Fabian Wayne Flores v. State

NUMBER 13-99-239-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

FABIAN WAYNE FLORES

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 183rd District Court of Harris County, Texas.

____________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Yanez and Kennedy⁽¹⁾

Opinion by Justice Kennedy

Appellant was convicted of murder. He pleaded "not guilty" to a jury and was found guilty. The jury assessed punishment at confinement for ninety-nine years. The evidence shows that appellant stabbed his victim to death in a motel room. The victim had given appellant a ride in his car and then took him to his motel room to spend the night. After the two parties were in the victim's room, appellant showered, at the victim's suggestion, and went to bed with the victim. The victim made a sexual advance to appellant and appellant took a knife from his bag and stabbed the victim to death. Appellant, in his confession, stated that he had wanted to kill someone since he was fourteen years old. He stated further that when he left home on the night of the incident, he carried a knife and planned to kill someone. He also stated that he had rejected rides from two previous men before he agreed to get in the victim's car.

This appeal brings fifteen points of error. The first eleven points, and points fourteen and fifteen, involve ineffective assistance of counsel at the trial. Point twelve challenges the failure of the trial court to suppress appellant's written statement to the police, and point thirteen involves the trial court's refusal to admit a certain defense exhibit into evidence.

In considering the ineffective assistance points, we are governed by the well recognized two-prong rule set out in Strickland v. Washington, 466 U.S. 668 (1984) and Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). In its simplest terms, the rule requires that in order for alleged ineffective assistance to require reversal of a conviction, an appellant must show both (1) that counsel's performance fell below the standard of prevailing professional norms, and (2) but for counsel's deficient performance, the result of the proceeding would have been different. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

The first five ineffective assistance points have to do with appellant's mental condition which resulted in his having been hospitalized in the past. It is alleged that trial counsel should have secured these hospital records before trial and should have used them to either plead insanity or in mitigation of punishment.

The next three ineffective assistance points allege error in trial counsel not securing and presenting evidence of the victim's character during the trial. In this connection, appellant's brief alleges a prior conviction of the victim in Oklahoma for preying on children. Also, the record shows that when appellant stabbed the victim, it was in response to a sexual advance by the victim toward appellant.

Points nine and ten allege ineffective assistance in not offering evidence of self-defense. The final two points, under the heading of trial counsel error, allege ineffective assistance in trial counsel's total performance.

The court of criminal appeals recently referred to the difficulty in substantiating a claim of ineffective assistance to be the lack of an adequately developed record. They said:

A substantial risk of failure accompanies an appellant's claim of ineffective assistance on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.

Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999).

A claim of ineffective assistance must be firmly rooted in the record. Jackson v. State, 877 S.W.2d 768, 771-2 (Tex. Crim. App. 1994). The reason an adequate record is so important in these cases is because, in the absence of a record, the court will indulge strong presumptions that counsel's performance was a part of trial strategy, and typically will not second-guess a matter of trial strategy. See Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999).

The trial court held a hearing upon a motion for new trial and the record of that hearing is before us. By order of the trial judge, the hearing was conducted on affidavits and exhibits. The trial attorney sent to the appellate attorney a letter affidavit which offers appellant no help save, perhaps, the statement that she has misgivings about (1) "objections to state's final argument that were overruled," and (2) "conclusory affidavit underlying arrest warrant" (we will deal with this in connection with point number eleven). She was also concerned about whether she missed an opportunity to introduce evidence about the victim being on deferred adjudication in Oklahoma for child molestation.

The ineffective assistance points can be stated, each in its most brief form, as follows:

One: failure to obtain records of appellant's mental health history.

Two: failure to introduce mental health records at guilt/innocense phase of trial.

Three: failure to introduce such records at punishment phase.

Four: failure to raise issue of sanity at time of offense at guilt/innocense phase.

Five: failure to raise such insanity issue at punishment phase.

Six: failure to investigate evidence of the victim's character as a child molester based upon a prior conviction in Oklahoma.

Seven: failure to offer evidence of such character at guilt/innocense phase.

Eight: failure to offer such evidence at punishment phase.

Nine: failure to offer evidence of self-defense at guilt/innocense phase.

Ten: failure to offer evidence of self-defense at punishment phase.

Eleven: failure to make arrest warrant and supporting affidavit part of record.

Fourteen: overall conduct denied effective assistance at guilt/innocense phase.

Fifteen: overall conduct denied effective assistance at punishment phase.

