Alvarez, Edmundo v. State

Opinion issued October 20, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-99-01444-CR

EDMUNDO ALVAREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 825256

MEMORANDUM OPINION

Appellant, Edmundo Alvarez, was convicted by a jury of capital murder.

The

trial court assessed his sentence at confinement for life. In three issues, appellant

asserts that: (1) the evidence was factually insufficient to prove that he had the

specific intent to kill; (2) he was denied effective assistance of counsel during the

guilt/innocence phase of his trial; and (3) he was denied effective assistance of

counsel during the 30-day period after sentencing, depriving him of the opportunity

to file a motion for new trial.

We abated this appeal, allowing appellant’s counsel the opportunity to file a

motion for new trial. Alvarez v. State , 79 S.W.3d 679, 682 (Tex. App.—Houston [1st

Dist.] 2002, pet. dism’d). Appellant’s counsel filed a motion for new trial and

requested a hearing on the motion. The trial court held a hearing on November 19,

2004, and appellant’s trial counsel, C. Brown, testified. The trial court denied the

motion for new trial.

Pursuant to our abatement order, the appellate record was supplemented with

the record from the hearing on the motion for new trial. Id . Both appellant and the

State were permitted to brief any issues related to the overruled motion. Id . Neither

party submitted supplemental briefs.

We overrule appellant’s remaining issues. We affirm.

Background

The complainant, Eleodoro Bacani, was working late at his sister’s, E.

Shakee’s, convenience store. Shakee testified that the complainant, who had been a

nurse in the Philippines, was working to send money to the Philippines for his wife

and young child. The complainant and his sister were talking on the telephone the

night of his murder. They ended the call when someone entered the store. About ten

minutes after she hung up, Shakee received a call from the alarm company and

learned that an alarm had gone off at the store.

Houston Police Department Officer E. J. Nunez arrived at the store in response

to the alarm. Nunez walked around the front counter and found the complainant

crouched down in the fetal position. Nunez saw a large amount of blood and a wound

in the complainant’s head. The complainant was shaking and did not respond to

Nunez. Nunez tugged the complainant, and he fell backwards. Nunez then saw more

blood. He called for an ambulance, sealed the scene, and waited for the homicide

detectives. The complainant was taken to the hospital where he was pronounced

dead.

Sergeant L. Ott, of the Houston Police Department’s Homicide Division,

testified that he obtained a warrant for appellant’s arrest several weeks later based on

a tip given by a Sam Houston High School instructor. Ott served the warrant and

arrested appellant. Officer J. L. Escalante, with Houston Police Department’s

Chicano Squad, is fluent in Spanish. At the scene of the arrest, Escalante interviewed

appellant. As a result of this interview, two other persons, A. Salazar and M. Flores,

were also arrested. To ensure there was not a language issue, Escalante took custody

of appellant and took appellant’s videotaped statement.

A search warrant to find the murder weapon was obtained for Salazar’s house.

Salazar’s step-father was at home and told the officers that he owned a revolver like

the one described in the warrant. However, the revolver was missing. Salazar’s step-father confronted Salazar and Flores. The officers were led to an apartment complex

where M. Huerta gave the officers a revolver. The revolver was submitted to the

crime scene unit for fingerprinting and then was submitted to the firearms laboratory

for testing.

At trial, appellant’s videotaped statement was entered into evidence and played

for the jury. On the videotape, appellant admitted that he went into the store with

several friends, including Salazar and Flores, and pulled out a revolver. Appellant

stated that the complainant gave them the money from the cash register and then bent

down. When the complainant bent down, appellant shot to scare the complainant.

Appellant said he did not call an ambulance and did not know the complainant was

dead. Appellant admitted that in the past he had smoked marijuana and had drunk

beer.

