Fabila, Alberto v. State

• Court: Court of Appeals of Texas
• Decided: February 20, 2003
• Docket: 14-02-00202-CR
• Status: Published

Opinion

Affirmed and Opinion filed _____________, 2002

Affirmed and Opinion filed February 20, 2003.                                                          

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00202-CR

ALBERTO FABILA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

                                                           Harris County, Texas                      

Trial Court Cause No. 873,930

M E M O R A N D U M   O P I N I O N

A jury convicted appellant of aggravated assault on a public servant and assessed punishment at six years’ confinement.  The facts of this appeal are known to the parties, so we do not recite them here.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.1.  We affirm. 

Legal and Factual Sufficiency

            Appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction.  We apply the usual standards of review.  See Reyes v. State, 84 S.W.3d 633, 636 (Tex. Crim. App. 2002) (legal sufficiency); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (factual sufficiency).

Appellant points to several conflicts in the testimony given by Officers Gamboa and Gonzalez, appellant, and appellant’s friend Samuel Salazar; he argues these inconsistencies render the evidence insufficient.  But all the conflicts he cites concern the locations of appellant, the officers, and several other men involved in the altercation before appellant drew his gun, matters that have little relevance to whether appellant drew his gun and pointed it at Officer Gamboa.  It is true the testimony of appellant and Gamboa conflicted on this latter point, and on whether Gamboa’s finger injury was caused by a bullet or ejected shell-casing from the gun.  But he does not indicate why the jury had to believe one rather than the other.  A jury is entitled to accept one version of the facts and reject another.  See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  Thus, we find the evidence was both legally and factually sufficient to support appellant’s conviction, and overrule his first two points of error.

Hearsay

            In his third point of error, appellant contends the trial court erred in overruling his hearsay objection to the rebuttal testimony of Officer Javier Avila, who testified that appellant’s friend Salazar told him the appellant pulled out his pistol and said “what’s the matter, I don’t owe you anything” to Gamboa.  Defense counsel objected on numerous grounds, one of which was hearsay.

            The State does not attempt to justify admission on the basis of any hearsay exception.  Assuming admission was error, we may reverse on this basis only if appellant’s substantial rights were affected.  Tex. R. Evid. 103(a).  We think they were not.  At trial, appellant admitted drawing his gun, and Gamboa, Avila, and Salazar testified appellant asked Gamboa why he was interfering in the altercation.  In these circumstances the admitted statement could have only a slight or no influence on the jury’s verdict.  See Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002).  We overrule appellant’s third point of error.

Ineffective Assistance of Counsel

            In his final point of error, appellant argues trial counsel’s closing argument at the punishment phase of the trial rendered him ineffective.  To prove ineffective assistance, appellant must demonstrate both objectively deficient performance by his attorney and a reasonable probability of prejudice.  Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064–65 (1984); Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

The prosecutor argued during closing arguments that probation “is not for somebody that intentionally and knowingly tries to kill a uniformed Houston police officer.”  Appellant’s counsel began his closing immediately thereafter by arguing the State did not truly believe that is what happened because, in that case, appellant would have been charged with attempted capital murder.[1]  We disagree with appellant that the argument can reasonably be construed that counsel was suggesting appellant was guilty of attempted capital murder.  Instead, it is a perfectly logical argument, and thus falls within the zone of reasonable trial strategy.  See Strickland, 466 U.S. at 694.   Thus, we overrule appellant’s final point of error.

The judgment is affirmed.

                                                                        ____________________________                                                                                             Scott Brister

                                                                        Chief Justice

Judgment rendered and Opinion filed February 20, 2003.

Panel consists of Chief Justice Brister and Justices Edelman and Seymore.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] [Defense Counsel]:            With all due respect to both families, the charge for trying to kill -- intentionally and

knowingly trying to kill a police officer is called attempted capital murder.

  [The Prosecutor]:               Objection.

  [The Court]:                        I’ll overrule that objection.

  [Defense Counsel]:            That’s the law.  The law says the charge for trying, intentionally and knowingly, to kill a Houston police officer, or any other public servant, is attempted capital murder.

  [The Prosecutor]:               Objection.  Improper argument.

  [The Court]:                        I’m going to sustain the objection in that it’s outside the record.  You may proceed.

  [Defense Counsel]:            You have by your verdict convicted Alberto Fabila of the charge of aggravated assault on a police officer.