                          NUMBER 13-08-00169-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


EDUARDO GRACIA BAZAN,                                                   Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                  On appeal from the 92nd District Court
                        of Hidalgo County, Texas.


                        MEMORANDUM OPINION

              Before Justices Yañez, Rodriguez, and Garza
               Memorandum Opinion by Justice Rodriguez

      Appellant Eduardo Gracia Bazan challenges his conviction for theft by a public

servant of property valued $1,500 or more but less than $20,000. See TEX . PENAL CODE

ANN . § 31.03(a), (e)(4)(A), (f) (Vernon Supp. 2009). By seven issues, Bazan complains

that: (1) the trial court lacked jurisdiction over his case because the crime was not
committed within the territorial jurisdiction of the State of Texas; (2) the trial court lacked

jurisdiction because he was indicted previously in a different district court and local rules

required this case to be filed where the original indictment was filed; (3-5) trial counsel

rendered ineffective assistance by failing to consolidate all criminal cases against Bazan

into the first-filed case, pursue and obtain a plea bargain, and communicate plea bargain

offers to the defendant; (6) the trial court erred in entering judgment against Bazan

because there was no evidence that any alleged theft was committed in defendant's

capacity as a public servant; and (7) the trial court erred in entering judgment against

Bazan because his right to confront and cross-examine adverse witnesses was violated

when statements of a deceased person were allowed into evidence. We affirm.

                                     I. BACKGROUND

       In October 2001, Bazan, a Hidalgo County Constable, applied for a certificate of title

for a Volkswagen Jetta with the county tax assessor-collector's office (tax office). When

the staff at the tax office ran standard checks on the vehicle, the system returned no

information. This raised suspicions with the tax office fraud investigators, and the tax office

impounded the Jetta. Further investigation revealed that the Jetta had been stolen in

Mexico City in 1999. Bazan was eventually indicted in the 92nd District Court of Hidalgo

County for:

       acquiring and otherwise exercising control over . . . one Volkswagen motor
       vehicle, of the value of $1,500 or more but less than $20,000 . . . without the
       effective consent of the owner, namely by deception, and with intent to
       deprive the owner of the property, and the defendant was then and there a
       public servant, namely, a Hidalgo County Constable, and such property
       appropriated by the defendant had theretofore come into his custody and
       possession and control by virtue of his status as such a public servant . . . .



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The case proceeded to a jury trial.                Precisely how the vehicle came into Bazan's

possession was the subject of voluminous testimony at trial.1

        At the conclusion of the trial, the jury found Bazan guilty of theft by a public servant.

See id. The trial court sentenced Bazan to seven years' confinement, with the punishment

suspended and probated over seven years, and assessed a $3,000 fine. Bazan filed a

motion for new trial. After a hearing, the trial court denied the motion. This appeal ensued.

                                             II. DISCUSSION

A. Territorial Jurisdiction

        By his first issue, Bazan complains that the State was without jurisdiction to

prosecute his case. The penal code provides that "[t]his state has jurisdiction over an

offense that a person commits by his own conduct or the conduct of another for which he

is criminally responsible if . . . either the conduct or a result that is an element of the

offense occurs inside this state." See id. § 1.04(a)(1) (Vernon 2003); Salazar v. State, 711

S.W.2d 720, 725 (Tex. App.–Corpus Christi 1986, pet. ref'd). The elements of theft in this

case are that the defendant: (1) unlawfully appropriated property valued at $1,500 or more

but less than $20,000; (2) with intent to deprive the owner of the property; and (3) was, at

the time of the theft, a public servant who came into possession of the property by virtue



        1
            Bazan initially represented that the Jetta was an abandoned vehicle and that, as constable, he
im pounded the vehicle at De La Rosa Collision W recker Service before holding an auction and buying the
Jetta at the auction. The tax office fraud investigators testified that Bazan attem pted to file two docum ents
with the office— a title application and an auction receipt— and that each purported to confirm this story. The
docum ents certified that the owner of the Jetta had been properly notified prior to the auction. One of the
investigators testified that Bazan, in fact, had never attem pted to contact the owner of the Jetta.

