Salinas v. State
| Decision Date | 14 September 2011 |
| Docket Number | No. 14–09–00395–CR.,14–09–00395–CR. |
| Parties | Genovevo SALINAS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Neal Andrew Davis, Houston, for appellant.
Carol M. Cameron, Houston, for state.
Panel consists of Justices ANDERSON, FROST, and BROWN.
A jury found appellant Genovevo Salinas guilty of two counts of murder and sentenced him to twenty years' imprisonment and a $5,000 fine. Salinas appeals his conviction contending that: (1) his attorney rendered ineffective assistance at trial by failing to object to improper opinion testimony regarding Salinas's truthfulness, and (2) the trial court improperly admitted evidence of Salinas's silence during a pre-arrest interview. We affirm.
Genovevo Salinas was convicted of murdering brothers Juan and Hector Garza in the early morning hours of December 18, 1992, after a night of partying at Hector's apartment. Hector's next-door neighbor, Martha Trevino, testified she was awakened around 6:30 or 6:45 a.m. by a “banging noise,” which she thought was a gunshot, followed by “a scream ... like someone was scared” and more gunshots. She looked out a window and saw a man, whom she thought to be in his twenties, wearing a white hat and a long tan coat with a bulge in the side. He ran down a flight of stairs to the street where he jumped into the passenger seat of a waiting car and sped away.
Paramedics were already on the scene when Houston Police Department officers Kari Richards and Cynthia Miller arrived shortly after 7:00 a.m. The officers learned Juan was dead inside the apartment. Hector was still alive but would be later pronounced dead at the hospital. The officers were unable to locate any witnesses at the scene except for Trevino, who described the getaway car as dark-colored Camaro or Trans Am. Crime Scene Unit officer James Davis investigated the murder scene and found no signs of forced entry or any weapons in the house. He recovered six shotgun shells from around the doorway of the apartment and in the living room. Investigators canvassed the apartment complex but were unable to identify any suspects.
Police were eventually able to identify some of the people who attended the party the night before the shooting, and several cooperated with the investigation. Alberto “Flaco” Paredes testified he dropped Juan off at the apartment after work. He also testified that he had seen a black Trans Am in the area a few weeks before the shooting and saw the same car in the apartment complex parking lot the night before the shooting. Gilbert “Roland” Ledesma testified that two men he did not know left the party in a dark-colored Trans Am. Also at the party was Mike Provazek, who referred police to Damien Cuellar. Cuellar apparently was not at the apartment but had information that led police to Salinas. Although it is not clear from the trial transcript, it appears Cuellar either told police Salinas was at the party the night before the shooting, that Salinas owned a shotgun, or both.
Investigators went to Salinas's home, where he lived with his parents. In the driveway was both a red Camaro or Trans Am and a dark blue Camaro or Trans Am. Police would later learn that Salinas owned the red car while his mother drove the dark blue car. The investigators told the Salinas family about the murder investigation and obtained consent to search the home. Salinas's father tendered a shotgun to the police. Salinas agreed to voluntarily accompany the officers to a police station for questioning.
Sergeant C.E. Elliott of the Houston Police Department testified at trial that he questioned Salinas at the police station for nearly an hour. During the questioning, Salinas told Sergeant Elliott he knew the Garza brothers through Mike Provazek and had visited the apartment three or four times before the shooting. According to Sergeant Elliott's testimony, Salinas said he had no disagreement with either of the Garza brothers and did not own any weapons aside from the shotgun police took into custody. At that point in Sergeant Elliott's testimony, the prosecutor approached the bench, where the following exchange took place:
Ms. Garcia [Prosecutor]: Your Honor, there was a Motion in Limine granted that we should not be going into the defendant remaining silent when asked if the ballistics from his shotgun were going to match the shotgun shells found at the apartment. And at this time, we'd like to be able to go into that and show Sergeant Elliott's testimony. The defendant was not in custody at this time. He was free to leave and he was merely there for investigatory purposes.
The Court: Was this part of the same conversation that we just heard?
Ms. Garcia: Yes, Your Honor, same conversation.
Mr. McWilliams [Salinas's counsel]: Judge, I renew my same objection, that he has—he can invoke the Fifth Amendment privilege whether he was in custody or not. He doesn't have to talk to the police.
The Court: Okay. I agree, but unless you know that, in fact, he did do that.
Mr. McWilliams: He remained silent, Judge.
The Court: Okay. Thank you.
The court went off the record before Sergeant Elliott's examination resumed. A little later, the following exchange, which forms the basis of both of Salinas's issues on appeal, took place:
Q. Did you ask him, Sergeant Elliott, if the shotgun in question here would match the shells recovered at the scene of the murder?
A. Yes.
Mr. McWilliams: I renew the objection.
The Court: The objection is overruled.
Q. (By Ms. Garcia) You can answer the question.
A. Yes, I did ask him that.
Q. And what was his answer?
A. He did not answer.
Q. Did he make any motions after that? Did he—
A. Yes.
Q. What did he do?
A. Showed signs of deception.
Q. And what were they?
Mr. McWilliams: Object to that, Judge, as calling for speculation.
The Court: Sustained.
Mr. McWilliams: I ask that the jury be instructed to disregard that.
The Court: The jury—the objection is sustained. The jury will disregard the last statement of the officer.
Q. (By Ms. Garcia) Sergeant Elliott, what specifically did the defendant do after he remained silent when you asked him that question?
After the interview, Sergeant Elliott arrested Salinas on some outstanding traffic warrants. The ballistics analysis matched Salinas's shotgun with the casings left at the murder scene. However, the Harris County District Attorney's office declined charges, and Salinas was released. Police procured an additional statement from Cuellar, who, according to Sergeant Elliott, came to the police station unannounced and unsolicited to offer a third statement in which he said Salinas confessed he had murdered the Garza brothers. Cuellar testified that Salinas was his friend and that he hoped police would solve the murder without his help, but after a dream in which he saw the Garza brothers he felt compelled to come forward. Salinas was then charged with murder but eluded arrest until 2007, when he was arrested while maintaining a false identity. Salinas's first trial resulted in a mistrial, but the jury in his second trial found him guilty and sentenced him to twenty years' imprisonment and a $5,000 fine.
Salinas's first issue is his ineffective-assistance-of-counsel claim. He complains that his trial counsel failed to object when Sergeant Elliott opined that Salinas was “deceptive and lying.” Salinas argues this testimony was an inadmissible opinion of Salinas's truthfulness, and trial counsel's failure to object prejudiced his defense.
An accused is entitled to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983). In reviewing claims of ineffective assistance of counsel, we apply a two-prong test. See Mallett v. State, 65 S.W.3d 59, 62 (Tex.Crim.App.2001). To establish ineffective assistance, an appellant must prove by a preponderance of the evidence that (1) his trial counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. 2052;Mallett, 65 S.W.3d at 62–63. If a criminal defendant can prove that trial counsel's performance was deficient, he must still affirmatively prove that counsel's actions prejudiced him. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). To demonstrate prejudice, a defendant must establish a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett, 65 S.W.3d at 63.
When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the...
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