In the Interest of E.A. and D.A., Children--Appeal from County Court at Law No. 1 of Wichita County

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State: Texas

Court: Texas Northern District Court

Docket No: 02-07-00215-CV

Case Date: 12/06/2007

Plaintiff: JOSEPH BARRERA

Defendant: THE STATE OF TEXAS--Appeal from 156th District Court of Bee County

Preview:Salvador Rico v. The State of Texas--Appeal from County Court at Law No 7 of Bexar County
MEMORANDUM OPINION

No. 04-04-00778-CR

Salvador RICO, Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law No. 7, Bexar County, Texas Trial Court No. 875034 Honorable Monica Guerrero, Judge Presiding Opinion by: Sarah B. Duncan, Justice Sitting: Sarah B. Duncan, Justice Karen Angelini, Justice Sandee Bryan Marion, Justice Delivered and Filed: March 29, 2006

AFFIRMED Salvador Rico appeals the judgment convicting him of and sentencing him for the assault on his ex-wife Arleen in January 2004. Rico argues his trial counsel rendered ineffective assistance. We disagree and affirm the trial court s judgment. 1. Rico first argues his trial counsel rendered ineffective assistance by failing to cross-examine Arleen about her past harassment of Rico and his girlfriend Edelmira Ramos and, if Arleen denied the incidents, present evidence of these

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incidents. // However, Rico s trial counsel testified at the new trial hearing that, during the short period of time he had to decide whether to raise these matters, he discussed it with Rico, suggested to Rico that he did not think the evidence would help, and Rico agreed. // And Rico s trial counsel did introduce evidence of Arleen s jealous and violent nature and of her previous false accusations of assault through Rico, who testified in detail not only about the general history of his relationship with Arleen but also about several specific incidents, including the two assault charges Arleen had filed against Rico, the dismissal of the first charge, and a jury s acquittal in the second. We conclude that trial counsel s decisions to forego cross-examining Arleen and introducing evidence of other specific events was clearly a strategic decision and, in light of the record as a whole, not unreasonable. See Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App.), cert. denied, 506 U.S. 885 (1992) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed.2d 674 (1984)). 2. Rico next argues his trial counsel provided ineffective assistance by failing to cross-examine Arleen regarding a 1997 incident in which she intentionally injured herself and lied to hospital personnel, telling them that she had fallen on a glass table while she was trying to clean a ceiling fan. Rico sought to introduce this evidence to support his defensive theory that the injuries for which he was charged were self-inflicted. However, Rico s trial counsel testified he decided not to question Arleen about this incident because it was so remote in time; he had no supporting evidence // ; and he did not want to develop sympathy for Arleen by appearing to attack her unjustly. Because Rico s trial counsel provided a plausible professional reason for his decision not to examine Arleen about the 1997 incident, Rico has failed to establish deficient performance. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); see also Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005) ( Cross-examination is inherently risky, and a decision not to cross-examine a witness is often the result of wisdom acquired by experience in the combat of trial. ). 3. Rico next argues his trial counsel should have used a January 3, 2004 letter from Arleen to Rico to impeach Arleen s trial testimony that she did not know when she went to the motel with Rico that he had a girlfriend. However, the letter does not contradict Arleen s testimony; it simply reflects that Arleen knew a woman was pregnant and claiming the baby was Rico s (which Arleen acknowledged in her trial testimony), urges Rico not to believe the claim, and repeatedly lists a phone number for a DNA lab. Nowhere in the letter does Arleen acknowledge that the woman is Rico s girlfriend. In fact, the letter states that the previous weekend Rico had told Arleen he was in love with her. 4. Rico also argues his trial counsel was ineffective in failing to use the letter to demonstrate Arleen s state of mind, the degree of her anger, and her threats to Rico and in failing to make a bill of exceptions so he could challenge on appeal the trial court s ruling sustaining the State s hearsay objection when Rico s trial counsel sought to have Arleen read the letter. However, Rico referred to the letter during his testimony and testified that it said payback s a bitch ; and, more importantly, Rico s trial counsel testified at the new trial hearing that he intended to pursue a bill of exceptions but changed his mind when he spoke with the jurors after the verdict and learned they focused on Rico s and Arleen s state of mind during the time they were together at the motel and Rico s and Arleen s testimony that everything was fine from Wednesday evening until Saturday. In light of this testimony, the jurors simply could not believe that Arleen all of a sudden got so distraught that she smacked herself in the face with a beer can. In light of the jurors comments, Rico s trial counsel concluded that evidence of Arleen s state of mind several weeks earlier would not have resulted in a different outcome. We agree and conclude that Rico has failed to establish that, but for counsel s alleged errors, the result of the proceeding would have been different. 5. Finally, Rico argues the cumulative effect of the foregoing conduct of his trial counsel deprived him of effective assistance of counsel. We disagree. Conduct that is not shown to be deficient does not become deficient simply by cumulating it. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000); Melancon v. State, 66 S.W.3d 375, 381 (Tex. App. Houston [14th Dist.] 2001, pet. ref d). And Rico has not shown that the outcome of the proceeding would have been different but for counsel s failure to use Arleen s letter to show her state of mind. The trial court s judgment is affirmed. Sarah B. Duncan, Justice

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