Jacob Timothy Gallegos v. State ( 2009 )

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00606-CR

NO. 01-08-00607-CR

NO. 01-08-00608-CR

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JACOB TIMOTHY GALLEGOS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 1142177, 1142176, 1142175

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MEMORANDUM OPINION

Appellant, Jacob Timothy Gallegos, pleaded guilty, without an agreed recommendation from the State, to two second-degree felony offenses of intoxication manslaughter and to a third-degree felony offense of intoxication assault. The punishment hearing before the trial court resulted in a prison sentence of 20 years for each intoxication manslaughter case and ten years for the intoxication assault case, to run concurrently. In a single point of error, appellant contends that his trial counsel was ineffective during the punishment hearings for each of his convictions. We affirm.

Background Facts

On November 16, 2007, at approximately 10 p.m., appellant ran a red light at an intersection. He was driving "at least" 20 miles per hour over the speed limit when he collided with a vehicle carrying Scott Griffith, Carrie Cleaver, and Timothy Frazier. The impact of the vehicles was sufficient to eject one of the passengers, and one of the car's tires broke from its axle and landed 75 feet away. Griffith and Frazier died at the scene before police arrived. Cleaver suffered a traumatic brain injury, a collapsed lung, an aortic dissection, multiple breaks in her pelvis, nine broken ribs, and loss of her spleen.

Appellant contends that his trial counsel was ineffective during the punishment hearing because he did not challenge the admissibility of recorded telephone calls that appellant made from jail, which the State used to impeach appellant's testimony.

During cross-examination of appellant, the prosecutor asked appellant if he planned to pay the $4,000 in medical expenses incurred when appellant was hospitalized on the night of the accident. When appellant replied, "If I can, I will," the prosecutor asked if appellant remembered telling someone that he would never pay "any of that ever," and appellant stated, "If I'm locked up forever, how can I pay it?" The prosecutor then asked if appellant remembered saying "that they can kiss your ass?" After appellant denied saying that, the prosecutor asked appellant again if he remembered saying that, and then played an audio recording. ⁽¹⁾

At a later point in cross-examination, appellant replied to a question from the prosecutor by describing the accident as having "had a major effect" on his life, the prosecutor asked if appellant remembered describing the accident as "a minor setback" in his life. Appellant disagreed and replied that he had actually said that the accident was "a minor setback for a major comeback, meaning when I do get out that I would remain [sic] to do what I was doing before I got locked up, which is working." At that point, the following exchange occurred:

PROSECUTOR: So, the fact that you killed two people, and nearly killed Carrie Cleaver, but for the grace of the doctor [who] came in here and talked about saving only 20 percent of people that have that injury, that's a minor setback?

APPELLANT: No, that's a miracle.

PROSECUTOR: In fact, other people while you've been in jail have recognized what a tragedy it has been, and you still refuse to recognize it; isn't that true?

APPELLANT: No, I recognize it.

The prosecutor then played another audio recording. Appellant agreed that he was speaking to his "grandma" in the recording and that she understood "what a tragedy this is," whereupon the following exchange took place:

PROSECUTOR: And back when you were talking about probation, I'm going to get probation, but I don't want probation with a monitor because I want to still be able to drink; you were saying that too, right?

APPELLANT: Yes.

PROSECUTOR: But she was saying to you, you're not going to get probation. You've killed some people. She's the one that understands exactly what you did. But you didn't. You said all you lost is a car. Did you hear that?

DEFENSE COUNSEL: Judge, I withdraw it, Judge.

PROSECUTOR: Did you hear that?

APPELLANT: Yeah, I heard that.

PROSECUTOR: She said, no, you lost more than a car. You said, no big deal. I'll get another nice car.

APPELLANT: Because we were talking about my car.

The prosecutor then asked appellant if he remembered joking with a person identified as his "shoe contact," stating, "You guys were joking about the whole accident, like it's no big deal. Do you need me to play it?" This time appellant replied, "No," and the following exchange occurred:

PROSECUTOR: You were pretty impressed with that Mercedes Benz, weren't you?

APPELLANT: Yes, it was my first vehicle.

PROSECUTOR: And the fact that you wrecked it, when you were in jail, that's all you were thinking about. That's all you really thought about was, oh well, I wrecked my car, no big deal, right?

APPELLANT: Nope.

Then the prosecutor played an audio recording and, apparently quoting appellant's language on the record, asked the following:

"Yeah, I f------ up my car, but oh well." That's what you said. You remember that? Do you remember when [your wife] tells you you're not getting another nice car, and you start telling her about getting a Porsche, that's what you want next. You remember that?"