         The investigator then stated that he was subsequently approached by a friend of Bazan's who claim ed
that he had sold the Jetta to Bazan. This story was called into question by the testim ony of the Hidalgo County
Tax Assessor-Collector, who stated that he learned that Bazan had bought the Jetta from drug dealers who
took the car from a person who had failed to pay for his drugs.
                                                       3
of his status as a public servant. See TEX . PENAL CODE ANN . § 31.03(a), (e)(4)(A), (f); see

also Mendoza v. State, No. 13-03-00755-CR, 2005 WL 2476211, at *1 (Tex. App.–Corpus

Christi Oct. 6, 2005, no pet.) (mem. op., not designated for publication).

       Here, Bazan contends that any theft committed in this case occurred in Mexico,

outside the territorial jurisdiction of Texas, and because of that, the State lacked authority

to pursue his case in Texas. We disagree. The fact that the car was or was not stolen in

Mexico is irrelevant to the charges against Bazan. Bazan's indictment was based on

allegations that he used his position as a constable to gain title to a vehicle that he knew

or should have known was stolen. Thus, the alleged criminal conduct of Bazan—that he

unlawfully appropriated a vehicle valued at approximately $9,500 by falsifying title

documents in an attempt to "wash" the title of a stolen Mexican vehicle—occurred in

Texas, and the trial court had jurisdiction to hear the case. See TEX . PENAL CODE ANN . §§

1.04(a)(1), 31.03(a), (e)(4)(A), (f). Bazan's first issue is overruled.

B. Jurisdiction and the Local Rules

       In his second issue, Bazan challenges the jurisdiction of the 92nd District Court of

Hidalgo County over his case. Specifically, Bazan argues that because he was first

indicted for the offense in the 93rd District Court, local rules required all subsequent cases

against him to be filed in the court of his original indictment thereby divesting the 92nd

District Court of any authority over this case. See HIDALGO COUNTY DIST . CTS. LOC . R. 1.2.7

("If a case is on the docket of a court by any manner other than as prescribed by these

rules, the Presiding Judge shall transfer the case to the proper court."), 7.4 ("When several

indictments are returned against the same defendant, the court in which the first indictment



                                              4
is filed shall receive all such indictments.").      Although Bazan raises a jurisdictional

argument, he complains of the local rules, which are adopted for administrative purposes

and do not necessarily create jurisdiction in any certain court. See TEX . GOV'T CODE ANN .

§§ 24.304 (Vernon 2004) (allowing judges in counties where there are two or more district

courts to "adopt rules governing the filing and numbering of cases . . . and the distribution

of the work of the courts . . . [to enable] the orderly dispatch of the business of the courts"),

74.093 (Vernon Supp. 2009) (providing for the adoption of "local rules of administration"

to govern the "assignment, docketing, transfer, and hearing of all cases, subject to

jurisdictional limitations" of the district courts) (emphasis added); see also Bourque v.

State, 156 S.W.3d 675, 678 (Tex. App.–Dallas 2005, pet. ref'd) (recognizing the authority

of district judges to adopt rules governing the administration of multiple district courts).

Rather, as conceded by Bazan, the 92nd District Court is vested by the Texas Constitution

with jurisdiction over felony cases in Hidalgo County. See TEX . CONST . art. V, § 8; Skillern

v. State, 890 S.W.2d 849, 859 (Tex. App.–Austin 1994, pet. ref'd) (citing Fairfield v. State,

610 S.W.2d 771, 779 (Tex. Crim. App. 1981)). We refuse to construe the local rules of

administration, see TEX . GOV 'T CODE ANN . §§ 24.304, 74.093, in such a way that they

divest the trial court of its constitutionally-created authority to preside over felony

indictments. See TEX . CONST . art. V, § 8. Bazan's second issue is overruled.

C. Ineffective Assistance of Counsel

       By his third, fourth, and fifth issues, Bazan argues that his trial counsel's assistance

was ineffective.




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       1. Standard of Review

       To establish a claim for ineffective assistance of counsel, the appellant must show

(1) his attorney's representation fell below an objective standard of reasonableness, and

(2) there was a reasonable probability that, but for his attorney's errors, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 664, 668

(1984); Mallett v. State, 65 S.W.3d 59, 62 (Tex. Crim. App. 2001). Our review of counsel's

representation is deferential, and we presume that counsel gave his client professional

assistance. Mallett, 65 S.W.3d at 62 (citing Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.

App. 2000)). The appellant bears the burden of proof to show by a preponderance of

evidence that his counsel's performance was below that which is objectively reasonable.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

       Generally, the trial record will not be sufficient to establish an ineffective assistance

of counsel claim. Id. at 813-14; Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston

[1st Dist.] 1994, pet. ref'd). This is true because normally a silent record cannot rebut the

presumption that counsel's performance was the result of sound or reasonable trial

strategy. Strickland, 466 U.S. at 688; Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim.

