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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. A-1-CA-34456

5 TAD WILLIAM WOODS,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

8 James Waylon Counts, District Judge

9 Hector H. Balderas, Attorney General

10 Maha Khoury, Assistant Attorney General

11 Santa Fe, NM 

12 for Appellee

13 Bennett J. Baur, Chief Public Defender

14 Nina Lalevic, Assistant Appellate Defender

15 Santa Fe, NM

16 for Appellant

17 MEMORANDUM OPINION

18 HANISEE, Judge.
2

1 {1} As a result of a series of events that occurred in Bent, New Mexico, on the

2 evening of November 1, 2011, a jury found Defendant Tad William Woods guilty of

3 aggravated burglary, larceny of a firearm, two counts of aggravated assault with a

4 deadly weapon, aggravated fleeing a law enforcement officer, shooting at a dwelling,

5 breaking and entering, and three counts of negligent child abuse. The district court

6 entered judgment against Defendant in accordance with the jury verdicts and

7 sentenced Defendant to thirty-eight years’ imprisonment.

8 {2} On appeal, Defendant (1) challenges the sufficiency of the evidence to convict

9 him of all but the child abuse charges and one of the two aggravated assault with a

10 deadly weapon charges, (2) argues that the district court committed instructional error,

11 (3) contends he was unfairly prejudiced by certain testimony that was admitted at trial,

12 (4) complains his right to a speedy trial was violated, and (5) claims he received

13 ineffective assistance of counsel. We affirm.

14 BACKGROUND

15 {3} Prior to October 2011, Defendant and Doralene Sanders, along with Sanders’

16 two younger daughters (ages five and seventeen at the time), had been living together

17 on Sanders’ property. After Defendant moved out, Sanders changed the locks on her

18 home and did not give Defendant the new keys or the new combination to the locks.

19 On November 1, 2011, Defendant called Sanders to see if she and her younger
3

1 daughter wanted to go out and eat. Sanders noticed that Defendant was intoxicated

2 when they spoke, and the conversation did not last long. When Defendant continued

3 to call her “over and over and over” later in the day, Sanders would not answer his

4 calls. When Sanders, who was not at home at the time, finally took Defendant’s call,

5 Defendant “was screaming, cussing [Sanders] out, asking why [Sanders] changed the

6 locks on the garage, saying that [Sanders] couldn’t keep [Defendant] out,” and asked

7 where Sanders was. Sanders lied to Defendant regarding her whereabouts because she

8 was scared.

9 {4} Upon returning home later that evening with her five-year-old daughter, who

10 was asleep in the backseat of the vehicle, Sanders saw Defendant coming down the

11 hill from her property. As Sanders was pulling into her driveway and up to her house,

12 Defendant rear-ended Sanders’ vehicle. Defendant rear-ended Sanders’ vehicle a

13 second time after Sanders had parked, putting Sanders in fear of her and her

14 daughter’s safety. Defendant then got out of his truck, started beating the windshield

15 of Sanders’ vehicle, insisted that Sanders and her daughter exit the vehicle, and

16 threatened to get in his truck and push Sanders’ vehicle through the house. Sanders

17 noticed, then, that the doors to her home and garage were wide open and that lights

18 were on that were not on before. When Sanders asked Defendant how he had gotten

19 into the house, Defendant told her “he had a key to open up anything” and that she
4

1 could not keep him out. Sanders later concluded that Defendant must have entered

2 through the window in her spa room. Defendant eventually left Sanders’ property, but

3 not before he accused her of “sleeping with everybody,” threatened her with belts,

4 pulled her hair and repeatedly slapped her, and threatened to kill himself. Soon after

5 leaving, Defendant called Sanders and told her that he had taken her .38-caliber

6 revolver that she kept under her mattress. Upon checking and seeing that the gun was

7 gone, Sanders called the Otero County Sheriff’s office to report the stolen gun, which

8 was loaded, and that Defendant had gone to the church near her house.

