Jose Julian Olivarez v. State ( 2000 )

NUMBER 13-99-348-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

JOSE JULIAN OLIVAREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

On appeal from the 332nd District Court of Hidalgo County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

A jury found appellant, Jose Julian Olivarez, guilty of the offense of intoxication manslaughter⁽¹⁾ and assessed his punishment at seven years imprisonment. By two issues, appellant contends: (1) he received ineffective assistance of counsel, and (2) the trial court abused its discretion by not granting him a new trial on newly discovered evidence. We affirm.

1. Background and Procedural History

On the evening of April 2, 1997, Tony Torres, his sister, Mary Tijerina, and her daughter traveled from Edinburg to a friend's house near Mission in Torres's 1988 Plymouth Horizon. Torres was the driver of the vehicle, Tijerina was in the front passenger seat, and Tijerina's daughter was in the seat behind Tijerina. After discovering that their friend was not home, they traveled to a Dairy Queen for an ice cream for Tijerina's daughter, and then proceeded to return to Edinburg. At approximately 10:00 p.m. they were traveling east toward Edinburg on U.S. Expressway 83, about seven miles west of Mission, in the City of Penitas, when they were involved in a traffic accident. They were hit from behind by a Mazda pickup truck, and consequently, their car was thrown into a ditch. Appellant was the driver of the Mazda pickup that hit Torres's car. Appellant was later determined to have a blood alcohol level of .11. Torres had to be removed from his vehicle with the "jaws of life," and subsequently died at the hospital as a result of the accident.

Appellant was tried before a jury on February 2-3, 1999. The jury found appellant guilty of intoxication manslaughter and assessed his punishment at seven years imprisonment. Appellant filed a motion for new trial on February 12, 1999. After a hearing, the trial court denied the motion on February 26, 1999.

2. Ineffective Assistance of Counsel

In his first issue, appellant complains he received ineffective assistance of counsel at trial. Specifically, appellant contends his counsel was not reasonably effective because he "did not investigate the case, hire [a] reconstructionist expert as paid for, interview witnesses, visit the scene of the accident, and failed to call any witnesses other than the Defendant."

The standard for ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). This standard was adopted by Texas in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). The Strickland standard applies to ineffective assistance of counsel at both the guilt-innocence and punishment phases of the proceedings. Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). A defendant seeking relief must demonstrate: (1) that counsel's performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness under prevailing professional norms; and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55. A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). Whether this standard has been met is to be judged by "the totality of the representation." Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).

Our review of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689; Garcia v. State, 887 S.W.2d 862, 880 (Tex. Crim. App. 1994). The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex. Crim. App. 1991); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). An allegation of ineffective assistance of counsel will be sustained only if it is firmly founded and if the record affirmatively demonstrates counsel's alleged ineffectiveness. Ex Parte Williams, 634 S.W.2d 815, 819 (Tex. Crim. App. 1980). In determining whether trial counsel rendered deficient performance, we employ a strong presumption that counsel's conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689; Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992).

Consistent with Strickland, we must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that he made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992); Moffatt v. State, 930 S.W.2d 823, 826-27 (Tex. App.--Corpus Christi 1996, no pet.). The record must contain evidence of counsel's reasoning, or lack thereof, to rebut that presumption. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The constitutional right to counsel does not mean errorless counsel or counsel judged ineffective by hindsight. Ex parte Carillo, 687 S.W.2d 320, 324 (Tex. Crim. App. 1985).

Performance of counsel cannot generally be adequately examined based on a trial court record. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). A proper review should focus on a record specifically targeting the conduct of trial counsel. Id. Such a record is best developed during a hearing on application for writ of habeas corpus or motion for new trial. Id.; see Jackson, 877 S.W.2d at 772 (Baird, J., concurring).

Appellant very broadly complains his trial counsel failed to: (1) investigate his case; (2) interview witnesses; and (3) visit the scene of the accident. He further contends the outcome of the case would have been different if his counsel had not made these errors. At the hearing on his motion for new trial, appellant did not bring forth his trial counsel to testify as to his reasoning during the trial, thus, he has not rebutted the presumption that his counsel made the decisions in the exercise of reasonable professional judgment.

