Valdez, Jose Angel Dominguez v. State ( 2001 )

R00002.aa1; Valdez v. SOT

NUMBER 13-00-002-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

JOSE ANGEL DOMINGUEZ VALDEZ A/K/A JULIO BANDERAS GUADARRAMA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

On appeal from the 139th District Court of Hidalgo County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Castillo, and Amidei ⁽¹⁾

Opinion by Justice Hinojosa

A jury found appellant, Jose Angel Dominguez Valdez a/k/a Julio Banderas Guadarrama, guilty of the offense of murder ⁽²⁾and assessed his punishment at ninety-nine years imprisonment and a $10,000 fine. In five issues, appellant contends that, during trial, he received ineffective assistance of counsel and the trial court erred by admitting: (1) hearsay evidence, (2) photographs of the victim, (3) extraneous offense evidence during the guilt/innocence phase, and (4) extraneous offense evidence during the punishment phase. We affirm.

A. Background

The evidence shows that appellant forcefully entered the home of the victim, Pedro Zuniga, at approximately 10:50 p.m. on the night of October 22, 1996, and fatally shot Zuniga in the head in front of his wife and three children. Appellant fled in a red pick-up truck. The victim's wife, Martha Zuniga, testified she knew the man as "Angel," and that she had seen him before in the red pick-up truck. She identified him in court as the man who shot her husband. The victim's daughter, Norma Zuniga, testified that her father referred to the intruder as "Angel," and that she had met Angel before.

Hidalgo County Sheriff's Deputies were dispatched to the scene of the crime at 11:14 p.m. The deputies testified that when they arrived at the scene, Mrs. Zuniga and the children were hysterical. When she calmed down, Mrs. Zuniga told them that Angel had kicked in the front door, shot her husband, and then left in a red pick-up truck.

The officers drove Mrs. Zuniga to a house she knew to be appellant's residence. As they passed by the house, they saw a red pick-up truck approaching. Mrs. Zuniga told the officers that the truck was the shooter's truck. When officers went to the home, a single red pick-up truck was parked there. Appellant's girlfriend answered the door, and she gave the officers consent to search the red truck. The girlfriend told the officers the red truck was hers and that appellant also lived at the house.

B. Admission of Evidence

The admission of evidence is within the sound discretion of the trial court, and its ruling shall not be disturbed on appeal absent a clear abuse of discretion. McVickers v. State, 874 S.W.2d 662, 663 (Tex. Crim. App. 1993); Guerra v. State, 942 S.W.2d 28, 32 (Tex. App.-Corpus Christi 1996, pet. ref'd). This standard of review is applicable to: (1) the admittance of a statement under the excited utterance exception to the hearsay rule; ⁽³⁾ (2) the admission of extraneous offense evidence during the guilt/innocence phase; ⁽⁴⁾ (3) the admission of extraneous offense evidence during the punishment phase; ⁽⁵⁾ and (4) the admission of photographs. ⁽⁶⁾ A trial court abuses its discretion if it acts without reference to any guiding principles or acts in a manner that is arbitrary and capricious. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

C. Admission of Hearsay Statements

In his first issue, appellant contends the trial court erred in admitting certain hearsay statements against him. Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Admission of hearsay evidence against a criminal defendant implicates the Confrontation Clause of the Sixth Amendment because the defendant is not afforded the opportunity to confront the out-of-court declarant. Ohio v. Roberts, 448 U.S. 56, 63 (1980); Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999), cert. denied, --U.S. -- , 121 S. Ct. 98 (2000). Hearsay is not admissible except as provided by statute or the rules of evidence. Tex. R. Evid. 802; Epps v. State, 24 S.W.2d 872, 880 (Tex. App.-Corpus Christi 2000, pet. ref'd). A hearsay statement may be introduced against a defendant if the statement bears sufficient indicia of reliability. Roberts, 448 U.S. at 99; Guidry, 9 S.W.3d at 149. A hearsay statement is per se reliable under the Confrontation Clause if it falls within a "firmly rooted" exception to the hearsay rule. White v. Illinois, 502 U.S. 346, 356 (1992); Guidry, 9 S.W.3d at 149-50. Even if a hearsay statement does not fall within a "firmly rooted" exception, it may nonetheless be sufficiently reliable for Confrontation Clause purposes if it has "particularized guarantees of trustworthiness." Idaho v. Wright, 497 U.S. 805, 817 (199); Guidry, 9 S.W.3d at 150.

