                                            OPINION
                                       No. 04-10-00050-CR

                                      Irene V. RODRIGUEZ,
                                             Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the 381st Judicial District Court, Starr County, Texas
                                     Trial Court No. 08-CR-89
                            Honorable Jose Luis Garza, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Steven C. Hilbig, Justice (concurring in the judgment only)

Delivered and Filed: December 15, 2010

AFFIRMED

           Appellant, Irene V. Rodriguez, is a notary public. A jury found appellant guilty of

holding herself out as an attorney, and the trial court assessed punishment at ten years’

confinement, probated, and a $1,000 fine. On appeal, appellant challenges the legal and factual

sufficiency of the evidence in support of the verdict, and she asserts the trial court erred in

overruling her motion for new trial. We affirm.
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                                SUFFICIENCY OF THE EVIDENCE

       The indictment alleged appellant “with intent to obtain an economic benefit for herself

held herself out as a lawyer, to-wit: by stating that she was a lawyer that knew how to process

immigration applications, and [she] was not then and there licensed to practice law in this state,

another state or foreign country.” Appellant asserts the evidence is legally insufficient because

the State failed to offer any evidence that she held herself out as a lawyer who “knew how to

process immigration applications,” and the State failed to offer any evidence that she committed

the relevant conduct with the intent to obtain an economic benefit for herself. Appellant asserts

the evidence is factually insufficient because the great weight and preponderance of the contrary

evidence demonstrates the jury’s verdict was clearly wrong and manifestly unjust.

       There is “no meaningful distinction between the Jackson v. Virginia legal-sufficiency

standard and the Clewis factual-sufficiency standard.” See Brooks v. State, No. PD-0210-09,

2010 WL 3894613, at *8, 14 (Tex. Crim. App. Oct. 6, 2010) (overruling Clewis). Accordingly,

we will apply the same standard of review to all of appellant’s sufficiency complaints. That

standard requires us to determine whether after considering all the evidence in the light most

favorable to the verdict was a jury rationally justified in finding guilt beyond a reasonable doubt.

Id. at *8. The standard of review is the same in both direct and circumstantial evidence cases.

Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

A.     Holding Herself Out As a Lawyer

       Appellant is a notary public who maintains an office in Rio Grande City, Texas. She is

not an attorney. Genaro Esparza testified he went to see appellant at her office in March 2000

because he needed help with immigration proceedings for his wife and children. Esparza said he

did not know anything about immigration and a friend of his told him appellant was an attorney.



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He stated that when he first met with appellant and told her he needed immigration help,

appellant told him she could help, “that she was an attorney and that she was authorized to work

on immigration papers.” Esparza continued to consider appellant his attorney through 2006

because she told him she was an attorney when they first met. In May 2005, Esparza went to

speak with appellant because his son’s visa had expired and the visas held by his wife and other

children were going to expire. Appellant told him “we were going to need more money.” When

Esparza went home and told his family about this conversation, his family cautioned him that

appellant was not an attorney. Later, Esparza expressed this concern to appellant and, according

to Esparza, appellant “told [him] she was an attorney and she gave me this [business] card so that

I could be at ease.” The business card does not state appellant is an attorney, but instead, reads:

“Rodriguez Immigration & Office Services.” In January 2006, Esparza decided to terminate the

relationship with appellant. He went to her office and asked for his paperwork, which she

refused to provide. When he made a second visit to her office, she gave him his documentation.

He did not look for another attorney to help him because he had no money.

       On appeal, appellant concedes this evidence provides some proof for a portion of the

indictment’s allegation; but, she contends there is no proof that she stated she was a lawyer who

knew how to process immigration applications.        According to appellant, the processing of

immigration applications falls within the sole discretion of the United States government.

Therefore, appellant contends there is no evidence to suggest she held herself out as a lawyer in

the manner alleged in the indictment.

       We disagree with appellant’s argument that failure to prove she actually stated she was a

lawyer who “knew how to process immigration forms” rendered the evidence insufficient.

“[W]hen faced with a sufficiency of the evidence claim based upon a variance between the



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indictment and the proof, only a ‘material’ variance will render the evidence insufficient.”

Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). This is because the sufficiency of

the evidence is measured by a hypothetically correct jury charge, and the hypothetically correct

jury charge “will take into consideration the fatal variance doctrine and . . . [a]llegations giving

rise to immaterial variances may be disregarded in the hypothetically correct charge.” Id.; see

also Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (holding sufficiency of

evidence is measured by hypothetically correct jury charge). A hypothetically correct charge

“would be one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability and adequately describes the particular offense for which the defendant was tried.”

