                                   NO. 07-02-0479-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                  FEBRUARY 27, 2004

                          ______________________________


                            JERRY LEE PEREZ, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

           FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

              NO. CR-00D-058; HON. RICHARD DAMBOLD, PRESIDING

                         _______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


       In this appeal, appellant Jerry Lee Perez seeks reversal of his conviction for

indecency with a child and the ensuing jury-assessed punishment of 20 years confinement

in the Institutional Division of the Texas Department of Criminal Justice. In doing so, he

presents three issues for our decision. In those issues he contends: 1) the trial court erred

in admitting appellant’s statement into evidence; 2) the trial court erred in admitting

       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004).
appellant’s statement for impeachment purposes; and 3) appellant was denied effective

assistance of counsel at trial. We affirm the judgment of the trial court.


                                    Factual Background


       The nature of appellant’s challenges requires a brief recitation of the relevant

evidence. On February 12, 2000, Hereford Police Department Officer Allison Forbis was

dispatched to a residence in Hereford in response to a sexual assault charge. She

estimated she arrived at the residence within three minutes of receiving the call. Upon her

arrival, she was met by Frank DeLaPaz, who appeared to be upset and angry. DeLaPaz

told the officer that he had awakened from an afternoon nap and looked into the living room

of his residence. He saw N.D.2 trying to get up out of appellant’s lap and appellant refusing

to let her do so. He also said he saw appellant’s hand moving on N.D.’s private parts.


       On cross-examination, DeLaPaz testified that he told appellant: “I saw you do this,

Jerry. Leave now.” Appellant’s counsel then asked DeLaPaz, “. . . what did [appellant] say

to you,” to which he responded: “He said he didn’t do nothing. I said, Jerry, I saw you.”

N.D. testified and said that appellant had touched her middle, a term which she used to

describe the female genitalia.


       The trial court then conducted a hearing outside the presence of the jury to

determine the admissibility of a statement made by appellant subsequent to the date of the

alleged offense. At the hearing, Department of Public Safety (DPS) Trooper Brian J.



       2
           The child in question.

                                             2
Burzynski testified that on or about December 31, 2000, he stopped appellant because he

was driving a car with an expired license plate. The officer ended up arresting appellant

because he had a fictitious inspection certificate. Appellant was taken to the highway patrol

office where he was given his Miranda3 warnings. The statement taken also contained all

the usual Miranda warnings. After the officer took that statement, he took appellant back

to the jail. Officer Burzynski then ran a criminal history check on appellant. His check of

that history revealed the indecency with a child charge which, the officer averred, he

believed was final. He asked appellant for his sexual offender registration card and, when

he discovered appellant had no such card, he took him back to the Highway Patrol office

because he believed appellant was guilty of the offense of failing to register as a sex

offender, a felony grade offense. He again read appellant Miranda warnings because, he

said, he was going to ask him about that offense. However, he discovered that appellant

had not yet been convicted of that crime.


       The officer then asked appellant if he had an attorney and was told that he did, but

because appellant could not remember the attorney’s name or whether the attorney was

male or female, he was skeptical whether appellant had an attorney. Burzynski then called

an assistant Deaf Smith County District Attorney for help in determining if appellant actually

had an attorney. However, he received an indefinite answer. The officer decided that

appellant was lying about having an attorney, so he went ahead and took a written

statement from appellant. In the written statement, appellant made incriminating statements

about the indecency charge.


       3
           See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                              3
      As a result of the hearing, the trial court found that the statement was voluntary but

it was not admissible during the State’s case-in-chief because appellant had an attorney

and his Sixth Amendment right to counsel was violated. Even so, the court opined, because

the statement was voluntary, it could be used for impeachment purposes if that door was

opened.


      The statement was tendered during the State’s case-in-chief, after the cross-

examination of DeLaPaz, and was admitted over appellant’s Fifth Amendment, Sixth

Amendment and improper impeachment objections. However, other than those objections,

no limiting instruction was requested or given. Other portions of the evidence will be

referred to if necessary for a proper discussion of our decision.


