### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00761- CR

Jose Rigobert o Matute , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 390 TH JUDICI AL DISTRICT NO. D-1 -DC- 12- 2053 10, H ONO RAB LE JULIE H . K OCUREK , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appella n t J ose Rigobe rto Matute of the offe nse of ag g rava ted robber y and assessed punishment at 40 y ear s’ imprisonment. The district court rende red judgme nt

on the verdic t. I n a single point of err or on appea l, Matute asser ts that trial counsel was ineffe ctive in (1) failing to object to the admission of extraneous-off ense evidenc e and (2) failing to object
to a comment made by the district court during jury selec tion. We will aff irm the j u dg ment of conviction.

BACK GR OUND

The jury hear d evidenc e t h at on the night of September 12, 2012, a convenie nce
store located on East Be n Whit e Boule vard in South Austin was robbed. Michelle Duvall, the cler k working at th e s t o re during the robber y , testified that the robber y was committed by two menwea

ring bandana s that cover ed the lower half of their faces, one of whom was armed w ith a g un. 1
Acc ording to Duvall, the arme d robber came behind the counter , held the g un to her body , and told her to g ive him the money from the cash reg ister, which she did. After th e ro b b er s took the cash and left the store, Duvall rec ounted, she hit a “panic button” behind the counter , notify ing the police of the robbe ry . L ater that same night, office rs with the Sunset Valley Police Depa rtment conducte d

a traff ic stop on a g ree n Toy ota Camry for making what was perc eived to be an improper wide turn. Offic er Ty ler Early of the Sunset Valley Police Depa rtment testified that there wer e four individuals inside the vehicle : the driver, identified as Matute; a f emale pa sseng er in the f

ront seat, identifie d

as Maria Piseno; and two male passeng ers in the back seat, identified as C h ri stian Solis and Fidenc io Gar cia. Early testified that upon making contac t with Matute, he noticed an odor of marihuana

inside the vehicle and proc eede d to searc h it. During the sear ch, Early found a twelvegau ge s h o t gu n in the trunk. Offic er J .C. Hall, the other office r who had conducte d the stop , d escr ibed the g un as having a “short fore g rip” and a long barr el, which Hall char acte rized as a “fa i rl y u n i q u e fea ture of that particula r weapon.” Hall also testified t hat he found clothi ng inside the trunk, including a “white button-up dress shirt” and a “sports-ty pe jersey ” with a number on the back of it. The occupa

nts of the vehicle wer e also sear ched during the stop. Acc ording to Early , the

sear ch of Piseno reve aled that she had a “ver y thick wad of cash and lots of bills” on her person. But then being unawa

re of the robber

y , the office rs issued Matute a traf fi c ci t at ion and rele ased him and his companions.
Although Duvall did not descr ibe the g un during her t es t i m o n y , a secur ity came ra in 1 the store rec orded the robber y , and still photos from the rec ording wer e admitted into evidenc e. I n sever al of the photos, the g un is visibl e and a ppear s to be a long -bar

rele d shotgun. 2The following month, Offic er Hall came acr oss a “B e On the L ookout” repor t ( also known as a “B OL O”) that contained still photogr aphs of the surveillance footag e from the robber y , including a

n imag e of the arme d robber holding the f

irea rm. Hall testified that the firearm c aug ht his attention beca

use “it’s a very unique shotgun” and “ver y odd.” Acc ording to Hall, “[i] t appea red
to be si milar to the o ne . . . that we had encounte red rece ntly in that traff ic s top.” Hall added that “[t] he other thing that caug ht my at t en t i o n wa s the clothing that was in the back of the vehicle

seeme d to match or coincide with what it s h o we d t h e s uspects were wear ing.” Hall proceede d to

re v i ew the video of the traff ic stop and observe d that “some of the people that we had int er ac t ed [wit h] on the traff

ic stop had simil ar descr iptors and sort of matching fea tures as the people that wer e listed in this BO L O.” Hall then contac ted the Austin Police Depa rtment and rela

y ed this information to the office rs who we re inve stiga ting the r obbery

.

