Luzalbert Hernandez A/K/A Luz Albert Hernandez v. State ( 2018 )

NUMBER 13-17-00415-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LUZALBERT HERNANDEZ A/K/A
LUZ ALBERT HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant Luzalbert Hernandez a/k/a Luz Albert Hernandez was convicted on one
count of engaging in organized criminal activity and two counts of aggravated robbery,
each a first-degree felony. See TEX. PENAL CODE ANN. §§ 29.03(a)(2), 71.02 (West,
Westlaw through 2017 1st C.S.). Appellant was sentenced to fifty years’ imprisonment
and a $5,000 fine for each offense, and the sentences were ordered to run concurrently.
He contends by one issue that his trial counsel provided ineffective assistance. We affirm.
I. BACKGROUND
Appellant, along with Adam Joshua Arredondo and Emilio Suniga III, were indicted
for the offenses of engaging in organized criminal activity, aggravated robbery, and
aggravated assault, each arising out of the alleged robbery of the J.P. Game Room in
Victoria, Texas, on or about March 27, 2016.
At appellant’s trial, Henry Nguyen testified that he was the manager of the J.P.
Game Room. His employees included Eric Estrada, a server, and Suniga, a security
guard whose job duties included stopping people from entering the game room if they
were carrying a gun. On March 27, 2016, as Nguyen was removing money from a gaming
machine after closing hours, two masked men entered the facility and one pointed a gun
at Nguyen’s head. The masked men took Nguyen to an office in the back of the game
room and asked where he “hid the money.” Nguyen replied that there was about $3,000
in an apron he was wearing, and one of the masked men took the money along with
Nguyen’s wallet and cell phone. The men ordered Nguyen to lie on the floor, and he did,
at which point the men “tore up” the office and the rest of the game room looking for more
money. Nguyen stated that, at one point, he was struck in the head with a gun. He said
the robbers searched Estrada but did not search Suniga. Nguyen was not able to see
the face of the man who held him at gunpoint, but he stated that the man’s voice sounded
“Spanish.”
On cross-examination, Nguyen agreed that he was charged with engaging in
organized criminal activity in 2017 and pleaded guilty to misdemeanor gambling offenses.
He further conceded that, after the robbery, he went to his apartment and called the game
room’s owner rather than calling 911.
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Estrada testified that Suniga was responsible for locking the doors when the game
room closed at the end of the day. He did not believe Suniga was armed at the time of
the robbery. Estrada stated he called 911 after the robbery, and he conceded that he told
the dispatcher that the robbers were “black males.” He later heard the robbers’ voices
and determined that they sounded “Hispanic.” On cross-examination, he admitted he had
“no idea” what race the assailants were.
Florentino Tovar Jr. testified that he is a member of the Tongo prison gang. He
acknowledged that he is currently under indictment for participating in a crime with
members of another gang, Surenos 13. He stated that appellant, Arredondo, and Suniga
are members of Surenos 13. He heard both Arredondo and Suniga talk about “robbing
game rooms.” Tovar stated: “[A]t the time whenever [Suniga] was talking about robbing
the game room he wasn’t working at one and then when he got rehired back at the game
room that’s when he was telling me that it went down.” Suniga told Tovar that Suniga,
appellant, and Arredondo were involved in the robbery, and Suniga talked “about leaving
Victoria after he did it.”
Tovar stated that, on March 27, 2016, he let Arredondo borrow clothes including
dark blue jeans and a pair of white checkered Nike shoes. The following morning, he was
in Arredondo’s car, and he noticed that there was “a lot of money” in Arredondo’s glove
box, even though Arredondo did not have a job. When Tovar asked Arredondo where
the money came from, “[h]e said he robbed the game room” with appellant and Suniga.
Tovar viewed a surveillance video from the game room on the night in question and he
recognized Arredondo, who was wearing Tovar’s jeans and shoes, as one of the robbers.
He recognized appellant, by his clothes, as the other robber. He also recognized Suniga
as the security guard in the video, and he recognized the gun being displayed as formerly
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belonging to another Surenos 13 gang member. On cross-examination, he conceded he
could not be 100% certain that appellant was the second robber in the surveillance video.
Suniga testified that he pleaded guilty to the aggravated robbery and aggravated
assault of Nguyen and Estrada. As part of his plea agreement, he admitted that: (1) he,
appellant, and Arredondo were members of Surenos 13; (2) Surenos 13 is a criminal
street gang; (3) he “faked or feigned a flop or a fall” as security guard while Arredondo
and appellant robbed the J.P. Game Room on March 27, 2016; and (4) he told Tovar that
he, appellant, and Arredondo had committed the robbery.
Jason Stover, who was a detective with the Victoria Police Department from 2004
to 2016, testified that he was familiar with the Surenos 13 gang and that the gang has
more than three members; has a rank structure; has identifiable signs, symbols, or colors;
and has been involved in multiple crimes in the Victoria area. Stover stated that appellant
is a member of Surenos 13 and is affiliated with another gang, the 18th Street.
Kelly Sebby, a crime scene technician with the Victoria Police Department, testified
that she has experience doing fingerprint comparisons and analyzing latent fingerprints.
She explained that, in this case, no suitable prints had been recovered from the crime
scene.
