




Affirmed and Opinion filed April 16, 2009







Affirmed and Opinion filed April 16, 2009.
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-08-00417-CR
____________
 
MERVYN LOPEZ ALDABA, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
On Appeal from the 232nd
District Court
Harris County, Texas
Trial Court Cause No. 1087475
 

 
O P I N I O N
Appellant Mervyn Lopez Aldaba challenges his capital murder
conviction, claiming (1) egregious harm in the trial court=s failure to give
instructions in the jury charge as to the voluntariness of appellant=s custodial
statement, and (2) ineffective assistance of counsel in handling the alleged
jury-charge error and the appellant=s custodial
statement.  We affirm.




I.  Factual and Procedural Background
Appellant and complainants, Angelito Montemayor and Eloisa
Cruz, arranged to meet on a street in front of a home for the purpose of
selling narcotics to Cloefe Ennis, who lived there.  As they waited for Ennis
to arrive at the home, appellant shot and killed Montemayor and Cruz.  A
neighborhood resident saw the shooting through a window in his home and saw the
shooter leave the scene in a white truck.  Police arrived on the scene in
response to calls regarding a shooting in progress.
Another neighborhood resident heard noises outside his home
and heard a vehicle leave the scene in front of his home.  This man recognized
the sound of the vehicle=s muffler as belonging to appellant=s white truck. 
This man gave appellant=s cell phone number to investigating
officers.
Investigating officers who arrived on the scene discovered
the bodies of Montemayor and Cruz, as well as a number of spent shell casings
and cigarette butts, one of which was later linked by DNA to appellant. 
Investigators did not find any weapons at the scene. 
On the same night, appellant gave a gun to a friend and
asked the friend to hold on to it.  Investigators later recovered the weapon as
part of an unrelated narcotics investigation and determined the weapon had been
used in the shootings of Montemayor and Cruz. 
Appellant was charged with capital murder, to which he
pleaded Anot guilty.@  At a jury trial
that followed, appellant testified that he killed the complainants in
self-defense because he saw Montemayor pointing a gun at him.  
On cross-examination, the State questioned appellant about
his interview with homicide detectives on the day of his arrest,[1]
prompting the following exchange:




[PROSECUTOR]:     . . . But you
recall a conversation with two homicide detectives?
[APPELLANT]:       Yes, sir.
[PROSECUTOR]:    During that
interview they specifically asked you if you heard a shooting about a
Phillippino [sic] couple didn=t you?
[APPELLANT]:       Yes, sir.
[PROSECUTOR]:    You lied to them
about that?
[APPELLANT]:       I exercised my
right to remain silent yes, sir.
[PROSECUTOR]:    That=s actually not true.  You lied and
said no didn=t you?
[APPELLANT]:       I told him no
yes [sic] >cause I didn=t have a lawyer.
[PROSECUTOR]:    In fact they got
more specific with you.  They asked if you heard through any conversations in
the Phillippino [sic] community about the murders, whether you heard any news
reports about the murders.  Even asked you if you were familiar with the
location of the murder and each time you said no.  Isn=t that true?
[APPELLANT]:       The location
sir.  Yes, I remember that question, but the rest of it I don=t remember them talking about that
sir.
[PROSECUTOR]:    All right.  But
you said you weren=t even familiar with the location
of the murder didn=t you?
[APPELLANT]:       Yes, sir.  I
told them that.
[PROSECUTOR]:    So again you lied
to them.  You knew about that location didn=t you?
[APPELLANT]:       Yes, sir I lied
to them.
[PROSECUTOR]:    Now they continued
asking you whether or not you killed anybody and you said no.
[APPELLANT]:       No I didn=t.  They didn=t get to that question sir.
[PROSECUTOR]:    Well, yes they did
Mr. Aldaba.  Do you not recall them asking you that question?




