           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                         NOS. WR-67,880-03 & WR-67,880-04



                    EX PARTE LUCKY JOHN LUNA, Applicant



            ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
                 CAUSE NOS. F-0231777-VQ & F-0500345-KQ
          IN THE 204TH DISTRICT COURT FROM DALLAS COUNTY

       Per curiam. W OMACK, J., dissented.

                                      OPINION

       After pleading guilty without a plea bargain, Lucky John Luna was sentenced by

Senior District Judge Gary Stephens to consecutive terms of fifteen and ten years’

confinement for the aggravated sexual assault and sexual assault of E.M., respectively. Luna

filed applications for a writ of habeas corpus arguing, among other things, that he received

ineffective assistance of counsel at punishment. On the recommendation of Judge Lena

Levario, the habeas judge, we granted Luna new punishment hearings. We subsequently

granted the State’s motions for rehearing, remanded the applications, and directed Judge

Levario to order Judge Stephens to respond to Judge Levario’s findings of fact. After
                                                                                    LUNA—2

reviewing the supplemented record, we find Judge Levario’s recommendation to be flawed

and deny Luna relief.

       In his applications for a writ of habeas corpus, Luna asserted the following bases in

support of his ineffective-assistance-of-counsel claim:

       •       Counsel failed to adequate prepare him to testify at the punishment
               hearing that he intended to marry the victim of both cases (who was
               thirteen years old at the time of the abuse);

       •       Counsel failed to call available punishment witness;

       •       Counsel failed to object to the State’s elicitation of inadmissible lay-
               witness testimony from a Child Protective Service worker who testified
               that Luna would likely re-offend if placed on probation;

       •       Counsel failed to make reasonably competent efforts to preclude
               admission of the substance of a conversation between Luna and the
               court’s bailiff

       •       Counsel had a conflict of interest; and

       •       Counsel failed to present the “bailiff’s interrogation” evidence in his
               motion for new trial.

       Judge Levario concluded that Luna received ineffective assistance of counsel and

recommended we grant relief. She entered the following findings of fact:

       •       “It is common knowledge among Dallas criminal attorneys that the
               visiting judge who presides over child abuse cases will discuss the case
               in chambers with counsel prior to any trial/hearing. During that
               conversation, the Court will indicate whether he will grant probation
               based on the facts of the case. This Court finds that such conversation
               and “promise” occurred in this case”;1



      1
           Findings of Fact and Conclusions of Law, at 3–4 (Sept. 27, 2013).
                                                                                     LUNA—3


       •         “[D]efense counsel did not prepare Applicant to testify. The facts of
                 this case were such that Applicant should have admitted to the Court
                 that he wished to marry the complainant when he was initially
                 questioned about it. That was a major consideration for the presiding
                 judge—especially due to the fact that the complainant has a child
                 (possibly two) fathered by Applicant”;2 and

       •         “Counsel failed to object to lay-witness testimony, by a CPS
                 investigative worker, that Applicant was likely to re-offend. Also,
                 counsel elicited evidence of an extraneous offense. Counsel also failed
                 to object to admission of any evidence procured from a discussion
                 [Luna] had with the court bailiff.” 3

       In response to our remand order, Judge Stephens reviewed Judge Levario’s findings

and conclusions and stated, by way of affidavit, that Judge Levario’s findings previously

entered “are not supported by my personal recollection and they are not consistent with my

sentencing practices.”4 Regarding Judge Levario’s finding that it is the common practice of

visiting judges to discuss the case with counsel and indicate whether he will grant probation

on the facts of the case, Judge Stephens unequivocally stated that

       at no time during any discussion with counsel (with the State present) do I tell
       or promise any attorney how I will rule in a case. I always consider the full
       range of punishment in a case and I never make a ruling on punishment
       without hearing and considering all of the evidence that is presented.5

In her supplemental findings, Judge Levario acknowledged Judge Stephens’s testimony, but


       2
           Id. at 4.
       3
           Id.
       4
           3 C.R. 7 (2nd supp.) (Affidavit of Judge Gary R. Stephens).
       5
           Id.
                                                                                   LUNA—4

nonetheless concluded that Luna received ineffective assistance of counsel.

