                                   NUMBER 13-02-00218-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


ALEJANDRO RODRIGUEZ MATA,                                                                     Appellant,

v.

THE STATE OF TEXAS,                                                                          Appellee.


     On appeal from the 275th District Court of Hidalgo County, Texas.


                                 OPINION ON REMAND

                   Before Justices Yañez, Rodriguez, and Wittig1
                       Opinion on remand by Justice Wittig

        On direct appeal, this Court reversed and remanded for a new trial on the issue of

punishment; however, the court of criminal appeals reversed our decision and remanded

the case to this Court for consideration of appellant’s remaining issues. Mata v. State, 141

S.W.3d 858 (Tex. App.–Corpus Christi, 2004), rev’d, 226 S.W.3d 425, 433 (Tex. Crim.


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         Retired Justice Don W ittig assigned to this Court by the Chief Justice of the Suprem e Court of Texas
pursuant to the governm ent code. See T EX . G O V ’T C OD E A N N . § 74.003 (Vernon 2005).
App. 2007). Issues one through seven and ten have already been adressed in our prior

opinion. See generally Mata, 141 S.W.3d at 426-33. We now address the remaining

issues.

                                     Ineffective Counsel

       In his eighth and ninth issues, appellant argues that his trial counsel was ineffective

for not objecting to the punishment charge because it violated the government code and

the due process clause. In his eleventh issue, he charges counsel was ineffective for not

objecting to the State’s argument to consider parole eligibility in imposing a sentence.

       Review of an ineffective assistance of counsel claim is conducted under the

standard enunciated in Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez

v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The first requirement under

Strickland states: “When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that counsel’s representation fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. The second

requirement sets out the general requirement that the defendant affirmatively prove

prejudice, i.e., that there is a reasonable probability that, but for counsel’s errors, the result

of the proceeding would have been different. Id. at 694.

       In his eighth and ninth issues, appellant argues counsel was ineffective for not

objecting to the punishment charge. We address the allegations of error concerning the

charge itself in issue twelve below.

       In the charge, the trial court inserted superfluous language. The charge stated:

       Under the law applicable in this case, the Defendant, if sentenced to a term
       of imprisonment, he will not become eligible for parole until the actual time
       served plus any good conduct time earned equals one-half of the sentence
       imposed, or 30 years, whichever is less, without consideration of any good
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       conduct time he may earn.

The court’s charge included the following additional, non-statutory language: “plus any

good conduct time earned.” However, the charge also instructed the jury not to consider

the manner in which the parole law might be applied to the defendant and was otherwise

substantially correct. We also observe there was no evidence the jury was confused about

the instructions in the charge.

        Even if we were to assume error, the record is silent as to why counsel did not

object. When the record is silent as to defense counsel’s rationale or strategy, appellant

fails to overcome the presumption that trial counsel’s decision was reasonable. Rylander

v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808,

814 (Tex. Crim. App. 1999); see Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005). Review of counsel's representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel's conduct fell within a wide range of reasonable

representation. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9

S.W.3d 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); see also

Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980). "Experience has taught us

that in most instances a reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim.” Thompson, 9 S.W.3d at 813-14.

"In the majority of cases, the record on direct appeal is undeveloped and cannot

adequately reflect the motives behind trial counsel's actions." Mallett, 65 S.W.3d at 63. To

overcome the presumption of reasonable professional assistance, "any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness." Thompson, 9 S.W.2d at 813 (citing McFarland

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v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).

       The record shows that appellant presented no evidence that overcomes the

presumption that trial counsel’s decision not to object was reasonable. Mallett, 65 S.W.3d

at 63; Thompson, 9 S.W.2d at 813. We overrule appellant’s eighth and ninth issues.