Appellant's counsel then stated a relevancy objection, but was overruled. After three intervening questions about appellant's being away from his son because he was in jail, the prosecutor asked appellant, "So if you could get out of jail for just one day, just one day, what would you do?" When appellant replied, "I'd spend time with my family," the prosecutor played the audio recording again, after which the following exchanges took place:

PROSECUTOR: So back when you were in jail - like up here, it's easy to say I'd spend time with my son. But when you're in jail telling the truth, you tell [appellant's wife] you'd rather go to the Jay-Z concert. If could get out of jail for one day, any day, Jay-Z is what you would want to go to do, right?

APPELLANT: It was on that night.

PROSECUTOR: So, I mean what type of father - you know, you heard [appellant's wife] and your mom say you're such a great father. What kind of father do you think you've been to him?

APPELLANT: Not a good father.

PROSECUTOR: You've taken out of his piggy bank before, right?

APPELLANT: I took out of his piggy bank to take care of stuff. And I put back in his piggy bank and then some.

[Audio recording played]

PROSECUTOR: So, [appellant's wife] reports that you had - he had $150 in his piggy bank[,] and now he's only got about 30 or 40 bucks left. What kind of drugs do you deal?

APPELLANT: I don't do any drugs.

PROSECUTOR: Didn't you ever deal drugs around [appellant's son]? Sir?

APPELLANT: Not that I recall.

[Audio recording played]

PROSECUTOR: [Appellant's wife] says, "I don't want you selling that

s--- around [appellant's son], but you did it anyways." You remember biting his finger and laughing about it? Sir?

APPELLANT: I do remember.

PROSECUTOR: What are you going to do when you get out of jail?

APPELLANT: Tend to my family.

[Audio recording played]

PROSECUTOR: Pass the witness.

Ineffective Assistance of Counsel at Punishment Hearing

A. Standard of Review

The "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984). Strickland establishes a two-part test for claims of ineffectiveness of counsel. First, the performance must be deficient to the level that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment; second, the defendant must show that the deficient performance prejudiced the defense. Id. 466 U.S. at 687, 104 S. Ct. at 2064. Counsel's errors must have been so serious as to deprive the defendant of a fair trial, and there is a reasonable probability that, but for the counsel's unprofessional errors, the result would have been different. Id., 466 U.S. at 694, 104 S. Ct. at 2068.

There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Id., 466 U.S. at 689, 104 S. Ct. at 2065. To overcome 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." Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). When determining the validity of an ineffective assistance of counsel claim, judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). When the record is silent as to the reasons for counsel's conduct, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd). When there are no explanations for specific decisions by counsel, the record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

"[W]hen no reasonable trial strategy could justify trial counsel's conduct," however, counsel's performance may fall below an objective standard of reasonableness as a matter of law, "regardless of whether the record adequately reflects trial counsel's subjective reasons for acting as he did." Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

But, even if a criminal defendant can prove trial counsel's performance was deficient, he must still affirmatively prove that he was prejudiced by counsel's actions under the second prong of the Strickland test. See Thompson, 9 S.W.3d at 812. This requires that the defendant demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  

B. Discussion

Appellant argues that his trial counsel should have (1) challenged the legality of the State's possession of the tape recordings, (2) objected to the recordings's being played without proper authentication, (3) inspected the tape recordings after they were played, ⁽²⁾ and (4) objected to the State's failure to follow proper procedure for impeaching a witness with a prior inconsistent statement.

Appellant did not move for a new trial. Therefore, there is no record of a hearing record at which trial counsel could explain why he did not object to the playing of the telephone recordings. When the record is silent regarding counsel's reasons for failing to do what the defendant contends should have been done, we should not find deficient performance 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). Appellant argues that his trial counsel's performance meets this standard. We disagree.

Appellant's contentions assert a multi-pronged challenge to the impeachment by the prosecutor with appellant's prior inconsistent statements contained in audio recordings made while appellant was in jail. Counsel does not render ineffective assistance by not objecting to evidence that is admissible. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992).

Well-settled law recognizes that statements made by an accused while incarcerated are admissible, on the grounds that an accused has no legitimate expectation of privacy, the loss of which is an inherent incident of confinement. State v. Scheineman, 77 S.W.3d 810, 812 (Tex. Crim. App. 2002) (citing Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S. Ct. 3194, 3200 (1984); Bell v. Wolfish, 441 U.S. 520, 537, 99 S. Ct. 1861, 1873 (1979)).

