Erik Velazquez Ayala v. State

Opinion issued October 26, 2006

Opinion

issued October 26, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00714-CR

ERIK VELAZQUEZ AYALA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria

County , Texas

Trial Court Cause No. 46364

MEMORANDUM OPINION

Erik Velazquez Ayala pleaded not

guilty to the charge of the murder of Javier Martinez. The jury found Ayala guilty and sentenced him

to thirty-five years’ imprisonment. On

appeal, Ayala contends (1) the trial court erred in denying his motion to

suppress evidence seized after his warrantless arrest, (2) the evidence is

legally insufficient to sustain his conviction, and (3) the trial court erred

in denying his motion for continuance, thereby denying him effective assistance

of counsel. We affirm.

Background

Ayala’s

brother, Morelos Ayala, testified that in February 2004, Ayala and Morelos

repaired their parents’ back patio.

Afterward, they went to shoot pool.

After playing pool, the brothers returned to their parents’ house, and Martinez,

the decedent, arrived ten minutes later.

At about 8:00 p.m. or 8:30 p.m., Morelos went home to his wife and

children. Ayala called Morelos around

11:00 p.m., 1:00 a.m., and 2:00 a.m. to ask whether he would come out drinking. Morelos heard Martinez’s

voice in the background the second time, and actually spoke on the phone with

him during the third telephone call.

Morelos told Ayala and Martinez that he did not

wish to go. Morelos testified that it

sounded as if the two men were in a bar, and that by the third phone call, the

men sounded intoxicated. Around 3:30

a.m. or 4:00 a.m., Ayala knocked on Morelos’s door and asked whether he could

park his truck in Morelos’s garage.

Ayala wore a black jacket and blue jeans. Morelos removed his truck from the garage and

allowed Ayala to park his truck in the garage.

Ayala told Morelos that someone had shot “Javier” and thrown him in a

ditch somewhere. Morelos observed a red

stain on Ayala’s truck seat, and told Ayala to do what he needed to do and

leave. Ayala stated that he planned to

clean his truck and leave. When Ayala

finished cleaning his truck, he told his brother not to tell anyone about the

incident.

A couple of days later, Ayala asked

Ray Camorena, his cousin, to accompany him to several bars in Houston to look for a cellular phone that he

had lost. Camorena testified that Ayala

had procured a job for Martinez at San Jacinto

Stone Company, and that Ayala and Martinez

were good friends.

Six days after Martinez’s disappearance, Pearland

Police Officer John Albin discovered Martinez’s body in a

water-filled ditch on the side of the road.

Near the body, Albin also discovered a wallet with Martinez’s identification, and a cellular

phone that belonged to Ayala according to the serial number and T-Mobile phone

records. Crime Scene Investigator Ricky

Bort testified that someone had hand-pulled grass and thrown it on top of the

body in an attempt to obstruct a view of it.

Investigators also found a shoe print next to Martinez’s

body. Bort ran no tests on Martinez’s

hands to determine whether he had fired a gun.

He testified that no attempts were made to remove fingerprints from the

wallet and cellular phone recovered at the scene.

Four days after discovering Martinez’s body,

Detectives Cecil Arnold and Rene Alvarado spoke with several of Ayala’s family

members. Detective Alvarado testified that

Ayala’s father, Ramiro Ayala, told him Ayala had shot Martinez

in self-defense. Ramiro testified at

trial, however, that he never discussed what happened to Martinez

with Ayala, and that Ayala never told him he had shot Martinez in self-defense. Catalina Ayala, Ayala’s mother, testified

that she did not have a conversation with Ayala in February or March 2004

regarding Martinez’s

death. Specifically, Catalina testified

that she did not tell Morelos that Ayala had told her he had shot Martinez

in self-defense. Morelos also testified

that Ayala never told him he had shot Martinez

in self-defense.

Arnold testified, however, that when he

spoke with Morelos in front of Ayala’s parents’ house, Morelos seemed anxious

and looked repeatedly back towards the house.

Morelos told him that he recognized the phone discovered next to Martinez’s

body as Ayala’s phone.

After obtaining a statement from

Morelos, Arnold and Alvarado went to Alamo Stone Company to look for

Ayala. Arnold believed Ayala to drive a green

Ford F-150 truck, and upon seeing one parked in front of Alamo Stone, Arnold

confirmed with police dispatch that the vehicle was registered to Ayala.

