Martinez v. State

CHRISTIAN ALBERTO MARTINEZ, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-14-00130-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

August 24, 2016

Appeal from 210th District Court of El Paso County, Texas

(TC # 2011D01837)

OPINION

In this appeal from a capital murder trial, Appellant raises issues concerning the effective assistance of counsel, the failure to disqualify the State's attorneys or suppress evidence, the exclusion of lay and expert testimony, and the imposition of a life sentence without the possibility of parole on a person with diminished mental capacity. The case itself arises out of the senseless murder of two women. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Appellant was convicted by a jury of the capital murder of mother and daughter, Amalia Flores and Jovanna Flores. Both women lived on Pratt Avenue in El Paso. On the afternoon of January 28, 2011, Nallely Galindo, who also lived there, came home to find blood on the floor. As she walked through the house, she saw her sister, Jovanna, lying motionless and covered with blood. She ran to her mother's bedroom, and found Appellant lying on the bed, also covered in blood. She did know who Appellant was, but nonetheless shook him to see if he alive; he did not respond. She left the bedroom and soon found her mother, Amalia, also dead and bloodied from multiple stab wounds. She then called 911.

When the police arrived, they did not immediately find Appellant, but noticed a closed and locked bathroom door off the master bedroom. After kicking in the door, they found Appellant on the floor covered in towels. He had a deep cut on his left wrist. When EMS tried to attend to him, Appellant became combative. He attempted to bite one the EMS personnel, and tried to pull the dressing off his arm. He was restrained and transported to a local hospital.

At the hospital, Appellant volunteered to an officer that he had had an argument with his girlfriend, and wandered around looking for a house to break into so he could find a gun to kill himself. When he could not find a gun in the Flores residence, he "got upset and snapped" and the next thing he knew both the Flores women were dead. Appellant told the physician who treated his wrist essentially the same story:

The patient states that he broke into a home that he picked at random in search for a gun. Two people were in his way and he attacked them and stabbed them. Following that incident he lacerated his forearm. He also states that he was wishing for the police officer to shoot him dead on the site.

Amalia sustained some fifty-seven cuts or stab wounds. Jovanna had fifty-two cuts or stab wounds. Both women died from exsanguination, or in common parlance, they bled to death. Appellant did not contest any of these facts, and his trial counsel in fact elicited many of them from the witnesses. Rather, the focus of the defense strategy was insanity.

The jury found Appellant guilty of the murder of both Amalia and Jovanna and failed to find that Appellant was not guilty by reason of insanity. In the punishment phase, the jury found that that there was a reasonable probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society. But the jury also found mitigatingcircumstances such that he should be sentenced to life imprisonment without parole rather than receive the death sentence. The trial judge sentenced Appellant accordingly.

On appeal, Appellant raises five points of error, the first of which challenges the effectiveness of his trial counsel.

INEFFECTIVE ASSISTANCE OF COUNSEL¹

Appellant contends that he was denied effective assistance of counsel in one of two ways. First, he claims that trial counsel failed to move to suppress a warrantless search of his cell phone that was found at the scene of the crime. Second, he claims counsel failed to develop an adequate record to support the disqualification of the district attorney's office. Under the standards governing this claim, we disagree with both contentions.²

To prevail on a claim of ineffective assistance of counsel, Appellant must establish by a preponderance of evidence that: (1) his attorney's performance was deficient; and that (2) his attorney's deficient performance deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App. 2005). Appellant must satisfy both Strickland components, and the failureto show either deficient performance or prejudice will defeat his ineffectiveness claim. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App. 2010); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003).

Under the first prong of the Strickland test, the attorney's performance must be shown to have fallen below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Stated otherwise, he must show his counsel's actions do not meet the objective norms for professional conduct of trial counsel. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). Under the second prong, Appellant must establish that there is a reasonable probability that but for his attorney's deficient performance, the outcome of the case would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2069; Thompson, 9 S.W.3d at 812. "Reasonable probability" is that which is "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998).

We presume that the attorney's representation fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001), citing Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). Ineffective assistance claims must be firmly founded in the record to overcome this presumption. Thompson, 9 S.W.3d at 813. In most direct appeals, this task is very difficult because the record is undeveloped and cannot abundantly reflect a failing of trial counsel. Id. at 813-14; see also Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex.Crim.App. 2000). When the record is silent and does not provide an explanation for the attorney's conduct, the strong presumption of reasonable assistance is not overcome. Rylander, 101 S.W.3d at 110-11 (noting that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective").Accordingly, when the record does not contain evidence of the reasoning behind trial counsel's actions, the attorney's performance cannot be found to be deficient. Rylander, 101 S.W.3d at 110-11; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). With these standards in mind, we address each of Appellant's complaints about his trial counsel.

Suppression of the Cell Phone

Trial counsel filed a motion to suppress several statements that Appellant made while in custody at the hospital. He was transported from the murder scene to a local hospital emergency room. Two detectives went to Appellant's room and addressed him by name. He asked them how they had gotten his name (the hospital chart reflected a different name for Appellant). Before they answered, however, Appellant himself surmised that they had gotten his name from his cell phone which he had left at the scene. At the same time, he told the detectives that he wanted to die for what he had done. He also volunteered to an officer guarding him details of what had happened. The motion to suppress focused on whether Appellant's interaction with the police was a custodial interrogation, or whether his statements were volunteered. The trial court excluded some of the statements but allowed others, including the statement about Appellant wanting to die for what he had done. No complaint is made of that ruling.

Instead, Appellant contends that his counsel was deficient in not moving to suppress the search of the cell phone itself. The police found what turned out to be Appellant's bloody cell phone in the master bedroom at the Flores residence. A detective used the phone to call another detective's phone, which through caller ID gave them information leading to Appellant's identity. The detectives then used that identifying information to confirm Appellant's identity by addressing him by name at the hospital. Appellant's first point of error contends that using thephone to make a call was a search for which the police had neither a warrant, nor valid exception under the Fourth Amendment.

To prevail on an ineffective assistance claim based on counsel's failure to file a motion to suppress, Appellant would need to show that the result of the proceeding would have been different, i.e., that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction. Carmen v. State, 358 S.W.3d 285, 295 (Tex.App.--Houston [1st Dist.] 2011, pet. ref'd), citing Hollis v. State, 219 S.W.3d 446, 456 (Tex.App.--Austin 2007, no pet.); see also Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998). The State points out that Appellant had no expectation of privacy in a cell phone that he left at murder scene, and thus any motion to suppress would have been a futile venture. And "[c]ounsel is not required to engage in the filing of futile motions." Hollis, 219 S.W.3d at 456. We agree.

An accused may challenge a search or seizure under the federal and state constitutions only if he has a legitimate expectation of privacy in the thing being searched or seized. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Granados v. State, 85 S.W.3d 217, 222-23 (Tex.Crim.App. 2002). By leaving his cell phone in the Flores' residence, a place he had no right to be in the first place, he lost any legitimate expectation of privacy. See State v. Granville, 423 S.W.3d 399, 409 (Tex.Crim.App. 2014)(...