Grimaldo v. State

692 S.W.3d 792

Angel Gabriel GRIMALDO, Appellant,

v.The STATE of Texas, Appellee.

NUMBER 13-23-00228-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed April 4, 2024.

ON APPEAL FROM THE 24TH DISTRICT COURT OF CALHOUN COUNTY, TEXAS, Hon. Jack W. Marr, District Judge

Arnold K. Hayden Jr., Assistant Criminal District Attorney, Port Lavaca, Sara M. Rodriguez, Calhoun County District Attorney, Port Lavaca, for Appellee.

Madison McWithey, Brett Ordiway, Udashen Anton, Dallas, for Appellant.

Before Chief Justice Contreras and Justices Benavides and Tijerina

OPINION

Opinion by Justice Benavides

Appellant Angel Gabriel Grimaldo was convicted of aggravated assault with a deadly weapon against a family member causing serious bodily injury, a first-degree felony, and was sentenced to twenty years’ imprisonment. See Tex. Penal Code Ann. § 22.02(a), (b)(1)(A). By two issues, Angel argues that: (1) counsel violated his Sixth Amendment right to counsel as outlined in McCoy v. Louisiana, 584 U.S. 414, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018), by conceding guilt over his objection; and (2) the jury charge contained an erroneous instruction on the application of good conduct time. We affirm.

I. Background

On September 9, 2021, a grand jury indicted Angel on the above-described offense. At a pretrial hearing on August 1, 2022, Angel’s then-counsel attempted to withdraw from the case, citing communication difficulties. Angel spoke with the trial court directly, stating,

I take my life very serious. I know I did not do these actions…. I don’t want people to say I did this. I want to prove my innocence. I know it might take time, but at least I don’t want to look like some kind of mad man. And I know what I did and I know what I didn’t do…. [Counsel] tells me I committed this crime…. I don’t know about you, Judge, but when somebody tells you [that] you did something and they’re supposed to represent you, [it] doesn’t make you feel safe.

The trial court granted counsel’s motion to withdraw and appointed new counsel. According to the record, this was Angel’s third and final trial attorney. The record also reflects that a different trial judge took over the proceedings after this hearing.

Trial commenced on April 17, 2023. Because it is relevant to this case, we will outline part of the Grimaldo family tree. Angel, Sammy Grimaldo, Joseph Grimaldo, and Gina Moya (née Grimaldo) are siblings. Jamie Grimaldo is married to Sammy and has two adult children, Avery Grimaldo and Sebastian Grimaldo. Joseph Grimaldo is married to Audrea Grimaldo (nee Cofer). And Gina Moya is married to Pete Moya.

The Grimaldo family had a get-together on March 19, 2021, at Sammy and Jamie’s home. Sammy testified that Angel arrived at around "9:00, 9:30." At that time, Angel had to use a "knee scooter" to move about due to a prior leg injury. Throughout the course of the evening, all of the family members consumed alcohol. Sammy acknowledged that he was "[l]egally" drunk and stated that the men were drinking beer while the women were drinking mixed drinks. At some point, Avery told Angel that she was upset that he brought his ex-wife to Avery’s dance recital in 2015. The argument devolved into "chaos, just yelling, screaming," and Angel, Avery, Sammy, Jamie, Joseph, and Audrea all moved towards the stairway of the home.

According to Gina, Sammy told Avery to go to her room, and "he grabbed her to take her, … Jamie said to let her go, and when he let her go … Jamie tried to swing at Angel." According to Sammy, "Joseph was telling [Angel] let’s go, you know, let’s just leave, and Angel took a sw[i]ng at Joseph, swung at him. He missed him…. [And] Angel ended up hitting Audre[a]." Joseph then "swung back at Angel." Sammy acknowledged that Joseph kicked Angel in the head at one point. Sammy then "tried getting in between, separating them." Sammy and Jamie then told everyone to leave. According to Joseph, Angel eventually "gets on his scooter, and then he just scoots out the front door." Gina testified that Angel "had blood dripping from his face."

As everyone began congregating outside, Joseph heard Angel "yell ‘Joseph,’ and then [he] hear[d a] boom and then glass shatter." At the time, Angel was outside of Joseph’s house, which was three doors down from Sammy and Jamie’s residence. Joseph ran towards Angel and noticed that Angel had "a little glass stool" in his hands. Joseph tried to take the stool away from Angel, "and he starts to hit [Joseph] with it, … and [they’re] kind of tussling at this point." Once Joseph was able to remove the stool from Angel’s hands, Joseph "start[s] hitting [Angel] with it, and then [Joseph] bust[s] [Angel’s] windshield with it."

