Opinion filed May 23, 2013




                                    In The


        Eleventh Court of Appeals
                                 __________

                             No. 11-11-00123-CR
                                 __________

              DANIEL GARCIA HERNANDEZ, Appellant

                                      V.

                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 385th District Court
                             Midland County, Texas
                         Trial Court Cause No. CR37118


                      MEMORANDUM OPINION
      The jury convicted Daniel Garcia Hernandez of two counts of aggravated
assault with a deadly weapon and assessed his punishment at confinement in the
Institutional Division of the Texas Department of Criminal Justice for a term of
two years on each count. The trial court sentenced him accordingly and ordered
his sentences to run concurrently.       Because we find that defense counsel’s
assistance was ineffective, we reverse and remand.
      Hernandez presents three issues for review. In his first issue, Hernandez
alleges that he was denied effective assistance of counsel. In his second issue, he
contends that the trial court erred when it admitted evidence of prior convictions
over his Rule 403 objection. See TEX. R. EVID. 403. Hernandez argues in his third
issue that the evidence was legally insufficient.
       We will first review whether the evidence was sufficient. We review the
sufficiency of the evidence under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010,
pet. ref’d). Under the Jackson standard, we examine all of the evidence in the light
most favorable to the verdict and determine whether, based on that evidence and
any reasonable inferences from it, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
      The evidence produced during the State’s case-in-chief showed that
Hernandez met his ex-wife, Marisela Garcia, at a Shell gas station in Midland to
drop off their two children after spending time with them during his Thursday
night visitation period. Marisela’s current husband, Marco A. Garcia, who was her
boyfriend at the time of the incident, accompanied her to pick up the children.
Michael Wayne Gillis, an employee of the gas station, was outside smoking a
cigarette and observed the exchange.
      Marisela and Marco arrived at the gas station in a pickup, and Hernandez
arrived in a white Volvo. Both parties parked on the north side of the gas pumps.
Hernandez’s son, C.H., and his daughter, G.H., got out of his Volvo and walked
toward the pickup. Marco got out of the pickup and walked over to the Volvo to
                                          2
see why Hernandez was yelling. C.H. got in the pickup, and G.H. stood outside
the pickup next to Marco. Hernandez remained in his Volvo; the windows were
up. Hernandez and Marco had a heated conversation and began yelling at each
other through the window. Hernandez drove toward one of the gas station exits at
a high rate of speed. Gillis testified that it sounded like the Volvo pulled away
going “full throttle.”
      Instead of exiting, Hernandez made a U-turn and came back around toward
the pickup. He quickly accelerated and drove toward Marco and G.H. Marco
pushed G.H. back and jumped back toward the pickup. Hernandez veered away,
but not until Marco and G.H. were already out of harm’s way. The mirror on
Hernandez’s vehicle was in front of Marco’s chest when Hernandez drove past.
Marco testified that he felt threatened for his life and for G.H.’s life when
Hernandez was driving toward them at a high rate of speed. There was no doubt in
his mind that he and G.H. would have been hit if they had not moved out of the
way. Gillis testified that he could not see exactly how close Hernandez came to
hitting Marco and G.H. but that, if they had not jumped back, they probably could
have been hit. Marisela also testified that, if Marco and G.H. had not moved,
Hernandez would have hit them. On cross-examination, she testified that she did
not recall telling the police that, when Hernandez got close to hitting Marco, he
“veered off” and drove out of the parking lot.
      After Hernandez drove by Marco and G.H., he made another U-turn, drove
past the south side of the pumps, and exited the parking lot. Gillis called the police
because he “didn’t feel right about a little kid’s life being put that close to danger.”
      Marco, Gillis, and Marisela testified that Marco did not try to hit Hernandez
with his fists, try to punch the Volvo’s window, or try to do anything else
aggressive toward Hernandez.        They further testified that there was nothing


