Opinion issued October 11, 2018




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00076-CR
                              NO. 01-17-00077-CR
                           ———————————
                       RODRIGO CORNEJO, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 248th District Court
                            Harris County, Texas
                   Trial Court Case Nos. 1504147 & 1504825


                         MEMORANDUM OPINION

      The State charged Appellant, Rodrigo Cornejo, with intoxication

manslaughter and intoxication assault.1 Appellant pleaded guilty. The jury assessed


1
      See TEX. PENAL CODE ANN. §§ 49.07(a)(1), 49.08(a) (West 2011).
punishment at 14 years’ confinement and 7 years’ confinement, respectively. In

three issues on appeal, Appellant argues (1) the trial court abused its discretion by

not holding a hearing on his motion for new trial; (2) the trial court abused its

discretion denying his objections to certain juror members; and (3) he received

ineffective assistance of counsel based on his trial counsel’s failure to object to other

jurors.

      We affirm in both appeals.

                                     Background

      After a fatal automobile accident, the State charged Appellant with

intoxication manslaughter and intoxication assault. A venire panel was assembled

for the trial. During voir dire of the panel, the panel heard the range of punishment

available for both charges. The State asked the panel if they could consider the full

range of punishment in this case. All but one of the panel members that became

jurors answered, “Yes.” The one who did not answer affirmatively had been

skipped.

      Later, one of Appellant’s attorneys at trial asked the panel, if they found

someone guilty of intoxication manslaughter and intoxication assault, could they

ever consider two years’ confinement or community supervision. Among others,

nine of the twelve members who became jurors and the one member who became an

alternate juror answered that they could not.


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      Appellant’s attorney asserted objections to most but not all of the panel

members that said they could not consider this range. The trial court overruled all

of Appellant’s objections. Five of the panel members Appellant objected to were

seated on the jury, and one was selected as an alternate juror. Four of the panel

members Appellant did not object to were seated on the jury.

      Once the jury was empaneled, Appellant pleaded guilty to the offenses. At

the end of the sentencing phase of the trial, the jury assessed punishment at 14 years’

confinement for the intoxication manslaughter offense and 7 years’ confinement for

the intoxication assault offense.

      After trial, Appellant filed a motion for new trial. In it, he argued that he

received ineffective assistance of counsel during plea negotiations. Specifically, he

complains that his trial attorneys did not advise him that he would be deported if he

were found guilty. Appellant attached the affidavit of his daughter, Olga, to the

motion. In her affidavit, Olga testified about what Appellant’s trial counsel told

Appellant regarding his risk of being deported. Appellant also attached a letter from

an attorney discussing the legal consequences of pleading guilty on Appellant’s

status as a lawful permanent resident. In the letter, the attorney asserts that he met

with Appellant and that Appellant asserted he would not have pleaded guilty if he

had known the consequences of the plea. The motion was overruled by operation of

law without the trial court holding a hearing.


                                          3
                               Motion for New Trial

      In his first issue, Appellant argues the trial court abused its discretion by not

holding a hearing on his motion for new trial.

A.    Standard of Review & Applicable Law

      When he presents a motion for new trial based on matters not determinable

from the existing record, a criminal defendant is entitled to a motion on the hearing.

Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1994). Two prerequisites for

the hearing are the motion must be supported by an affidavit or other competent

evidence and the supporting evidence must “show[] reasonable grounds which

would entitle [the defendant] to a hearing on the motion.” Jordan v. State, 883

S.W.2d 664, 665 (Tex. Crim. App. 1994). The defendant does not have to establish

a prima facie case for a motion for new trial to be entitled to a hearing. Id. Instead,

the evidence “must reflect that reasonable grounds exist for holding that such relief

could be granted.” Id.

      We review a trial court’s denial of a hearing on the motion for new trial for an

abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009).

“Our review, however, is limited to . . . whether the defendant has raised grounds

that are both undeterminable from the record and reasonable, meaning they could

entitle the defendant to relief. This is because the trial judge’s discretion extends

only to deciding whether these two requirements are satisfied.” Id.


                                          4
B.    Analysis

      As it applies to this issue, Appellant argued in his motion for new trial that he

received ineffective assistance of counsel during plea negotiations. He argues that

his attorneys failed to warn him that, if he were found guilty, he would be deported.

The motion argued that, if Appellant’s attorneys had told him this, he would not have

pleaded guilty. The motion was overruled by operation of law without a hearing.

On appeal, Appellant argues the trial court abused its discretion by not holding a

hearing on the motion.

