                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-12-00004-CR

                                   Nelson Adjimiro COLLAZO,
                                            Appellant

                                                v.
                                           The STATE of
                                        The STATE of Texas,
                                              Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008CR0917
                            Honorable Mary D. Roman, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Karen Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: June 26, 2013

AFFIRMED

           Nelson Adjimiro Collazo was convicted by a jury of aggravated assault with a deadly

weapon. On appeal, Collazo contends: (1) trial counsel’s failure to request a jury instruction on

self-defense constituted ineffective assistance of counsel; (2) the evidence is legally insufficient to

support the conviction; (3) trial counsel was erroneously prevented from cross-examining a

witness regarding his immigration status; (4) the trial court abused its discretion in denying a

mistrial after a witness testified in violation of Rule 614; and (5) the trial court erroneously allowed
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the State to elicit expert testimony from an unqualified witness. We overrule Collazo’s contentions

and affirm the trial court’s judgment.

                                         BACKGROUND

       The testimony at trial raised two versions of the events that left the complainant, Raquel

Reyes, seriously injured with multiple stab wounds. Reyes and Luis Cuadra testified that they

returned to Reyes’s home after a night of dancing to encounter Collazo by a car that was parked

nearby. Reyes testified that she had ended a long-term relationship with Collazo several months

prior to that night. Reyes and Cuadra testified that Reyes and Collazo exchanged words before

Reyes and Cuadra drove away. When they again returned to Reyes’s home, Collazo’s car was still

parked nearby. Cuadra remained in the car while Reyes went inside her home. Reyes testified

that Collazo accessed her home with a key that she had given him during their relationship, and

she found Collazo in her bedroom. After telling Collazo to leave her home, Reyes exited the

bedroom and called the police for assistance. Reyes heard Collazo rummaging in the kitchen. As

Reyes was exiting the front door, Collazo grabbed her hair from behind and began stabbing her.

Reyes fell on the ground in her yard with Collazo over her. When Reyes called Cuadra for

assistance, Cuadra knocked Collazo off Reyes and broke the knife Collazo was using to stab Reyes.

       Collazo testified that he and Reyes were supposed to go on a date that night, but Reyes

never arrived to pick him up. Collazo arrived at Reyes’s home just as she was arriving home with

Cuadra. Reyes began yelling at Collazo while Collazo remained calm. Reyes eventually told

Collazo that she would take Cuadra home and would further speak with him when she returned.

Collazo went inside Reyes’s home to wait. When Reyes returned, Cuadra was still with her. After

a heated exchange, Collazo was exiting the door to leave in response to Reyes’s request when

Cuadra began pushing him from behind. Collazo then saw that Cuadra had two knives, so he

began to struggle with Cuadra. When Reyes tried to intervene in the struggle, she was stabbed.
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Collazo also testified that Reyes had borrowed money from him that she never repaid, and he

mentioned the money during their second exchange. Furthermore, a recording of a subsequent

phone call Reyes made to Collazo was introduced into evidence. In the phone call, Reyes accused

Collazo of seeing another woman.

         When the police officers and ambulance arrived at Reyes’s home, Collazo had left, but

Cuadra remained at the scene and provided a witness statement. One knife was recovered at the

scene, which was a knife taken from Reyes’s kitchen. The blade of the knife was broken off from

the knife’s handle. A cup was also recovered at the scene. Reyes testified that she had asked

Cuadra to get her water because she felt faint, and Cuadra testified that he used the cup to get the

water.

         Based on the evidence presented, the jury convicted Collazo of aggravated assault.

                              INEFFECTIVE ASSISTANCE OF COUNSEL

         In order to establish that trial counsel rendered ineffective assistance, Collazo is required

to “establish two components by a preponderance of the evidence: deficient performance of trial

counsel and harm resulting from that deficiency that is sufficient to undermine the confidence in

the outcome of the trial.” Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish deficient performance, Collazo

is required to prove that his attorney’s performance “‘fell below an objective standard of

reasonableness’ under prevailing professional norms and according to the necessity of the case.”

Id. (quoting Strickland, 466 U.S. at 687–88).          To establish harm, Collazo is required to

“demonstrate that he was prejudiced by his attorney’s performance or that ‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.’” Id. at 158 (quoting Strickland, 466 U.S. at 694).



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        “An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). “There is a strong presumption that counsel’s conduct

fell within the wide range of reasonable professional assistance.” Id. Therefore, Collazo “‘must

overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466

U.S. at 689).

        “A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of

counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “In the majority of instances, the record

on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.”

Id. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before

being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).

In the absence of a developed record, we will not “speculate as to the reasons why trial counsel

acted as he did, rather [we] must presume the actions were taken as part of a strategic plan for

representing the client.” Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San Antonio 2010,

pet. ref’d).

        Collazo contends trial counsel was ineffective in failing to request a jury instruction on

self-defense. Based on Collazo’s testimony at trial, however, trial counsel could have elected not

to make such a request because the instruction did not exactly fit the facts trial counsel wanted the

jury to believe. Trial counsel may have wanted the jury to acquit Collazo on the basis that Reyes

was accidently stabbed by either himself or Cuadra during their struggle. Trial counsel may have

believed that instructing the jury about a justification for Collazo stabbing Reyes would detract

from that story. Alternatively, trial counsel may have decided not to request the instruction

because Collazo adamantly denied that he stabbed Reyes during cross-examination, and trial
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counsel may have believed that requesting the instruction could damage Collazo’s credibility. See

Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998); see also Juarez v. State, 308 S.W.3d

398, 401 (Tex. Crim. App. 2010) (noting “defendant must admit to all elements of a charged

offense before the defendant will be entitled to a defensive instruction”). The record in this appeal

simply is not sufficiently developed for us to determine trial counsel’s reasons for not requesting

the jury instruction. See Thompson, 9 S.W.3d at 814. Accordingly, Collazo’s first issue is

overruled; however, Collazo still “can resubmit his claim via an application for writ of habeas

corpus.” Id.

                                  SUFFICIENCY OF THE EVIDENCE

       In reviewing the sufficiency of the evidence to support a criminal conviction, “we view all

of the evidence in the light most favorable to the verdict to determine whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Adames v.

State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011), cert. denied, 132 S.Ct. 1763 (2012). “This

standard recognizes the trier of fact’s role as the sole judge of the weight and credibility of the

evidence . . . .” Id. This court does not sit as a thirteenth juror and may not substitute its judgment

for that of the fact finder by re-evaluating the weight and credibility of the evidence. Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

       In arguing his sufficiency complaint, Collazo sets forth reasons why the testimony of Reyes

and Cuadra should be rejected in favor of his testimony. Such an argument ignores the applicable

standard of review. The jury was free to believe Reyes’s and Cuadra’s testimony and to reject

Collazo’s testimony. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).

Moreover, with regard to the alleged inconsistencies between Reyes’s and Cuadra’s testimony, the

jury also was free to accept portions of the testimony of either witness and to reject other portions.

See id. Accordingly, Collazo’s sufficiency complaint is overruled.
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                                       CROSS-EXAMINATION

        In his third issue, Collazo contends the trial court erred in refusing to permit him to question

Cuadra about his immigration status. Collazo asserts that the possibility of deportation was a

motive for Cuadra to falsify his testimony in order to avoid any criminal liability for the events

that transpired. Collazo further asserts he was harmed by the trial court’s refusal to allow Cuadra

to be cross-examined on this issue because the jury was unable to properly judge Cuadra’s

credibility and the weight to be given to his testimony.

        A prosecution witness’s possible motive for testifying against a defendant “is never a

collateral or irrelevant inquiry, and the defendant is entitled, subject to reasonable restrictions, to

show any relevant fact that might tend to establish . . . motive . . . on the part of any witness

testifying against him.” Billodeau v. State, 277 S.W.3d 34, 42–43 (Tex. Crim. App. 2009).

“Nonetheless, the trial judge retains wide latitude to impose reasonable limits on such cross-

examination ‘based on concerns about, among other things, harassment, prejudice, confusion of

the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’” Irby

v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010) (quoting Delaware v. Van Arsdall, 475 U.S.

673, 679 (1986)). In order to cross-examine a witness about a “vulnerable relationship” with the

State, “[t]here must be some logical connection between that ‘vulnerable relationship’ and the

witness’s potential motive for testifying as he does.” Id. at 148. In this case, Collazo argues there

is a logical connection between Cuadra’s immigration status and his motive for testifying in such

a manner as to place criminal responsibility for Reyes’s stabbing on Collazo, as opposed to taking

any responsibility for the struggle which could put him at risk for deportation proceedings.

        For purposes of this opinion, we decline to address whether the trial court erred in limiting

the cross-examination in this manner because we hold that any such error would be harmless

beyond a reasonable doubt. In reviewing the record for harm in this circumstance, we first assume
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the damaging potential of the cross-examination was fully realized, and then determine whether

the error was harmless beyond a reasonable doubt in light of the following factors: “(1) [t]he

importance of the witness’s testimony in the prosecution’s case; (2) [w]hether the testimony was

cumulative; (3) [t]he presence or absence of corroborating or contradicting testimony of the

witness on material points; (4) [t]he extent of cross examination otherwise permitted; and (5) [t]he

overall strength of the prosecution’s case.” Shelby v. State, 819 S.W.2d 544, 546–47 (Tex. Crim.

App. 1991) (citing Delaware v. Van Arsdall, 475 U.S. 673 (1986)); Montgomery v. State, 383

S.W.3d 728, 729 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

       In accordance with this standard, we will assume that Cuadra’s immigration status would

provide the jury with a basis upon which to question Cuadra’s credibility. Although Cuadra’s

testimony confirmed Reyes’s version of the events, his testimony was duplicative of her testimony.

Moreover, recordings of the 911 calls Reyes made corroborated her version of the events as did

the testimony of one of the neighbors who saw one male attacking a female and another male

knocking the first male off the female. In addition, the physical evidence gathered at the scene

corroborated Cuadra’s testimony that he broke the knife used in the stabbing and gave Reyes a cup

of water. Trial counsel was able to extensively cross-examine Cuadra regarding the details of his

testimony and to focus the jury’s attention on possible inconsistencies. Given Reyes’s testimony,

the 911 calls, and the nature of Reyes’s injuries, the prosecution’s case was strong even absent

Cuadra’s testimony. Accordingly, we hold that any error in not allowing trial counsel to cross-

examine Cuadra was harmless beyond a reasonable doubt.

                                            RULE 614

       In his fourth issue, Collazo contends the trial court abused its discretion in denying his

motion for a mistrial based on a violation of Rule 614. Collazo argues that the prosecutor spoke



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to one of the custodians of Reyes’s hospital records in the presence of the second custodian of

Reyes’s hospital records.

       Rule 614 provides for the exclusion of witnesses from the courtroom during trial. TEX. R.

EVID. 614. The rule’s purpose is to prevent one witness’s testimony from influencing the

testimony of another witness. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005); State

v. Saylor, 319 S.W.3d 704, 709–10 (Tex. App.—Dallas 2009, pet. ref’d). The rule is violated

“‘when a nonexempt prospective witness remains in the courtroom during the testimony of another

witness, or when a nonexempt prospective witness learns about another’s trial testimony through

discussions with persons other than the attorneys in the case.’” Saylor, 319 S.W.3d at 710 (quoting

Drilex Sys., Inc. v. Flores, 1 S.W.3d 112, 117 (Tex. 1999)). Even if a witness violates the rule,

however, the trial court has discretion to allow the witness to testify. Id. The trial court’s decision

to allow the testimony is reviewed on appeal under an abuse of discretion standard. Id.

       Reyes was in the hospital for one week receiving treatment for her injuries. Karen

Rochester testified as the custodian of records for University Health Systems, and a portion of

Reyes’s medical records were introduced into evidence based on her testimony. Leticia Borrego

testified as the custodian of records for University Hospital, and Reyes’s radiology records were

introduced into evidence based on her testimony. On cross-examination, Borrego admitted that

she had spoken with the prosecutor in the hallway and other people were sitting in front of her

during the conversation. Borrego stated that she did not know if those people were witnesses.

Borrego also admitted that the prosecutor spoke to another person in front of Borrego. At the

conclusion of the testimony, outside the presence of the jury, Collazo moved for a mistrial.

       The prosecutor who spoke to Rochester and Borrego stated that he did not discuss the

substance of their testimony with them in the hallway. Instead, he simply explained the procedure

to expect when they were on the witness stand in terms of their being asked a series of questions.
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The trial court denied the motion for mistrial, noting, “These two witnesses are custodians of

records and they really don’t have much to contribute except for the records that they are bringing,

so it’s not as if they can manufacture or they can be persuaded or they can change their testimony.”

       Even if we accept that the conversation between the prosecutor and the two witnesses was

a technical violation of Rule 614, the trial court did not abuse its discretion in denying the motion

for mistrial. See id. Given the nature of the testimony elicited from Rochester and Borrego, the

prosecutor speaking to the witnesses in front of each other could not have influenced their

testimony. Collazo’s fourth issue is overruled.

                                           EXPERT TESTIMONY

       In his final issue, Collazo argues that the trial court erred in allowing a trauma surgeon to

testify regarding the depth of Reyes’s stab wounds.

       In determining whether a trial court abused its discretion in evaluating a witness’s

qualifications as an expert, we consider three criteria: (1) whether the field of expertise is complex;

(2) whether the expert’s opinion is conclusive; and (3) whether the area of expertise is central to

the resolution of the lawsuit. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). The

focus in determining an expert’s qualifications is on the “fit” between the expert’s background and

the subject matter at issue. Id. at 133.

       Dr. Ronald Stewart, the trauma surgeon who initially treated Reyes’s injuries at the

hospital, generally described her injuries and the treatment she was provided, including treatment

for a collapsed lung and internal bleeding. After this testimony, the following exchange occurred

as Dr. Stewart was testifying from the CAT scans contained in Reyes’s medical records:

               Q.     And is there a way for us to estimate how deep the knife, the stabber
       had to go in order for her to suffer the pneumothorax of the left lung?
               A.     Well, we can give ballpark estimates. And, let’s be clear, I’m not a
       forensic pathologist.
               Q.     Fair enough.
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                A.     But you see this track goes here. Now we don’t — these images
       were basically designed for us to look on the inside, so the technician didn’t carry
       it all the way out to the chest, but you can measure with a ruler — ruler, at least I
       think I can. Let’s see if I can make this work.
                So, you can actually measure with the ruler. We kind of run off the margin
       here, but that’s at about 7 — that is 6.7, 6.8 centimeters. So it’s hard to measure on
       this image, but there it would be at least 7 centimeters. We could look over here
       and you could say — so here we are looking at least 7 centimeters.
                The reason I say you can’t really measure, it is like the — if you are looking
       at me and my fatty tissue is mushy, so if you pushed really hard, you could — you
       could — if I had a — say someone stabbed me with a 5 centimeter knife and you
       —
                [DEFENSE COUNSEL]: Your Honor, I am going to object to this answer.
       He’s already said that he’s not a forensic pathologist. He seems to be going into an
       area that is outside of his area of expertise.
                THE COURT: That’s overruled. You may proceed.
                THE WITNESS: So, anyway, if you push hard enough, you can squish the
       fatty tissues out of the way. So it is just an estimate. But what we can — I’ll just
       say — I’ll just be clear, I think what you are saying is the distance between your
       subcutaneous tissue and fatty and chest is about 7 or 8 centimeters there. So it is
       about (indicating) 7 or 8 centimeters long.
                Q.     So, suffice it to say, it had to go through the skin and through the
       ribcage in order to cause the pneumothorax?
                A.     That’s correct.

Based on this testimony, the record establishes that Dr. Stewart was measuring the depth of

Reyes’s wound from the CAT scan images or x-rays. Although Dr. Stewart acknowledged that

forensic pathologists have specialized training in investigating the manner in which an injury

occurred, for instance the trajectory of the stabbing motion, measuring the depth of a wound from

an image or x-ray does not appear to be overly complex, and Dr. Stewart explained the possible

discrepancies in his manner of measurement. Moreover, the depth of the stab wounds certainly

was not central to the resolution of the case. Dr. Stewart had been a trauma surgeon for eighteen

years, and he testified that his training is “to determine what’s injured and fix that.” Because the

record demonstrates an appropriate “fit” between Dr. Stewart’s background and his testimony

regarding the depth of the stab wounds, the trial court did not abuse its discretion in overruling

Collazo’s objection to the testimony.


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                                       CONCLUSION

     The trial court’s judgment is affirmed.

                                                        Patricia O. Alvarez, Justice

DO NOT PUBLISH




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