Jose Antonio Rodgriquez v. State

Opinion

Affirmed and Memorandum Opinion filed July 13, 2006

Affirmed and Memorandum Opinion filed July 13, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00875-CR

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JOSE ANTONIO RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 987,749

M E M O R A N D U M   O P I N I O N

Jose Antonio Rodriguez appeals a conviction for aggravated assault with a deadly weapon^[1] on the grounds that: (1) the trial court erred in finding a child witness competent to testify; and (2) appellant was denied effective assistance of counsel.  We affirm.

Appellant=s first issue contends that the trial court erred in finding a child witness competent to testify because selected portions of her testimony could suggest that she did not understand her obligation to be truthful.^[2]  Texas Rule of Evidence 601 provides that: 

Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules:

*          *          *

(2) Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.

Tex. R. Evid. 601(a)(2).  A trial court=s ruling on whether a child is competent to testify is reviewed for abuse of discretion.  See Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995).  However, to preserve a complaint for review on appeal, a party must timely and specifically object in the trial court and secure an adverse ruling.  See Tex. R. App. P. 33.1; see also Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004).  In this case, we have not been directed to, nor have we found, any objection in the record by appellant to the competency of the child=s testimony or the lack of an adequate determination of that at trial.  In addition, appellant has cited no authority that preservation of such a complaint is not required.  Accordingly, this issue presents nothing for our review and is overruled.

Appellant=s second issue complains that he was denied the effective assistance of counsel because his trial counsel failed to call appellant=s physician to testify regarding his alleged mental illness as a mitigating factor during the punishment phase of trial.

A defendant=s right to effective assistance of counsel is denied where a defense attorney=s performance falls below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different.  Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004), cert. denied, 543 U.S. 1059 (2005).  To show the requisite harm from a defense attorney=s failure to contact or call a mitigation witness, a defendant must demonstrate that a particular witness was available to testify and that this testimony would have been beneficial.  See Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App. 2005).

Here, the only such potential witness identified by appellant is Ramon A. Laval, Ph.D., who, by order of the court, examined appellant prior to trial and determined that he was both competent to stand trial and legally sane at the time of the offense.  However, appellant cites nothing in our record that indicates that Dr. Laval was available to testify, or that his testimony would have been beneficial to appellant.^[3]  Under these circumstances, appellant=s second issue does not demonstrate either deficient performance by his attorney or prejudice.  Accordingly, appellant=s second issue is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 13, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

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

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^[1]           A jury found appellant guilty, found the enhancement paragraphs true, and assessed punishment at 40 years confinement.

^[2]           However, when reviewing a trial court=s determination of competency, we examine the witness=s entire testimony.  Fields v. State, 500 S.W.2d 500, 503 (Tex. Crim. App. 1973).

^[3]           Appellant cites Miller v. Dretke in support of his ineffectiveness claim.  See Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005).  In Miller, the record contained: (1) a motion for new trial, including letters from various doctors regarding Miller=s mental condition; and (2) Miller=s state habeas corpus petition, attached to which was an affidavit from her trial attorney stating that he should have interviewed and called Miller=s doctors as mitigation witnesses.  Id. at 359.  Here, however, we have no such evidence from which we may determine prejudice.  See Bone v. State, 77 S.W.3d 828, 837 (Tex. Crim. App. 2002).