1.

Appellant contends the trial court erred in admitting the following hearsay evidence: Deputy Salazar's testimony that Mrs. Zuniga told him Angel had shot her husband.

Deputy Salazar testified that he responded to the 11:14 p.m. dispatch and was the first officer on the scene. When he arrived, Mrs. Zuniga was "very hysterical, crying. It took her-took several minutes before she could calm down. . . ." When the prosecutor asked Salazar who Mrs. Zuniga said committed the crime, appellant's counsel objected on hearsay grounds. The prosecutor responded that the statement was an excited utterance, and thus, an exception to the hearsay rule under Texas Rule of Evidence 803(2). The trial court overruled the objection, and the deputy testified Mrs. Zuniga told him that Angel had shot her husband.

Rule 803(2) provides: "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not hearsay. Tex. R. Evid. 803(2); see also Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000). This exception is founded on the belief that statements made as a result of a startling event are involuntary and do not allow the declarant an adequate opportunity to fabricate, thereby ensuring enough trustworthiness to fall outside the hearsay exception. Salley v. State, 25 S.W.3d 878, 880 (Tex. App.-Houston [14th Dist.] 2000, no pet.); Couchman v. State, 3 S.W.3d 155, 158-59 (Tex. App.-Fort Worth 1999, pet ref'd.).

In determining whether a statement is admissible as an excited utterance, it is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event. Salazar, 38 S.W.3d at 154; Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995). Another factor to consider is whether intervening circumstances occurred between the shocking event and the statement. Ward v. State, 657 S.W.2d 133, 136 (Tex. Crim. App. 1983);Mosley v. State, 960 S.W.2d 200, 204 (Tex. App.-Corpus Christi 1997, no pet.). The critical determination is whether the declarant was still dominated by the emotions, excitement, fear or pain of the event or condition at the time of the statement. Salazar, 38 S.W.3d at 154; McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992).

The evidence shows that Mrs. Zuniga made the statement to Deputy Salazar some thirty minutes after she witnessed her husband's murder, and that she was hysterical just prior to making the statement. There is no evidence of any intervening occurrence. We conclude the trial court did not abuse its discretion in admitting the statement as an excited utterance.

2.

Appellant contends the trial court erred in admitting the following hearsay evidence: Deputy Salazar's testimony that a "neighbor identified the red truck leaving the scene." The record shows appellant did not object to this testimony. We conclude appellant has waived any complaint concerning the admission of this evidence. Tex. R. App. P. 33.1.

3.

Appellant contends the trial court erred in admitting the following hearsay evidence: Deputy Garza's testimony that Mrs. Zuniga told him at the crime scene that "Angel Valdez had kicked in the front door and shot her husband." The record reflects appellant did not object to this testimony. We conclude appellant has waived any complaint concerning the admission of this evidence. Tex. R. App. P. 33.1.

4.

Appellant contends the trial court erred in admitting the following hearsay evidence: Deputy Benavidez's testimony that Mrs. Zuniga told him appellant fled in a red pick-up truck. The record shows appellant did not object to this testimony. We conclude appellant has waived any complaint concerning the admission of this evidence. Tex. R. App. P. 33.1.

5.

Appellant contends the trial court erred in admitting the following hearsay evidence: Deputy Benavidez's testimony that appellant's girlfriend consented to a search of the red pick-up truck and told him appellant used the truck.

When Deputy Benavidez started to testify concerning what appellant's girlfriend told him, appellant objected on hearsay grounds, and the trial court sustained the objection. Shortly thereafter, the prosecutor asked Benavidez:

Prosecutor: Did you get consent to search the pick-up?

Benavidez: Yes, I did.

Prosecutor: Who was that person?

Benavidez: The defendant's live-in girlfriend.

Prosecutor: Did she say whose truck it was?

