      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00246-CR1



                                 Roberto Nieto Cruz, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-15-300933, HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Roberto Cruz appeals from his conviction of aggravated assault with a

deadly weapon, a second-degree felony. See Tex. Penal Code § 22.02(a)(2). The jury assessed a

sentence of nine years in the Texas Department of Criminal Justice, Criminal Institution Division.

Appellant challenges the conviction in five issues. We affirm.




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          Notice of appeal for this case was originally filed in this Court in July 2016, and the case
was transferred to the El Paso Court of Appeals in compliance with a docket-equalization order
issued by the Texas Supreme Court. On April 12, 2018, the Texas Supreme Court ordered that
certain cases be transferred back to this Court from the El Paso Court, and we consider this appeal
pursuant to that order. See Misc. Docket No. 18-9054 (Tex. Apr. 12, 2018) (per curiam).
                                           Background2

                Appellant was charged by indictment with aggravated assault with a deadly weapon

committed against Daniel Fong.3 The jury heard evidence that, on the night of the offense, Appellant

and appellant’s brother Rudy assaulted Fong at an apartment complex on Middle Fiskville Road

where both Fong and the Appellant lived. Fong testified that Appellant punched him with brass

knuckles and that appellant’s brother hit him with a beer bottle. Fong’s wife Yolanda Cruz also

testified that she witnessed Appellant punch Fong several times and that she believed that Appellant

was wearing brass knuckles at the time. Further testimony showed that Fong was injured in the

assault and went the hospital for his injuries, which included a broken nose and lacerations on his

head that required stitches.

                Austin Police officers who responded to the scene of the incident—Officers Huy

Nguyen, Jared Hidalgo, and Nicholas Smith—also testified at trial. Of relevance to this appeal,

Officer Nguyen testified as to what witnesses at the scene had told him about the incident, that other

officers told him that certain witnesses were not cooperating with the police, and that statements by

various witnesses were consistent with Fong’s and his wife’s testimony. Officer Nguyen also

testified that he had received differing accounts regarding the existence of a weapon during the

assault, with one witness telling him that it was Fong who had a weapon, and other witnesses

contradicting that statement. Finally, Fong testified that he learned from other officers that the

Appellant and his brother were not at the apartment complex when the police looked for them.

       2
           The facts are summarized from the testimony and exhibits admitted into evidence at trial.
       3
         Daniel Fong is also referred to as “Ernesto Cruz” throughout the record, but we will refer
to him only as “Fong” to avoid confusion.

                                                  2
               Officer Hidalgo testified, relevant here, that Fong’s stepson told him that Appellant

and appellant’s brother, with one other suspect, assaulted Fong and that Fong did not have a weapon

during the incident. Officer Hidalgo testified that appellant’s mother identified herself as the

manager of the apartment complex where the incident occurred. According to Officer Hidalgo,

appellant’s mother told him that she had not witnessed the assault, but that Fong had a knife during

the assault. Finally, Officer Hidalgo testified that the witness statements that he received were

consistent with statements made by Fong’s stepson and appellant’s mother and that the information

he had received from witnesses was consistent with information received by the other police officers.

               Yolanda Cruz, Fong’s wife, testified about appellant’s previous conduct. Specifically,

she testified that she had observed Appellant bullying teenagers, including her own children, around

the apartment complex. She also testified about a confrontation on December 31, 2014, where

Appellant attempted to kick down the door to Fong’s apartment.

               After the close of testimony, the jury returned a verdict of guilty against Appellant

on the count of aggravated assault with a deadly weapon. The jury assessed punishment at nine years

in the Texas Department of Criminal Justice, Institutional Division. This appeal followed.


                                            Discussion

               Appellant challenges his conviction in five issues, arguing that (1) he received

ineffective assistance of counsel because his trial counsel failed to object to fifteen instances of

hearsay; (2) he received ineffective assistance of counsel because his trial counsel failed to object

to portions of Officer Hidalgo’s testimony; (3) the trial court erred in allowing Yolanda Cruz’s

testimony on appellant’s “bullying” to be admitted; and (4) he received ineffective assistance of

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counsel by failing to object to Yolanda Cruz’s testimony under Texas Rule of Evidence 404; and (5)

the trial court erred in allowing the prosecutor to improperly argue to the jury that appellant’s mother

had intimidated witnesses.