                                           3
blocking Hernandez from exiting the gas station and that he could have exited
without a problem if he had wanted to.
      During his case-in-chief, Hernandez testified that he arrived at the Shell
station to drop off his children and was telling them goodbye when Marco started
banging on his window with a closed fist. Marco was yelling at him to “[g]et the
f--k out.” Hernandez testified that Marco constantly antagonized him and tried to
get him to fight by making gestures toward him and calling him names. He drove
off because he was afraid of what Marco was going to do. Hernandez never got
out of his car, never rolled down his window, and never said anything to Marco.
      Hernandez tried to exit the parking lot but was not able to because of traffic.
He drove back around toward the other exit, and Marco lunged at him. Because he
could not get out of that exit either, he drove back toward the first exit and finally
was able to exit the parking lot. Hernandez testified that he did not recall driving
at a high rate of speed and that he did not have any intention to strike anyone or put
anyone in fear of bodily injury. He did not see his daughter standing outside the
pickup and would never place her in danger; he would do anything to protect her.
His intention was to get away from the parking lot as soon as he could because of
Marco.    Hernandez agreed that he may have consciously disregarded the
possibility that his vehicle could have hit someone, and he stipulated that a motor
vehicle could be a deadly weapon.
      C.H. testified that he had to get out of the car very quickly because Marco
was there and because he knew that Marco was going to try to start something.
After C.H. got out of the car, Marco went over to the car and started hitting
Hernandez’s window and cursing. Hernandez drove off and tried to exit, but was
unable to because of a long line of traffic. C.H. said that his dad turned around and
exited at the other side of the parking lot. C.H. said that G.H. was not outside the
pickup but that she was in it with him.
                                          4
      The defense called several witnesses who testified that they had observed
Hernandez’s relationship with his children and that he loved his children and had a
close relationship with them.       Jeanette Lynn Sanchez, an ex-girlfriend of
Hernandez, also testified on behalf of the defense. She testified about multiple
times that she had observed Marco act aggressively toward Hernandez. Marco
called him names, such as “faggot”; laughed at him; threw his hands up at him; and
made gestures toward him. On rebuttal, Marisela testified that Hernandez also
called Marco names and that both men started fights with each other.
      Although several witnesses testified on behalf of Hernandez and although
Hernandez testified that he had no intention to strike Marco and was not aware that
his daughter was standing outside the pickup, the jury, as the trier of fact, was the
sole judge of the credibility of the witnesses and of the weight to be given their
testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007), art. 38.04 (West
1979). As such, the jury was entitled to accept or reject any or all of the testimony
of any witness. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992).
We have reviewed the evidence in the light most favorable to the verdict, and we
hold that a rational trier of fact could have found beyond a reasonable doubt that
Hernandez committed the offense of aggravated assault with a deadly weapon
against Marco and G.H. Hernandez’s third issue on appeal is overruled.
      In his first issue, Hernandez alleges that he was denied effective assistance
of counsel. Specifically, he asserts that his trial counsel opened the door to allow
the State to introduce evidence of his prior convictions of sexual assault and sexual
assault of a child when his counsel asked Sanchez, Hernandez’s ex-girlfriend,
whether Hernandez was a violent person and she responded that he was not.
Hernandez also contends that his trial counsel was ineffective when he (1) failed to
object when the prosecutor asked Sanchez about the time Hernandez assaulted her,
(2) failed to object to Hernandez’s community supervision officers’ testimony, and
                                          5
(3) failed to object when the prosecutor asked Hernandez about doing bad things in
front of children.
      In order to determine whether Hernandez’s trial counsel rendered ineffective
assistance at trial, we must first determine whether he has shown that his counsel’s
representation fell below an objective standard of reasonableness and, if so, then
determine whether there is a reasonable probability that the result would have been
different but for his counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687
(1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999);
Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986). A reasonable
probability is a probability sufficient to undermine confidence in the outcome of
the trial. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55. We must
indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance, and Hernandez must overcome the presumption
that, under the circumstances, the challenged action could be considered sound trial
strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex.
Crim. App. 2000). An allegation of ineffective assistance of counsel must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.
1999).
      Hernandez contends that the first instance of ineffective assistance of
counsel occurred when his counsel asked Sanchez, Hernandez’s ex-girlfriend,
whether Hernandez was a violent person and she responded that he was not.
Defense counsel opened the door for the State to introduce evidence of
Hernandez’s character for violence by eliciting testimony from Sanchez that
Hernandez was not a violent person. See TEX. R. EVID. 405(a) (when evidence of a
person’s character is offered in the form of opinion testimony, the opposing party
may ask the witness whether they know about specific instances of conduct that are
                                         6
relevant to the character trait).   Thus, on cross-examination, the State was
permitted to ask Sanchez whether she knew that Hernandez had pleaded guilty to
two prior sexual assaults even though under TEX. R. EVID. 609(c)(2) the
convictions were otherwise inadmissible. Rule 609(c)(2) prohibits the admission
of prior convictions in which the defendant successfully completed probation.
      The parties specifically addressed this issue during a hearing on Hernandez’s
pretrial motion regarding the admissibility of his prior convictions for
impeachment purposes.      During the pretrial hearing, the State agreed that
Hernandez’s prior convictions could not come in under Rule 609(c)(2) as
impeachment evidence because Hernandez successfully completed probation.
However, the State argued that the prior convictions could become admissible if
Hernandez opened the door by presenting evidence that he was a good person or a
law-abiding citizen. Defense counsel acknowledged that this could be possible,
and the trial court instructed the State to approach the bench if it believed
Hernandez opened the door.
      When the parties approached the bench after defense counsel opened the
door, defense counsel immediately requested that he be allowed to withdraw the
question so that the State could not present evidence of Appellant’s prior
convictions. The indication is that defense counsel realized that he had opened the
door to the admission of the otherwise inadmissible evidence. The trial court did
not permit counsel to withdraw the question and it permitted the State to ask
Sanchez whether she knew Hernandez had pleaded guilty to two prior sexual
assaults.
      In Robertson v. State, defense counsel, as part of his trial strategy to
convince the jury that the defendant was not a liar, asked the defendant during
direct examination about the defendant’s two prior convictions. Robertson v.
State, 187 S.W.3d 475, 477, 480–81 (Tex. Crim. App. 2006) (Robertson I).
                                        7
During a hearing on the motion for new trial, defense counsel testified that he now
knew that the convictions were not admissible for impeachment purposes because
the cases were pending on appeal.       Id. at 481 (inadmissible under TEX. R.
EVID. 609). The court stated:
      [I]n cases like this where appellant’s self-defense claim rested almost
      entirely on his credibility, the weight of authority supports a holding
      that appellant’s trial lawyer performed deficiently under the first
      prong of Strickland by allowing the jury to hear prejudicial and
      clearly inadmissible evidence because this evidence could serve no
      strategic value including demonstrating that appellant is not a liar.

