Daniel Moreno v. State

Affirmed and Memorandum Opinion filed July 16, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00086-CR
DANIEL MORENO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1493090
MEMORANDUM OPINION
A jury found appellant, Daniel Moreno, guilty of capital murder1 and the
trial court sentenced him to life without the possibility of parole.2 On appeal,
appellant contends that the trial court erred by denying him an evidentiary hearing
on his motion for new trial. Next, appellant argues the trial court erred by denying
1
See Tex. Penal Code § 19.03(a)(2).
2
“[U]nder current Texas law, the only alternative to the death penalty for a defendant
convicted of capital murder is life without parole.” Ruiz v. State, No. AP-75,968, 2011 WL
1168414, at *7 (Tex. Crim. App. Mar. 2, 2011)
his motion for new trial based on ineffective assistance of counsel. Last, he
contends the trial court erred in denying admission of specific-act character
evidence and in denying his request for a jury instruction on duress. We affirm.
I. Background
In the early morning hours of December 22, 2015, appellant and co-
defendant J. Vazquez were captured on video surveillance approaching an on-duty
security guard (“the complainant”), who was sitting in his vehicle outside of a
convenience store. Appellant and J. Vazquez approached the complainant from
behind as he sat in his security vehicle. Appellant and J. Vazquez acted “fairly
tactically,” approaching the complainant in a manner called “stacking up”—a
maneuver officers use when executing warrants. Appellant and J. Vazquez were
positioned at the side of the building for approximately five minutes before
approaching the complainant. J. Vazquez approached the complainant at the
driver’s side, while appellant ran to the passenger side. Appellant and J. Vazquez
immediately shot at the complainant as soon as they each crossed the threshold
between the front and rear passenger windows.
After appellant shot at the complainant, he immediately ran to the driver’s
side to help J. Vasquez loot the complainant’s body. The surveillance footage
shows what appears to be appellant placing something into his coat after he was
reaching or leaning into the vehicle.
Appellant and J. Vazquez were both wearing gloves and had articles of
clothing covering their heads and faces; appellant had a green bandana covering
his nose and mouth. J. Vazquez held an AK-47 while appellant held a 9mm pistol.
While rummaging through the complainant’s vehicle, J. Vazquez gave
appellant the AK-47. According to appellant, J. Vazquez stole the complainant’s
2
handgun. After J. Vazquez left the car and went back towards the side or back of
the building, appellant lingered at the car. Appellant, without J. Vazquez present,
grabbed the complainant’s keys and tried to open the trunk of the security vehicle.
Appellant, apparently unable to open the trunk quickly enough, threw the keys
onto the ground by the car and ran away out of view of the surveillance camera.
Both appellant and J. Vazquez ran from the scene. Appellant, however, was behind
J. Vazquez by approximately 10 seconds.
When police found the complainant, he did not have a pistol in his gun belt,
even though the complainant had a layaway receipt for a .45 handgun.
Officers were ultimately able to identify appellant and J. Vazquez as
suspects and warrants were issued for their arrest.3 Officers arrested appellant
during a traffic stop and found a 9mm pistol attached to appellant’s leg. Also
during the arrest, officers found a ski mask and J. Vazquez’ photo identification. A
ballistics comparison indicated that the 9mm recovered from appellant’s leg fired
one of the shells/casings recovered from the murder scene. Additionally, officers
executed a search warrant at appellant’s home and recovered a number of relevant
items from appellant’s room:
 Three AK-47 rifles in their cases;
 324 rounds of unfired 9mm ammunition;
 1,532 rounds of unfired 7.62 x 39mm ammunition;
 34 magazines (both loaded and unloaded) for AK-47 rifles; and
 a green bandana and black latex gloves.
3
Because the parties are familiar with the facts of the case, its procedural history, and the
evidence adduced at trial, we provide only a general overview of the facts of the case. We
provide additional facts in the opinion as necessary to advise the parties of the Court’s decision
and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the
testimony and exhibits admitted at trial.
3
Appellant could not be excluded as a contributor to the major component of
DNA profiles developed from both the green bandana and the latex gloves.
Further, a ballistics comparison indicated that one of the AK-47 rifles fired 12 of
the 7.62 type casings recovered from the scene. Appellant owned both the AK-47
and the 9mm that were used in the murder.
The defense presented evidence that J. Vazquez had a reputation for
violence and manipulation, and that several witnesses held an opinion that J.
Vazquez was violent and manipulative. Appellant claimed that he acted out of fear
of J. Vazquez. However, appellant never stated that J. Vazquez threatened him, nor
that J. Vazquez intentionally pointed a firearm at appellant in order to coerce his
cooperation. According to appellant, J. Vazquez only told appellant they were
going to go scare someone out of J. Vazquez’ stuff. Appellant admitted that, if he
wanted to, he could have left J. Vazquez, but instead put on articles of clothing to
conceal his identity and joined J. Vazquez.
