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Rigoberto AVILA Jr.

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Babysitter
Number of victims: 1
Date of murder: February 29, 2000
Date of birth: August 5, 1972
Victim profile: Nicholas Macias, 19-month-old
Method of murder: Beating
Location: El Paso County, Texas, USA
Status: Sentenced to death on July 19, 2001
 
 

 
 
Name TDCJ Number Date of Birth
Avila, Rigoberto Jr. 999391 08/05/1972
Date Received Age (when Received) Education Level
07/19/2001 28 12
Date of Offense Age (at the Offense) County
02/29/2000 27 El Paso
Race Gender Hair Color
Hispanic male black
Height Weight Eye Color
6 ft 2 in 229 brown
Native County Native State Prior Occupation
El Paso Texas laborer
Prior Prison Record
None
Summary of incident

On 02/29/2000, El Paso, Avila was babysitting a 19 month old Hispanic male and his sibling at their residence.  Avila struck the victim in the abdomen, causing the death of the child.
 
Co-defendants
None.
Race and Gender of Victim
Hispanic male
 
 

 
 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. 74,142

RIGOBERTO AVILA, JR., Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM EL PASO COUNTY

Meyers, J., delivered the opinion of the Court, in which Keller, P.J., and Price, Keasler, Hervey, Holcomb, and Cochran, J.J joined. Womack and Johnson, J.J., concur.

O P I N I O N

In May 2001, a jury convicted appellant of capital murder. Tex. Penal Code Ann. 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071, 2(g). (1) Direct appeal to this Court is automatic. Art. 37.071, 2(h). Appellant raises eleven points of error. Because appellant challenges the sufficiency of the evidence at punishment, a brief statement of facts will be helpful. We affirm.

STATEMENT OF FACTS

Around 6:00 p.m. on February 29, 2000, Marcelina Macias left her home to attend a class, leaving her 19-month-old son, Nicholas Macias, and his four-year-old brother, Dylan Salinas, in appellant's care.

At 7:02 p.m., appellant called "911" and told the operator that the infant boy he was babysitting had stopped breathing. When the paramedics arrived, they administered emergency treatment to the child before transporting him to the hospital.

While treating the boy, paramedics found a bruise on Nicholas' stomach in the shape of a boot print. When they asked appellant, he denied any knowledge of the marking. At the hospital, doctors determined that surgery was necessary to save Nicholas' life. However, attempts to repair the injury to Nicholas' intestines and other abdominal-related injuries were unsuccessful, and Nicholas died.

An autopsy revealed that major organs in Nicholas' body had been split in two by considerable blunt-force trauma consistent with being stomped by an adult. Specifically, the medical examiner reported that Nicholas "died of internal bleeding due to massive abdominal trauma resulting from blunt for[ce] injury."

The surgeon's testimony likened Nicholas' injuries to those caused by such events as exiting an automobile traveling at sixty miles per hour or being dropped twenty feet.

ADMISSION OF APPELLANT'S SECOND WRITTEN STATEMENT

In his first point of error, appellant claims that the trial court "failed to conduct a proper Jackson v. Denno hearing on the issue of the voluntariness of [his] second written statement," thus depriving him of his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution. Jackson v. Denno, 378 U.S. 368 (1964).

Appellant does not assert that the Jackson hearing itself was in any way improperly conducted. Rather, appellant appears to complain that the findings and conclusions the trial judge made following the hearing are inaccurate, incomplete, and not supported by the record. See Art. 38.22, 6.

Specifically, appellant claims that, in his findings and conclusions, the trial judge "failed to rule on [specifically enumerated] important fact issues" raised by appellant's own testimony at the suppression hearing. Thus, appellant concludes, the trial court improperly found the statements to have been voluntarily made.

When a question is raised as to the voluntariness of a statement made by the accused, the trial court is required to make an independent finding, out of the presence of the jury, as to whether the statement was made under voluntary conditions. Art. 38.22, 6. If the statement is determined to have been voluntarily made, the court is further required to "enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based." Id.