Benavidez: Hers.

Prosecutor: Did you ask her if the defendant ever used the truck?

Benavidez: Yes, I did.

Prosecutor: And to the best of your knowledge has the defendant ever used the truck?

Benavidez: No, I don't recall that.

Appellant did not object to this testimony. Accordingly, we conclude appellant has waived any complaint concerning the admission of this evidence. Tex. R. App. P. 33.1.

6.

Appellant contends the trial court erred in admitting the following hearsay evidence: Deputy Garza's testimony during the punishment phase that the victim of a kidnapping and assault, which occurred one day before Pedro Zuniga's murder, told him appellant had assaulted him. The record reflects appellant did not object to this testimony on hearsay grounds. We conclude appellant has waived any complaint concerning the admission of this evidence as hearsay. Tex. R. App. P. 33.1.

We hold the trial court did not err in admitting any of the complained-of testimony. Appellant's first issue is overruled. ⁽⁷⁾

D. Admission of Extraneous Offense Evidence

During Guilt/Innocence Phase of Trial

In his second issue, appellant contends the trial court erred in allowing the State to introduce evidence of his prior arrest, over his objection.

During the guilt/innocence phase of the trial, Deputy Benavidez testified, without objection, that when he served appellant with an arrest warrant in January 1998, appellant gave him three variations of his name - Jose Angel Julio Guadarrama, Jose Angel Dominguez Valdez, and Julio Balderas Guadarrama. Benavidez then testified:

Prosecutor: What was your next action since you now have two names with the same individual?

Benavidez: Well, I conducted a criminal history check to make sure who I had with me.

Prosecutor: And after your investigation, were you able to determine if this person was the same person that -using two different names?

Benavidez: Yes, I did.

Prosecutor: And how was that determination made?

Benavidez: There was an arrest of Mr. Valdez from McAllen PD in October of '96 and I went ahead-

Appellant's Counsel: Your Honor, I'm going to object to this information. There was a motion in limine as to criminal background, Your Honor.

Prosecutor: Are you referring to the arrest warrant from back then?

The Court: Hold on just a minute. Let's not compound anything. Remove the jury.

Outside the presence of the jury, the trial court held a hearing on the propriety of this testimony. Appellant objected that he had not been given proper notice of the State's intention to introduce this particular extraneous offense. ⁽⁸⁾ The State argued it was only trying to establish that appellant used two different names, not that appellant had committed an extraneous offense. The trial court instructed the prosecutor to "stay away from that area [the prior arrest] . . . . One more peep out of you and this case is going south. Is that absolutely clear to everybody?" Appellant's request for a mistrial was denied.

When the jury returned, Benavidez testified, without objection, that he had fingerprints for an individual named Jose Angel Dominguez Valdez, and fingerprints for an individual named Julio Banderas Guadarrama. When the prints were compared, they were identical.

Appellant complains the State was allowed to introduce evidence of his prior arrest over his objection. We conclude, however, that the trial court actually sustained appellant's objection, leaving nothing for our review. See Tex. R. App. P. 33.1. Appellant's second issue is overruled.

E. Admission of Extraneous Offense Evidence

During Punishment Phase of Trial

In his third issue, appellant complains that during the punishment phase, the trial court erred by allowing the State to present evidence of extraneous offenses he committed.

The admission of evidence of extraneous offenses during the punishment phase of the trial of a non-capital offense is governed by article 37.07, § 3(a) of the code of criminal procedure:

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rule 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(Vernon Supp. 2001). The defendant has already been convicted of a crime at the time the jury hears this evidence, and the jury uses the extraneous offense evidence in assessing punishment; thus, the punishment phase evidence serves a purpose very different from evidence presented at the guilt-innocence phase. Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999).

Article 37.07, § 3(a) provides that extraneous offense evidence may not be considered in assessing punishment until the fact-finder is satisfied beyond a reasonable doubt that these prior acts are attributable to the defendant. Id. The trial judge has the responsibility of determining the threshold admissibility of extraneous offenses in the punishment phase; however, the jury as the exclusive judge of the facts is to determine whether or not the State has proved the extraneous offenses beyond a reasonable doubt. Mitchell, 931 S.W.2d at 954. The trial court's decision on the threshold admissibility of extraneous offense evidence at the punishment phase is reviewed for abuse of discretion. Mitchell, 931 S.W.2d at 953;Saenz v. State, 843 S.W.2d 24, 26 (Tex. Crim. App. 1992).

