Delgado, Raul Antonio v. State

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

                                                                              )    

RAUL ANTONIO DELGADO,                            )                    No.  08-00-00490-CR

                                                                              )

Appellant,                          )                             Appeal from

                                                                              )    

v.                                                                           )                        394th District Court

                                                                              )

THE STATE OF TEXAS,                                     )                 of Jeff Davis County, Texas

                                                                              )

Appellee.                           )                                (TC# 673)

O P I N I O N

Raul Antonio Delgado appeals his conviction for possession of marihuana (Count I) and tax stamp violation (Count II).  A jury found Appellant guilty of each count.  The trial court  assessed Appellant=s punishment for Count I at imprisonment for a term of five years, and for Count II, a fine of $191,296 and imprisonment for a term of five years.  We reform the judgment to reflect that Appellant did not waive his right to a jury trial, that he entered his plea of not guilty before a jury, and that trial was held before a jury rather than the trial court.  We affirm the judgment as reformed.

FACTUAL SUMMARY

On December 5, 1998 at around 10 p.m., Matt Adams, Chief Deputy Sheriff of Jeff Davis County, was patrolling the streets of downtown Fort Davis.  Adams saw a red Chevy S-10 Blazer which did not have a front license plate or a light illuminating the rear license plate.  Additionally, the left taillight was not illuminated, so Adams stopped the vehicle.  Prior to exiting his patrol car, Adams requested the Marfa dispatcher to run the license plates.  Adams exited his vehicle and approached the Chevy S-10.  The driver, identified in court by Adams as Appellant, gave him a driver=s license identifying himself as Raul Antonio Delgado but he did not have insurance.  Adams also noticed that the vehicle had an expired inspection sticker and registration.  Appellant told Adams that the vehicle belonged to his cousin but he did not provide the cousin=s name.  Adams examined the information on the driver=s license and he confirmed with Appellant that the information on it was correct.  The license showed that Appellant lived in Dumas, Texas.  Appellant told Adams that he had been in Mexico but was returning home to Dumas.  About that time, the dispatcher informed Adams that the license plate on the vehicle had been reported as stolen.  Appellant told Adams he did not know anything about it.  Following established procedure, Adams removed the plate from the vehicle and he asked the dispatcher to run the vehicle identification number (VIN).  After the dispatcher informed Adams that there was no record associated with this VIN, he decided to impound the vehicle.  After Appellant exited the vehicle, Adams looked at the VIN on the inside of the driver=s door and saw that it had been peeled off and then replaced.  The VIN was illegible.  Adams= suspicions were further aroused because Appellant had no belongings in the vehicle other than a jacket and cellular phone, even though he had been on a trip to Mexico, and there was nothing in either the glove box or the center console. 

Adams issued a citation to Appellant for displaying a fictitious license plate and having no insurance, and he issued a warning for not having a front license plate and a rear license plate light, and for having a defective rear taillight and expired inspection sticker.  In addition to information taken from Appellant=s driver=s license, the citation reflects Appellant=s telephone number and social security number.  Adams recalled that Appellant provided that information verbally.  At trial, Adams reviewed a photocopy of Appellant=s driver=s license and identified the person depicted in the photograph as the same person he stopped on the evening of December 5, 1998.  After giving Appellant the citation, Adams gave him a ride to a motel in Fort Davis. 

Sheriff Steve Bailey and reserve deputy Tom Brown were also on patrol in Fort Davis on the evening of December 5, 1998.  When they heard Adam=s radio transmission regarding a stolen license plate, they went to the scene to provide back up.  At Adams= request, Sheriff Bailey looked at the VIN inside of the driver=s door and noticed that it had been altered.  Stating he needed to finish some paperwork, Adams handed Sheriff Bailey the driver=s license.  Because it was cold that evening, Sheriff Bailey and the driver of the vehicle sat inside of his patrol car and talked for about ten to fifteen minutes. Sheriff Bailey made a positive in-court identification of Appellant as the same person he sat with in the patrol car on the evening of December 5, 1998.  Appellant told Bailey that he was married and worked at a beef packing plant in Dumas.  He had borrowed the car from a friend, Chato Estrada of El Paso, to take his sick mother to Mexico.  Sheriff Bailey subsequently determined that Estrada did not own the license plates or the vehicle.