The findings must be sufficiently detailed to enable the appellate court to determine the basis for the trial court's ruling and to assist the appellate court in determining the sufficiency of the evidence to support any implied findings that were made by the fact finder. Guidry v. State, 9 S.W.3d 133, 140-42 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 837 (2000).

Nothing in Article 38.22, 6, requires the trial court to make specific findings about why conflicting testimony does not render the defendant's statement involuntary. Id. Rather, the trial court need only state in its findings the reasons for its conclusion that the statement was voluntary. Id. In other words, the trial court need only set out those facts which support its conclusions; not facts which do not support its conclusions. Id.

In a pretrial Jackson v. Denno hearing, Officer Jose Lopez testified that on February 29, 2000, he was dispatched to the home of a child who had stopped breathing. Appellant told Lopez that he had been watching the television when Dylan came into the room and told him that Nicholas was not breathing.

According to appellant, Dylan told him that "he had held [Nicholas'] mouth" and then he stopped breathing. Lopez then allowed appellant to leave to go to the hospital. Lopez noted that appellant did not appear to be under the influence of alcohol or any other types of intoxicants.

Detective Tony Tabullo arrived at the hospital to assess the situation. Because appellant was the last adult known to be with Nicholas, Tabullo asked him if he would be willing to discuss the incident with him at the Crimes Against Persons (CAP) offices.

Appellant agreed because he understood from working as a security guard that such discussions were standard procedure. Tabullo asked appellant if he wanted to ride with him or if he wanted to drive to the office in his own vehicle. Appellant initially indicated that he would drive to the office with his mother. However, once outside the hospital, appellant changed his mind and asked to ride with Tabullo.

Tabullo and appellant arrived at the CAP offices around 11:05 p.m. After offering appellant a beverage, Tabullo and appellant sat down in Tabullo's cubicle to discuss the incident. Before asking appellant any questions, Tabullo handed appellant a card which set out his Miranda warnings and asked appellant to read the warnings. (2) See Miranda v. Arizona, 384 U.S. 436 (1966).

After appellant read the card, Tabullo asked him if he understood his rights, and appellant indicated that he did. In fact, appellant indicated that he knew "all about the Miranda warnings" because he was a security guard. Appellant then signed the card, and wrote the date and time on it. Tabullo advised appellant that he was not under arrest and that he was free to leave at any time.

However, he reiterated that he did want to talk to appellant about the incident. Tabullo specifically advised appellant that he had the right to an attorney, and appellant said that he did not want one and that he did want to talk to the detective. As Tabullo and appellant talked, Tabullo typed. Tabullo testified that appellant was very calm and did not appear to be under the influence of alcohol or any drugs or narcotics. Tabullo also told the court that appellant did not appear to be under duress.

When they finished, Tabullo asked appellant to read each paragraph of the statement that he had typed. Tabullo also instructed appellant to initial each paragraph noting that he had read and understood it. The first two paragraphs of the typed statement contained the same legal warnings that appellant had previously read from the card.

In this statement, appellant stated that he had been watching television when Dylan called him and told him that Nicholas was not breathing. Appellant stated that Dylan later told him that he and Nicholas had been wrestling when he put his hand over Nicholas' mouth, and Nicholas fainted. Appellant signed on the last page of the statement. This statement ended at 2:10 the morning of March 1, 2000.

After taking appellant's first statement, Tabullo told appellant that his mother was outside. Appellant asked Tabullo to tell his mother that he would call her when he was finished. He also asked Tabullo if he was still free to leave at any time; Tabullo told him that he was.

At 2:25 a.m., Tabullo again had appellant read his rights and sign, date, and place the time on the card noting that he understood those rights. Tabullo again asked appellant if he wanted an attorney, and appellant told him that he did not. Appellant noted that he was willing to continue talking to Tabullo.