       Judge Levario’s findings that (1) it is common knowledge that visiting judges

presiding over child-abuse cases will discuss the case with counsel prior to a proceeding, and

(2) Judge Stephens promised to give Luna probation are expressly contradicted by Judge

Stephens’s affidavit. They are further contradicted by the record of Luna’s sentencing

hearing:

       [COURT]: You told me you understood what you were charged with. I told
       you then that there is no plea bargain. I explained that a plea bargain is an
       agreement between you, your lawyer and the State on punishment.
               There was no plea bargain so you entered your plea. I accepted your
       pleas of guilty in each case and passed the case until today so that I could
       decide your punishment.
              I have received from the probation department a probation report on
       you. In that report you told the probation officer that you thought you had an
       agreement for probation.
              I never told you that there was any agreement, did I?

       THE DEFENDANT: No. I thought that’s what it was for.

       THE COURT: Do you understand that there’s been no agreement?

       THE DEFENDANT: I understand now; yes, sir.

       THE COURT: I’m not saying you’re not going to get probation. I’m not
       saying you are. I don’t know. I have not heard the evidence.

       THE DEFENDANT: She explained it to me.

       THE COURT: So you understand that you’re in here today for me to hear
       testimony and that based on that testimony decide the appropriate punishment?
                                                                                        LUNA—5

       THE DEFENDANT: Yes, sir.6

Accordingly, we hold those findings are not supported by the record, and are not entitled to

any deference.

       As to Luna’s allegation that counsel was deficient for failing to prepare him to testify

at punishment, specifically that Luna tell the judge that he wanted to marry E.M., we

conclude that, even assuming that counsel performed deficiently, he is unable to demonstrate

prejudice.7 Judge Stephens directly questioned Luna about Luna’s feelings for the victim:

       COURT:            How do you feel about her now?

       LUNA:             How do I feel about [E.M.]? I still love her and care about her.

       COURT:            As a child or as a lover?

       LUNA:             Well, as a child but now it has escalated. I mean, I care about
                         her a lot. I care a lot about her and now that she does have my
                         baby, you know. I mean, I’ve always cared about her but not
                         like, you know.

       COURT:            It sounds to [me] like she wants you to marry her and raise her
                         child and have a family, a future with you. Is that what you
                         want?

       LUNA:             I don’t see it happening. I really don’t see something like that
                         happening now that [this] has just gone this far like this and all




       6
           3 R.R. 4–5.
       7
         See Strickland v. Washington, 466 U.S. 668, 694 (1984) (“The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”).
                                                                                  LUNA—6

                        the trouble [] I’m in.8

When the hearing continued the next day, Luna’s testimony changed considerably. He stated

unequivocally that he wanted to marry E.M. and provide for his new family.

       The original factual findings state that Luna “should have admitted to the Court that

he wished to marry the complainant when he was initially questioned about it. That was a

major consideration for the presiding judge—especially due to the fact that the complainant

has a child (possibly two) fathered by Applicant.” Judge Stephens’s affidavit is silent on

whether Luna’s intent to marry E.M. was a “major consideration” in assessing punishment.

       The punishment-hearing record, however, suggests that it was not. Evidence admitted

in the punishment hearing established by DNA testing that Luna fathered at least one child

with E.M. E.M.’s other child was not tested, but both E.M. and Luna testified that while on

bond for the first case, they repeatedly had sex. Luna’s paternity of the other child was

uncontested. Judge Stephens stated that he knew Luna violated the no-contact order as a

condition of his bond and was having sex with the victim (which resulted in her pregnancy)

while the first case was pending. He then expressed considerable concern about Luna’s

ability to comply with probation in light of the flagrant violations of court-imposed rules.