Extraneous Misconduct Evidence

                We begin by addressing appellant’s third issue, asserting that the trial court erred in

admitting, over objection, Yolanda Cruz’s testimony that she had witnessed Appellant bullying

teenagers at the apartment complex. According to Appellant, the trial court’s decision to admit this

testimony violated Rule 404(b) of the Texas Rules of Evidence, which prohibits the admission of

“[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with the character.” Tex. R. Evid. 404(b)(1).

                To preserve a claim of error in the admission of extraneous offenses, a defendant

must make a timely, specific objection and obtain a ruling on the objection. See Tex. R. App. P.

33.1(a); Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). In addition, the argument

on appeal must correspond to the objection made at trial. See Broxton v. State, 909 S.W.2d 912, 918

(Tex. Crim. App. 1995). Here, Appellant’s counsel allowed the line of questioning to continue and

did not object when Yolanda Cruz testified that Appellant and his brothers would “bully the

teenagers around.” Appellant’s counsel made no objection regarding the bullying testimony until

Yolanda began to describe the bullying in more detail, and his objection at that time was that the

testimony was “outside the scope of this portion of the trial.” At no point did Appellant’s counsel

object that the testimony was inadmissible under Texas Rule of Evidence 404. On this record,

Appellant has failed to preserve his complaint of error, and we overrule Appellant’s third issue.

                                                   4
Ineffective Assistance of Counsel

                In his first, second, and fourth issues, Appellant asserts various shortcomings to argue

that he received ineffective assistance of counsel. Specifically, Appellant claims that because his

attorney failed to (1) object to multiple hearsay statements, (2) object to Officer Hidalgo and Officer

Smith testifying as to their opinions that Appellant had perpetrated the assault against Fong, and (3)

object to the testimony by Yolanda Cruz regarding his extraneous misconduct under Texas Rule of

Evidence 404.

                We review claims of ineffective assistance of counsel under the two-prong test

established in Strickland v. Washington, 466 U.S. 668, 687 (1984) and Hernandez v. State,

726 S.W.2d 53, 57 (Tex. Crim. App. 1986). In order to reverse a conviction on an ineffective

assistance of counsel claim, an Appellant must establish that (1) counsel made errors so serious that

counsel no longer functioned as “counsel” guaranteed by the Sixth Amendment, and (2) the errors

prejudiced the defense so as to deprive the Appellant of a fair trial whose result is reliable.

Strickland, 466 U.S. at 687. The proper standard for deficiency is whether the challenged conduct

fell below an objective standard of reasonableness. Id. at 688. To establish prejudice, an Appellant

must show that there is a reasonable probability that, but for the challenged conduct, the result of the

proceeding would have been different. Id. at 694. Any allegation of ineffective assistance must be

firmly founded in the record, and the record must affirmatively demonstrate the alleged

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

other grounds, Mosely v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). Judicial review is highly

deferential to trial counsel and subject to a strong presumption of reasonable assistance. Thompson



                                                   5
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To overcome the presumption of reasonable

assistance on a record silent on the motivations behind counsel’s decisions, the record must

demonstrate that counsel’s performance fell below an objective standard of reasonableness as a

matter of law and that no reasonable trial strategy could justify counsel’s acts or omissions regardless

of subjective reasoning. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). In such cases

when the record is silent, an appellant usually cannot overcome the presumption of reasonable

assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).


        Failure to lodge hearsay objections

                Appellant contends that his trial counsel’s failure to object to the following fifteen

instances of hearsay testimony was ineffective assistance of counsel.