The trial court errs if it fails to instruct the jury in the punishment charge that it may not consider the extraneous acts in assessing punishment unless it finds beyond a reasonable doubt that the acts are attributable to the defendant. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). In the instant case, the jury was charged that it could not use the evidence of extraneous offenses in assessing appellant's punishment unless it found beyond a reasonable doubt that appellant had committed the offenses.

Before testimony began in the punishment phase, and outside the presence of the jury, appellant requested a determination from the trial judge that "there is sufficient evidence to find that these . . . [extraneous] offenses did occur." The trial court granted the request, and held a hearing. Deputy Garza testified that he took a report from Gerardo Zuniga and Juana Torres on October 21, 1996. They told him that they had been kidnapped by Angel. Gerardo Zuniga told him Angel had also beaten him. Appellant objected to this testimony:

Appellant's Counsel: It's hearsay. It's not been proven beyond a reasonable doubt that Mr. Angel or Julio Banderas Guadarrama did commit the crime of kidnapping, Your Honor.

Prosecutor: This is not our only witness concerning this incident. He's here simply to lay a foundation for other witnesses.

Appellant's Counsel: The only one I'm concerned with are the actual victims coming in. If the victims will take the stand and testify that -

The Court: Well, I'm not going to try the case for you folks, especially the State. The objection will be overruled.

The hearing continued outside the presence of the jury. The State called Gerardo Zuniga, the murder victim's brother, who testified that Angel had kidnapped and beaten him and had also kidnapped his wife. Deputy Benavidez testified that Gerardo Zuniga had reported a kidnapping and assault, and that his investigation revealed appellant had committed the acts.

Benavidez also testified he investigated an aggravated robbery of three men that occurred at appellant's ranch on October 10, 1996. The victims were mariachis from Mexico, and their costumes, instruments and money were stolen. Benavidez's investigation showed that appellant committed the robberies. Gerardo Zuniga was present at appellant's ranch that night; he gave Benavidez an affidavit stating what happened to the mariachis. Benavidez did not personally interview the victims. He relied on a report they gave another deputy, who no longer works at the Sheriff's Office, and whom Benavidez was unable to locate. Benavidez also tried to find the three victims, but he was unable to find them.

Benavidez further testified that he had investigated a complaint of an unauthorized use of a vehicle. Miss Garza from Mission filed a report that appellant had not returned her van on October 23, 1996. She knew it was appellant because she had seen his photograph on television in connection with the murder. She later reported that she had received a telephone call from appellant, which was transferred to her by a Mexican operator. The State attempted to locate Garza, but was unable to find her. At the conclusion of the hearing, the trial court overruled appellant's objections to Benavidez's testimony.

Appellant complains only that the trial court erred in admitting evidence of the aggravated robberies of the three mariachis and the unauthorized use of a vehicle because "there was no victim to testify and the evidence was secondhand hearsay." He does not complain that the State failed to prove the offenses beyond a reasonable doubt, or that the jury was not given the proper instruction on the State's burden of proof. As we noted above, the trial judge has only the responsibility of determining the threshold admissibility of extraneous offenses in the punishment phase; it is the jury, as the exclusive judge of the facts, that determines whether or not the State has proved the extraneous offenses beyond a reasonable doubt. Mitchell, 931 S.W.2d at 954. We will address each complained-of extraneous offense separately.

1. The Aggravated Robberies

At the hearing, the State proffered Benavidez's testimony regarding his investigation of the three aggravated robberies, and that Gerardo Zuniga was an eyewitness to the events of that evening. The trial court knew Gerardo was present and ready to testify because he testified at the hearing regarding his kidnapping and assault. We hold the trial court did not abuse its discretion in admitting the extraneous offense evidence regarding the aggravated robberies of the mariachis.

