Affirmed and Opinion filed November 19, 2013.




                                         In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00816-CR

                        MARTIN VASQUEZ, Appellant

                                          V.
                      THE STATE OF TEXAS, Appellee

                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Cause No. 1352006

                                 OPINION
      Appellant Martin Vasquez appeals his felony conviction for failing to
register as a sex-offender. We affirm.

                                   Background

      Appellant was convicted on April 23, 1991, of sexual assault of a child and
placed on ten years’ probation. See Tex. Penal Code § 22.011 (Vernon 2011).
Appellant’s probation was revoked in 1997, and he was sentenced to two years’
confinement. Appellant was released from prison on April 26, 1999. Appellant
signed a pre-release notification form stating that he had a lifetime duty to report to
law enforcement annually. Appellant had a 60 day window to report each year —
30 days before or after his birthday. In addition, appellant was required to report
any change of address.

        Appellant was convicted of failing to register as a sex-offender in 2001 and
2005.     See Tex. Code Crim. Proc. Ann. art. 62.102 (Vernon Supp. 2013).
Appellant successfully registered with the Houston Police Department in 2007,
2008, 2009, and 2010. Appellant did not register in 2011.

        Appellant was stopped by Houston Police Department Officer Alms on
November 14, 2011, for running a stop sign while riding a bicycle. When Officer
Alms checked appellant’s information in the police system, he discovered
appellant was a registered sex-offender. He also discovered a discrepancy between
the home address reported for appellant and the address appellant provided.
Further investigation revealed that appellant failed to register in 2011.

        Appellant was indicted on January 26, 2012 for failure to comply with sex-
offender registration requirements. At trial, appellant elected to testify during the
guilt-innocence phase. Trial counsel advised appellant against testifying. During a
hearing outside the jury’s presence, trial counsel informed appellant that if he
elected to testify, his criminal history would come in and he would be vigorously
cross-examined by the prosecutor. Appellant testified that he was unaware of his
duty to report because it was not in the original “contract” that he received when he
was convicted of sexual assault of a child.

        A jury convicted appellant and the trial court assessed punishment with
enhancement at eight years’ confinement. Appellant did not file a motion for new
trial. This appeal followed.
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                                      Analysis

      Appellant contends that he was denied his right to effective counsel under
the Sixth Amendment of the United States Constitution because his attorney: (1)
failed to object during the guilt-innocence phase to the introduction into evidence
of jail cards which improperly communicated inadmissible information including
appellant’s prior felony conviction for failure to register; and (2) elicited testimony
during direct examination regarding appellant’s 2005 conviction for failure to
register as a sex-offender.

      To prevail on a claim for ineffective assistance of counsel, an appellant must
show by a preponderance of the evidence that (1) trial counsel’s performance fell
below the objective standard of reasonableness; and (2) the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
also Hernandez v. State, 726 S.W. 2d 53, 57 (Tex. Crim. App. 1986).

      To satisfy Strickland’s first prong, the appellant must identify acts or
omissions of counsel that allegedly were not the result of reasonable judgment.
Strickland, 466 U.S. at 690. A defendant must overcome the presumption that trial
counsel’s actions fell within the wide range of reasonable and professional
assistance. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). If the
reasons for counsel’s conduct at trial do not appear in the record and it is possible
that the conduct could have been grounded in legitimate trial strategy, an appellate
court will defer to counsel’s decisions and deny relief on an ineffective assistance
claim on direct appeal. Id.; see also Menefield v. State, 363 S.W.3d 591, 593 (Tex.
Crim. App. 2012). To warrant reversal when trial counsel has not been afforded an
opportunity to explain his reasons, the challenged conduct must be “so outrageous
that no competent attorney would have engaged in it.” Roberts v. State, 220
S.W.3d 521, 533-34 (Tex. Crim. App. 2007).

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      To satisfy Strickland’s second prong, the appellant must establish a
reasonable probability that, but for counsel’s errors, the result would have been
different. Strickland, 466 U.S. at 694.

      Failure to satisfy either prong defeats an ineffective assistance claim. Id. at
697. In determining whether counsel was ineffective, we consider the totality of
the circumstances of the particular case. Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999).

I.    Impeachment with Prior Felony Conviction

      Because the asserted inadmissibility of appellant’s 2005 conviction
undergirds both of appellant’s issues, it is helpful to discuss admissibility at the
outset. See Tex. R. Evid. 609(a). Appellant claims that his 2005 conviction was
inadmissible under Theus v. State, 845 S.W.2d 874, 880-81 (Tex. Crim. App.
1992).