Shortly thereafter, Tabullo received from other detectives polaroid photographs which appeared to show an adult-sized footprint on Nicholas' stomach. Tabullo confronted appellant with the photographs, after which appellant orally admitted to stomping Nicholas. Tabullo asked appellant for his shoes, which appellant gave him. Tabullo then took appellant to be fingerprinted and photographed.

Appellant signed a document indicating that he knew that he could refuse to be fingerprinted and photographed. After these procedures were completed, Tabullo and appellant returned to the interview room and continued talking. Appellant never asked to terminate the interview, and he willingly talked to Tabullo.

Tabullo began typing the second statement at 5:46 a.m. Appellant's legal rights again appeared at the top of this statement. After he finished typing the document, Tabullo handed the statement to appellant and advised him to read it. Appellant signed the document, but did not write the ending time on the document or initial the individual paragraphs.

In response to questions from appellant's counsel, Tabullo admitted that appellant could have slept between the statements. However, Tabullo never saw him sleep, and appellant was "fully awake" when he signed the second statement. Tabullo's partner, Detective Terry Kozak, and Officer Lopez witnessed the signing of the second statement. Lopez testified that appellant did not appear to be under duress when he signed the second statement. Lopez further opined that appellant was not forced or coerced into signing the statement.

After the State rested, appellant took the stand in his own defense. Appellant claimed that he did not read this statement before he signed it. He noted that after he had finished the first statement, Tabullo told him that he needed "to clear up a few things on the statement."

Appellant said that he thereafter fell asleep until he was awakened by Tabullo telling him to sign the corrected statement. Appellant said that he did not know what he was signing; he just took Tabullo's word that it was a corrected version of the first statement.

The trial court denied appellant's motion to suppress his written statements and entered the following findings and conclusions:

The Court hereby finds that the Voluntary Statements of the Accused were freely and voluntarily made without compulsion or persuasion. The Detective read the Miranda warnings to the Defendant from the Miranda card provided by the El Paso Police Department [citation to exhibit omitted]. The Defendant initialed the card and stated he understood his rights.

The Defendant freely and voluntarily waived his rights including his right to an attorney and his right to remain silent. Prior to giving both Voluntary Statements of Accused, the Defendant was read his Miranda warnings again from the top of each statement, stated he understood his rights and freely and voluntarily waived his rights.

Although the judge's finding that appellant "was read" his rights prior to giving each statement is not precisely accurate, the record does support the fact that appellant was given his rights in writing (and to some extent verbally) at least twice before the taking of each statement and another time in between them. Furthermore, appellant unequivocally admitted that he was familiar with his rights.

Additionally, the record supports the judge's findings that appellant waived his rights and that he made both statements without compulsion or persuasion. Finally, although the judge's findings and conclusions were sparse, we hold that they are sufficiently detailed to enable this Court to determine the basis for the trial court's ruling and to assist us "in determining the sufficiency of the evidence to support whatever unstated findings of fact were made by the fact finder." Guidry, 9 S.W.3d at 140-42. Appellant's first point of error is overruled.

In his second point of error, appellant claims that the trial court should have suppressed his second written statement because it was obtained in violation of the Texas Constitution, Article I, 9 and 10, and Texas Code of Criminal Procedure Articles 14.06 and 15.17.

Specifically, appellant contends that his second written statement should have been suppressed because the State failed to take him before a magistrate without undue delay. Had he been promptly taken before a magistrate, appellant "would likely have not signed the second statement."

Articles 14.06 and 15.17 require that the person making the arrest shall "without unnecessary delay" take the person arrested or have him taken before a magistrate of the county where the accused was arrested. However, this Court has consistently held that violations of these articles do not automatically invalidate a confession. See Rocha v. State, 16 S.W.3d 1, 29-30 (Tex. Crim. App. 2000) (Holland, J., concurring); Cantu v. State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992).

