Gilbert Mireles Sylva v. State

Opinion

NUMBER 13-01-139-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GILBERT MIRELES SYLVA,                                                       Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.

On appeal from the 156th District Court of Bee County, Texas.

O P I N I O N

Before Justices Hinojosa, Yañez, and Garza

Opinion by Justice Yañez

          In three issues, appellant, Gilbert Sylva, challenges his conviction for intoxication assault and aggravated assault with a deadly weapon. We reform the trial court’s judgment, and affirm, as reformed.

Background

          Late in the evening of September 1, 2000, Sylva was involved in a car accident with a car full of teenage girls. He was driving his truck, with wide wheel wells and double-tires on the rear, home from work on FM-673, a narrow two-lane road without shoulders. Earlier in the evening, he drank two beers with dinner and three more at a bar. The girls were traveling in a caravan of cars to a friend’s ranch. The accident occurred on FM-673, just north of Beeville in Bee County.

          According to eyewitnesses, Sylva swerved into the oncoming lane of traffic and struck the girls’ car. Sylva alleges that the first or second car in the caravan crossed the center line into his lane, which forced him to take evasive action to the right. He further alleges that his truck was hit by the third car, the girls’ car, in his lane, as their driver was trying to avoid the other car’s erratic movements. Three-and-a-half hours after the accident, Sylva’s blood alcohol level was measured at 0.18.

          One of the passengers in the girls’ car, a seventeen-year-old high school senior, suffered serious bodily injuries. She suffered scalp, face, and hand lacerations. In a five-and-a-half hour surgery, she received ten staples on the top of her head and 1,000 stitches in her face.

          On January 12, 2001, the jury found Sylva guilty of intoxication assault and aggravated assault with a deadly weapon. The jury assessed punishment at ten years confinement for intoxication assault and twenty years confinement for aggravated assault with a deadly weapon.

Analysis

          In his first issue, Sylva contends his conviction, for both intoxication assault and aggravated assault growing out of a single car accident with a single victim, violates the Fifth Amendment’s protection against double jeopardy. The State concedes this issue.

          The Court of Criminal Appeals has held that intoxication manslaughter and manslaughter are the same offense for double jeopardy purposes in a case involving a single car accident with a single victim. See Ervin v. State, 991 S.W.2d 804, 817 (Tex. Crim. App. 1999). The Fort Worth Court of Appeals subsequently held that intoxication assault and aggravated assault are also the same offense for double jeopardy purposes when they involve the same victim. See Burke v. State, 6 S.W.3d 312, 316 (Tex. App.–Fort Worth 1999), vacated on other grounds, 28 S.W.3d 545 (Tex. Crim. App. 2000).

          Here, appellant was convicted of intoxication assault and aggravated assault in a case involving the same accident and victim. We follow the analysis of the two cases cited above to hold that intoxication assault and aggravated assault in a case involving the same accident and victim are the same offense for double jeopardy purposes.

          When a defendant is convicted in a single criminal action of two offenses that are the same for double jeopardy purposes, the remedy is to vacate one of the convictions. See Landers v. State, 957 S.W.2d 558, 559 (Tex. Crim. App. 1997) (citing Ball v. United States, 470 U.S. 856, 864-65 (1985)); see also Moreno v. State, 1 S.W.3d 846, 864 (Tex. App.–Corpus Christi 1999, pet. ref’d). We must determine which conviction to vacate.

          The Court of Criminal Appeals has held that the general provision, aggravated assault, does not give way to the special provision, intoxication assault, because the two offenses are not in pari materia, meaning they do not share a common purpose and are not intended to be construed together. Burke v. State, 28 S.W.3d 545, 546-49 (Tex. Crim. App. 2000). We are left with the “most serious punishment” test. See Landers, 957 S.W.2d at 560; see also Moreno, 1 S.W.3d at 864. While one of the offenses in both the Landers and Moreno cases was the lesser-included of another, unlike the two offenses here, it is apparent that the “most serious punishment” test is not limited to such a situation. See Landers, 957 S.W.2d at 560. The test “requires retaining the offense with the most serious punishment and vacating any remaining offenses that are the ‘same’ for double jeopardy purposes.” Id. “The ‘most serious punishment’ is the longest sentence imposed.” Id. Thus, the most serious punishment is the twenty-year sentence for aggravated assault. We sustain appellant’s first issue. Accordingly, we vacate the judgment and ten-year sentence for intoxication assault.

          In his second issue, Sylva contends he was denied effective assistance when trial counsel failed to request a charge on causation. We disagree.

          Strickland v. Washington, 466 U.S. 668 (1984), sets forth the standard of review for effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Strickland requires a two-part inquiry. Id. The defendant must first show that counsel’s performance was deficient, in that it fell below an objective standard of reasonableness. Id. Second, the defendant must further prove there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

          The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating the effectiveness. Id.

          The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. at 813. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. See Davis v. State, 930 S.W.2d 765, 767 (Tex. App.–Houston [1st Dist.] 1996, pet. ref’d). To defeat the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

          Given the standard of review for ineffectiveness of counsel, appellant has not met his burden to prove trial counsel’s representation fell below an objective standard of reasonableness and the deficient performance prejudiced his defense. Here, the record reflects counsel did not pursue the defense that another driver was the sole cause of the accident. However, considering eyewitnesses testified as to appellant swerving into oncoming traffic, seeking an instruction on sole causation and presenting the defense to the jury could have been seen as less than credible. Thus, the evidence is not sufficient to rebut Strickland’s presumption that the challenged action of trial counsel was the result of “sound trial strategy.” Strickland, 466 U.S. at 689. Appellant’s second issue is overruled.

          In his third issue, Sylva contends the trial court erred by not granting a mistrial when the prosecutor asked him if he wanted to apologize to the family of the alleged victim during cross-examination of the guilt/innocence stage. We disagree.

          “The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (citing Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex. Crim. App. 1990)). “The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard.” Id. “A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of jurors.” Id. “A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard.” Id. (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993)).

          Here, the prosecutor twice asked appellant if he had anything to say in the way of an apology. Trial counsel for appellant objected on the ground of prejudice to the defense in each instance. The trial court sustained both objections. Trial counsel then requested an instruction to the jury to disregard the questions. The trial court granted the request and gave such an instruction to the jury. Finally, trial counsel moved for a mistrial, and the trial court denied the motion.

          As the Court of Criminal Appeals held in Ladd, we also discern no abuse of discretion in the trial court’s denial of a mistrial here. Id. The questions do not “suggest the impossibility of withdrawing the [prejudicial] impression produced on the minds of jurors.” Id. Appellant’s third issue is overruled.

          We reform the trial court’s judgment by vacating the intoxication assault conviction. As reformed, the judgment of the trial court is affirmed.

                                                               LINDA REYNA YAÑEZ

                                                                           Justice

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

Opinion delivered and filed this the

8^th day of January, 2004.