      A defendant who testifies places his credibility at issue and may be
impeached like any other testifying witness. Geuder v. State, 142 S.W.3d 372, 375
(Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).        Texas Rule of Evidence
609(a) provides that prior convictions for felonies or for crimes involving moral
turpitude are admissible to impeach a witness’s credibility for truthfulness if the
court determines that the probative value of admitting this evidence outweighs its
prejudicial effect to a party. Tex. R. Evid. 609(a).

      Theus sets out a nonexclusive list of factors to be considered when weighing
the probative value of a conviction against its prejudicial effect: (1) the
impeachment value of the prior crime; (2) the temporal proximity of the past crime
relative to the charged offense and the witness’s subsequent history; (3) the
similarity between the past crime and the charged offense; (4) the importance of


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the witness’s testimony; and (5) the importance of the witness’s credibility. Theus,
845 S.W.2d at 880.

      A.     Impeachment Value

      Crimes involving deception have a higher impeachment value than crimes of
violence, and the latter have a higher potential for prejudice. Appellant contends
that his 2005 conviction for failure to register as a sex-offender is not a crime of
deception. Whether a crime involves deception depends on whether the crime is
the type that bears on the defendant’s character for truthfulness. Id. at 877.

      We agree with the State that failing to register as a sex-offender bears on the
defendant’s character for truthfulness. To register as a sex-offender, a defendant
must disclose statutorily required information to law enforcement. See Tex. Code
Crim. Proc. Ann. art. 62.051 (Vernon Supp. 2013). Registration and notification
provisions serve to facilitate law enforcement’s monitoring of sex-offenders and to
alert the public so appropriate precautions may be taken. See Tristan v. State, 393
S.W.3d 806, 812 (Tex. App.—Houston [1st Dist.] 2012, no pet.). A convicted sex-
offender may desire to conceal his information for a number of reasons, including
evading monitoring by law enforcement and detection by the public.                Id.
Appellant, by failing to register, concealed information from the public. This
factor favors admission.

      B.     Temporal Proximity

      The temporal proximity of the past crime to the charged offense and the
witness’s subsequent history favors admission if the crime in question is recent and
the witness has a demonstrated pattern of running afoul of the law. Theus, 845
S.W.2d at 881. Appellant was convicted of failing to comply as a sex-offender in
2001 and 2005; the trial in this case occurred in August 2012. The relative recency


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of the 2005 conviction favors admission. See Huerta v. State, 359 S.W.3d 887,
893 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

      C.     Similarity

      Similarity between the past crime and the charged offense weighs against
admissibility of a prior conviction. Theus, 845 S.W.2d at 881. Theus reasoned that
admitting evidence of a similar prior crime for impeachment purposes “presents a
situation where the jury would convict on the perception of a past pattern of
conduct, instead of on the facts of the charged offense.” Id. Because the crimes at
issue here are identical, this factor favors inadmissibility.

      D.     Importance of Witness’s Testimony and Credibility

      In regard to the final two factors, Theus states that “when the case involves
the testimony of only the defendant and the State’s witnesses . . . the importance of
the defendant’s credibility and testimony escalates” and “so will the need to allow
the State an opportunity to impeach the defendant’s credibility.” Id. Appellant
was the sole witness in his defense. Appellant’s credibility was an important issue
in the case because the case involved only his testimony and the testimony of the
State’s witnesses. Thus, factors four and five favor admission.

      Considering the Theus factors, we conclude that, had counsel objected in the
trial court, it would not have been an abuse of discretion for the trial court to have
ruled appellant’s 2005 conviction admissible under Texas Rule of Evidence 609.

II.   Failure to Object to Admission of Jail Cards

      In his first issue, appellant contends that his trial counsel was ineffective in
failing to object to the admission of evidence of extraneous bad acts during the
guilt-innocence phase of trial. The evidence consisted of jail cards containing
information that appellant (1) was arrested in court and convicted in 1987 for

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resisting arrest; (2) was convicted in 2005 for failing to register as a sex-offender;
(3) had his bond revoked and a new bond of $30,000 set in 2005; (4) was ordered
to undergo a “psych exam” in prison; and (5) had hepatitis C. Appellant argues
that there was no conceivable trial strategy for trial counsel’s failure to object to
the admission of jail cards containing this information.

      A.     Strickland’s First Prong

      Appellant did not raise the issue of ineffectiveness in a motion for new trial,
and the record is devoid of any evidence of trial counsel’s strategy. Facing a silent
record, we will not conclude that trial counsel’s performance was constitutionally
deficient if it is possible that his decisions were grounded in legitimate trial
strategy. See Garza, 213 S.W3d at 348.

