                                                                 ACCEPTED
                                                             14-14-00397-CR
                                             FOURTEENTH COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                        5/13/2015 3:47:21 PM
      No. 14-14-00397-CR                               CHRISTOPHER PRINE
      No. 14-14-00398-CR                                              CLERK


               In the
         Court of Appeals
              For the                      FILED IN
                                    14th COURT OF APPEALS
   Fourteenth District of Texas        HOUSTON, TEXAS
            At Houston              5/13/2015 3:47:21 PM
                         CHRISTOPHER A. PRINE
                                             Clerk
     Nos. 1307885 & 1307886
    In the 178th District Court
     Of Harris County, Texas
    

CEASAR LAKENDRICK RUSSI
             Appellant
                V.
  THE STATE OF TEXAS
             Appellee
    
  STATE’S APPELLATE BRIEF
    
                         DEVON ANDERSON
                         District Attorney
                         Harris County, Texas

                         JESSICA AKINS
                         Assistant District Attorney
                         Harris County, Texas
                         State Bar Number: 24029415
                         akins_jessica@dao.hctx.net

                         ANA MARTINEZ
                         Assistant District Attorney
                         Harris County, Texas

                         H. C. Criminal Justice Center
                         1201 Franklin, Suite 600
                         Houston, Texas 77002
                         Telephone: 713.755.5826
                         Fax Number: 713.755.5809

   ORAL ARGUMENT WAIVED
                 STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State waives

oral argument since it was not requested by appellant.


                       IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Victims:

             Zoila Quintanilla & Isaias Quintanilla

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County
             Jessica Akins  Assistant District Attorney on appeal
             Ana Martinez  Assistant District Attorney at trial
             David Abrams  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Ceasar Lakendrick Russi

      Counsel for Appellant:

             Thomas A. Martin  Counsel on appeal
             Major L. Adams  Counsel at trial
             Rhonda McLeod Chargois  Counsel at trial
             Connie B. Williams  Counsel at motion for new trial

      Trial Judge:

             Honorable David Mendoza  Presiding Judge


                                         i
                                              TABLE OF CONTENTS


STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

IDENTIFICATION OF THE PARTIES ................................................................................ i

INDEX OF AUTHORITIES ................................................................................................... iii

STATEMENT OF THE CASE ................................................................................................. 1

STATEMENT OF FACTS ........................................................................................................ 1

SUMMARY OF THE ARGUMENT ..................................................................................... 3

          Appellant has not shown that he received ineffective assistance of counsel,
          either at the trial or punishment phase of trial. He failed to preserve the issue
          of whether the trial court’s response to a jury note was improper.
          Nonetheless, he has not shown the judge abused its discretion.

REPLY TO APPELLANT’S THIRD ISSUE ......................................................................... 4

REPLY TO APPELLANT’S SECOND ISSUE ..................................................................... 7

REPLY TO APPELLANT’S FIRST ISSUE ........................................................................... 9

CONCLUSION .........................................................................................................................12

CERTIFICATE OF SERVICE ............................................................................................... 13

CERTIFICATE OF COMPLIANCE .................................................................................... 13




                                                                 ii
                                          INDEX OF AUTHORITIES

CASES

Alexander v. State,
  282 S.W.3d 701 (Tex. App.—
  Houston [14th Dist.] 2009, pet. ref’d) ........................................................................... 12
Dannhaus v. State,
  928 S.W.2d 81 (Tex. App.—
  Houston [14th Dist.]1996, pet. ref’d) ............................................................................... 6
Ex parte McFarland,
  163 S.W.3d 743 (Tex. Crim. App. 2005) .......................................................................... 5
Gordon v. State,
  633 S.W.2d 872 (Tex. Crim. App. 1982) .......................................................................... 9
Hawkins v. State,
  660 S.W.2d 65 (Tex. Crim. App. 1983) ......................................................................... 11
Holden v. State,
  201 S.W.3d 761 (Tex. Crim. App. 2006) .......................................................................... 9
Kupchynsky v. Nardiello,
  230 S.W.3d 685 (Tex. App.—
  Dallas 2007, pet. denied) ................................................................................................. 8
Lewis v. State,
  911 S.W.2d 1 (Tex. Crim. App. 1995) ............................................................................... 9
Lyle v. State,
  418 S.W.3d 901 (Tex. App.—
  Houston [14th Dist.] 2013, no pet.) ................................................................................. 8
Marinos v. State,
  186 S.W.3d. 167 (Tex. App.—
  Austin 2006, pet. ref’d) .................................................................................................. 11
Pryor v. State,
  719 S.W.2d 628 (Tex. App.—
  Dallas 1986, pet. ref’d) ...................................................................................................... 6
Quinn v. State,
  958 S.W.2d 395 (Tex. Crim. App. 1997) .......................................................................... 9