Id. at 484. The court remanded the case to the court of appeals to address the
second prong of Strickland. Id. at 486. On remand, the court of appeals found that
the defense was prejudiced by counsel’s deficient performance because the
deficient performance undermined the defendant’s credibility, which was critical to
his claim of self-defense. Robertson v. State, 214 S.W.3d 665, 668 (Tex. App.–
Waco 2007, no pet.).
      Similarly, in Ex parte Menchaca, the Court of Criminal Appeals held that
defense counsel’s assistance was ineffective when counsel failed to object to
inadmissible prior convictions because such a decision could not be considered
sound trial strategy and because the deficient performance undermined the
defendant’s credibility, which was at the very heart of his defense. Ex parte
Menchaca, 854 S.W.2d 128, 133 (Tex. Crim. App. 1993). Relying on Robertson I
and Ex parte Menchaca, we recently held that defense counsel’s performance fell
below an objective standard of reasonableness when defense counsel, during the
defendant’s direct examination, elicited evidence of two prior convictions that
were inadmissible under Rule 609. Vasquez v. State, No. 11-10-00334-CR, 2012
WL 4826966, at *5–6 (Tex. App.—Eastland Oct. 11, 2012, pet. ref’d) (mem. op.,
not designated for publication). We further held that the defendant met the second