                                        Discussion


       Because a trial court must be given wide latitude to admit or exclude evidence as it

sees fit, a trial court’s evidentiary rulings are reviewed under an abuse of discretion

standard. Thus, as long as the trial court’s ruling is within the zone of reasonable

disagreement, an appellate court will not disturb it. Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997); Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).


       The Sixth Amendment right to counsel attaches at the initiation of adversarial

proceedings against an individual. Once that right attaches, government efforts to elicit

information from an accused, including interrogation, represent critical stages at which the

right to counsel applies. Additionally, once that right to counsel has attached and has been

                                             4
invoked, as here, any subsequent waiver of that right is ineffective unless counsel has first

given permission for the interrogation. Cobb v. State, 93 S.W.3d 1, 6 (Tex. Crim. App.

2000), rev’d on other grounds, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001).


       In Cobb, the court explicated the Sixth Amendment right to counsel and pointed out

that the right to counsel attaches at the initiation of adversarial proceedings. Id. at 5. As

significant here, the court opined, “[o]nce the Sixth Amendment right to counsel attaches,

government efforts to elicit information from the accused, including interrogation, represent

‘critical stages’ at which the right to counsel applies.” Id. It also emphasized that once the

right to counsel has attached, “any subsequent waiver during police initiated interrogation

is ineffective unless counsel has first given permission for the interrogation.” Id. at 6, citing

Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Additionally,

the State’s knowledge of the claiming of the right to counsel from one state actor is imputed

to another state actor. Cobb v. State, 93 S.W.3d at 6.


       In relevant part, article 38.22 of the Code of Criminal Procedure provides:


       Sec. 5. Nothing in this article precludes the admission . . . of a voluntary
       statement, whether or not the result of custodial interrogation, that has a
       bearing upon the credibility of the accused as a witness, or of any other
       statement that may be admissible under law.


Tex. Code Crim. Proc. Ann. art. 38.22 §5 (Vernon Supp. 2004). Moreover, even though

a defendant does not testify, a hearsay statement may be subject to impeachment. Appling

v. State, 904 S.W.2d 912, 917 (Tex. App.–Corpus Christi 1995, pet. ref’d). It is true that

courts have refused to allow impeachment by prior inconsistent statements used as a mere


                                               5
subterfuge to get before the jury evidence not otherwise admissible. See Hughes v. State,

4 S.W.3d 1, 4 (Tex. Crim. App. 1999); Kelly v. State, 60 S.W.3d 299, 301 (Tex. App.–

Dallas 2001, no pet.).


       Thus, in order for appellant’s statement to have been admissible under article 38.22

§5, two criteria must have been satisfied. First, the statement must have been voluntary,

and second, the statement must have some bearing on appellant’s credibility. With respect

to the first criterion, the record justifies the trial court’s conclusion that the statement was

voluntary. With respect to the second criterion, we must consider whether the statement

had some bearing on appellant’s credibility. The record shows that the incriminating

statements contained in his written statement bore directly on the credibility of his statement

to the child’s father at the time of the incident, produced during cross-examination of

DeLaPaz, that he “didn’t do [anything].” Moreover, there is nothing that indicates the State

improperly provoked the testimony regarding appellant’s hearsay statement to DeLaPaz.


       Parenthetically, we have not overlooked appellant’s position that his statement was

not hearsay but was a mere description of events. We disagree with that proposition.

Hearsay is a statement, other than one made by the declarant while testifying at a trial or

hearing, offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d); see also

Lyons v. Ware, 668 S.W.2d 767, 768 (Tex. App.–Houston [1st Dist.] 1984, pet. ref’d). It is

obvious that appellant’s answer was elicited by his attorney for its purported truth, i.e., that

he had not committed any crime. Thus, it was a hearsay statement subject to impeachment

if any of the other prerequisites to its use were met. Because it was inconsistent with his



                                               6
statement he “didn’t do [anything],” appellant’s written statement with incriminating content

was properly admitted for impeachment purposes.