2. The Unauthorized Use of a Vehicle

In its brief, the State concedes that the admission of this testimony was error. We agree. Therefore, we must conduct a harm analysis.

The reasonable-doubt standard for consideration of extraneous offenses in the assessment of punishment is neither constitutionally required nor based on a constitutional mandate. Fields, 1 S.W.3d at 688. We must disregard any error not of constitutional magnitude unless it has affected the substantial rights of the defendant. See Tex. R. App. P. 44.2; Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Couchman v. State, 3 S.W.3d 155, 160 (Tex. App.-El Paso 1999, pet. ref'd) (applying Rule 44.2(b) harm analysis to erroneous admission of hearsay evidence); see also Armstead v. State, 977 S.W.2d 791, 796 (Tex. App.-Fort Worth 1998, pet. ref'd)(noting that "admission of otherwise inadmissible hearsay is not constitutional error.").

A substantial right is affected when the error had a substantial effect and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson, 967 S.W.2d at 417; Rios v. State, 982 S.W.2d 558, 561 (Tex. App.-San Antonio 1998, pet. ref'd). The United States Supreme Court has construed the nearly identical federal harmless error rule as follows:

If, when all is said and done, the [court's] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand. . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

O'Neal v. McAninch, 513 U.S. 432, 437-38 (1995) (emphasis in original); see also Vega v. State, 32 S.W.3d 897, 905-06 (Tex. App.-Corpus Christi 2000, pet. filed) (citing Kotteakos v. United States, 328 U.S. 759, 776 (1946)). "Grave doubt" means "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipose as to the harmlessness of the error." O'Neal, 513 U. S. at 435. The potential harm of improperly admitted evidence may be defused by properly admitted evidence. King, 953 S.W.2d at 273.

In contrast to the other serious and violent crimes linked to appellant, unauthorized use of a vehicle is a state jail felony, generally punishable by confinement of one hundred eighty days to two years in a state jail and a fine of up to $10,000. SeeTex. Pen. Code Ann. §§ 12.35(a) (Vernon 1994), 31.07(b) (Vernon 1994). There was no allegation that appellant used violence to acquire the van. On the contrary, the evidence suggested that appellant told the van's owner he wanted to buy the van, then failed to return it. After he took the van, appellant called the victim from Mexico, and she later recovered the van.

In light of the entire record, which contains evidence of appellant's forceful invasion of the Zuniga home, his subsequent brutal murder of Pedro Zuniga in front of his wife and three children, the kidnapping of a woman, the kidnapping and assault of another man, and the humiliating aggravated robbery of the three mariachis, we can say with fair assurance that the improper admission of evidence of a non-violent extraneous act of unauthorized use of a vehicle did not influence the jury's decision to assess punishment of ninety-nine years imprisonment and a $10,000 fine, or had but a slight effect. See Johnson, 967 S.W.2d at 417. Appellant's third issue is overruled.

F. Photographs of Victim's Body

In his fifth issue, appellant contends the trial court erred by admitting State's Exhibit Nos. 17, 18, 19, 20, 21, and 22. ⁽⁹⁾ These exhibits are pre-autopsy photographs of the victim's head wounds.

At trial, appellant objected to the admission of the photographs on the basis that their probative value was outweighed by the prejudicial effect. See Tex. R. Evid. 403. The trial court overruled appellant's objection to the complained-of photographs. ⁽¹⁰⁾

If the opponent makes a Rule 403 objection, the trial judge must weigh the probativeness of the evidence to see if it is substantially outweighed by its potential for unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence. Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (opin. on reh'g). In keeping with the presumption of admissibility of relevant evidence, there is also a presumption that relevant evidence is more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997);Montgomery, 810 S.W.2d at 389.

The admission of photographs over the defendant's challenge is within the discretion of the trial court. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). Rule 403 requires an admissible photograph to possess some probative value and that its probative value not be substantially outweighed by its inflammatory nature. Santellan, 939 S.W.2d at 169; Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991); see also Tex. R. Evid. 403. In determining whether a photograph is more probative than prejudicial, we consider certain factors including: (1) the number of exhibits offered, (2) their gruesomeness, (3) their detail, (4) their size, (5) whether they are black and white or color, (6) whether they are close-up shots, (7) whether the body is naked or clothed, (8) the availability of other means of proof, and (9) other circumstances unique to the individual case. Santellan, 939 S.W.2d at 172.

