Salguero, Hector v. State ( 2002 )

  In The

Court of Appeals

For The  

First District of Texas

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NO. 01-01-00508-CR

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HECTOR SALGUERO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 863168

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O P I N I O N

          A jury convicted appellant, Hector Salguero, of assaulting a family member, and the trial court assessed punishment at three years’ confinement in prison. In eight points of error, appellant contends that the trial court committed reversible error because (1) the trial court did not have jurisdiction to hear the case, (2) the evidence was legally and factually insufficient to sustain the conviction, (3) the trial court improperly limited appellant’s cross-examination, and (4) appellant was denied effective assistance of counsel. We affirm.   

Facts

          Viewed in the light most favorable to the verdict, the record reflects that, on the night of November 5, 2000, appellant and his wife, Elizabeth Salguero, celebrated her birthday at a nightclub. After they left the club, appellant was driving their car on the highway when Elizabeth asked why appellant chose to leave the club. Appellant responded that Elizabeth “had to obey him” and “not to ask anything else” or appellant would “throw [Elizabeth] out of the car.” Appellant then slowed the car to an estimated 20 miles per hour, opened Elizabeth’s door, and pushed her out onto the highway.

          After Elizabeth was pushed from the car, a vehicle driving behind them stopped, and a man got out to check on Elizabeth. Appellant told the man that Elizabeth jumped from the car in an effort to commit suicide. The man told appellant to call an ambulance. Although appellant dialed 911, he did not wait for the ambulance and instead put Elizabeth back in the car and drove home.

          When they arrived at their house, appellant dragged Elizabeth by her hair from the car to their bedroom. Once in the bedroom, appellant struck Elizabeth in the face several times with his fist. Appellant then ripped the clothing off Elizabeth’s body, pushed her to the floor, and kicked her on the ground. Elizabeth lost consciousness shortly thereafter.

Jurisdiction

          In his first point of error, appellant contends that the trial court, a district court, did not have jurisdiction over his assault charge because the State failed to prove the jurisdictional enhancement paragraph. Appellant’s indictment charged him with assaulting a family member and contained a jurisdictional enhancement paragraph alleging that appellant had previously been convicted of assaulting a family member. As such, the charge alleged a third degree felony. See Tex. Pen. Code Ann. § 22.01(b) (Vernon Supp. 2002). Without the jurisdictional enhancement paragraph, the charge alleged a misdemeanor. See id. A district court has original jurisdiction to hear felony cases. See Tex. Code of Crim. Proc. Ann. art. 4.05 (Vernon Supp. 2002).

          Appellant complains of the State’s method used to prove the enhancement paragraph. The State proved the enhancement paragraph was an assault involving family violence through the testimony of the complainant in that case. Appellant asserts the State failed to meet its burden of proof regarding enhancement because the judgment of conviction in the enhancement paragraph did not contain an affirmative finding of family violence. According to appellant, such a failure stripped the district court of its jurisdiction to hear this case.

          Appellant rests his argument on article 42.013 of the Code of Criminal Procedure. Tex Code Crim. Proc. Ann. art. 42.013 (Vernon Supp. 2002). Article 42.013 provides that, “in the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence . . . the court shall make an affirmative finding of the fact and enter the affirmative finding in the judgment of the case.” Id. Appellant asserts that the State was precluded from proving family violence in his prior conviction because that conviction did not contain the affirmative finding required by article 42.013.

          Contrary to appellant’s assertions, the law does not require that an enhancement alleging a conviction for assaulting a family member be proven solely by a judgment that contains an affirmative finding of family violence. See Collesano v. State, No. 01-01-00984-CR, slip op. at 6-7, (Tex. App.—Houston [1st Dist.] Aug. 29, 2002, pet. filed); accord State v. Eakins, 71 S.W.3d 443, 445 (Tex. App.—Austin 2002, no pet.). Such an enhancement can be proven through extrinsic evidence, such as testimony of a witness to the family assault, as here. See Collesano, slip op. at 6-7. At trial, the State presented extrinsic evidence to prove that appellant’s prior conviction resulted from a family assault. Appellant’s ex-wife testified that appellant was convicted for assaulting her, that they were married at the time of the assault, and that the prior conviction was the same conviction listed in the enhancement paragraph of the State’s indictment. Even though the judgment for the enhancement conviction did not include an affirmative finding of family violence, the State properly used extrinsic evidence to prove a prior conviction of family assault, thereby conferring jurisdiction upon the trial court. See id.