On January 25, 2018, a jury found appellant guilty of capital murder. The
court sentenced appellant to life without the possibility of parole. After appellant
was convicted, appellant retained new counsel and filed a motion for new trial
alleging various forms of ineffective assistance of trial counsel. The trial court
ordered appellant’s former trial counsel to file affidavits in response to the
allegations in the motion for new trial. The trial court held a hearing on the
motion, at which the State, appellant and appellant’s current counsel were present.
The trial court, after considering the affidavits and arguments of both counsel,
denied the motion for new trial. This appeal timely followed.
4
II. Analysis
A. Motion for new trial
In his first issue, appellant argues that the trial court abused its discretion in
denying appellant a hearing on his motion for new trial and in denying his motion
for new trial based on ineffective assistance of counsel. He argues on appeal that
we should grant him a new trial based on ineffective assistance of counsel.
1. Evidentiary hearing
a. Standard of review
Appellate courts review a trial court’s denial of a request for a hearing
regarding a motion for new trial under an abuse-of-discretion standard. Smith v.
State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). The right to a hearing on a
motion for new trial is not an “absolute right.” See, e.g., Reyes v. State, 849 S.W.2d
812, 815 (Tex. Crim. App. 1993); Moore v. State, 4 S.W.3d 269, 278 (Tex. App.—
Houston [14th Dist.] 1999, no pet.). Instead, a trial court abuses its discretion in
failing to hold a hearing on a motion for new trial if the motion (1) raises matters
which are not determinable from the record and (2) establishes reasonable grounds
showing that the defendant could potentially be entitled to relief. Smith, 286
S.W.3d at 338–39. To hold otherwise would deny the accused meaningful
appellate review. McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985).
On review, we do not substitute our judgment for that of the trial court;
rather, we decide whether the trial court’s decision was arbitrary or unreasonable.
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). A trial court
abuses its discretion in denying a motion for new trial only when no reasonable
view of the record could support the trial court’s ruling. Id.
5
The Court of Criminal Appeals has made clear the standard of review for
denials of motion for new trial when such a denial is based on affidavits only,
holding that “in the context of a denial of a motion for new trial, a deferential
rather than de novo standard applies to our review of a trial court’s determination
of historical facts when that determination is based . . . solely upon affidavits
regardless of whether the affidavits are controverted.” Holden, 201 S.W.3d at 763.
b. A hearing was held
The record shows that appellant was found guilty of capital murder on
January 25, 2018. On February 22, 2018, appellant (via new counsel C. Lewis and
A. O’Neill) filed a motion for new trial, including several affidavits (Herman
Moreno, appellant’s father; Arnold Esquivel, appellant’s friend; Janie Hernandez,
appellant’s friend; Elmer Vasquez, appellant’s cousin; and Christian Salgado,
appellant’s cousin) as well as other exhibits.
On March 28, 2018, the trial court ordered appellant’s former counsel
(C. Rodriguez and J. Romero) to file affidavits summarizing their actions in
representing appellant; to respond to allegations of ineffective assistance claims in
the motion for new trial; and to respond to other allegations contained in
appellant’s motion for new trial. C. Rodriguez and J. Romero filed affidavits on
March 30, 2018.
On April 6, 2018, appellant filed a “letter brief in response to Mr. Romero
and Mr. Rodriguez’s affidavits regarding trial strategy and Dr. Rebecca Hamlin.”
Attached to the letter brief as Exhibit 1 was the affidavit of Michelle Forsten,
office manager and head paralegal for C. Lewis’ law office.
In their appellate brief, appellant claims that the trial court did not hold an
evidentiary hearing on his motion for new trial; this assertion is belied by the
6
record. As set forth in the reporter’s record, on April 9, 2018, the trial court
conducted a hearing on appellant’s motion for new trial. The trial court opened the
hearing as follows:
On the record in Cause Number 1473090 [sic], the State of Texas
versus Daniel Moreno. The attorneys are present on the Motion for
New Trial. The Court has been provided with the motion, affidavits,
and the supplemental letter brief. So, at this time, having reviewed all
of the affidavits, I’ll entertain argument from both sides. And since
it’s their motion, I guess they get to go first.
Appellant’s counsel was present at the hearing. The State offered into
evidence the affidavits of C. Rodriguez and J. Romero, which were admitted
without an objection from appellant’s counsel. The trial court inquired if
everything else was in the record, to which appellant’s counsel responded
affirmatively. Argument was heard by the court. Closing statements were made
by the State and appellant’s counsel. The trial court denied appellant’s motion.
