       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-19-00045-CR


                                 Rudy Herrera Jr., Appellant

                                               v.

                                 The State of Texas, Appellee




              FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY
          NO. 17-075, THE HONORABLE CHRIS SCHNEIDER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Rudy Herrera Jr. of the offense of capital murder. See

Tex. Penal Code § 19.03(a)(2).      The district court rendered judgment on the verdict and

sentenced Herrera to life imprisonment without parole. See id. § 12.31(a)(2). In two points of

error on appeal, Herrera asserts that he received ineffective assistance of counsel and that the

district court abused its discretion in admitting extraneous-offense evidence. We will affirm the

district court’s judgment.

                                       BACKGROUND

               According to the evidence presented at trial, on the morning of August 11, 2016, a

motorist discovered the nude body of Emilia Juarez in a field located off Jolley Road in

Lockhart. Juarez’s clothing was found near her body. An autopsy revealed that Juarez had died

by strangulation, and other evidence tended to show that Juarez had been sexually assaulted
around the time of her death. The eventual suspect in the murder was Juarez’s cousin, Herrera.

DNA evidence collected from Juarez’s shirt, her pants, and the inside of her vagina matched

Herrera’s DNA. In an interview with police following his arrest, Herrera admitted to engaging

in sexual activity with Juarez but claimed that it was consensual. Based on this and other

evidence, which we discuss in more detail below, the jury found Herrera guilty of capital murder.

This appeal followed.

                                          DISCUSSION

Ineffective assistance of counsel

               In his first point of error, Herrera asserts that he received ineffective assistance of

counsel during trial. Specifically, he contends that counsel was ineffective in failing to challenge

for cause a juror who indicated that she had a bias against the defense.

       Standard of review

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

(1) deficient performance, i.e., counsel’s performance fell below an objective standard of

reasonableness based on prevailing professional norms; and (2) prejudice, i.e., a reasonable

probability exists that, but for counsel’s deficient performance, the result of the proceeding

would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984);

Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018); Ex parte Scott, 541 S.W.3d 104,

115 (Tex. Crim. App. 2017); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). On

review, an appellant has the burden to establish both Strickland prongs by a preponderance of the

evidence. Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App. 1998). “An appellant’s




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failure to satisfy one prong of the Strickland test negates a court’s need to consider the other

prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

                “An ineffective-assistance claim must be ‘firmly founded in the record’ and ‘the

record must affirmatively demonstrate’ the meritorious nature of the claim.” Menefield v. State,

363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005)). “Direct appeal is usually an inadequate vehicle for raising such a claim

because the record is generally undeveloped” as to the reasons for counsel’s decisions. Id.

“Trial counsel ‘should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.’” Id. (quoting Goodspeed, 187 S.W.3d at 392). “If trial counsel is not

given that opportunity, then the appellate court should not find deficient performance unless the

challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.”

Id. (quoting Goodspeed, 187 S.W.3d at 392).

       Analysis

                During jury selection, a member of the venire indicated that that she had been the

victim of a sexual assault. The State then elicited the following additional information from the

venireperson:



                [Prosecutor]:         Okay. How long ago was that?


                [Venireperson]:       It’s been a long time. It’s been 25 years.


                [Prosecutor]:         Okay. And that’s difficult. I understand.
                                      Let me ask this. Is the fact that that
                                      occurred to you in the past would you in any
                                      way hold that against Mr. Herrera?



                                                3
               [Venireperson]:        Possible. When I read it, right away I got a
                                      feeling, you know, it would bring back
                                      memories.


               [Prosecutor]:          It’s uncomfortable.


               [Venireperson]:        Very.


               [Prosecutor]:          I understand.


               [Venireperson]:        Definitely biased.


The State then moved on to another venireperson. Herrera claims that “neither the trial court nor

trial counsel posed any follow-up questions to [the venireperson] and that [she] was ultimately

impaneled to serve as a member of the jury without any challenge from Mr. Herrera’s trial

counsel.”

               As an initial matter, Herrera is incorrect in his assertion that trial counsel failed to

ask any follow-up questions of the venireperson. The record reflects that after each side had

conducted their voir dire, trial counsel identified the venireperson as a possible challenge for

cause, due to her “bias with regard to being a victim of crime.” The district court then brought

the venireperson to the bench for additional questions:



               [The court]:           All right. Based on your answers, we’ve got
                                      a couple of—the attorneys have a couple
                                      follow-up questions for you.


               [Venireperson]:        Okay.


               [Trial counsel]:       I believe that in—my apologies if my notes
                                      are incorrect. But I think that the question

                                                  4
                                     was posed as to whether or not prior
                                     experience with violent crime would affect
                                     your ability to be fair and impartial on this
                                     case. And I don’t know if you came to a
                                     final answer at the time.