Rather, an accused must show a causal connection between the accused's confession and the failure to take the accused promptly before a magistrate before the validity of the confession is affected. Williams v. State, 692 S.W.2d 671, 675 (Tex. Crim. App. 1984). See also Ex parte Stansbery, 702 S.W.2d 643, 647 (Tex. Crim. App. 1986). This Court has also held that a confession that was obtained prior to the accused being taken in front of a magistrate is admissible as long as his Miranda warnings had been read to him before the statement was taken. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995).

The evidence is uncontroverted that appellant willingly accompanied Tabullo to the CAP offices around 11:05 p.m., February 29, 2000, to speak with him about how Nicholas became injured. It is also not disputed that appellant could have terminated the interview and left the CAP offices at any time before about 2:25 a.m., March 1, 2000, when he first admitted to "stomping" Nicholas.

After appellant orally confessed to hurting Nicholas, Tabullo took polaroid pictures of him. He then took appellant to be fingerprinted and officially photographed. However, before either of these events took place, appellant was told that he had a right to refuse to be fingerprinted and photographed. Appellant signed a waiver of those rights.

Appellant then accompanied Tabullo back to his cubicle where Tabullo typed appellant's second statement. Appellant and two witnesses signed that statement around 6:50 a.m. Immediately after that, Tabullo told appellant that he was under arrest. Tabullo went to procure a warrant, and appellant was taken before a magistrate close to 8:00 a.m.

Appellant correctly notes that he was arrested without a warrant. However, his oral confession to Tabullo, coupled with the photograph Tabullo received showing the apparent image of an adult footprint across Nicholas' stomach, gave Tabullo probable cause to arrest him. See Anderson v. State, 932 S.W.2d 502, 506 (Tex. Crim. App. 1996) (citing New York v. Harris, 495 U.S. 14 (1990)), cert. denied, 521 U.S. 1122 (1997).

Even if the time between appellant's oral admission that he hurt Nicholas and the time that he was finally taken before a magistrate could be considered unreasonable, appellant has still failed to show a causal connection between his confession and any delay in taking him before a magistrate. Appellant readily admitted that he was aware of his statutory rights.

In addition, he was informed of those rights at least three times prior to giving his statement. Under these circumstances, the trial court did not err in refusing to suppress appellant's second written statement. Appellant's second point of error is overruled.

ADMISSION OF PHOTOGRAPHS

In his third and fourth points of error, appellant claims that the trial court violated Texas Rule of Evidence 403 by admitting into evidence State's Exhibits 16, 17, and 18. Appellant contends that the photographs were unfairly prejudicial because they show Nicholas' body in a mutilated condition due to the actions of the medical examiner.

In his second statement to the police, appellant claimed that when he saw Nicholas lying on the floor of the bedroom, he did not "know what came over [him]" but he went over to the boy and "stamped on him hard" with his right foot. Appellant claimed this was the only injury he inflicted on the boy.

The State argued, on the other hand, that two additional bruises on Nicholas' torso which the medical examiner categorized as "fresh" indicated that appellant inflicted more injury to the boy than just a single "stamp." The State also presented, without objection, testimony from the medical examiner regarding several bruises on Nicholas' head.

However, the doctor testified without equivocation or contradiction that these bruises were a few days old and not inflicted at the same time as the injury which caused Nicholas' death or the other two bruises to his torso. The State claims that the three exhibits about which appellant now complains were offered for the purpose of illustrating and explaining the extent of Nicholas' injuries.

The exhibits at issue are three 5-inch by 7-inch color autopsy photographs. State's Exhibit 16 shows a view of Nicholas' major organs after the medical examiner has cut open the length of his torso and spread the sides apart. State's Exhibit 17 shows the upper one-third of Nicholas' body. His chest is still open with the ribs spread and the organs removed, and the front half of his scalp has been cut and peeled down over his face.

Finally, State's Exhibit 18 shows Nicholas' head and shoulders from the back. In this photograph, the back half of Nicholas' scalp has been peeled down and is hanging across Nicholas' shoulders much like a hood on a jacket would hang down. Each photograph is close-up, highly graphic, and extremely gruesome. These are the only photographs showing Nicholas' injuries from an internal perspective.

