Richard Vargas v. The State of Texas

Case Number: 04-16-00212-CR

Judge: Luz Elena D. Chapa

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney: n

Joseph Johnson
W. W. Torrey

Defendant's Attorney:

Tyler Pennington

Description: Around midnight on a Friday morning, Vargas called his ex-girlfriend Carmen and asked
her to visit him at his brother’s apartment in Cameron, Texas. After Carmen arrived, she saw
Vargas with plastic bags and believed he was selling marijuana and cocaine. Carmen became upset,
and Vargas asked her to leave, but she refused. Vargas pushed and shoved Carmen, and she shoved
him back. He pulled Carmen by her hair and “dragged [her] out of the door.”
Vargas first went to his truck to leave, but then approached Carmen and pressed the sharp
metal blade of a pocketknife against her face. He told her that if she “ever put him behind bars, to
remember [she has] a family.” Vargas left town in his truck, but he was later arrested.
A grand jury indicted Vargas for aggravated assault with a deadly weapon. After Vargas
pled not guilty, the case proceeded to a jury trial. Carmen testified about the altercation with
Vargas. During Carmen’s cross-examination, Vargas sought to impeach Carmen by asking her to
explain a complaint from Vargas’s mother that Carmen committed criminal trespass by “going to
[Vargas]’s house [and] harassing him.” The trial court did not allow the line of questioning. The
State also presented the expert witness testimony of Jay Beathard, a Milam County constable, who
testified a pocketknife with a blade can be a deadly weapon. The pocketknife was never found. In
the jury charge, the trial court instructed the jury to find whether Vargas was guilty of assault with
a deadly weapon. Neither party objected to the jury charge. The jury found Vargas guilty as
charged, found the State’s enhancement allegations were true, and assessed punishment at fifty
years in prison.
Vargas filed an unsworn motion for new trial on the sole ground that “the jury’s verdict is
contrary to the law and evidence.” The trial court held a hearing on Vargas’s motion, and Vargas
argued at the hearing his trial counsel rendered ineffective assistance. No evidence was offered or
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admitted at this hearing. After the trial court denied his motion for new trial, Vargas timely
appealed.
EVIDENTIARY ISSUES Vargas argues the trial court erred by admitting Beathard’s expert witness testimony because he was not qualified to testify as an expert. He also argues the trial court erred by admitting
Carmen’s testimony that he was selling drugs and had stolen her car after the incident. Vargas
contends Carmen’s testimony was improper character evidence that was more prejudicial than
probative. He also argues the trial court excluded admissible evidence and violated his Sixth
Amendment right of confrontation by not allowing him to question Carmen about her “aggressive
character” and “criminal history.” A. Waiver “In order to preserve error on appeal, a party must make a timely specific objection,” and
the trial court must rule on the objection. Harnett v. State, 38 S.W.3d 650, 657 (Tex. App.—Austin
2000, pet. ref’d); accord TEX. R. APP. P. 33.1(a)(1)(A). When an appellant fails to timely object to
a witness’s testimony, the complaint for appeal is not preserved and is therefore waived. Harnett, 38 S.W.3d at 657. Vargas did not object during trial2 to Beathard’s qualifications or to his proffered
opinion testimony supporting the pocketknife could be a deadly weapon or to Carmen’s testimony
suggesting Vargas was selling drugs. Regarding Carmen’s testimony showing Vargas stole
Carmen’s car, Vargas objected but did not obtain a ruling from the trial court. The trial court
permitted the State to clarify Carmen’s testimony about Vargas taking her car, and Vargas did not
2 Vargas argues that although his counsel did not object to Beathard’s testimony, he timely objected to his testimony during the motion for new trial hearing. Vargas cites no authority supporting such an objection is timely. Moreover, this “objection” was actually Vargas’s complaint raised to argue trial counsel was ineffective for not objecting to this testimony.
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further object. Therefore, these complaints are not preserved for appeal and have been waived. See
id. B. Carmen’s “Aggressive Behavior” and “Criminal History” “The Sixth Amendment right to confront witnesses includes the right to cross-examine
witnesses to attack their general credibility or to show their possible bias, self-interest, or motives
in testifying.” Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). “Generally, the
right to present evidence and to cross-examine witnesses under the Sixth Amendment does not
conflict with the corresponding rights under state evidentiary rules. Thus, most questions
concerning cross-examination may be resolved by looking to the Texas Rules of Evidence.” Id.
(footnote omitted). Because Vargas does not argue his issue raises a question that cannot be
resolved by looking to the Texas Rules of Evidence, we consider whether the trial court’s ruling
violated state evidentiary rules.
Under Texas Rule of Evidence 404, “a defendant may offer evidence of a victim’s pertinent
trait” subject to certain limitations in sexual assault cases. TEX. R. EVID. 404(a)(3)(A). And under
Rule 608, a witness’s credibility may be attacked or supported by testimony about the witness’s
reputation for having a truthful character or opinion testimony about the witness’s character for