[APPELLANT]:       No sir.
[PROSECUTOR]:    How about the fact
that at some point you denied killing the Phillippino [sic] couple when they
asked you.  You recall that?
[APPELLANT]:       No, sir.
[PROSECUTOR]:    Do you recall
denying even hearing anything about it?
[APPELLANT]:       No, sir.
[PROSECUTOR]:    Okay.  And you
deny that you told these detectives you know absolutely nothing about a murder?
[APPELLANT]:       No, sir.
[PROSECUTOR]:    Would you agree
with me this would have been an opportunity for you to share with the
detectives the version of events that you=re sharing with this jury today?
[APPELLANT]:       Yes, sir.  If I
had my lawyer present I would sir.
[PROSECUTOR]:    And that=s fine but lawyer or no lawyer you
had an opportunity to tell these detectives what had happened, the version of events
you=re telling this jury today you
chose rather to lie about it didn=t you?
[DEFENSE ATTORNEY]:  Judge that was
asked and answered.
[TRIAL COURT]:     Overruled.
[APPELLANT]:       Sir?
[PROSECUTOR]:    You chose to lie
about it didn=t you?
[APPELLANT]:       Yes, sir.
The jury found appellant guilty as charged.  He was
sentenced to a life of confinement.  On appeal, appellant challenges his
conviction, presenting two issues.
 
 




II.  Issues and Analysis
A.      Did the trial court err in
failing to instruct the jury on the voluntariness of appellant=s custodial statement?
In his first issue appellant claims egregious harm because
the trial court did not instruct the jury under sections 6 and 7 of article
38.22 of the Texas Code of Criminal Procedure as to the voluntariness of
appellant=s statements made to police.[2] 
Appellant points to the State=s cross-examination as evidence that he
claims raised a fact issue about the voluntariness of his statements to the
detectives, warranting a jury instruction under sections 6 and 7.
A trial judge has the absolute duty to sua sponte
prepare a jury charge that accurately sets out the law applicable to the case. 
Oursbourn v. State, 259 S.W.3d 159, 179B81 (Tex. Crim.
App. 2008); see Tex. Code Crim.
Proc. Ann. art. 36.14 (Vernon 2007).  When statutes such as Articles
38.22 and 38.23 require an instruction under certain circumstances, that
instruction is Alaw applicable to the case,@ and the trial
court must instruct the jury of what is required under the statute.  Oursbourn,
259 S.W.3d at 180B81.  Although a Avoluntariness@ issue must be
raised, and an accused should request a jury instruction that relates to the
theory of involuntariness, if the accused fails to present a proposed jury
instruction or fails to object to the lack of one, any potential error in the
charge is reviewed for egregious harm, as set forth in Almanza.  Id. at
174.
1.       Article
38.22, section 6




Article 38.22, section 6 of the Code of Criminal Procedure
governs the admissibility of an accused=s custodial and
non-custodial statements, and provides that only voluntary statements may be
admitted.  Tex. Code Crim. Proc. Ann.
art. 38.22, ' 6 (Vernon 2005); see Oursbourn, 259 S.W.3d at
171.  A claim under section 6 that an accused=s statement was
made involuntarily may include situations involving police overreaching, youth,
intoxication, illness or medication, mental incapacitation, or other
disabilities.  See Oursbourn, 259 S.W.3d at 172B73.  Although,
alone, these fact scenarios are not enough to render a statement inadmissible,
they are factors a jury is entitled to consider when armed with a proper
instruction.  Id. at 173. 
Article 38.22, section 6, becomes Alaw applicable to
a case@ once a question
is raised and actually litigated as to the general voluntariness of an accused=s statement;
however, a factual dispute is not necessary.  Id. at 175B76, 180.  A
question of voluntariness is raised when a party notifies the trial judge or
the trial judge raises the issue on her own.  Id. at 175.  Under section
6, when a question is raised, the trial judge is then required to (1) make an
independent determination outside of the jury=s presence that
the statement was made under Avoluntary@ conditions, and
(2) instruct the jurors that they shall not consider any statement for any
purpose unless they believe beyond a reasonable doubt that the statement was
made voluntarily.  Id. at 180B81; see Tex. Code Crim. Proc. Ann. art. 38.22, ' 6.