When asked at the hearing on the motion for new trial whether he knew if his counsel "investigated or took pictures of the accident scene," appellant responded, "I don't know. I don't think so." While appellant might not think his counsel went to the scene, he has failed to establish whether he did or not. Furthermore, defense counsel presented into evidence, when cross-examining Department of Public Safety (DPS) Trooper Wayne Curry, various photographs of the accident scene. Appellant does not attempt to establish the origin of these photographs, other than appellant's father's passing comment that counsel had photographs from the insurance company. While these photographs might have been the result of the insurance company's investigation, it does not prove that counsel did not investigate the scene or obtain the photographs himself.

Appellant further alleges his counsel did not interview witnesses and failed to call any witnesses other than appellant. Appellant presents no argument as to counsel's alleged inadequacy, and he has failed to even establish which witnesses his counsel should have interviewed and called. Because the record in this case is silent as to whether counsel did or did not interview witnesses and the reasons why he did not call other witnesses, appellant has failed to rebut the strong presumption that counsel acted reasonably. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). To find that trial counsel was ineffective based on the asserted ground would call for speculation, which we will not do. See Jackson, 877 S.W.2d at 771.

Appellant contends his counsel failed to investigate the case. Counsel's cross-examination of DPS Trooper George Elizondo, the accident reconstructionist, and DPS Trooper Wayne Curry, the officer who responded to the scene of the accident, exemplifies his knowledge of the accident and his thorough investigation of the scene of the accident. The record shows counsel referenced the implications of skid marks on the road, inquired into the possibility of Torres's vehicle entering the roadway from the crossover, questioned the position of the vehicles on the roadway, highlighted the possibility of a person's blood alcohol level rising or falling over time, discussed the impact of the two vehicles and the resulting damage, and questioned the specifics of the extraction of appellant's blood for testing. The record establishes that appellant's trial counsel investigated the case and was quite knowledgeable on the facts and circumstances of the accident. Thus, appellant has not shown that his counsel's performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness under the prevailing professional norms.

Appellant also contends his trial counsel was ineffective for failing to hire an accident reconstructionist. At the hearing on the motion for new trial, appellant brought forth Jerry Gonzales, an accident investigator, who disputed DPS Trooper Elizondo's conclusions that Torres's vehicle could not have been turning into the oncoming traffic when appellant's vehicle hit it. Gonzales further opined that the accident occurred because Torres's vehicle did not yield the right of way to appellant. Appellant testified he paid his trial counsel "$2,500 down" to hire an investigator, and he did not do so. Appellant admitted he could not affirmatively state that his trial counsel did not call and talk to accident investigators about his case. Because the record in this case is silent as to whether counsel did or did not attempt to retain an investigator and the reasons why he did not call an investigator as a witness, appellant has failed to rebut the strong presumption that counsel acted reasonably. See Thompson, 9 S.W.3d at 814. To find that trial counsel was ineffective based on the asserted ground would call for speculation, which we will not do. See Jackson, 877 S.W.2d at 771.

The record shows that appellant's trial counsel actively participated in voir dire, made objections during the trial, vigorously cross-examined State's witnesses, and set forth a plausible defense. After reviewing the entire record, we hold appellant has not overcome the presumption of reasonableness. We overrule appellant's first issue.

3. Motion For New Trial

In his second issue, appellant contends the trial court abused its discretion by not granting a new trial based on newly discovered evidence. Specifically, appellant contends the testimony of Jerry Gonzales, an accident investigator, was newly discovered evidence that was unknown to him at the time of the trial.

The trial court may, in its discretion, grant a new trial based on newly discovered evidence. Freeman v. State, 838 S.W.2d 772, 778 (Tex. App.--Corpus Christi 1992, pet. ref'd). New trials based on newly discovered evidence are not favored and denial of the request will not be overturned on appeal absent a showing that the trial court abused its discretion. Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987), To establish an abuse of discretion, the defendant must show: (1) that the evidence was unknown to him before trial; (2) that his failure to discover it was not due to his want of diligence; (3) that it is probably true and its materiality is such as will probably bring about a different result upon a new trial; and (4) that it is competent, not merely cumulative, corroborative, collateral, or impeaching. Id. at 226; Sawyer v. State, 778 S.W.2d 541, 545 (Tex. App.--Corpus Christi 1989, pet. ref'd); Sweeten v. State, 686 S.W.2d 680, 683 (Tex. App.--Corpus Christi 1985, no pet.). When addressing the third requirement, the new evidence must be shown to probably be true in order to possess sufficient materiality. Oestrick v. State, 939 S.W.2d 232, 236 (Tex. App.--Austin 1997, pet. ref'd) (citations omitted). "The 'probably true' requirement simply means the trial court must determine that 'the whole record presents no good cause to doubt the credibility of the witness whose testimony constitutes new evidence, either by reason of the facts proven at the trial or by the controverting affidavits on the motion, or otherwise.'" Id. (citing Jones v. State, 711 S.W.2d 35, 37 n.4 (Tex. Crim. App. 1986) and Ashcraft v. State, 918 S.W.2d 648, 653 (Tex. App.--Waco 1996, pet. ref'd)). In all cases in which a criminal defendant moves for new trial based upon newly discovered evidence, credibility of the witness and probable truth of new evidence is primarily a determination for the trial judge, who is well-positioned to see witnesses, observe their demeanor, and determine their credibility. Ashcraft, 918 S.W.2d at 653.