                                         8
prong of Strickland because the evidence of the prior convictions, the prosecutor’s
cross-examination of the defendant regarding his prior convictions, and the
prosecutor’s closing argument implied that the defendant was not to be believed.
Id. at *6.
       Here, defense counsel opened the door to Hernandez’s prior convictions and
allowed prejudicial and otherwise inadmissible evidence to be presented before the
jury. We are aware that we must indulge a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance. We are
also aware that Hernandez must overcome the presumption that, under the
circumstances, the challenged action could be considered sound trial strategy.
Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. We cannot see how the
challenged action in this case could be considered sound trial strategy. Because
Hernandez has shown that his counsel’s representation fell below an objective
standard of reasonableness, he has met the first prong of Strickland.
       We must next determine whether there is a reasonable probability—a
probability sufficient to undermine the outcome of the trial—that the result of the
proceeding would have been different but for defense counsel’s deficient
performance. Strickland, 466 U.S. at 687, 694; Hernandez, 726 S.W.2d at 55–57.
We consider the totality of the evidence in determining whether counsel’s
performance prejudiced the defense. Strickland, 466 U.S. at 695–96.
       Here, defense counsel opened the door for the State to cross-examine
Sanchez on whether she knew of Hernandez’s prior convictions for sexual assault.
Defense counsel then called Kimberly Rogers, who works for the Adult Probation
Department, to testify that Hernandez had successfully completed probation on
both of his prior convictions. However, defense counsel also elicited testimony
from Rogers that Hernandez did not follow all of the rules of his probation. On
cross-examination, the State was able to elicit testimony that, even though
                                          9
Hernandez completed his probation, Rogers had concerns regarding his
rehabilitation and was specifically concerned for the safety of his ex-wife. When
Hernandez testified, the State questioned him regarding the two prior convictions
and specifically asked him how he could claim that he would never do anything
bad in front of children when he had been convicted of sexually assaulting a child.
During closing arguments, defense counsel emphasized that the prior convictions
occurred many years ago, that the defendant had completed probation on both
charges, that he had not re-offended, and that he was not restricted from seeing his
children in any way because of his past. The prosecutor emphasized that there was
not a more violent crime than sexual assault, besides murder, that could be
committed against a child. He also argued that the two prior convictions showed
Hernandez’s violent nature, stating: “That’s the kind of person this man is.”
         Hernandez contends that the result of the proceeding would have been
different because, if counsel had not opened the door, Hernandez could have
testified without the jury knowing of his prior sexual assault convictions. He
claims that the credibility of the parties was vital in this case and that, because of
counsel’s errors, the jury was not going to believe him. Hernandez’s defense was
that he was trying to get away from Marco and that he had no intention to hurt
anyone. Thus, the credibility of his testimony was a key component of his defense
strategy. Although the trial court gave the jury a limiting instruction as to how it
could consider the prior convictions, the limiting instruction specifically allowed
the jury to consider Hernandez’s prior convictions for the sole purpose of
determining Hernandez’s character for violence.1 We find that Hernandez has
shown that there is a reasonable probability that the result of the trial might have
been different but for his counsel’s deficient performance. Hernandez has met the

         1
           In the jury charge, the trial court instructed the jury that it could only consider the prior convictions to aid
the jury in passing upon the credibility of Sanchez.

                                                            10
second prong of Strickland, as to the first instance of ineffective assistance of
counsel that he raised. Without reaching the other instances of alleged ineffective
assistance of counsel, we sustain his first issue.
      Because we have sustained Hernandez’s first issue, we need not address
Hernandez’s second issue.
      We reverse the judgment of the trial court, and we remand the cause for
further proceedings.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


May 23, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




                                           11