       The general rule is that evidence properly admitted for impeachment purposes is

without probative value and cannot be considered as evidence of the defendant’s guilt. Key

v. State, 492 S.W.2d 514, 516 (Tex. Crim. App. 1973). If requested, when evidence is

admitted for a limited purpose, the court may restrict the evidence to its proper scope and

instruct the jury accordingly. Tex. R. Evid. 105(a). However, in the absence of such a

request, “the court’s action in admitting such evidence without limitation shall not be a

ground for complaint on appeal.” Id. It is the burden of the party opposing the admission

of the evidence to request a limiting instruction and, in the event of the failure of the party

to request such a limiting instruction, the evidence is admitted for all purposes. Hammock

v. State, 46 S.W.3d 889, 892 (Tex. Crim. App. 2001). Under this record, the trial court did

not abuse its discretion and commit reversible error in admitting the statement. Appellant’s

first two issues are overruled.


       As we have noted above, in his third issue, appellant contends that he was denied

the effective assistance of counsel at trial. Specifically, appellant faults his counsel for

failing to request an instruction that the statement could only be considered for

impeachment purposes and had no probative value. He also suggests that counsel should

have requested a jury charge to that effect. Additionally, he posits that in addition to the

objections made, trial counsel should have raised a Rule 403 objection.4


       4
        The probative value of the evidence was substantially outweighed by the danger
of unfair prejudice. See Tex. R. Evid. 404.

                                              7
       In considering this ineffectiveness challenge, we must measure it by the standard

explicated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984) and made applicable in Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.

Crim. App. 1986). See also McFarland v. State, 928 S.W.2d 482, 499-500 (Tex. Crim. App.

1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997).


       Synthesized, the teaching of the cases is that to show ineffectiveness, a claimant

must prove that trial counsel’s performance so undermined the proper functioning of the

adversarial process that the trial cannot be relied upon as having produced a just result.

In doing so, the claimant must prove: 1) his counsel’s performance was deficient, and 2)

the deficient performance was so serious that it prejudiced his defense. That means that

the claimant must prove by a preponderance of the evidence that counsel’s representation

fell below the standard of prevailing professional norms, and there is a reasonable

probability that but for counsel’s deficiency, the result of the trial would have been different.

The review of counsel’s performance is highly deferential and in conducting that review, the

reviewing court must indulge a strong presumption that counsel’s conduct falls within a wide

range of reasonable performance.


        In addition to identifying the acts or omissions alleged to have been ineffective, the

claimant must affirmatively establish that they fell below the professional norm for

reasonableness. After proving error, the claimant must affirmatively prove prejudice,

namely, that counsel’s errors, judged by the totality of the representation and not by isolated

instances of error or by only a portion of the trial, denied him a fair trial. It is not enough for



                                                8
the claimant to show that the errors had some conceivable effect upon the outcome of the

trial, but he must show that there is a reasonable probability that but for counsel’s errors,

the factfinder would have had a reasonable doubt respecting guilt. In reviewing the

claimant’s showing, the reviewing court considers the totality of the evidence before the jury

and that record must affirmatively show the alleged ineffectiveness. The failure to make the

required showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim. See McFarland, 928 S.W.2d at 500.


       In considering the record, the State presented evidence that 1) DeLaPaz was an

eyewitness to the offense; 2) Officer Allison Forbis averred that the victim had stated to her

that appellant had touched her genitals; 3) the child testified that appellant had touched her

genitals with his hand and that she tried to push him away; and 4) Sheri Nivens, a

registered nurse, testified that she had observed redness on the child’s genitals which was

consistent with the child’s testimony. Under the totality of the evidence in this record, it is

not reasonably probable that the outcome of the trial would have been different if trial

counsel had requested a limiting instruction.


       Moreover, it is possible that trial counsel may have believed that a limiting instruction

would have emphasized the importance of the statement and drawn additional attention to

it. Indeed, the record is silent about the reasoning and strategy that may have been

underlying trial counsel’s actions. In this state of the record, we may not speculate about

the reasoning that may have been employed by trial counsel and whether that reasoning

was faulty. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Because



                                               9
appellant has failed to prove either deficient performance on trial counsel’s part or sufficient

prejudice from trial counsel’s conduct, we must, and do, overrule appellant’s third issue.


       In sum, all of appellant’s issues are overruled and the judgment of the trial court is

affirmed.



                                                   John T. Boyd
                                                   Senior Justice

Do not publish.




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