Judge Stephens stated,

              Mr. Luna, I keep getting all kind of different answers from you. What
       is obvious is you’ve ignored all of my orders right up until about a month or
       so ago.



       8
           3 R.R. 97.
                                                                                    LUNA—7

               You are charged with aggravated sexual assault on a child. You
       continue to see that child. You impregnated that child while you’re on bond.
       Now she has two kinds by you. Well, we know for sure one; the other one is
       just suspected to be by you.

               You groomed that child with cash and favors and then you, who was a
       father figure to the child became father to your own child’s children. I can’t
       ignore that. I’m finding you guilty in both cases. 9

       Furthermore, Judge Levario’s findings that counsel should have prepared Luna to give

certain testimony does not establish that Luna was prejudiced by this allegedly deficient

performance. “An assessment of the likelihood of a result more favorable to the defendant

must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification’ and the like .

. . . It should not depend on the idiosyncracies of the particular decisionmaker, such as

unusual propensities toward harshness or leniency.”10 The finding that Luna’s intent to marry

E.M. was a “major consideration for the presiding judge” does just that. Judge Levario’s

prejudice conclusion carries with it the improper implication that if Luna had stated an intent

to marry E.M., Luna would have received probation because of the judge’s propensity to

mete out lighter sentences in those situations. Likewise, Luna cannot show that he was

prejudiced by counsel’s failure to call Luna’s parents to testify about Luna’s long-held

intention to marry E.M. and provide for their kids. On review of the record, we hold that

Luna cannot establish that, had he initially stated an intent to marry E.M. and had counsel

offered testimony to support that claim, there is a reasonable probability that he would have


       9
            4 R.R. 30.
       10
            Strickland, 466 U.S. at 695.
                                                                                   LUNA—8

received different punishment.

       Luna alleged that counsel was ineffective by failing to object to a CPS worker’s

testimony that Luna would most likely re-offend and was told that Luna sexually abused

another person in addition to E.M. Assuming the CPS worker’s testimony was inadmissible,

Luna is unable to demonstrate that had this testimony been excluded, the judge would have

sentenced him differently. Accordingly, Luna is unable to establish that his counsel was

ineffective in this regard.

       Luna also claims that counsel failed to object to the State’s cross-examination that

Luna’s change of heart was the result of speaking with the court’s bailiff, who allegedly told

Luna that he blew his chance at receiving probation for not telling Judge Stephens that Luna

wished to marry E.M. Judge Levario found that counsel did not object. But counsel did

object to evidence that Luna changed his testimony because of a discussion he had with the

court’s bailiff during a recess. Judge Stephens sustained the objection and noted that he was

not interested in any conversation Luna may have had with the court’s bailiff during a recess

in the punishment hearing. Therefore, even if counsel’s conduct was deficient as alleged,

Luna is unable to establish that he was prejudiced by it.

       We further hold that the remaining bases for Luna’s ineffective-assistance-of-counsel

claims are without merit. Luna fails to demonstrate “(1) that his counsel was burdened by

an actual conflict of interest and (2) that the conflict had an adverse effect on specific
                                                                                   LUNA—9

instances of counsel's performance.”11 Lastly, Luna does not provide any facts to support his

allegation that counsel was ineffective for failing to present the “bailiff’s interrogation”

evidence in his motion for new trial. He does not allege how counsel should have raised such

information or how it would have resulted in his motion for new trial being granted instead

of being denied.

       Luna complains that he was denied his federal constitutional rights in the punishment

hearing because the introduction of the nature and substance of the conversation between

Luna and the court’s bailiff was the product of the functional equivalent of custodial

interrogation without receiving the proper warnings. The State’s cross-examination used the

substance of the conversation to argue that Luna changed his testimony only because he

thought it would better his odds in receiving probation. This ground should have been raised

on direct appeal and is therefore not available on collateral review.12

       Accordingly, Luna’s applications for a writ of habeas corpus are denied.


DELIVERED: November 19, 2014

DO NOT PUBLISH




       11
            Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007).
       12
            Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989).
