Joe Manuel Diaz v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00373-CR
JOE MANUEL DIAZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
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OPINION
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I. INTRODUCTION
A jury found Appellant Joe Manuel Diaz guilty of Class A misdemeanor
driving while intoxicated1 (DWI) and assessed his punishment at 365 days’
confinement and a $4,000 fine. The trial court sentenced him accordingly. In a
1
See Tex. Penal Code Ann. § 49.09(a) (West Supp. 2012) (providing that a
second DWI offense constitutes a Class A misdemeanor).
single point, Diaz argues that he received ineffective assistance of counsel. We
will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Diaz was arrested for DWI after Northlake Police Officer Chris Loftis
observed him speeding and driving erratically. When Officer Loftis approached
Diaz’s vehicle, he detected a strong odor of alcohol coming from Diaz. Officer
Loftis radioed for a backup officer because Diaz was acting aggressively and in a
threatening manner. Diaz refused to perform field sobriety tests and also refused
to voluntarily provide a breath or blood sample. Based on Diaz’s driving and
behavior, Officer Loftis obtained a search warrant for Diaz’s blood and took him
to the hospital for the blood draw.
Diaz’s defense counsel filed a motion to suppress arguing that there was
no probable cause to support the arrest or the search warrant for Diaz’s blood.
The same trial judge who signed the search warrant for Diaz’s blood also
presided over the hearing on the motion to suppress and at trial. After a pretrial
hearing, the trial court denied the motion to suppress. At trial, defense counsel
continued to object to the probable cause for the arrest and search warrant.
III. EFFECTIVE ASSISTANCE OF COUNSEL
In Diaz’s sole point, he argues that he received ineffective assistance of
counsel because defense counsel did not pursue a motion to recuse the trial
judge or otherwise complain or object that the same judge who had signed the
blood warrant also presided over the suppression hearing and the trial.
2
To establish ineffective assistance of counsel, the appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is
whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is
highly deferential, and the reviewing court indulges a strong presumption that
counsel’s conduct fell within a wide range of reasonable representation. Salinas
v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65
S.W.3d 59, 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a
position on direct appeal to fairly evaluate the merits of an ineffective assistance
claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. “In the
majority of cases, the record on direct appeal is undeveloped and cannot
adequately reflect the motives behind trial counsel’s actions.” Salinas, 163
S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption
of reasonable professional assistance, “[a]ny allegation of ineffectiveness must
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be firmly founded in the record, and the record must affirmatively demonstrate
the alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,
an appellant must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. The ultimate focus of our inquiry must
be on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
The mere fact that the same judge signed a defendant’s search or arrest
warrant and then presided in subsequent criminal proceedings does not establish
bias. Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992), cert. denied,
508 U.S. 918 (1993). Judges are often called on to reconsider matters they have
previously ruled on. See id. Generally, a judge is not required to be recused
based solely on his prior rulings, remarks, or actions. Gaal v. State, 332 S.W.3d
448, 454 (Tex. Crim. App. 2011). A judge’s bias or partiality may be grounds for
a recusal motion only if the conduct shows a “‘deep-seated favoritism or
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antagonism that would make fair judgment impossible.’” Id. (quoting Liteky v.
United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1150 (1994)).
Counsel is not required to file futile motions. Mooney v. State, 817 S.W.2d
693, 698 (Tex. Crim. App. 1991); Hollis v. State, 219 S.W.3d 446, 456 (Tex.
App.—Austin 2007, no pet.). Nor is counsel’s failure to file a pretrial motion
categorically deemed ineffective assistance of counsel. Madden v. State, 911
S.W.2d 236, 241 (Tex. App.—Waco 1995, pet. ref’d) (holding that counsel was
not ineffective for not filing a motion to recuse the judge who presided at trial
when the judge had also prosecuted a prior case that was used to enhance the
current case). A record that is silent as to defense counsel’s trial strategy and
provides no explanation of counsel’s actions generally will not overcome the
strong presumption of reasonable assistance. See Rylander v. State, 101
S.W.3d 107, 110 (Tex. Crim. App. 2003); Edwards v. State, 280 S.W.3d 441, 445
(Tex. App.—Fort Worth 2009, pet. ref’d). Defense counsel’s performance should
not be found deficient unless the conduct was “so outrageous that no competent
attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003).
Here, Diaz concedes that “the mere fact that a judge authorized arrest and
search warrants involved in a case is not a barrier to that judge presiding over
the trial of that case on its merits.” But Diaz argues that because his entire case
rested on the validity of the search warrant, “[a] reasonable person would
necessarily question the judge’s impartiality” because a judge would not
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invalidate a warrant he had authorized. Diaz further argues that defense
counsel’s failure to pursue a motion to recuse the trial judge cannot be a strategic
decision because there was “no hope of success” and “no conceivable scenario
in which having the trial judge conduct the hearing would benefit Diaz.”
The fact that the validity of the search warrant was Diaz’s sole defense has
no bearing on whether the trial judge was subject to recusal for bias. As
conceded by Diaz, Texas case law makes clear that the fact that the same judge
who signed a search warrant also presided over the subsequent proceedings,
including a motion to suppress, is not enough to show that the judge acted with
the “deep-seated favoritism or antagonism” that would give Diaz’s defense
counsel cause to pursue a recusal motion. Gaal, 332 S.W.3d at 454; see Kemp,
846 S.W.2d at 306. The trial judge in this case made no comments, remarks, or
other indications during the hearing on the motion to suppress or at trial that
would cause Diaz’s defense counsel to think the judge was biased or prejudiced
against Diaz’s case and subject to recusal.