In his brief, appellant complains that the trial court allowed the prosecutor to
secure responsive affidavits from appellant’s former defense counsel instead of
allowing an evidentiary hearing. “It has long been held that a trial court may
decide a motion for new trial based on sworn pleadings and affidavits admitted in
evidence without hearing oral testimony.” Holden, 201 S.W.3d at 763. The record
does not reflect that appellant’s motion for new trial requested live testimony be
heard. Likewise, appellant does not claim that there was testimony that the trial
court prohibited. Moreover, appellant did not object during the hearing about the
form of the evidence the court received—either by affidavit or live testimony—nor
did he object in any manner to the introduction of evidence. He did not request a
continuance to obtain any additional evidence. Thus, any complaint about the
manner of the hearing was waived. Tex. R. App. P. 33.1.
7
For the first time on appeal, appellant contends the “trial court had no way of
determining the merit of the claims without a hearing.” We disagree. In this case,
the affiants (appellant’s father, cousins, friend) had already testified in the guilt-
innocence phase of the trial, and the trial judge had already had an opportunity to
evaluate the affiants. The court had received affidavits from appellant’s former
trial counsel and observed his representation throughout the trial. Finally, the trial
judge was familiar with the history and facts of the case. Because the trial judge
had sufficient information to determine the credibility of the affiants, we give
deference to the trial court’s resolution of the facts from conflicting affidavits.
Holden, at 763–64 (citing Manzi v. State, 88 S.W.3d 240 (Tex. Crim. App. 2002)).
Consequently, we cannot conclude that no reasonable view of the record could
support the trial court’s ruling. After ordering responsive affidavits be filed,
holding an evidentiary hearing, and hearing oral arguments of the parties, we hold
the trial court did not abuse its discretion in deciding the motion for new trial. See
id. at 764.
2. Ineffective assistance of counsel
Next, appellant asserts his trial counsel acted deficiently as follows:
 Hired counsel J. Romero failed to appear for trial;
 Hired counsel J. Romero’s associate C. Rodriguez refused to
explain J. Romero’s absence from the appellant’s trial, other
than to say that J. Romero was busy with other cases;
 Hired counsel J. Romero and his associate C. Rodriguez failed
to use a peremptory strike against Juror 55 (who was the
alternate but eventually deliberated with the jury) even after
C. Rodriguez moved to strike her for cause for admitting she
researched the appellant on the internet during voir dire and
learned about his past criminal acts;
 Hired counsel J. Romero and his associate C. Rodriguez failed
to visit the appellant in jail before trial in order to inform him of
8
their trial strategy or speak with him so that he could aid in his
defense;
 Hired counsel J. Romero and his associate C. Rodriguez failed
to investigate and prepare witnesses to testify in the appellant’s
case, including the appellant himself; and
 Hired counsel J. Romero and his associate C. Rodriguez failed
to investigate, give notice of, subpoena, and call Dr. Rebecca
Hamlin or another psychological expert witness.
a. Standard of review
When, as here, the defendant raises ineffective assistance of counsel claims
in a motion for new trial that is rejected by the trial court and reasserted on appeal,
we analyze the ineffective assistance of counsel issue as a challenge to the denial
of the motion for new trial. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim.
App. 2004). We review a trial court’s denial of a motion for new trial under an
abuse of discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim.
App. 2014). “We do not substitute our judgment for that of the trial court; rather,
we decide whether the trial court’s decision was arbitrary or unreasonable.”
Holden, 201 S.W.3d at 763.
“In the absence of express findings, as here, we presume that the trial court
made all findings in favor of the prevailing party.” Okonkwo v. State, 398 S.W.3d
689, 694 (Tex. Crim. App. 2013). We presume that all reasonable factual findings
that could have been made against the losing party were made against that losing
party. Colyer, 428 S.W.3d at 122; see also Johnson v. State, 169 S.W.3d 223, 239
(Tex. Crim. App. 2005) (we should “impute implicit factual findings that support
that trial judge’s ultimate ruling on that motion when such implicit factual findings
are both reasonable and supported by the record.”) (internal quotation omitted).
“Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Riley v. State, 378 S.W.3d 453, 456
9
(Tex. Crim. App. 2012), overruled on other grounds by Miller v. State, 548 S.W.3d
497 (Tex. Crim. App. 2018).
The trial court is the sole judge of witness credibility at a hearing on a
motion for new trial, whether presented through live testimony or affidavit.
Okonkwo, 398 S.W.3d at 694. We defer to a trial court’s findings of historical
facts as well as mixed questions of law and fact that turn on an evaluation of
credibility and demeanor. Riley, 378 S.W.3d at 458.