truthfulness. Id. R. 608(a). “Except for a criminal conviction under Rule 609, a party may not
inquire into or offer extrinsic evidence to prove specific instances of the witness’s conduct in order
to attack or support the witness’s character for truthfulness.” Id. R. 608(b). Rule 609 provides a
defendant may attack a witness’s character for truthfulness with evidence of a felony conviction
or crime of moral turpitude. Id. R. 609(a)(1).
“We review a trial court’s decision to disallow evidence for an abuse of discretion, and in
doing so, we reverse a decision only when it lies outside the zone of reasonable disagreement.”
Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). When a trial court disallows
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evidence, the defendant must make an offer of proof that sets forth the substance of the proffered
evidence. Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). “The offer of proof may
consist of a concise statement by counsel, or it may be in question-and-answer form.” Id. If in the
form of a statement, the offer of proof must include a summary of the evidence and must state the
relevance of the evidence unless the relevance is apparent. Id. at 889-90. The primary purpose of
the offer-of-proof requirement is to enable an appellate court to determine whether the exclusion
of evidence was erroneous and harmful. Id. at 890.
Vargas’s trial counsel stated during a bench conference, “I’m going to ask about the
criminal trespass the mom had to put against [Carmen] because she was going to [Vargas]’s house
[and] harassing him.” Trial counsel stated this evidence “puts this in the nature of the relationship,
Judge, and puts this in play because she said he’s done this before.” During another bench
conference, trial counsel requested Vargas’s mother be allowed to testify that Carmen once
attempted to break into her home “to get at [Vargas].” The trial court did not allow the testimony
because there was no evidence raising the issue of self-defense.
Vargas suggests his mother’s testimony about Carmen’s conduct before the night of the
offense was relevant to prove self-defense. A defendant may introduce evidence of the victim’s
violent character when the evidence raises the issue of self-defense. See Torres v. State, 117
S.W.3d 891, 894 (Tex. Crim. App. 2003). Self-defense requires a showing that the defendant
“reasonably believes the force is immediately necessary to protect the actor against the other’s use
or attempted use of unlawful force.” TEX. PENAL CODE ANN. § 9.31(a) (West 2011). Carmen
testified Vargas started the physical altercation by pushing her and shoving her. She further
testified she was outside the apartment and Vargas went to his truck, but he came back and pressed
the pocketknife against her face and threatened her. There is no evidence Carmen was using or
attempting to use unlawful force against Vargas during the incident or that, after Vargas went to
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his truck, he reasonably believed pressing a pocketknife against Carmen’s face was immediately
necessary to protect himself. See id. Because the evidence had not raised the issue of self-defense,
evidence of Carmen’s “violent character” was not relevant, and the trial court did not err in
excluding the evidence. See Torres, 117 S.W.3d at 894.
Although Vargas’s offer of proof suggests Vargas’s mother filed a complaint against
Carmen, trial counsel did not state Carmen had a conviction for criminal trespass or harassment.
Even if Carmen had convictions for criminal trespass and harassment, those offense are
misdemeanors and are not crimes of moral turpitude. See TEX. PENAL CODE ANN. § 30.05(d) (West
Supp. 2016) (providing criminal trespass is a misdemeanor), § 42.07 (West 2016) (providing
harassment is a misdemeanor); Hutson v. State, 843 S.W.2d 106, 107 (Tex. App.—Texarkana
1992, no pet.) (explaining “moral turpitude means something that is inherently immoral or
dishonest”). In light of Vargas’s limited offer of proof, we cannot say the trial court’s rulings were
outside the zone of reasonable disagreement. See Hernandez, 390 S.W.3d at 324. Thus, the record
does not support Vargas’s claim that the trial court violated his right of confrontation under the
Sixth Amendment. See Hammer, 296 S.W.3d at 561. CHARGE ERROR Vargas argues the trial court erred by not instructing the jury on self-defense or the lesserincluded offenses of assault and deadly conduct. Trial courts have no duty to sua sponte instruct
the jury on defensive issues, including lesser-included offenses. Tolbert v. State, 306 S.W.3d 776,
781 (Tex. Crim. App. 2010); Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). Vargas
did not object to the charge or request a charge on self-defense or any lesser-included offense. The
trial court did not err by submitting the jury charge without instructions on self-defense or the
lesser-included offenses of assault and deadly conduct because they were not requested. See
Teague v. State, No. 03-10-00434-CR, 2012 WL 512661, at *5 (Tex. App.—Austin Feb. 16, 2012,
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pet. ref’d) (mem. op., not designated for publication); Daniels v. State, No. 03-07-00089-CR, 2008
WL 269438, at *6 (Tex. App.—Austin Jan. 30, 2008, pet. ref’d) (mem. op., not designated for
publication).
DEADLY WEAPON FINDING Vargas contends there is legally and factually insufficient evidence to support the jury’s deadly weapon finding. Under Brooks v. State, we will construe Vargas’s arguments as a challenge