M. Lyons, a supervisor in the Houston Police Department’s Forensic Firearms

Laboratory, testified that he tested the revolver and the bullet taken from the

complainant’s head. He stated that the revolver shot the bullet that was recovered

from the complainan t’s cranial cavity. He also stated that the revolver was within

proper safety ranges and did not have a “hair trigger.” Lyons testified that the

revolver was a deadly weapon.

Officer J. Burrell, a member of the Houston Police Department’s Homicide

Division, processed the store with his partner. Burrell testified that “it appeared that

with the wound going down through [the complainant’s] head that he had ducked

down and the trajectory was down into his head.” Burrell stated that if the victim had

been in the process of bending down, he would have been found in a different

position. Burrell and his partner did not find any bullet holes or other evidence of

firearms in the store; nor did they find blood splatter on any walls or on the counter-top behind which the complainant was found. The store’s safe was locked.

Dr. S. Wilson, an assistant medical examiner for the Harris County Medical

Examiner’s Office, testified that the complainant’s death was a homicide caused by

a gunshot wound to the head. The bullet entered from the top of the complainant’s

skull and traveled downward, lodging in the base of the skull. Dr. Wilson testified

that the complainant’s wounds were consistent with his having been on his knees with

the shooter standing above him and firing down. Dr. Wilson testified on cross-examination that it was possible that the complainant’s wound would be the same if

he were bending down and the bullet traveled level with his head. Dr. Wilson did not

find gunshot residue on the complainant’s hands.

Appellant requested a directed verdict, which the trial court denied. The State

discussed the jury charge and the videotaped statement in its closing. Appellant

discussed the lesser included offense of which the jury could convict appellant if it

believed him not guilty of capital murder. The jury convicted appellant of capital

murder.

Analysis

Appellant’s third issue, complaining of deprivation of the opportunity to file

a motion for new trial, was resolved by the hearing on appellant’s motion for new trial

held on November 19, 2004. Therefore, we decide appellant’s remaining two issues.

Factual Sufficiency

In his first issue, appellant contends the evidence was factually insufficient to

sustain his conviction.

A person commits capital murder if he intentionally or knowingly causes the

death of an individual and intentionally commits the murder in the course of

committing robbery. Act of June 19, 1993, 73rd Leg., R.S., ch 900, § 1.01, sec.

19.03, 1993 Tex. Gen. Laws 3586 , 3613 (current version at Tex. Pen. Code Ann. §

19.03(a)(2) (Vernon Supp. 2004–2005). Appellant argues that the evidence is

factually insufficient to prove he had the specific intent to kill the complainant as

required by the Texas Penal Code.

We begin a factual sufficiency review with the presumption that the evidence

supporting the jury’s verdict is legally sufficient. Clewis v. State , 922 S.W.2d 126,

134 (Tex. Crim. App. 1996). We view all of the evidence in a neutral light, and we

will set the verdict aside only if the evidence is so weak that the verdict is clearly

wrong and manifestly unjust, or the contrary evidence is so strong that the standard

of proof beyond a reasonable doubt could not have been met. Escamilla v. State , 143

S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State , 144 S.W.3d 477,

483 (Tex. Crim. App. 2004)). Our evaluation may not intrude upon the fact finder’s

role as the sole judge of the weight and credibility to be accorded any witness’s

testimony. Cain v. State , 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight

to be given contradictory testimonial evidence is within the sole province of the fact

finder because it turns on an evaluation of credibility and demeanor; the fact finder

may choose to believe all, some, or none of the testimony presented. Id . at 407–09.

We must defer appropriately to the fact finder to avoid substituting our judgment for

its judgment. Zuniga , 144 S.W.3d at 481–82.

Appellant contends that the only evidence of what occurred in the store was his

videotaped statement. He stated that he shot only to scare the complainant when the

complainant bent down and he did not intend to kill the complainant. He argues that

there were no witnesses and no extrinsic evidence to show that he intended to kill the

complainant. Appellant also contends that there is no evidence to rebut his

contention that he shot the complainant in reaction to the complainant’s bending

down.