The State then called Christopher Garcia, a lieutenant with the Victoria County
Sheriff’s Office. A hearing was held outside the presence of the jury to determine the
admissibility of Garcia’s testimony. At the hearing, Garcia explained that he worked for
the Victoria Police Department from 1979 to 2006, and he described his extensive
experience and training in gang-related law enforcement. He stated he was familiar with
Surenos 13 and their activities in Victoria County. The trial court found Garcia was
qualified to testify, and Garcia testified before the jury that appellant, Arredondo, and
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Suniga are Surenos 13 members. Garcia further testified that appellant has 18th Street
gang tattoos but no Surenos 13 tattoos. On cross-examination, Garcia conceded that
juveniles sometimes use the name of a nationally-known gang, such as Surenos 13,
without actually being affiliated with the gang. He also stated that the 18th Street gang
was not known to operate in Victoria County.
The jury found appellant guilty of engaging in organized criminal activity and the
aggravated robbery of both Nguyen and Estrada. This appeal followed.
II. DISCUSSION
A. Applicable Law
To obtain a reversal of a conviction on grounds of ineffective assistance of counsel,
a defendant must show that: (1) counsel’s performance fell below an objective standard
of reasonableness and (2) counsel’s deficient performance prejudiced the defense,
resulting in an unreliable or fundamentally unfair outcome of the proceeding. Davis v.
State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). “Deficient performance means that ‘counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010)
(quoting Strickland, 466 U.S. at 687). “The prejudice prong of Strickland requires showing
‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Id. at 248 (quoting Strickland, 466 U.S. at 694).
The burden is on appellant to prove ineffective assistance of counsel by a
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). Appellant must overcome the strong presumption that counsel’s conduct fell within
the wide range of reasonable professional assistance and that his actions could be
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considered sound trial strategy. See Strickland, 466 U.S. at 689; Andrews v. State, 159
S.W.3d 98, 101 (Tex. Crim. App. 2005) (noting that “we commonly assume a strategic
motive if any can be imagined and find counsel’s performance deficient only if the conduct
was so outrageous that no competent attorney would have engaged in it”). A reviewing
court will not second-guess legitimate tactical decisions made by trial counsel. State v.
Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (“[U]nless there is a record
sufficient to demonstrate that counsel’s conduct was not the product of a strategic or
tactical decision, a reviewing court should presume that trial counsel’s performance was
constitutionally adequate . . . .”). Counsel’s effectiveness is judged by the totality of the
representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 813. An
allegation of ineffectiveness must be firmly founded in the record. See Mata v. State, 226
S.W.3d 425, 430 (Tex. Crim. App. 2007) (noting that “a reviewing court on direct appeal
will rarely be able to fairly evaluate the merits of an ineffective-assistance claim, because
the record on direct appeal is usually undeveloped and inadequately reflective of the
reasons for defense counsel’s actions at trial”).
B. Analysis
Appellant contends that his trial counsel was ineffective by: (1) failing to request
pre-trial notice of the State’s expert witnesses under code of criminal procedure article
39.14, see TEX. CODE CRIM. PROC. ANN. art. 39.14 (West, Westlaw through 2017 1st C.S.);
(2) failing to “adequately” challenge the qualifications of the experts; (3) failing to conduct
a voir dire examination of the experts; (4) failing to move to exclude the experts’ testimony;
and (5) failing to call a rebuttal expert.
Appellant’s complaints concern the testimony of three State’s witnesses: Stover,
Sebby, and Garcia. However, the record shows that appellant’s trial counsel was able to
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question Garcia on voir dire as to his qualifications, and he was able to cross-examine all
three witnesses about the substance of their testimony. Appellant does not state what
questions he believes his counsel should have asked in order to “adequately” challenge
the qualifications of any of the three witnesses, nor does he explain how a rebuttal witness
would have assisted his case. And the record is devoid of any indication that, had counsel
more aggressively challenged the witnesses’ qualifications, their testimony would have
been excluded.
Appellant cites Ex parte Lane, 303 S.W.3d 702 (Tex. Crim. App. 2009), and Ex
parte Abrams, No. AP-75,366, 2006 WL 825775 (Tex. Crim. App. 2006) (not designated
for publication), two cases where the Texas Court of Criminal Appeals vacated
convictions on grounds of ineffective assistance. In Lane, the record included an affidavit
from a doctor that disputed the admissibility and reliability of the State’s expert witness.
See 303 S.W.3d at 716. In Abrams, the record included an affidavit questioning the
qualifications of the State’s expert witness, and the expert herself conceded that she was
not qualified to testify as an expert. See 2006 WL 825775, at *2. These cases are
distinguishable because, as noted, there is nothing in the record here that would cast
doubt upon the reliability or admissibility of the challenged testimony.
To the extent appellant argues that failure to request pre-trial notice under article
39.14 is per se ineffective, we disagree. The State notes that defense counsel may have
chosen to forgo such notice so as to avoid the possibility of the State seeking reciprocal
notice, and that this would be sound trial strategy. Further, trial counsel could have made
a sound strategic decision to decline to challenge the testimony of Sebby and Garcia,
because the testimony of those witnesses was, at least in part, favorable to appellant. In
particular, Sebby testified that there were no testable prints recovered from the crime
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scene and Garcia stated that appellant had no tattoos identifying him as a member of
Surenos 13.
There is nothing in the record establishing the reasons for counsel’s actions and
omissions, and we cannot say that those actions and omissions were “so outrageous that
no competent attorney” would have done the same. See Andrews, 159 S.W.3d at 101.
Appellant has therefore failed to satisfy the first prong of Strickland, and his issue on
appeal is overruled.1
III. CONCLUSION
We affirm the trial court’s judgments of conviction.
DORI CONTRERAS
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of August, 2018.
1 We note that “claims of ineffective assistance of counsel rejected due to lack of adequate
information may be reconsidered on an application for a writ of habeas corpus.” Lopez v. State, 343 S.W.3d
137, 143 (Tex. Crim. App. 2011).
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