An examination of the six photographs reveals that Exhibit Nos. 17, 18, 19, and 20 depict what the pathologist defined as the entry wound, located just above the victim's forehead on the right side. Exhibit Nos. 21 and 22 depict the exit wound on the upper left area of the back of the victim's head. While the record before us contains only black-and-white copies of the original exhibits, the State represents that the original exhibits are in color and are regular-sized photographs, about three inches by five inches. It is not ascertainable from the photographs whether the victim is unclothed; they depict only his head. They are not particularly close-up shots, ⁽¹¹⁾ nor are they particularly gruesome. They depict little blood and no brain matter or exposed bone.

A pathologist testified regarding the cause of death. He described the location and size of the wounds (both the entry and exit wounds were approximately one centimeter in diameter). However, he was unable to determine the caliber of the bullet used. The photographs depict an unquestionably large-caliber bullet wound to the victim's head. This fact is probative of appellant's intent to kill the victim, an element the State was required to prove. See Tex. Pen. Code Ann. § 19.02(Vernon 1994).

We cannot say the probative value of the photographs is substantially outweighed by their prejudicial effect. We conclude the trial court did not abuse its discretion in admitting the photographs. Appellant's fifth issue is overruled.

G. Ineffective Assistance of Counsel

In his fourth issue, appellant contends he received ineffective assistance of counsel during trial because his counsel (1) failed to object to the hearsay cited in his first issue, (2) failed to object to objectionable punishment evidence, and (3) failed to request a charge on extraneous offenses at the punishment phase.

Claims of ineffective assistance are analyzed under the rule set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Texas courts in Hernandez v. State, 726 S.W.2d 53, 56-56 (Tex. Crim. App. 1986). The Strickland test is the benchmark for judging whether counsel's conduct has so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992). The appellant must first show his trial counsel's performance was not reasonably effective, falling below an objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812-13. A showing of deficiency requires a demonstration that the trial counsel made errors so serious that he was not functioning as the counsel guaranteed a defendant under the Sixth Amendment. Strickland, 466 U.S. at 687. We must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that counsel made all significant decisions in the exercise of reasonable professional judgment. Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999). There is also a strong presumption that the trial counsel's conduct was reasonable and constitutes sound trial strategy. Strickland, 466 U.S. at 689; McFarland v. State, 845 S.W.2d at 843. The "reasonably effective assistance" standard does not mean errorless counsel. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Hernandez v. State, 799 S.W.2d 507, 508 (Tex. App.-Corpus Christi 1991, pet. ref'd).

If the appellant can demonstrate deficient assistance under the first part of the Strickland test, he must then show that there 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 694; Thompson, 9 S.W.3d at 812; Washington v. State, 771 S.W.2d 537, 545 (Tex. Crim. App. 1989). "A reasonable probability" means "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812; Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). The prejudice element requires a showing that the trial counsel's errors were so serious as to deprive the defendant of a fair trial: one whose result is reliable. Strickland, 466 U.S. at 687. The totality of the representation is evaluated from counsel's perspective at trial, not his isolated acts or omissions in hindsight. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).

The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. 1979); Stone v. State, 17 S.W.3d 348, 350 (Tex. App.-Corpus Christi 2000, pet. ref'd). The appellant must prove his claim of ineffective assistance of counsel by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). Furthermore, he must show ineffective assistance firmly rooted in the record. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). We may not speculate as to the reasons behind trial counsel's actions nor should we try to second guess trial counsel's tactical decisions which do not fall below the objective standard of reasonableness. Young, 991 S.W.2d at 837-38; Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990); Stone, 17 S.W.3d at 350.

1. Trial Counsel's Failure to Object to Admission of Hearsay Evidence

Appellant contends he received ineffective assistance of counsel because his trial counsel failed to object to Deputy Salazar's testimony that Mrs. Zuniga had told him Angel had shot her husband. The record reflects appellant's trial counsel objected to the admission of this statement. We have already held in our discussion above that the trial court did not abuse its discretion by admitting this statement as an excited utterance.

