Marcos Flores v. State

• Court: Court of Appeals of Texas
• Decided: April 21, 2011
• Docket: 14-09-00844-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 21, 2011.

In The

Fourteenth Court of Appeals

___________________

NO. 14-09-00844-CR

Marcos Flores, Appellant

V.

THE State of Texas, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 48,698

MEMORANDUM OPINION

            Appellant Marcos Flores was convicted of aggravated robbery, and asks us to reverse his conviction on the ground that he received ineffective assistance of counsel.  Because appellant has not overcome the presumption that his trial counsel acted pursuant to a sound trial strategy, we affirm.

I.  Background

            On August 10, 2007, Mahesh Markanti was robbed as he worked at a cellular telephone store in Richmond, Texas.  The perpetrator had come to the store earlier that day and spoken with Ana Alvarez, another store employee, and with Markanti.  When Alvarez left the store to make a bank deposit, the same man returned.  After asking Markanti to show him some telephones and accessories, the man hit Markanti repeatedly in the face, then pointed a gun at him and demanded money.  Markanti gave him the money from the store’s cash register, and the man demanded Markanti’s wallet as well.  Markanti complied, and the man left.

            Markanti called the police, and when they arrived, he described the perpetrator as a Hispanic male, between 5'10" and 6' tall, weighing 200 to 215 pounds, with no facial hair or visible tattoos.  Police additionally obtained the perpetrator’s palm print from a counter.  When Alvarez returned to the store, she also described the man who had been in the store earlier, and told police that he and his sister had been in the store at different times to pay bills.  Alvarez remembered only the woman’s first name, but told police that the owner of the gas station next door knew the man’s name, and a detective accompanied her to the gas station to ask.  The owner of the gas station gave the police a name, and with this information, police prepared a photo array of Hispanic males with similar appearances.  From this array, Alvarez identified appellant as the customer who had been in the store before the robbery, and Markanti identified appellant as the perpetrator.  The palm print obtained from the store also matched a print in appellant’s police file from an earlier arrest.

            The jury convicted appellant of the charged offense and assessed punishment to include a $1,000 fine and ten years’ confinement in the Texas Department of Criminal Justice, Institutional Division.  The trial court sentenced appellant in accordance with the jury’s verdict and credited him for the time he already had served. 

            In a single issue, appellant argues that he received ineffective assistance of counsel because his trial attorney (a) did not inform the jury during voir dire that an accused has a constitutional right to remain silent, and (b) asked an investigator when the Fort Bend County Sheriff’s Department made the copy of appellant’s fingerprints that were later compared to the prints taken from the scene. 

II.  Standard of Review

            We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  Under the Strickland test, an appellant must prove that his trial counsel’s representation was deficient and the deficient performance was so serious that it deprived the appellant of a fair trial.  Id. at 687, 104 S. Ct. at 2064.  To establish both prongs, the appellant must prove by a preponderance of the evidence that counsel’s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel’s deficiency, the result of the proceeding would have been different.  Id. at 690–94, 104 S. Ct. at 2066–68.  This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986) (en banc).  An appellant’s failure to satisfy one prong makes it unnecessary for a court to consider the other prong.  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. 

            Our review of defense counsel’s performance is highly deferential, beginning with the strong presumption that the attorney’s actions were reasonably professional and were motivated by sound trial strategy.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).  When the record is silent as to trial counsel’s strategy, we will not conclude that the appellant received ineffective assistance unless the challenged conduct was “‘so outrageous that no competent attorney would have engaged in it.’”  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  Usually, however, the lack of a clear record prevents the appellant from meeting the first part of the Strickland test because the reasonableness of counsel’s choices and motivations during trial can be proven deficient only through facts that do not normally appear in the appellate record.  Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).

            A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel.  See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).  “[I]solated instances in the record reflecting errors of omission or commission do not render counsel’s performance ineffective, nor can ineffective assistance of counsel be established by isolating one portion of trial counsel’s performance for examination.”  McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994) (en banc).  Moreover, “[i]t is not sufficient that the appellant show, with the benefit of hindsight, that his counsel’s actions or omissions during trial were merely of questionable competence.”  Mata, 226 S.W.3d at 430.  Rather, to establish that the attorney’s acts or omissions were outside the range of professionally competent assistance, a defendant must show that counsel’s errors were so serious that he was not functioning as counsel.  Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995) (en banc). 

III.  Analysis

A.        Voir Dire

            Appellant first contends that his trial counsel rendered ineffective assistance because during voir dire he did not discuss with the jury a defendant’s right to remain silent.  But see Goodspeed, 187 S.W.3d at 392 (“[W]e cannot conclude that the failure to ask any questions in voir dire constitutes conduct so outrageous that no competent attorney would have engaged in it.”).  He admits, however, that the trial court educated the jury about the right and specifically asked, “[I]s there any member of the panel here who would go beyond the desire to hear a defendant testify and require them to testify before you could fairly judge the case?”  No member of the panel responded. 

            Appellant does not explain why an attorney with a limited amount of time for voir dire should be required to discuss the same topics addressed by the trial court, and we decline to hold that the failure to do so cannot be justified by any legitimate trial strategy.  See Williams v. State, 970 S.W.2d 182, 184 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (“In light of the trial judge’s extensive participation in the voir dire examination, we cannot characterize the decision of [appellant’s] counsel to forego further questioning as anything other than trial strategy.”). 

B.        Date of Fingerprinting

            Appellant next argues that his trial counsel rendered ineffective assistance because he asked crime scene investigator Deborah Smith when the prints were taken that were compared to the latent prints left at the crime scene.  Smith responded, “It states they were taken 9-15-06.”  This date was eleven months before the charged offense occurred.  Appellant contends that his counsel should not have asked the question because Smith’s answer alerted the jury that appellant “had prior unfavorable contact with law enforcement.”

            Because trial counsel’s motivation for asking this question is not stated on the record, we must assume a strategic motivation if any possibly can be imagined.  See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see also Ex parte Ellis, 233 S.W.3d 324, 331 (Tex. Crim. App. 2007) (“Although the defensive course chosen by counsel was risky, and perhaps highly undesirable to most criminal defense attorneys, we cannot say that no reasonable trial attorney would pursue such a strategy under the facts of this case.”).  Here, a strategic motivation is not only imaginable, but is suggested by the appellant’s own arguments.  According to appellant, his defense at trial was that the complainant misidentified him, because the complainant described an assailant without facial hair or visible tattoos.  In support of the theory that appellant had facial hair and a visible tattoo on the date of the offense, trial counsel relied on material from the record of appellant’s arrest on September 15, 2006 in a unrelated matter.  Appellant does not contend that his attorney rendered ineffective assistance by eliciting testimony from one investigator that appellant was arrested on September 15, 2006, and he does not explain his position that his attorney behaved outrageously by eliciting less damaging testimony from a different investigator that appellant was fingerprinted that day.    

            In sum, appellant has not overcome the strong presumption that under the circumstances—which include evidence identifying appellant as the perpetrator by name, description, and a palm print taken from the scene—his attorney’s conduct might be considered sound trial strategy.  We therefore overrule appellant’s sole issue on appeal and affirm the trial court’s judgment.

                                                                        /s/        Tracy Christopher

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Frost and Christopher.

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