In reviewing whether these exhibits were properly admitted, we determine whether the probative value of the slides is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. We review a trial judge's decision regarding the admissibility of evidence for an abuse of discretion. We will reverse the judge's decision only if it was outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 150-53 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001); Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 975 (1993). A judge need engage in a Rule 403 balancing test only when the evidence at issue is relevant. Tex. R. Evid. 401-403; Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224 (1992).

In Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998), and Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997), this Court held that autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself.

The main concern in these cases was that the jury might attribute certain injuries caused by the autopsy to the appellant, which would unfairly prejudice the appellant's case. See Rojas, 986 S.W.2d at 249 (holding autopsy photographs admissible because the gun shot wounds and trauma to the pelvic area that are depicted in the photographs were a result of appellant's actions, not the performance of the autopsy); Santellan, 939 S.W.2d at 173 (holding that a change rendered as part of the autopsy process which is of minor significance does not prevent the admission of the picture when the disturbing nature of the photograph is due primarily to the injuries caused by appellant).

Photographs depicting "mutilation" by the medical examiner may still be admissible, and therefore excepted from the general prohibition, when the resulting picture (such as an organ that has been removed from the body) shows bruising or other damage that is attributable to the defendant's actions, but was not visible externally, thereby making the photograph highly relevant to the manner of death. Ripkowski v. State, 61 S.W.3d 378, 392-93 (Tex. Crim. App. 2001); see also Salazar, 38 S.W.3d at 150-53.

State's Exhibit 16 presents just such an exception to the general prohibition against photographs depicting mutilation. Although doctors could see bruising on the external surface of Nicholas' body, it was not until they opened his body that they saw the full extent of injuries appellant caused him, i.e., a crushing impact so severe that it ripped his internal organs into pieces.

Although extremely graphic and explicit, State's Exhibit 16 was highly probative of the manner of Nicholas' death and the extent of his injuries. The trial judge did not abuse his discretion in allowing the admission of State's Exhibit 16. Point of error three is overruled.

State's Exhibits 17 and 18, on the other hand, show mutilation attributable to the medical examiner, but do not fit the exception to the mutilation cases. State's Exhibit 17, showing Nicholas with the front half of his scalp peeled down over his face and a chest and abdominal cavity devoid of any organs, and State's Exhibit 18, showing Nicholas with the back half of his scalp peeled down and draped across his shoulders, were offered to show the jury additional injuries Nicholas had suffered, namely, five bruises on his head, resulting, according to testimony, from five different blows.

However, these bruises, the medical examiner testified, were "a few days" old, and occurred separate from the crime for which appellant is charged. In fact, the State presented no evidence that connected appellant to these bruises, or connected these bruises to the present crime.

Thus, these two photographs were not relevant in the guilt phase of appellant's trial, and should not have been subjected to a Rule 403 balancing test or admitted into evidence over appellant's objection. Lack of relevancy notwithstanding, under the facts of this case, this is not the end of our inquiry.

Appellant failed to object at the guilt phase to testimony regarding the bruising found on Nicholas' head during the autopsy. Therefore, appellant may have waived any relevancy complaint under Rule of Evidence 401 that he had regarding photographs on the same topic, making it necessary for us to review the trial court's Rule 403 decision on the issue. See Tex. R. App. P. 33.1.

When performing a Rule 403 analysis, the trial court must consider "the host of factors affecting probativeness . . . and balance those factors against the tendency, if any, that the photographs have to encourage resolution of material issues on an inappropriate emotional basis." Salazar, 38 S.W.3d at 152; Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000).

When determining the proclivity of pictures to spur emotional decision-making, the court should examine the "number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, [and] whether they are close-up." Salazar, 38 S.W.3d at 152; Long, 823 S.W.2d at 272.