Alvarado approached Ayala in the

lunchroom of Alamo Stone. Alvarado

testified that he immediately placed Ayala under arrest. Ayala did not seem nervous and was very

cooperative. Arnold and Alvarado asked

for consent to search Ayala’s vehicle.

Alvarado explained the voluntary consent to search form to Ayala in

English and Spanish. Arnold

testified that he spoke to Ayala in English, and Ayala appeared to understand

what he said. Ayala stood behind Arnold

as he searched the vehicle. When Arnold opened the driver’s

side door, he observed a new cellular phone and cellular phone box, as well as

a blanket covering the seat. Arnold

removed the blanket and observed what he believed to be a bloodstain on the

seat. Arnold called the District Attorney and based

on that conversation seized Ayala’s truck as evidence. Arnold testified that it

was at this point that he arrested Ayala.

The investigators then took Ayala to

his home. Arnold asked Ayala what he wore the

night of Martinez’s

murder, and Ayala told him a black leather jacket that Arnold

discovered on the floor of Ayala’s bedroom.

Arnold

noticed a lot of mud on the lower part of the jacket, and what he believed to

be a bloodstain on the right sleeve. Arnold and Bort testified that

no one conducted tests to determine if the mud discovered on Ayala’s jacket

matched the mud at the crime scene. Arnold

conceded that it would be possible for Ayala to get mud on his jacket at work

because he worked at a stone company. Arnold also discovered a

black semiautomatic SIG Sauer handgun, a nine millimeter spent shell casing,

two boxes of nine millimeter ammunition, and two bags of hollow point bullets. Arnold

testified that when he opened the handgun, which was a .40 caliber, the nine

millimeter shell casing fell out of it. Bort

testified that ballistics determined that the gun recovered from Ayala’s

apartment was not the murder weapon. Arnold also discovered plastic cellular phone packaging

bearing the same model number as the cellular phone he had discovered next to Martinez’s body, and

several suitcases filled with clothes.

Police retained Ayala’s vehicle at the police department until they

obtained a search warrant, at which point Bort examined the truck. Bort photographed a bloodstain in the middle

of the bench seat and obtained samples from the stain. Bort also obtained samples of blood spatter

from the passenger’s side door and from the floor around the gearshift. He also removed the headliner, the visors,

and the dome light assembly, all of which contained blood spatter.

At trial, Bort testified that he

compared the shoe impression he had discovered next to Martinez’s

body with both Martinez’s

and Ayala’s shoes. Bort testified that

he believed that the cast matched the shape and size of the shoes recovered

from Ayala’s apartment, but he admitted that he is not an expert in making such

comparisons, and the cast was not sent to an expert because it was a poor

sample.

Christy

Smejkel, a criminalist for the Texas Department of Public Safety, determined

that Martinez’s

DNA matched the blood found on Ayala’s jacket, and on the seat and floor of his

vehicle. She determined that one of the

bloodstains from the seat, and the stain from the floor of Ayala’s truck,

contained the DNA of multiple people, but that in both instances, Martinez’s DNA was

present.

Dr.

Steven Pustillnik, the medical examiner who performed the autopsy on Martinez’s

body, testified that the only external injury to Martinez

was a bullet hole to the neck. He

testified that the bullet entered through the soft tissue on the left side of

the neck, striking the vertebral column and the base of the skull, and ending

up next to the jaw on the right side of the head. Dr. Pustillnik recovered the bullet, which

was a hollow point that had been filled with wax to ensure it would expand when

it struck its target. He explained that

stippling, or small abrasions on the skin caused by powder and other particles

traveling with the bullet and striking the skin, occurs when a gunshot wound is

inflicted from two inches to twenty-four inches away, which is considered an

intermediate range wound. Marginal

abrasions, or abrasions caused by the skin rubbing against the bullet, appear

when a gunshot wound is inflicted from twenty-four inches away or more, which

is called distant range. Dr. Pustillnik

testified that he believed it was unlikely that Martinez shot himself because the gunshot

likely came from two feet away or more.

Darrell

Stein, the State’s firearms expert, testified that Bort gave him a .40 caliber

Smith & Wesson SIG arms pistol, a magazine, one spent cartridge case, and

some unfired cartridges to analyze.