          We overrule appellant’s first point of error.

Sufficiency of the Evidence

          In his second and third points of error, appellant contends the evidence at trial was both legally and factually insufficient to support his conviction because of a fatal variance between the manner and means of appellant’s assault alleged in the indictment and the manner and means proven at trial. A variance occurs when a discrepancy exists between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). In this case, the indictment alleged that appellant assaulted Elizabeth by “kicking the complainant with his foot, striking the complainant with his fist, and pushing the complainant out of a moving vehicle with his hand.” Appellant argues that the indictment is sequentially flawed because the evidence at trial showed that appellant first pushed Elizabeth out of the car with his hand, then struck her in the face with his fist, and finally kicked her on the ground with his foot. Thus, according to appellant, a sequential discrepancy exists between the assault alleged in the indictment and the assault proven at trial.

          We disagree. The State’s indictment does not purport to list appellant’s assault in sequential order, and appellant cites us to no authority that requires sequential order in the indictment. Rather, the indictment charges appellant, conjunctively, with three alternative theories of the single offense of assault on a family member. The State is free to plead alternately, in a single indictment, the differing methods of committing a single offense. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Bogany v. State, 54 S.W.3d 461, 463 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). Furthermore, when the State alleges alternative methods of committing a single offense, it need only prove one of the methods to satisfy its burden of proof. See id. In this case, because the indictment charged appellant with assault on a family member conjunctively, rather than sequentially, and because the State need only prove one of the alternative methods of assault to convict appellant, we find no variance between the allegations of assault in the indictment and the evidence of assault proven at trial.

          We overrule appellant’s second and third points of error.

Limitation on Cross-Examination

          In his fourth through seventh points of error, appellant contends the trial court committed reversible error by limiting appellant’s cross-examination. Specifically, appellant argues that the trial court prohibited “an inquiry regarding whether the photographs the complainant had offered in this case were the same photographs from the related family law custody case of the children.”

          Despite appellant’s contention, we can find no such prohibition in the record. The record reflects the following exchange on cross-examination:

Appellant’s Counsel: Mrs. Salguero, in the, on 12-9-1998 you filed another assault charge against Mr. Salguero, didn’t you?

Elizabeth: I don’t remember.

Appellant’s Counsel: Do you remember a trial for an assault charge against Mr. Salguero in 1998, Mrs. Salguero?

Elizabeth: Yes.

Appellant’s Counsel: And do you remember what the outcome of that trial was?

Elizabeth: No.

Appellant’s Counsel: You don’t remember what the outcome of that trial was?

Elizabeth: No.

Appellant’s Counsel: You don’t remember what happened to Mr. Salguero?

Elizabeth: Remembering what?

Appellant’s Counsel: Do you remember if the jury found him guilty or not guilty?

Elizabeth: Yes, I do remember.

Appellant’s Counsel: And what, what did they find?

Elizabeth: Not guilty.

Appellant’s Counsel: Okay. And you had some photographs to offer at that trial, didn’t you?

The State: Objection, Your Honor, relevance.

Trial Court: That’s sustained.

Appellant’s Counsel: Mrs. Salguero, the reason you filed charges in that case was because of the divorce case that was in the family court; isn’t it?

The State: Objection, relevance and argumentative.

Trial Court: Sustained.

Appellant’s Counsel: May we approach, Your Honor.

Trial Court: Yes, ma’am.

Appellant’s Counsel: Your Honor, it goes to motive and pattern, and certainly is relevant.