Offic ers subsequently located Matute’s vehicle at a motel in South Austin, conducte d

a stakeout at that location until Matute was seen leaving the motel and g etting into the vehicle, and then followed Matute to a convenie nce store, wher e they arr ested him. Following his arr est, Matute

was interviewe d by police detec tives and provi d ed s t at em ents that tended to implicate him in the robber y . A video rec ording of the interview, which we discuss in more detail below, was admitted into evidenc e. Also admitted into evi d ence were photogra phs of several it ems that wer e found in Matute’s motel room following his arr est, including: a twelve- g aug e shotgun that matched the descr iption of the firea

rm used in the robber

y ; a shotgun shell; a dark blue bandana ; various article s of clothing, including a sports jersey with the same number as the jersey worn by one of the robber s during the robbe ry ; and a photo identifica tion card be longing to Matute.

3After considering this and other evidenc e, the jury found Matute g uilty of

ag g rava ted robber

y and assessed punishment as noted above. The district court rende red judgme nt on the ver dict. This appea l followed.

ANALYSIS

I n his sole point o f er ro r o n appea l, Matute complains of ineffe ctive assistance of trial counsel in the procee dings be low. “I neff ective- assistance -of- counsel c laims are g overne d by the familiar Strickland fra mework: To preva il, the defe ndant must show that counsel’s perf ormanc e

was defic ient and that this defic ient perf ormanc e prej u d i ce d the defe nse.” “An attorney ’s 2 perf ormance i s d eficient if it is not within the rang e of competenc e demande d of attorney s in criminal ca s es as ref

lected by preva iling profe ssional norms, and courts indulge in a strong presumption that counsel’s conduct was not defic ient.” “I f trial counsel has not been aff orded the 3

o p p o rt u n i t y t o ex plain the reasons for his conduct, we wil l not find him to be deficient unl ess t he challeng ed conduct was ‘so outrag eous that no competent attorney would have eng ag ed in it.’” I n 4
other wor ds, in the absenc e of a rec ord explaining the re asons for c ounsel’s dec isions, we will not find counsel’s perf

ormanc e defic ient if any rea sonably sound strateg ic motivation can be imag ined. 5 Strickland establishes a simil arly high bar for establishing prejudice : “A defe ndant suffe rs prejudice if there is a rea sonable proba b i l i ty that, absent the defic ient perf ormanc e, the

Nav a v. State , 415 S.W .3d 289, 307 (Tex. Crim. App. 2013) (citing Strickland 2 v. W ashington , 466 U.S. 668, 687 (1984)). Id . (citing Strickland , 466 U.S. at 689). 3 Id . at 308 (quoting Mene field v. State , 363 S.W .3d 591, 593 (Tex. Crim. App. 2012)). 4 See G arcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001). 5 4outcome [of the proce eding ] would have been differ ent.” “A rea sonable probability is a probability 6
sufficie nt to u ndermine confide nce in the outcome.” “I t will not suffice for Appellant to show 7
‘that the err ors had some conce ivable eff ect on the outcome of the proce eding .’” “Rather , he must 8
show that ‘there is a rea sonable proba bility that, absent the err ors, the fac tfinder would have had a

rea sonable doubt re specting g uilt.’” 9

“I t is a rare case in which the trial rec ord wil l by itself be suff icient to demonstrate

an ineffe ctive-a ssistance claim.” As a result, “cla ims o f i n eff ective assistance of counsel are 1 0
g ener ally not succe ssful on d i re ct ap p ea l and are more appropr iately urg ed in a hear ing on an application for

a wr it of habea s corpus.” 1 1

Extraneous-off

ense evidence
Matute first asser

ts that trial counsel was ineffe ctive in failing to object to the admission of extraneous-off ense evidenc e. I n a video rec ording of Matute’s interview with police detec tives following his a rre st tha t w as play ed for the jur y , the detec tives can be hear d ref err ing to

Nava , 415 S.W .3d at 308 (c iting Strickland , 466 U.S. at 694). 6 Id

. 7 Perez v. State , 310 S.W .3d 890, 894 (Tex. Crim. App. 2010) (quoting Strickland , 466 U.S. 8 at 693). Id . (quoting Strickland , 466 U.S. at 695).

9 Nava , 415 S

. W

. 3 d at 308 (citing Lopez v. State , 343 S.W .3d 137, 143 (Tex. Crim. 1 0 App. 2011)).