Additionally, relevant criteria in determining whether the prejudicial effect of a piece of evidence substantially outweighs the probative value include the fact "that the ultimate issue was not seriously contested by the opponent; that the State had other convincing evidence to establish the ultimate issue to which the [evidence] was relevant; that the probative value of the . . . evidence was not, either alone or in combination with other evidence particularly compelling; that the [evidence] was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely be efficacious." Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000) (citing Montgomery v. State, 810 S.W.2d 372, 392-93 (Tex.Crim.App.1990)).

The trial court should also, if applicable, consider the fact that the body has been altered since the crime in some way (e.g., by autopsy) that might enhance its gruesomeness to the defendant's detriment. Narvaiz, 840 S.W.2d at 429.

State's Exhibits 17 and 18 have little probative value, if any. The State failed to connect the injuries depicted in the photographs to appellant. Indeed, one expert witness testified that the bruises were consistent with infant rambunctiousness or accident and did not signal intentional abuse. The photographs were in no way necessary to show the manner of the victim's death or the extent of the injuries that appellant caused.

On the other hand, these photographs have a high tendency to "encourage resolution of material issues on an inappropriate emotional basis." Ladd, 3 S.W.3d at 568. Both photographs are in color and close-up. By no action attributable to appellant, both are extremely graphic and gruesome in that the boy's scalp has been turned inside out, and one picture further depicts an empty shell of a body.

Testimony further revealed that some damage was done to the skin under the scalp as the medical examiner peeled it back. However, while the damage that the medical examiner inflicted is the central focus of the pictures, it does not make up the entire picture.

Rather, enough of the boy's intact body features are shown around the edges of the pictures to remind the viewer that he is indeed looking at the remains of a small boy. Plus, the inclusion of the pictures allowed the implication that appellant somehow had something to do with the infliction of the bruises found on the child's scalp.

Given the circumstances of this particular case, we hold that the trial court abused its discretion in determining that the probative value of these photographs was not substantially outweighed by the danger of unfair prejudice. See Salazar, 38 S.W.3d at 153 n.10 (emphasizing that, while the trial court did not abuse its discretion under the facts of Salazar, the case should not be taken as an indication that it is, in general, acceptable to admit photographs of organs removed from a victim during the autopsy). Having found that the trial court abused its discretion, we must perform a harm analysis. Reese, 33 S.W.3d at 243.

The appropriate standard of harm is found in Texas Rule of Appellate Procedure 44.2(b), which states that "[a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." In Johnson v. State, 967 S.W.2d 410,417 (Tex. Crim. App. 1998), this Court explained that "[a] criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect."

The evidence in the instant case focused on the fact that appellant was the last adult with Nicholas before he received a crushing blow injury to the abdomen - an injury which revealed the image of an adult's footprint. Further, this injury was so severe that his internal organs were severed.

On the other hand, the medical examiner clearly testified that the bruises on Nicholas' head were not inflicted on the day of his death, nor did they contribute to his death. Finally, the testimony concerning these bruises was brief and was not emphasized. From this record, this Court has fair assurance that the error did not influence the jury at either stage of trial, or had but a slight effect. Point of error four is overruled.

COMPETENCY OF WITNESS

In his fifth point of error, appellant asserts that the trial court reversibly erred in ruling that Dylan Salinas was a competent witness and in allowing him to testify. Texas Rule of Evidence 601(a)(2) places the power to determine a witness' competency into the hands of the trial judge. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995), cert. denied, 519 U.S. 826 (1996).

A ruling by the trial court will not be disturbed upon review unless an abuse of discretion is shown. Id. Under Rule 601, a child is considered competent to testify unless it appears to the court that he does not possess sufficient intellect to relate the transaction about which he will testify. Id.

The ability to relate encompasses both "an ability to understand the questions asked and to frame intelligent answers" as well as "a moral responsibility to tell the truth." Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim. App. 1980); see also 1 Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal 601.2 (2d ed. 1993 & Supp. 1998).