      The elements for evaluating claims of ineffective assistance of counsel are set

forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (noting that

applicable standard for ineffective assistance of counsel claim is same in state and

federal cases).    Under the Strickland two-step analysis, a defendant must

demonstrate that (1) his counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; Andrews v. State, 159

S.W.3d 98, 101–02 (Tex. Crim. App. 2005). In the context of a guilty plea, the

second prong of Strickland is satisfied by a demonstration of a “reasonable

probability that, but for counsel’s errors, [the defendant] would have not have


                                          5
pleaded guilty and would have insisted on going to trial.” Ex Parte Moody, 991

S.W.2d 856, 857–58 (Tex. Crim. App. 1999) (quoting Ex parte Morrow, 952 S.W.2d

530, 536 (Tex. Crim. App. 1997)).

      Ineffective assistance of counsel claims can be raised in a motion for new trial.

Smith, 286 S.W.3d at 340. They can often concern matters that are undeterminable

from the trial record. Id. at 341. To have been entitled to a hearing on the motion,

though, the defendant must have alleged facts that satisfy both prongs of the

Strickland test. Id.

      Appellant relies on the affidavit of his daughter, Olga, to establish ineffective

assistance of counsel. In her affidavit, Olga testified about what Appellant’s trial

counsel told Appellant about his risk of being deported. This evidence does not

address the second prong of Strickland. See Ex parte Moody, 991 S.W.2d at 858

(holding, for guilty pleas, defendant must establish that, but for counsel’s errors,

defendant would have insisted on going to trial).

      The motion also includes a letter from another attorney, which analyzes the

legal consequences of Appellant’s plea of guilty on Appellant’s status as a lawful

permanent resident. In the letter, the attorney asserts that he met with Appellant and

that Appellant asserted he would not have pleaded guilty if he had known the

consequences of the plea. This is hearsay within hearsay. See TEX. R. EVID. 805

(“Hearsay within hearsay is not excluded by the rule against hearsay if each part of


                                          6
the combined statements conforms with an exception to the rule.”); Sanchez v. State,

354 S.W.3d 476, 485–86 (Tex. Crim. App. 2011) (“When hearsay contains hearsay,

the Rules of Evidence require that each part of the combined statements be within

an exception to the hearsay rule.”). An affidavit supporting the grounds asserted in

the motion for new trial is required to avoid hearsay that would otherwise arise when

pointing out matters not already in the record. See Bearden v. State, 648 S.W.2d

688, 690 (Tex. Crim. App. 1983) (“[A] motion for new trial which points out

extraneous matters which are necessarily hearsay as to the accused must have

attached thereto the affidavit of some person who has knowledge of the facts or must

name the source of defendant’s information and belief that the misconduct

occurred.”).

      To be entitled to a hearing on a motion for new trial based on ineffective

assistance of counsel, the Appellant must present sufficient evidence supporting both

elements of Strickland. Smith, 286 S.W.3d at 340–41 (holding, to be entitled to a

hearing, “a defendant must allege sufficient facts from which a trial court could

reasonably conclude both that counsel failed to act as a reasonably competent

attorney and that, but for counsel’s failure, there is a reasonable likelihood that the

outcome of his trial would have been different”). Because Appellant did not address

the second element of Strickland, he did not establish a right to a hearing on the

motion for new trial. Id.; see also Platas v. State, No. 14-16-00410-CR, 2017 WL


                                          7
2384908, at *2 (Tex. App.—Houston [14th Dist.] June 1, 2017, pet. ref’d) (mem.

op.) (rejecting Strickland claim because defendant failed to show that, but for

counsel’s errors, he would have insisted on going to trial).

      We overrule Appellant’s first issue in both appeals.

                                 Juror Objections

      In his third issue, Appellant argues the trial court abused its discretion denying

his objections to certain juror members.

A.    Standard of Review

      We review a trial court’s ruling on a challenge for cause against people on the

venire panel for a clear abuse of discretion. Davis v. State, 329 S.W.3d 798, 807

(Tex. Crim. App. 2010).

B.    Analysis

      During voir dire of the venire panel, one of Appellant’s trial attorney asked

the panel, if they found someone guilty of intoxication manslaughter and

intoxication assault, could they ever consider two years’ confinement or community

supervision.2 Nine of the twelve jurors and the one alternate answered that they

could not. Appellant objected for cause to five of those nine jurors and to the one

alternate juror based on their answers to this question. He also objected to other



2
      This was the minimum range of punishment for both offenses. See TEX. PENAL
      CODE ANN. §§ 12.33(a), 12.34(a), 49.07(c), 49.08(b) (West 2011); TEX. CODE
      CRIM. PROC. ANN. art. 42A.055 (West 2018).
                                           8
panel members based on their answer to this question. The trial court denied the

objections. Appellant’s counsel requested more peremptory strikes, and the trial

court denied the request. Appellant used all but one of his peremptory strikes on

venire panel members who said they could not consider probation or two years’

confinement.