We have found nothing in the record before us that would substantiate a plea of insanity at the time of the offense for appellant and overrule points of error one, two, three, four, and five⁽²⁾.

We have examined all of the records available to us, including records introduced at the hearing on the motion for new trial. We have no way of knowing what any missing records would have shown. In view of appellant's confession, and the premeditated and brutal nature of the killing, we are not convinced that the victim's character would have helped reduce the ninety-nine year sentence. We know of no authority which would permit appellant to offer evidence of the victim's sexual misbehavior, either to show self-defense or mitigation of punishment. Appellant's own statement shows only a sexual advance unaccompanied by any threat of physical harm.

Appellant cites in support of points six, seven, and eight, Texas Rules of Criminal Evidence 412a(2) and Rule 401. He also cites Goff v. State, 931 S.W.2d 537, 552-3 (Tex. Crim. App.1996), to say that evidence of a relevant trait of character of the victim may be shown and that instances of bad conduct are admissible to rebut evidence of a victim's good conduct. Actually, this was the argument of appellant in Goff, quoted by the court. Id. at 552. Goff, supra, also said, with respect to Rule 401, "Questions of relevance should be left largely to the trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion. Id. at 553.

Rule 401 merely says:

"Relevant evidence" means evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Tex. R. Evid. Rule 401 (Vernon Special Pamphlet 2000). Rule 412a(2) is, perhaps a mis-cite because there is no such rule. Rule 412(b) refers to past instances of the victim's sexual behavior in prosecutions for sexual assault and has no bearing on this case. The evidence in the present case reveals that appellant did not know of his victim's past conduct, in fact, didn't know who the victim was until the trial date approached. In view of the manner in which the murder was committed, we cannot fault trial counsel for not having and presenting the prior conviction of the victim in Oklahoma.

Evidence of the victim's prior sexual misconduct could have been denied admission into evidence. We overrule points six, seven, and eight.

Points nine and ten fault trial counsel for not offering evidence of self-defense at either or both phases of the trial. The record does not support an element of self-defense. There is no evidence that appellant was in any danger of physical harm. On the other hand, the uncontroverted evidence shows that appellant planned the murder, picked his victim, and killed him. We overrule points nine and ten.

Point of error eleven alleges ineffective assistance because during the hearing on the motion to suppress appellant's statement, trial counsel did not insure that the warrant for appellant's arrest and its supporting affidavit were made a part of the record. The follow-up allegation is that such failure denies the appellate attorney the opportunity to review the documents, and negates the possibility that the appellate court may review these documents to determine if the trial court erred in denying the motion to suppress. Actually, these documents are before us as State's Exhibit 38A in the record of the trial. We have been shown no error(s) in the documents and have found none. We consider this point of error in connection with point number 12 which argues that the trial court erred in not suppressing appellant's statement. Appellant's brief gives no reason why the trial court erred other than to draw the conclusion that the "arrest was improper and illegal because it was based on insufficient affidavit." We overrule points eleven and twelve.

Point of error number thirteen alleges error by the trial court in sustaining a hearsay objection to a letter from trial counsel to appellate counsel introduced at the hearing on the motion for new trial. In the letter, trial counsel admits that she "missed a legitimate opportunity to introduce evidence that the [victim] was on deferred adjudication for child molestation in Oklahoma." (emphasis added). Appellant then argues that he had the right to show that trial counsel was in error (and thus ineffective) in that the victim had actually been convicted in Oklahoma and the refusal to admit the letter was error. Whether the letter was or was not hearsay would have no bearing on any assistance the letter would have given appellant on appeal. We held earlier that trial counsel was not ineffective in not attempting to prove the victim's criminal record. The error, if any, in sustaining a hearsay objection to the letter was harmless. The exclusion of the evidence did not affect a substantial right of appellant, and the trial court's ruling was not error. Tex. R. Crim. Evid. 103. We overrule point of error thirteen.

Appellant's final two points of error allege ineffective assistance in the overall conduct of trial counsel in the guilt/innocense phase of the trial (point fourteen) and also in the punishment phase (point fifteen). Having carefully examined and rejected all the allegations of ineffective assistance raised in appellant's brief, we feel that no

more need be said about this subject. We overrule points of error fourteen and fifteen and AFFIRM the judgment of the trial court.

Noah Kennedy

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 22nd day of June, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §74.003 (Vernon 1998).

2. The psychological evaluation of appellant by a psychologist does not indicate that appellant did not know right from wrong. The state's evidence shows a pre-incident plan to kill someone.