Likewise, rule 613(a) of the Rules of Evidence codifies common-law precedents that rendered a prior statement of a witness admissible if the statement conflicts with the testimony of the witness and the witness denies making the prior statement. Tex. R. Evid. 613(a); McGary v. State, 750 S.W.2d 782, 786 (Tex. Crim. App. 1988). Rule 613(a) also continues the common-law requirement that the proponent of the inconsistent statement must first inform the witness of the time and place of the statement and the person to whom the witness made the statement. Irizarry v. State, 916 S.W.2d 612, 616 (Tex. App.--San Antonio 1996, pet. ref'd). The prior statement is not admissible unless the witness denies making it, see Linder v. State, 828 S.W.2d 290, 299 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd), and the witness must have an opportunity to explain or deny the prior statement. Tex. R. Evid. 613(a). Rule 613(a) should be liberally construed to ensure that the trial judge has discretion to receive any evidence that promises to expose a falsehood. See Aranda v. State 736 S.W.2d 702, 707 (Tex. Crim. App. 1987) (interpreting common-law rule). Statements need not be explicitly contradictory to be in conflict, therefore, and an inconsistency between testimony and a prior statement may arise from an evasive answer or feigned inability to remember. See United States v. Bigham, 812 F.2d 943, 946-47 (5th Cir. 1987).

As the excerpts from the trial record set out above demonstrate, the prosecutor relied on an audio recording of appellant's jailhouse conversations that were admissible to impeach his veracity and his claims that he fully understood the seriousness of his crimes and firmly intended to reform and focus on his family. The prosecutor played the audio recording seven times. In every instance, the prosecutor played the audio recording after appellant denied, disputed, or equivocated about making a prior inconsistent statement.

The record also shows that when the prosecutor asked appellant if he joked with his "shoe contact" about the car accident as if it were "no big deal," appellant did not dispute the statement. Instead, appellant agreed and replied that the prosecutor did not have to play the tape. In accordance with rule 613(a), no further question was proper and none was asked. See Tex. R. Evid. 613(a); Linder v. State, 828 S.W.2d at 299.

Just before that exchange between appellant and the prosecutor, the record indicates that appellant's counsel withdrew an objection. The record does not capture the initial objection asserted. Close inspection of the preceding colloquy between the prosecutor and appellant shows that appellant responded "yes" to the prosecutor's inquiring whether appellant had stated he did not want "probation with a monitor" because he wanted to be able to drink. The prosecutor immediately asked another question. This second question asked whether appellant had stated that all he lost was a car and therefore did not "understand[ ] exactly what [he] did." At that point, appellant's counsel withdrew his objection. Appellant's counsel properly withdrew that objection because the prosecutor's question was further impeachment of appellant's prior testimony that he fully understood the seriousness of his crimes.

The portions of the record excerpted do not support a claim of ineffective assistance. Rather, they indicate that trial counsel was aware that appellant's jailhouse statements were admissible and that trial counsel closely monitored the prosecutor's questions for compliance with Tex. R. Evid. 613(a). Trial counsel does not render ineffective assistance by not objecting to evidence that is admissible. See McFarland, 845 S.W.2d at 846.

The record also shows that trial counsel conducted extensive cross-examination of police officers regarding the nature and content of appellant's conversations with family members or others whom the speaker might know well, which could appear cavalier when overheard. Trial counsel was attentive to the evidence throughout the hearing, asserted several successful objections, offered mitigating evidence, through testimony by appellant's girlfriend and "adopted" mother, who acknowledged appellant's efforts to better himself and to be a good father to his son, and referred to the recordings in his closing arguments to the court in an effort to defuse their effect.

We hold, therefore, that appellant has failed to establish the threshold first prong of the Strickland test under the record presented. See Easily v. State, 248 S.W.3d 272, 280 (Tex. App.--Houston [1st Dist.] 2007 pet. ref'd). We overrule appellant's issue.

Conclusion

We affirm the judgments of the trial court.

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

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

1. The record does not reflect the content of the portion played or the contents of any audio recordings played during the punishment trial. Much of the content can be inferred from the prosecutor's questions that follow the audio recordings, however.

2. Appellant's contention refers to the "use before the jury" rule, which entitles a defendant to "inspect, upon timely request, any document, instrument, or statement" that the State uses "before the jury" in a manner that its contents become an issue. Hoffpauir v. State, 596 S.W.2d 139, 141 (Tex. Crim. App. 1980). There was no jury in this case, in which appellant pleaded guilty to three offenses, and punishment was tried to the court.