Oscar Hernandez v. State ( 2015 )


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  •                                   NO. 12-13-00260-CR
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    OSCAR HERNANDEZ,                                 §      APPEAL FROM THE 2ND
    APPELLANT
    V.                                               §      JUDICIAL DISTRICT COURT
    THE STATE OF TEXAS,
    APPELLEE                                         §      CHEROKEE COUNTY, TEXAS
    MEMORANDUM OPINION
    Oscar Hernandez appeals his conviction for continuous sexual abuse of a child under
    fourteen, for which he was sentenced to imprisonment for sixty-two years. In seven issues,
    Appellant argues he received ineffective assistance of counsel. We affirm.
    BACKGROUND
    Appellant was charged by indictment with continuous sexual abuse of a child under
    fourteen and pleaded “not guilty.” A jury found Appellant “guilty” as charged and assessed his
    punishment at imprisonment for sixty-two years. This appeal followed.
    INEFFECTIVE ASSISTANCE OF COUNSEL
    In his issues one through seven, Appellant argues that he received ineffective assistance
    of counsel at trial.
    Governing Law
    Claims of ineffective assistance of counsel are evaluated under the two step analysis
    articulated in Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 674
    (1984).
    The first step requires the appellant to demonstrate that trial counsel’s representation fell below
    an objective standard of reasonableness under prevailing professional norms. See 
    Strickland, 466 U.S. at 688
    , 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
    omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
    below the professional norm of reasonableness. See McFarland v. State, 
    928 S.W.2d 482
    , 500
    (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any
    portion of trial counsel’s representation, but will judge the claim based on the totality of the
    representation. See 
    Strickland, 466 U.S. at 695
    , 104 S. Ct. at 2069.
    In any case considering the issue of ineffective assistance of counsel, we begin with the
    strong presumption that counsel was effective. See Jackson v. State, 
    877 S.W.2d 768
    , 771 (Tex.
    Crim. App. 1994).      We must presume counsel’s actions and decisions were reasonably
    professional and were motivated by sound trial strategy. See 
    id. Appellant has
    the burden of
    rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
    did. See 
    id. Appellant cannot
    meet this burden if the record does not affirmatively support the
    claim. See Menefield v. State, 
    363 S.W.3d 591
    , 592 (Tex. Crim. App. 2012). A record that
    specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an
    ineffectiveness claim. See Kemp v. State, 
    892 S.W.2d 112
    , 115 (Tex. App.–Houston [1st Dist.]
    1994, pet. ref’d).
    Before being condemned as unprofessional and incompetent, defense counsel should be
    given an opportunity to explain his or her actions. See Bone v. State, 
    77 S.W.3d 828
    , 836 (Tex.
    Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance claim
    must usually be denied as speculative, and, further, such a claim cannot be built upon
    retrospective speculation. 
    Id. at 835.
            Moreover, after proving error, the appellant must affirmatively prove prejudice from the
    deficient performance of his attorney. See Hernandez v. State, 
    988 S.W.2d 770
    , 772 (Tex. Crim.
    App. 1999); Burruss v. State, 
    20 S.W.3d 179
    , 186 (Tex. App.–Texarkana 2000, pet. ref’d). The
    appellant must prove that his attorney’s errors, judged by the totality of the representation and
    not by isolated instances of error, denied him a fair trial. 
    Burruss, 20 S.W.3d at 186
    . It is not
    enough for the appellant to show that the errors had some conceivable effect on the outcome of
    the proceedings. 
    Id. He must
    show that there is a reasonable probability that, but for his
    attorney’s errors, the jury would have had a reasonable doubt about his guilt or that the extent of
    his punishment would have been less. See id.; see also Bone v. 
    State, 77 S.W.3d at 837
    .
    2
    Failure to Give Notice of Testifying Expert Witness
    In his first issue, Appellant argues that his counsel was ineffective because he failed to
    disclose Child Forensic Interviewer Reashel Self as a potential expert witness, which resulted in
    the exclusion of her testimony.
    At trial, Appellant’s counsel made clear what the substance of Self’s testimony would be.
    Specifically, counsel stated that Self would testify that the two child victims, E.S. and B.S., did
    not make eye contact during their interviews, which could indicate that they were lying.
    Moreover, counsel stated that Self would testify to the characteristics a person who is lying
    might exhibit. Lastly, counsel indicated that Self, were she called to testify, would sponsor the
    videos of the forensic interviews conducted on the victims.