                                                                iii
Resendez v. State,
  160 S.W.3d 181 (Tex. App.—
  Corpus Christi 2005, no pet.).......................................................................................... 9
San Saba Energy, L.P. v. Crawford,
  171 S.W.3d 323 (Tex. App.—
  Houston [14th Dist.] 2005, no pet.) ................................................................................ 8
Strickland v. Washington,
   466 U.S. 668 (1984) ................................................................................................... 4, 10
Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999) ......................................................................... 4, 6
Unkart v. State,
  400 S.W.3d 94 (Tex. Crim. App. 2013) ........................................................................... 8
Valdes-Fuerte v. State,
  892 S.W.2d 103 (Tex. App.—
  San Antonio 1994, no pet.) .............................................................................................. 5

STATUTES

TEX. CODE CRIM. PROC. ANN.
  art. 38.05 (West 2013) ..................................................................................................... 8
TEX. PENAL CODE ANN.
  §3.03(a) (West 2013) ....................................................................................................... 7

RULES

TEX. R. APP. P. 33.1 ............................................................................................................... 8
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. i
TEX. R. APP. P. 39.1 ................................................................................................................ i
TEX. R. APP. P. 9.4(g) ............................................................................................................ i




                                                                  iv
TO THE HONORABLE COURT OF APPEALS:


                              STATEMENT OF THE CASE

       Appellant was charged by indictment with the felony offenses of aggravated

robbery and aggravated assault. (CR I 72; CR II 631). The jury found appellant

guilty of both offenses as charged in the indictments. (CR I 158; CR II 145; RR VI

6). The jury sentenced appellant to 60 years confinement for the aggravated

robbery and 20 years confinement for the aggravated assault, both to be served in

the Institutional Division of the Texas Department of Criminal Justice. (CR I 173,

176; CR II 156, 159). They also assessed a $10,000 fine. (CR II 156; RR VI 58-61).

                           


                                STATEMENT OF FACTS

       In the early hours of May 25, 2011, Zoila Quintanilla was inside her car when

appellant approached her, holding a pistol in his hand. (RR III 22-26). Appellant

opened the door of the Suburban and told her to get out of the car; they struggled

when she did not immediately get out of the car. (RR III 26-28, 103). Appellant

forced Zoila out of the car, and she ran up to her house yelling for her husband or

brother to assist her. (RR III 28-30, 48).




1
  CR I refers to the clerk’s record in cause number 1307885 (aggravated robbery) and CR II refers
to the clerk’s record in cause number 1307886 (aggravated assault).
      Zoila’s brother, Isaias Quintanilla, her husband Pedro German and her son

Sergio Zacarias, all came outside to assist Zoila after hearing her scream. (RR III

49-50, 71-73). When Pedro got to the Suburban, he could not find Zolia, but saw

appellant attempting to drive off in the Suburban. (RR V 73-77). Pedro struggled

with appellant inside the car, and appellant fell to the ground and then ran away.

(RR V 75-77). The three men got into the car and followed appellant, believing

appellant had stolen Zoila’s purse. (RR III 52-54, 77).

      Down the street, they found appellant hiding in some bushes and when

appellant realized he had been found, he approached the car and starting shooting.

(RR III 54-57; RR V 78-79). Isaias was on the passenger side of the car, with the

window rolled down, and tried to push appellant away. (RR III 55-58). But he

was unsuccessful; appellant shot Isaias in the head and fled the scene. (RR III 58-

59, 81; RR V 79-82, 89). Isaias was transported to the hospital, severely injured.

(RR V 90-95).

      HPD Sergeant Harvey spoke to the victims and several witnesses to obtain a

description of appellant and had them meet with a sketch artist. (RR III 165-172;

RR V 90-91). Harvey and other officers canvassed the neighborhood near the

scene of the crime to show the sketch; he received an anonymous tip regarding

appellant’s identity and his vehicle. (RR III 173-175, 200; RR V 9-10). Appellant’s

photograph was obtained and shown to the parties in this case. (RR III 176-199).



