Luis Joel Aguilar v. The State of Texas

Houston, TX - Criminal defense attorney represented Luis Joel Aguilar with a Robbery charge.

Complainant testified that on the morning of March 14, 2017, she was sitting

in her car in the parking lot of her place of employment talking on her phone when

appellant opened the passenger door of her car and grabbed her purse, which was

sitting in the passenger seat. Appellant was moving quickly, said, "I have a gun,”

and told complainant to give him her phone. Complainant then got out of the

vehicle and started screaming. Appellant got into a dark-colored Jeep with paper

license plates that was parked next to complainant's car and drove away.

Complainant said that her wallet, credit cards, and a bracelet were in the purse at

the time. A few days later, a police officer showed complainant a photographic

lineup, and she specified the person whom she believed had robbed her. The

photograph she chose was a picture of appellant. Complainant also identified

appellant in the courtroom as the person who had robbed her, and she identified

items in a photograph as her items that the police had recovered.

Deputy Harris County Constable Gonzalez testified that on March 15, 2017,

he was responding to a report of a stranded motorist that became a request for

assistance on a report of a stolen vehicle. At the scene, he saw appellant changing a

tire on a dark-colored Jeep in the middle of the road. Inside the Jeep, officers found

several credit cards and identification cards on the floorboards that did not belong

to appellant.

Sergeant Coleman with the Harris County Sheriff's Office testified that he

obtained a photograph of appellant and placed it in a photographic lineup "along

with five other photographs of males [of] similar facial characteristics and age.”

Coleman noted that appellant had a tattoo on the right side of his face. To

compensate for this, Coleman took a pencil and shaded the area of the tattoo on the

photograph of appellant, and he made a similar marking on each of the other 3

photographs in the lineup. When shown the lineup on March 16, 2017,

complainant identified the photograph of appellant as being of the person who

robbed her.

Deputy Abeid of the Harris County Sheriff's Office testified that he

interviewed complainant at the scene of the alleged robbery and received a

description of the assailant from her. He also obtained surveillance video for the

parking lot from the time of the robbery. The video was played for the jury, and

Abeid testified that it showed a Jeep vehicle moving around the parking lot and

backing in beside the complainant's car. However, the robbery occurred too far

from the camera to be captured on the video. During cross-examination, Abeid

confirmed that complainant was quite upset in the aftermath of the robbery.

During the punishment phase, the State introduced evidence that appellant

had committed several extraneous offenses, including using complainant's credit

cards after the robbery, as well as committing other robberies. The State also

established appellant had been convicted of prior offenses. The trial court assessed

appellant's punishment at 25 years in prison.

Standards of Review

The Sixth Amendment to the United States Constitution guarantees the right

to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const.

amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). Claims of

ineffective assistance of counsel are evaluated under the two-pronged Strickland

test that requires a showing that counsel's performance was deficient and the

defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668,

689 (1984); see also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). Essentially, appellant must show his counsel's representation fell below an

objective standard of reasonableness based on prevailing professional norms and 4

there is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. Strickland, 466 U.S. at 693;

Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

Any allegation of ineffectiveness must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9

S.W.3d at 813. In most cases, the record on direct appeal is simply undeveloped

and cannot adequately reflect the alleged failings of trial counsel. Jackson v. State,

973 S.W.2d 954, 957 (Tex. Crim. App. 1998). A proper record is best developed in

a habeas corpus proceeding or in a motion for new trial hearing. DeLeon v. State,

322 S.W.3d 375, 381 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd).

Judicial scrutiny of counsel's performance must be highly deferential, and

we are to indulge a strong presumption that counsel was effective. Jackson v. State,

877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel's actions and

decisions were reasonably professional and that they were motivated by sound trial

strategy. Id. Moreover, it is appellant's burden to rebut this presumption by a

preponderance of the evidence, through evidence illustrating why trial counsel did

what he did. Id.