Later that evening, Adams and Sheriff Bailey compared the stories Appellant had told each of them.  Due to inconsistencies in the stories and the other suspicious circumstances, Sheriff Bailey called U.S. Customs to get a drug dog to search the car.  On December 8, 1998, two customs agents and two dogs--fresh from a drug program in a local school--arrived to search the vehicle.  Both dogs Ahit@ when they ran the vehicle.  In a hidden compartment beneath the vehicle, they found 122 pounds of marihuana. There were no tax stamps on any of the bricks of marihuana. 

At some point after the marihuana had been discovered, two men, Ricardo Vargas and Cesar Marquez, came to Fort Davis to pick up the vehicle.  They had paid for title to the vehicle earlier that day and had a Texas Department of Transportation registration for the vehicle.  Sheriff Bailey informed them that they had discovered marihuana in the vehicle and he refused to release the vehicle to them.  Vargas and Marquez did not protest.

On December 14, 1998, a grand jury indicted Appellant for possession of marihuana and failure to display a tax stamp.  In June of 1999, Adams and a reserve deputy traveled to Dumas to pick up Appellant and transport him to Jeff Davis County.

Appellant and his wife both testified at trial.  At the time of trial in August of 2000, Appellant was operating a trucking business which he had done for approximately one year.  He had not worked during the previous year because he had injured his knee while working at Harley Feeders, a feedlot.  He had not worked at the feedlot since 1997.  In June of 1999, two police officers arrested Appellant based upon a warrant out of Jeff Davis County.  Appellant, who knew nothing of the charge, remained in the Moore County jail for eight or nine days.  A reserve deputy from Jeff Davis eventually picked up Appellant and transported him to Monahans where he was picked up by Sheriff Bailey and transported to Jeff Davis County.  Although the reserve deputy had been nice to Appellant, Sheriff Bailey was rude and threatening.  When the sheriff questioned him, Appellant invoked his right to counsel.  After Appellant arrived in Marfa, he learned for the first time that he also had charges against him related to a traffic citation.

In August 1998, Appellant had surgery on his right knee to replace his ACL.  He used crutches for three months and thereafter walked with a brace on the right knee for two more months.  Appellant could not drive with the brace on his knee.  Appellant denied ever being in Jeff Davis County before his arrest on these charges.  He had lost his driver=s license or had it stolen in November of 1998.  He reported it to the Department of Public Safety at about the same time but did not get a new driver=s license for several months.

On cross-examination, Appellant could not remember the name of his doctor who performed the surgery on his knee even though he had seen the doctor several times and he did not remember the doctor=s address.  He also could not recall the name of the physical therapist he saw for three months following his surgery.  Appellant admitted that he worked at a meat packing plant for five years until 1997.  Appellant did not have a telephone in December of 1998, and the telephone number on the citation did not match Appellant=s current number.  However, the citation correctly reflected his social security number.  Appellant explained that his social security card had been lost or stolen along with his driver=s license and wallet.

Patricia Delgado has been married to Appellant for about seven years.  In November of 1998, Appellant told her he had lost his driver=s license and she reported it to the Department of Public Safety.  DPS advised Ms. Delgado that nothing could be done except to obtain a new license.  In November and December of 1998, Ms. Delgado was on leave from her job due to medical problems related to pregnancy.  Appellant was not working at the time because he had undergone surgery on his knee.  Dr. Barnhill in Amarillo had performed the surgery in August of 1998.  Appellant could not drive for two to three months after the surgery.  In November, he began walking with the assistance of crutches and a knee brace.  Appellant began driving some in December but it caused his knee to swell and hurt.  Appellant was never gone overnight in December of 1998, and in fact, the Delgados had never been apart during their marriage.  In Ms. Delgado=s opinion, Appellant could not have driven for fourteen to fifteen hours, which is the approximate length of time for a round trip from Dumas to Fort Davis and back to Dumas.  The Delgados= previous phone number was (806)935-4172.  That number exactly matches the phone number given to Adams by the driver on December 5, 1998, and recorded on the citation.

