Josias R. Valdez v. State

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion Issued December 8,

2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00885-CR

JOSIAS R. VALDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 963996

MEMORANDUM OPINION

A

jury convicted appellant, Josias R. Valdez, of the felony offense of injury to

a child younger than fifteen years of age pursuant to Texas Penal Code Section

22.04. Tex.

Pen. Code Ann. § 22.04 ( Vernon 2003).

The jury assessed punishment at ten years’ imprisonment and a $10,000

fine. On appeal, Valdez contends his

attorney’s failure to object on several occasions during trial constitutes

ineffective assistance of counsel. We hold

that Valdez has not demonstrated that counsel was ineffective and therefore affirm.

Facts

In

October 2003, Valdez’s neighbors called the police after finding Valdez’s son, also

named Josias Valdez (“Josias”), screaming for help in the parking lot of their

apartment complex. Josias claimed to

have been left alone in the apartment by his father. His hands were bound tightly with a piece of

cloth, and he had numerous bruises on his body, including multiple dark spots

on his back and a large bruise on his left thigh. Josias told police his father hit him with a

board, and showed police where his father kept the board. Valdez returned to the apartment complex during

the investigation and was arrested.

Standard of Review

To

show ineffective assistance of counsel, a defendant must demonstrate both (1) that

his counsel’s performance fell below an objective standard of reasonableness;

and (2) that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S.

668 , 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State ,

159 S.W.3d 98 , 101–02 (Tex. Crim. App. 2005). The Texas Court of Criminal Appeals observed

that the “purpose of this two-pronged test is to judge whether counsel’s

conduct so compromised the proper functioning of the adversarial process that

the trial cannot be said to have produced a reliable result.” Mallett v. State , 65 S.W.3d 59, 63

(Tex. Crim. App. 2001). An appellant has

the burden to establish both of these prongs by a preponderance of the evidence,

and a failure to make either showing will defeat his ineffectiveness claim. Mitchell v. State , 68 S.W.3d 640, 642

(Tex. Crim. App. 2002); Andrews , 159 S.W.3d at 101 .

We must look to the “totality of the representation and the particular

circumstances of each case” in evaluating the effectiveness of counsel. Thompson , 9 S.W.3d 808, 813 (Tex. Crim

App. 1999); Rivera v. State , 123 S.W.3d 21, 28 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref’d). In so doing,

we indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance, and we will find counsel’s

performance deficient only if the conduct is so outrageous that no competent

attorney would have engaged in it. Andrews ,

159 S.W.3d at 101 . “[T]he defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’” Strickland ,

466 U.S. at 689 , 104 S. Ct. at 2064 ( quoting Michel v. Louisiana , 350

U.S. 91, 101 , 76 S. Ct. 158, 164 (1955)).

In assessing whether a defendant has overcome this presumption, we are

limited to the facts of the case. Thompson ,

9 S.W.3d at 813 . We cannot speculate

beyond the record provided, so any allegation of ineffectiveness must be firmly

founded in the record, and the record affirmatively must demonstrate the

alleged ineffectiveness. Id .

Ineffective Assistance of Counsel

Valdez

contends that trial counsel’s failure to object on several occasions constitutes

ineffective assistance of counsel. Specifically,

Valdez contends his counsel was ineffective in failing to object to instances

of witness speculation, leading questions on direct examination, a witness

answering in the narrative, irrelevant testimony, a non-responsive answer on

cross-examination, inadmissible hearsay, and an expert testifying outside his area

of expertise.

First, our review of the record

reveals much of the complained-of testimony was admissible, and cannot

therefore form the basis of an ineffectiveness claim. “When an ineffective assistance claim alleges

that counsel was deficient in failing to object to the admission of evidence,

the defendant must show, as part of his claim, that the evidence was

inadmissible.” Ortiz v. State , 93

S.W.3d 79, 93 (Tex. Crim. App. 2002). Here, Valdez contends that a physician’s

testimony about the typical types of injuries that result from child abuse was

irrelevant. However, this information was likely to assist the jury in

determining whether Josias’s injuries were the result of abuse, as permitted by

Texas Rule of Evidence 702. See Tex. R. Evid. 702 (“If scientific,

technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as

an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise.”). Valdez also contends that testimony of

Josias’s CPS caseworker concerning the types of patients housed at Intracare

Psychiatric Hospital was outside the scope of his expertise. The caseworker testified:

Q: What is

Intracare Psychiatric Hospital?