Lopez , 343 S.W .3d at 143 (citing E x p a r te Nailor , 149 S.W .3d 125, 131 (Tex. Crim. 1 1 App. 2004); Bone v. State , 77 S.W .3d 828, 833 n.13 (Tex. Crim. App. 2002); Mitchell v. State , 68 S.W .3d 640, 642 (Tex. Crim. App. 2002)). 5other robber ies that t h ey b elieved Matute had committed. After the detec tives had made sever al

ref ere nces to these other robbe ries, the pa rties appr oache d the benc h and the f ollowing oc curr ed:
[Defense counsel]: I ’m just confuse d. Be cause this particula r robber y that we a

re talking about occur

red on Be n Whit e and 71, and he’s talking about now a r obbery

that happene d in Oak Hill. [P rosec utor]: I think it’s t h e same one. Do y ou want to brea k wher e we are ? [Defense counsel]: I mean, is he just conf used? [P rosec utor]: I t hink the detec tive is confuse d. He s t ar t s i n t er m i x i n g

direc tions, but if we want to take a five-minute brea k we can make sure befor e we g o forwa rd.

. . . (Ope n court, de fenda

nt present, no jury

) [The court]: [Defense counsel], do y ou want to t ak e t h i s witness on voir

dire? [Defense counsel]: Yes, Your Honor, if I

could.
Detec tive L eleux, with reg ard to the robber y that y ou are ref err ing to, I ’m a littl e confuse d beca use the robber

y that we’ re in trial her e we ’re talking about is the one that happene d on East Be n Whit e Bo u l ev ard. Now, I know that there wer e some others that y ou wer e investiga ting so I want to just see if we c an may

be g et straig ht where we a re in c ase we ne ed to fix som ething befor e we g o forwa rd. Oka y ?

. . . All rig ht. Now, the robber y that we are talking about ri gh t now is 2250 East Be n Whit e B oulevar d, 78741? [L eleux] : Yes. [Defense counsel]: Ar e y o u m istaken and that’s what y ou mean when y o u ar e

talking about the robber

y , or are y ou talking about a differ ent one altog ether ?
6[L eleux] : So in—I printed out Goog le Maps like espec ially street views of the differ ent stores and used thos e an d went—used those and showed them to the defe ndant to ref ere nce and indicate to him which one we wer e talking about. So I would have been showing him a map and discussing one t h at happene d west, in southwest Austin, close to the Y, and no t t h e East Be n Whit e one. [Defense counsel]: Okay

. So y ou are not talking about the East Be n Whit e one? [L eleux] : Correc t. [Defense counsel]: At any point in the rest of y our interview d o y o u talk about

the East B en White one? Do y ou rec all? [L eleux] : We discussed all of them. [Defense counsel]: All of them. Okay

.

. . . I think, Your Honor, th at he is talking about a separ ate

robber y that’s—and it’s clea

r to me, rig ht, we’ re talking about a diffe rent robbe ry

altog ether

. I would ask by way of j u s t curing it, I think and just by looking a t the char g e ear lier today which y ou have in here is probably sufficient with reg ard to the extraneous acts or whateve r, but with reg ard to curing it and being ab le to g o forwa rd now, if we could just skip past the part wher e he talks about it. I f I ’m not mistaken, there is nothing else other than the one part wher e he takes out the map and looks at it the one time.

. . . And I think that we could probably just g o forwa rd. I f we just forwa rd [the video] j ust a littl e bit, probably we’ ll be okay

.

Af t er the rec ording had been forwa rded to a later point during the interview as reque sted by trial counsel, the rema inder of the interview was then play ed for the jury

. Howeve r, the rema inder

7of the rec ording contained additional ref ere nces to the other robberies, and counsel did not object to them. 1 2