In the case at hand, nothing in the State=s
cross-examination suggests that appellant=s statements to
the homicide detectives were made involuntarily as contemplated by section 6.  See
Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007) (AUnder article
38.22, there is no error in refusing to include a jury instruction where there
is no evidence before the jury to raise the issue.@).  Appellant has
not pointed to any evidence of police overreaching or presented evidence
suggesting that his statements to detectives were given under duress of
hallucinations, illness, medication, or a private threat.  See Oursbourn,
259 S.W.3d at 172 (providing that claims of involuntariness may turn on police
overreaching and evidence of psychological abnormalities).  Therefore, a
question of voluntariness was not raised by the parties that would have
triggered the trial court=s duties under section 6.  See id. at
175 (raising a question to notify a trial court of an issue about voluntariness
triggers trial court=s duties under section 6 to conduct
hearing outside of jury=s presence).  Moreover, because the
parties did not litigate the voluntariness of appellant=s statements in
some manner, the trial judge was not on notice that the instruction under
section 6 might be required.  See id. at 176.  An instruction under
section 6 was not Alaw applicable to a case.@  See id. at
175.  Accordingly, appellant was not entitled to a jury instruction under
section 6.  See White v. State, 779 S.W.2d 809, 827 (Tex. Crim. App.
1989).  Therefore, the trial court did not err in failing to give such an
instruction.
2.       Article
38.22, section 7
If an accused=s statement was
made as a result of custodial interrogation, when the issue is raised by the
evidence, the accused is entitled to have the jury decide whether he was
adequately warned of his rights and knowingly and intelligently waived those
rights.  Oursbourn, 259 S.W.3d at 176.  Section 7 of article 38.22
provides, AWhen the issue is raised by the evidence, the trial
judge shall appropriately instruct the jury, generally on the law pertaining to
such statement.@  Tex.
Code Crim. Proc. Ann. art. 38.22, ' 7.  AThe phrase >the issue= refers to
compliance with the statutory warnings set out in ... [article] 38.22, '' 2 & 3, and
the voluntariness of the defendant=s waiver of rights.@  Oursbourn,
259 S.W.3d at 176; see Tex. Code
Crim. Proc. Ann. '' 2, 3 (incorporating requirements of Miranda). 
For the issue to be Araised by the evidence,@ there must be a
genuine factual dispute.  Oursbourn, 259 S.W.3d at 176. 




We presume without deciding that appellant=s statements were
made during a custodial interrogation.[3] 
Appellant characterizes his answers during cross-examination as creating Aa fact issue
regarding whether he invoked his right to remain silent or right to counsel
during interrogation.@  However, there was no factual dispute
raised by the evidence as contemplated by section 7.  See id.  Contrary
to appellant=s assertions, although appellant made reference to
conversations he had with detectives at a time when he was not accompanied by
an attorney as well as discussions in which appellant indicated that he
exercised his right to remain silent by lying to detectives, the cross-examination
did not reveal that appellant actually asked for counsel or invoked his right
to remain silent.  Rather, the line of questioning revealed that appellant lied
to the police because he did not have a lawyer present with him.  Although
appellant argues that an issue of voluntariness was raised by the State=s
cross-examination, no evidence before the jury raised a factual dispute
concerning the voluntariness of appellant=s statements.  See
Brownlee v. State, 944 S.W.2d 463, 467, 468 (Tex. App.CHouston [14th
Dist.] 1997, pet. ref=d) (concluding issue of section 7
voluntariness was not raised by an accused=s testimony on
cross-examination when he explained, AThe only reason I
talked to the police because they wouldn=t let me leave.  I
just told them something so they would go ahead and process me that night
because I asked for my lawyer a bunch of times and they told me I was going to
get the death penalty for capital murder.@).  Appellant has
cited no other evidence that he claims placed in dispute the voluntariness of
appellant=s statements to the detectives.  See id.  We
conclude no issue was raised by the evidence to warrant an instruction under
section 7.  See id.
Because appellant was not entitled to instructions under
sections 6 and 7, the trial court did not err in failing to submit a jury
charge on the question of voluntariness.  See id. (concluding
no error occurred in failing to submit a section 7 instruction on
voluntariness); see also White, 779 S.W.2d at 827 (concluding
appellant was not entitled to section 6 instruction).  Therefore, we overrule
appellant=s first issue.
B.      Did
appellant receive ineffective assistance of counsel?
In his second issue, appellant complains that he received
ineffective assistance of counsel based on the following conduct during the
guilt-innocence phase, all of which involve his statements to detectives:




$                  
Trial counsel
did not object to the State=s cross-examination on the basis of article 38.22 of the Texas Code of
Criminal Procedure.
$                  
Trial counsel
did not object to testimony revealing that appellant had exercised his
constitutional right to counsel and to remain silent.
$                  
Trial counsel
did not request a hearing on the voluntariness and admissibility of appellant=s statements to detectives.
$                  
Trial counsel
did not request a limiting instruction so that the testimony could be used only
for impeachment purposes, but not for general evidence.
$                  
Trial counsel
did not request a jury instruction nor object to the omission of jury
instructions mandated by sections 6 and 7 of article 38.22.
Both the
United States and Texas Constitutions guarantee an accused the right to
assistance of counsel.  U.S. Const. amend.
VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005).  This right
necessarily includes the right to reasonably effective assistance of counsel.  Strickland
v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674
(1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). 
To prove ineffective assistance of counsel, appellant must show that (1) trial
counsel=s representation fell below an
objective standard of reasonableness, based on prevailing professional norms;
and (2) there is a reasonable probability that the result of the proceeding
would have been different but for trial counsel=s deficient performance.  Strickland,
466 U.S. at 688B92, 104 S. Ct. at 2064B67.  Moreover, appellant bears the
burden of proving his claims by a preponderance of the evidence.  Jackson v.
State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).  




In
assessing appellant=s claims, we apply a strong presumption that trial counsel
was competent.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). 
We presume counsel=s actions and decisions were reasonably professional and were
motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d
768, 771 (Tex. Crim. App. 1994).  When, as in this case, no proper evidentiary
record is developed at a hearing on a motion for new trial, it is extremely
difficult to show that trial counsel=s performance was deficient.  See
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  If there is no
hearing or if counsel does not appear at the hearing, an affidavit from trial
counsel becomes almost vital to the success of an ineffective-assistance
claim.  Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  The Court of Criminal Appeals
has stated that it should be a rare case in which an appellate court finds
ineffective assistance on a record that is silent as to counsel=s trial strategy.  See Andrews
v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).  On such a silent
record, this court can find ineffective assistance of counsel only if the challenged
conduct was A>so outrageous that no competent attorney would have
engaged in it.=@  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001)).  No
motion for new trial was filed in this case.
As discussed above, appellant was not entitled to
submission of an instruction as to voluntariness under either section 6 or
section 7.  See White, 779 S.W.2d at 827; Brownlee, 944 S.W.2d at
468; see also Randall v. State, No. 14-06-00468-CR, 2008 WL 5262738, at
*8 (Tex. App.CHouston [14th Dist.] Dec. 18, 2008, no pet.) (mem.
op., not designated for publication) (rejecting ineffective-assistance claim
for failure to object to admissible testimony).  Therefore, appellant=s trial counsel
did not render ineffective assistance in failing to request or object to the
omission of the instructions in the jury charge when he reasonably could have
determined that the instructions were not applicable to the case.  See
generally Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.CHouston [14th
Dist.] 1997, no pet.) (rejecting appellant=s claim for
ineffective assistance when trial counsel failed to request article 38.23
instruction when appellant was not entitled to instruction); see also
Randall, 2008 WL 5262738, at *8 (rejecting ineffective assistance claim for
failure to secure instructions under section 6 and section 7 when the accused
was not entitled to the instructions).




