Opinion filed October 11, 2012




                                               In The


   Eleventh Court of Appeals
                                            __________

                                      No. 11-10-00334-CR
                                          __________

                            JOSE LUIS VASQUEZ, Appellant

                                           V.
                                 STATE OF TEXAS, Appellee



                            On Appeal from the 358th District Court

                                        Ector County, Texas

                                 Trial Court Cause No. D-36,649


                             MEMORANDUM OPINION

       A jury convicted appellant, Jose Luis Vasquez, of aggravated sexual assault of a child
and assessed his punishment at confinement for fifty years in the Institutional Division of the
Texas Department of Criminal justice and a fine of $10,000. In two points of error, appellant
contends that he received ineffective assistance of counsel: (1) his counsel elicited testimony
from him about two prior felony convictions that were otherwise inadmissible, thereby adversely
affecting his credibility with the jury, and (2) his counsel failed to object to an officer’s statement
that the victim “was detailed enough about the incident that [the officer] believed what she was
saying.”
       Appellant urged these two issues in a motion for new trial. After a hearing that included
testimony from appellant’s trial counsel, the trial court denied appellant’s motion. We reverse
and remand.
                                        Background Facts
       M.V. was ten years old at the time of trial. Her mother had divorced her father and
married appellant when M.V. was a baby; she considered appellant her dad. She testified that
appellant began touching the private part between her legs a year or two earlier. Appellant did
that more than ten times; she did not remember how many times. However, she recalled the first
time. Appellant called her name while she was in the bedroom that she shared with her brother.
She went to the living room to see what appellant wanted and lay down with him. Appellant
began pulling her shorts down; she told him no and said that she wanted to go to sleep. But
appellant then pulled off her shorts and underwear and stuck his finger in her private part.
       M.V. said that made her mad. When appellant was finished, he told her to not tell her
mother, and she went back to bed. However, she did tell her mother the next morning. Her
mother talked to appellant, but he said he had done nothing. M.V. remembered the last time
appellant touched her because she had been to the July 4 fireworks. She was sleeping in her
room when appellant began calling her. M.V. ignored him, but appellant came in, picked her up,
laid her down on the sofa with him, and touched her private part again.
       M.V. testified that she, her mother, and her brother did not live with appellant at the time
of trial. She was afraid of appellant. Appellant had been mean to her, her mother, and her
brother. She remembered a time when her mother had given her brother permission to go
swimming. When her brother came home, appellant told him to cut the yard, but her mother said
that it was too hot for her brother to cut the yard. Her mother and appellant began arguing, the
police came, and her mother took her and her brother to her aunt’s house to stay.
       While at her aunt’s house, M.V. told her mother for a second time that appellant had been
touching her private part. She remembered that she was taken to a place called Harmony Home
to talk to a lady named Nicole about the touching. She admitted at trial that some of the things
she had told Nicole were wrong. For example, she told Nicole that appellant had touched her
two times because she could not remember how many times appellant had done it. Appellant’s
counsel thoroughly cross-examined M.V. about the inconsistencies between her trial testimony
and the Harmony Home interview.