9 {5} Otero County Sheriff’s Deputy Edward Garcia and Sergeant Geraldine Martinez

10 responded to the call and went to the church. Deputy Garcia, who was in uniform and

11 driving a marked vehicle, drove to the back of the church, turned on his emergency

12 lights, and positioned his vehicle to block Defendant’s truck. Defendant, who was still

13 inside his truck, backed up and attempted to drive around Deputy Garcia’s vehicle.

14 Deputy Garcia blocked Defendant’s truck with his vehicle but then got out and ran

15 because Defendant’s vehicle “came at [him]” like Defendant “was going to run [him]

16 over,” causing Deputy Garcia to fear for his life. Defendant, ignoring Deputy Garcia’s

17 repeated orders to get out of his truck, then used his truck to hit Deputy Garcia’s

18 vehicle before fleeing the scene. As Defendant was fleeing the church parking lot,
1 18 The parties stipulated to sever and try separately Count 13 because of the

19 potentially prejudicial nature of the charge.

5

1 Sergeant Martinez—who had witnessed Defendant “ramming” Deputy Garcia’s

2 vehicle—shot at Defendant, striking and non-fatally wounding him in the head.

3 {6} Defendant returned to Sanders’ home and proceeded to shoot at the front door

4 and into the house. One of the shots became lodged in the door; the other penetrated

5 the door, struck the wall above a bedroom door on the far side of the house, and

6 landed on the floor in front of the bedroom. Sanders, who was inside with both of her

7 daughters—the older one having returned home just prior to Defendant’s

8 reappearance—and having heard “gunfire going through [the] home,” hid with her

9 daughters in a bedroom closet and called 911. Defendant entered the house by

10 breaking a bedroom window and held Sanders and her daughters hostage for over

11 three hours before he eventually surrendered.

12 {7} Defendant was charged with thirteen different counts, twelve of which were

tried together to a jury,1 13 and ten of which the jury convicted him. This appeal resulted.

14 DISCUSSION

15 {8} Defendant makes numerous arguments on appeal, which we consolidate as

16 follows: (1) the State failed to present sufficient evidence to convict Defendant of

17 shooting at a dwelling, aggravated burglary, breaking and entering, larceny of a

18 firearm, aggravated assault with a deadly weapon, and aggravated fleeing a law
6

1 enforcement officer; (2) the district court committed fundamental error by failing to

2 instruct the jury on an essential element of aggravated fleeing; (3) Defendant was

3 unfairly prejudiced by certain testimony elicited at trial; (4) Defendant’s right to a

4 speedy trial was violated; and (5) Defendant received ineffective assistance from his

5 trial counsel because trial counsel failed to request an intoxication instruction. We

6 address each issue in turn.

7 I. The State Presented Sufficient Evidence to Convict Defendant of All

8 Complained-of Counts

9 {9} Defendant argues that there was insufficient evidence to support his convictions

10 for (1) aggravated burglary (Count 1), (2) larceny of a firearm (Count 2), (3)

11 aggravated assault with a deadly weapon based on rear-ending Sanders’ vehicle

12 (Count 3), (4) aggravated fleeing a law enforcement officer (Count 5), (5) shooting

13 at a dwelling (Count 7), and (6) breaking and entering (Count 9). We disagree.

14 Standard of Review

15 {10} “The test for sufficiency of the evidence is whether substantial evidence of

16 either a direct or circumstantial nature exists to support a verdict of guilt beyond a

17 reasonable doubt with respect to every element essential to a conviction.” State v.

18 Cabezuela, 2015-NMSC-016, ¶ 14, 350 P.3d 1145 (internal quotation marks and

19 citation omitted). Our review involves a two-step process in which we first “view the

20 evidence in the light most favorable to the guilty verdict, indulging all reasonable
7

1 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.

2 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We then “evaluate

3 whether the evidence, so viewed, supports the verdict beyond a reasonable doubt.”

4 State v. Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076. We disregard all evidence and

5 inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19,

6 126 N.M. 438, 971 P.2d 829. The appellate courts “will not invade the jury’s province

7 as fact-finder by second-guessing the jury’s decision concerning the credibility of

8 witnesses, reweighing the evidence, or substituting its judgment for that of the jury.”

9 State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (alterations,

10 internal quotation marks, and citation omitted).