Based on the record before us and the strong presumption of reasonable
assistance, as well as the absence of any explanation regarding defense
counsel’s strategy, we cannot say that Diaz has met his burden of showing by a
preponderance of the evidence that his counsel’s failure to file a motion to recuse
the trial court judge or failure to object that the same judge who had signed the
blood warrant presided over the suppression hearing and the trial fell below the
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standard of prevailing professional norms.2 See Strickland, 466 U.S. at 688–89,
104 S. Ct. at 2065. Because Diaz has not satisfied the first prong of Strickland,
we overrule his sole point. See id.
IV. CONCLUSION
Having overruled Diaz’s sole point, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DAUPHINOT, J. filed a concurring opinion.
PUBLISH
DELIVERED: August 30, 2012
2
Contrary to the concurring opinion’s position, the issue before us is not
“the trial judge’s position as a witness and the necessary ramifications of the trial
judge’s position” but whether Diaz met his burden to obtain appellate relief on his
claim of ineffective assistance of counsel based on counsel’s failure to file a
motion for recuse or to object to the trial judge hearing his motion to suppress or
presiding at his trial.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00373-CR
JOE MANUEL DIAZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
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CONCURRING OPINION
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The trial judge who signed the warrant heard the motion to suppress the
fruits of the warrant. In effect, the trial judge heard the appeal from his own
action in determining the sufficiency and validity of the affidavit in support of the
warrant. Although not called to testify, the trial judge was also a witness to the
accuracy of the date and time the warrant was signed and to the identity and
authority of the magistrate who signed the warrant.1
Rule 605 of the Texas Rules of Evidence provides that a presiding judge at
a trial may not testify as a witness.2 In his concurrence to Harris v. State,
Presiding Judge Onion discussed what was then new rule 605 in the context of
the trial judge’s unsworn and uncross-examined statements regarding whether
the jury had separated during deliberations, and he considered the treatment of
rule 605 by our sister court in Texarkana in Duvall v. Sadler.3 The Duvall court
had explained,
The rule is clear, and there remains only the narrower
question of the impact of the rule on the contention that the presiding
judge in the case may and did give probative testimony. The federal
counterpart of Tex. R. Evid. 605 is Fed. R. Evid. 605, effective
January 2, 1975, thus antedating the Texas rule by several years.
The Federal rule is identical in wording with the Texas rule. The
Notes of the Federal Advisory Committee on Proposed Rules
describes Fed. R. Evid. 605 as a broad rule of incompetency. The
notes in part say:
1
See Haynes v. State, 468 S.W.2d 375, 378 (Tex. Crim. App. 1971)
(discussing former magistrate’s practice of signing blank pads of arrest warrants),
cert. denied, 405 U.S. 956 (1972); City of Dallas v. Moreau, 697 S.W.2d 472,
473–74 (Tex. App.—Dallas 1985, no writ) (discussing the firing of a Dallas
municipal court bailiff for refusing to stamp blank warrants with the municipal
judge’s signature).
2
Tex. R. Evid. 605.
3
738 S.W.2d 207, 227–30 (Tex. Crim. App. 1986) (Onion, P.J., concurring)
(op. on reh’g), cert. denied, 484 U.S. 872 (1987). (also discussing Duvall v.
Sadler, 711 S.W.2d 369, 375 (Tex. App.—Texarkana 1986, no writ) (op. on
reh’g).
2
The solution here presented is a broad rule of
incompetency, rather than such alternatives as
incompetency only as to material matters, leaving the
matter to the discretion of the judge, or recognizing no
incompetency. The choice is the result of inability to
evolve satisfactory answers to questions which arise
when the judge abandons the bench for the witness
stand. Who rules on objections? Who compels him to
answer? Can he rule impartially on the weight and
admissibility of his own testimony? Can he be
impeached or cross-examined effectively? Can he, in a
jury trial, avoid conferring his seal of approval on one
side in the eyes of the jury? Can he, in a bench trial,
avoid an involvement destructive of impartiality?
Adopting Fed. R. Evid. 605 word for word implies the Supreme
Court of Texas intended that Tex. R. Evid. 605 be, like the federal, a
broad rule of incompetency.
The Supreme Court of Texas, as rule maker, has determined
that, on balance, testimony of the presiding judge in a case will not
contribute to a just determination of issues in the case. If a presiding
judge does, despite the rule, testify to admissible facts, is the
presiding judge’s testimony to be considered as probative evidence
by a reviewing court? The conclusion is reached that such
testimony may not be considered. The basis for this conclusion
goes beyond reluctance to legitimize the product of an illegitimate
act, or under the circumstances shown, to treat the testimony as “the
fruit of the poisoned tree.” Disregard of the testimony is justified
upon the grounds that it nullifies an involvement in the case by the
judge that is destructive of impartiality and enforces the policy
underlying the rule.
As a trier of the facts, the presiding judge who testifies must
consider and pass upon his volunteered testimony and credibility in
determining the facts proved. The rule relieves the judge of such
onerous duty. If testifying so impinges upon impartial justice as to
be prohibited, logically, the judge’s testimony will have the same
effect and should be prohibited. The intent of the prohibition is to
keep the testimony from the prohibited source out of the record. The
conclusion is inescapable that maintenance of impartiality requires a
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reviewing court to disregard the presiding judge’s statement in
question.4
In the case now before this court, the issue is not that of traditional bias on
the part of the trial judge but, rather, as in Duvall, the trial judge’s position as a
witness and the necessary ramifications of the trial judge’s position. Because the
majority does not adequately address this significant issue, I must respectfully
concur.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: August 30, 2012
4
Duvall, 711 S.W.2d at 375–76 (footnote omitted).
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