Brandy Salinas, Individually and as Next Friend of Alexandria Milbeck, Makayla Salinas and Valerie Salinas; Anna Madrigal, Individually and as Next Friend of Erica Madrigal and Stephanie Vasquez, Indi

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2010 » Brandy Salinas, Individually and as Next Friend of Alexandria Milbeck, Makayla Salinas and Valerie Salinas; Anna Madrigal, Individually and as Next Friend of Erica Madrigal and Stephanie Vasquez, Indi

State: Texas

Court: Texas Northern District Court

Docket No: 07-09-00260-CV

Case Date: 11/29/2010

Plaintiff: SAMBRANO CORPORATION D/B/A SAMCORP GENERAL CONTRACTORS

Defendant: VICTOR ROCHA D/B/A TEXAS LANDSCAPES--Appeal from County Court at Law No 1 of Hidalgo County

Preview:Juan Carlos Rangel v. State of Texas--Appeal from 175th Judicial District Court of Bexar County
No. 04-00-00372-CR Juan Carlos RANGEL, Appellant v. The STATE of Texas, Appellee From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 1999-CR3348 Honorable James Barlow, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Alma L. L pez, Justice Paul W. Green, Justice Karen Angelini, Justice Delivered and Filed: September 19, 2001 AFFIRMED This appeal is from a conviction for the offense of aggravated robbery. The jury found Juan Carlos Rangel guilty and sentenced him to twenty seven and one-half years confinement. On appeal, Rangel complains that the trial court erred in refusing to permit defense counsel to pursue a valid defense strategy and in allowing joinder of offenses. Rangel further argues that he was denied effective assistance of counsel and that the evidence was factually insufficient to support his conviction. We affirm the trial court's judgment. Factual and Procedural Background On September 26, 1998, Juan Garcia and Alex Aguillan were celebrating Aguillan's birthday at a bar. When the bar closed at 2:00 a.m., the two men left and drove in their separate cars to a gas station to use the phone. As Garcia was using the phone, a car approached and about seven or eight young men got out. They threw beer at Garcia, hit Aguillan, and pulled out a gun. They waved the gun around and demanded money and Garcia's car keys. They held the gun to Aguillan's head and tried to shoot, but the gun apparently jammed. According to Garcia, they looked like gang members. The young men then took money from the two men and drove off in Garcia's car. After reporting the incident to the police, the two men went home. At approximately 4:00 a.m. that same morning, Carmen Medina was parked in front of a store waiting for her boyfriend to get off work. A car approached and two men got out. One of the men pointed a gun at her and demanded "all you got." The other man said "blow her away." At that point, the man with the gun shot Medina, but she was able to drive away and summon the police. The car the two men were in turned out to be Garcia's stolen car. Medina identified Rangel as the man who shot her. Two police officers testified that, while investigating the Medina shooting, they stopped a vehicle near where Medina was shot that matched the description of Garcia's stolen car. Rangel was driving the vehicle. The vehicle was, in fact, Garcia's stolen car. The officers arrested Rangel and another man who was with him. At about 5:00 a.m., Garcia received a phone call from the police informing him his stolen car had been recovered. He