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        M.V. stated that she knew that her mother did not believe her; her mother had said so the
day before. That made her feel sad and hurt. M.V. said that she was confused by all the
questions at Harmony Home and at times did not know what Nicole was asking her. However,
she maintained that she was telling the truth at trial.
        Detective Shelly Stanford with the Odessa Police Department’s family violence unit was
assigned to investigate the case involving appellant’s possible abuse of M.V.’s brother. Because
M.V.’s mother, who made the report, did not speak English, Detective Angie Reyes helped
Detective Stanford with the investigation. When Detective Reyes called M.V.’s mother about an
interview at Harmony Home for M.V.’s brother, the mother told her about the alleged abuse of
M.V. The mother gave Detective Reyes two statements in Spanish: one concerning the alleged
assault of M.V.’s brother by appellant and one concerning the possible sexual abuse of M.V. by
appellant.
        Detective Stanford acknowledged that a sexual assault examination of M.V. at the
Medical Center Hospital yielded no physical evidence to support her claim of sexual abuse.
Detective Stanford added, however, that physical evidence is lacking in the vast majority of
sexual abuse cases.
        Christin Abbott-Timmons, nursing director and sexual assault coordinator at the hospital,
introduced M.V.’s medical record and testified about the examination of M.V. The record
reflected that M.V. told the nurse, “[M]y dad touched me on my middle. He put his finger in
there.” Nurse Abbott-Timmons explained that a tear in the female sexual organ will heal in two
days; therefore, unless digital penetration is very forceful, there will be no evidence that anything
happened. The medical record concluded that no genital trauma was noted.
        Shawndee Kennedy was the lead forensic interviewer at Harmony Home Children’s
Advocacy Center in Odessa. She explained that if a mother or a big brother does not believe a
child the first time that child tells about sexual abuse, it is rare if the child ever tells anyone about
the abuse again. Often, the child will recant. After the video of M.V.’s interview was played for
the jury, Kennedy explained that the interview was poorly done and that was why M.V. was
confused during the interview. For example, when Nicole asked M.V. her age, M.V. said she
was eight years old. When Nicole immediately asked the same question again, M.V. said that
she was nine. Kennedy stated that, if the interviewer asks a child the same question one right
after the other, the child will assume that he or she did not give the answer the interviewer was
seeking.
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       The mother of M.V. testified for the defense, using an interpreter. She described her call
to the police, telling the police how appellant had mistreated M.V.’s brother. When the police
said that they wanted to take M.V.’s brother to Harmony Home for an interview, she asked M.V.
if appellant had mistreated her. After M.V. told her about appellant’s sexual abuse, she gave a
statement to the police that the second outcry was the first time she had learned of the abuse. At
trial, she testified that M.V. had told her about the abuse much earlier. M.V.’s mother explained
that she thought she would be in trouble for not reporting the abuse years earlier.
       M.V.’s mother said that she had confronted appellant the day after the first assault, but
he denied that it had occurred. She waited until he had had a couple of drinks before confronting
him because he was always nicer after he had a few drinks. After his denial, she put a lock on
M.V.’s bedroom door and slept on the sofa for a few nights. Because she never saw appellant go
into M.V.’s bedroom, she concluded that the abuse had never happened. She acknowledged that,
until this trial, neither she nor M.V.’s brother had believed M.V. She added that, even if
appellant were released from jail, she would not go back to him because her son had said he
would kill himself if she stayed with appellant.
       Over objection by the State, the son and daughter of appellant, as well as his former wife,
testified that they never observed appellant have anything but a good, normal relationship with
M.V.
       Appellant testified that he and M.V.’s mother began living together in 2000 when M.V.
was four months old.       His counsel then briefly questioned appellant about any felony
convictions. Appellant said that he had been convicted of a felony driving while intoxicated,
third offense, in 2001 but that he had successfully completed eight years of probation that had
never been revoked.      He also mentioned his 1999 felony conviction for possession of a
controlled substance, stating that the court sent him to a drug rehabilitation institution for nine
months and then discharged him.
       Appellant explained his problems with M.V.’s brother.            His version was that the
youngster needed discipline but that his wife would not let him provide that discipline. He
related one story concerning how the boy had been extremely disrespectful to his teachers; he
was spanking the boy when his wife stopped him.
       During cross-examination, appellant admitted that his relationship with M.V.’s brother
had been rocky from the beginning, but appellant thought he had a good relationship with M.V.
The prosecutor then questioned him about the two felony convictions. Appellant admitted that,
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in the felony driving while intoxicated case, he had first received five years’ probation that was
extended to eight years. He also admitted that he had received deferred adjudication for the
cocaine possession offense. Because he violated his probation rules, the court sent him to a drug
rehabilitation facility and also ordered him to spend nine months in the county jail, which he had
failed to mention. Appellant subsequently had another probation violation, and he stated that he
was allowed to plead to a misdemeanor conviction that ended his deferred adjudication. But the
State pointed out that the trial court had revoked his deferred adjudication probation and entered
a judgment convicting him of possession of cocaine, a state jail felony.
         Appellant consistently denied that he had ever touched M.V. inappropriately.            He
acknowledged that he heard M.V.’s mother testify that she did not believe M.V. until the
previous day. He also acknowledged that he heard the mother testify that M.V.’s brother did not
believe M.V.
         In closing argument, the State argued that appellant “lied to you [the jury] time and time
again.” The State pointed out that appellant said he was on probation for eight years and never
had his probation revoked. Yet the truth was that the trial court first placed him on probation for
five years, subsequently found that he violated his probation conditions, and then extended his
probation to eight years. As to his felony possession conviction, the State reminded the jury that
appellant first testified that he had gone to a drug rehabilitation facility and then the charge was
dismissed. The State stated that appellant had later acknowledged that his probation had been
revoked and that, after he spent time in the rehabilitation facility, he also spent nine months in
jail as a result of the revocation. Appellant had a final conviction for a state jail felony,
possession of a controlled substance, and he had tried to minimize the conviction.
         From the verdict, it is clear that the jury believed M.V. and doubted appellant’s
credibility.
                                 Hearing on Motion for New Trial
         Appellant’s appellate counsel filed a motion for new trial, contending that appellant had
received ineffective assistance of counsel at trial. Appellate counsel asserted that trial counsel
had erroneously impeached appellant by asking appellant about felony convictions that were
inadmissible under TEX. R. EVID. 609 and that counsel’s errors prevented appellant from having
a fair trial.
         Trial counsel for appellant was an experienced defense attorney and testified that the case
pivoted on the credibility of appellant versus the credibility of the child. Because of that, he
                                                  5
wanted appellant to appear to be as open and honest as possible. Having tried over fifty criminal
cases, it was counsel’s opinion that, if a jury believes a defendant is lying or hiding something,
that jury will convict the defendant whether the defendant is guilty or not. In addition to
attempting to demonstrate that appellant was honest, trial counsel’s strategy was to attack the
credibility of M.V.    He therefore pointed out the inconsistencies between the child’s trial
testimony and her statements during the Harmony Home interview. Trial counsel called the
mother as a witness because she had not believed her daughter.
       Trial counsel believed that the State would be able to introduce the felony driving while
intoxicated during cross-examination and that it would be better to preempt that subject.
Pursuing his strategy, trial counsel said that was why he began the defense by having appellant
acknowledge his felony convictions.
       Trial counsel admitted that he had not been aware of Rule 609(c)(2). That rule provides
that a felony conviction is not admissible if the person has satisfactorily completed his probation
and has not been convicted for a subsequent felony or crime that involved moral turpitude.
Although the felony driving while intoxicated conviction was within ten years of trial, appellant
had completed his probation and had no subsequent convictions thereafter.
                                          Analysis
       Appellant was entitled to reasonably effective assistance of counsel. See U.S. CONST.
amend. VI; TEX. CONST. art. I, § 10. The right to counsel, however, does not mean the right to
errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prove
ineffective assistance of counsel, appellant must show that (1) counsel’s performance fell below
an objective standard of reasonableness and (2) because counsel’s performance fell below that
objective standard, there is a reasonable probability that the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Mallett v. State, 65 S.W.3d
59, 62–63 (Tex. Crim. App. 2001). A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.
Crim. App. 1986).
       In Robertson, the Court of Criminal Appeals held that trial counsel’s performance was
deficient under the first prong of Strickland for eliciting testimony from Robertson during
guilt/innocence that he was incarcerated on two convictions that were pending on appeal; the
convictions were thus inadmissible under Rule 609. Appellant contends that neither his 1999