The jury rejected Appellant=s alibi and mistaken identity defenses and found him guilty of both counts.  The trial court=s judgment reflects that Appellant waived his right to a jury and had his trial before the court.  Elsewhere in the judgment, it recites the jury=s verdict in each count.  The record verifies that the case was tried by a jury.  Therefore, we reform the judgment to reflect that Appellant did not waive his right to a jury, he entered his plea of not guilty before the jury selected to hear his case, and the jury heard the evidence in his case.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his sole point of error, Appellant contends that he was denied the effective assistance of counsel at trial.  He complains that trial counsel failed to object to two instances of cross-examination, and to the prosecutor=s final argument.

Standard of Review

A defendant is entitled to Areasonably effective assistance.@  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991).  However, a defendant is not entitled to errorless counsel or counsel whose competency is judged by hindsight.  Stafford, 813 S.W.2d at 506; Calderon v. State, 950 S.W.2d 121, 126 (Tex.App.--El Paso 1997, no pet.).  The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two‑step analysis adopted by the United States Supreme Court in Strickland v. Washington.  See Hernandez v. State, 988 S.W.2d 770, 771‑72 (Tex.Crim.App. 1999).  Under the first prong, the defendant must show that counsel=s performance was deficient, to the extent that counsel failed to function as the Acounsel@ guaranteed by the Sixth Amendment.  Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994).  The defendant must demonstrate that his attorney=s representation fell below an objective standard of reasonableness under prevailing professional norms.  Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Under the second prong, the defendant must establish that counsel=s deficient performance prejudiced the defense.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d at 771.  Prejudice is established by a showing that there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different.  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771; Hernandez v. State, 726 S.W .2d 53, 55 (Tex.Crim.App. 1986).  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771.

Under the Strickland test, the appellant bears the burden of proving ineffective assistance by a preponderance of the evidence.  Jackson, 877 S.W.2d at 771; Calderon, 950 S.W.2d at 126.  Allegations of ineffectiveness of counsel must be firmly founded in the record.  Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983); Calderon, 950 S.W.2d at 126.  When a claim of ineffective assistance of trial counsel is reviewed by this Court, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable, professional assistance and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy.  Jackson, 877 S.W.2d at 771; Calderon, 950 S.W.2d at 126.  An appellant challenging trial counsel=s performance therefore faces a difficult burden and Aa substantial risk of failure.@  See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).  In the absence of a record demonstrating the basis for trial counsel=s action or inaction, a defendant will rarely be able to rebut the presumption that counsel=s action or inaction constituted reasonable trial strategy.  See Thompson, 9 S.W.3d at 814.

Impeachment with Post-Arrest Silence

Appellant argues that trial counsel was ineffective because she opened the door to admission of evidence regarding post-arrest silence and she failed to object when the prosecutor questioned Appellant about whether he told the Dumas police officers who initially arrested him or any other law enforcement officer that they had arrested the wrong man.  When a criminal defendant takes the witness stand, he may be cross‑examined and impeached as any other witness.  Cisneros v. State, 692 S.W.2d 78, 83 (Tex.Crim.App. 1985); Miller v. State, 939 S.W.2d 681, 687 (Tex.App.‑-El Paso 1996, no pet.).  The defendant may be Aimpeached, contradicted, made to give evidence against himself, cross‑examined as to new matters, and treated in every respect as any other witness testifying in his behalf.@  Miller, 939 S.W.2d at 687, quoting Cuellar v. State, 613 S.W.2d 494, 495 (Tex.Crim.App. 1981).  However, this general rule is qualified by any overriding constitutional or statutory prohibitions.  Cuellar, 613 S.W.2d at 495; Miller, 939 S.W.2d at 687.  It is well established that the State may not use post‑arrest, post‑Miranda silence to impeach or discredit an exculpatory theory, including a self‑defense claim, elicited for the first time at trial.  Miller, 939 S.W.2d at 687; see Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Cisneros, 692 S.W.2d at 84; Cuellar, 613 S.W.2d at 495.  A comment on a defendant=s post‑arrest silence violates the Fifth Amendment prohibition against self‑incrimination.  Doyle, 426 U.S. at 617‑18, 96 S.Ct. at 2244‑45. Further, the Texas Constitution precludes the introduction of post‑arrest, pre-Miranda silence.  Miller, 939 S.W.2d at 687.