App. 1991). However, a defendant may rebut the presumption by providing a record from

which the appellate court may determine that trial counsel's conduct was not based upon

a reasonable strategic or tactical decision. Jackson v. State, 877 S.W.2d 768, 771-72

(Tex. Crim. App. 1994); Bohnet v. State, 938 S.W.2d 532, 536 (Tex. App.–Austin 1997,

pet. ref'd). The record from a motion for new trial hearing can serve this purpose, see

Jackson, 877 S.W.2d at 771-72, and Bazan has provided such a record for our review.



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        2. Failure to Consolidate Cases

        In his third issue, Bazan argues that his trial counsel rendered ineffective assistance

because he failed to consolidate all of Bazan's criminal cases into the first criminal case

filed against him in the 93rd District Court. At the hearing on his motion for new trial,

Bazan presented the testimony of Ricardo Salinas, a criminal defense attorney who

testified that trial counsel's failure to consolidate the cases constituted deficient

performance because consolidation would have delayed a trial in Bazan's case, and delay

is in the best interest of any criminal defendant.2 However, Salinas also acknowledged that

the factors influencing the decision to pursue consolidation differ in each case and that it

is difficult to know whether consolidation is the best option. Our review of the trial record

further reveals that Bazan's trial counsel was aware of the multiple cases and attempted

at trial to inform the jury of what he characterized as the alleged political nature of the

various cases filed against Bazan. Thus, based on the trial record and the testimony of

Salinas, we cannot conclude that the decision of Bazan's trial counsel to not pursue

consolidation fell below an objective standard of reasonableness, and Bazan has not

rebutted the presumption that the decision was the result of sound and reasonable trial

strategy. See Strickland, 466 U.S. at 688; Mallett, 65 S.W.3d at 62. Bazan's third issue

is overruled.




        2
           Salinas based his delay prediction on the fact that the judge in the 93rd District Court was under
indictm ent at the tim e of Bazan's trial in the 92nd District Court and, as a result, had a backlog of untried
cases.



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       3. Plea Bargain

       By his fourth and fifth issues, Bazan claims his trial counsel was ineffective for failing

to obtain a plea bargain from the State and failing to communicate plea bargain offers to

Bazan. While it is true that defense counsel's failure to inform his client of a plea bargain

offer falls below the objective standard of reasonableness for effective performance, Ex

parte Lemke, 13 S.W.3d 791, 795-96 (Tex. Crim. App. 2000), Bazan points us to no

evidence in the record, and we find none, indicating that the State ever made such an offer

to Bazan's trial counsel. In fact, the prosecutor who tried the case, Andy Almaguer,

testified at Bazan's motion for new trial hearing that the State never would have offered

Bazan a lesser punishment, such as pretrial diversion or deferred adjudication, in

exchange for a guilty plea. Neither do we find that Bazan's trial counsel rendered deficient

performance for failing to diligently pursue a plea bargain. At Bazan's hearing on his

motion for new trial, Salinas testified that a defense attorney's performance would be

deficient if he did not make every effort to obtain a plea bargain offer. However, other

testimony at the hearing established that Bazan had never asked his trial counsel to

engage in plea negotiations, that Bazan had instructed his trial counsel that dismissal was

the only option to pursue with the State, and that he was not interested in plea bargaining.

The foregoing evidence does not rebut the presumption that the performance of Bazan's

trial counsel regarding plea bargaining with the State was objectively reasonable. See

Mallett, 65 S.W.3d at 62; Thompson, 9 S.W.3d at 813. Bazan's fourth and fifth issues are

overruled.




                                               8
D. No Evidence

       By his sixth issue, Bazan argues that there was no evidence that any alleged theft

was committed in defendant's capacity as a public servant. However, Bazan fails to

specify the type of challenge he is making to the evidence at trial, and based on his brief,

we are unable to discern the nature of his argument. Most importantly, Bazan cites to no

legal authority and does not point us to any portion of the record that would aid us in

determining what sort of evidentiary challenge he is mounting. See TEX . R. APP. P. 38.1(i)

(requiring appellant's brief to contain a "clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record"). We therefore conclude

that Bazan has inadequately briefed this issue and has waived his challenge to the

evidence. See id. Bazan's sixth issue is overruled.

