                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

Nos. 04-18-00821-CR, 04-18-00822-CR, 04-18-00823-CR, 04-18-00827-CR, 04-18-00855-CR

                                       Jake Eric ALVARADO,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                      From the 38th Judicial District Court, Medina County, Texas
                Trial Court Nos. 16-10-12125-CR, 16-05-11980-CR, 18-04-12822-CR,
                                  16-05-11973-CR, 16-10-12126-CR
                         Honorable Camile Glasscock Dubose, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: November 27, 2019

AFFIRMED

           Jake Eric Alvarado appeals the trial court’s judgments in five cases. His sole issue on

appeal is that he received ineffective assistance of counsel during the punishment phase of these

cases. We affirm the trial court’s judgments.

                                     PROCEDURAL BACKGROUND

           Alvarado was charged with criminal offenses in five separate cases. Four charges were for

possession of a controlled substance; one charge was for assault-family violence. Alvarado entered
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an open plea of guilty to the drug charges and nolo contendere to the assault charge. The trial court

held a consolidated plea and punishment hearing for all five cases on August 31, 2018.

       During the hearing, the victim in Alvarado’s assault case testified. The victim stated

Alvarado had physically and verbally abused her and testified about Alvarado’s other prior

conduct. On appeal, Alvarado’s ineffective assistance of counsel claim is based primarily on trial

counsel not requesting notice of the State’s intent to introduce such evidence at the punishment

hearing. Alvarado also argues counsel was ineffective by failing to object to a probation officer’s

testimony that he was not suitable for probation. The victim testified as follows:

          Q. Did he [Alvarado] tell you that you were nothing but an animal and that he
       should –

           A. That was in the past, not on that day but in priors in San Antonio when we
       use to have –

            MR. HERNANDEZ [Defense Counsel]: Objection, Your Honor. That is not
       listed in any of the extraneous events that we were alleged to have been --

           A. Not on that day.

          MR. HERNANDEZ: -- given any notice of. In fact, we were only given it like
       two or three days ago.

           MS. BUSBEE [Prosecutor]: Well, Your Honor, I was never given a request for
       a notice. So just to provide it I did but the State never received a request for notice.
       The fact that we gave anything is just gratuitous on our part because there was never
       a request made by the defense.

           MR. LILLEMON [Prosecutor]: If I may address the Court, Your Honor.
       Actually the CCP exempts us because they had a dating relationship. Any of these
       prior events are excluded from 404 notice. He’s given constructive notice because
       of his relationship with her that all of these events are important to this hearing.

           THE COURT: All right. Objection is overruled.
           ....

           Q. Have you ever seen Jake hit another female?

           A. Yes, ma’am.



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           Q. Okay, and what was that female’s name?

           A. Tashina(phonetically).

           Q. Tashina, okay. And where were y’all at when he hit that female?

           MR. HERNANDEZ: Objection, Your Honor. I don’t think that comes under
       the purview of the CCP because he’s not put on notice of this.

           THE COURT: Sustained.

           MS. BUSBEE: Again, Your Honor, I didn’t receive a request for notice, so the
       fact that we even gave it to him [was] gratuitous on our part. I’m not bound by what
       I gave to him because he didn’t give me a request. I’m not bound by that. If he gave
       me the request and I only provided 1 through 8 then I am bound by it but there was
       no request given to the State, so the State is free to go and you know, provide any
       other extraneous offenses of the defense. She witnessed him strike another female.
       That’s firsthand recollection.

           THE COURT: Okay. Overruled.

At the close of the hearing, the trial court found Alvarado guilty in all cases and sentenced him in

each case. After the sentences were imposed, Alvarado timely appealed.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       Alvarado argues he received ineffective assistance of counsel. Ineffective assistance of

counsel claims are governed by Strickland v. Washington’s two-prong test under which we

determine (1) whether trial counsel’s representation was constitutionally deficient, and (2) whether

the deficient performance prejudiced the defense. 466 U.S. 668 (1984); accord Russell v. State, 90

S.W.3d 865, 875 (Tex. App.—San Antonio 2002, pet. ref’d). The record must demonstrate trial

counsel’s deficient performance of some act or failure to perform some act, and trial counsel had

no reasonable trial strategy for the act or omission. See Lopez v. State, 343 S.W.3d 137, 142–43

(Tex. Crim. App. 2011).

       Alvarado makes two contentions in support of his claim that he received ineffective

assistance of counsel. His primary contention is as follows:



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           Trial counsel failed to request 37.07 notice. This failure to request 37.07 notice
       was deficient performance. As a result of failing to request this notice, counsel
       ineffectually attempted once to limit the extraneous acts testimony and then stopped
       objections to that testimony. As a result, extraneous acts evidence was admitted
       against the Appellant which showed the Appellant threatened to kill a woman,
       swore at women, struck women, kicked women, pulled women’s hair, injected
       women with heroin and meth, poured lighter fluid on a woman, blamed his
       possession of drugs on women, was a Mexican Mafia member, violated his
       conditions of pretrial supervision, had his probation revoked, and was not a good
       candidate for probation. This deficient performance prejudiced the defense.

Alvarado also contends trial counsel was ineffective in failing to object to a probation officer

opining he was not suitable for probation, which is inadmissible under this court’s decision in

Mares v. State, 52 S.W.3d 886 (Tex. App.—San Antonio 2001, pet. ref’d).

       In Mares, this court held that, under Ortiz v. State, 834 S.W.2d 343 (Tex. Crim. App. 1992),

not “making an objection when the probation officer testified as an expert that Mares was not a

good candidate for probation fell below an objective standard of reasonableness,” because the

evidence “was inadmissible.” 52 S.W.3d at 893. Ortiz has been superseded by statute, as the Court

of Criminal Appeals recognized in Ellison v. State, 201 S.W.3d 714, 717 (Tex. Crim. App. 2006).

In Ellison, the court determined that under the applicable statutory provision, as revised, a

probation officer may now “give an opinion on a defendant’s suitability for probation.” Id. at 722–

23. Thus, we cannot say Alvarado received ineffective assistance of counsel based on counsel’s

failure to object to the probation officer’s opinion on Alvarado’s suitability for probation.

       Furthermore, the Austin court of appeals has held the failure to request article 37.07 notice

constitutes deficient performance, but the court also held “that the failure to request notice under

article 37.07 and the failure to object to the evidence when offered were not errors sufficient to

require reversal.” See Frias v. State, No. 03-12-00463-CR, 2014 WL 3410592, at *6–9 (Tex.

App.—Austin July 10, 2014, pet. ref’d) (mem. op., not designated for publication). Alvarado

complains he was prejudiced by the admission of evidence of his prior acts, but the record does



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not show that, had trial counsel requested such notice, the State would have (1) failed to provide

the required notice; and (2) attempted to offer evidence of those prior acts into evidence. In other

words, even if trial counsel had requested article 37.07 notice, Alvarado fails to show the evidence

about which he complains would have been inadmissible. See Ellison, 201 S.W.3d at 721

(discussing the breadth of article 37.07, § 3(a), which addresses the admissibility of “matters the

court deems relevant to sentencing”). We therefore cannot say, on this record, that Alvarado

received ineffective assistance of counsel.

                                          CONCLUSION

       We affirm the trial court’s judgments.

                                                  Luz Elena D. Chapa, Justice

DO NOT PUBLISH




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