A sound trial strategy may be imperfectly executed, but the right to effective

assistance of counsel does not entitle a defendant to errorless or perfect

representation. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). It

is not sufficient for the appellant to show, with the benefit of hindsight, that his

counsel's actions or omissions during trial were merely of questionable

competence. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Rather,

to establish that the attorney's acts or omissions were outside the range of

professionally competent assistance, appellant "must show that counsel's errors

were so serious that he was not functioning as counsel.” Patrick v. State, 906 5

S.W.2d 481, 495 (Tex. Crim. App. 1995). We may not assume a lack of sound trial

strategy on the part of trial counsel merely because we are unable to discern any

particular strategic or tactical purpose in counsel's trial presentation. See Bone v.

State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) ("A vague, inarticulate sense

that counsel could have provided a better defense is not a legal basis for finding

counsel constitutionally incompetent . . . . [A] defendant must prove, by a

preponderance of the evidence, that there is, in fact, no plausible professional

reason for a specific act or omission.”).

If appellant proves his counsel's representation fell below an objective

standard of reasonableness, he still must affirmatively prove prejudice as a result of

those acts or omissions. Strickland, 466 U.S. at 693. If appellant fails to make the

required showing of either deficient performance or prejudice, his claim fails.

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

Analysis

Appellant makes several arguments about his attorney's performance in both

the guilt-innocence and punishment phases of trial. In the guilt-innocence phase,

appellant contends that his counsel's performance was deficient in that counsel

failed to challenge an out-of-court identification of appellant by complainant

despite the photographic lineup being suggestive and counsel asked limited

questions to certain witnesses, failed to object to the admission of a video into

evidence, and failed to point out that the robber's face could not be seen in the

video. In the punishment phase, appellant complains that his counsel failed to

challenge the evidence of extraneous offenses the State presented and did not

attempt to "map out” the locations where the offenses allegedly occurred to

confirm whether it was possible that appellant could have committed all the

offenses. Appellant further complains that his counsel asked the judge during the 6

punishment phase to confirm the range of punishment under consideration. We

find no merit in any of these contentions.

The identification. As stated, appellant first asserts that his counsel's

performance was deficient because he failed to challenge complainant's out-ofcourt identification of appellant from a photo lineup either by objecting during trial

or filing a pretrial motion to suppress. Appellant asserts that the photo lineup was

impermissibly suggestive and that it tainted complainant's in-court identification of

appellant as the person who robbed her.

When an ineffective assistance claim alleges that counsel was deficient in

failing to object to the admission of evidence, the defendant must show, as part of

his claim, that the evidence was, in fact, inadmissible. Ortiz v. State, 93 S.W.3d 79,

93 (Tex. Crim. App. 2002). A pretrial identification procedure may be so

suggestive and conducive to mistaken identification that using the identification at

trial would deny the accused due process of law. Conner v. State, 67 S.W.3d 192,

200 (Tex. Crim. App. 2001); Fisher v. State, 525 S.W.3d 759, 762 (Tex. App.—

Houston [14th Dist.] 2017, pet. ref'd). When determining the admissibility of a

pretrial identification, we apply a two-step analysis, first asking whether the

pretrial procedure was impermissibly suggestive and, if so, then asking whether the

suggestive pretrial procedure gave rise to a very substantial likelihood of

irreparable misidentification. Fisher, 525 S.W.3d at 762. The analysis under these

steps requires an examination of the totality of the circumstances surrounding the

particular case. Conner, 67 S.W.3d at 200. We review de novo whether an

identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of misidentification, but we review historical issues of fact in

the light most favorable to the trial court's ruling. Loserth v. State, 963 S.W.2d

770, 773–74 (Tex. Crim. App. 1998).7

In the first step in the analysis, it is the defendant's burden to establish by

clear and convincing evidence that the pretrial procedure was impermissibly

suggestive. Balderas v. State, 517 S.W.3d 756, 791–92 (Tex. Crim. App. 2016).

Suggestiveness may result from the manner in which a pre-trial identification

procedure is conducted; the content of the line-up itself, as when the suspect is the

only individual closely resembling the pre-procedure description; or the cumulative

effect of the procedures and photographs used. See Barley v. State, 906 S.W.2d 27,

33 (Tex. Crim. App. 1995). Every photo lineup must generally contain

photographs of individuals who roughly fit the description of the suspect. Buxton v.