Appellant complains that his trial counsel should have
objected to the testimony because it purportedly revealed he exercised his
right to counsel and right to remain silent.  However, as discussed above, the
State=s
cross-examination did not show that appellant actually requested counsel or
invoked his right to remain silent; rather, the testimony revealed that instead
of invoking his right to remain silent, he lied to the police about his
knowledge because his attorney was not present with him.  See Edwards v.
State, 956 S.W.2d 687, 689 (Tex. App.CTexarkana 1997, no
pet.) (ADenials of
involvement in response to questioning do not constitute the invocation of the
right to silence.@).  When, as in this case, appellant did
not invoke his right to remain silent, and instead made a statement to police
regarding his involvement in the offense and that statement differed
significantly from his trial testimony, the prior statement to the police may
be developed and argued.  See Ewing v. State, 971 S.W.2d 204, 208 (Tex.
App.CBeaumont 1998,
pet. ref=d) (involving
an accused who denied involvement when speaking to police, but admitted at
trial that he attacked the complainant out of fear for the safety of another). 
Accordingly, on this basis, appellant has failed to demonstrate his trial
counsel was deficient for failing to object.  See id.  




Even assuming arguendo that appellant=s statements to
the detectives were in violation of Miranda or article 38.22, the
statements were not rendered inadmissible when, as in this case, the State used
the evidence for purposes of impeachment in cross-examination.  See Tex. Code Crim. Proc. Ann. ' 5; Lykins v.
State, 784 S.W.2d 32, 35B36 (Tex. Crim. App. 1989); Brownlee,
944 S.W.2d at 467 (providing that reference to an appellant=s prior statement
is permitted for impeachment purposes on cross-examination). Furthermore, on
this record, there is no evidence of trial counsel=s strategy in
failing to object on article 38.22 grounds.[4] 
The record reflects that trial counsel filed a motion to suppress statements
under article 38.22, section 3, which targets unrecorded statements; however,
trial counsel did not obtain a ruling on that motion.  In light of appellant=s own testimony at
trial, in which he admitted shooting the complainants, his trial counsel
reasonably could have determined, by not securing a ruling on the suppression
motion and in later not objecting on article 38.22 grounds, that admission of
appellant=s statements to detectives would not likely have
changed the outcome of the proceeding.  See Jackson, 973 S.W.2d at 957
(requiring the accused to prove that the motion to suppress would have been
granted to satisfy Strickland); see also Martinez v. State, No.
04-04-00057-CR, 2005 WL 2138121, at *2 (Tex. App.CSan Antonio Sept.
7, 2005, no pet.) (mem. op, not designated for publication) (concluding no
ineffective assistance occurred when trial counsel failed to file motion to
suppress statement or object under article 38.21 because, in light of the
accused=s own testimony,
admission of the statements at trial would not have changed the outcome of the
proceeding).  Because, on this record, the trial outcome was not likely to have
turned on the admission of appellant=s statements, his
trial counsel=s failure to procure a ruling or object on article
38.22 grounds could not constitute ineffective assistance of counsel.  See
Jackson, 973 S.W.2d at 957; see also Martinez, 2005 WL 2138121, at
*2.