                                         2
      Both Zoila and Pedro positively identified appellant in a photo array; they

were certain he was the assailant. (RR III 187-193, 196-199; RR V 83). Sergio made

a tentative identification of appellant, indicating appellant’s photograph was the

closest to the man he saw shoot his uncle. (RR III 193-195). Two days after the

shooting, Sergeant Harvey went to appellant’s apartment, five blocks from the

crime scene. (RR III 199-200). He obtained consent to search the apartment and

found a Glock gun case with appellant’s fingerprint on it. (RR III 204-206; RR V

42-45, 52-53, 62-63; State’s Exhibit Number 120).

                       


                       SUMMARY OF THE ARGUMENT

      Appellant’s three issues on appeal focus on the punishment phase of trial

and the motion for new trial. The State has responded to appellant’s issues out of

order, but in a fashion that is chronological with the proceedings.

      Appellant has not shown that he received ineffective assistance of counsel,

either at the trial or punishment phase of trial. He failed to preserve the issue of

whether the trial court’s response to a jury note was improper. Nonetheless, he

has not shown the judge abused its discretion.

                       




                                         3
                    REPLY TO APPELLANT’S THIRD ISSUE

      In his third issue on appeal, appellant claims he received ineffective

assistance because his trial counsel failed to cross-examine the State’s witnesses

during the punishment phase of trial.

      The adequacy of an attorney’s performance is reviewed under the standard

articulated in Strickland. See Strickland v. Washington, 466 U.S. 668, 686 (1984);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In order to prevail on a

claim of ineffective assistance of counsel, a defendant must show: 1) defense

counsel’s performance was deficient; and 2) the deficient performance prejudiced

the defense to such a degree that the defendant was deprived of a fair trial. Id.

      The first prong of the Strickland standard requires the defendant to show

that counsel’s performance fell below an objective standard of reasonableness.

Thompson, 9 S.W.3d at 812. With regard to the second prong, the defendant must

show a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. Id. Failure to make the

required showing of either deficient performance or sufficient prejudice defeats

the ineffectiveness claim. Id. at 813.

      In reviewing counsel’s performance, this Court looks at the totality of the

representation to determine the effectiveness of counsel, indulging a strong

presumption that the attorney’s performance falls within the wide range of

                                          4
reasonable professional assistance or trial strategy. Thompson, 9 S.W.3d at 813. A

claim of ineffective assistance must be firmly supported in the record. Id.

      The State presented three witnesses during the punishment phase: Zoila

Quintanilla, Sergio Zacarias and the wife of Isaias Quintanilla, Daisy Escobar. (RR

VI 7-27). Zoila explained how the robbery affected her; she testified she continues

to have nightmares and is in fear of being robbed again. (RR VI 8-13). Daisy

testified about the hardships Isaias has endured. (RR VI 21-27). She testified his

mental and physical life has diminished: he can no longer walk or speak and

remains in pain from the shooting. (RR VI 10-11, 17, 21-27). Sergio testified about

his mother and uncle’s difficulties since the incident and how the family dynamics

have changed. (RR VI 15-17). Appellant’s trial counsel did not cross-examine

these witnesses. (RR VI 13, 20, 27).

      The decision of whether to cross-examine a witness is a matter of trial

strategy. Valdes-Fuerte v. State, 892 S.W.2d 103, 111 (Tex. App.—San Antonio 1994,

no pet.). Cross-examination is inherently risky, and a decision not to cross-

examine a witness is often the result of wisdom acquired by experience in the

combat of trial. Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). It

is frequently a sound trial strategy not to attack a sympathetic witness without

very strong impeachment. Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.—




                                          5
Houston [14th Dist.]1996, pet. ref’d). Ineffective cross-examination could bolster

the credibility of the witness and, therefore, backfire on counsel. Id.