               [Venireperson]:       Well, to be honest I have been thinking
                                     about that. And this crime did happen when
                                     I was 9. So it’s like not—I didn’t put myself
                                     in that position or anything like that. You
                                     understand what I mean? So but I mean if I
                                     had to trial—if I had to be a juror, I could be
                                     fair about it.


               [Trial counsel]:      Okay. Is there anything else?


               [Venireperson]:       No.


               [Trial counsel]:      Anything else that would keep you from
                                     being a fair and impartial juror on this case?


               [Venireperson]:       No.


               [Trial counsel]:      Okay.


               [Prosecutor]:         No questions.


               [The court]:          Thank you, ma’am. You may take a break
                                     in the hallway.


               [Venireperson]:       Thank you.


               [Trial counsel]:      No challenge.


Thus, contrary to Herrera’s contention, trial counsel asked follow-up questions of the

venireperson, and the venireperson indicated in her answers that she could be fair and impartial.

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               Moreover, it is well established that an appellate court should not declare trial

counsel ineffective for failing to challenge a juror for cause in the absence of a record

demonstrating the reasons for counsel’s decision. See State v. Morales, 253 S.W.3d 686, 696–98

(Tex. Crim. App. 2008); Jackson v. State, 877 S.W.2d 768, 771–72 (Tex. Crim. App. 1994);

Delrio v. State, 840 S.W.2d 443, 446–47 (Tex. Crim. App. 1992); Notias v. State, 491 S.W.3d

371, 377–78 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Hebert v. State, 489 S.W.3d 15,

22–23 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see also Smith v. State, No. 03-07-

00392-CR, 2009 Tex. App. LEXIS 5468, at *7–12 (Tex. App.—Austin July 14, 2009, pet. ref’d)

(mem. op., not designated for publication). “Decisions relating to challenging prospective jurors

for cause or striking prospective jurors are strategic and tactical,” Hebert, 489 S.W.3d at 23, and

in the face of a silent record, “we must presume that counsel is better positioned than the

appellate court to judge the pragmatism of the particular case, and that he ‘made all significant

decisions in the exercise of reasonable professional judgment,’” Delrio, 840 S.W.2d at 447

(quoting Strickland, 466 U.S. at 690).      There is nothing in this record to overcome that

presumption. Trial counsel questioned the venireperson as to her bias and elicited responses

from the venireperson indicating that she could be fair and impartial. Only then did he decide

not to challenge her for cause. We cannot conclude that this decision fell below an objective

standard of reasonableness.

               We overrule Herrera’s first point of error.

Extraneous-offense evidence

               One of the State’s witnesses at trial was Herrera’s ex-wife, Shannon Orozco. The

State asked Orozco questions relating to Herrera’s drug use, including cocaine and

methamphetamines. During Herrera’s cross-examination of Orozco, trial counsel asked her if

                                                 6
Herrera’s drug use was “the reason” that she had divorced him. Orozco answered, “Drugs and

alcohol.” On redirect examination, the State asked Orozco if there was “another reason,” in

addition to drugs and alcohol, that she had divorced Herrera. Orozco answered, “Yes.” The

State then approached the bench and informed the district court that it wanted to ask Orozco if

she had divorced Herrera because Herrera had been physically abusive toward her. The State

also wanted to inquire into a specific instance when Herrera had assaulted Orozco. Herrera

objected to the State “going into any of these matters.” The State responded that Herrera had

“opened the door” to this evidence by asking Orozco why she had divorced Herrera. The district

court overruled Herrera’s objection but prohibited the State from “go[ing] in[to] any details”

regarding the abuse. Orozco then testified as follows:



               Q.     [Trial counsel] asked you . . . if the . . . the reason you
                      divorced him [was] due to his drug and alcohol abuse;
                      correct?


               A.     Correct.


               Q.     And your answer was yes?


               A.     Correct.


               Q.     Now, was drug and alcohol abuse the only factor that led to
                      you divorcing Mr. Herrera?


               A.     No, sir.


               Q.     Ms. Orozco, was physical abuse or domestic violence a
                      factor that led you to divorce Mr. Herrera?



                                                7
               A.      Yes, sir.


               Q.      And was this physical abuse or these ongoing threats and
                       domestic violence a single occurrence or an ongoing
                       situation with Mr. Herrera?


               A.      There were several instances.


The State elicited no further testimony on this issue. In his second point of error, Herrera asserts

that the district court abused its discretion in admitting this evidence.

               We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Sandoval v. State,

409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). An abuse of discretion does not occur

unless the trial court acts “arbitrarily or unreasonably” or “without reference to any guiding rules

and principles.”    State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not

reverse the trial court’s ruling unless it “falls outside the zone of reasonable disagreement.”

Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). An evidentiary ruling will be

upheld if it is correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93;

Sandoval, 409 S.W.3d at 297.

               “Evidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance with [his]

character.” Tex. R. Evid. 404(b)(1). However, such evidence “may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Id. R. 404(b)(2). Moreover, evidence that is otherwise

inadmissible under Rule 404(b) may become admissible when a party opens the door to such

                                                  8
evidence. Williams, 301 S.W.3d at 687 (citing Hayden v. State, 296 S.W.3d 549, 554 (Tex.