We defer to a jury’s fact findings and will find the evidence factually

insufficient only when necessary to prevent manifest injustice. Cain , 958 S.W.2d at

407 . A jury decision is not manifestly unjust merely because the jury resolved

conflicting views of evidence in favor of the State. Id . at 410. Thus, the jury was free

to believe or disbelieve all or any part of appellant’s statement.

Here, appellant’s statement contained inconsistencies, for instance, in regard

to which of his friends were at the convenience store when the shooting occurred.

The jury chose not to believe appellant’s statements; we find ourselves no better

situated to determine appellant’s credibility than the jurors. Moreover, contrary to

appellant’s claim, additional evidence supports the jury’s verdict. First, Dr. Wilson

testified that the complainant’s wound indicated he was kneeling when the shot was

fired, not bending over as appellant contends. Second, Burrell noted the absence of

any blood splatter evidence supporting appellant’s version of events. Third, Lyons

testified that the revolver used by appellant was a deadly weapon, and appellant

admitted, at the very least, firing the weapon toward the complainant at close range.

Employing a deadly weapon in a deadly manner provides strong inferential evidence

of intent to kill. Adanandus v. State , 866 S.W.2d 210, 215 (Tex. Crim. App. 1993).

Though such an inference may be rebutted, the jury chose not to believe appellant’s

claim that he lacked intent to kill. See Foster v. State , 639 S.W.2d 691, 695 (Tex.

Crim. App. 1982) (holding that inference of intent to kill created by use of deadly

weapon is rebuttable) . In light of the evidence, we cannot say that the jury’s

disbelief was unwarranted.

Appellant cites Foster v. State in support of his factual insufficiency claim. See

639 S.W.2d 691 (Tex. Crim. App. 1982). In Foster , the Court of Criminal Appeals

reversed a murder conviction upon finding legally insufficient evidence as to the

defendant’s intent. In that case, as in the instant case, the only eyewitness testimony

about the shooting came from the defendant, who denied possessing any intent to kill.

See id. at 694–95 . Foster , however, is distinguishable on several grounds. Notably,

the weapon used in Foster was defective and the physical evidence consistent with

the defendant’s testimony. Id . at 693–95. In addition, the defendant maintained an

amorous relationship with the victim, called an ambulance and the police shortly after

the shooting occurred, was emotionally distraught, and did not flee the scene. Id .

Here, the facts are almost precisely the opposite. Appellant’s statements are

contradicted by the physical evidence, a non-defective weapon was involved,

appellant fled the scene and made no attempt to notify appropriate authorities, and

appellant had no relationship with the complainant.

After examining all of the evidence neutrally, we hold that the proof of guilt

was not so obviously weak as to undermine confidence in the jury’s determination;

nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard

could not have been met . See Escamilla , 143 S.W.3d at 817 .

We overrule appellant’s first issue.

Ineffective Assistance of Counsel

In his second issue, appellant contends he was denied effective assistance of

counsel during the guilt/innocence phase of his trial because his trial counsel (1)

failed to object to Shakee’s testimony regarding the complainant’s background and

family; (2) failed to object to the portion of appellant’s videotaped statement that he

had smoked marijuana in the past or to request a limiting instruction concerning such

evidence; and (3) failed to object to the State’s closing argument, “which interjected

expert opinion evidence to the jury through unsworn jury argument” in that the State

told the jury to view appellant during the video as they would if he had given live

testimony and thereby instructed the jurors to notice appellant’s demeanor as he

spoke.

