Eduardo Carlos Ortega v. State

• Court: Court of Appeals of Texas
• Decided: November 17, 2015
• Docket: 07-14-00045-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-14-00045-CR ________________________

EDUARDO CARLOS ORTEGA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 154th District Court Lamb County, Texas Trial Court No. DCR-4899-12; Honorable Felix Klein, Presiding

November 17, 2015

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Following a plea of not guilty, Appellant, Eduardo Carlos Ortega, was convicted

by a jury of murder1 with an affirmative finding on use of a firearm. Punishment was

assessed by the jury at confinement for life plus a $10,000 fine. By three issues,

Appellant questions whether (1) trial counsel was ineffective when he failed to preserve

error and move for mistrial based on alleged juror misconduct, (2) the trial court erred in

1 TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). admitting prejudicial and gruesome crime scene and autopsy photos into evidence,2 and

(3) his constitutional right to a complete and adequate record on appeal was violated.

We affirm.

BACKGROUND

Appellant returned home to his apartment from drinking with his friends to find his

girlfriend, Ashley, and her young daughter sleeping on the couch. He and Ashley

engaged in an altercation. Appellant proceeded to the bedroom and Ashley followed. A

fight broke out and Ashley was shot in the head. Appellant fled on foot to his mother’s

house, and Ashley’s daughter ran to her maternal grandmother’s house a few blocks

away to report that her mother had been shot. Ashley’s mother drove to the apartment

and found Ashley on the bedroom floor where she tried to wake her. With no success

at reviving Ashley, her mother called 911.

That same evening, Appellant called 911 from his mother’s house to request an

ambulance for himself for a gunshot wound to his index finger. He reported that Ashley

had shot herself.

Appellant was arrested at his mother’s house. During an interview with police, he

admitted he had stolen the gun from his father. He gave inconsistent statements during

an interview with a Texas Ranger and stated he shot Ashley by accident.

2 This is how issue two is presented in Appellant’s Table of Contents. However, in the Issues Presented portion of his brief, Appellant’s second issue questions whether “trial counsel provided ineffective assistance because he failed to investigate the facts surrounding possible jury misconduct.” In his Summary of Argument and Argument portions of his brief, Appellant does not present any argument or authorities contesting the trial court’s admission of crime scene and autopsy photos. Consequently, any challenge to the admission of the photos is not presented for review. TEX. R. APP. P. 38.1(h), (i).

2 Notwithstanding his version of the events, he was charged with and convicted of

murder.

ISSUES ONE AND TWO

Appellant frames issues one and two as assertions of ineffective assistance of

counsel in failing to preserve error concerning potential juror misconduct and failing to

investigate potential juror misconduct. He claims the jurors had an outside influence.

A claim of ineffective assistance of counsel is governed by the familiar framework

of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). To prevail, a defendant

must show that counsel’s performance was deficient and that this deficient performance

prejudiced his defense. Id. Trial counsel’s performance is deficient if it is not within the

range of competence demanded of attorneys in criminal cases as reflected by prevailing

professional norms, and courts indulge in a strong presumption that counsel’s conduct

was not deficient. Id. at 307-08. A defendant suffers prejudice if there is a reasonable

probability that, absent the deficient performance, the outcome would have been

different. Id. at 308. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id. It is a rare case in which the trial record will by itself be

sufficient to demonstrate an ineffective-assistance claim. Id.

On day two of the trial, the trial judge entered the jury room during the lunch

recess and observed a copy of the local newspaper with a headline about Appellant’s

case. The trial judge convened the parties and outside the jury’s presence, announced

that the offending juror would be dismissed if that person had read the article. Defense

3 counsel threatened to move for mistrial. The jury was then brought in to determine who

had brought the newspaper into the jury room. Juror Duggan acknowledged leaving the

newspaper in the jury room but claimed he avoided reading the article after seeing the

picture. The remaining jurors and alternate were each polled about whether they had

read the article or any other form of media. All denied having done so. The jurors were

admonished to take the trial court’s instructions seriously and the proceedings

continued.

Before evaluating whether trial counsel’s performance was ineffective as

asserted by Appellant, it is first necessary to determine whether juror misconduct indeed

occurred and, if so, was it harmful to Appellant. Whether juror misconduct occurs

during trial is a question of fact for the trial court. Bogue v. State, 204 S.W.3d 828, 829

(Tex. App.—Texarkana 2007, pet. ref’d). To constitute juror misconduct, there must be

an “outside influence” brought to bear on the jury’s verdict. Id. at 830. Generally

speaking, while reading a newspaper article concerning a trial might constitute a

violation of the court’s instructions, it is not an “outside influence” unless it is introduced

into the jury’s consciousness by someone outside the jury, with the intent to affect the

verdict. King v. Bauer, 767 S.W.2d 197, 198 (Tex. App.—Corpus Christ 1989, writ

denied).

In this case, the trial court conducted an investigation and determined that the

incident did not constitute an outside influence of the jurors. All jurors denied having

read the article about Appellant’s case in the newspaper and the trial court found no

juror misconduct. Without an outside influence having occurred, trial counsel’s

4 performance in that regard cannot be characterized as deficient or ineffective by failing

to move for mistrial or investigate the matter further. Issues one and two are overruled.

ISSUE THREE

In briefing his third issue, Appellant argues “it appears that the Reporter’s Record

is incomplete to the issue of juror’s misconduct” and concludes in a three-sentence

paragraph, “Appellant does not believe he has sufficient evidence to argue this point.”

Notwithstanding that the issue is inadequately briefed, TEX. R. APP. P. 38.1(i); Lucio v.

State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011), the State supplemented the

reporter’s record with a five-page transcription of the missing portion which reflects the

trial judge polling jurors on whether they had read any media accounts of Appellant’s

trial. In as much as Appellant has not demonstrated that his constitutional right to a

complete record was violated, issue three is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle Justice

Do not publish.