bedroom into the hallway and, almost immediately, a gun was placed to his head. He was told to lie down on the floor. Javier added that on one occasion he tried to see what was happening, but one of the men put his foot to his head and pushed him back down. Javier testified that he was afraid for his life. Javier's wallet and over $100.00 were taken.
Gloria Longoria testified that she was watching television in her bedroom and her one-year-old son M.L. was sleeping. She stated that she heard a loud bang and then someone kicked her bedroom door open. She added that a man with a cap entered her bedroom and pointed a black gun at her and her baby. She was told to "sit down and stay put." She testified that the man pointed the gun at her for two or three minutes. She stated, however, that she was unable to get a good look at the man. Gloria's purse was also taken.
Alamo police Sergeant Guadalupe Valdez testified that police responded to the 911 dispatch immediately; they found the suspects in the area in a truck matching the description given by one of the victims. Officer Valdez added that the suspects engaged the police in a twelve-mile pursuit, reaching speeds up to 90 miles per hour. The chase ended when the truck crashed into an irrigation ditch. Officer Valdez further testified that a wallet, black purse, an envelope of money, and some caps were recovered from the truck. A blue purse was also recovered from the roadside. Officer Valdez further testified that although the police searched along the route of the pursuit, they were unable to find any weapons.
Officer Valdez also testified about three videotapes that were recovered by cameras in three patrol cars that participated in the pursuit. The record indicates that the jury observed the videotapes while Valdez narrated. Officer Valdez identified appellant as the driver of the truck. The defense rested without calling any witnesses.
In his first issue, appellant contends that his retained counsel fell below the standard of effective representation and, therefore, denied him his right to effective assistance of counsel. We disagree.
We review a claim of ineffective assistance by conducting an inquiry as set forth by the United States Supreme Court in Strickland. Appellant must show that counsel's performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Mallet v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). Judicial scrutiny of counsel's performance must be highly deferential, making every effort to eliminate the distorting effects of hindsight, and indulging a strong presumption that counsel's conduct falls within the wide range of professional assistance. Strickland, 466 U.S. at 695. In order to defeat this strong presumption of reasonable assistance, any allegations of ineffectiveness must be firmly founded in the record. Mallet, 65 S.W.3d at 63. Furthermore, appellant must affirmatively prove that counsel's unprofessional actions or omissions prejudiced the defense and that there is a reasonable probability that, without these errors, a different outcome would have resulted. Strickland, 466 U.S. at 693-94; Mallet, 65 S.W.3d at 62-63.
Appellant contends that his trial counsel was ineffective because he failed to prepare for trial or provide the most basic defenses to appellant. Specifically, appellant asserts that his counsel was ineffective because he: (1) failed to file or urge pretrial motions; (2) failed to make proper objections and challenges for cause in voir dire; (3) failed to object to the State's allegedly improper opening statement; (4) failed to object to inadmissible evidence during the State's case in chief; (5) failed to request a lesser included instruction in the court's charge; (6) failed to object to the State's improper closing argument; and (7) failed to object to the admission of appellant's prior convictions in the punishment phase of trial.
At the outset, we note that the record is devoid of any explanatory information regarding the actions of appellant's trial counsel. In the absence of a proper evidentiary record, it is extremely difficult to show that trial counsel's performance was deficient and we must presume that his actions were taken as part of a strategic plan for representing his client. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (); Mares v. State, 52 S.W.3d 886, 891 (Tex. App.-San Antonio 2001, pet. ref'd).
Appellant first contends that, "at the minimum, [trial counsel] should have requested a witness list, expert witness designations, criminal records of the witnesses, and requested notice of extraneous offenses." Trial counsel's failure to file pretrial motions is not per se ineffective assistance of counsel. Id.; Bonilla v. State, 740 S.W.2d 583, 586-87 (Tex. App.-Houston [1st Dist.] 1987, pet.ref'd). Unless appellant shows that the pretrial motion had merit and that a ruling on the motion would have changed the outcome of the case, counsel will not be ineffective for failing to assert the motion. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1988) (citing Roberson v. State, 852 S.W.2d 508, 510-12 (Tex. Crim. App. 1993)). Here, appellant has made no such showing in regard to the motions his trial counsel failed to file.
Appellant next alleges that the trial court's reference to factual allegations of four victims in one transaction constitutes an improper comment on the weight of the evidence to which counsel should have objected. Specifically, appellant contends that the trial court's statements implied to the jury that he personally believed that a crime was committed, that there were four victims, that there were four perpetrators, and that the crime occurred during the same transaction. Appellant cites article 38.05 of the code of criminal procedure, which directs judges to refrain from commenting on the weight of evidence or making any remark calculated to convey to the jury the judge's opinion of the case. Tex. Code. Crim. Proc. Ann. art. 38.05 (Vernon 2006).
It is clear from the record that these comments do not violate this section of the code of criminal procedure, as they do not convey the judge's opinion about the case. Rather, the reason the trial court made its comments and used the examples it did was to ensure the jury would properly consider the full range of punishment if the defendant was convicted. Moreover, app...
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