During her direct examination of Appellant, trial counsel asked Appellant the following:

[Trial counsel]:  Okay.  When did you first become aware of the charges against you?

[Appellant]:  It was in -- that was in June of >99.

[Trial counsel]:  What happened?

[Appellant]:  Two policemen came by my house and told me they had a warrant out for my arrest.

[Trial counsel]:  Where was the warrant from?

[Appellant]:  Jeff Davis County.

[Trial counsel]:  Okay.  What, if anything, did you tell the policemen at that time?

[Appellant]:  I was surprised.  I mean, I was shocked that they came to my house and told me that.

[Trial counsel]:  Did you tell them --

[Appellant]:  They told me -- they told me that they had a warrant out for my arrest because of some marijuana in Jeff Davis County.

[Trial counsel]:  Okay.  And did they instead arrest you?

[Appellant]:  They did.

During cross-examination, the prosecutor pursued this line of questioning with Appellant, asking whether he had ever told law enforcement that they Agot the wrong guy.@  Initially, Appellant could not recall that he had ever done that, and he eventually said that he had not.  Following a lunch break, however, Appellant testified that he had told the police officers in Dumas that they had arrested the wrong person.  Appellant explained he had not understood the earlier questions from either his attorney or the prosecutor.

It is debatable whether this case actually involves impeachment with post-arrest silence since Appellant gave conflicting testimony on the subject, but he eventually insisted that he did not remain silent when arrested.  Assuming the jury believed that Appellant made no protest when arrested, then the rules against impeachment with his silence are implicated.  However, since Appellant=s attorney raised this issue on direct examination, it was not error for the prosecutor to cross-examine him about it.  Counsel is not ineffective for failing to object to admissible evidence.  McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992)(holding that the failure to object to admissible evidence does not constitute ineffective assistance).

With respect to trial counsel opening the door to the prosecutor=s questioning of Appellant about his response when arrested, we also find that Appellant has failed to establish that trial counsel=s representation fell below an objective standard of reasonableness under prevailing professional norms.  Because Appellant did not file a motion for new trial raising his ineffective assistance of counsel claim, the record is silent with respect to trial counsel=s strategy in questioning Appellant about this subject.  Nevertheless, it is apparent from the record and the defensive theory employed consistently throughout this trial that counsel anticipated Appellant would testify that he told the officers they had arrested the wrong person.  This testimony bolsters Appellant=s mistaken identity defense.  Therefore, we find that Appellant has not rebutted the presumption that his attorney=s actions were based upon reasonable trial strategy.

Comment on Defense=s Failure to Subpoena Witnesses

Appellant next asserts that his attorney erred in failing to object when the State cross-examined Ms. Delgado about the other witnesses who saw Appellant in Dumas on December 5, 1998, but who had not been subpoenaed by the defense to testify.  The prosecutor also raised this issue in final argument without objection from counsel.  Appellant argues that the cross-examination and the prosecutor=s argument violates his right under the Fifth Amendment to not be compelled to present evidence.  It is well established that the State may comment in argument on the failure of a defendant to call competent and material witnesses, and may even argue that the reason for the failure was the defendant=s knowledge that the testimony would be unfavorable.  Albiar v. State, 739 S.W.2d 360, 362‑63 (Tex.Crim.App. 1987); Carrillo v. State, 566 S.W.2d 902, 912 (Tex.Crim.App. [Panel Op.] 1978).  If this is a proper subject for comment, then it follows that the State may also cross-examine a witness about the other witnesses who could have testified but who had not been subpoenaed by the defense to do so.  Counsel did not provide inadequate representation by failing to object to this admissible evidence.  See McFarland, 845 S.W.2d at 846.  Appellant=s sole point of error is overruled.  The judgment of the trial court, as reformed elsewhere in this opinion, is affirmed.

July 25, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)