Lopez, Roberto Miguel v. State

• Court: Court of Appeals of Texas
• Decided: February 5, 2004
• Docket: 14-02-01025-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed February 5, 2004

Affirmed and Memorandum Opinion filed February 5, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-01025-CR

ROBERTO MIGUEL LOPEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 855,269

M E M O R A N D U M   O P I N I O N

The jury found appellant guilty of capital murder and the trial court assessed punishment at confinement in the Texas Department of Justice, Institutional Division, for life.  In a single point of error, appellant contends he was denied effective assistance of counsel because his trial counsel failed to object to the introduction of an extraneous offense.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 10, 2000, Emir Alvarez was at his apartment with Oscar Alvarez and Rigoberto Navarro.  Around 3:00 a.m., there was a knock on the door and Oscar answered it.  Some individuals yelled Apolice@ and attempted to force their way into the apartment.

Emir ran to his bedroom to get his pistol.  When Emir returned to the living room, he saw Oscar and Rigoberto struggling with two men, both of whom were armed with pistols.  One of the intruders fired his pistol at Emir, who ran for cover and returned fire.  The other intruder fired his pistol at Oscar and Rigoberto. 

The two intruders fled the apartment, along with two other men who had remained outside the apartment.  Emir followed them from a distance but then lost sight of them.  When he returned to the apartment, both Oscar and Rigoberto were lying on the sofa.  Rigoberto had already died and Oscar died approximately twenty minutes later.

An emergency medical technician called to the apartment in response to the shooting observed appellant lying in the parking lot with a gunshot wound to his abdomen.  Appellant was transported to a hospital.

The next day Emir went to the Houston Police Department.  He identified a photograph of appellant as the intruder who fired at him, and he identified a photograph of Emilio Rubio as the intruder who fired at Oscar and Rigoberto.

Appellant was indicted for the murders of Oscar and Rigoberto during the course of the same criminal transaction.  The jury found appellant guilty of capital murder.  Because the State did not seek the death penalty, the trial court assessed punishment at confinement in the Texas Department of Justice, Institutional Division, for life.

ANALYSIS

In a single issue, appellant contends he was denied effective assistance of counsel because his trial counsel failed to object to the introduction of an extraneous offense.  He had introduced a witness statement Emir filed with the Houston Police Department.  The statement included testimony that, AI believe one of the tall black males who entered my apartment on this date is the same male who assaulted me in the past.@  This statement referred to an aggravated robbery which had occured in Alvarez=s apartment two and one-half months earlier.  The State advised the court that it intended to ask Alvarez whether appellant was the man involved in the prior robbery.  Appellant=s trial counsel began to object, but then withdrew the objection.^[1]

To prove ineffective assistance of counsel, a defendant must show that (1) counsel=s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 694 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995).  When reviewing a claim of ineffective assistance of counsel, we must give much deference to trial counsel and presume counsel made all significant decisions in the exercise of reasonable professional judgment.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  An allegation of ineffectiveness must be firmly founded in the record.  Thompson, 9 S.W.3d at 813.  Except in rare cases, a claim of ineffective assistance must be brought by application for writ of habeas corpus rather than direct appeal; this is to develop the facts and allow trial counsel to explain his actions.  See Robinson v. State, 16 S.W.3d 808, 813 (Tex. Crim. App. 2000).  Failure to object to admissible evidence does not constitute ineffective assistance of counsel.  See Gosch v. State, 829 S.W.2d 775, 784 (Tex. Crim. App. 1991).

Although evidence of an extraneous offense is not admissible to prove character conformity, it may be admissible for other purposes, including proof of identity.  Tex. R. Evid. 404(b).   Impeachment on cross-examination of the State=s only identifying witness can raise the issue of identity.  Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985).  Even if evidence of an extraneous offense is improperly admitted in the State=s case-in-chief, the error can subsequently be rendered harmless if the defense raises the issue of identity.  Id.  Appellant raised the issue of identity by denying that he shot anyone in Emir=s apartment, by denying that he knew Rubio, his co-defendant, and by giving alibi testimony that he was purchasing marijuana at a different apartment at the time of the shootings.

Merely raising the issue of identity does not render evidence of an extraneous offense admissible, however.  See Johnson v. State, 68 S.W.3d 644, 650B51 (Tex. Crim. App. 2002).  In order to be admissible to establish identity, Aan extraneous offense must be so similar to the charged offense as to mark the offenses as the defendant=s handiwork.@  Id. In determining the similarity of the offenses, we take into account both the characteristics of the individual offenses and the time interval between them.  Id. at 651.

In both the extraneous offense and the charged offense, the intruders forced their way into Emir=s apartment after the door was opened by an occupant, brandished firearms, and assaulted the occupants.  Each offense occurred late at night and approximately three days after Emir and his wife had won several thousand dollars in a Atanda@ (a savings club in which participants withdraw the entire savings pool in an order determined by lottery).  The offenses occurred about two and one-half months apart.  Further, unlike most instances when the State seeks to introduce evidence of extraneous offenses, both the extraneous offense and the charged offense were witnessed by the same person, Emir.  Admission of the extraneous offense to establish identity was not an abuse of the trial court=s discretion.  See Lane v. State, 933 S.W.2d 504, 518 (Tex. Crim. App. 1996).

Even if this evidence was inadmissible, appellant has also not demonstrated that his counsel=s performance fell below an objective standard of reasonableness.  The record includes only trial counsel=s statement that, AAs far as the admissibility of the extraneous, I believe that with the entire report, the statement that he gave us in evidence, it=s there.  So I don=t have an objection to it, Judge, except forCwell, she can ask him and we=ll go through it, Judge.@  This statement fails to show the reasoning behind trial counsel=s actions and we will not speculate as to trial counsel=s reasoning.  Thus, appellant has failed to rebut the strong presumption that trial counsel=s conduct fell within the range of reasonable professional assistance.  See Thompson, 9 S.W.3d at 813.  Appellant=s point of error is overruled.

The judgment of the trial court is affirmed.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed February 5, 2004.

Panel consists of Justices Yates, Hudson, and Fowler.

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

---

^[1]  Appellant=s trial counsel=s full statement was:

Judge, my objection would be that I don=t believe that onCthat he has said that he has identified one of these people.  He said in a statement that he believes that one of the people that assaulted him in the past was a tall and skinny black male.  That=s my objection.  Not that these people, but a tall, black, skinny male assaulted him in the past.

And as far as the rest of it, for the record, Judge, I will object to the rest of the entire statement coming in as far asCwell, for her to cross-examine himCI withdraw my objection, Judge.  As far as the admissibility of the extraneous, I believe that with the entire report, the statement that he gave us in evidence, it=s there.  So I don=t have an objection to it, Judge, except forCwell, she can ask him and we=ll go through it, Judge.