      The record in this case does not indicate why appellant’s trial counsel did

not cross-examine these witnesses. Although appellant points to an area of

possible cross-examination, suggesting trial counsel should have inquired about

medical records to support the family’s claims, he ignores the fact that questioning

very sympathetic witnesses holds a large amount of risk. Appellant has not

overcome the strong presumption of counsel’s competence and strategy. Thompson,

9 S.W.3d at 813.

      Further, appellant has failed to demonstrate prejudice resulting from the

lack of cross-examination. He has not shown what evidence would have come

before the jury as a result of such inquiries, whether that evidence would have

affected the credibility of those witnesses, or that the punishment result would

have been different. Thompson, 9 S.W.3d at 812; Pryor v. State, 719 S.W.2d 628, 634

(Tex. App.—Dallas 1986, pet. ref’d) (recognizing the common practice among

competent defense lawyers not to cross-examine victims, due to fear of jury’s

reaction).

      Appellant’s third issue should be overruled.

                        




                                          6
                  REPLY TO APPELLANT’S SECOND ISSUE

      In his second issue on appeal, appellant claims the trial court erred by

responding to a jury note during the punishment phase that constituted a

comment on the weight of the evidence in violation of Article 38.05.

      During punishment deliberations, the jury sent out two notes. (RR VI 52-

53). The second jury note asked the trial judge to explain concurrent sentencing.

(RR VI 53; CR I 161). The judge spoke to the prosecutor and defense counsel

about formulating a response. (RR VI 54-56). He explained to them that he

would provide the applicable law from Section 3.03 of the Texas Penal Code. TEX.

PENAL CODE ANN. §3.03(a) (West 2013) (when the accused is found guilty of more

than one offense arising out of the same criminal episode prosecuted in a single

criminal action, a sentence for each offense for which he has been found guilty

shall be pronounced; the sentences shall run concurrently). The judge asked for

input from the prosecutor and defense attorney, whether they had any objections

or suggestions. (RR VI 54-57). Neither did and the trial court’s response was

presented to the jury. (RR VI 57; CR I 161).

      Appellant claims the trial court’s response violated Article 38.05: In ruling

upon the admissibility of evidence, the judge shall not discuss or comment upon

the weight of the same or its bearing in the case, but shall simply decide whether

or not it is admissible; nor shall he, at any stage of the proceeding previous to the



                                         7
return of the verdict, make any remark calculated to convey to the jury his opinion

of the case. TEX. CODE CRIM. PROC. ANN. art. 38.05 (West 2013).

      The issue is not properly before this Court. First, this issue is inadequately

briefed. Appellant acknowledges the trial court’s response on the law regarding

concurrent sentencing was legally correct, but seems to argue, without any

authority or analysis, the response suggested to the jury that they should give a

higher sentence. (Appellant’s brief 13-14). This assertion is not supported by the

law or record. See Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex. App.—Dallas

2007, pet. denied) (issue inadequately briefed when party gave general cite to case

stating elements of cause of action but provided no argument or analysis); San Saba

Energy, L.P. v. Crawford, 171 S.W.3d 323, 337–38 (Tex. App.—Houston [14th Dist.]

2005, no pet.) (holding issue inadequately briefed when parties failed to make any

specific argument or engage in any analysis showing how the record and the law

supports their contentions).

      Second, defense counsel twice stated he had no objection to the trial court’s

response; thus, his complaint is not preserved for this Court’s review. (RR VI 54-

56). See TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App.

2013) (ordinarily, a complaint regarding an improper judicial comment must be

preserved at trial); Lyle v. State, 418 S.W.3d 901, 904 (Tex. App.—Houston [14th

Dist.] 2013, no pet.) (defendant failed to preserve for appellate review his claim


                                         8
that trial court improperly communicated its opinion concerning weight of the

evidence); Resendez v. State, 160 S.W.3d 181, 189-190 (Tex. App.—Corpus Christi

2005, no pet.) (same).

       Appellant’s second issue should be overruled.2

                          


                      REPLY TO APPELLANT’S FIRST ISSUE

       In his first issue on appeal, appellant claims the trial court erred by denying

his motion for new trial based upon his trial counsel’s failure to call alibi witnesses

at trial.

       This Court reviews the denial of a motion for new trial for an abuse of

discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The evidence

should be reviewed in the light most favorable to the trial court’s ruling. Quinn v.

State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997). Only when no reasonable view

of the record could support the trial court’s ruling should this Court conclude the

trial court abused its discretion by denying the motion for new trial. Holden v. State,

201 S.W.3d 761, 763 (Tex. Crim. App. 2006).



2
  Even assuming appellant properly objected to the trial court’s response, the Court of Criminal
Appeals has held the fact that sentences for two offenses were to run concurrently was
appropriate for jury consideration during punishment phase, in response to a jury note on
concurrent sentencing where the defendant objected to the court’s response. See Gordon v. State,
633 S.W.2d 872, 878-8879 (Tex. Crim. App. 1982).