There is no particular age below which a child is automatically deemed incompetent to testify. Fields v. State, 500 S.W.2d 500, 502 (Tex. Crim. App. 1973); Goode et al., supra. Inconsistencies in a child's testimony, while probative on the issue of competency, do not alone render the child incompetent. Fields, 500 S.W.2d at 503.

In a hearing outside the presence of the jury, the judge questioned Dylan to determine if he was competent to testify. During that hearing, the judge determined that Dylan knew his full name, and he could correctly spell "Dylan." Dylan knew that he was five years old and that he went to a school named Putnam. He said that he sometimes read, but he did not like it. Dylan could also accurately recite his alphabet.

When asked in the abstract whether he knew the difference between telling the truth and telling a lie, Dylan said that he did not. However, when given a concrete example (e.g., it was sunny outside or it was snowing outside), Dylan could accurately tell the judge which was true and which was not true. Dylan also did not comprehend the abstract definition of "truth," but when given a concrete example (e.g., did you eat all of the cookies when your mother told you not to), he knew to tell the truth, thereby demonstrating an understanding of the concept.

Dylan also demonstrated an understanding of the difference between right and wrong, such as, it was wrong to take someone else's apple at school. Finally, Dylan promised to listen to the questions that the lawyers might ask him and to answer those questions truthfully if he knew the answer.

Given this record, we hold that the judge did not abuse his discretion in finding Dylan competent to testify. Appellant's fifth point of error is overruled.

EFFECTIVE ASSISTANCE OF COUNSEL

In five separate points of error, appellant contends that his trial counsel rendered ineffective assistance. Specifically, appellant complains that his counsel rendered ineffective assistance when he:

(point of error seven) made several statements during his punishment phase argument which illustrated a shift in trial strategy from denying guilt to accepting blame, which shift in strategy appellant did not consent to;

(point of error eight) cross-examined Nicholas' mother at punishment in such a manner that she ultimately characterized appellant as very jealous and a ticking "time bomb";

(point of error nine) failed to object to the State's alleged mischaracterization of the manner of Nicholas' death in the State's argument at both phases of trial, i.e., that appellant inflicted more than just one stomping injury;

(point of error ten) failed to timely tender to the trial court a videotape interview of Dylan Salinas which would have shown the court that the child was not a competent witness;

(point of error eleven) moved to have Nicholas' body exhumed for a general examination.

The proper standard for reviewing an ineffective assistance of counsel claim was established in Strickland v. Washington, 466 U.S. 668 (1984)(adopted by this Court in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)). Under Strickland, an appellant must first demonstrate that his trial counsel's performance was deficient. Secondly, he must show that his counsel's deficient performance was so serious that it prejudiced his defense, rendering the trial unfair and the verdict suspect. Strickland, 466 U.S. at 687; Lockhart v. Fretwell, 506 U.S. 364 (1993).

In other words, appellant must prove by a preponderance of the evidence that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and that this deficient performance rendered the result of the proceeding unreliable. Strickland, 466 U.S. at 687.

Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Chambers v. State, 903 S.W.2d 21, 33 (Tex. Crim. App. 1995).

The analysis of effective assistance is undertaken in light of the "totality of the representation" rather than by examining isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). The fact that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance. Miniel v. State, 831 S.W.2d 310, 325 (Tex. Crim. App. 1992).

Under most 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 decision-making as to overcome the strong presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833.

As this Court recently explained, rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: "[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Id. A reviewing court can frequently speculate on both sides of an issue, but ineffective assistance claims are not built on retrospective speculation; rather, they must "be firmly founded in the record." Id.

The record in the instant case is not sufficiently developed on appellant's claims of ineffective assistance of counsel set forth in points of error seven, eight, and eleven. Therefore, we can only speculate as to why counsel took the actions (or failed to take the actions) that he did, and such speculation is beyond the purview of this Court. Id.; see also Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994)(Baird, J., concurring); Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). Points of error seven, eight, and eleven are overruled.