       In his eleventh issue, appellant charges counsel was ineffective for not objecting to

the State’s argument to consider parole eligibility in imposing a sentence because it

violated due process. He cites Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App. 1987)

(stating that an exception to the general rule requiring an objection to preserve error, is that

improper argument may present a Fourteenth Amendment due process claim if the

prosecutor's argument so infected the trial with unfairness as to make the resulting

conviction a denial of due process).        Appellant made virtually the same ineffective

assistance argument in his tenth issue, contending there that the charge violated the Texas

Code of Criminal Procedure rather than due process. The Texas Court of Criminal

Appeals has already addressed this parallel issue in part. It held:

                First, on our review of the record, the prosecutor's statement to the
       jury that a person convicted of murder "can get good time credit" is not so
       clearly a misstatement of the law as the Court of Appeals claimed. A
       defendant convicted of murder is neither more nor less eligible to receive
       good conduct time credit during his or her sentence. The only criteria for
       determining an inmate's eligibility to receive good time are his classification
       by the Texas Department of Criminal Justice and his conduct while
       incarcerated. The statutory instruction at issue here serves only to inform
       the jury of the limitations imposed upon the convicted person's ability to have
       his or her accrued good conduct time considered by a parole board in
       determining whether he should be eligible for release. It explicitly states that,
       whatever good conduct time the defendant may receive during his
       incarceration, no amount of good conduct time accrued will be calculated as
       part of his time served until he has served a sufficient amount of actual time.
       It also informs the jury that such decisions are exclusively the province of the
       prison and parole board. Thus, it was not a misstatement of law for the State



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       to tell the jury that the appellant could "get good time credit," even if the State
       omitted the statutory condition under which his good time credit could be
       considered by a parole board.

Mata, 226 S.W.3d at 431.

       In reversing our prior opinion, on this related issue, the court of criminal appeals

held that, although we had found there to be no conceivable reason for trial counsel to

have failed to object to the State's improper argument, the fact remained that the appellate

record was silent as to why trial counsel failed to so object. “Therefore, the appellant has

failed to rebut the presumption that trial counsel's decision was in some way — be it

conceivable or not — reasonable.” Id.

       Appellant also argues that the State clearly referred to the pen packet during the

punishment phase during its argument. However, the State's intention in doing so was just

as likely for the proper purpose of informing the jury that parole and good conduct time do

exist in Texas. Id. at 432. The existence of such laws may be considered as part of

assessing punishment even if the operation of those laws may not. Id. “The appellant's

pen packet was merely a simple and available example for the jury to understand that

parole laws apply to all incarcerated persons, including the appellant.” Id. The record

demonstrates that the appellant's pen packet was not introduced as "evidence on the

operation of parole and good conduct laws," as prohibited by the statute. Id. Rather, the

pen packet had been introduced into evidence during the punishment phase to prove the

alleged enhancing factors of the appellant's prior crimes. Id. “At the very least, it is not

clear that the State's reference to the appellant's pen packet in this instance necessitated

an objection by appellant's trial counsel.” Id. at 433.




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       Because the law of the case has already disposed of the underpinnings of

appellant’s due process claims, appellant’s due process argument must fail. See Howlett

v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999) (stating that an appellate court's

resolution of a question in a previous appeal of the same case will govern the disposition

of the same issue when raised in a subsequent appeal). In any event, we hold that

appellant presented no evidence in the record that overcomes the presumption that trial

counsel’s decision not to object was reasonable. Mallett, 65 S.W.3d at 63; Thompson, 9

S.W.2d at 813; Mata 226 S.W.3d at 433. We overrule appellant’s eleventh issue.

                                    Jury Charge

       By his twelfth issue, appellant charges that the trial court erred in failing to submit

the law applicable to the case to the jury. The Texas Code of Criminal Procedure provides

that in a specified felony case, the court “shall” charge the jury (inter alia) that:

       Under the law applicable in this case, if the defendant is sentenced to a term
       of imprisonment, he will not become eligible for parole until the actual time
       served equals one-half of the sentence imposed or 30 years, whichever is
       less, without consideration of any good conduct time he may earn.

See TEX . CODE CRIM . PROC . ANN . art. 37.07 § 4(a) (Vernon 2006). The actual charge

given stated:

       Under the law applicable in this case, the Defendant, if sentenced to a term
       of imprisonment, he will not become eligible for parole until the actual time
       served plus any good conduct time earned equals one-half of the
       sentence imposed, or 30 years, whichever is less, without consideration of
       any good conduct time he may earn.