Appellant also complains that his trial counsel was ineffective because he failed to object to Deputy Salazar's testimony that a "[n]eighbor identified the red truck leaving the scene." Specifically, he complains of the following testimony:

Prosecutor: . . . you interviewed several people that night when you created your report?

Salazar: I interviewed Benita Cantu [a neighbor] and Martha Zuniga.

Prosecutor: Did both of them identify a red truck?

Salazar: Yes.

Prosecutor: Did they - did Martha know who owned the truck or who was in the truck?

Salazar: All she said was that Angel left in a red truck.

It is true that appellant's trial counsel did not object to this testimony. However, even if he had, Salazar's testimony of the neighbor's identification of a red truck is not objectionable hearsay. Salazar was describing the steps in his investigation of the murder. One of the pieces of information he apparently relied upon was the neighbor's identification of a red truck at the crime scene. The statement was not offered to prove the truth of the matter asserted (whether or not there really was a red truck at the crime scene), but to illustrate a step in the investigation.

An extrajudicial statement which is offered for the purpose of showing what was said rather than for the truth of the matter stated therein does not constitute hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). If an out-of-court statement is relevant only if the trier of fact believes that the statement was both truthful and accurate, then it is hearsay. K.B.P. v. State, 902 S.W.2d 88, 98 (Tex. App.-El Paso 1995, no pet.). Here, it does not matter if the neighbor's statement was true or not. The statement is relevant in understanding the steps of the investigation leading to appellant's arrest for Pedro Zuniga's murder. To show counsel was ineffective for failing to lodge an objection, appellant must show that the trial court would have erred in overruling such objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).

Appellant also contends he received ineffective assistance of counsel because his trial counsel failed to object to (1) Deputy Garza's testimony that Mrs. Zuniga told him at the crime scene that "Angel Valdez had kicked in the front door and shot her husband," and (2) Deputy Benavidez's testimony that Mrs. Zuniga told him appellant fled in a red pick-up. It is true that appellant's trial counsel did not object to these two instances of testimony. However, we have already held that Mrs. Zuniga's statements to the deputies at the crime scene were admissible as excited utterances. To show counsel was ineffective for failing to lodge an objection, appellant must show that the trial court would have erred in overruling such objection. Id.

Appellant asserts he received ineffective assistance of counsel because his trial counsel failed to object to Deputy Benavidez's testimony about appellant's girlfriend's "statement about consent and use of vehicle." The record shows that when Deputy Benavidez first started to testify about what appellant's girlfriend had told him, appellant objected on hearsay grounds, and the trial court sustained the objection. Shortly thereafter, the prosecutor asked Benavidez the following:

Prosecutor: Did you get consent to search the pick-up?

Benavidez: Yes, I did.

Prosecutor: Who was that person?

Benavidez: The defendant's live-in girlfriend.

Prosecutor: Did she say whose truck it was?

Benavidez: Hers.

Prosecutor: Did you ask her if the defendant ever used the truck?

Benavidez: Yes, I did.

Prosecutor: And to the best of your knowledge has the defendant ever used the truck?

Benavidez: No, I don't recall that.

It is true that appellant's trial counsel did not object to this testimony. However, it is not objectionable hearsay. Benavidez testified that he had obtained a consent to search as a step in his investigation. Furthermore, the complained-of passage contains absolutely no information about appellant's possible use of the red truck. To show counsel was ineffective for failing to lodge an objection, appellant must show that the trial court would have erred in overruling such objection. Vaughn, 931 S.W.2d at 566.

Finally, appellant contends he received ineffective assistance of counsel because his trial counsel failed to object to Deputy Garza's testimony during the punishment phase that the victim of a kidnapping and assault that occurred one day before the murder of Pedro Zuniga told him that appellant had assaulted him. During the punishment phase, Deputy Garza was called to testify about his investigation of the kidnapping and assault of Gerardo Zuniga. The State introduced photographs of the victim's injuries. The trial judge then asked:

The Court: As I understand, the victim in those photographs advised you that who did what?