11 The State Presented Sufficient Evidence to Support Defendant’s Aggravated

12 Burglary Conviction

13 {11} The jury in this case was instructed in pertinent part that in order to convict

14 Defendant of Count 1, the State had to prove beyond a reasonable doubt that

15 Defendant: (1) “entered a dwelling without authorization”; (2) “entered the dwelling

16 with the intent to commit a theft when inside”; and (3) “became armed with a .38

17 revolver after entering[.]” The jury heard from Sanders that she had changed her locks

18 and not given Defendant the key or combination code to enter, meaning he did not

19 have authorization to enter her dwelling. Sanders also testified that Defendant called

20 and told her that he had taken her .38 revolver from under her mattress—i.e., became
8

1 armed with it—and that she immediately verified that the gun was missing. Regarding

2 the element of intent, the intent to commit theft can be reasonably inferred from

3 evidence showing that property was, indeed, stolen from within a dwelling. See State

4 v. Mireles, 1971-NMCA-027, ¶ 6, 82 N.M. 453, 483 P.2d 508 (explaining that

5 evidence that property from within a residence had been stolen indicated an intent to

6 commit theft). Furthermore, a jury may rely on circumstantial evidence to infer that

7 the defendant intended to commit a theft, see State v. Tixier, 1976-NMCA-054, ¶¶ 6-7,

8 89 N.M. 297, 551 P.2d 987, and “burglarious intent can be reasonably and justifiably

9 inferred from the unauthorized entry alone.” State v. Castro, 1979-NMCA-023, ¶ 19,

10 92 N.M. 585, 592 P.2d 185, overruled on other grounds by Sells v. State, 1982-

11 NMSC-125, ¶¶ 7-10, 98 N.M. 786, 653 P.2d 162. Viewed in the light most favorable

12 to affirming the guilty verdict, the facts support the jury’s determination that

13 Defendant committed an aggravated burglary. 

14 The State Presented Sufficient Evidence to Convict Defendant of Larceny of a

15 Firearm

16 {12} The jury was instructed in pertinent part that in order to convict Defendant of

17 Count 2, the State had to prove beyond a reasonable doubt that (1) Defendant “took

18 and carried away a .38 revolver, belonging to another[,]” and (2) “[a]t the time

19 [Defendant] took this property, [D]efendant intended to permanently deprive the

20 owner of it[.]” The jury heard from Sanders that Defendant took Sanders’ .38 revolver
9

1 and that he did not have Sanders’ permission to do so, thus satisfying the first element.

2 Detective Fabian Picazo of the Otero County Sheriff’s Office testified that when he

3 responded to the call at Sanders’ residence on November 1, he observed, through a

4 window, Defendant standing with a pistol in his hand, pointed towards the closet area.

5 Sanders’ older daughter testified that at one point that night, she gained control of the

6 gun but that Defendant threatened to hurt her if she did not give it back, so she gave

7 the gun back to Defendant. She also testified that when the police were trying to get

8 Defendant to surrender, they instructed him to leave the gun, which Defendant refused

9 to do. From all of the evidence adduced at trial, the jury could reasonably infer that

10 Defendant intended to permanently deprive Sanders of her gun at the time he took it.

11 See State v. Roybal, 1960-NMSC-012, ¶ 6, 66 N.M. 416, 349 P.2d 332 (explaining

12 that in larceny cases, intent “may be inferred by the jury from the facts and

13 circumstances established at the trial”). Thus, there was sufficient evidence to convict

14 Defendant of Count 2.

15 The State Presented Sufficient Evidence to Convict Defendant of Aggravated

16 Assault With a Deadly Weapon

17 {13} The jury in this case was instructed, in accordance with UJI 14-305 NMRA, that

18 in order to convict Defendant of Count 3, the State had to prove beyond a reasonable

19 doubt the following:

20 1. [D]efendant rammed . . . Sanders’ vehicle with his vehicle;
10

1 2. [D]efendant’s conduct caused . . . Sanders to believe [D]efendant

2 was about to intrude on . . . Sanders’ bodily integrity or personal

3 safety by touching or applying force to . . . Sanders in a rude,

4 insolent or angry manner;

5 3. A reasonable person in the same circumstances as . . . Sanders

6 would have had the same belief;