(Emphasis added). The trial court properly instructed the other four paragraphs under

section 4(a). Id.

       Appellant cites Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (stating



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that a statutorily defined word or phrase must be included in the charge as part of the “law

applicable to the case”), and argues that the trial court sua sponte must submit the correct

law applicable. We agree. However, in Huizar, the trial court failed to instruct that

extraneous offenses need be proved beyond a reasonable doubt. Id. Further, Huizar held

that such error was purely "charge error" under article 36.19 and did not implicate

constitutional rights. Id. Rather, the rule in Almanza v. State, 686 S.W.2d 157 (Tex. Crim.

App. 1985) (op. on reh'g), is applied in the harm analysis. Huizar is distinguishable

because here, the trial court did give the statutorily required language. See Huizar, 12

S.W.3d at 483 (noting that disregard of a statutory provision referenced in article 36.19 is

the type of omission that does not require a timely request or objection by a party).

       Appellant also cites Luquis v. State, 72 S.W.3d 355, 366-67 (Tex. Crim. App. 2002),

which holds that the court will not find federal constitutional error unless it concludes that

a reasonable jury probably was actually confused by this charge or that there was a

reasonable probability that it did mislead the jury. Id. Appellant argues that the court’s

instruction was a plain misstatement of the law. According to appellant, the error was

exacerbated because of the final argument of the State.

       The State counters that the addition of this superfluous phrase was isolated clerical

error that does not require reversal, citing Lozano v. State, 676 S.W.2d 433, 436-37 (Tex.

App.–San Antonio, 1984, no pet.) (providing that an inadvertent or clerical error in an

instruction does not require reversal of a conviction where the charge as a whole correctly

applies the law to the facts).

       The instruction and sentence in question was designed to provide the jury with some




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background instruction about parole. The same segment of the charge also specifically

warned the jury not to attempt to calculate good time credit and parole law. Because the

jury was also instructed not to apply any good time, the extraneous phrase did not affect

the overall meaning of the parole instruction. Unlike Huizar, the trial court did not

completely fail to instruct the jury about the burden of proof concerning extraneous

offenses. Huizar, 12 S.W.3d at 484.

       Under Almanza, omission of an unrequested jury instruction applicable to the case

calls for a new trial only when the defendant was greatly disadvantaged. Saunders v.

State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). This degree of harm, sufficiently

serious to be called "egregious," is present whenever a reviewing court finds that the case

for conviction or punishment was actually made clearly and significantly more persuasive

by the error. Id.

       The function of the jury charge is to instruct the jury on applying the law to the facts.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). "[A]n erroneous or an

incomplete jury charge jeopardizes a defendant's right to jury trial because it fails to

properly guide the jury in its fact-finding function." Id. "An erroneous or incomplete jury

charge, however, does not result in automatic reversal of a conviction." Id. Instead, article

36.19 of the Texas Code of Criminal Procedure outlines the path this Court should follow

to review error in the charge: "[F]irst, the court must determine whether error actually

exists in the charge, and second, the court must determine whether sufficient harm

resulted from the error to require reversal." Id. at 731-32. Where the error is urged for the

first time on appeal, a reviewing court will search for “egregious harm.” Almanza, 686




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S.W.2d at 171. "Egregious harm consists of errors affecting the very basis of the case or

that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the

case for conviction or punishment clearly and significantly more persuasive."

Blumenstetter v. State, 135 S.W.3d 234, 240 (Tex. App.–Texarkana 2004, no pet.). The

degree of harm demonstrated by the appellant must be actual, not merely theoretical.

Almanza, 686 S.W.2d at 174; Taylor v. State, 146 S.W.3d 801, 804 (Tex. App.–Texarkana

2004, pet. ref d).

       In Newman, our sister court addressed a similar situation. There, the crucial

difference between the statutory charge and that provided to the jury resulted in the jury

being incorrectly informed that good conduct time would be considered in calculating the

one-half of the sentence Newman would be required to serve before being eligible for

parole. Newman v. State, 49 S.W.3d 577, 581 (Tex. App.–Beaumont 2001, pet ref’d). As

in Newman, appellant did not object to the charge, and thus, we may reverse the judgment

only if the harm was so egregious that the accused did not have a fair and impartial trial.