to only the legal sufficiency of the evidence. 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Goode
v. State, No. 03-10-00254-CR, 2011 WL 477038, at *3 (Tex. App.—Austin Feb. 9, 2011, no pet.)
(mem. op., not designated for publication). In reviewing a challenge to the legal sufficiency of the
evidence, we examine the evidence to determine whether any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 895. We
review all the evidence in the light most favorable to the verdict, and assume the trier of fact
resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a
manner that supports the verdict. See id. at 899.
The Texas Code of Criminal Procedure authorizes a deadly weapon finding upon sufficient
evidence that a defendant used or exhibited a deadly weapon during the commission of a felony
offense. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2016). A deadly weapon
is anything that “in the manner of its use or intended use is capable of causing death or serious
bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp. 2016). A small pocketknife
may be considered a deadly weapon that is capable of causing serious bodily injury or death.
Magana v. State, 230 S.W.3d 411, 414 (Tex. App.—San Antonio 2007, pet. ref’d). “The factors
to consider include the size, shape, and sharpness of the knife; the manner of its use or intended
use; the nature or existence of inflicted wounds; evidence of the knife’s life-threatening
capabilities; the physical proximity between the victim and the knife; and any words spoken by
the one using the knife.” Id. “The State does not have to introduce the knife into evidence to prove
the knife was a deadly weapon.” Id.
Although the State did not introduce the knife into evidence, Carmen testified Vargas
pressed the sharp metal blade of a small black pocketknife directly against her face with enough
pressure to leave a mark. A police officer who responded to Carmen’s call testified Carmen had a
red mark on the side of her face. The trial court admitted a body camera recording from another
officer who followed up with Carmen the next morning. The video recording shows a red scrape
on Carmen’s face extending from just below her right eye to approximately the middle of her right
cheek. Carmen testified she still had a scar on her face at trial, but she testified she never sought
medical attention. She further testified that when Vargas pressed the knife against her face, he
threatened her by mentioning her family if she were to “ever put him behind bars.” Constable
Beathard also provided testimony indicating that such a small pocketknife is capable of causing
serious bodily injury or death. Viewing all the evidence in the light most favorable to the verdict,
we hold a rational trier of fact could have found Vargas used or exhibited a deadly weapon during
the commission of a felony offense. See id. INEFFECTIVE ASSISTANCE OF COUNSEL Vargas also contends he received ineffective assistance of counsel. He argues his trial
counsel’s performance was deficient because trial counsel failed to (1) call witnesses on Vargas’s
behalf; (2) conduct an adequate investigation; (3) ask for a bill of exception regarding Carmen’s
cross-examination; (4) elicit testimony that Carmen was the initial aggressor; and (5) ask for a self
defense instruction.
Sixth Amendment ineffective assistance of counsel claims are governed by Strickland’s
two-prong test of determining whether trial counsel’s representation was constitutionally deficient
and whether the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
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668 (1984); accord Russell v. State, 90 S.W.3d 865, 875 (Tex. App.—San Antonio 2002, pet.
ref’d). “Any allegation of ineffectiveness must be firmly founded in the record.” Russell, 90
S.W.3d at 875. To satisfy Strickland’s first prong on direct appeal, the record must demonstrate:
(1) trial counsel’s deficient performance of some act or failure to perform some act; and (2) trial
counsel had no reasonable trial strategy for the act or omission. See Thompson v. State, 9 S.W.3d
808, 813-14 (Tex. Crim. App. 1999). “There is a strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance.” Id. at 813. “Under normal
circumstances, the record on direct appeal will not be sufficient to show that counsel’s
representation was so deficient and so lacking in tactical or strategic decisionmaking as to
overcome the presumption that counsel’s conduct was reasonable and professional.” Bone v. State,
77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Although the trial court held a hearing at which Vargas argued his trial counsel rendered
ineffective assistance, no evidence was offered or admitted at the hearing. Thus, Vargas’s
assertions that his trial counsel could have called witnesses at trial who would have testified in
Vargas’s defense, conducted a more thorough and adequate investigation, or elicited evidence that
Carmen was the initial aggressor are not supported by the record. Furthermore, the record is silent
as to why Vargas’s trial counsel did not ask for bills of exception regarding Carmen’s cross
examination testimony and Vargas’s mother’s testimony, object to the jury charge, or tender a
proposed charge. The record does not demonstrate that trial counsel’s decisions wholly lacked
“tactical or strategic decisionmaking.” See id. Vargas’s allegations of ineffectiveness are not firmly
founded in the record, and we may not reverse his conviction on this basis. See Russell, 90 S.W.3d
at 875.

Outcome: