IN THE

TENTH COURT OF APPEALS

No. 10-06-00108-CR

alfonso E. caballero,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the County Court at Law No. 2

Bexar County, Texas

Trial Court No. 872208

A jury convicted Alfonso Caballero of Class B misdemeanor theft ($50 to $500) for shoplifting a Global Positioning System (GPS) device and its car adaptor at a Target store.  The trial court sentenced Caballero to a six-month jail term that was probated for nine months.  Raising two issues, Caballero appeals.  We will affirm.

Background

Two Target security employees testified that on the afternoon of December 24, 2003, they saw Caballero take the GPS off the shelf and, as he went through the store, remove it from its hard plastic package, hide package parts behind or under other store products, and place the device in his clothing.  One of the employees followed Caballero and saw the GPS in his shopping cart before he opened it and concealed it.  Parts of Caballero’s conduct were captured on video of low quality.  As he left the store after buying a few items, Caballero was confronted by the employees, and he voluntarily went with them to their office, where he removed the device from his jacket.  The employees said that Caballero told them that he owned the merchandise and had a receipt at home.  The police were called, and an officer arrested and searched Caballero, finding a car adaptor for the GPS and a pocketknife.  The officer testified that the knife could have been used to cut the products out of their hard plastic packaging.  The officer refused Caballero’s request to go home and get his receipt, and one of the Target employees refused Caballero’s request that he be allowed to pay for the items.

Two plastic packages for the products were found where the employees saw Caballero dispose of them.  The GPS was packaged with a paper manual, but it was not with either empty package.  When the officer closely searched Caballero at the jail, he found the manual concealed in a large back brace worn by Caballero and returned the manual to the Target store.  After being released from jail, Caballero never provided Target or the police with the alleged receipt for the device found on him.

Ineffective Assistance

In his first issue, Caballero alleges ineffective assistance of counsel.  To prevail, a defendant must first show that his counsel’s performance was deficient.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  It must also be shown that the deficient performance prejudiced the defendant.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.       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.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  Under normal 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 presumption that counsel’s conduct was reasonable and professional.[1]  See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Mitchell, 68 S.W.3d at 642.

            In the absence of evidence of trial counsel’s reason for the challenged conduct, we assume a strategic reason for trial counsel’s conduct, if one can be imagined.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“an appellate court ‘commonly will assume a strategic motivation if any can possibly be imagined,’ and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it”) (quoting 3 W. Lafave, et al., Criminal Procedure § 11.10(c) (2d ed. 1999) and citing Thompson, 9 S.W.3d at 814).  But, if nothing in the record reveals trial counsel’s reason, it is improper for us to speculate on it.  See Thompson, 9 S.W.3d at 814.

            Caballero’s principal complaint is that his trial attorney failed to adequately confer with him and investigate the facts.  The basis of this complaint is the attorney’s introduction of four documents during Caballero’s testimony and the State’s subsequent attempted impeachment of Caballero over those documents, which allegedly contradicted each other.  At trial, the defense theory, consistent with Caballero’s story when he was apprehended, was that he had previously purchased the GPS online from a Canadian company and had a receipt for it.  Defense Exhibit 1 is a DHL airbill from Endeavor Marketing in Canada to Caballero and dated November 27, 2003.  Defense Exhibit 2 is an invoice for a GPS device like the one found on Caballero at Target in the amount of “140 usd” ($140.00 U.S. dollars).  The invoice is from Endeavor Marketing to Caballero, is dated November 25, 2003 with a shipping date of November 27, and identifies DHL as the carrier.

Defense Exhibit 3 is another invoice to Caballero for a GPS device like the one found on Caballero at Target in the amount of $164.00, with a shipping charge of $14.95.  Caballero said that the discrepancy between the $164.00 and $140.00 prices was the Canadian dollar price versus the U.S. dollar price.  Defense Exhibit 3 has no date or seller identity, but it has a bar code or invoice number of 613155.  The last line of Exhibit 3 reads:  “For product return requests and policies, please visit www.compuplus.com/rma.php3.”  Caballero said that because Endeavor Marketing was in Canada, it could not directly ship electronic devices to U.S. consumers and had to ship it to Comp-U-Plus, an internet electronics seller in New York, which in turn sent it to Caballero.  Defense Exhibit 4 is a typed “Compuplus” invoice with invoice number 613155.  It has almost all of the same data as Exhibit 3, but it has a date of December 14, 2004 and a time of 7:01 PM.

In the guilt-innocence phase, the State vigorously cross-examined Caballero over the purported discrepancies between Defense Exhibits 2 and 3, but it did not completely impeach his version of the two invoices (the Endeavor Marketing invoice and the Comp-U-Plus invoice) being for the GPS device he had previously purchased.  After the jury found Caballero guilty, but before the punishment phase began, a District Attorney investigator contacted Comp-U-Plus and had it fax a copy of invoice 613155.  The State presented it as State’s Exhibit 4.  It is very similar to Defense Exhibit 3; it has the identical sales and invoice data for the GPS and the identical personal data for Caballero, but is also has the Comp-U-Plus store logo, contact information, and date and time—“12/25/2003  7:01 PM”—the day after Caballero’s arrest.[2]  There are a few minor dissimilarities that could be, but are not necessarily, the result of alteration.

Before punishment-phase testimony began, the State suggested that State’s Exhibit 4 showed that Caballero had altered Defense Exhibit 3 and committed perjury about the defense exhibits.  Caballero then testified that, while the two documents were similar, they were still different documents.  He denied altering Defense Exhibit 3. Caballero’s wife then testified that, without her husband’s knowledge, she had purchased the GPS from Comp-U-Plus on December 25 in his name and with his credit card, placed the Comp-U-Plus invoice in the same folder with the Endeavor Marketing invoice, and never told him about it, which is why he thought all of the documents went together.

The gist of Caballero’s ineffective-assistance claim is that his trial attorney did not adequately investigate and discover the alleged discrepancies between the Endeavor Marketing and Comp-U-Plus invoices, and he then put them in evidence where Caballero could be cross-examined on them.  But we have a silent record on the attorney’s investigation, if any, of the exhibits and why he offered them into evidence.  As the above recitation of the testimony reflects, Caballero’s and his wife explanations were not patently truthful, but they also were not patently untruthful.  Nor can we tell that Defense Exhibit 3 is a blatant alteration of State’s Exhibit 4.

Caballero also contends that his attorney was ineffective for failing to object to comments made by the trial judge, for failing to object to the form of the prosecutor’s question on cross-examination of Caballero, for failing to object during closing argument, and for failing to obtain a ruling on objections that he did make during closing argument.  The reporter’s record shows that Caballero’s attorney vigorously represented him, making numerous objections during the State’s cross-examination in both phases.  Again, however, we have a silent record on why the attorney did not object on the complained-of occasions and on the attorney’s trial strategy.  Because the appellate record in this case does not evidence the reasons for trial counsel’s conduct, and because all of the alleged deficiencies could have been the subject of trial strategy, we overrule Caballero’s first issue.  See Jones v. State, 170 S.W.3d 772, 776 (Tex. App.—Waco 2005, pet. ref’d).

Fundamental Error

Issue two asserts that the trial court committed fundamental error when the trial judge stated, “I want this case to go away” in the following colloquy after the prosecutor had just made a lengthy objection to the admissibility of Defense Exhibits 1 through 4 near the beginning of the direct examination of Caballero:

THE COURT:  The objection’s overruled.  It goes to the weight, not the admissibility.  The jury can then decide for themselves how much weight to give it.  Okay?

[DEFENSE]:  At this time, Judge - -

THE COURT:  Hold on.  Whoa.  Just so the record’s clear, Defense Exhibit No. 1’s admitted.  Number 2’s admitted.  Number 3’s admitted and Number 4’s admitted.  And just a housekeeping matter, are you going to be doing anything more with that chart?

[DEFENSE]:  Yes, Judge.

THE COURT:  You will be doing more with - -

[DEFENSE]:  Yes.

THE COURT:  Then you’ll need to offer it - -

[DEFENSE]:  I will do that later.  Certainly.  Thank you very much for that.

THE COURT:  If you want to publish that to the jury, fine.  But as long as you keep asking questions.

[DEFENSE]:  I understand

THE COURT:  I want this case to go away.

[DEFENSE]:  I understand.

[STATE]:  Can we get a copy of that, Judge?

[DEFENSE]:  Certainly.

[STATE]:  Do you have an extra one?

[DEFENSE]:  And for the Court’s - -

THE COURT:  I don’t need to see it.

[DEFENSE]:  Okay.  Fair enough.

THE COURT:  The jury needs to see it later, not me.

[DEFENSE]:  I understand.  Thank you.

            Caballero claims that the trial judge’s comment demonstrated partiality and denied him a fair and impartial trial because it showed to the jury that the trial judge did not care to hear Caballero’s testimony.  See Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979) (“the judge shall not . . . at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case”).  Caballero argues that no objection was required because the comment is fundamental error.  See Blue v. State, 41 S.W.3d 129, 131-33 (Tex. Crim. App. 2000).

            The trial judge’s comment was not fundamental error.  See Rabago v. State, 75 S.W.3d 561, 563 (Tex. App.—San Antonio 2002, pet. ref’d).  In its context, the comment is plainly a desire for the case to move along after an unnecessarily long colloquy over the admission of exhibits, and such a comment is not fundamental error.  See Murchison v. State, 93 S.W.3d 239, 261-62 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (“Let’s move along” not fundamental error because trial court “has broad discretion to expedite and maintain control over the trial”); see also Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001) (“a trial judge’s irritation at the defense attorney does not translate to an indication as to the judge’s views about the defendant's guilt or innocence”).  Issue two is overruled.

Having overruled Caballero’s issues, we affirm the trial court’s judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment without a separate opinion.)

Affirmed

Opinion delivered and filed August 29, 2007

Do not publish

[CR25]