Almanza, 686 S.W.2d at 171. "The actual degree of harm must be assayed in light of the

entire jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel and any other relevant information revealed

by the record of the trial as a whole." Id.

       We conclude there is no egregious harm for several reasons: 1) the charge

instructed the jury not to consider the manner in which the parole law might be applied to

the defendant; 2) there was no evidence the jury was confused about the instructions in

the charge; 3) no motion for new trial was filed; 4) nothing in the record suggests the jury




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discussed, considered, or tried to apply good conduct time or the parole law in assessing

punishment; 5) there was substantial evidence of guilt; and 6) the jury assessed

punishment at less than the maximum sentence. See id. "[T]he instruction may not be

judged in artificial isolation, but must be considered in the context of the instructions as a

whole and the trial record." Estelle v. McGuire, 502 U.S. 62, 72 (1991). Appellant likewise

has not shown there is a “reasonable likelihood” that the jury applied the superfluous

instruction in a way violative of the constitution. Id. Accordingly, we overrule this issue.

                                    Reporter’s Record

       In his thirteenth issue, appellant maintains he is entitled to a new trial because part

of the reporter’s record is lost. Appellant requested the reporter’s record for “events” of

September 24, October 15, and November 6, 2001. No such records were produced, and

thus appellant argues the records are “missing.” Because of these complaints, we abated

this appeal and remanded to the trial court to determine the status of the record.

       At the hearing, the court reporter testified she had no notes or transcript pertaining

to this case for September 24, October 15, or November 6, 2001. The trial court found

in his May 20, 2003, order that “the current appellate record contains all proceedings which

had occurred on the record during this case.” The docket entry of September 24 simply

indicated the case was reset for trial to October 15, 2001. The October 15 docket entry

indicated a hearing in which both sides announced ready and a motion to withdraw was

heard and denied. Also, the case was reset for trial November 15, 2001.

       The evidence does not indicate anything occurred on the record at the October 15th

hearing, i.e., the reporter took no notes at the hearing. The docket entries for November




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6, 2001, indicated both sides appeared and the case was reset for trial December 3, 2001.

Jury selection was set for 9 a.m. that day.

       On October 31, 2001, the State filed a Motion for Leave of Court to Amend

Indictment, seeking to change the last name of the victim from Munoz to Muniz. The

proposed order accompanying the motion is unsigned.            The indictment itself is not

amended. The State submitted that it never urged its motion to amend.

       The trial court concluded the reporter’s record on file is complete. It also concluded

that, even assuming other proceedings occurred on the pertinent dates, no such materials

would be necessary for the resolution of the appeal.

       Appellant contends that the missing record of October 15, 2001, prohibits him from

showing the trial court erred by not allowing defense counsel to withdraw and that he was

denied the right to effective assistance of counsel. The written motion to withdraw stated

appellant no longer wished counsel to represent him and wished to seek advice and

representation of other counsel. The motion was not reurged after its denial.

       An appellant seeking to reverse a conviction on the basis of an incomplete record

must show: (1) that a significant portion of the record was lost or destroyed, (2) through

no fault of her own, (3) that the missing portion of the record is necessary to her appeal,

and (4) the parties cannot agree on the record. Routier v. State, 112 S.W.3d 554, 571

(Tex. Crim. App. 2003); see TEX . R. APP. P. 34.6(f). As a threshold matter, the trial court

in its fact-finding capacity found that the “current appellate record contains all proceedings

which had occurred on the record . . . .” Appellant’s trial counsel testified she thought her

motion to withdraw was presented in open court. She stated the basis of the motion was




                                              11
that she could not communicate with her client. “We were not on the same level as far as

the presentation of the case.” In response to a leading question, she indicated the motion

was heard on the record. Yet, in answer to the next question, defense counsel stated: “It

was on the record, I’d assume.” Defense counsel also had no recollection of the State’s

motion to amend the indictment. The court reporter testified there was no record taken.