To show that the trial court abused its discretion in denying appellant’s
motion for new trial based on ineffective assistance of counsel, the record must
reflect that (1) his trial counsel’s performance fell below an objective standard of
reasonableness and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011). Appellant has the burden to establish
his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954,
956 (Tex. Crim. App. 1998). “An appellant’s failure to satisfy one prong of the
Strickland test negates a court’s need to consider the other prong.” Williams v.
State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S.
at 697. “We review de novo the trial court’s decision on the [Strickland] prejudice
prong while giving deference to the trial court’s implied resolution of the
underlying factual determinations supporting denial of the motion. . . .” Straight
v. State, 515 S.W.3d 553, 564 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).
To establish the first prong, deficient performance, appellant must prove that
his attorney’s performance “‘fell below an objective standard of reasonableness’
under prevailing professional norms.” Ex parte Moore, 395 S.W.3d 152, 157 (Tex.
10
Crim. App. 2013) (quoting Strickland, 466 U.S. at 688); see also Ex parte
Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011).
To prove harm, appellant “must demonstrate that he was prejudiced by his
attorney’s performance or that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Ex parte Moore, 395 S.W.3d at 158 (footnote omitted) (quoting
Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome [of the proceeding].” Id. at 158 n.3
(quoting Strickland, 466 U.S. at 694).
Additionally, “[a]ny 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, 813 (Tex. Crim. App. 1999);
accord Burgess v. State, 448 S.W.3d 589, 602 (Tex. App.—Houston [14th Dist.]
2014, no pet.). “There is a strong presumption that counsel’s conduct fell within
the wide range of reasonable professional assistance.” Thompson, 9 S.W.3d at
813. Therefore, appellant “must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” Ex
parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466 U.S. at 689).
Appellate courts view matters “from the viewpoint of an attorney at the time
he acted, not through 20/20 hindsight.” Ex parte Jimenez, 364 S.W.3d 866, 883
(Tex. Crim. App. 2012); see also Ex parte Overton, 444 S.W.3d 632, 640 (Tex.
Crim. App. 2014). We consider the totality of the representation, not counsel’s
isolated acts or omissions. Ex parte Jimenez, 364 S.W.3d at 883. The mere fact
that another attorney might have pursued a different tactic does not demonstrate
ineffectiveness. Id. The appellant bears the burden to demonstrate that no
11
plausible reason exists for an act or omission. Toledo v. State, 519 S.W.3d 273,
287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
b. Failure to meet first prong of Strickland
ii. Failure of attorney Joe Romero to appear and try the
case instead of Carlos Rodriguez
Appellant’s first two claims relate to appellant’s contention that his family
hired J. Romero to try his case and C. Rodriguez tried appellant’s case instead of J.
Romero. Appellant’s father attests that he hired only J. Romero.4 The affidavits of
J. Romero and C. Rodriguez indicate that appellant’s father hired the firm
“Romero & Associates” in which C. Rodriguez was the primary attorney that
practiced criminal law, and that C. Rodriguez was “in charge of the case from the
beginning.” As the fact finder, the trial court was entitled to believe the affidavits
of J. Romero and C. Rodriguez, including any portion that conflicted with
affidavits presented by appellant. See Odelugo v. State, 443 S.W.3d 131, 137
(Tex. Crim. App. 2014).
iii. Failure to peremptorily strike juror 55 and object to
juror 55 replacing juror 27
Appellant’s third claim is two part: trial counsel failed to peremptorily
strike juror 55 and failed to object to juror 55 replacing dismissed juror 27.
Appellant did not present this complaint to the trial court in his motion for new
trial.5 As such, the trial court’s order for trial counsel to respond by affidavit did
not include this allegation. Because this claim was not presented to the trial court,
the trial court could not and did not abuse its discretion, in not finding the alleged
4
Initially, appellant was represented by attorney C. Lewis. In or around January 2017,
appellant’s father substituted counsel by hiring Romero & Associates. After appellant was
convicted, he substituted counsel again, rehiring C. Lewis.
5
Appellant’s motion for new trial presented five allegations of ineffective assistance.
Appellant’s brief has six.
12
deficient performance regarding juror 55 presented grounds for a new trial. C.f.,
State v. Moore, 225 S.W.3d 556, 570 (Tex. Crim. App. 2007) (for motion for new
trial, trial court may not consider grounds not properly presented).
Even viewing this assertion—the failure to peremptorily strike juror 55—as
a direct ineffective assistance of counsel claim instead of the denial of the motion
for new trial, the record is silent on this issue. Although trial counsel did seek to
strike juror 55 for cause,6 his consideration of juror 59, whom he ultimately struck,
is absent from the record. “Nothing in the record proves that counsel’s voir dire
was the product of an unreasoned or unreasonable strategy, or that there was a fair
probability that it led to either an unreliable guilty verdict or unjust punishment.”