Stein determined that the spent cartridge was not fired from the pistol. The cartridge was .38 caliber, consistent

with a nine millimeter Luger, but could also have been fired from a .38 Special

or a .357 Magnum. Some of the unfired

cartridges discovered in Ayala’s apartment were nine millimeter hollow point

Luger bullets.

Morelos

testified that Martinez, who was in his late forties, had made comments in the

past that Ayala’s seventeen-year-old sister was “hot” and “sexy,” and that Martinez would “talk a whole bunch

of stuff” when he was drunk. Martinez’s comments would

offend everyone, and people would tell him to stop saying those things. Morelos testified that Ayala had procured a

job for Martinez at Alamo Stone Company, and that

Martinez

sometimes carried a semiautomatic gun.

Morelos testified that he had seen Ayala with two guns, but not on the

night of Martinez’s

murder.

Motion to Suppress

In his first issue, Ayala contends

the trial court erred in denying his motion to suppress because the evidence

recovered from his truck was the fruit of his illegal arrest. Specifically, Ayala contends the taint of the

illegal arrest was not sufficiently attenuated to permit the introduction of

evidence discovered following Ayala’s consent to search his vehicle and

apartment. The State responds that the

evidence at trial shows consent to search was voluntary and any taint of an

illegal arrest dissipated. We agree.

Facts

Four

days after the discovery of Martinez’s

body, Detectives Alvarado and Arnold went to Ayala’s place of employment, Alamo

Stone Company. The detectives located

Ayala’s truck in the parking lot, and parked their police car directly behind

it, in order to block it from leaving. Alvarado

then went to locate Ayala.

Alvarado and Arnold both testified

that, before searching Ayala’s truck, Alvarado asked Ayala for permission to

search his truck and apartment and read the consent form in both English and

Spanish. Ayala agreed to allow the

detectives to search both areas and signed the consent form. Ayala was not handcuffed at this point in

time and the detectives allowed Ayala to stand behind them while they searched

his truck.

Alvarado and Arnold then traveled

with Ayala to search his apartment.

Ayala helped the detectives locate certain items and appeared to

understand what was going on at all times.

Ayala never withdrew consent to search his truck or apartment at any

time.

The record contains conflicting

testimony from the detectives as to when Ayala was placed under arrest. Alvarado testified that immediately after

Ayala stepped out of the building, he informed Ayala, in Spanish, that he was

under arrest for the investigation of the homicide of Javier Martinez. Alvarado testified that he then read Ayala

his Miranda rights [1] and

asked him if he would give the detectives consent to search his vehicle and

apartment, also in Spanish. Arnold, however, testified

that Alvarado’s statement is incorrect, and that Ayala was not under arrest

when he came out of the building.

Instead, Arnold testified that he himself did not place Ayala under

arrest until he obtained Assistant District Attorney Keith Allen’s

authorization to do so, which was after they searched Ayala’s truck, with his

consent, and found what appeared to be bloodstains. The trial court ultimately found the arrest

to be warrantless and illegal since it did not meet any of the exceptions for a

warrantless arrest. The trial court,

however, found by clear and convincing evidence that the police did not obtain

Ayala’s consent to search by exploitation of the illegal arrest, and denied

Ayala’s motion to suppress because the taint from the illegality was

sufficiently attenuated. The trial court

found the consent was voluntary because there was a sufficient attenuation of

the taint. Viewing the evidence in a

light most favorable to the trial court’s ruling, we conclude that the court

implicitly found that Ayala was placed under arrest before he gave his consent

to search, as Alvarado testified, rather than after the search, as Arnold

testified.

Standard of Review

We

apply a bifurcated standard of review to motions to suppress, giving almost

total deference to the trial court’s determination of historical facts, while

reviewing de novo the court’s application of the law. Maxwell

v. State , 73 S.W.3d 278, 281 (Tex. Crim. App.

2002). We defer to the trial court’s

rulings on “mixed questions of law and fact” if the “ultimate resolution of

those questions turns on an evaluation of credibility and demeanor.” Loserth v. State , 963 S.W.2d 770, 772

(Tex. Crim. App. 1998). In a motion to

suppress hearing, the trial court is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given to their

testimony. State v. Ross , 32

S.W.3d 853, 855 (Tex.

Crim. App. 2000); Foster v. State , 101 S.W.3d 490, 495 (Tex. App.—Houston

[1st Dist.] 2002, no pet.). Accordingly,

the trial court may believe or disbelieve all or any part of a witness’s

testimony, even if that testimony is not controverted. Ross ,

32 S.W.3d at 855 . If, as in this

case, the trial court files no findings of fact, we view the evidence in a

light most favorable to the ruling and will uphold the trial court’s ruling on

any theory of law supported by the evidence.