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felony conviction for possession of cocaine nor his 2002 felony DWI conviction was admissible
under Rule 609. We agree.
       Rule 609(a) provides that, for impeachment purposes, evidence that a witness has been
convicted of a crime that was a felony or involved moral turpitude is admissible if the court
determines that the probative value of admitting this evidence outweighs its prejudicial effect.
But Rule 609(b) establishes a time limit. Evidence of a conviction is not admissible under
Rule 609 if a period of more than ten years has elapsed since the date of the conviction or the
date of release of the witness from confinement, whichever is later, “unless the court determines,
in the interests of justice, that the probative value of the conviction supported by specific facts
and circumstances substantially outweighs its prejudicial effect.”
       In appellant’s possession of cocaine case, the trial court entered its deferred adjudication
order on March 11, 1997. The trial court entered its judgment adjudicating guilt on May 7, 1999.
In that judgment, appellant was sentenced to one year in the Ector County Jail, with credit for
243 days in jail. The State did not challenge appellant’s assertion that his confinement ended in
1999, which was more than ten years before this case began on August 18, 2010. It was
appellant, not the State, that introduced this conviction at trial. Therefore, the court was not
asked to determine if the probative value of the conviction outweighed its prejudicial effect.
Based on the record, it appears that evidence of appellant’s conviction for possession of cocaine
was inadmissible.
        In Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993), the Court of
Criminal Appeals held that there was no distinction between a probation period that has expired
and one that has been satisfactorily completed; therefore, if the witness has not been
subsequently convicted of a felony or a crime involving moral turpitude, Rule 609(c) provides
that the prior conviction is not admissible for impeachment purposes. The record in this case
reflects that appellant completed eight years of probation for his felony DWI conviction without
a revocation of his probation. Therefore, appellant’s felony DWI conviction was inadmissible as
evidence under Rule 609(c)(2).        Appellant has satisfied the first prong of Strickland v.
Washington.
       We turn next to the second prong: whether appellant has shown that there exists a
reasonable probability that the result of the trial might have been different but for trial counsel’s
deficient performance. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). A
reasonable probability is one sufficient to undermine confidence in the outcome.            Id. We
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examine counsel’s errors not as isolated incidents, but in the context of the overall record.
Ex parte Menchaca, 854 S.W.2d at 132.
         Defense counsel opened the door for the State to cross-examine appellant about the two
felony convictions. The State’s cross-examination was effective: appellant admitted that he had
originally received five years probation for his felony DWI conviction, not eight years; that the
court had extended his probation because of his probation violations; that he had two previous
DWIs; that he had received deferred adjudication for his possession of cocaine conviction; that
he had violated that probation and was ordered to spend nine months in jail in addition to time in
the drug rehabilitation facility; and that the trial court had not released him from probation as he
had testified but, instead, had revoked his deferred adjudication and entered judgment convicting
him of possession of cocaine.
         In closing argument, the State reminded the jury of the omissions and misstatements that
appellant had made concerning his two felony convictions. The implication was, of course, that
appellant was not to be believed. We find that appellant was denied effective assistance of
counsel. Appellant’s first point of error is sustained.
         Because we have sustained appellant’s first point of error, we need not reach appellant’s
second point of error.
                                                     This Court’s Ruling
         We reverse the judgment and remand the cause for further proceedings consistent with
this opinion.




                                                                                  TERRY McCALL
                                                                                  JUSTICE
October 11, 2012
Do not publish. See TEX. R. APP. P 47.2(b).
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill.2



         1
           Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a
successor by the governor or until the next general election.
         2
             John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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