Santos Guardiola v. State

• Court: Court of Appeals of Texas
• Decided: July 20, 2006
• Docket: 13-05-00167-CR
• Status: Published

Opinion

                             NUMBER 13-05-00167-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

SANTOS GUARDIOLA,                                                                    Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 347th District Court of Nueces County, Texas.

                       MEMORANDUM OPINION

               Before Justices Hinojosa, Rodriguez, and Garza

                         Memorandum Opinion by Justice Hinojosa

A jury found appellant, Santos Guardiola, guilty of four counts of aggravated sexual assault of a child, and assessed his punishment at twenty-eight years= imprisonment for each count.  In two issues, appellant contends that (1) the prosecutor=s closing argument during punishment phase was improper, and (2) his trial counsel was ineffective for failing to object to the prosecutor=s improper argument.  We affirm.

In his first issue, appellant contends that the prosecutor=s closing argument during the punishment phase of the trial was improper because it encouraged the jury to consider the effect of the parole law on sentencing.  Specifically, appellant complains of the following comments made by the prosecutor:           

Prosecutor:                The defense attorney cannot come up here and tell you how the parole law works.  Right now, the court put that in the charge, these things change every day.  Why?  The parole laws change all the time.  Our prisons, as you know, are full.  The Parole Board is completely at the discretion of the parole board when to let this guy out.

Defense Counsel:     Your Honor, I object. The one-half aggravated sexual assault is set by the legislature, not by the Parole Board.  That=s the minimum.

The Court:                  Okay.  Move on.

Prosecutor:                The Parole Board decides when he gets out, not the defense attorney.  And the legislature knows that these prisons are full and they know they can change B these laws change.  Who is to say that this is going to be the same way it is two years down the line.  He can=t say that.

Juries are not to consider, and attorneys may not argue, the application of parole law to a particular defendant.  Tex. Code. Crim. Proc. Ann. art. 37.07, ' 4(b) (Vernon 2005); Lagrone v. State, 942 S.W.2d 602, 619 (Tex. Crim. App. 1997) (listing the four permissible areas of argument).  However, to preserve a complaint for appellate review, the defendant must make his legal objection to the trial court, and the trial court must either rule on the objection, or the defendant must object to the trial court=s failure to rule on his objection.  Tex. R. App. P. 33.1.  Failure to pursue an objection to an adverse ruling forfeits a defendant=s right to complain about that error on appeal.  Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).  A[T]he most important procedure is to press the specific objection to the point of obtaining an adverse ruling.@  Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992).  General statements and comments by the trial court such as ACounsel, stay within the record, please,@ and ALet=s move along,@ are not considered adverse rulings.  See Cook v. State, 741 S.W.2d 928, 939 (Tex. Crim. App. 1987); Stevens v. State, 671 S.W.2d 517, 521 (Tex. Crim. App. 1984).

Although appellant=s counsel objected to the prosecutor=s argument in a timely manner, he failed to pursue his objection to an adverse ruling.  Because AOkay. Move on,@ is not an adverse ruling, we conclude appellant failed to preserve error for our review.  Appellant=s first issue is overruled.

In his second issue, appellant contends he received ineffective assistance of counsel during the punishment phase of the trial because counsel failed to pursue his objection to the prosecutor=s parole law argument to an adverse ruling.

A claim of ineffective counsel is judged by a two-prong test:  AFirst, the defendant must show that counsel=s performance was deficient . . . .  Second, the defendant must show that the deficient performance prejudiced the defense.@  Strickland v. Washington, 466 U.S. 668, 687 (1984); see Hernandez v. State, 988 S.W.2d 770, 774 (Tex. Crim. App. 1999) (applying the Strickland test for ineffectiveness of counsel to the punishment phase). To show deficiency of counsel, the appellant must show that his counsel=s performance deviated from the prevailing professional norms, and to show prejudice, the appellant must prove Athere is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.@  Strickland, 466 U.S. at 688-94.  The failure of the appellant to prove one prong of the test negates the need to consider the other prong. Id. at 697.

To prevail on a claim of ineffective assistance of counsel, the appellant bears the burden of proof to show by a preponderance of the evidence that Acounsel=s representation fell below an objective standard of reasonableness.@  Id. at 687-88; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  The United States and Texas Constitutions do not provide the right to Aerrorless counsel or counsel whose competency is judged by hindsight.@  Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).  Therefore, judicial scrutiny of the performance of trial counsel is highly deferential, and a strong presumption attaches that the trial counsel=s conduct fell within a wide range of professional conduct.  Strickland, 466 U.S. at 689.  To rebut this presumption, Athe record must contain evidence of counsel=s reasoning, or lack thereof.@  Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.BCorpus Christi 1999, pet. ref=d).  If the record is silent on the issue, the appellate court will not speculate on the reasons underlying the trial counsel=s actions.  Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). 

Appellant contends that trial counsel=s failure to pursue his objection to an adverse ruling deprived him of effective assistance of counsel during the punishment phase of the trial.  However, the record is silent on counsel=s reasons for failing to pursue his objection to an adverse ruling.

Because we have nothing before us from which to determine why counsel failed to pursue his objection to an adverse ruling, appellant=s allegations of ineffectiveness are not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness.  See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).  Accordingly, we hold that appellant has not sustained his burden of proving his ineffective assistance claim by a preponderance of the evidence.^[1]  Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

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

Memorandum Opinion delivered and filed

this the 20th day of July, 2006.

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^[1] Appellant is not foreclosed from presenting this claim via collateral attack by virtue of an application for post‑conviction writ of habeas corpus.  See Ex parte Nailor, 149 S.W.3d 125, 130‑31 (Tex. Crim. App. 2004); Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001).