See Sauceda v. State , 129 S.W.3d 116, 120 (Tex.

Crim. App. 2004).

Attenuation

of Taint

Ayala first contends the State is

barred from raising the theory of attenuation of taint for the first time on

appeal because the State did not present this theory to

the trial court. The record,

however, indicates that the trial court addressed this theory at the

suppression hearing. We therefore

analyze whether any taint from the illegal arrest was sufficiently attenuated.

When consent follows an illegal

arrest, courts examine whether the consent is tainted by the illegal police

conduct. See, e.g. , Brick v. State , 738 S.W.2d

676 , 677–78 (Tex. Crim. App. 1987) (holding court of appeals erred in declining

to consider whether arrest was illegal and whether consent was tainted by

potentially illegal police activity).

The primary purpose of determining whether consent is tainted is to ensure

that evidence that is the fruit of an unreasonable search or seizure by police

is not admissible in court. Wong Sun

v. United States , 371 U.S. 471, 488 , 83 S. Ct. 407, 417 (1963) (when

evidence results from illegal actions of police, issue is “whether, granting

establishment of the primary illegality, the evidence to which instant

objection is made has come at by exploitation of that illegality or instead by

means sufficiently distinguishable to be purged of the primary taint”).

The Court of Criminal Appeals in Brick

held that courts should apply the factors articulated in Brown v.

Illinois , 422 U.S. 590 , 604–05, 95 S. Ct. 2254, 2262 (1975), including an

independent analysis of the voluntariness of the consent. Brick , 738 S.W.2d at 679–81; see Boyle v. State , 820 S.W.2d

122, 131 (Tex. Crim. App. 1989), overruled

on other grounds , Gordon v. State , 801 S.W.2d 899 , 911 n.13 (Tex.

Crim. App. 1990). The court in Brick

held:

[B]efore it can be determined that evidence derived

from a warrantless but consensual search following an illegal arrest is

admissible, it must first be found, by clear and convincing evidence, not only

that consent was voluntarily rendered, but also that due consideration of

[certain] additional factors . . . militates in favor of the conclusion that

the taint otherwise inherent in the illegality of the arrest has dissipated.

738 S.W.2d at 681 . The burden of showing attenuation and thus

admissibility rests with the State. Id.

Voluntariness of Consent

When

relying upon consent to justify the lawfulness of a search, the State has the

burden to prove by clear and convincing evidence that the consent was freely

and voluntarily given. Bumper v. N.

Carolina , 391 U.S.

543, 548 , 88 S. Ct. 1788, 1791 (1968); see also Corea v. State , 52

S.W.3d 311, 317 (Tex. App.—Houston [1st Dist.] 2001,

pet. ref’d). The burden requires the

State to show that the consent was positive and unequivocal, and without duress

or coercion. Meeks v. State , 692

S.W.2d 504, 509 (Tex. Crim. App. 1985); Riordan v. State , 905 S.W.2d

765, 770 (Tex. App.—Austin 1995, no pet.).

The burden cannot be discharged by showing no more than acquiescence to

a claim of lawful authority. See

Bumper , 391 U.S.

at 548–49, 88 S. Ct.

at 1791­–92. The validity of consent to search is

a question of fact to be determined from all the circumstances. Rayford

v. State , 125 S.W.3d 521, 528 (Tex.

Crim. App. 2003).

Here, Detective Alvarado testified that he read Ayala his Miranda rights and requested consent to

search Ayala’s truck in both Spanish and English. Alvarado did not handcuff Ayala or draw any

weapons, but instead walked with him to the truck to meet with Detective

Arnold. Alvarado then translated the

voluntary consent to search form to Ayala in Spanish, explained that they were

asking to search both his truck and apartment, and noted that he had the right

to refuse to provide consent or could withdraw consent at any time. Ayala signed the consent form and stood

behind the detectives as they searched his truck. Although the record is not clear as to

exactly what point in time the detectives handcuffed Ayala, it is clear he was

not handcuffed before he signed the consent form nor while he observed the

detectives search his truck. Ayala fully

cooperated at all times, at one point even helping the detectives find certain

items at his apartment.