7 4. [D]efendant used a deadly weapon. [D]efendant used a motor

8 vehicle. A motor vehicle is a deadly weapon only if you find that

9 a motor vehicle, when used as a weapon, could cause death or

10 great[] bodily harm;

11 5. This happened in New Mexico on or about the 1st day of

12 November, 2011.

13 Sanders testified that Defendant used his truck to rear-end her vehicle twice: once as

14 she was still driving up her driveway, and once after she had parked. She also testified

15 that this caused her to fear for her and her daughter’s safety. From this evidence, the

16 jury could reasonably convict Defendant of Count 3.

17 The State Presented Sufficient Evidence to Convict Defendant of Aggravated

18 Fleeing a Law Enforcement Officer

19 {14} The jury was instructed that in order to convict Defendant of Count 5, the State

20 had to prove beyond a reasonable doubt the following: 

21 1. [D]efendant operated a motor vehicle;

22 2. [D]efendant drove willfully and carelessly in a manner that

23 endangered the life of another person;
11

1 3. [D]efendant had been given a visual or audible signal to stop by

2 a uniformed law enforcement officer in an appropriately marked

3 law enforcement vehicle[;]

4 4. [D]efendant knew that a law enforcement officer had given him

5 a[n] audible or visual signal to stop;

6 5. This happened in New Mexico on or about the 1st day of

7 November, 2011.

8 Deputy Garcia’s testimony supplies sufficient evidence to support Defendant’s

9 conviction. Deputy Garcia testified that he was in uniform and a fully marked law

10 enforcement vehicle; that he engaged his vehicle’s lights as he approached

11 Defendant’s truck at the back of the church; that he repeatedly ordered Defendant to

12 get out of Defendant’s truck; that Defendant ignored his orders and proceeded to ram

13 into Deputy Garcia’s vehicle before driving away; and that Defendant’s conduct

14 caused Deputy Garcia to fear for his life. From this, the jury could reasonably find that

15 Defendant drove “willfully and carelessly in a manner that endangered the life of

16 another person[,]” the only element Defendant challenges as unsupported by

17 substantial evidence. UJI 14-2217 NMRA. Moreover, as our Supreme Court has

18 explained,

19 When a person resists, evades, or obstructs an officer by fleeing without

20 willful and careless driving, that conduct is a mere misdemeanor. See

21 NMSA 1978, § 30-22-1 (1981). Because fleeing is made worse or more

22 serious when the person flees in a manner that endangers the lives of

23 others, the Legislature chose to make the crime a fourth degree felony,
12

1 see § 30-22-1.1(B). Thus, the defendant’s conduct gives rise to the

2 imposition of the heightened punishment.

3 State v. Padilla, 2008-NMSC-006, ¶ 14, 143 N.M. 310, 176 P.3d 299 (internal

4 quotation marks and citation omitted). Here, it was the fact that Defendant not only

5 attempted to evade Deputy Garcia by driving away from him but also rammed Deputy

6 Garcia’s vehicle and drove toward Deputy Garcia like “he was going to run [Deputy

7 Garcia] over” that supports Defendant’s conviction for aggravated fleeing. The act of

8 ramming his truck into Deputy Garcia’s vehicle made Defendant’s act “worse or more

9 serious,” thus warranting his conviction of a more serious crime. See id.

10 The State Presented Sufficient Evidence to Convict Defendant of Shooting at a

11 Dwelling

12 {15} In pertinent part, the jury was instructed that in order to convict Defendant of

13 Count 7, the State had to prove beyond a reasonable doubt that Defendant “willfully

14 shot a firearm at a dwelling[.]” Sanders testified that after Defendant returned to her

15 house from the church, she heard “gunfire going through [the] home.” Kevin Massis,

16 a crime scene investigator with the New Mexico State Police, testified that there was

17 one bullet lodged inside the front door and one that ended up in front of a bedroom

18 located across the house. The jury was also shown diagrams of the house and

19 photographs taken inside the house that showed the relationship between the front
13

1 door—where Defendant shot the gun—and where the bullets landed. From this

2 evidence, the jury could convict Defendant of Count 7.