In his brief, appellant asserts:

the newly discovered evidence or available new evidence shows that [the] victim failed to yield [the] right of way to Defendant's car thus causing the accident. This evidence if allowed at the trial court and if a reconstructionist witnesses [sic] like Jerry Gonzales would of [sic] testified the results of outcome [sic] of the case would of [sic] been different either as to conviction or probation instead of a sentence of seven years penitentiary time.

Assuming, arguendo, that appellant is able to show that: (1) Jerry Gonzales, an accident reconstruction witness who will testify that Torres's vehicle failed to yield the right of way, was unknown to him before trial and (2) that his failure to find Gonzalez was not due to his want of diligence. Appellant has failed to establish that Gonzalez's testimony is probably true and its materiality is such as will probably bring about a different result at a new trial.

At the hearing on the motion for new trial, Gonzales testified that he reviewed the police report, the accident scene, and the damages to the vehicles. Gonzales stated:

My opinion is that the way the accident has shown [sic] there is -- there is a possibility that the vehicle, the victim's vehicle was turning into the oncoming traffic. At the impact, the amount of damage caused by the accident, the vehicle that was driving, I believe it was eastbound on 83 would have been traveling at a normal speed 55 plus, 55 or less. The vehicle that was the vehicle that was struck was traveling at a low speed which indicates it was turned into the intersection, plus the impact of the vehicle itself shows that it was struck at a high speed compared to the other vehicle which would have been a 55 or about 56 somewhere around there.

It was Gonzales's opinion that appellant's vehicle had the right of way, and that Torres's vehicle did not yield the right of way and was at fault. Gonzales also opined that the "accident was unavoidable even if the person had been highly intoxicated or not intoxicated at all."

The State pointed out that Gonzales had only reviewed the evidence for two days, he did not know the gross weights of the vehicles, even though it would make a difference in the amount of damage sustained by the vehicles and accident calculations based on this information. Gonzalez admitted that there was no new evidence, rather his opinion of the evidence was new.

Gonzales's testimony at the motion for new trial hearing conflicted with the testimony at trial of DPS Trooper Elizondo. Elizondo testified at trial that: (1) the accident occurred in the far right-hand lane; (2) the heavier weight of appellant's vehicle was consistent with the damage sustained by the two vehicles; (3) the weight of the vehicle is a factor in computing an estimated speed for the vehicle; (4) appellant was speeding at the time of the accident; (5) the accident occurred when appellant's vehicle came up and struck Torres's vehicle from behind; and (6) if Torres's vehicle had been traveling considerably slower than appellant's, as in a situation in which Torres was just entering the roadway from a crossover, the damage sustained would have been a lot greater.

In a new evidence case, the credibility of the witnesses and the probable truth of their testimony is primarily a determination for the trial court. Etter v. State, 679 S.W.2d 511, 515 (Tex. Crim. App. 1984); Driggers v. State, 940 S.W.2d 699, 709 (Tex. App.--Texarkana 1996, pet. ref'd). Because the testimony of Jerry Gonzales and the testimony of DPS Trooper Elizondo conflict, the trial court was better able to resolve the conflicts by observing the witnesses than we can from a cold record. Etter, 679 S.W.2d at 515; Driggers, 940 S.W.2d at 709. Because Gonzales's testimony was of questionable weight and credibility, and would probably not bring about a different result upon a new trial, we conclude the trial court did not abuse its discretion in denying appellant's motion for new trial. Appellant's second issue is overruled.

We affirm the trial court's judgment and affirm the trial court's order denying appellant's motion for new trial.

FEDERICO G. HINOJOSA

Justice

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

Opinion delivered and filed this the

31st day of August, 2000.

1. Tex. Pen. Code Ann. § 49.08 (Vernon Supp. 2000).