Additional Brick

Factors

The Court of Criminal Appeals in Brick

identified six factors to consider in determining whether consent to search

is purged of its primary taint: (1) the proximity of the consent to the arrest;

(2) whether the seizure brought about police observation of the particular

object which they sought consent to search, or, in other words, whether the

illegal arrest allowed officers to view the area or contraband that the

officers later received consent to search; (3) whether the illegal seizure was

flagrant police misconduct; (4) whether the consent was volunteered, rather

than requested by the detaining officers; (5) whether the arrestee was made

fully aware of the fact that he could decline consent and, thus, prevent an

immediate search; and (6) whether the police purpose underlying the illegality

was to obtain the consent. 738 S.W.2d at

680–81; Beaver v. State , 106 S.W.3d 243, 250 (Tex. App.—Houston

[1st Dist.] 2003, pet. ref’d).

Here,

the first factor, the proximity of the consent to the arrest, tends to favor

suppression of the evidence because the record indicates Ayala’s consent to

search his truck and apartment immediately followed his arrest by Detective

Alvarado. Temporal proximity, however,

is not a strong determining factor, and courts have generally analyzed it in

light of the flagrancy of police misconduct and any intervening circumstances

occurring between the time the officers began the unlawful detention of the

appellant and appellant’s giving of consent.

Boyle , 820 S.W.2d at 132 .

With regard to the second factor, Ayala’s

unlawful arrest did not bring about the detectives’ observation of his

truck. Rather, the detectives already

had identified the truck as belonging to Ayala.

Moreover, the detectives did not search the truck pursuant to the

arrest, but rather obtained consent first.

The arrest therefore did not bring about observation of the truck. This factor favors the State.

The third factor is whether the illegal

seizure was flagrant police misconduct.

Courts typically do not deem police misconduct as “flagrant” unless the

police engaged in the conduct for the purpose of obtaining consent, or to cause

surprise or fear. Beaver , 106

S.W.3d at 250–51. The record indicates

that the detectives thought they had probable cause to question Ayala regarding

the investigation after they found Ayala’s cellular phone near Martinez’s body and spoke

with Morelos. The detectives’ misconduct

thus was likely not for the purpose of obtaining Ayala’s consent to search his

truck. Additionally, nothing in the record

demonstrates that the misconduct was calculated to cause surprise or fear. There is no evidence in the record of threats

or coercion by the detectives. On the

contrary, Ayala was not handcuffed when he was arrested or while the detectives

searched his truck. Furthermore, Alvarado

read Ayala’s Miranda rights to him in

Spanish, as well as translated the consent form into Spanish. The detectives also testified that they were

able to speak to Ayala in English, and that Ayala seemed to be cooperative and

understood what was going on at all times.

The record does not show that the detectives’ conduct was purposefully

flagrant; thus, this factor weighs in favor of the State.

The fourth factor favors Ayala

because the police requested that he consent to allow them to search his truck

and apartment—he did not volunteer it.

Ayala was made fully aware of the

fact that he could decline consent and prevent an immediate search, which

weighs in favor of the State under the fifth Brick factor. The record reflects that Alvarado asked Ayala

in both languages if he would consent to the search and sign the form. The detective also informed Ayala that he had

the right to refuse to give consent to search his property. Ayala appeared to understand the request, and

he seemed cooperative at all times.

Finally, the sixth factor examines

whether the police purpose underlying the illegality was to obtain

consent. The record reveals that the

detectives thought they had probable cause to question Ayala regarding the investigation

into Martinez’s

death. Regarding the arrest, however,

the trial court noted that “instead of a police purpose underlying [the]

illegality . . . [the officers] had a difference of opinion, more or

less.” Alvarado thought Ayala was under

arrest before they requested his consent to search, whereas Arnold thought Ayala was not under arrest

until after they searched his truck. The

record does not indicate whether there was any improper police purpose

underlying the illegality. This factor

does not clearly favor either Ayala or the State.

Viewing the record and all reasonable inferences

in the light most favorable to the trial court’s ruling, we find the consent to

search was sufficiently purged of its primary taint. Accordingly, we conclude that Ayala’s consent to search was

voluntary and that any taint of the illegal arrest was sufficiently attenuated. [2]

Legal Sufficiency

In

his third issue, Ayala contends the evidence is legally insufficient to support

his murder conviction because the circumstantial evidence fails to demonstrate

that Ayala fired the shot that killed Martinez.