      There is some question as to whether the for-cause objections were preserved

for appeal. The Court of Criminal Appeals has held,

      To preserve error for a trial court’s erroneous denial of a challenge for
      cause, appellant must show that: (1) he asserted a clear and specific
      challenge for cause; (2) he used a peremptory challenge on the
      complained-of venire member; (3) his peremptory challenges were
      exhausted; (4) his request for additional strikes was denied; and (5) an
      objectionable juror sat on the jury.

Id. Appellant objected to four out of the nine jurors that said they could not consider

two years’ confinement or probation if they found him guilty. He identified the basis

for his objection for these jurors. He used his peremptory challenges to exclude other

venire panel members that answered the same, but the five still got on the jury. He

requested further peremptory strikes, and the trial court denied the request. We hold

this issue has been preserved for appeal.

      The State points out that all of the jurors who said they could not consider the

lowest possible punishment for the offenses answered differently to another

question. Earlier in the venire panel voir dire, the State discussed the range of

punishment for the offenses charged against Appellant. The State then asked the

                                            9
venire panel if they could consider the entire range of punishment—from the

minimum to the maximum—if they found Appellant guilty. All but one of the panel

members said they could.3

       “When a venire member’s answers are vacillating, unclear, or contradictory,

we accord particular deference to the trial court’s decision.” Id. Because the jurors

about whom Appellant complains gave contradictory answers to what range of

punishment they could consider if they found Appellant guilty, we must defer to the

trial court’s ruling.

       We overrule Appellant’s third issue in both appeals.

                         Ineffective Assistance of Counsel

       In his second issue, Appellant argues he received ineffective assistance of

counsel based on his trial counsel’s failure to object to certain jurors.

A.     Standard of Review

       The Sixth Amendment to the United States Constitution guarantees the right

to the reasonably effective assistance of counsel in criminal prosecutions. Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see U.S. CONST. amend. VI. To

prove a claim of ineffective assistance of counsel, appellant must show that (1) his

trial counsel’s performance fell below an objective standard of reasonableness and


3
       One panel member was skipped during this round of questioning. The skipped panel
       member responded to Appellant’s question by saying she could consider two years’
       confinement or probation if she found Appellant guilty.
                                           10
(2) there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. Strickland, 466 U.S. at 687–88,

694, 104 S. Ct. at 2064, 2068 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In

reviewing counsel’s performance, we look to the totality of the representation to

determine the effectiveness of counsel, indulging a strong presumption that

counsel’s performance falls within the wide range of reasonable professional

assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475, 482–83 (Tex.

Crim. App. 2006).

      Appellant has the burden to establish both prongs of Strickland by a

preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.

App. 1998). “An appellant’s 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); see also Strickland, 466 U.S. at 697, 104 S. Ct. at

2069. We apply the same two-prong Strickland standard of review to claims of

ineffective assistance of counsel during both the guilt and punishment phases of trial.

Hernandez v. State, 988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999).




                                          11
B.    Analysis

      Appellant objected to four out of the nine jurors that said they could not

consider two years’ confinement or probation if they found him guilty. He did not

object to the other five that said they could not. Appellant argues his trial counsel

was ineffective for failing to object to these five. To prevail on ineffective assistance

of counsel based on a failure to raise an objection, the appellant must show that, had

his counsel objected, the objection would have been sustained or that it would have

been error for the trial court to overrule the objection. See Vaughn v. State, 931

S.W.2d 564, 566 (Tex. Crim. App. 1996) (“[I]n order to argue successfully that her

trial counsel’s failure to object to the State’s questioning and argument amounted to

ineffective assistance, appellant must show that the trial judge would have

committed error in overruling such an objection.”); Frohne v. State, 928 S.W.2d 570,

576 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (holding appellant failed to

carry burden by showing objection would have been sustained).

      We have noted that, for the four jurors to which Appellant did object, the trial

court overruled Appellant’s objections. We have held that this was not an abuse of

the trial court’s discretion. Appellant offers no proof that the trial court would have




                                           12
ruled differently for these five jurors4 or that the trial court would have abused its

discretion by overruling such objections.

      We overrule Appellant’s second issue in both appeals.

                                     Conclusion

      We affirm the judgment of the trial court in both appeals.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Jennings, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




4
      As we have observed, all of the jurors who said they could not consider the lowest
      possible punishment for the offenses also answered to another question that they
      could consider the entire range of punishment. See Davis v. State, 329 S.W.3d 798,
      807 (Tex. Crim. App. 2010) (“When a venire member’s answers are vacillating,
      unclear, or contradictory, we accord particular deference to the trial court’s
      decision.”).
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