Acc ording to Matute, “[i] t is bey ond question that trial counsel should have ensure d that ref ere nces to e x trane ous robber ies would not be per mitted to g o befor e the jury .” I n Matute’s view, “[t] here can be no rea sonable trial strateg y that would explain why such prejudicia l ma terial
was pe rmitted to be hea

rd by the jury .”
Howeve r, “[i] f counsel’s rea sons for his conduct do not appea r in the rec ord and there is a t le ast the possibili ty that the conduct could have been leg itimate tr ial strateg y , we will de fer to counsel’s decisions and deny relief on an ineffe ctive assistance claim on direc t appea l.” I t is well 1 3
settled that the decision to ref rain from objecting to extraneous-off ense evidenc e can be a leg itimate trial strateg y , for rea sons rang ing from not wanting to draw the jury ’s attention to the evidenc e to not wanting the jurors to believe that the defe ndant is try ing to h i d e information from them. I n this 1 4

case , we also observe that trial counsel, during his cross-e x amination of L eleux, appea red to pursue

a strateg y of establishing that Matute was cooper ating fully with the detec tives and not acting “rude ”

or “diffic ult” during the entirety of the interview. Trial counsel could have rea sonably believed that

The following day , the S t at e o ff er ed and the district court admitted into evidenc e a 1 2 redacted version of the interview, which remove d some but not all of the ref ere nces to the ot h er robber ies. The district court ruled that the reda cted version would be available for the jury ’s revie w duri n g d el i b era tions but that the orig inal version would rema in in the rec ord “bec ause the jury hear d that one.”

Ortiz v. State , 93 S.W .3d 79, 88-89 (Tex. Crim. Ap p . 2002); Haagense n v. State , 1 3 346 S.W .3d 758, 766 (Tex. App.—Texarkana 2011, no pet.). See, e.g. , Lemons v. State , 426 S.W .3d 267, 273 (Tex. App.—Texarkana 2013, pet. ref ’d); 1 4 Huerta v. State , 359 S.W .3d 887, 894 (Tex. App.—Houston [14t h Dist.] 2012, no pet.); Haagense n , 346 S.W .3d at 766; Heiman v. State , 923 S.W .2d 622, 626 (Tex. A pp.—Houston [1st Dist.] 1995, pet. re f’d) ; Ahmadi v. State , 864 S.W .2d 776, 783 (Tex. App.—For t Worth 1993, no pet.). 8reda cting cer tain portions of the interview might have worke d ag ainst such a strateg y of making the jury fully awa

re of his client’s g ood behavior during the interview. Be cause trial counsel’s decision
to not object might have been based o n s o u n d t ri al strateg y , we cannot conclude that counsel’s perf ormanc e fe ll outsi de “the wide ra ng e of r easona

ble profe ssional assistance.” 1 5
Moreove r, e v en i f counsel’s failure to object was defic ient, we could not conclude

on this rec ord that Matute was prejudice d by any su ch fa i l u re . As the State observe s in its brief,
most of the ref

ere nces to the other robber ies wer e b ri ef and ambig uous, with the detec tives using
terms such as “doing these things,” “hitting licks,” and usin g t h e p l u ral form of words such

as “s t o res.” I n fac t, due to the ambig uous nature of these ref ere nces, the rec ord ref

lects that both the prosec utor and trial counsel wer e co n fu s ed as to whether the detec tives wer e ref err ing to other robber ies until trial counsel clar ified the issue during voir d i re . The jury did not hear this clar ification, so the jury might have been simil arly confuse d. But even if the j u ry was awa re that
Matute was being investiga ted for multipl e robber ies, we cannot conclude that there is a rea sonable probability that, absent such awa rene ss, the outcome of the proce eding would have been differ ent. This was not a close case . During his interview with the police, Matute made statements implicating himself in the char g ed robbe ry , including stating, “I think I robbed it” w hen aske d what happe ned
at t he st ore; admitt ing that his “big mistake” was “stea ling” and that it was “ wrong ” for him to do
so; ex plaining to the detec tives how he had committed the crime, which was consistent with the cler k’s testimony of what had occur red during the robber

y ; and expressing remorse for what he had done, both to the detec tives during the interview, and in a subsequent telephone conver sation with his mother that was also rec orded and play ed for the jury