Standard

of Review

When evaluating the legal sufficiency

of the evidence, we view the evidence in the light most favorable to the

verdict and determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S.

307, 319 , 99 S. Ct. 2781, 2789 (1979); Drichas v. State , 175 S.W.3d 795,

798 (Tex.

Crim. App. 2005). The standard is the

same for both direct and circumstantial evidence cases. Kutzner v. State , 994 S.W.2d 180, 184

(Tex. Crim. App. 1999). We do not

resolve any conflict of fact, weigh any evidence, or evaluate the credibility

of any witnesses, as this is the function of the trier of fact. See Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App.

1999); Adelman v. State , 828 S.W.2d 418, 421 (Tex. Crim. App.

1992); Matson v. State , 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine whether

both the explicit and implicit findings of the trier of fact are rational by

viewing all the evidence admitted at trial in the light most favorable to the

verdict. Adelman , 828 S.W.2d at

421–22. In so doing, any inconsistencies

in the evidence are resolved in favor of the verdict. Matson , 819 S.W.2d at 843 . In circumstantial evidence cases such as

this, it is unnecessary for every fact to point directly and independently to

appellant’s guilt; it is enough if the combined and cumulative force of all the

incriminating circumstances warrants the conclusion. See Johnson v. State , 871 S.W.2d 183,

186 (Tex. Crim. App. 1993); Russell v. State , 665 S.W.2d 771, 776 (Tex. Crim. App. 1983).

Analysis

A person commits the offense of

murder if he “intentionally or knowingly causes the death of an individual” or

he “intends to cause serious bodily injury and commits an act clearly dangerous

to human life that causes the death of an individual.” Tex.

Pen. Code Ann. § 19.02(b)(1)–(2) (Vernon 2003).

Ayala

contends this case is similar to Clayton v. State , in which the Corpus

Christi Court of Appeals found evidence legally insufficient to sustain a

murder conviction where the evidence failed to demonstrate that the appellant

fired the bullet that killed the victim.

169 S.W.3d 254, 258 (Tex. App.—Corpus Christi 2005, pet. granted). This case is distinguishable from Clayton ,

however, because in Clayton , there was no evidence of motive or of

appellant’s presence at the scene before the commission of the crime. In Clayton ,

the victim was discovered shot multiple times, lying in a field next to a

wrecked car full of blood. Id.

at 256 . Appellant’s transfer

fingerprints, where appellant had touched the victim’s blood and then touched

the car, were discovered on the steering wheel and on the gearshift. Id. The State provided no motive, and appellant

testified that he had arrived after the incident, attempted to drive the victim

in the wrecked car to get help, and was frightened away by an oncoming truck,

which crashed in a ditch near the scene.

Id.

at 256–57.

Here, Morelos testified that, on the

evening of the incident, he saw Martinez

and Ayala together at his parents’ house, and subsequently received phone calls

from Ayala’s phone, from both Ayala and Martinez, asking him to

come drinking with them. More importantly,

Morelos testified that Ayala showed up at his house early the next morning

asking to use Morelos’s garage to clean his truck because someone had shot Martinez

and left him in a ditch. Morelos also

testified that, in the past, Martinez,

a middle-aged man, had made inappropriate comments about Ayala’s teenage sister

while he was drunk that had made Ayala angry.

Thus, the State in this case presented evidence both that Ayala was with

Martinez

prior to the incident, and that he had a potential motive for murdering

him. In addition, the State presented

evidence that police officers discovered Martinez’s blood in Ayala’s

truck and on the jacket Ayala claimed to have worn the evening of the

murder. The same jacket was muddy, as

were the shoes Ayala claims to have worn that evening. Police officers discovered Ayala’s cellular

phone next to Martinez’s

body, which was lying in a ditch and covered with pulled grass. Police discovered hollow point bullets and

ammunition in Ayala’s apartment consistent with the bullet removed from Martinez’s

body. Viewed in a light most favorable

to the verdict, we conclude that this evidence is legally sufficient to sustain

Ayala’s conviction.

Motion for Continuance

In

his second issue, Ayala contends the trial court abused its discretion by

denying his motion for continuance because it denied him effective assistance

of counsel. Specifically, Ayala contends

that although he was allowed to test the victim’s DNA found on his shoes, he

was not given sufficient time to test other DNA evidence that the State

discovered on his shoes, which he contends could potentially have been

exculpatory. The State responds that

Ayala has failed to preserve error on this issue. We agree.

