Opinion filed November 21, 2013




                                    In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-11-00366-CR
                                  __________

                 LARRY SEGUNDO REYES, Appellant

                                      V.

                    THE STATE OF TEXAS, Appellee


                     On Appeal from the 29th District Court
                          Palo Pinto County, Texas
                         Trial Court Cause No. 14294


                     MEMORANDUM OPINION
      The jury convicted Larry Segundo Reyes of the felony offense of failing to
comply with sex offender registration requirements. Appellant entered a plea of
true to the enhancement allegation, and the trial court assessed punishment at
confinement for fifteen years and a fine of $3,000. In three issues on appeal,
Appellant complains that the trial judge was disqualified to hear this case, that the
prosecutor engaged in prosecutorial misconduct, and that his trial lawyer provided
him ineffective assistance of counsel. We affirm.
      In 1995, Appellant was charged with unlawfully carrying a weapon while on
licensed premises. The trial court ultimately deferred adjudicating his guilt for that
offense and placed him on community supervision. Before Appellant successfully
completed his period of community supervision, the State filed a motion to revoke
Appellant’s community supervision and to proceed to adjudication. The State
alleged several violations: operating a motor vehicle with a suspended license,
fleeing from a police officer, and sexually assaulting a child under fourteen. In
1999, the trial court revoked Appellant’s community supervision and adjudicated
his guilt on the original offense related to the weapon charge. Appellant pleaded
guilty to aggravated sexual assault of a child under fourteen, and in accordance
with a plea bargain, the trial court found him guilty and assessed his punishment at
confinement for ten years.
      Because of the sexual assault conviction, Appellant was required by law to
register as a sex offender for life. Appellant committed the offense that is involved
in this appeal when he failed to adhere to the sex offender registration
requirements.
      In his first issue, Appellant contends that the trial judge was disqualified
because the trial judge was “‘of counsel for the State’ as the state’s attorney in the
underlying [conviction] requiring registration.” He was also the prosecutor who
prosecuted the weapons case that was used to enhance punishment.
      The constitutional and statutory grounds for disqualification of a judge are
mandatory and exclusive and may be raised at any time. TEX. CONST. art. V, § 11;
TEX. CODE CRIM. PROC. ANN. art. 30.01 (West 2006); Gamez v. State, 737 S.W.2d
315, 318 (Tex. Crim. App. 1987). A judge is disqualified by statute from presiding
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over any case “where he has been of counsel for the State.”            CRIM. PROC.
art. 30.01. Similarly, a judge is disqualified under the Texas Constitution if he has
“been counsel in the case.” TEX. CONST. art. V, § 11.
      Under these provisions, a judge is clearly disqualified if he “actively
participated in the preparation of the case against the defendant.” Gamez, 737
S.W.2d at 319. But the statutory and constitutional prohibition “against a judge
hearing a case in which he has acted as counsel requires that he actually have
participated in the very case which is before him.” Id. (citing Holifield v. State,
538 S.W.2d 123 (Tex. Crim. App. 1976)). “A judge is not disqualified from sitting
because he was counsel in other prosecutions against the accused, even if those
prosecutions resulted in convictions which are alleged in the indictment for the
purpose of enhancement of punishment in the event of conviction of the primary
offense.” Id. at 319 n.6.
      Here, the trial judge was neither statutorily nor constitutionally disqualified
because he was not “counsel in the case.” The trial judge was the district attorney
in 1999 when Appellant’s guilt was adjudicated for the weapons offense and when
Appellant was convicted of aggravated sexual assault of a child. The trial judge’s
role as district attorney in the underlying conviction requiring sex offender
registration and his role in the conviction that was used to enhance punishment
does not come within the meaning of “counsel in the case” as is constitutionally
and statutorily prohibited. Appellant’s first issue is overruled.
      In his third issue, Appellant argues that the State committed prosecutorial
misconduct because it was aware that the trial judge in this case was the district
attorney in 1999. Appellant asserts, “By ignoring it, [the prosecutor] condoned the
judge’s choice to go forth with Mr. Reyes’[s] trial, and by condoning that action,
he accepted the possible consequences.” As discussed above, the trial judge was
not disqualified. Appellant’s third issue is overruled.
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      In his second issue, Appellant argues that, for multiple reasons, he was
denied his Sixth Amendment right to effective assistance of counsel. To determine
whether Appellant’s counsel rendered ineffective assistance at trial, we must first
determine whether Appellant has shown that his counsel’s representation fell
below an objective standard of reasonableness and, if so, then determine whether
there is a reasonable probability that the result would have been different but for