3 The State Presented Sufficient Evidence to Convict Defendant of Breaking and

4 Entering

5 {16} In pertinent part, the jury was instructed, in accordance with UJI 14-1410

6 NMRA, that in order to convict Defendant of Count 9, the State had to prove beyond

7 a reasonable doubt that (1) Defendant “entered a dwelling without permission”; and

8 (2) “[t]he entry was obtained by the breaking of a bedroom window[.]” Sanders

9 testified that she did not give Defendant keys and the combination to the new locks

10 she installed after Defendant moved out of her house, allowing the jury to conclude

11 that Defendant did not have permission to enter the house. Norman Rhoades, a crime

12 scene investigator with the New Mexico State Police, testified that he identified

13 Defendant’s entry point as a bedroom window, which had a screen that had been

14 forced inward. The State presented to the jury photographs of the bedroom window

15 with the screen pushed in and ripped, as well as the crime scene investigator’s diagram

16 showing numerous blood stains around the window and on the bed just inside the

17 window. We conclude that this was sufficient evidence for the jury to convict

18 Defendant of Count 9.
14

1 II. Aggravated Fleeing Jury Instruction

2 {17} Defendant argues that the district court committed fundamental error by giving

3 a jury instruction for aggravated fleeing that omits an essential element of the crime.

4 We disagree.

5 {18} Under NMSA 1978, Section 30-22-1.1(A) (2003), aggravated fleeing a law

6 enforcement officer

7 consists of a person willfully and carelessly driving his vehicle in a

8 manner that endangers the life of another person after being given a

9 visual or audible signal to stop, whether by hand, voice, emergency light,

10 flashing light, siren or other signal, by a uniformed law enforcement

11 officer in an appropriately marked law enforcement vehicle in pursuit in

12 accordance with the provisions of the Law Enforcement Safe Pursuit

13 Act.

14 UJI 14-2217 identifies the following as the essential elements that the state must prove

15 in order to convict a defendant of aggravated fleeing:

16 1. The defendant operated a motor vehicle;

17 2. The defendant drove willfully and carelessly in a manner that

18 endangered the life of another person;

19 3. The defendant had been given a visual or audible signal to stop by

20 a uniformed law enforcement officer in an appropriately marked

21 law enforcement vehicle;

22 4. The defendant knew that a law enforcement officer had given him

23 an audible or visual signal to stop[.]
15

1 Defendant contends that UJI 14-2217—used in this case— “omit[s] the most essential

2 element of the crime of aggravated fleeing—that [the defendant] actually ignored the

3 officer’s signal and did not stop.” According to Defendant, “[t]he jury instruction does

4 not require any finding that the defendant drove in the specified manner after being

5 signaled by the officer.” Defendant’s argument is without merit.

6 {19} Paragraph 3 of UJI 14-2217—specifically the phrase “[t]he defendant had been

7 given a visual or audible signal to stop”—provides the necessary language to make

8 clear that the defendant’s operation of a motor vehicle occurred after the defendant

9 had been signaled by law enforcement to stop. UJI 14-2217 (emphasis added).

10 Paragraph 4 provides further reinforcement and clarification by requiring the jury to

11 find that the defendant “knew that a law enforcement officer had given him an audible

12 or visual signal to stop[.]” Id. (emphases added). As Defendant points out, “[t]he

13 statute requires that the [s]tate prove the defendant drove in the proscribed manner

14 after being given a signal by law enforcement.” UJI 14-2217 commensurately requires

15 the jury to find that the state has proven that the “defendant operated a motor vehicle”

16 in a “willful[] and careless[] manner” and that such operation occurred at a time when

17 the “defendant had been given a . . . signal to stop[,]” i.e., after being signaled.

18 {20} Our ultimate objective in reviewing jury instructions is to “seek to determine

19 whether a reasonable juror would have been confused or misdirected by the
16

1 instruction.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134

2 (internal quotation marks and citation omitted). We conclude that the aggravated

3 fleeing instruction given in this case included all of the essential elements contained

4 in Section 30-22-1.1 and would not have been confusing or misleading to a reasonable

5 juror.