In his ninth point of error, appellant contends that his counsel was ineffective for failing to object to the State's "mischaracterization" of the manner of Nicholas' death. Specifically, appellant complains that his counsel should have objected to the State's argument at punishment that the existence of two additional bruises on Nicholas' torso indicated that appellant had inflicted more than just one stomping injury.

Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000).

To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case. Id. The prosecutor's argument was permissible as a reasonable deduction drawn from the evidence, and defense counsel's failure to object did not constitute ineffective assistance of counsel. Point of error nine is overruled.

In his tenth point of error, appellant contends that his counsel was ineffective for failing to timely tender to the trial court a videotape interview of Dylan Salinas which, he asserts, would have shown the court that the child was not a competent witness. The videotape interview to which appellant refers shows a conversation between Detective Brian Fuller and Dylan Salinas. The conversation occurred just past midnight on March 1, 2000, more than a year before Dylan was called to testify at appellant's trial.

As previously held in point of error five, the trial judge did not abuse his discretion in determining that Dylan was competent to testify at appellant's trial, given the testimony presented at the competency hearing.

Whether Dylan was competent to testify mere hours after the offense and more than a year before the trial was not material to this decision. Given these circumstances, we will not hold that appellant's counsel was deficient for failing to timely present the videotape for the court's consideration. Strickland, 466 U.S. at 687. Point of error ten is overruled.

SUFFICIENCY OF EVIDENCE OF FUTURE DANGEROUSNESS

In his sixth point of error, appellant complains that the evidence presented at trial was insufficient to support the jury's finding that he would probably be a continuing threat to society. See Art. 37.071 2(b)(1).

In reviewing the sufficiency of the evidence at punishment, this Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Allridge v. State, 850 S.W.2d 471, 487 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831 (1993). The facts of the crime alone can be sufficient to support the affirmative finding to the future dangerousness special issue. Allridge, 850 S.W.2d at 488.

During the guilt phase of trial, the jurors heard that appellant was the only adult with 19-month-old Nicholas when he was hurt. They heard that the child was so badly injured that several of his organs were literally ripped in two. The doctors told them that the force required to cause these types of injuries was extreme.

Testimony that Nicholas had two additional "fresh" bruises on his torso in addition to the one in the shape of a shoe print enabled the prosecutor to argue his version of the scenario for the jury. In this version of events, appellant kicked Nicholas twice before finally, fatally stomping him to death.

At punishment, the State presented no evidence of a prior criminal history, other bad acts, or psychological evidence. However, the facts of the instant case with its young, helpless victim gave the jurors enough information to permit them to conclude that appellant would continue to be a threat to society.

Appellant not only stomped on a defenseless 19-month-old with enough force to sever his internal organs, but if the jury believed the prosecutor's version of the events, appellant kicked him twice before delivering the final fatal blow.

Further, a rational juror could have believed that, when appellant did call for help, he intentionally misled paramedics about the nature of the child's injuries. Also, appellant attempted to blame Nicholas's injuries on an equally defenseless four-year-old boy. When appellant finally admitted his actions, he could give no explanation for what he did. Appellant's actions show a wanton and callous disregard for human life. See Martinez v. State, 924 S.W.2d 693, 696-97 (Tex. Crim. App. 1996)(holding that close-range stabbing showed wanton and callous disregard for human life and was sufficient evidence to support jury's affirmative answer to the future dangerousness issue).

Under these facts, we hold the evidence legally sufficient to support the jury's affirmative answer to the future dangerousness issue. Jackson, 443 U.S. at 319; Martinez, 924 S.W.2d at 696-97. Point of error six is overruled.

We affirm the judgment of the trial court.

Delivered: July 2, 2003

Do Not Publish

1. Unless otherwise indicated this and all future references to Articles refer to the Code of Criminal Procedure.

2. Although Tabullo kept referring to the warnings as "Miranda" warnings, the warnings actually comply with Article 38.22.

 

 

 
 
 
 
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