Ferreira v. State
2016 Tex. App. LEXIS 13787
| Tex. App. | 2016Background
- In Jan. 2013 a Hispanic male stabbed Dung Ho during an attempted robbery at a gas station; witness Prahl noted a fleeing car and recorded its license plate.
- Hours later police stopped a car for driving without headlights; appellant Ferreira was a passenger, Gomez the driver; officers recovered a knife and a light-brown jacket from Ferreira.
- The license plate matched the vehicle flagged in the investigation; Gomez gave a statement implicating Ferreira and later pleaded guilty and testified for the State.
- DNA from blood on the jacket did not exclude Ho; Ho and Prahl could not identify Ferreira, but both agreed the jacket matched the attacker’s.
- A jury convicted Ferreira of aggravated robbery; he was sentenced to 35 years and appealed, challenging jury instructions (extraneous-offense limiting instruction and law-of-parties language) and alleging ineffective assistance of counsel for failure to object to testimony implying Ferreira had a criminal history.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Extraneous-offense limiting instruction | Trial court erred by including limiting instruction over defense objection and thereby interfered with defense strategy/Sixth Amendment right to counsel | Trial court may include accurate law; limiting instruction is beneficial and not prohibited when added sua sponte | Court: No reversible error; inclusion permissible and beneficial (citing Fair); overruled issue |
| Law-of-parties instruction | Instruction was improper because it was given over objection and failed to specify which §7.02 modes applied | Court properly instructed on parties; application paragraph specified conditions; appellant failed to identify specific error or supporting record authority | Court: Briefing inadequate and no demonstrated charge error; issue overruled |
| Ineffective assistance — failure to object to testimony implying co-defendant’s/defendant’s criminal history | Counsel ineffective for not objecting and not striking testimony that ‘‘implied’’ Ferreira had an extensive record | Strategic silence may avoid drawing attention to damaging testimony; record is silent on counsel’s reasons so presumption of reasonable assistance applies | Court: No ineffective assistance shown; issue overruled |
Key Cases Cited
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (two-step jury-charge error standard)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (harm analysis for preserved charge error)
- Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) (trial judge must accurately charge applicable law)
- Fair v. State, 465 S.W.2d 753 (Tex. Crim. App. 1971) (including extraneous-offense limiting instruction over objection is not reversible error and can benefit defendant)
- Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) (defendant entitled to narrowed party-liability application paragraph if requested)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance standard)
- Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) (where record is silent about counsel’s reasons, strong presumption of reasonable representation applies)