Malik, 953 S.W.2d at 240.

       Here, the essential elements of the charged offense are: (1) a person, not “currently

licensed to practice law in this state, another state, or a foreign country and [who is not] in good

standing with the State Bar of Texas and the state bar or licensing authority of any and all other

states and foreign countries,” “with intent to obtain an economic benefit for” herself, (2) held

“herself out as a lawyer.” TEX. PENAL CODE ANN. § 38.122(a) (West 2003). The manner or

means by which a person holds herself out as a lawyer—in this case, as someone who can

process immigration forms—is not material and, therefore, would not be included in a

hypothetically correct charge.    Accordingly, the State was not required to prove appellant

actually stated she was a lawyer who processed immigration forms.

       Appellant also contends the overwhelming weight of the following evidence is contrary

to the verdict. Appellant submitted into evidence a copy of a form signed by Esparza’s wife on

April 9, 2003, which was written in Spanish and stated, in part, that “[t]his office is not



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responsible for any type of legal representation or legal service.” Michael Aguirre, an assistant

attorney general with the Texas Attorney General’s office, testified appellant was the defendant

in a lawsuit filed by the AG’s office in 2007. Prior to that suit, the AG’s office conducted an

investigation of appellant, pursuant to which the AG’s office confirmed appellant was not an

attorney licensed in Texas, another state, or another country. Aguirre stated that in Mexico a

“notario publico” is a licensed attorney; therefore, to prevent confusion among Spanish-speaking

individuals, a notary public in Texas is not allowed to advertise as a “notario publico.” Aguirre

said his investigation did not reveal that appellant advertised as a “notario publico,” nor did the

building outside her office have any signage indicating she was an attorney. When asked if he

had ever seen a document that appellant signed “as a lawyer,” he responded that he had. Aguirre

thought the document was an immigration form sent to the INS and, although he could not recall

the precise language on the form, he thought the form included a clause “that states attorney

represents - - representing you” and it had appellant’s notary stamp. Aguirre agreed one does not

have to be a lawyer to fill out an immigration form, but it is against the law in Texas for a notary

public to complete an immigration form.

       Rozanne Lopez, an investigator for the AG’s office, testified she made an appointment

with appellant under an assumed name and carrying a hidden audio/video recorder. In late 2005

and early 2006, she met with appellant under the pretext of being married to a man who was a

naturalized citizen who had a brother living in Mexico trying to get into the United States. She

paid a $20.00 fee for an initial consultation. Appellant told Lopez how the process worked, that

she (appellant) would prepare the documentation, and file the documents with INS. While Lopez

was waiting in the lobby of appellant’s office, she heard some people ask to “speak to the




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licenciada Irene Rodriguez.” 1 She said the lobby wall had several framed letters “from people

[for whom appellant] had provided an immigration service,” and thanking her for services

provided. However, Lopez said there were no signs using the words “notario publico” or

indicating appellant was a lawyer or that she was offering legal advice.

           Once inside appellant’s office, Lopez said there was a plaque on the wall behind where

appellant sat stating in English that she was not a lawyer. Lopez asked appellant about a divorce

and appellant said she did not handle divorces and she could refer Lopez to a lawyer. When

Lopez asked appellant about preparing a will, appellant told her the forms could be printed out

and she (Lopez) could complete the form. Lopez said none of the documents recovered from

appellant’s office indicated she was a “notario publico,” a lawyer, or offering legal services.

           However, “the jury is the exclusive judge of the credibility of witnesses and of the weight

to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the

evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Here, despite the

lack of signage stating she was a lawyer or a “notario publico,” the jury apparently believed

appellant held herself out to Esparanza as an attorney.

B.         Obtaining a Benefit for Herself

           Appellant next contends the evidence is insufficient because any conduct for which she

was paid in 2000 through 2004 fell outside the limitations period, 2 and her 2005 statement that

she would “probably” need more money is nothing more than hypothetical speculation and fails

to show how any payment of more money placed her in a more advantageous position.



1
    “Licenciado” is Spanish for a “title given to lawyers.”
2
  The felony indictment for this offense had to be brought within three years from the date of the commission of the
offense. TEX. CODE CRIM. PROC. ANN. art. 12.01(7) (West Supp. 2010). The indictment, dated April 1, 2008,
alleged the offense occurred on or about May 31, 2005.

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       We do not agree that the State had to prove appellant was placed in a more advantageous

position. Texas Penal Code section 38.122 does not define “economic benefit,” but section

38.01 defines the term to mean “anything reasonably regarded as an economic gain or advantage,

including accepting or offering to accept employment for a fee, accepting or offering to accept a

fee, entering into a fee contract, or accepting or agreeing to accept money or anything of value.”

