Elias Garcia v. State

NUMBER 13-13-00527-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ELIAS GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Justice Longoria
By eight issues, appellant Elias Garcia appeals his conviction and sentence for
burglary of a habitation, a second-degree felony enhanced to a first-degree felony by the
habitual offender statute. See TEX. PENAL CODE ANN. §§ 30.02(a), (c)(2), 12.42(b) (West,
Westlaw through 2013 3d C.S.). The State alleged that appellant broke into the house of
Andrew Scafidi, a professional security guard, and stole several firearms. The case was
tried to a jury, which returned a verdict of guilty and assessed punishment at sixty-five
years’ imprisonment in the Texas Department of Criminal Justice—Institutional Division.
We affirm.
I. DISCUSSION
The State asserts that all of appellant’s issues are multifarious. We agree. A
multifarious issue “is one that embraces more than one specific ground.” Stults v. State,
23 S.W.3d 198, 205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). “By combining
more than one contention in a single point of error, an appellant risks denial on the ground
that the issue is multifarious and presents nothing for review.” Prihoda v. State, 352
S.W.3d 796, 801 (Tex. App.—San Antonio 2011, pet. ref’d). We have discretion to “refuse
to review a multifarious issue or we may elect to consider the issue if we are able to
determine, with reasonable certainty, the alleged error about which the complaint is
made.” Gilley v. State, 418 S.W.3d 114, 119 n.19 (Tex. Crim. App. 2014) (quoting
Prihoda, 352 S.W.3d at 801); accord Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim.
App. 2010) (“Because appellant bases his single point of error on more than one legal
theory, his entire point of error is multifarious.”). To the extent that we can discern an
issue in the brief, it is that he purportedly received ineffective assistance of counsel. We
will address this issue in the interest of justice. See Davis, 329 S.W.3d at 803.
A. Standard of Review and Applicable Law
We evaluate claims of ineffective assistance of counsel under the strict standards
set forth by the United States Supreme Court in Strickland v. Washington. 466 U.S. 668,
687 (1984); see Foley v. State, 327 S.W.3d 907, 913 (Tex. App.—Corpus Christi 2010,
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pet. ref’d). Under the Strickland standard, appellant must show by a preponderance of
evidence that: (1) trial counsel’s representation fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that the result of the proceeding
would have been different but for the attorney’s deficient performance. Strickland, 466
U.S. at 687. “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012) (quoting
Strickland, 466 U.S. at 694). Appellate courts may address either prong first, and if an
appellant fails to prove one prong of the test, we do not need to address the other prong.
Id.
When evaluating the quality of trial counsel’s representation, 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). Even though “a single egregious error of
omission or commission” can constitute ineffective assistance, the Texas Court of
Criminal Appeals has been hesitant to designate any particular error as ineffective
assistance per se. Id. We apply “a strong presumption that counsel's conduct fell within
the wide range of reasonable professional assistance.” Id. Allegations of ineffectiveness
must therefore be “firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” Id. (citing McFarland v. State, 928 S.W.2d 482,
500 (Tex. Crim. App. 1996)).
The Texas Court of Criminal Appeals has explained that “trial counsel should
ordinarily be afforded an opportunity to explain his actions before being denounced as
ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (citing Bone
v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)). Direct appeal is usually inadequate
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to make an ineffectiveness claim because the record is frequently undeveloped in this
respect. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see Cox,
389 S.W.3d at 819 n.11 (observing that “a reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective-assistance claim”). Without
evidence of trial counsel’s strategy, “an appellate court will assume a strategic motivation
and will not conclude that the challenged conduct was deficient unless it was so
outrageous no competent attorney would have engaged in it.” Ozuna v. State, 199
S.W.3d 601, 612 (Tex. App.—Corpus Christi 2006, no pet.) (citing Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)).
B. Analysis
Appellant argues that he received ineffective assistance of counsel as a result of
five alleged omissions.1 However, the record is silent as to counsel’s reasons for failing
to perform these actions, and a silent record is generally insufficient to support an
ineffective assistance of counsel claim. See Goodspeed, 187 S.W.3d at 392; Rylander,
1 Appellant alleges that his counsel performed unreasonably because he did not:
(1) object to the prosecutor making “too many remarks about the amount of the possible
range of punishment . . . in the event that appellant was found guilty, that gave too
strong a hint that appellant was a convicted felon”;
(2) object when a jury member referred to appellant as a “habitual” as a result of those
remarks;
(3) object when the State offered latent print cards that had been taken at the crime scene
because the envelope that contained the print cards included a print out from the
“Evidence Locke” computer system which mentioned that appellant was also charged
with unauthorized use of a motor vehicle;
(4) call Mrs. Scafidi and her friend Vicki Cashion as witnesses to impeach Mr. Scafidi’s
testimony and statements to the police that no one in his family knew appellant;
(5) offer additional alternative explanations for how appellant’s fingerprints came to be on
Mr. Scafidi’s gun cabinet.
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107 S.W.3d at 110–11; Foley, 327 S.W.3d at 913. Moreover, we note that appellant
cannot establish deficient performance from the first alleged omission because our review
of the record indicates that the State did nothing more than attempt to qualify the jury on
the full range of punishment that would be available if the State proved a prior offense for
enhancement purposes, something either party may do. See Barnett v. State, 344
S.W.3d 6, 20 (Tex. App.—Texarkana 2011, pet. ref’d) (citing Frausto v. State, 642 S.W.2d
506, 509 (Tex. Crim. App. [Panel Op.] 1982)); accord Aschraft v. State, 900 S.W.2d 817,
832 (Tex. App.—Corpus Christi 1995, pet. ref’d).
Regarding the second and third alleged omissions, counsel’s failure to object,
appellant has not addressed whether the trial court judge would have committed error in
overruling the objections.2 Regarding the fourth alleged omission, appellant cannot
establish deficient performance because he has not established that he would have
benefited from the testimony of the witnesses he argues his counsel should have called
to testify.3 Regarding the fifth alleged omission, appellant asserts that his counsel did not
offer an additional alternative explanation for how appellant’s fingerprints were at the
scene of the crime, but we cannot second guess appellant’s trial counsel without giving
2 See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (holding that in order “[t]o show
ineffective assistance of counsel for the failure to object during trial,” an appellant “must show that the trial
judge would have committed error in overruling the objection”); accord Ex parte Martinez, 330 S.W.3d 891,
901 (Tex. Crim. App. 2011).
3 The Texas Court of Criminal Appeals has held that “failure to call witnesses at the guilt-innocence
and punishment stages is irrelevant absent a showing that such witnesses were available and appellant
would benefit from their testimony.” Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting
King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)). If appellant demonstrates both of those things,
he must also demonstrate that there is a reasonable probability that the witnesses’ testimony would have
affected the result of the trial. Id.
Appellant asserts that the testimony of Mrs. Scafidi and Cashion would have impeached the
testimony of Mr. Scafidi that no one in his family knew appellant, but appellant does not explain how
contradicting Mr. Scafidi on these matters would have affected the outcome of the trial. See id.
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counsel an opportunity to explain his trial strategy. See Goodspeed, 187 S.W.3d at 392.
In sum, we conclude that appellant did not rebut the strong presumption that his
counsel rendered constitutionally effective assistance. See id.; Thompson, 9 S.W.3d at
813; Rylander, 107 S.W.3d at 110–11; Foley, 327 S.W.3d at 913. We overrule his sole
issue.
II. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
22nd day of May, 2014.
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