Garza: Inflicted the injuries.

The Court: Yes.

Garza: Angel Vasquez [sic].

It is true that appellant's counsel did not object to this testimony. However, the next witness was the victim, Gerardo Zuniga, who testified concerning the details of his kidnapping and assault by appellant. It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986); Couchman, 3 S.W.3d at 161. Therefore, appellant is unable to meet the second prong of the Strickland test, and cannot show that his trial counsel's failure to object to the hearsay statement amounts to ineffective assistance of counsel.

We hold appellant's trial counsel was not ineffective for failing to lodge objections to the complained-of evidence.

2. Failure to object to objectionable punishment evidence

Appellant contends he received ineffective assistance of counsel during the punishment phase because his counsel failed to object to the admission of evidence about his aggravated robbery of the three mariachis and his unauthorized use of a vehicle. We disagree with appellant's contention that trial counsel failed to object to the admission of this evidence. The record reflects appellant's counsel made numerous objections to the admission of this testimony. Furthermore, we have held that the admission of the evidence regarding the robberies was properly admitted and that the evidence relating to the unauthorized use of a vehicle was not properly admitted, but that it did not affect appellant's substantial rights. Therefore, counsel was not ineffective on this ground.

Appellant also contends he received ineffective assistance of counsel during the punishment phase because his counsel failed to object to the prosecutor's representation to the trial court that the standard for admission of extraneous offense evidence was "probable cause." Clearly the prosecutor was mistaken about the proper standard. See Tex. Code Crim. Proc Ann. art. 37.07(a)(3)(Vernon Supp. 2001) (extraneous offenses must be shown beyond a reasonable doubt to have been attributable to the defendant). However, appellant has not shown that the trial judge relied on this misstatement of the law in his decision to admit the evidence. Appellant cannot meet the second prong of Strickland on this issue (that the outcome would have been different had his counsel objected). Therefore, his claim of ineffective assistance of counsel must fail.

3. Failure to request a charge on extraneous offenses at punishment

Appellant contends he received ineffective assistance of counsel because his trial counsel failed to request in instruction in the punishment charge on extraneous offenses. The record shows that the punishment charge contained the following instruction:

You are instructed that if there is any testimony before you in the case regarding the Defendant having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for the purpose of determining the appropriate punishment unless you find and believe beyond a reasonable doubt that the Defendant committed such other offenses, if any were committed.

This instruction meets the mandates set forth in Huizar, 12 S.W.3d at 484 (jury must be instructed that it cannot consider evidence of extraneous offenses in determining punishment unless it finds beyond reasonable doubt that offenses are attributable to defendant). The trial judge has a duty to sua sponte charge the jury on this issue, even if the defendant fails to request it. Id. We can ascertain no ineffective assistance of counsel here.

The record reflects that appellant's trial counsel filed pretrial motions, actively participated in voir dire, vigorously cross-examined the State's witnesses, made numerous objections, and raised several defensive issues. Because appellant did not prove his trial counsel was ineffective, we overrule his fourth issue.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

19th day of July, 2001.

1. Former Justice Maurice Amidei, assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. See Tex. Pen. Code Ann. § 19.02 (Vernon 1994).

3. Salazar v. State, 38 S.W.3d 141, 153 (Tex. Crim. App. 2001).

4. Montgomery v. State, 810 S.W.2d 372, 377 (Tex. Crim. App. 1990) (opin. on reh'g).

5. Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996).

6. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995).

7. Appellant's issues are numbered differently throughout his brief. For clarity, we adopt the numbering used in the argument section of appellant's brief, which was also adopted by the State in its brief.

8. This arrest was apparently for carrying a weapon in a licensed premises.

9. Appellant also complains of State's Exhibit Nos. 24 and 25. These exhibits appear to be photographs of household items at the crime scene. They cannot be seen as portraying anything gruesome.

10. The trial court excluded one photograph, State's Exhibit No. 23, which is a close-up view of the exit wound.

11. As we noted above, the trial court excluded a very close-up photograph of the exit wound.