6 III. Unfair Prejudice Resulting From Certain Testimony

7 {21} Defendant complains that statements made by three testifying law enforcement

8 officers—Deputy Garcia, Sergeant Martinez, and Detective Picazo—suggested that

9 Defendant “had prior domestic violence charges” and had previously been

10 incarcerated, unfairly prejudicing him and necessitating reversal of his convictions and

11 remand for a new trial. The specific statements Defendant complains of are: (1)

12 Deputy Garcia’s statement that he could identify Defendant because while he did not

13 know Defendant at the time of the events in question on November 1, 2011, he had

14 “served subpoenas to [Defendant] at the jail,” thus allowing him to identify Defendant

15 in court; (2) Detective Picazo’s statement that he had “prior dealings” with Defendant,

16 including when Detective Picazo responded to a “domestic” call at Sanders’ residence;

17 and (3) Sergeant Martinez’s statement indicating that she had responded to a call at

18 Sanders’ house “three weeks prior” to the November 1 incident. {22} With respect

19 to the testimony of Detective Picazo and Sergeant Martinez, we understand Defendant
17

1 to argue that the district court erred by failing to exclude certain evidence under Rule

2 11-403 NMRA, which provides that “[t]he court may exclude relevant evidence if its

3 probative value is substantially outweighed by a danger of . . . unfair prejudice[.]”

4 Ordinarily, we review a district court’s Rule 11-403 decision for an abuse of

5 discretion. State v. Otto, 2007-NMSC-012, ¶ 14, 141 N.M. 443, 157 P.3d 8. Here,

6 however, we note that defense counsel neither objected to any of the now-complained7 of statements made by Detective Picazo and Sergeant Martinez nor moved to strike

8 any testimony elicited on cross-examination. Thus, Defendant failed to preserve his

9 claims of error in accordance with Rule 11-103(A) NMRA. We, therefore, decline to

10 further consider Defendant’s Rule 11-403 argument with respect to Detective Picazo’s

11 and Sergeant Martinez’s statements. See State v. Rael-Gallegos, 2013-NMCA-092,

12 ¶ 39, 308 P.3d 1016 (declining to review Rule 11-403 claim that was not preserved).

13 {23} With respect to Deputy Garcia’s testimony, we note that the district court,

14 indeed, sustained Defendant’s objection to Deputy Garcia’s testimony that he had

15 served subpoenas to Defendant in jail and provided a curative instruction to the jury.

16 We understand Defendant’s argument that he should be granted a new trial as a claim

17 that the district court erred by denying his request for a mistrial, a decision we review

18 for an abuse of discretion. See State v. Caudillo, 2003-NMCA-042, ¶ 12, 133 N.M.

19 468, 64 P.3d 495. When Deputy Garcia testified that he came to know who Defendant
18

1 was and could identify him in court because he had “served subpoenas to [Defendant]

2 at the jail,” defense counsel requested and the district court immediately held a bench

3 conference during which defense counsel moved for a mistrial. The district court

4 denied the motion, noting that the prosecutor had not elicited Deputy Garcia’s

5 statement and explaining that “some passing notion that [Defendant] may have spent

6 some time in jail . . . isn’t so prejudicial” as to warrant a mistrial. The district court,

7 however, offered to give a “corrective instruction” to the jury, which defense counsel

8 accepted and the district court immediately gave, explaining that the jury was to

9 disregard Deputy Garcia’s statement that he had “encountered . . . Defendant in jail”

10 and that the statement “is not to enter into the jury deliberations in any way and should

11 not influence [the] verdict.”

12 {24} We can see no abuse of discretion in the district court’s denial of Defendant’s

13 motion for a mistrial. “An abuse of discretion occurs when the ruling is clearly against

14 the logic and effect of the facts and circumstances of the case. We cannot say the trial

15 court abused its discretion by its ruling unless we can characterize it as clearly

16 untenable or not justified by reason.” Id. (internal quotation marks and citation

17 omitted). Particularly in light of the facts that (1) Deputy Garcia’s explanation of how

18 he came to know who Defendant was came after defense counsel challenged Deputy

19 Garcia’s personal knowledge of Defendant’s identity, (2) the prosecutor did not solicit
19

1 the “in jail” statement, and (3) a curative instruction was immediately given, we

2 conclude the district court did not abuse its discretion by refusing to grant a mistrial.