Although defense counsel said she assumed there was a record made, she could not

recall other factors now asserted by appellant concerning the motion to amend the

indictment.

       In Amezquita, the court of criminal appeals reiterated the observation that “[v]irtually

every fact finding involves a credibility determination” and that it has repeatedly recognized

that the fact finder is the exclusive judge of the credibility of the witnesses. Ex parte

Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (citing Ex parte Mowbray, 943

S.W.2d 461, 465 (Tex. Crim. App. 1996)). In this case, the appellate record clearly

supports and confirms the trial court’s findings of fact. Because the trial court’s findings

are supported by the record, we accept them as correct. Ex parte Kimes, 872 S.W.2d

700, 701 (Tex. Crim. App. 1993). Accepting the findings as true, we can only conclude

that a significant portion of the record was not lost or destroyed. We overrule this issue.

                                    Juror Lopez

       In his fourteenth issue, appellant argues his trial counsel was ineffective because

she did not challenge juror Lopez for cause. During general voir dire, the venire was asked

if they would expect or want to hear from Mata, as for instance, a parent might want to hear

from his or her children when one child says that the other child hit him first. In other




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words, in order to make a fair decision, do you need to hear from that person? Several

jurors, including Lopez, responded in the affirmative. At the later bench conference, Lopez

was informed that the law says if appellant did not testify, “that you can [not] hold that

against him.”    Lopez replied she could follow the instruction of the court. This was

reconfirmed that Mata did not have to testify and the juror would not hold it against him.

Lopez said:

       Yes, I think so. Only reason I said that was that how one witness or friend,
       say friends are there time, place and they would–one way would say it one
       way and one would say it the other one. And if I was to prove something that
       I didn’t do I think I would want people to hear. That’s what I meant, hear
       from me. Not that getting the stories mixed up.

When asked if the appellant should take the stand and testify if he did not do anything

wrong, Lopez responded “No.”

       Appellant argues that when a prospective juror is shown to be biased as a matter

of law, she must be excused when challenged, citing Anderson v. State, 633 S.W.2d 851,

854 (Tex. Crim. App. 1982) ( when a prospective juror is shown to be biased as a matter

of law, he must be excused when challenged, even if he states that he can set his bias

aside and provide a fair trial). Anderson also informs us that bias exists as a matter of law

when a prospective juror admits that he is biased for or against a defendant. Id. The State

argues, and we agree, that Lopez was not shown to be biased and therefore could not

have properly been successfully challenged for cause.

       Lopez initially indicated in response to a vague and rambling hypothetical, that she

would like to hear from the defendant.         She explained that if friends were in a

disagreement, she would like them to hear from her. She also stated she could follow the




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court’s instruction and would not require the defendant to testify. The State cites a similar

case of initial confusion by a juror, Barefoot v. State, 596 S.W.2d 875, 883 (Tex. Crim.

App. 1980). In that case, it was obvious that the juror was initially confused as to the

relationship between appellant's right to remain silent and his right to effective assistance

of counsel. Id. Subsequent questioning by both the prosecuting attorney and defense

counsel made it clear that the juror did not expect appellant to testify or present other

evidence, but only that his attorneys would do their best on his behalf. Id. In Barefoot, the

trial court did not err by overruling the challenge for cause. Id. Similarly, a hypothetical

objection by defense counsel would not have produced error had the trial court overruled

a challenge for cause. See id.

       Because appellant does not demonstrate that trial defense counsel’s performance

fell outside the boundaries of reasonable professional assistance, he fails to meet the first

prong of Strickland. See Strickland, 466 U.S. at 687-88; Hernandez, 988 S.W.2d at 770.

Furthermore, because the record is silent as to why counsel did not object, appellant fails

to overcome the presumption that trial counsel’s decision was reasonable. Rylander, 101

S.W.3d at 110. We overrule this issue.

       The judgment of the trial court is affirmed.



                                                  DON WITTIG,
                                                  Justice

Do not publish.
TEX .R.APP.P. 47.2(b)
Opinion on remand delivered and
filed this the 22nd day of May, 2008.




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