We evaluate the effectiveness of counsel under the two-pronged test enunciated

in Strickland v. Washington , 466 U.S. 668 , 104 S. Ct. 2052 (1984). See Hernandez

v. State , 988 S.W.2d 770, 774 (Tex. Crim. App. 1999). First, the defendant must

show that his counsel’s representation fell below an objective standard of

reasonableness. Strickland , 466 U.S. at 688 , 104 S. Ct. at 2064 . To prove this

deficiency in representation, the defendant must demonstrate that his counsel’s

performance deviated from prevailing professional norms. Id . 466 U.S. at 688 , 104

S. Ct. at 2065 ; McFarland v. State , 845 S.W.2d 824 , 842–43 (Tex. Crim. App. 1992).

Second, the defendant must show prejudice. Strickland , 466 U.S. at 687 , 104 S. Ct.

at 2064 . This requires the defendant to show there is a reasonable probability that, but

for his counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. 466 U.S. at 694 , 104 S. Ct. at 2068 . A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. 466 U.S. at 694 ,

104 S. Ct. at 2068 . The failure to satisfy one prong of the Strickland test negates a

court’s need to consider the other. See id. 466 U.S. at 697 , 104 S. Ct. at 2069 .

An appellant bears the burden of proving by a preponderance of the evidence

that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). The appellant must overcome the presumption that his trial counsel’s

strategy was sound and must affirmatively demonstrate the alleged ineffective

assistance of counsel. Rylander v. State , 101 S.W.3d 107, 110 (Tex. Crim. App.

2003); Thompson , 9 S.W.3d at 814 . We cannot speculate beyond the record

provided; rather, a reviewing court must presume that the actions were taken as part

of a strategic plan for representing the client. Young v. State , 991 S.W.2d 835 , 837–38

(Tex. Crim. App. 1999).

Trial counsel testified at the motion for new trial hearing. The following

discourse took place:

APPELLANT’s COUNSEL: Would you say for the record and for the

appellate court, if need be, what your trial strategy was in not lodging an

objection to [the complainant’s sister’s testimony]?

TRIAL COUNSEL: It would be based on the totality of the

circumstances. [Appellant’s] case was a capital, actually wasn’t caught

on the scene or anything like that. I think he ends up letting a teacher or

counselor know what had happened and there was this statement that he

made and the whole type [sic] of the trial, my strategy was to try to get

a lesser included offense and I don’t think it would have been prudent

at that time to object to a grieving person on the stand to try to make her

look bad or anything.

APPELLANT’s COUNSEL: Is it fair to characterize your testimony

then as you didn’t want to alienate the jury?

TRIAL COUNSEL: Correct.

. . .

APPELLANT’s COUNSEL: Moving on to the next issue that has been

raised, marijuana use by [appellant], that came into the testimony. . . .

Did you lodge any objection to evidence of [appellant’s] drug use at

trial?

TRIAL COUNSEL: No, I did not.

APPELLANT’s COUNSEL: Could you state your trial strategy for not

seeking to have it redacted?

TRIAL COUNSEL: Basically that was the only thing he ever had

anything bad about him before, and he was a young man. He was in

high school. Again, I wanted them to know the totality of the

circumstances of who he was.

APPELLANT’s COUNSEL: Okay. Was it ever made clear to the jury

that that was the only type of drugs that he had ever used? Was that

issue clarified for the jury that this was an isolated drug that he took or

do you recall?

TRIAL COUNSEL: My recollection is, yes, that was basically it,

marijuana use.

APPELLANT’s COUNSEL: So you don’t think objecting to that would

have done any good, basically?

TRIAL COUNSEL: Correct.

APPELLANT’s COUNSEL: All right. Third issue. . . . And just to

summarize, the prosecutor suggested—and this is my

interpretation—that by his body language on the videotape, the jury

could tell that he was lying at certain points. . . . Would you state for the

record what your trial strategy was in not objecting to that argument?

TRIAL COUNSEL: I believe she actually had a right to make that

argument. I don’t think it was objectionable.

APPELLANT’s COUNSEL: Had there been any testimony at trial as to

body language and and how it related to credibility?