3 See id. ¶ 14 (explaining that there is “no need for a mistrial” when “a court promptly

4 sustains an objection and admonishes the jury to disregard the evidence” in a case

5 where there is an unsolicited mention of the defendant’s “revoked license for prior

6 convictions”).

7 IV. Speedy Trial

8 {25} Defendant concedes that he failed to preserve this issue below and raises it as

9 fundamental error under Rule 12-321(B)(2) NMRA (formerly Rule 12-216(B)(2)

10 NMRA). Because of the fact-dependent nature of a speedy trial claim and Defendant’s

11 failure not only to demand a speedy trial but also to invoke a ruling by the district

12 court, we are left in a position where we effectively have nothing to review. See Rojo,

13 1999-NMSC-001, ¶¶ 49-52 (explaining that “an appropriate motion to protect

14 constitutional speedy[]trial rights requires the weighing of factors that are factually

15 based,” that “fact-finding is a function of the district court,” and concluding that the

16 record failed to establish a basis for considering the defendant’s unpreserved speedy

17 trial challenge (alterations, internal quotation marks, and citations omitted)); State v.

18 Valdez, 1990-NMCA-018, ¶¶ 14-16, 109 N.M. 759, 790 P.2d 1040 (quoting with

19 approval United States v. Canniff, 521 F.2d 565, 573 (2d Cir. 1975), for the
20

1 proposition that “[a] complete failure to raise [a speedy trial claim] in the trial court

2 . . . precludes [an appellate court’s] consideration of the issue on appeal, for the simple

3 reason that there is nothing to review” and declining to entertain an unpreserved claim

4 of a speedy trial violation); see also State v. Lopez, 2008-NMCA-002, ¶¶ 24-25, 143

5 N.M. 274, 175 P.3d 942 (explaining that “[i]t is well-settled law that in order to

6 preserve a speedy trial argument, [the d]efendant must properly raise it in the lower

7 court and invoke a ruling” and holding that even though the defendant filed motions

8 demanding a speedy trial, she failed to preserve her argument because the district

9 court never held a hearing on her demand).

10 {26} Moreover, in order to prevail on a claim of fundamental error, Defendant must

11 “demonstrate the existence of circumstances that ‘shock the conscience’ or implicate

12 a fundamental unfairness within the system that would undermine judicial integrity

13 if left unchecked.” Cunningham, 2000-NMSC-009, ¶ 21. Defendant has failed to do

14 so, citing no authority and developing no argument as to how the delay in going to

15 trial constituted “such a striking violation of the constitutional right to a speedy trial

16 that it would be appropriate to consider that issue for the first time on appeal.” Rojo,

17 1999-NMSC-001, ¶ 53 (internal quotation marks and citation omitted). We note that

18 the record indicates not only that the State diligently prosecuted its case and made

19 every effort to bring Defendant’s case to trial in a timely manner but also that it was
21

1 Defendant who requested and was granted five continuances. The district court, in

2 fact, repeatedly admonished Defendant for the delays he was causing, expressly telling

3 him that it would not hold the delays against the State and that he could not delay

4 going to trial forever. We thus decline to further consider Defendant’s speedy trial

5 argument. See Lopez, 2008-NMCA-002, ¶¶ 24-25.

6 V. Ineffective Assistance of Counsel

7 {27} Defendant argues that he received ineffective assistance of counsel in violation

8 of the Sixth Amendment because his trial counsel failed to (1) request a voluntary

9 intoxication jury instruction despite sufficient evidence to warrant one, and (2)

10 investigate the “effect of [Defendant] being shot in the head” and how that may have

11 affected Defendant’s ability to form specific intent. The State concedes that sufficient

12 evidence existed to support a voluntary intoxication instruction but argues that “a

13 diminished capacity instruction cannot be based on trauma from being shot” because

14 the only specific intent crimes with which Defendant was charged—aggravated

15 burglary and larceny—occurred before Defendant was shot.