        1.      Officer Nguyen testified that statements by Yolanda on the night of the
                incident were “consistent with” statements by Fong;

        2.      Officer Nguyen testified that while one witness at the scene claimed that
                Fong had a weapon, three other witnesses at the scene contradicted this;

        3.      Officer Nguyen testified that information in his recorded interviews with
                witnesses was “consistent with” statements given by Fong and Yolanda;

        4.      Officer Nguyen testified that he had learned that Appellant and his brother
                Rudy had fled the apartment complex after the fight;

        5.      Officer Nguyen testified that he had heard from other officers that witnesses
                at the scene were not cooperative;

        6.      Officer Hidalgo testified that he had heard from Fong’s stepson, Jose Davila,
                that Fong had been assaulted by Appellant and his brothers;

        7.      Officer Hidalgo testified that Davila told him that Fong had been “jumped”
                by his upstairs neighbors;



                                                   6
       8.      Officer Hidalgo testified that Davila told him that Fong did not have a knife
               during the fight;

       9.      Officer Hidalgo testified that statements from an unidentified witness were
               “consistent with” statements by Davila and Appellant’s mother;

       10.     Officer Hidalgo testified that information he had received was “consistent
               with” information received by other officers;

       11.     Officer Hidalgo testified that Appellant’s mother, Mary, informed him that
               Appellant had not been injured in the fight and was not going to the hospital;

       12.     Officer Smith testified that Fong’s stepson, Andrew Davila, had told him that
               four people assaulted Fong;

       13.     Smith testified that Davila told him that one of the assailants had used a
               bottle in the fight;

       14.     Smith testified that, after reviewing notes with other officers, Davila’s claims
               were “consistent” with statements from other witnesses while another
               witness’s were not; and,

       15.     Fong testified that his wife had warned him that Appellant was going to beat
               him up.

               Initially, we note that with regard to statement numbers 1, 3, 9, 10, and 14, the Texas

Court of Criminal Appeals has held that testimony stating whether out-of-court statements are

consistent with one another is not hearsay because it does not reveal the contents of the out-of-court-

statement. See Head v. State, 4 S.W.3d 258, 262 (Tex. Crim. App. 1999) (en banc). To that extent,

trial counsel’s failure to object to these statements as hearsay was not deficient representation.

               Regarding the remainder of the challenged testimony, we note that the record in this

case does not provide any explanation for why appellant’s trial counsel did not object to the

foregoing testimony at trial, but a complete review of the record suggests that trial counsel may have

allowed the testimony to help develop appellant’s self-defense strategy or to question witness

                                                  7
credibility by highlighting inconsistencies in the testimony. For example, his counsel referenced

hearsay statements by the officers in his closing argument and noted that the officers “come back and

testify about consistency even though they didn’t see anything personally.” He used the statements

made by the officers in an attempt to question their credibility and, by extension, to test prosecution

theories such as the claim that the fight was not mutual combat. In sum, this record does not support

the contention that no reasonable trial strategy could support the failure to object to this testimony.

We overrule appellant’s first appellate issue.


         Failure to object to officers’ opinion testimony

                In his second issue, Appellant argues that his counsel’s failure to object to opinion

testimony given by Officer Hidalgo and Officer Smith’s testimony constitutes ineffective assistance.

Specifically, Appellant asserts that his trial counsel should have objected to the following testimony

by Officer Hidalgo:


         Q:     And is that—are those differences in demeanor consistent with the
                determination you made as to who was a victim and who was a perpetrator?

         A:     Yes, sir. Well, even Mary herself had said that Daniel was the one that was
                going to the hospital. And we kept asking her if any of her sons were hurt or
                injured or needed medical attention, and she said no.

He also asserts that his trial counsel should have objected to the following testimony from Officer

Smith:

         Q:     Did you hear any facts that were provided to you that would indicate that this
                was mutual combat between Daniel Fong and the perpetrators?

         A:     Not on that night, no, sir.



                                              8
       .....

       Q:      So back, kind of, to the initial question that brought all this about. From all
               of the individuals that you had spoken to and the evidence that was
               collected, did you form an opinion that this was mutual combat back on
               January 3rd of 2015?

       ....