TRIAL COUNSEL: The main issue at the trial was whether this was an

intentional shooting or accidental shooting, so my stance was always

that it was an accidental shooting, that he never intended to shoot the

clerk of that store. Of course, the State’s position was that he formed an

intent at some time during the robbery. So all of that came into play, his

demeanor during the trial, during the statements and, in its totality.

APPELLANT’s COUNSEL: But just to summarize, you felt this was

proper argument?

TRIAL COUNSEL: I believe it was.

Trial counsel clearly explained his trial strategy, and appellant does not carry

his burden to show that this strategy fell below an objective standard of reasonable

representation. See McFarland , 845 S.W.2d at 842–43. The fact that appellate

counsel may have pursued a different strategy does not by itself indicate ineffective

assistance of counsel. See Hawkins v. State , 660 S.W.2d 65, 75 (Tex. Crim. App.

1983). Therefore, appellant has not overcome the presumption that his trial counsel’s

inaction was the result of reasonable trial strategy. See Rylander , 101 S.W.3d at 110 ;

Thompson , 9 S.W.3d at 814 .

Moreover, we note that the prosecutor’s statement regarding appellant’s

demeanor during his videotaped interview was permissible jury argument. A proper

jury argument “must fall within one of four general areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answer to argument of

opposing counsel; and (4) plea for law enforcement.” See Guidry v. State , 9 S.W.3d

133, 154 (Tex. Crim. App. 1999). Jury argument may include reasonable deductions

regarding a witness’s demeanor so long as the witness’s demeanor is properly in

evidence. See Good v. State , 723 S.W.2d 734, 736 (Tex. Crim. App. 1986). Here, the

demeanor at issue was properly in evidence by virtue of appellant’s videotaped

confession. Consequently, the prosecutor’s reference to appellant’s demeanor was

permissible jury argument.

In regard to Shakee’s testimony, concerning the complainant’s background and

family and appellant’s prior marijuana use, appellant’s claim is further undermined by

his failure to satisfy Strickland’s harm prong. In support of his contention that

Shakee’s victim-impact statements prejudiced the trial’s outcome, appellant relies on

Motilla v. State , a case that has been reversed by the Court of Criminal Appeals.

Motilla v. State , 38 S.W.3d 821 (Tex. App.—Houston [14th Dist.] 2001), rev’d , 78

S.W.3d 352 (Tex. Crim. App. 2002). In Motilla , the court of appeals reversed and

remanded a capital murder conviction after finding that the trial court erroneously

admitted testimony by the victim’s adoptive mother about his health, age, and adoption

during the trial’s guilt-innocence phase. Motilla v. State , 78 S.W.3d 352, 354-55

(Tex. Crim. App. 2002). The court concluded that the testimony unduly contributed

to the jury’s determination that the defendant acted with specific intent. Id . at 355. In

reversing, the Court of Criminal Appeals observed that “a non-constitutional error

‘that does not affect substantial rights must be disregarded.’” Id . (quoting T ex . R.

A pp . P. 44.2(b)) (providing harm standard for non-constitutional error). It faulted the

lower court for failing to consider evidence of the defendant’s guilt in conducting its

harm analysis and it noted that “[t]he testimony [at issue] was brief and bore no

relationship to . . . Motilla’s intent.” Id . at 358–59.

In the instant case, there was substantial evidence from which a rational jury

could have concluded that appellant intended to kill the complainant. The testimony

by Shakee was brief and bore no relationship to the issue of intent. Considering this

testimony in combination with the overall evidence of appellant’s guilt, we conclude

that no reversible harm resulted from Shakee’s challenged testimony. Similar

reasoning applies to appellant’s admission of marijuana use. The admission of this

evidence, even if erroneous, was irrelevant to the determination of appellant’s guilt

and did not rise to the level of harmful error within the context of all the evidence.

We conclude that the record does not indicate that trial counsel’s failure to

object to Shakee’s testimony, appellant’s prior marijuana use, or the State’s closing

argument constituted deficient representation.

We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P . 47.2(b).