State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). However, neither due process

nor common sense requires exactitude. Id.

Appellant asserts that the photo lineup in this case was impermissibly

suggestive for two reasons: (1) Officer Coleman used a marker to obscure

appellant's facial tattoo and made similar marks on the other photographs, and (2)

the other individuals whose photos appeared in the lineup did not resemble

appellant in terms of "coloring, race, ethnicity” or any other relevant factor.

Appellant, however, does not offer any specific analysis as to how the markings on

the photographs or the physical appearances of the other individuals were

suggestive. The photo lineup is, of course, in the appellate record. Each of the

other six photos in the lineup has shading on the right cheek of the subject, as in

appellant's photo. Each of the other subjects has a similar hair color and hair style

to appellant's; each appears to have a small amount of facial hair, as does

appellant; and most of them appear to have similar skin coloring to appellant.

There is nothing obviously suggestive about the photo lineup. Because appellant

has not met his burden of demonstrating that the pretrial procedure was

impermissibly suggestive, he also has not demonstrated that his trial counsel 8

performed deficiently in not objecting to the admission of the lineup into evidence.

See Balderas, 517 S.W.3d at 791–92; Ortiz, 93 S.W.3d at 93. Likewise, appellant

has not demonstrated that complainant's in-court identification was tainted by the

out-of-court identification procedures.

Questioning witnesses. Appellant next charges that his counsel failed to

adequately cross-examine witnesses during trial. Whether, and to what extent, to

question witnesses is generally a matter of defensive trial strategy that courts are

reluctant to second-guess, particularly in the face of a silent record. See, e.g., Ex

parte McFarland, 163 S.W.3d 743, 755–56 (Tex. Crim. App. 2005); Jones v. State,

500 S.W.3d 106, 115 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Dannhaus v.

State, 928 S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd). In

this case, defense counsel cross-examined witnesses. The record, however, does

not reveal why counsel chose not to ask more questions or what information

further questioning would have elicited. Accordingly, we cannot say that counsel

was deficient in this case for failing to ask more questions.

The video. Appellant argues that his trial counsel was deficient in failing to

object to the video that was shown to the jury of the parking lot where the robbery

allegedly occurred. Appellant also notes counsel asked limited questions to Deputy

Abeid who authenticated the video and counsel failed to point out to the jury that

the robber's face could not be seen in the video. Appellant, however, does not

make any argument that the video was inadmissible. See Ortiz, 93 S.W.3d at 93

(explaining that when an ineffective assistance claim alleges deficiency for failing

to object to evidence, the defendant must show the evidence was inadmissible).

Moreover, appellant does not suggest what other questions counsel should have

asked about the video, what information may have been gleaned by further

questioning, or why counsel needed to point out what the video already showed.9

Punishment phase. Appellant also complains that his trial counsel did not

do enough to challenge the evidence concerning several extraneous offenses that

the State presented during the punishment phase of trial. The only specific

suggestion appellant makes is that counsel should have attempted to "map out” the

locations where the offenses allegedly occurred to confirm whether it was possible

appellant could have committed all the offenses. Appellant does not cite to any

evidence suggesting either that his counsel did not undertake this analysis prior to

trial or that any such analysis would have benefitted appellant's defense. In the

face of a silent record, we will not speculate either that counsel failed to consider

this course of action or that had he done so, it would have benefitted appellant. See

Darkins v. State, 430 S.W.3d 559, 571 (Tex. App.—Houston [14th Dist.] 2014,

pet. ref'd) (refusing to speculate regarding alleged deficient performance in face of

silent record).

The only other criticism appellant offers regarding the punishment

proceedings is to note that his trial counsel confirmed the range of punishment with

the trial judge at the beginning of the punishment phase. Appellant states, "It seems

remarkable that a trial lawyer would not even know, on day 3 of trial, what his

client was risking by taking the case to a jury.” The fact that counsel confirmed the

information with the judge, however, does not necessarily indicate counsel was not

aware of the range. Regardless, appellant does not suggest how such confirmation

prejudiced his defense. See generally Strickland, 466 U.S. at 693.