E. Confrontation

       By his seventh issue, Bazan complains that the trial court violated his constitutional

right to confront and cross-examine adverse witnesses by allowing the statements of a

deceased person, Raul De La Rosa, into evidence. See U.S. CONST . amend. VI; TEX .

CONST . art. I, § 10.

       1. Standard of Review and Applicable Law

       The Confrontation Clause prohibits a witness from recounting a declarant's out-of-

court testimonial statements unless the declarant is unavailable to testify and the

defendant had a prior opportunity to cross-examine the declarant.              Crawford v.

Washington, 541 U.S. 36, 59 (2004). Generally, a statement is considered “testimonial”




                                             9
if it is a “solemn declaration made for the purpose of establishing some fact.” Russeau v.

State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005).

       However, even if we find the statement is testimonial and that its admission is

constitutional error, that error is subject to a harmless error analysis, and "we need not

reverse the trial court's judgment if we conclude beyond a reasonable doubt that the error

did not contribute to appellant's punishment." Id. at 881; see TEX . R. APP. P. 44.2(a). The

reviewing court must first assume that the damaging potential of the violation was fully

realized. Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991) (citing Delaware

v. Van Arsdall, 475 U.S. 673, 684 (1986)). With that assumption in mind, we analyze the

alleged error in connection with the following factors: (1) the importance of the witness's

testimony to the prosecution's case; (2) whether the testimony was cumulative; (3) the

presence or absence of evidence corroborating or contradicting the witness's testimony on

material points; (4) the extent of cross-examination permitted; and (5) the overall strength

of the prosecution's case. Id. (citing Van Arsdall, 475 U.S. at 684).

       2. Analysis

       Based on our review of the trial record, it appears the State was attempting to

introduce the written statement given by Raul De La Rosa, owner of De La Rosa Collision

Wrecker Service, for purposes of proving that Bazan lied about the Jetta being abandoned,

towed and impounded, and auctioned at a sale of abandoned vehicles. However, further

review of the record reveals that the statement was never admitted; Bazan objected to the

admission of the statement given to the fraud investigators each time the State attempted

to admit it, and the trial court sustained the objections.



                                             10
       On two other occasions, other statements by De La Rosa came into evidence

through the arguably hearsay testimony of one of the fraud investigators; the investigator

testified that De La Rosa had initially told him that there had been a tow-away but later

recanted and admitted there had been no tow-away, impoundment, or auction. We first

note that Bazan lodged no objections to this testimony. See Acevedo v. State, 255 S.W.3d

162, 173 (Tex. App.–San Antonio 2008, pet. ref'd) (holding that a defendant does not

preserve the issue for review where he fails to object at trial based on the Confrontation

Clause). But even presuming that the admitted statements violated Bazan's right to

confront and cross-examine an adverse witness, see Shelby, 819 S.W.2d at 547

(assuming that the damaging potential of the violation was fully realized), the same

information was admitted through the testimony of other live witnesses without objection.

See Russeau, 171 S.W.3d at 881; see also Baldree v. State, 248 S.W.3d 224, 232 (Tex.

App.–Houston [1st Dist.] 2007, pet. ref'd) (holding that trial court's violation of the

defendant's confrontation clause rights was harmless in light of the later introduction of the

same information). Angela Fraide, who was employed at De La Rosa Collision Wrecker

Service at the time of the incident, testified that the Jetta was never impounded in their

yard and was never auctioned. She further testified that she prepared a false towing slip

at the direction of De La Rosa. Ray Eufracio, the Hidalgo County Auditor, testified that his

office had no records of any auction proceeds being filed in connection with the Jetta.

Mario Leal, a deputy constable in Bazan's office, testified that the constable's office had

no record of the Jetta. Perfecta De La Rosa, the widow of Raul De La Rosa who operated

the wrecker business after his death, confirmed that the Jetta had never actually been in



                                             11
the De La Rosa Collision Wrecker Service yard. In sum, because the same information

concerning the towing, impoundment, and auction was later presented to the jury without

objection, any violation of the Confrontation Clause was rendered harmless, and we

conclude, beyond a reasonable doubt, that any resulting error did not contribute to Bazan's

punishment. See Russeau, 171 S.W.3d at 881; Baldree, 248 S.W.3d at 232. Bazan's

seventh issue is overruled.

                                    III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                        NELDA V. RODRIGUEZ
                                                        Justice

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

Delivered and filed the 18th
day of February, 2010.




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