16 {28} “Habeas corpus proceedings are the preferred avenue for adjudicating

17 ineffective assistance of counsel claims, because the record before the trial court may

18 not adequately document the sort of evidence essential to a determination of trial

19 counsel’s effectiveness.” State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163
22

1 P.3d 494 (alteration, internal quotation marks, and citation omitted). “When an

2 ineffective assistance claim is first raised on direct appeal, we evaluate the facts that

3 are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d

4 61. “If facts necessary to a full determination are not part of the record, an ineffective

5 assistance claim is more properly brought through a habeas corpus petition, although

6 an appellate court may remand a case for an evidentiary hearing if the defendant

7 makes a prima facie case of ineffective assistance.” Id. “To state a claim for

8 ineffective assistance of counsel, a defendant must establish that (1) counsel’s

9 performance was deficient, and (2) such deficiency resulted in prejudice against the

10 defendant.” Garcia, 2011-NMSC-003, ¶ 33 (emphasis added).

11 {29} Assuming without deciding that trial counsel’s failure to request a voluntary

12 intoxication instruction constituted deficient performance, we conclude that Defendant

13 has failed to meet his burden because he points to nothing in the record establishing

14 that “as a result of the deficient performance, there was a reasonable probability that

15 the result of the trial would have been different.” State v. Dylan J., 2009-NMCA-027,

16 ¶ 38, 145 N.M. 719, 204 P.3d 44 (omission, internal quotation marks, and citation

17 omitted); see State v. Trujillo, 2002-NMSC-005, ¶ 38, 131 N.M. 709, 42 P.3d 814

18 (“An error by counsel, even if professionally unreasonable, does not warrant setting

19 aside the judgment of a criminal proceeding if the error had no effect on the judgment.
23

1 Accordingly, [a] defendant must still affirmatively prove prejudice.” (alteration,

2 internal quotation marks, and citations omitted)). Defendant has failed to show how

3 trial counsel’s failure to request a voluntary intoxication instruction prejudiced him.

4 In fact, he offers no explanation whatsoever of how that claimed deficiency prejudiced

5 his defense. Defendant’s only statement regarding prejudice is that trial counsel’s

6 “failure to investigate, especially after having requested time to do so, the result of

7 having been shot in the head . . . was prejudicial to [Defendant’s] defense in that the

8 jury never even learned of the effect of being shot in the head on one’s ability to form

9 specific intent.” However, Defendant’s contention is purely speculative, and he points

10 to nothing in the record indicating what additional information would have been

11 provided by an expert testifying “regarding the psychological effect on [Defendant]

12 of having been shot by [Sergeant] Martinez” or demonstrated that such additional

13 information had a reasonable probability of changing the result of his trial. Moreover,

14 we agree with the State that the only specific intent crimes with which Defendant was

15 charged were aggravated burglary and larceny, both of which occurred prior to

16 Defendant being shot, meaning that there was neither deficient performance nor

17 prejudice suffered based on trial counsel’s decision not to further investigate or

18 present a diminished-capacity defense regarding the effect of Defendant being shot.
24

1 {30} We conclude that Defendant has failed to meet his burden of establishing a

2 prima facie case of ineffective assistance and, therefore, decline Defendant’s request

3 that we remand for an evidentiary hearing. Cf. State v. Paredez, 2004-NMSC-036, ¶ 1,

4 136 N.M. 533, 101 P.3d 799 (concluding that remand to the district court for an

5 evidentiary hearing was proper where a prima facie case of ineffective assistance of

6 counsel was established by the appellate record). We note, however, that “this

7 decision does not preclude [a d]efendant from pursuing habeas corpus proceedings on

8 this issue should he be able to garner evidence to support his claims.” State v. Bernal,

9 2006-NMSC-050, ¶ 36, 140 N.M. 644, 146 P.3d 289.

10 CONCLUSION

11 {31} For the foregoing reasons, we affirm Defendant’s convictions.

12 {32} IT IS SO ORDERED.

13 _________________________________

14 J. MILES HANISEE, Judge
25

1 WE CONCUR:

2 _________________________________

3 LINDA M. VANZI, Chief Judge

4 _________________________________

5 JONATHAN B. SUTIN, Judge