      Much of the evidence contained in the jail cards became admissible when
appellant testified. See Geuder, 142 S.W.3d at 375; see also Powell v. State, 63
S.W.3d 435, 438 (Tex. Crim. App. 2001). As discussed above, appellant’s 2005
conviction was admissible for impeachment purposes; therefore, it is possible that
trial counsel did not object to the admission of other evidence contained in the jail
cards in an effort to gain credibility with the jury. See Huerta, 359 S.W.3d at 894
(Counsel may refrain from objecting to prejudicial evidence in an effort to make
appellant appear more honest, to minimize the seriousness of the earlier offense, or
to avoid drawing unwanted attention to a particular issue.). Further, an isolated
failure to object to improper evidence does not constitute ineffective assistance of
counsel. See Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012);
Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Appellant has not
satisfied Strickland’s first prong on this record.




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      B.     Strickland’s Second Prong

      Appellant also failed to demonstrate a reasonable probability that, but for
counsel’s asserted errors, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 687.

      Even if trial counsel had objected to the jail cards, the jury could have
learned about the 2005 conviction when he testified. See Powell,63 S.W.3d at 438
(Evidence of prior bad acts is admissible to rebut a defensive theory.).         In
analyzing the admissibility of the 2005 conviction, we determined that it was
admissible for impeachment purposes, but the same evidence also is admissible as
substantive evidence rebutting appellant’s defensive theory. See id. Appellant
testified that he was unaware that he was required to register because he never
received any admonishments regarding registering as a sex-offender. The State
would have been able to rebut appellant’s defensive theory with evidence of
appellant’s prior convictions for the same offense. See id.

      Appellant argues in passing that he was prejudiced by admission of
information contained in the jail cards concerning (1) the 1987 conviction, (2) the
bond revocation, (3) the “psych exam” in prison, and (4) hepatitis C. However, it
is likely that appellant would have been convicted even if this information had not
been admitted because the remaining evidence is sufficient to support his
conviction. The State proffered and the trial court admitted evidence that appellant
signed several documents specifying that he had a duty to register as a sex-offender
for the remainder of his life. Evidence also was presented that appellant failed to
comply with sex-offender registration requirements by failing to register and not
updating his address in 2011. This evidence alone defeats any effort to satisfy
Strickland’s second prong. See Ex parte Martinez, 330 S.W.3d 891, 904 (Tex.
Crim. App. 2011) (no reasonable probability that the outcome of the trial would

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have been different when elements of the offense were proven despite admission of
evidence that defendant was a gang member); Ex parte Napper, 322 S.W.3d 202,
249-51 (Tex. Crim. App. 2010) (no reasonable probability that admission of
potentially flawed DNA evidence affected the outcome of trial).

       We overrule appellant’s first issue.

III.   Eliciting Improper Testimony

       In his second issue, appellant argues that trial counsel was ineffective
because he elicited testimony during direct examination of appellant regarding
appellant’s prior convictions for failure to register as a sex-offender. During direct
examination of appellant, the following exchange occurred:

       DEFENSE COUNSEL: All right, sir. Now — okay. Now, you have a
       criminal history, correct?
       APPELLANT: One criminal conviction —
       DEFENSE COUNSEL: Listen to me.
       APPELLANT: — from 1991. Yes. Excuse me.
       DEFENSE COUNSEL: I’ll let the prosecutor go into details, but
       you’ve been convicted of a felony, right?
       APPELLANT: Yes, sir.
       DEFENSE COUNSEL: Sexual assault of a child; is that correct?
       APPELLANT: That’s what the [judgment] . . . was, the conviction
       was, yes, it was.
       DEFENSE COUNSEL: You’ve had some convictions after that,
       right?
       APPELLANT: No crime against society or a victim, but because it is
       — compliance, yes.
       DEFENSE COUNSEL: So, you have a [sic] failed to register. You’ve
       been convicted of that, correct? Is that right?
       APPELLANT: It wasn’t a court order, but, yes.


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Appellant contends that trial counsel could have no reasonable trial strategy for
eliciting this testimony before the jury.

       Because the record does not provide the reasons for trial counsel’s conduct,
we will not conclude that his decisions were deficient if it is possible that they
were grounded in legitimate trial strategy. See Garza, 213 S.W3d at 348. We
presume on this record that trial counsel acted reasonably in eliciting testimony
from appellant regarding the 2005 conviction. See Huerta, 359 S.W.3d at 891 (A
defense attorney may choose to elicit testimony from the accused as to his prior
conviction to remove the sting from an attack that would otherwise come from the
State.).

       Further, even if trial counsel acted unreasonably, appellant cannot
demonstrate harm because there has been no showing that, but for counsel’s
conduct in eliciting testimony, the outcome would have been different.           As
discussed above, the State provided ample evidence that appellant knew of his duty
to register annually but failed to register and update his address in 2011. Thus, we
overrule appellant’s second issue.

                                     Conclusion

       Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.




                                        /s/      William J. Boyce
                                                 Justice


Panel consists of Chief Justice Frost and Justices Boyce and Jamison.
Publish — Tex. R. App. P. 47.2(b).

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