Article 29.03 of the Texas Code of

Criminal Procedure requires that a motion for continuance be in writing, and

sworn to by a person having personal knowledge of the facts relied on for the

continuance. See Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon

1989). Moreover, the Texas Court of

Criminal Appeals has held that “[a] motion for continuance not in writing and

not sworn preserves nothing for review.”

Dewberry v. State , 4

S.W.3d 735, 755 (Tex.

Crim. App. 1999) . Here, Ayala

presented two unsworn motions for continuance, and has therefore failed to

preserve error with respect to the motions on appeal. Id. [3]

Even if we construe this issue as a

complaint that Ayala was denied effective assistance of counsel because his

attorney failed to file a sworn motion for continuance, we do not believe that

Ayala has satisfied the second prong of Strickland .

Strickland

v. Washington , 466 U.S. 668 , 687–88, 694, 104 S. Ct. 2052,

2064, 2068 (1984). 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. Id. at 687–88, 694, 104 S.

Ct. at 2064, 2068 ; Andrews v. State , 159 S.W.3d 98, 101 (Tex. Crim. App.

2005). A defendant has the burden to

establish both of these prongs by a preponderance of the evidence, and a

failure to make either showing defeats his ineffectiveness claim. Andrews , 159 S.W.3d at 101 ; Mitchell v. State , 68 S.W.3d 640, 642 (Tex.

Crim. App. 2002). We presume 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 . 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. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App.

1999) .

A trial court’s decision

to grant or deny a motion for continuance is discretionary.

Heiselbetz

v. State , 906 S.W.2d 500, 511 (Tex. Crim.

App. 1995). To find an abuse of

discretion in refusing to grant a motion for continuance, there must be a

showing that the defendant was prejudiced by his counsel’s inadequate

preparation time. Id. Here,

Ayala contends that he was prejudiced because although he was allowed to

test the victim’s DNA found on his shoes, he was not given sufficient time to

test other DNA evidence that the State discovered on his shoes, which he

contends could potentially have been exculpatory.

If a third party actually committed

the murder in this case and somehow left DNA on Ayala’s own shoes during the

crime, then Ayala should know of his identity and could have had him subpoenaed

for trial. See Perez v. State , 5 S.W.3d 398 , 400–01

(Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding appellant did not

satisfy Strickland test when

appellant demonstrated a complete lack of diligence by failing to timely disclose

factual information to trial counsel).

Ayala has also failed to demonstrate how the existence of the third

party’s DNA on his shoes could overcome the evidence against him. Ayala thus has not shown that a reasonable

probability exists that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.

See Andrews , 159

S.W.3d at 101 . Accordingly, we hold that

Ayala was not denied effective assistance of counsel.

Conclusion

We conclude that (1) the trial court

did not err in denying Ayala’s motion to suppress evidence seized after his

warrantless arrest, (2) the evidence is legally sufficient to sustain Ayala’s

conviction, (3) Ayala failed to preserve error regarding the trial court’s

denial of his motion for continuance, and (4) Ayala was not denied effective

assistance of counsel. We therefore affirm

the judgment of the trial court.

Jane Bland

Justice

Panel consists of Chief Justice

Radack and Justices Alcala and Bland.

Do not publish. Tex.

R. App. P. 47.2 ( b ).

[1] Miranda v. Arizona , 384 U.S.

436, 479 , 86 S. Ct.

1602, 1630 (1966); see also Tex. Code Crim. Proc. Ann . art. 38.22,

§ 2 (Vernon 2005).

[2] Because we conclude that Ayala’s consent renders the

search of his vehicle and apartment valid, we need not address the issue of

whether his arrest was authorized under the Code of Criminal Procedure, or

whether the officers had jurisdiction to make the arrest.

[3] We note that this court and others have held that a

motion for continuance that does not comply with the Code of Criminal Procedure

may nonetheless be reviewed for abuse of discretion if denial of the motion for

continuance amounts to a denial of the rudiments of due process. See, e.g. , Williams v. State , 196 S.W.3d 365, 367 (Tex. App.—Houston [1st Dist.] 2006,

no pet.); O’Rarden v. State , 777 S.W.2d 455 , 459–60 (Tex. App.—Dallas

1989, pet. ref’d). Ayala does not argue,

however, that such a review is warranted in this case.