TEX. PENAL CODE ANN. § 38.01(3). The word “benefit” is defined in the Introductory Provisions

of the Penal Code as “anything reasonably regarded as economic gain or advantage, including

benefit to any other person in whose welfare the beneficiary is interested.” Id. § 1.07(a)(7).

Therefore, we review the record for evidence of whether appellant held herself out as a lawyer

with the intent to obtain an economic gain or advantage.

       When Esparanza first met with appellant, he paid a $20.00 consultation fee. After

explaining his immigration problems to her, he and appellant agreed he would pay her $2,500 to

begin the immigration paperwork; and, between March 2000 and June 2000, he paid the fee in

installments. He paid another “consultation fee” in March 2001.           At some point in time,

Esparanza asked appellant what could be done for “two men of age,” and she said that for

$450.00 each “she could get . . . a work permit for them.” Although the purpose of further

payments is not clear from the record, the record indicates that in 2002, appellant was paid a total

of $2,070; in 2003, she was paid a total of $1,650; and in 2004, she was paid $30 to “consult”

with Esparza’s son about his visa. In May 2005, because his son’s visa had expired and the visas

held by his wife and other children were going to expire, he went again to speak with appellant.

Appellant told him “we were going to need more money.” This statement indicates appellant did

not provide her services for free.




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       We conclude the evidence is sufficient to establish that appellant intended to obtain an

economic benefit for herself by assisting appellant and his family with their immigration

proceedings. Satterwhite v. State, 979 S.W.2d 626, 628 (Tex. Crim. App. 1998) (holding record

reflected appellant intended to obtain economic benefit for himself by representing client).

                                   IN PARI MATERIA DOCTRINE

       In her third issue, appellant argues the doctrine of in pari materia barred her conviction

on the charged offense.      Appellant asserts the Penal Code section under which she was

prosecuted is in pari materia with a special statute of similar purpose providing for a lesser

punishment under the same fact scenario.

       We conclude this complaint has been waived because it was not brought to the trial

court’s attention until appellant filed her amended motion for new trial. To preserve a complaint

for review, a party must present a timely request, objection, or motion stating the specific

grounds for the desired ruling if such grounds are not apparent from the context of the request,

objection, or motion. See TEX. R. APP. 33.1(a)(1). In particular, to challenge the substance of an

indictment under the in pari materia doctrine, a defendant must object before trial to preserve the

complaint on appeal. See TEX. CODE CRIM. PROC. ANN. art 1.14(b) (Vernon 2005); see also

Short v. State, 995 S.W.2d 948, 953 (Tex. App.—Fort Worth 1999, pet. ref’d) (holding failure to

raise in pari materia claim before trial waives the complaint for appellate review).

                                        JUROR MISCONDUCT

       Appellant next contends juror deceptiveness and misconduct deprived her of a fair and

impartial trial. During voir dire, the prosecutor asked if anyone knew the appellant. Veronica

Trevino, who later became the foreperson, did not respond. Veronica’s sister, Leonor Trevino,

was a former employee of appellant.



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        In support of her motion for new trial, appellant attached the affidavit 3 of Ninfa

Velasquez, who stated she is acquainted with appellant and attended the criminal trial.

Velasquez said Leonor left appellant’s employ “on unfavorable terms,” and Leonor told her

appellant “was too strict with her and she decided to quit her job.” Velasquez was “of the belief

that because of these unfavorable terms [Leonor] has a natural bias and prejudice against”

appellant. Velasquez alleged that “prior to this criminal trial . . . Leonor spoke against the case,

against [appellant], and that she was hoping the case would go against” appellant. She described

Veronica and Leonor as a “close knit family.” She believed “that Veronica had personal inside

knowledge of the workings and mechanics of [appellant’s] business which influenced Veronica’s

verdict in this case.”

        Appellant bore the burden of proving the allegation of juror misconduct. Hughes v. State,

24 S.W.3d 833, 842 (Tex. Crim. App. 2000). Neither Velasquez nor Veronica was called as a

witness at the new trial hearing. Even if Velasquez’s affidavit established bias on the part of

Leonor, appellant points to nothing in the record that indicates Veronica held any bias or

influenced the other jurors in any way. We cannot speculate as to the prejudice, if any, of the

juror in favor of or against appellant. 4 Therefore, based on this record, we conclude appellant

did not establish the trial court abused its discretion for denying appellant’s motion for new trial

on the basis of juror misconduct.




