No. 14-07-01039-CR, 14-07-01040-CR
Opinion filed February 5, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 122nd District Court, Galveston County, Texas, Trial Court Cause Nos. 05CR1584 05CR1585.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
CHARLES W. SEYMORE, Justice.
Appellant, Michael Luis Nieves, was charged with murder and aggravated assault arising out of an incident involving two complainants. The cases were consolidated for trial. At trial, appellant did not dispute he shot both complainants but claimed he acted in self-defense. A jury convicted appellant of both offenses, found an enhancement paragraph was true, and assessed a sentence of ninety-nine years' confinement for each offense. Appellant's complaints on appeal pertain to the punishment phase of the trial. In three issues, appellant contends the trial court erred by admitting "victim-impact" testimony and appellant received ineffective assistance of counsel. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
ADMISSION OF "VICTIM-IMPACT" TESTIMONY
In his first and second issues, appellant contends the trial court erred by admitting "victim-impact" testimony from two witnesses during the punishment phase: the murdered complainant's sister and the mother of this complainant's child. Although presented as testimony, these witnesses provided narratives directed at appellant. In essence, the witnesses explained the effect of the complainant's death on his family, praised the complainant's positive character traits, and scorned appellant's self-defense claim. Appellant contends the trial court violated Texas Code of Criminal Procedure article 42.03 and Texas Rule of Evidence 403 by admitting this testimony. See Tex. Code Crim. Proc. Ann. art. 42.03 § 1(b) (Vernon Supp. 2008) (generally permitting close relative of deceased victim to personally appear, after sentence is pronounced, and present to court and defendant "statement of the person's views about the offense, the defendant, and the effect of the offense on the victim"); Tex. R. Evid. 403 (providing relevant evidence "may be excluded if its probative value is substantially outweighed by danger of unfair prejudice"). However, appellant failed to preserve error on these complaints because he did not object to the testimony of either witness. See Tex. R. App. P. 33.1(a) (providing, to preserve error for appellate review, a party must make timely, specific objection and obtain adverse ruling); Guevara v. State, 97 S.W.3d 579, 583-84 (Tex.Crim.App. 2003) (holding defendant waived complaint regarding admission of victim-impact testimony during punishment stage by failing to lodge proper objection). Accordingly, we overrule appellant's first and second issues. INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM
In his third issue, appellant contends he received ineffective assistance of counsel because his counsel failed to object to the above-cited testimony. To prevail on an ineffective-assistance claim, an appellant must prove (1) counsel's representation fell below the objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). In considering an ineffective-assistance claim, we indulge a strong presumption that counsel's actions fell within the wide range of reasonable professional behavior because they were motivated by sound trial strategy. See Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). To overcome this presumption, a claim of ineffective assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle for raising such a claim because the record is generally undeveloped and cannot adequately reflect the motives behind trial counsel's actions. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Thompson, 9 S.W.3d at 813-14. When the record is silent regarding trial counsel's strategy, we will not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005); Jagaroo v. State, 180 S.W.3d 793, 797 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Appellant does not cite any portion of the record containing an explanation for his counsel's failure to object to the testimony at issue. Moreover, counsel's actions may have been sound trial strategy. In particular, when counsel cross-examined the complainant's sister, counsel elicited somewhat negative testimony regarding the complainant's character. Thus, counsel may have purposely refrained from objecting to the sister's direct examination so that counsel could elicit this negative testimony without objection. Further, during the punishment phase, appellant presented testimony from three of his family members and his own testimony, in which he apologized to the complainant's family. During closing argument, appellant's counsel acknowledged the effect of appellant's actions on the complainant's family but emphasized his remorse. Consequently, counsel may have decided to focus on presenting appellant's own evidence instead of objecting to testimony of the State's witnesses. Therefore, we cannot conclude counsel's conduct was so outrageous that no competent attorney would have engaged in it. Accordingly, appellant has not rebutted the strong presumption that counsel's decision was based on sound trial strategy. Because appellant failed to establish his ineffective-assistance claim, we overrule his third issue. The judgments of the trial court are affirmed.