Bone v. State, 77 S.W.3d 828, 834 (Tex. Crim. App. 2002). Thus, appellant has
not met his burden of showing that trial counsel’s performance was deficient. Id.
(citing Jackson v. State, 877 S.W.2d 768, 769–71 (Tex. Crim. App. 1994) (defense
counsel’s failure to strike venireman who had been victim of crime and who stated
that he could not be fair did not establish ineffective assistance of counsel when
record did not reveal reasons for counsel’s decision); Delrio v. State, 840 S.W.2d
443, 446–47 (Tex. Crim. App. 1992) (defense counsel’s failure to strike venireman
who was former narcotics officer and knew defendant “by virtue of that
employment,” did not establish ineffective assistance of counsel when record was
insufficient to overcome presumption of competence).
Likewise, the record also does not reflect trial counsel’s strategy in agreeing
to replace juror 27 with juror 55. The record does reveal, however, that before
closing arguments juror 27 had contacted the bailiff expressing fear that appellant’s
6
Juror 55 alerted the bailiff that other potential jurors had sought outside information
about appellant’s case. Juror 55 twice stated that she would not be influenced by any outside
information she overheard. Juror 59 was the potential alternate juror that trial counsel ultimately
struck.
13
witnesses—whom she believed were gang members—were going to do her harm.
The juror appeared before the trial court and agreed she could be fair in her
deliberations; however, the trial judge expressed concern regarding the bailiff’s
comments on the case to the juror and dismissed juror 27. The trial court has
discretion to determine whether a juror has become disabled and to seat an
alternate juror. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012); see
Routier v. State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003).
Trial counsel was not ineffective in not using a peremptory strike on juror
55 and was not ineffective for agreeing to replace juror 27 with juror 55.
iv. Failure to investigate and prepare witnesses,
including appellant, and to inform appellant of trial
strategy
In appellant’s fourth and fifth issues, appellant maintains his trial counsel
was deficient because they failed to: investigate the facts of appellant’s case,
prepare witnesses to testify at trial, and to confer with appellant to prepare a
defense.
Counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. Salinas v.
State, 274 S.W.3d 256, 261 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).
“A particular decision not to investigate must be directly assessed for
reasonableness under all the relevant circumstances, allotting great deference to
counsel’s judgments.” Id. Error in strategy “will be considered inadequate only if
counsel’s actions lack any plausible basis.” Kesaria v. State, 148 S.W.3d 634, 638
(Tex. App.—Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 279 (Tex. Crim. App.
2006).
14
Here, the adequacy of trial counsel’s investigation into appellant’s case was
addressed in their affidavits. With regard to appellant’s preparation, the trial court
was presented two different accounts of the preparation of the case; an account by
appellant’s father, based entirely on appellant’s out-of-court statements to the
father, and an account given by both J. Romero and C. Rodriguez regarding the
extent of efforts they undertook to prepare appellant, both while in custody and
not in custody, and both before trial and during trial. Appellant’s claims on the
matter, essentially, rest entirely on the affidavit of appellant’s father. The trial
court was entitled to credit J. Romero and C. Rodriguez’ affidavits on this matter
and discount any allegations to the contrary. See Odelugo, 443 S.W.3d at 137.
Appellant has not proven that C. Rodriguez, or even J. Romero, acted deficiently.
Similarly, regarding appellant’s claims of inadequate preparation of other
witnesses, the trial court was free to discount the affidavits of appellant’s witnesses
claiming that they were underprepared. The trial court was free to find the
affidavits of C. Rodriguez and J. Romero credible. As revealed by the record, the
testimony of each witness was direct and targeted the particular information that
each witness had to contribute. By the end of the presentation of all of the
witnesses, the defense had clearly shown the propensity J. Vazquez had for
violence. Appellant does not identify any particular evidence that was not
presented that would have been discovered or presented through additional
investigation and preparation. Under these circumstances, the trial court did not
err in denying appellant’s motion for new trial based on trial counsel’s alleged
failure to investigate and prepare witnesses for trial.
In sum, the record reflects that appellant’s trial counsel reviewed the facts of
the case, discussed options with appellant, and made strategic decisions regarding
witnesses. “It is axiomatic that appellant’s constitutional right to counsel does not
15
mean errorless counsel where competency or adequacy of representation is argued
or judged purely by hindsight.” Holland v. State, 761 S.W.2d at 320 (Tex. Crim.
App. 1988). The fact that another attorney may have acted in a different manner is
not sufficient to prove ineffective assistance. Kesaria, 148 S.W.3d at 638.