    In his brief, Appellant argues that had his counsel properly given notice of Self as an
    expert witness, her testimony would have called into doubt the victims’ testimonies and the
    outcome of the case would have been different. But the record reflects that E.S. admitted to
    having lied in the past concerning the events at issue. Specifically, E.S. testified as follows:
    Q. Do you remember talking to a police officer that night?
    A. Yes.
    Q. And what did you tell the police officer?
    A. I told him some of the stuff.
    Q. Okay. How come you didn’t tell him all the stuff? Is there a reason?
    A. Trust. I don’t really like the police[]. I don’t know. I just don’t. I didn’t think it was
    also necessary to tell them everything.
    ....
    Q. Does how much you tell about everything that happened depend on who you are
    talking to?
    A. Yes.
    Q. When I say it depends on who you are talking to[,] is it fair to say that it depends on
    how much you trust that person?
    A. Yes.
    ....
    Q. When you would talk to other people and you wouldn’t tell them everything[,] were
    you telling them the truth or a lie?
    A. I guess you could say a lie.
    Q. Okay. Would that be because you didn’t tell them the entire truth?
    A. Yes.
    3
    Moreover, B.S. similarly admitted that her in-court testimony was inconsistent with her previous
    statements concerning the relevant events. Specifically, B.S. testified as follows:
    Q. So three or four years later[,] you tell the [District Attorney] what you are saying now
    is the truth?
    A. Yes.
    Q. Okay. So for four years[,] you continued to lie about it?
    A. Not totally.
    Q. What do you mean not totally? I don’t understand.
    A. Because I wasn’t saying the whole entire truth. I would just say parts, it would be a
    lie though.
    B.S. further testified concerning a letter she wrote for school, in which she praised Appellant as a
    loving father figure. At trial, she described the letter as a “cover-up story.”
    During the presentation of his case, Appellant focused heavily on attacking the credibility
    of the victims’ testimonies. And it is apparent from the record that Appellant’s sole purpose for
    seeking to present Self’s testimony was to attempt to further discredit the victims’ testimonies
    and the statements they made in their interviews. But both B.S. and E.S. admitted to not having
    been entirely forthcoming in the past concerning the events in question. Thus, even without
    Self’s testimony, the jury was able to consider the victims’ in-court testimonies with the
    knowledge that each witness previously had given less than complete versions of their stories.
    Ultimately, the jury reasonably could have found that B.S. and E.S. lacked credibility, but it
    declined to do so. Therefore, we cannot conclude that but for Appellant’s counsel’s failure to
    properly notice Self as an expert witness, the outcome of the case would have been different.
    Appellant’s first issue is overruled.
    Failure to Make a Bill of Exception
    In his second and third issues, Appellant contends that his counsel was ineffective
    because he failed to make a bill of exception regarding the testimony he expected to elicit from
    Self and of the recordings of the forensics interviews of the victims her testimony would have
    sponsored. However, while Appellant's trial counsel did not make a bill of exception or put on a
    formal offer of proof with questions to and answers from Self, he was not required to do so to
    preserve error because he described the evidence to the trial court. See Johnson v. State, 
    233 S.W.3d 109
    , 117 (Tex. App.–Houston [14th Dist.] 2007, no pet.). As set forth previously,
    Appellant’s counsel made clear to the trial court the testimony he hoped to elicit from Self and
    4
    his purpose for admitting the videos of the forensic interviews.          Therefore, we hold that
    Appellant’s counsel’s failure to make a bill of exception does not amount to ineffective
    assistance. Appellant’s second and third issues are overruled.
    Failure to Object to Jury Charge
    In his fourth issue, Appellant argues that he received ineffective assistance of counsel
    because his counsel failed to object to the absence of an instruction in the court’s charge on
    punishment stating that Appellant would not be eligible for parole. In his fifth issue, Appellant
    contends that his trial counsel was ineffective in not requesting that this instruction concerning
    his ineligibility for parole be included in the charge. In his sixth issue, Appellant argues that his
    trial counsel was ineffective because he failed to object to the trial court’s response to the jury
    declining to answer its inquiry during deliberations concerning the effect of parole on
    Appellant’s sentence.