                                               9
      Appellant filed a motion for new trial alleging ineffective assistance for his

trial counsel’s failure to present testimony from alibi witnesses. (CR I 186-189).

Appellant filed several affidavits in support of his motion; the State responded and

provided an affidavit from appellant’s trial counsel. (CR I 193-195, 197-202). After

a hearing on the affidavits, the trial court denied appellant’s motion. (RR VIII 19;

CR I 190).

      As previously discussed, the adequacy of an attorney’s performance is

reviewed under the standard articulated in Strickland; to prevail on a claim, a

defendant must show his counsel’s performance was deficient to such a degree

that the defendant was deprived of a fair trial. See Strickland, 466 U.S. at 686.

      Appellant asserts his trial counsel’s failure to present alibi witnesses at trial

was deficient performance. In support of his motion for new trial, he presented

four affidavits from the following people: Lisa Jones (appellant’s mother), Porshea

Polk (girlfriend of appellant’s brother), LeSadia Harden (appellant’s girlfriend)

and Carlesha Rossi (appellant’s sister). (CR I 203-207). Appellant contends all

four of these affidavits support his alibi claim, but that is not true. The affidavit of

Lisa Jones pertains to an identify issue and the affidavit of Porshea Polk pertains to

the search of the apartment. (CR I 203-204, 205). Neither of these issues is

contested on appeal.




                                           10
      Both LeSadie Harden and Carlesha Rosso stated in their affidavits that they

were physically with appellant at the time of the robbery and assault, so he could

not have committed the offenses. (CR I 206, 207). The details in these affidavits

are sparse. The women simply relayed they were with appellant the night before

and morning of the robbery, but there is no reference to a specific date, time or

place. (CR I 206, 207).

      Appellant’s trial counsel presented an affidavit and explained he was aware

of the testimony that LeSadie Harden and Carlesha Rosso could offer. (CR I 197-

198). He stated his decision not to call them as witnesses was strategic. First,

their recollection of the event in question was inconsistent. (CR I 197-198).

Second, after polling the jury from the first trial, he learned they did not find the

alibi evidence credible, and considered it a weak link in his case. (CR I 197). This

decision falls within the wide range of reasonable professional assistance and trial

strategy. See Thompson, 9 S.W.3d at 813; Marinos v. State, 186 S.W.3d. 167, 181 (Tex.

App.—Austin 2006, pet. ref’d) (recognizing valid trial strategy of not calling

defendant’s family members as witnesses where there was concern for a backlash

from the jury). And the fact that appellate counsel may have pursued a different

strategy does not necessarily indicate ineffective assistance by appellant’s trial

counsel. See Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983).




                                         11
      Viewing the evidence in the light most favorable to the ruling, the trial

court’s finding that appellant’s trial counsel was not deficient was not an abuse of

discretion. See Alexander v. State, 282 S.W.3d 701, 709 (Tex. App.—Houston [14th

Dist.] 2009, pet. ref’d). The motion for new trial was properly denied.

      Appellant’s first issue should be overruled.

                       


                                  CONCLUSION

      It is respectfully submitted that all things are regular and that the

convictions should be affirmed.

                                                     DEVON ANDERSON
                                                     District Attorney
                                                     Harris County, Texas



                                                     /s/   Jessica Akins
                                                     JESSICA AKINS
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     akins_jessica@dao.hctx.net
                                                     State Bar Number: 24029415




                                         12
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent to

appellant’s attorney at the following email address on May 13, 2015:

      Thomas A. Martin
      Attorney at Law
      1018 Preston, Suite 500
      Houston, Texas 77002
      tmartin@justice.com

                                                   /s/   Jessica Akins
                                                   JESSICA AKINS
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   akins_jessica@dao.hctx.net
                                                   State Bar Number: 24029415



                      CERTIFICATE OF COMPLIANCE

      This is to certify that this computer-generated document has a word count
of 3282 words, based upon the representation provided by the word processing
program that was used to create the document.



                                                   /s/   Jessica Akins
                                                   JESSICA AKINS
                                                   Assistant District Attorney
                                                   Harris County, Texas


                                        13