Further, any error in trial strategy rises to the level of ineffective assistance only
when counsel’s actions lack any plausible basis. Id. Although in hindsight,
appellant’s trial counsel may have made strategic decisions that did not work
entirely in appellant’s favor, we cannot say these decisions lacked any plausible
basis or resulted from an inadequate investigation into the facts of appellant’s case.
v. Failure to call psychological expert witnesses
In his final claim, appellant asserts that his trial counsel was ineffective for
failing to investigate, give notice of, subpoena, and call Dr. Rebecca Hamlin or
another psychological expert. Although appellant makes several arguments
premised on the existence of, and conclusions contained in, an alleged report by
Dr. Hamlin, appellant does not cite to where this report is located in the record.
Arguments to support contentions made must contain cites to the record. Tex. R.
App. P. 38.1(i) (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record).
Appellant did not provide cites to the record. Indeed, appellant’s appendices and
the record are completely devoid of the report.7 Consequently, this court cannot
consider the merits of appellant’s claim regarding Dr. Hamlin and, more
importantly, the trial court could not have considered appellant’s claim either.
Consequently, appellant has waived this issue. See Tex. R. App. P. 38.1(i);
Thompson, 9 S.W.3d at 813 (“Any allegation of ineffectiveness must be firmly
7
In their affidavits, trial counsel assert that, though the file was full of references and
documents relating to Dr. Hamlin, they never received the report itself. This conflicts with the
affidavit of C. Lewis’ head paralegal in which she claims she turned it over with the file.
16
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness”). Under these circumstances, we conclude that the trial court did
not abuse its discretion in denying appellant’s motion for new trial on the basis of
ineffective assistance of counsel.
We therefore overrule appellant’s first issue.
B. Duress
In his second issue, appellant lodges two arguments. First, appellant
contends that the trial court abused its discretion in refusing to admit specific-act
character evidence regarding appellant’s co-defendant, J. Vazquez. Next,
appellants contends the trial court erred in refusing an instruction on the
affirmative defense of duress.
1. Denial of admission of evidence
a. Standard of review
We review a trial court’s determination of admissibility of evidence under an
abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim.
App. 2001) (citing Montgomery v. State, 810 S.W.2d 372, 386–88 (Tex. Crim.
App. 1990) (op. on reh’g)). Reviewing courts are to give trial court judges
“considerable latitude with regard to evidentiary issues,” and, “[d]ifferent judges
may reach different conclusions in different trials on substantially similar facts
without abusing their discretion. Fowler v. State, 544 S.W.3d 844, 848 (Tex.
Crim. App. 2018). The leeway afforded to trial courts in their evidentiary rulings
means that, “[a]s long as the trial court’s ruling is within the ‘zone of reasonable
disagreement,’ there is no abuse of discretion.” Devoe v. State, 354 S.W.3d 457,
469 (Tex. Crim. App. 2011). A reviewing court will uphold a trial court’s
evidentiary ruling if it is correct on any theory of law applicable to that ruling.
17
Fowler, 553 S.W.3d at 582; Devoe, 354 S.W.3d at 469. An appellate court would
misapply the appellate abuse of discretion standard of review by reversing a trial
court’s admissibility decision solely because the appellate court disagreed with it.”
Powell, 63 S.W.3d at 438 (citing Montgomery, 810 S.W.2d at 391).
b. Exclusion of specific-act character evidence
Appellant asserts the trial court erred in denying appellant’s request to put
on specific-act character evidence about the relationship between appellant and his
co-defendant to prove duress. The State contends appellant failed to properly
preserve error for review.
In order to preserve for review an evidentiary ruling that excludes evidence,
the ruling must “[affect] the substantial rights of the party,” and, the party must
inform “the court of the substance by offer of proof, unless the substance was
apparent from the context.” Tex. R. Evid. 103(a)(2); Holmes v. State, 323 S.W.3d
163, 168 (Tex. Crim. App. 2009). An offer of proof based on counsel’s
statements—as opposed to interrogation of a witness—“must include a reasonably
specific summary of the evidence offered and must state the relevance of the
evidence unless the relevance is apparent.” Warner v. State, 969 S.W.2d 1, 2 (Tex.
Crim. App. 1998). “The primary purpose of an offer of proof is to enable an
appellate court to determine whether the exclusion was erroneous and harmful. A
secondary purpose is to permit the trial judge to reconsider his ruling in light of the
actual evidence.” Id. (internal citation omitted).
Here, during the testimony of witness E. Vasquez, appellant’s trial counsel
attempted to elicit testimony regarding instances that E. Vasquez saw of “Jonathan
[co-defendant] taking advantage of Daniel [appellant] in the past, even at times by
using threatening language or actions.” Appellant did not present any specific
instance for the trial court to consider. Appellant’s affidavits do not present any
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specific instances. Instead, appellant indicated that he was “trying to keep it to just
general character in that respect regarding, you know, the defense of duress.”