Crim. App. 2009)). “A party opens the door by leaving a false impression with the jury that

invites the other party to respond.” Hayden, 296 S.W.3d at 554.

               Here, trial counsel asked Orozco if Herrera’s drug use was “the reason” that she

had divorced him. It would not have been outside the zone of reasonable disagreement for the

district court to have found that by asking this question, counsel had left the jury with the

impression that Herrera’s drug use was the sole reason for the divorce. However, Orozco

testified that there was another reason, and the district court would not have abused its discretion

in finding that Herrera had opened the door to testimony from Orozco identifying that other

reason.

               Moreover, even if the district court should not have admitted this evidence, we

cannot conclude on this record that Herrera was harmed by its admission. “The erroneous

admission of evidence is non-constitutional error.” Gonzalez v. State, 544 S.W.3d 363, 373

(Tex. Crim. App. 2018) (citing Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008)).

“Non-constitutional errors are harmful, and thus require reversal, only if they affect Appellant’s

substantial rights.” Id. (citing Tex. R. App. P. 44.2(b)). The Court of Criminal Appeals has

construed this to mean that “an error is reversible only when it has a substantial and injurious

effect or influence in determining the jury’s verdict.” Id. (citing Taylor, 268 S.W.3d at 592). “If

we have a fair assurance from an examination of the record as a whole that the error did not

influence the jury, or had but a slight effect, we will not overturn the conviction.” Id. “In

making this determination, we consider: (1) the character of the alleged error and how it might

be considered in connection with other evidence; (2) the nature of the evidence supporting the

verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the

                                                 9
State emphasized the complained of error.” Id. (citing Motilla v. State, 78 S.W.3d 352, 356-58

(Tex. Crim. App. 2002)).

               Initially, we observe that the extraneous-offense evidence was limited in scope.

The State asked Orozco only two questions relating to the abuse: (1) whether the abuse was a

“factor” that led her to divorce Herrera; and (2) whether the abuse was “a single occurrence or an

ongoing situation.” To the first question, Orozco answered, “Yes.” To the second question,

Orozco answered, “There were several instances.” Orozco provided no details, and the State

elicited no further testimony on the matter.

               Moreover, there was ample evidence supporting the jury’s verdict in this case.

Juarez’s nude body was discovered in a field under circumstances that investigating officers

testified were consistent with sexual assault. Her neck was badly bruised, indicating that she had

been strangled by some form of ligature, and her clothes were strewn on the ground near her

body. Herrera’s DNA was found on Juarez’s shirt, on the waistband and ankle areas of her

pants, and in her vagina. Moreover, Herrera provided two statements to the police that were

admitted into evidence and played for the jury. In the first statement, Herrera claimed that he did

not know Juarez well and that the last time he had seen her was at an H.E.B. parking lot four or

five days before her murder. In the second statement, taken following Herrera’s arrest, he

admitted to having a sexual relationship with Juarez and being with her the night that she was

killed. During this interview, Herrera provided inconsistent accounts of the clothing that Juarez

was wearing that night, the time when he had met up with her, and the extent of their sexual

relationship. For most of the interview, Herrera claimed that they had oral sex only and he

denied putting his penis inside her vagina. However, at one point during the interview, he

admitted to putting his penis inside her vagina on one occasion (although he claimed not all the

                                                10
way inside). As the interviewing officer explained, “[Herrera] never gave a straight answer.

First it was yes. And then it was no. And then it was maybe. And then it was no again.” Also

during the interview, Herrera provided details of how Juarez was strangled, claiming that

Juarez’s family members had told him this information. However, the interviewing officer

testified that at that time, no such details had been given to the family. Additionally, Herrera’s

timeline of when he had been with Juarez on the night of her murder conflicted with the accounts

of multiple witnesses who had been with Juarez at the same time. Herrera claimed that he had

been with Juarez sometime between 4:30 p.m. and 9:00 p.m. that night. However, friends and

family members testified that they were with Juarez during that time, and Juarez’s father had

seen her at home at 1:30 a.m. before he went to bed. Thus, as the State emphasized in its closing

argument, either Herrera was lying about that night or Juarez’s family and friends were.

               Finally, the State did not mention the extraneous-offense evidence in its closing

argument. Instead, the State emphasized the DNA evidence, Herrera’s statements to the police,

and the timeline of events on the night of Juarez’s murder. On this record, we have a fair

assurance that the admission of the extraneous-offense evidence, even if erroneous, did not

influence the jury or had but a slight effect.

               We overrule Herrera’s second point of error.


                                          CONCLUSION

               We affirm the district court’s judgment of conviction.




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                                            __________________________________________
                                            Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Triana and Smith

Affirmed

Filed: April 22, 2020

Do Not Publish




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