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met the police and identified his car. He also saw a police car with Rangel in the back seat. He identified Rangel as one of the men who robbed him. Garcia testified that, although Rangel was among the men who robbed him, it was another one of the men who actually held the gun. He also stated that the men who robbed him were all acting together. At trial, Rangel's defense attorney attempted to ask Medina questions regarding her 15-year-old son. Defense counsel explained to the court that he was trying to develop a defensive theory that Medina's son was involved in gang activity and that the men who shot Medina did so because they recognized the car as one that Medina's son had been seen in. The trial court sustained the State's objections to relevancy. Following the presentation of the evidence, the jury found Rangel guilty and sentenced him to twenty seven and onehalf years confinement. Discussion Defense Strategy In his first issue, Rangel complains that the trial court erred in refusing to allow his trial counsel to pursue a valid defense strategy in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, Rangel argues that his attorney was prevented from inquiring into Medina's son's possible involvement in gang activity. In support of his argument, Rangel cites Geders v. United States, 425 U.S. 80 (1976). In Geders, the Supreme Court held that a criminal defendant did not receive a fair trial because the trial judge entered an order preventing the defendant from consulting with his counsel during an overnight recess. Id. at 91. Geders is distinguishable and inapplicable to the facts of this case. In this case, Rangel's attorney was not prevented from developing a trial strategy due to the inability to consult with his client. Rangel's true complaint is that the trial court erred in excluding evidence which prevented him from attempting to show that Medina was shot because her 15-year-old son may have been involved in gang activity. Thus, we must review whether the trial court erred in excluding the evidence. While cross-examining Medina, Rangel's attorney asked her the name of her 15-year-old son. The State objected on the basis of relevance and the trial court sustained the objection. Rangel's attorney then told the court he was attempting to show that Medina's son was involved in gang activity and that, because the son had been seen in Medina's car, "that's how the shooting went down." First, we note that Rangel did not preserve error. See Tex. R. App. P. 33.2 ; Jenkins v. State, 948 S.W.2d 769, 775 (Tex. App.-San Antonio 1997, pet. ref'd )(holding where no offer of proof to show facts defendant could have proved through cross-examination of adverse witness, the issue is not preserved for appeal). Nothing appears in the record showing what evidence would have been adduced had Rangel's attorney been permitted to question Medina about her son's gang involvement. Even if Rangel had preserved error, however, the trial court did not abuse its discretion in excluding the testimony on relevancy grounds. Determining whether evidence is relevant lies within the sound discretion of the trial court and the court's ruling will not be disturbed on appeal absent a clear abuse of discretion. See Winn v. State, 937 S.W.2d 124, 127 (Tex. App.-Amarillo 1996, no pet.). "Relevant evidence" is evidence which has a tendency to make the existence of any fact of consequence to the determination of the case more probable or less probable than it would otherwise be. See Tex. R. Evid. 401. Rangel argues that he should have been able to show that Medina's son was involved in gang activity, that he had been seen in Medina's car, that a group of youths recognized the vehicle, and the shooting resulted. Rangel, however, has not shown how these facts, even if true, have any bearing on any fact of consequence in this case other than to state that "a reasonable doubt might have been created in the jury's mind." The trial court did not abuse its discretion in excluding the testimony, and we overrule Rangel's first issue on appeal. 2. Joinder of Offenses In his second issue, Rangel contends the trial court erred in allowing joinder of offenses despite Rangel's absolute right of severance. Rangel argues that the judge "essentially joined the three cases involving Juan Garcia, Alex Aguillon and
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Carmen Medina for purposes of evidence and testimony, but not for purposes of punishment." Rangel cites Texas Penal Code, section 3. 04, which provides that when two or more offenses arising out of the same criminal episode are joined for trial, the defendant has a right to a severance of the offenses. Again, we first note that Rangel has failed to preserve error. See Thornton v. State, 986 S.W.2d 615, 617-18 (Tex. Crim. App.1999)(holding that timely motion for severance must be made pre-trial). Rangel filed no motion requesting severance. Furthermore, the indictment in this case only alleged offenses against Garcia. The indictment contained no charges concerning the offenses committed against Aguillon or Medina. We overrule Rangel's second issue on appeal. 3. Ineffective Assistance of Counsel In his third and fourth issues on appeal, Rangel contends he was denied effective assistance of counsel in violation of the United States and Texas Constitutions. Specifically, Rangel claims his trial counsel was ineffective in failing to request a pre-trial conference on his Motion in Limine, failing to request a competency examination, failing to timely request notice of Rule 404(b) introductions, and failing to timely request notice of 37.07(3)(g) introductions. The right to assistance of counsel includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In assessing the effectiveness of counsel, this court applies the two-prong test set forth by the Supreme Court in Strickland v. Washington. Holland v. State, 761 S.W.2d 307, 315 (Tex. Crim. App. 1988). This test requires this court first to determine whether counsel's performance was deficient. See id.; Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999); Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App. -San Antonio 1991, pet. ref'd). If so, we then review whether there is a reasonable probability that the outcome would have been different but for counsel's deficient performance. See Strickland, 466 U.S. at 687. In order to meet this standard, the appellant must overcome the presumption that counsel's conduct lies within the "wide range of reasonable representation." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). Whether an appellant has met this standard is judged by the totality of the representation rather than by scrutinizing individual acts or omissions committed by trial counsel. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986); Paez v. State, 995 S.W.2d 163, 170 (Tex. App. -San Antonio 1999, pet. ref'd). The Court of Criminal Appeals has stated that "in the vast majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland." See Thompson v. State, 9 S.W.3d 808, 814 n.6 (Tex. Crim. App. 1999). This case is no exception. The record in this case is silent as to why trial counsel failed to take the actions of which Rangel complains. Therefore, Rangel has not rebutted the presumption that trial counsel acted reasonably. See id. at 814. We overrule Rangel's third and fourth issues on appeal. 4. Factual Sufficiency of the Evidence Rangel argues that the evidence is factually insufficient to support his conviction for aggravated robbery with a deadly weapon. Specifically, he urges the court to consider Garcia's testimony that he did not see Rangel with a gun. In considering the factual sufficiency of the evidence, this court views all of the evidence in a neutral light, setting aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000);Clewis v. State, 922 S.W. 2d 126, 129 (Tex. Crim. App.1996). We review the jury's deliberation and weighing of the evidence in a deferential manner in order to avoid substituting our judgment for the jury's. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 133. Garcia did, in fact, testify that another of the young men involved in the robbery was the one holding the gun. Garcia also testified, however, that Rangel was with the group of young men who robbed him and that the young men who robbed him were all acting together. Further, the trial court included an instruction on the law of parties in the charge to the jury. Reviewing all the evidence in a neutral light, we cannot say that the evidence of guilt is so weak as to undermine confidence in the verdict or that the evidence of guilt is greatly outweighed by contrary proof. We find the evidence factually sufficient to sustain the conviction and overrule Rangel's fifth issue on appeal. Conclusion
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Finding no error in the trial court, we overrule Rangel's five issues on appeal and affirm the judgment of the trial court. Karen Angelini, Justice DO NOT PUBLISH

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