Because the record reveals that appellant proffered nothing that rises to the level
contemplated in our Rules of Evidence and governing law, appellant failed to
properly preserve this issue for review. See Mays v. State, 285 S.W.3d 884, 891
(Tex. Crim. App. 2009) (“this sort of summary, in the most general and cursory
terms, without any of the meat of the actual evidence, will not suffice to preserve
error”).
Notwithstanding appellant’s failure to properly preserve this issue for
review, the trial court did not abuse its discretion in excluding specific-act
character evidence because appellant’s counsel stated that he intended to offer the
instances for “just general character.” Testimony about specific acts of a third
party for conformity purposes is prohibited by the rules of evidence. See Tex. R.
Evid. 404(b)(1). Appellant did not offer evidence of previous instances for
conformity under an exception to the rule.
Appellant’s issue is overruled.
2. Denial of jury instruction on duress
In his last issue, appellant argues that the trial court erred in denying his
request for a jury instruction on duress. The State argues the trial court properly
omitted an instruction on duress as there was insufficient evidence to support it,
and it never became applicable. The State also maintains that appellant did not
admit to the charged conduct.
a. Standard of review
In reviewing alleged jury charge error, appellate courts engage in a two-step
process. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Kirsch v.
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State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we determine whether
there was error in the charge. Cortez, 469 S.W.3d at 598; Kirsch, 357 S.W.3d at
649. Second, if we find there was error in the charge, we must then determine
whether sufficient harm resulted from the error to require reversal. Cortez, 469
S.W.3d at 598; Kirsch, 357 S.W.3d at 649
b. Not entitled to duress instruction
The affirmative defense of duress requires the defendant to have engaged in
the conduct because he was compelled to do so by threat of imminent death or
serious bodily injury to himself or another. Tex. Penal Code § 8.05(a).
Compulsion “exists only if the force or threat of force would render a person of
reasonable firmness incapable of resisting the pressure.” Id. § 8.05(c). The
affirmative defense of duress is not available if the actor “intentionally, knowingly,
or recklessly placed himself in a situation in which it was probable that he would
be subjected to compulsion.” Id. § 8.05(d).
A defendant must present evidence of a “threat of imminent death or serious
bodily injury to himself or another.” Tex. Penal Code § 8.05(a). A “threat” is
“imminent” when, “[f]irst, the person making the threat must intend and be
prepared to carry out the threat immediately” and, “[s]econd, carrying out the
threat must be predicated upon the threatened person’s failure to commit the
charged offense immediately.” Anguish v. State, 991 S.W.2d 883, 886 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d); Dupuis v. State, No. 14-03-01171-CR,
2005 WL 1355530, at *3 (Tex. App.—Houston [14th Dist.] June 09, 2005, pet.
ref’d) (mem. op., not designated for publication). The threat must be a “present
threat.” Kessler v. State, 850 S.W.2d 217, 222 (Tex. App.—Fort Worth 1993, no
pet.) (for duress claim, threat “must be a present threat”); c.f., Devine v. State, 786
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S.W.2d 268, 270 (Tex. Crim. App. 1989) (for offense of robbery, “imminent
threat” requires a present threat).
Courts have recognized that duress is, on its face, a confession-and-
avoidance or “justification” type of affirmative defense. See, e.g., Farmer v. State,
411 S.W.3d 901, 917 (Tex. Crim. App. 2013); Gomez v. State, 380 S.W.3d 830,
834 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (citing Rodriguez v. State,
368 S.W.3d 821, 824 (Tex. App.—Houston [14th Dist.] 2012, no pet.)). It is in the
nature of a confession-and-avoidance defense because “this justification, by
definition, does not negate any element of the offense, including culpable intent; it
only excuses what would otherwise constitute criminal conduct.” Gomez, 380
S.W.3d at 834 (citing Juarez v. State, 308 S.W.3d 398, 401–03 (Tex. Crim. App.
2010) (defining defense of necessity as confession-and-avoidance or “justification”
defense); Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007) (defining
Good Samaritan defense as confession-and-avoidance or “justification” defense)).
The confession-and-avoidance doctrine requires a defendant first to admit he
engaged in the prohibited conduct by admitting to all elements of the underlying
offense, including the applicable mental state, and then to claim his commission of
the offense was justified because of other facts. Gomez, 380 S.W.3d at 834. With
regard to duress specifically, “the other facts” must show the defendant acted out
of fear due to a threat of imminent death or serious bodily injury. See Tex. Penal
Code § 8.05(a).