    The trial court is required to give the jury a written charge setting forth the law applicable
    to the case; not expressing any opinion as to the weight of the evidence, not summing up the
    testimony, discussing the facts, or using any argument in his charge calculated to arouse the
    sympathy or excite the passions of the jury. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West
    2007). Article 37.07, Section 4 of the code of criminal procedure provides the instructions that
    trial courts are required to give juries to inform them about the law of parole. See TEX. CODE
    CRIM. PROC. ANN. art. 37.07, § 4 (West Supp. 2014). In clarifying the Legislature’s intent
    regarding the provisions of Article 37.07, the court of criminal appeals has explained that the
    Legislature did not want any creative deviations from its chosen language regarding parole law
    instructions; consequently, trial judges cannot cut and paste as they see fit. See Luquis v. State,
    
    72 S.W.3d 355
    , 363 (Tex. Crim. App. 2002).
    Article 37.07, Section 4, provides that the language generally required in a charge
    addressing the law of parole does not apply to offenses arising under Section 21.02 of the penal
    code, offenses arising under Section 22.021 of the penal code that are punishable under
    subsection (f) of that section, or to capital felonies. See TEX. CODE CRIM. PROC. ANN. art. 37.07,
    § 4. Section 508.145(a) of the government code provides that a person serving a sentence for
    continuous sexual abuse of a young child is not eligible for release on parole. TEX. GOV’T CODE
    ANN. 508.145(a) (West Supp. 2014). Here, Appellant was convicted of continuous sexual abuse
    of a child, a violation of Section 21.02 of the penal code. See TEX. PENAL CODE ANN. 21.02(b)
    5
    (West Supp. 2014). Thus, the instructions to inform a jury about the law of parole contained in
    Article 37.07 do not apply to Appellant.
    In Cross v. State, No. 09-11-00406-CR, 
    2012 WL 6643832
    (Tex. App. Beaumont Dec.
    19, 2012, pet. ref’d) (mem. op., not designated for publication), a jury convicted the defendant of
    continuous sexual abuse of a child. See 
    id. at *1.
    On appeal, the appellant complained that the
    trial court erred when it denied his request to include an instruction in the jury charge given in
    the punishment phase of the trial advising the jury that he would not be eligible for parole. 
    Id. at *4.
    The court of appeals concluded the trial court did not err by refusing the defendant’s
    requested instruction concerning his ineligibility for parole. 
    Id. at *5.
    In so doing, the court
    noted that “[t]he Court of Criminal Appeals has expressed its reluctance to deviate from statutory
    instructions that are prescribed by the Legislature” and has indicated that, generally, special
    nonstatutory instructions have no place in the charge. 
    Id. at *4;
    Luquis, 72 S.W.3d at 364
    ; see
    also Walters v. State, 
    247 S.W.3d 204
    , 211 (Tex. Crim. App. 2012) (special, nonstatutory
    instructions, even when they relate to statutory offenses or defenses, generally have no place in
    jury charge).
    There, the instruction the defendant requested about the potential effect of a conviction
    on his eligibility for parole was a special, nonstatutory instruction.         See Cross, 
    2012 WL 6643832
    , at *4. The Legislature has not provided for such an instruction in prosecutions for
    continuous sexual abuse of a child, and, consequently, the appellate court concluded the trial
    court did not err in refusing the instruction the defendant requested. 
    Id. at *4.
           Because the Legislature has not provided for a parole instruction under these
    circumstances, we conclude that Appellant’s trial counsel was not ineffective for his failure to
    object to the trial court’s omission to a parole instruction in the charge, his failure to request such
    an instruction, or his failure to object to the trial court’s response declining to answer the jury’s
    inquiry concerning Appellant’s parole eligibility. Appellant’s fourth, fifth, and sixth issues are
    overruled.
    Failure to Object to Inadmissible Hearsay
    In his seventh issue, Appellant argues that his trial counsel was ineffective because he
    failed to object to inadmissible hearsay elicited from B.S. during cross examination regarding an
    alleged statement Appellant made threatening to kill the victims’ father if he were to go to
    6
    prison.1 Yet, the record before us is silent about trial counsel’s underlying strategy or why he
    chose the course he did. Normally, a silent record cannot defeat the strong presumption of
    effective assistance of counsel. See 
    Garza, 213 S.W.3d at 348
    ; Thompson v. State, 
    9 S.W.3d 808
    , 813–14 (Tex. Crim. App. 1999); but see Menefield, 
    363 S.W.3d 591
    , 593 (Tex. Crim. App.