his counsel’s errors.   Strickland v. Washington, 466 U.S. 668, 687 (1984);
Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Hernandez v.
State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986). A reasonable probability is
a probability sufficient to undermine confidence in the outcome of the trial.
Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55. We must indulge a
strong presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance, and Appellant must overcome the presumption that, under
the circumstances, the challenged action could be considered sound trial strategy.
Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App.
2000). An allegation of ineffective assistance of counsel must be firmly founded
in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
      Appellant first contends that counsel’s performance at trial was deficient
because counsel failed to move to disqualify the trial judge based on his
involvement in the prior cases. Because the trial judge was not statutorily or
constitutionally disqualified, we cannot conclude that trial counsel’s failure to
object on these grounds fell below the reasonable standard of care.
      Appellant next contends that trial counsel provided ineffective assistance
when she did not object to the admissibility of the “pen packet” that contained both
prior convictions.   Appellant argues that the pen packet was not sufficiently
authenticated because, although the pen packet itself was certified by the custodian
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of records, “not all of the documents [in the pen packet] were certified” by the
district clerk. Appellant cites Dingler v. State to support his proposition that each
of the documents contained in the pen packet must be separately authenticated by
the clerk of the convicting court. See Dingler v. State, 723 S.W.2d 806 (Tex.
App.—Tyler 1987), pet. dism’d, 768 S.W.2d 305 (Tex. Crim. App. 1989).
However, in Reed, the Court of Criminal Appeals overruled Dingler and concluded
that a Texas Department of Criminal Justice Institutional Division record clerk’s
certification of the copies of the judgment is sufficient to authenticate the judgment
of a prior conviction under TEX. R. EVID. 901. See Reed v. State, 811 S.W.2d 582,
584, 586 (Tex. Crim. App. 1991).
      “The requirement of authentication or identification as a condition precedent
to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” TEX. R. EVID. 901. In Reed, the
records clerk certified that the copies in the pen packet were “full, true and correct .
. . cop[ies].” Reed, 811 S.W.2d at 587. The Court of Criminal Appeals held that
“the TDCJID record clerk’s certification of the pen packet copies of the judgment
and sentence constitutes sufficient extrinsic evidence that the copies are authentic.”
Id. The court explained that, in addition, “[t]he fact that the records are copies of
those upon which TDCJID relies in admitting and detaining prisoners at the state
correctional facility constitutes extrinsic evidence that the records are what the
proponent claims them to be.”         Reed, 811 S.W.2d at 587 (citing TEX. R.
EVID. 901(a)).
      Here, Vanessa Jones attested that she was the Chairman of Classification
and Records for TDCJID and that she was “personally acquainted with the facts
herein stated.” Jones certified that the documents attached to her affidavit “are true
and correct copies of the original records now on file in [her] office.”
Additionally, both of the judgments contained in the pen packet were certified by
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the district clerk. We conclude that the TDCJID record chairman’s certification of
the pen packet constitutes sufficient extrinsic evidence that the copies are
authentic. See id. Because the pen packet was sufficiently authenticated under
Rule 901, trial counsel did not provide ineffective representation when she did not
object on authentication grounds.
      Appellant also argues that the affidavit is not sufficient as a business record
affidavit and that the State failed to comply with the notice provisions required for
a business record. Because we conclude that the pen packet was admissible under
Rule 901, we need not assess its admissibility as a business record.
      Appellant further maintains that trial counsel provided him with ineffective
assistance when she did not object to the use of the prior conviction for
enhancement purposes on the ground that the judgment does not reflect that
Appellant waived his right to a jury trial. The State argues that such a recital is not
necessary in this judgment because an accused is not entitled to a jury in a
proceeding to adjudicate guilt. We agree.
      When a judgment is attacked on direct appeal upon a claim that there is a
missing recital that a jury was waived, a jury waiver cannot be presumed from a
silent record. Samudio v. State, 648 S.W.2d 312 (Tex. Crim. App. 1983). But,
when “collaterally attacked, the judgments reflecting those convictions are
presumed to be regular, and the accused bears the burden of defeating that
presumption.” Williams v. State, 946 S.W.2d 886, 900 (Tex. App.—Waco 1997,
no pet.). The burden is on the party collaterally attacking the validity of the
conviction to show whether the record is indeed silent. West v. State, 720 S.W.2d
511, 519 (Tex. Crim. App. 1986). Although the judgment does not reflect that
Appellant waived his right to trial by jury, Appellant did not introduce “all the
papers” in the case to show “that no waiver was reflected in those records.” See id.