3
    Although a trial court may receive evidence by affidavit, the affidavit is not considered evidence unless it is
offered into evidence at the hearing on the motion. Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009).
Velasquez’s affidavit was not offered into evidence during the new trial hearing, and therefore, was not before the
trial court. Nevertheless, we consider the merits of appellant’s complaint.
4
   At the new trial hearing, appellant’s attorney stated he did not have a conversation with Veronica and he agreed
with the State’s argument that whether Veronica was influenced by her sister would be speculative.

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                                INEFFECTIVE ASSISTANCE OF COUNSEL

        Finally, appellant contends she received ineffective assistance of counsel for a number of

reasons. We review an appellant’s claim of ineffective assistance of counsel under the well-

established standard of review.           See Strickland v. Washington, 466 U.S. 668, 690 (1984);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reviewing court cannot

speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must

presume that the actions were taken as part of a strategic plan for representing the client. See

Young v. State, 991 S.W.2d 835, 837–38 (Tex. Crim. App. 1999). The appellate record must

affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State,

101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813. Generally, the trial

record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9

S.W.3d at 813–14. Here, we have the record from the new trial hearing. Although appellant’s

trial attorney filed an affidavit 5 that was attached to the motion for new trial, counsel did not

testify at the hearing.

        Appellant first asserts that if this court finds the in pari materia argument to have been

waived, then counsel was ineffective for failing to raise the objection. This complaint calls for

speculation about why counsel did not object. On appeal, appellant contends there could be no

possible trial strategy for not objecting because the objection goes to the trial court’s jurisdiction.

However, we note that no Texas court has yet considered whether the two statutes at issue here

are in pari materia. “Ignorance of well-defined general laws, statutes and legal propositions is

not excusable and such ignorance may lead to a finding of constitutionally deficient assistance of

counsel, but the specific legal proposition must be ‘well considered and clearly defined.’” Ex

5
   Counsel’s affidavit was not offered into evidence during the new trial hearing, and therefore, was not before the
trial court. See Rouse, 300 S.W.3d at 762.


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parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005). It is universally recognized that

because “the law is not an exact science and it may shift over time,” “an attorney is not liable for

an error in judgment on an unsettled proposition of law . . . .” Id. “[L]egal advice which only

later proves to be incorrect does not normally fall below the objective standard of reasonableness

under Strickland.” Id. at 359. “[C]ounsel’s performance will be measured against the state of

the law in effect during the time of trial and we will not find counsel ineffective where the

claimed error is based upon unsettled law.” id. (citation omitted); see also Ex parte Smith, 296

S.W.3d 78, 81 (Tex. Crim. App. 2009) (counsel not ineffective because proper construction of

statute was unresolved and unclear). Because no caselaw exists to guide counsel on whether the

two statutes are in pari materia, we cannot say counsel was ineffective for failing to raise the

objection.

        Appellant next asserts counsel was ineffective because he failed to object to prejudicial

evidence of the Texas Attorney General’s civil suit against appellant and because counsel failed

to ask for a limiting instruction once the evidence was admitted. When the State called Michael

Aguirre to the stand, he was asked how he knew appellant. Aguirre responded that appellant was

a “defendant in the lawsuit that the Attorney General filed . . . .,” and that he investigated her at

that time. Defense counsel did not object. Although defense counsel filed an affidavit, he did

not explain his strategy or concede he was ineffective for failing to object or ask for a limiting

instruction. This complaint asks the court to speculate about counsel’s trial strategy, something

we may not do. Also, although appellant complains about Aguirre’s testimony, her sufficiency

of the evidence argument relies in large part upon the results of the investigation the AG’s office

conducted for the civil trial.




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        Appellant next complains counsel was deficient because he did not request a jury charge

on limitations. This complaint again asks for this court to speculate. Also, appellant has not

established she would have been entitled to such an instruction if one had been requested.

Finally, appellant contends counsel’s cumulative errors prejudiced her defense. Because we

conclude appellant did not meet her burden of establishing individual instances of ineffective

assistance of counsel, we hold that she cannot show an adverse cumulative effect from the

actions of trial counsel. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)

(while a number of errors may become harmful in their cumulative effect, non-errors cannot

become error cumulatively). Therefore, the trial court did not err in denying appellant’s motion

for new trial on this basis.

        Appellant’s other two grounds for complaining of the trial court’s denial of her motion

for new trial are that the evidence is insufficient and the interests of justice demand a new trial.

Based on the above discussion, we conclude these complaints are without merit.

                                             CONCLUSION

        We overrule appellant’s complaints on appeal and affirm the trial court’s judgment.


                                                  Sandee Bryan Marion, Justice

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