Affirmed and Opinion Filed October 19, 2016




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-01567-CR

                              ANDRES HERNANDEZ, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 204th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F12-62691-Q

                             MEMORANDUM OPINION
                           Before Justices Francis, Evans, and Stoddart
                                   Opinion by Justice Francis
       A jury convicted Andres Hernandez of indecency with a child by contact, and

punishment was assessed at twelve years in prison. In three issues, appellant complains he was

denied effective assistance of counsel and the trial court committed fundamental error by

allowing (1) the prosecutor to ask him, in the presence of the jury, if he was the accused and (2) a

detective to testify he believed the child. We affirm.

       Appellant, a pastor, was a friend of the family of ten-year-old P.M. Appellant asked P.M.

and her older brother, E.M., who was fourteen, to go to the church with him to practice music.

When they arrived, appellant said P.M. was going to help him clean his office while E.M. went

to a different building to set up the equipment. While in the office, appellant touched P.M.’s

breast, touched her vagina over her clothing, and made her touch his penis until he ejaculated.
He told P.M. not to tell anyone. After they practiced music, appellant took P.M. and E.M. home.

Some time that same day, P.M. told her sisters and E.M. what happened. Her oldest sister, who

was nineteen, called the police, who came and talked to P.M. P.M. was then taken to the hospital

by ambulance to be examined. Police arrested appellant that night.

       In his first issue, appellant contends he was denied effective assistance of counsel when

his trial counsel failed to object to (1) witnesses, other than the outcry witness, testifying to

P.M.’s hearsay statements about the offense, (2) the paramedic and supervising physician

testifying about documents prepared by other people, on confrontation grounds, (3) the

prosecutor asking appellant, in front of the jury, if he was the accused, and (4) the detective’s

testimony that he believed P.M..

        To prevail on a claim of ineffective assistance of counsel, an appellant must show that

(1) counsel’s representation fell below an objective standard of reasonableness and (2) the

deficient performance prejudiced the defense; that is, but for the deficiency, there is a reasonable

probability that the result of the proceeding would have been different. Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011), citing Strickland v. Washington, 466 U.S. 668, 689

(1984). Unless appellant can prove both prongs, an appellate court must not find counsel’s

representation to be ineffective. Lopez, 343 S.W.3d at 142.

       We must make a “strong presumption that counsel’s performance fell within the wide

range of reasonably professional assistance.” Id. To find counsel was ineffective, counsel’s

deficiency must be affirmatively demonstrated in the record, and we must not engage in

retrospective speculation. Id. When such direct evidence in not available, we will assume that

counsel had a strategy if any reasonably sound strategic motivation can be imagined. Id.

       The court of criminal appeals has made clear that, in most cases, a silent record which

provides no explanation for counsel’s actions will not overcome the strong presumption of

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reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Further,

counsel should ordinarily be accorded the opportunity to explain his actions before being

denounced as ineffective. Menefield v. State, 363 S.W3d 591, 593 (Tex. Crim. App. 2012).

Because the reasonableness of trial counsel’s choices often involve facts that do not appear in the

appellate record, an application for writ of habeas corpus is the more appropriate vehicle to raise

ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002).

       Here, appellant did not file a motion for new trial and thus the record is silent as to trial

counsel’s reasons for not making the objections to evidence appellant believes he should have

made. Because the record provides no explanation for counsel’s actions or inactions, appellant

has not met his burden of overcoming the strong presumption of reasonable assistance. See

Lopez, 343 S.W.3d at 143–44 (concluding silent record failed to show deficient performance by

trial counsel who failed to object to outcry-witness testimony and opinion testimony on witness’s

credibility); Menefield, 363 S.W.3d at 593 (concluding silent record failed to show deficient

performance by trial counsel who failed to object, on confrontation grounds, to lab report when

analyst conducting test did not testify). We overrule the first issue.

       In issues two and three, appellant complains the trial court committed fundamental error

with respect to two of the same issues he raised as ineffective assistance of counsel. Specifically,

he contends the trial court erred by (1) allowing the prosecutor, while reading the indictment to

the jury, to ask appellant, “Is that your name, sir,” to which appellant responded, “Correct”, and

(2) allowing the detective to testify he believed P.M. He argues that both complaints fall within

the “second category of rights” that are “not forfeitable” under Marin v. State, 851 S.W.2d 275,

278 (Tex. Crim. App. 1993), and therefore he did not need to object.




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       The court of criminal appeals has explained that rights not requiring an objection are a

“narrow exception” to the general rule that error must be preserved. See Grado v. State, 445

S.W.3d 736, 739 (Tex. Crim. App. 2014). In fact, almost all error––even constitutional error––

may be forfeited if the appellant failed to object. Fuller v. State, 253 S.W.3d 220, 232 (Tex.

Crim. App. 2008).

       Here, appellant makes no attempt to explain why these complaints are not forfeitable.

After considering the specific complaints, we see no reason why both should not require an

objection below. See Fuller, 253 S.W.3d at 232 (explaining that failure to object forfeits

complaints about admissibility of evidence, even if alleged error concerns constitutional right of

defendant); Stewart v. State, 473 S.W.2d 495, 497 (Tex. Crim. App. 1971) (concluding no error

presented when defendant failed to object below to arraignment in presence of jury).

Accordingly, neither issue is preserved. We overrule issues two and three.

       We affirm the trial court’s judgment.




                                                     /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
151567F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ANDRES HERNANDEZ, Appellant                        On Appeal from the 204th Judicial District
                                                   Court, Dallas County, Texas
No. 05-15-01567-CR        V.                       Trial Court Cause No. F12-62691-Q.
                                                   Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                       Justices Evans and Stoddart participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 19, 2016.




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