       A:      I’m sorry. No, I did not—based on the fact that I had only seen one victim
               at the time and the other subjects had left the scene, to me, at that time, I
               would have leaned more towards it not being mutual combat because I did
               not see the other people that were involved.


               Appellant’s trial counsel used the testimony of the officers to criticize the

investigation and to undermine their credibility. As the State argues on appeal, this could have been

a deliberate choice to impeach the officers’ credibility, especially regarding the argument that the

fight had not been mutual combat. On this record, Appellant has failed to demonstrate that failure

to object to these statements by Officer Hidalgo and Officer Smith was deficient.


       Failure to object to extraneous-offenses testimony

               In his fourth issue, Appellant contends that his trial counsel should have objected on

Rule 404(b) grounds to Yolanda Cruz’s testimony regarding appellant’s past instances of bullying,

and that his failure to do so constitutes ineffective assistance of counsel. We disagree.

               If the challenged evidence was likely admissible, the failure to object does not rise

to the level of deficient performance. See West, 474 S.W.3d at 792. When self-defense is raised

as an affirmative defense, the State may introduce evidence of prior aggressive acts to establish

intent and rebut the defense. Vidal v. State, No. 11-04-00194-CR, 2006 WL 571894 at *1 (Tex.



                                                  9
App.—Eastland Mar. 9, 2006, pet. ref’d) (mem. op.) (not designated for publication). Yolanda

Cruz’s testimony could have been admissible under Rule 404(b)(2) as evidence of intent. See Tex.

R. 404(b) (allowing evidence of prior acts for another purpose, including “proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”).

Appellant’s counsel had already raised the issue in questioning Fong about whether he initiated the

fight. Appellant raised this defense, and admitting Yolanda’s testimony to rebut this defense would

have been appropriate. Accordingly, Appellant has failed to demonstrate that failure to object to

Yolanda’s statements under Rule 404 was so deficient as to amount to ineffective assistance of

counsel.

               Having determined that Appellant has failed to satisfy the first (deficiency) prong of

the Strickland test, we need not consider the remaining prong. See Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009). Accordingly, we overrule Appellant’s first, second, and fourth

issues.


Improper Jury Argument

               As his fifth issue, Appellant contends that the court erred in overruling his objection

to the prosecutor’s statement in closing argument that witnesses were afraid to testify because

“[appellant’s mother] is the one [sic] decides whether or not to sign up and take you application, give

you a house to live in, or whether or not you get evicted.” Specifically, Appellant asserts this was

improper jury argument because the statement is unsupported by the evidence. See Brown v. State,

270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (“proper jury argument generally falls within one of




                                                  10
four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence;

(3) answer to argument of opposing counsel; and (4) plea for law enforcement.”).

               To preserve a claim of error regarding improper jury argument, a defendant must

object each time that the argument is made, or else the complaint is waived. See Tex. R. App. P.

33.1(a); Temple v. State, 342 S.W.3d 572, 603 (Tex. App.—Houston [14th Dist.] 2010, aff’d

390 S.W.3d 341 (Tex. Crim. App. 2013)). Here, the prosecutor raised the intimidation issue on at

least two occasions, but Appellant only objected to the latter instance. Earlier in his closing

argument, the prosecutor referenced the intimidation issue when he argued:


       “Unfortunately, many of you probably have not had the experience of living in an
       apartment and living in an apartment complex like Mr. Fong did, where every day
       he’s got to go to that apartment knowing that this defendant and each and every one
       of his family members are there to make the decision on whether or not he has a
       place to lay his head, along with his wife and all of the other kids that live in the
       home with him. Think about that. Mary, his mother, runs that place with the help
       of who? You. They run that place. Bullies.”


Appellant’s failure to object on each occasion constitutes a waiver of error. See id. (“A defendant

must object each time an improper argument is made, or he waives his complaint, regardless of how

egregious the argument.”). Accordingly, we overrule Appellant’s fifth issue.


                                           Conclusion

               Having overruled all of Appellant’s issues, we affirm the district court’s judgment.



                                             _________________________________________
                                             Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Field

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Affirmed

Filed: August 28, 2018

Do not publish




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