A defendant cannot establish his action was justified without first
identifying, or admitting to the commission of, the predicate act. Gomez, 380
S.W.3d at 834. If the defendant fails to testify, stipulate, or otherwise offer
evidence admitting he engaged in the prohibited conduct, he is denied the benefit
of the defense of duress. Id. (citing Shaw, 243 S.W.3d at 659) (defendant is
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entitled to jury instruction on such defense only “when the defendant’s defensive
evidence essentially admits to every element of the offense, including the culpable
mental state, but interposes the justification to excuse the otherwise criminal
conduct” (emphasis omitted)). In other words, when the defensive evidence
merely attempts to negate an element of the offense, the defendant is not entitled to
a defensive instruction on any defense subject to the confession-and-avoidance
doctrine. Cornet v. State, 417 S.W.3d 446, 451 (Tex. Crim. App. 2013).
In this case, the trial court properly omitted an instruction on duress because
appellant did not present evidence of an objective reasonable threat that formed the
basis of duress. Despite several witness’ testimonies regarding the violent
character of J. Vazquez, the only person who would have had personal knowledge
about whether J. Vazquez made a threat was appellant. Appellant never testified
that J. Vazquez threatened him or otherwise forced him through the use or
exhibition of force to rob and kill the complainant. According to appellant, the
only communication that J. Vazquez had with appellant was when J. Vazquez told
appellant that they were “going to scare someone out of [J. Vazquez’] stuff.”
J. Vazquez never threatened appellant verbally or non-verbally. Appellant claimed
that a “threat” was “implied” by J. Vazquez’ “aggressiveness.” An implied threat
does not create an “objective, reasonable basis” for a claim of duress, even when a
defendant claims that he or she is generally afraid of his or her co-actor. See
Cameron, 925 S.W.2d at 250 (defendant’s claim that he was “generally afraid of
[his co-actor’s] temper” was insufficient without an objective threat to the
defendant to raise a claim of duress); see also Bernal v. State, 647 S.W.2d 699, 706
(Tex. App.—San Antonio 1982, no pet.) (claim that defendant feared co-actor
“might get violent” if he did not “take his turn” in sexual assault was insufficient to
establish an objective, reasonable basis for duress).
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In his brief, appellant claims that because J. Vazquez had a firearm on his
lap—which happened to be pointed at appellant—J. Vazquez implied a threat to
appellant. This is insufficient under either element of “imminent threat.” See
Anguish, 991 S.W.2d at 886. Appellant’s testimony was insufficient to show that
J. Vazquez did “intend and [was] prepared to carry out the threat immediately,” or
that the subjective implied threat was “predicated upon the threatened person’s
failure to commit the charged offense immediately.” Id. Appellant also claims that
J. Vazquez was “yelling commands” as appellant “participated in the offense.”
This, too, was insufficient to prove duress as none of the alleged commands were
threats. See Cameron, 925 S.W.2d at 250 (“the fact that a defendant is taking
orders from another, however, is not sufficient to raise the defense of duress”).
Appellant further admitted that, despite J. Vazquez’ implied threat, and appellant’s
own fear, that he “could have just left” before the commission of the offense.
Appellant’s admission that he could have left indicated that he was not under
duress. Tex. Penal Code § 8.05 (“Compulsion [for duress] exists only if the force
or threat of force would render a person of reasonable firmness incapable of
resisting the pressure”). By indicating that he could have left if he wanted to,
appellant not only revealed that there was no actual threat but showed that he was
capable of resisting whatever pressure J. Vazquez exerted, but chose not to.
Additionally, appellant refused to admit that he committed capital murder.
Appellant admitted that he was a “participant.” However, it was clear throughout
the rest of his testimony that he tried to negate certain elements of the offense.
When asked if he committed or attempted to commit the predicate felony—
robbery—to the capital murder, appellant steadfastly denied that he did.
Q: And y’all committed a robbery by taking that man’s weapon?
A: I didn’t commit the robbery but – no.
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Q: You didn’t commit the robbery?
A: No, ma’am.
Q: Did you want to?
A: No, ma’am.
Q: Did you attempt to go in that trunk and get the shotgun?
A: I just – I just went –
Q: “yes” or “no,” Mr. Moreno?
A: No.
According to Appellant, he did not intend to steal any items, but thought that he
and J. Vazquez were going to retrieve J. Vazquez’ property. Appellant further
claimed that he did not intend to kill the complainant, and that he pulled the trigger
because he was “startled”—i.e., that the shot he fired was reflexive. Appellant’s
claim of duress was defeated by his denial of the element of robbery and the denial
of his specific intent to kill the complainant. See Juarez, 308 S.W.3d at 404
(confession and avoidance is only satisfied by “an admission to the conduct, which
includes both the act or omission and the requisite mental state”).
Because the evidence never raised the affirmative defense of duress, we
conclude the trial court did not err in excluding such an instruction. We overrule
appellant’s second issue.
III. Conclusion
The judgment of the trial court is affirmed.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Christopher, Hassan, and Poissant.
Do Not Publish—Tex. R. App. P. 47.2(b).
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