Finally, after more yelling, Angel entered his vehicle. However, "[t]he battery was dead." According to Joseph, Pete "went and got a little jump starter to jump start his car." Joseph testified that while Angel’s car was being jump-started, Angel "starts saying, ‘I am going to kill you, motherfucker.’ " To which Joseph replied, "Well, I got a gun. You know, you come messing around here, … I’ll shoot your ass dead."

Joseph testified that once Angel was able to start his vehicle, "[h]e reverses out to the road and then accelerates back into the yard and runs into the back of [Joseph’s] Suburban." Joseph asked family members to "get behind the Suburban so [Angel] can stop hitting it [and] so he can just go." Jamie testified that the second time Angel accelerated, he hit Audrea and "pinned [Jamie] under his car." Joseph testified that he started "banging on [Angel’s] window telling him to turn it off." Angel did not respond, and so Joseph grabbed "a round stepping stone" and "started using that to bust out the front windshield … [o]n the driver’s side." The brothers engaged in another fistfight, and Angel eventually left the scene. Paramedics and police were called, and Angel was arrested several days later.

Both Jamie and Audrea testified to the injuries they sustained. According to Jamie, she "lost function of [her] left arm for five months," "[i]t took 10 weeks for [her ribs] to heal," and as of the date of her testimony, she had "two bulging discs" in her neck. Jamie also testified that she has suffered "[a]nxiety and PTSD" since the incident. Audrea testified that she "sustained a broken ankle, a broken foot, and a severed artery in [her] right foot." Audrea explained that she had to have multiple surgeries due to complications arising from these injuries. Audrea has "permanent nerve damage" in her right foot and testified that "[t]here’s not a day that [she is] not in pain." Audrea also explained she suffers from "PTSD and really bad anxiety." The jury found Angel guilty and sentenced him as described above.

Angel filed two pro se letters after the conclusion of trial. In the first letter, Angel complained of his attorney’s failure to obtain certain evidence, such as "phone records, all police vi[de]o[s], all pictures …, and other items not given by [the] district attorney." Angel also complained that his counsel did not know that one of his witnesses had spoken to a private investigator and that he did not recall that same witness at trial. Further, Angel stated that he never agreed to hire a private investigator. He also accused one of the jurors of working for a "J.P. who is a judge in the jail."

In his second letter, Angel complained that his counsel "said nothing about one of the jur[or]s sleeping," did not obtain certain evidence, and did not call certain witnesses. This appeal followed.

II. McCoy Claim

By his first issue, Angel argues that his Sixth Amendment right to counsel was violated when defense counsel conceded his guilt over his objection. See U.S. Const. amend. VI; McCoy, 584 U.S. at 414, 138 S.Ct. 1500.

A. Standard of Review & Applicable Law

There are many reasonable trial strategies a defense attorney may pursue when operating as the effective counsel guaranteed by the Sixth Amendment. See, e.g., Ex parte Ellis, 233 S.W.3d 324, 331 (Tex. Crim. App. 2007) ("Although the defensive course chosen by counsel was risky, and perhaps highly undesirable to most criminal defense attorneys, we cannot say that no reasonable trial attorney would pursue such a strategy under the facts of this case."). However, McCoy was the seminal United States Supreme Court case establishing that, like the decisions to testify, to forego an appeal, and to waive the right to a jury trial, the decision to concede guilt is within the defendant’s sole purview. 584 U.S. at 422, 138 S.Ct. 1500 ("These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.").

[1–3] "To gain redress for attorney error, a defendant must ordinarily show prejudice." Id. at 426,138 S.Ct. 1500. However, the admission of a client’s guilt over that client’s express objection is structural error. Id. at 427, 138 S.Ct. 1500; see Turner v. State, 570 S.W.3d 250, 277 (Tex. Crim. App. 2018) ("Because the [McCoy] error is structural, we conduct no harm analysis, and a reversal and remand for a new trial is required."). Nonetheless, "a defendant cannot simply remain silent before and during trial and raise a McCoy complaint for the first time after trial." Turner, 570 S.W.3d at 276. To preserve a McCoy complaint, a defendant must present "express statements of his will to maintain his innocence," though he is not required to object with the same precision as that of an attorney. Id. (quoting McCoy, 584 U.S. at 424, 138 S.Ct. 1500) (cleaned up); see Tex. R. App, P. 33.1.

B. Analysis

Angel asserts that trial counsel was not permitted to concede that he hit Audrea and Jamie after he protested his innocence at a pretrial hearing. We will assume without deciding that, in doing so, counsel conceded Angel’s guilt. However, based on our interpretation of McCoy, as well as its progenitor and progeny, we nonetheless conclude that Angel’s McCoy claim must fail.

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