. Additionally , there was phy sical evidenc e

Strickland , 466 U.S. at 689. 1 5 9linking Matute to the robber y , including the shotgu n , clothing, bandana , and other items that

wer e found in Ma tute’s motel r oom f ollowing his a

rre st. Moreove r, a simil ar shotgun was seen in Matute’s vehicle on the night of the robber y , and one of Matute’s companions had a “ver y thick wad of ca sh and lots of bills” on her pe rson when the vehicle w as sea rche d. On this recor d, we c annot conclude that Matute satisfied his burden to show that there is a rea sonable probability that
Matute was prejudice d by trial counsel’s failure to object to the ref ere nces t o other robber ies in the re cording

. 1 6

District court’ s com m ent during jury selection
Matute also asser

ts that trial counsel was ineffe ctive in failing to object to the following comment made by the district court during jury selec tion in response to a potential juror’s question reg arding

how the jury

was to asse ss punishment:
[I ]n the State sy stem, Texas is unusual in that the jury is even assessing punishment; howeve r, I woul d s ay t h at the standard is the community standard. J udg es many times look to the community and what juries do on ca ses as we ll, what the y think a case is worth. You would look at all the fa cts but there is not a ma trix

.

Acc ording to Matute, it was improper for the district court to ref ere nce a “community standard,” and trial counsel should have objected to that r efe renc e. 1 7

See Ex parte Martinez , 330 S.W .3d 891, 904 (Tex. Crim. App. 2011) (holding that rec ord 1 6 demonstrating “ample evidenc e to support a rea sonable jury ’s finding of g uilt” milit ates ag ainst finding that defe ndant was prejudice d by trial counsel’s failure to object to inadmissible evidenc e).

See C ortez v. State , 683 S.W .2d 419, 420 (Tex. Crim. App. 1984) (holding that “an 1 7 acc us ed person is entitled to have his g uilt or punishment deter mined without ref

ere nce to any outside influence ,” including what the community might think or believe reg arding defe ndant’s g uilt or punishment). 10To succe ssfully asser t that trial counsel’s failure to object amounted to ineffe ctive assistance , Matute must show the trial court would have committed err or in overruling the objection. Matute has failed to make that showing here

. “Mer e ref ere nce to ‘the community ’ 1 8
does not const i t u t e an i m proper appea l to community expectations.” A judicial comment or 1 9
prosec utorial arg ument ref err ing to the community is improper only when “the eff ect of the lang uag e used [i s] to ask the jury to convict or punish th e d ef endant upon public sentiment or desire rathe r than upon the evidenc e that t h e j u ry h ad rec eived.” Her e, the district court used no such 2 0 improper lang uag e. To the contra ry , the district court informed the jury that “ther e is not a matrix ” for assessing punishment and that the jury was to “look at all the fa ct s ” in rea ching its decision, which is what the jury is supposed to do when assessing punishment. Thus, the district court would
not have err ed in overr

uling an objection to its comment and, t h er ef o re , we cannot conclude that trial counsel wa s deficie nt in failing to objec t to it. 2 1

Moreove r, even if trial counsel’s failure t o o b ject constituted defic ient perf ormanc e, we could not conclude on this rec ord that Matute was prejudice d by any such failure

. T h e d i s t rict court’s ref

ere nce to a “community standard” was limit ed to that one occur renc e and was not subseque ntly

repe ated by

either the district court or the parties during jury selec tion. Nor did the parties ref

er to “community standards” in their closing arg uments during punishment, instead

See M artinez , 330 S.W .3d at 901. 1 8 Harris v. State , 122 S.W .3d 871, 888 (Tex. App.—For t Worth 2003, pet. ref’d)

. 1 9 Cortez , 683 S.W .2d at 421. 2 0 S ee Ex parte Parra , 420 S.W .3d 821, 825-26 (Tex. Crim. App. 2013) (consider ing 2 1 surrounding context in which judicial comment was made and concluding that it was proper and that counsel wa s not deficient in dec lining to object to it). 11focusing on the evidenc e prese nted and the fac ts of the case . And there is no indication in the rec ord

that the jury

assessed punishment ba sed on any sort of “c ommunity

standard.” On this recor d, we
cannot conclude that there is a rea sonable probability that, but f or counsel’s failure to object to the district court’s c omment, the outcome of the proce eding would have be en diffe rent.

We overrule Matute’s sole point of e rror .

CONCLUSION We affir m the judgme nt of conviction.

__________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: January

6, 2016 Do Not Publish

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