A: Intracare

is a psychiatric hospital here in Harris county, Houston, Texas, and it’s a

psychiatric inpatient hospital for patients who go and they’re stabilized.

Q: What

do you mean, “stabilized”?

A: Sometimes

they’re having – well, they’ll be having psychiatric outbursts or perhaps

delusions or emotional [sic] as a result of trauma.

The caseworker then testified that

CPS sends many children to that facility.

As a CPS caseworker who sends abused children to that facility often, he

would be in a position to know, generally, why people are sent there and how

they are treated. Failure to object to

this admissible evidence does not constitute deficient performance.

Second, none of the failures to

object to potentially inadmissible testimony are sufficient, in themselves, to

constitute deficient performance. Isolated

failures to object to improper evidence or certain procedural mistakes do not

constitute ineffective assistance of counsel. Ingham v. State , 679 S.W.2d 503, 509

(Tex. Crim. App. 1984); see Thompson , 9 S.W.3d at 814 (holding

presumption of strategy not rebutted where record was “silent as to why

appellant’s trial counsel failed to object to the State’s persistent attempts

to elicit inadmissible hearsay”); see also Garcia v. State , 106 S.W.3d

854, 860 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d), cert. denied ,

541 U.S. 1013 , 124 S. Ct. 2076 (2004) (holding presumption of strategy not

rebutted where record was silent as to counsel’s failure to object to

misstatements by the State).

Valdez contends that several

witnesses testified to inadmissible hearsay, but directs us to only one such

instance in his brief—that of the CPS caseworker’s testimony regarding other

available facilities. The judge stopped

the questioning of the CPS caseworker and admonished defense counsel that he

could have been objecting because the testimony concerning what type of foster

care facilities exist in Texas was not relevant given that Josias was not

staying at any of them. The fact that

the judge would have sustained a relevance objection about a discussion

regarding other available foster care facilities does not demonstrate that

counsel’s performance fell below an objective standard of reasonableness. See Ex parte White , 160 S.W.3d 46, 54

(Tex. Crim. App. 2004) (holding counsel’s failure to object to irrelevant and

highly prejudicial evidence did not constitute ineffective assistance because

“we cannot say, if an objection had been sustained and the testimony excluded,

the result of the trial probably would have been different”). In Thompson , where counsel failed to

object to multiple instances of hearsay, the court concluded it is possible

that counsel “ at that moment may have reasonably decided that the

testimony was not inadmissible and an objection was not appropriate.” 9 S.W.3d at 814 . Here, Valdez similarly fails to demonstrate

that his counsel’s decision was not a reasonable determination that the

testimony was admissible or that it would have been more harmful to object.

Viewing the totality of the record, Valdez

fails to demonstrate that counsel’s actions were not part of a reasonable trial

strategy. This case is similar to Gamble

v. State , 916 S.W.2d 92 (Tex. App.—Houston [1st Dist.] 1996, no pet.), in

which defendant complained of multiple failures to object to such things as inadmissible

hearsay, admission of an extraneous offense, opinion testimony, improper jury

arguments, comments on his post-arrest silence, and tainted in-court

identification. There, this Court held

that because the record was silent as to why counsel failed to object, the

presumption of trial strategy was not overcome.

Id . at 93. Here, Valdez did

not move for a new trial; thus, no evidence in the record indicates the reasons

behind trial counsel’s decisions not to object to the statements of the

witnesses. We will not speculate as to

why counsel did not object, and in the absence of a record to the contrary, we

presume “that trial counsel made all significant decisions in the exercise of

reasonable professional judgment.” Gamble ,

916 S.W.3d at 93. We hold that Valdez

fails to overcome the presumption that his counsel’s failures to object were

part of a reasonable trial strategy.

Conclusion

Valdez

fails to satisfy the first prong of Strickland . We therefore affirm the judgment of the trial

court. [2]

Jane

Bland

Justice

Panel consists of Chief Justice

Radack and Justices Alcala and Bland.

Do not publish. Tex.

R. App. P. 47.2 (b).

[2] We note that Valdez filed a motion requesting time to

file supplemental briefing, which this court granted. Valdez failed to file such supplemental

briefing, so we resolve the case based on the original briefing.