                                          6
We cannot, then, say that a failure to object on those grounds rendered trial
counsel’s representation ineffective.
      Finally, Appellant argues that trial counsel was ineffective when she did not
object to the admission of the prior conviction on the weapon charge. On appeal,
Appellant reasons that the State did not give sufficient notice of its intent to use the
prior conviction to enhance punishment.
      A defendant is entitled to notice “in some form” prior to trial that the State
intends to use a prior conviction to enhance punishment. Brooks v. State, 957
S.W.2d 30, 34 (Tex. Crim. App. 1997). The right to notice of the State’s intent to
offer evidence of prior convictions is rooted in due process. Villescas v. State, 189
S.W.3d 290, 293 (Tex. Crim. App. 2006). The “Court [of Criminal Appeals] no
longer requires that notice be provided by allegations in a charging instrument, nor
does it require that it be given prior to trial.” Ex parte Parrott, 396 S.W.3d 531,
537 (Tex. Crim. App. 2013). Indeed, if “a defendant receives notice after he has
been convicted, his due-process rights are not violated as long as notice is
sufficient to enable him ‘to prepare a defense to them,’ and he is afforded an
opportunity to be heard.” Id. (quoting Pelache v. State, 324 S.W.3d 568, 577 (Tex.
Crim. App. 2010)).
      Thirteen days before the trial in this case, the State filed its “Notice of Intent
to Use Prior Convictions to Enhance Punishment.” The notice reflected that the
State would allege the following during the punishment phase:
             That on the 26th day of March, 1999, in the 29th District Court
      of Palo Pinto County, Texas, in Cause No. 10193, styled The State of
      Texas vs. LARRY SEGUNDO REYES, prior to the commission of the
      primary offense alleged in the indictment in this cause, the defendant
      in this cause was convicted of the felony offense of Unlawfully
      Carrying a Weapon While on Licensed Premises, and said conviction
      became final prior to the commission of the primary offense alleged in
      the indictment in this cause.

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      At the beginning of the punishment hearing, the prosecutor read the above
paragraph to the trial court. We conclude that the State sufficiently gave notice of
its intent to offer evidence of the 1999 conviction by filing its notice thirteen days
before trial. Accordingly, trial counsel did not provide ineffective assistance of
counsel when she did not object to this evidence. The failure to object does not
constitute ineffective assistance of counsel if the evidence was not objectionable.
McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992).
      We have examined each of Appellant’s ineffective assistance claims. None
are well-taken, and Appellant’s second issue is overruled.
      We affirm the judgment of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


November 21, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J




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