Trial Court: Sush [sic].

Appellant’s Counsel: The reason for her filing these and the reason she’s filing today, she’s filed another divorce case.

Trial Court: There’s another case pending right now?

Appellant’s Counsel: There’s a custody case pending right now.

Trial Court: Well, I think the door was opened to – the door was opened that there was a previous trial and the results of that one, but I don’t think any reason why she filed a previous case that’s disposed of is really relative [sic] in this trial.

Appellant’s Counsel: Absolutely. It ties together – these same pictures was [sic] in both cases. She offered them both times to state why she was so afraid.

Trial Court: Well, we are not going to retry that other case.

Appellant’s Counsel: All right.

          Although appellant inquired into photographs used in connection with the 1998 assault trial in which he was acquitted, he did not inquire into photographs used in connection with this trial and their relationship to a custody case currently pending. As such, appellant’s point of error is forfeited because the complaint on appeal differs from the complaint at trial. McGinn v. State, 961 S.W.2d 161, 166 (Tex. Crim. App. 1998). Appellant cannot claim the trial court prohibited an inquiry that was never made at trial. Because appellant’s trial objection does not comport with the arguments he makes for the first time on appeal, his error is not preserved. See Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994); Sandoval v. State, 52 S.W.3d 851, 855 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).

          We overrule appellant’s fourth, fifth, sixth, and seventh points of error.

  Ineffective Assistance of Counsel

          In his eighth point of error, appellant contends that he received ineffective assistance of counsel because trial counsel did not issue a subpoena for a cell-phone records custodian to testify at trial. Appellant asserts that the custodian would have testified that appellant phoned 911 on the night of the assault and that this testimony would have resulted in “even a single holdout juror” and a mistrial.

          The constitutional right to counsel does not mean errorless counsel or counsel whose competency is judged by hindsight. Doherty v. State, 781 S.W.2d 439, 441 (Tex. App.—Houston [1st Dist.] 1989, no pet.). The standard for reviewing claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See Hernandez v. State, 726 S.W.2d 53, 54 (Tex. Crim. App. 1986). To be entitled to a reversal for ineffective assistance, appellant must show both (1) that counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) that, but for counsel’s error, the result of the proceedings would have been different; that is, a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

          The defendant bears the burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In determining whether the Strickland test has been met, we measure counsel’s performance on the totality of the representation afforded, not on individual alleged errors. See ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). A defendant must overcome the strong presumption that counsel’s conduct falls within a large scope of satisfactory representation. See Davis v. State, 930 S.W.2d 765, 767 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). To overcome this presumption, allegations of ineffectiveness must be firmly rooted in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

          The record does not support appellant’s claim that his trial counsel did not issue a subpoena for a cell-phone records custodian to testify at trial. Although the custodian did not appear at trial, the record does reflect that trial counsel issued the subpoena. Trial counsel may not have zealously ensured that the custodian would appear, but we cannot agree that trial counsel’s performance was deficient for failing to issue a subpoena that appears to have been issued. Once again, appellant’s complaint on appeal does not correspond to the events that happened at trial. See McGinn, 961 S.W.2d at 966. Even if appellant’s argument can be construed as a complaint against trial counsel’s failure to adequately ensure that a cell-phone records custodian would appear, trial counsel did present alternative evidence to prove that appellant phoned 911 on the night of the assault, including appellant’s testimony and cell-phone bill. Additionally, there was no dispute that, after the call was made, appellant left the scene before the ambulance arrived. Because the jury was able to consider the 911 phone call, and because appellant admitted he left the scene before the ambulance arrived, it is unlikely that buffering testimony from a records custodian would have changed the result of the trial proceedings. Thus, appellant has not met his burden under Strickland.

          We overrule appellant’s eighth point of error.

Conclusion

We affirm the judgment of the trial court.

                                                             Elsa Alcala

     Justice

Panel consists of Justices Taft, Alcala, and Price.

Do not publish. Tex. R. App. P. 47.4.