    2012) (holding if trial counsel is not given opportunity to explain allegedly deficient actions,
    appellate court should not find deficient performance absent challenged conduct “so outrageous
    that no competent attorney would have engaged in it”); Andrews v. State, 
    159 S.W.3d 98
    , 102–
    03 (Tex. Crim. App. 2005) (reversing a conviction “in a rare case” on the basis of ineffective
    assistance of counsel when trial counsel did not object to a misstatement of law by the prosecutor
    during argument).
    In Andrews, the same prosecutor who filed a motion to cumulate the sentences in four
    counts of sexual abuse later argued to the jury, “You give him 20 years in each case, it’s still just
    20 years. It’s still not 80. You can give different amounts if you want. You can give 20, 10, 10,
    five, it’s still just 20.” 
    Id. at 100.
    The appellant’s trial counsel did not object to the prosecutor’s
    misstatement of the law. 
    Id. The trial
    court ultimately granted the State’s motion to cumulate
    the sentences and imposed a combined prison sentence of seventy-eight years. 
    Id. The court
    concluded that the argument left the jury with the incorrect impression that the appellant’s
    sentences could not be stacked and that the appellant would serve no more than twenty years in
    prison for all four counts. 
    Id. at 103.
    Therefore, the court held that, under the “extremely
    unusual circumstances of [the] case,” the record contained all of the information it needed to
    conclude that there could be “no reasonable trial strategy for failing to object” to the prosecutor’s
    misstatement of the law. 
    Id. The “extremely
    unusual circumstances” present in Andrews are not present in the case at
    hand.    Counsel’s reasons in Andrews, if any, were unnecessary to resolve the ineffective
    assistance of counsel claim. See Berry v. State, No. 05-04-01161-CR, 
    2005 WL 1515512
    , at *3
    (Tex. App.–Dallas June 28, 2005, no pet.) (op., not designated for publication). But counsel’s
    failing to object to a misstatement of the law that is detrimental to one’s client when the harm is
    so clearly presented on appeal is quite different from determining whether to object to hearsay
    testimony as a matter of trial strategy. See Walker v. State, No. 12-13-00076-CR, 2014 WL
    B.S.’s testimony revealed that she did not directly hear Appellant make this statement, but rather, that she
    1
    was made aware of the statement from another source.
    7
    357193, at *2 (Tex. App.—Tyler Jan. 31, 2014, pet. ref’d) (mem. op., not designated for
    publication) (failure of trial counsel to object to hearsay testimony not ineffective assistance
    because counsel’s underlying reasons for decision not demonstrated by record).
    Having reviewed the record in the instant case, we conclude that the facts before us are
    distinguishable from the facts in Andrews and Appellant’s trial counsel’s alleged deficient
    conduct is not “so outrageous that no competent attorney would have engaged in it.” See
    
    Menefield, 363 S.W.3d at 593
    . Thus, we decline to hold that the record before us contains all of
    the information needed for us to conclude that there could be no reasonable trial strategy for
    Appellant’s trial counsel’s alleged unprofessional acts. Therefore, we hold that Appellant has
    not met the first prong of Strickland because the record does not contain evidence concerning
    Appellant’s trial counsel’s reasons for choosing the course he did. As a result, Appellant cannot
    overcome the strong presumption that his counsel performed effectively. Appellant’s seventh
    issue is overruled.
    DISPOSITION
    Having overruled Appellant’s seven issues, we affirm the trial court’s judgment.
    BRIAN HOYLE
    Justice
    Opinion delivered May 29, 2015.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
    (DO NOT PUBLISH)
    8
    COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
    JUDGMENT
    MAY 29, 2015
    NO. 12-13-00260-CR
    OSCAR HERNANDEZ,
    Appellant
    V.
    THE STATE OF TEXAS,
    Appellee
    Appeal from the 2nd District Court
    of Cherokee County, Texas (Tr.Ct.No. 17,690)
    THIS CAUSE came to be heard on the appellate record and briefs filed
    herein, and the same being considered, it is the opinion of this court that there was no error in the
    judgment.
    It is therefore ORDERED, ADJUDGED and DECREED that the judgment
    of the court below be in all things affirmed, and that this decision be certified to the court
    below for observance.
    Brian Hoyle, Justice.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.