Similarly, appellant complains that his trial counsel
should have procured a limiting instruction so that the testimony could have
been considered only for impeachment purposes.  However, when considering the
fact that appellant admitted to lying to detectives, no such instruction was
necessary.  See McKinney v. State, 76 S.W.3d 463, 475 (Tex. App.CHouston [1st
Dist.] 2002, no pet.) (determining that evidence of prior inconsistent
statements that the witness, at trial, conceded were false did not warrant a
limiting instruction and no ineffective assistance occurred from failing to
secure limiting instruction).  Even if, in hindsight, the court were to
conclude that a limiting instruction was warranted, it is reasonable, as a
matter of trial strategy, that appellant=s trial counsel
did not wish to focus the jury=s attention on appellant=s prior statements
to police.  See Ali v. State, 26 S.W.3d 82, 88 (Tex. App.CWaco 2000, no
pet.).  Nevertheless, because the record does not reflect trial counsel=s reasons for not
requesting the limiting instruction, there is no basis for concluding trial
counsel did not exercise reasonably professional judgment.  See id.
Finally, appellant complains that his trial counsel should
have secured a hearing on the issue of voluntariness and admissibility of
appellant=s statements to detectives.  Given the overwhelming
evidence of appellant=s guilt and because, as discussed above, a
question of voluntariness was not raised to trigger a hearing under sections 6
or 7, failure to object to the prior inconsistent statements and request a
hearing was not so egregious as to undermine the confidence in the result of
the trial.  See Trybule v. State, 737 S.W.2d 617, 621 (Tex. App.CAustin 1987, pet.
ref=d) (overruling
ineffective-assistance claims when undisputed evidence showed statements were
voluntary and overwhelming evidence of guilt was not so egregious as to
undermine confidence in result of trial); see also Oursbourn, 259 S.W.3d
at 175 (indicating that once a question is raised as to voluntariness, a
hearing should be held on the matter outside of the jury=s presence).
The record in this case is silent concerning appellant=s trial counsel=s reasons for his
conduct regarding appellant=s statements to detectives.  See Perez
v. State, 56 S.W.3d 727, 731B32 (Tex. App.CHouston [14th
Dist.] 2001, pet. ref=d) (overruling ineffective-assistance
claim where trial counsel failed to object on grounds that statement did not
comply with article 38.22, but record was silent as to trial counsel=s reasons for
conduct).  Because the record is silent as to trial counsel=s motivation, we
may not speculate to find trial counsel=s performance
deficient.  See id.  Therefore, appellant has failed to rebut the presumption
that trial counsel=s actions resulted from reasonable
strategy.  See id.  Furthermore, the allegedly improper actions of which
appellant complains do not amount to error sufficiently egregious to satisfy
the first prong of Strickland.  See id.  Accordingly, we overrule
appellant=s second issue.




Having overruled appellant=s two issues on
appeal, we affirm the trial court=s judgment.
 
 
 
 
/s/      Kem Thompson
Frost
Justice
 
 
 
 
 
Panel consists of
Justices Frost, Brown, and Boyce.
Publish C Tex. R. App. P. 47.2(b).




[1]  The record shows that when the State first made
reference to appellant=s conversation with detectives, appellant lodged an
unspecified objection.  The State indicated the conversation occurred when
appellant was not in custody and not under arrest.  The trial court overruled
the objection.


[2]  Unless otherwise specified, all references to a Asection@
are to the Texas Code of Criminal Procedure.


[3]  If the statement was not a product of custodial interrogation, no
warnings were required.  See Tex.
Code Crim. Proc. Ann. art. 38.22, ' 3 (outlining the requirements for statutory warnings and
waiver requirements); see also Rodriguez
v. State, 939 S.W.2d 211, 217 (Tex.
App.CAustin 1997, no pet.).


[4]  Appellant cites Sanders v. State, 715 S.W.2d
771, 775, n.10 (Tex. App.CTyler 1986, no pet.) for the proposition that lack of
action in regard to an accused=s statements to
police supports a claim for ineffective assistance.  See 715 S.W.2d at
776 (ANot a single objection was advanced to the statement,
pretrial or during trial.@).  We distinguish the facts of this case because our
record is silent as to trial counsel=s
strategy and because the record in this case contains no motion for new trial
as the Sanders case did.  Allegations of ineffective assistance must be
firmly grounded in the record.  See Bone, 77
S.W.3d at 833.  Moreover, the record in this case reflects that
appellant=s trial counsel filed a motion to suppress statements
under article 38.22, section 3.


