                                  NO. 12-13-00260-CR

                          IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

OSCAR HERNANDEZ,                                 §      APPEAL FROM THE 2ND
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      CHEROKEE COUNTY, TEXAS

                                  MEMORANDUM OPINION
        Oscar Hernandez appeals his conviction for continuous sexual abuse of a child under
fourteen, for which he was sentenced to imprisonment for sixty-two years. In seven issues,
Appellant argues he received ineffective assistance of counsel. We affirm.


                                         BACKGROUND
        Appellant was charged by indictment with continuous sexual abuse of a child under
fourteen and pleaded “not guilty.” A jury found Appellant “guilty” as charged and assessed his
punishment at imprisonment for sixty-two years. This appeal followed.


                            INEFFECTIVE ASSISTANCE OF COUNSEL
        In his issues one through seven, Appellant argues that he received ineffective assistance
of counsel at trial.
Governing Law
        Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires the appellant to demonstrate that trial counsel’s representation fell below
an objective standard of reasonableness under prevailing professional norms. See Strickland,
466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any
portion of trial counsel’s representation, but will judge the claim based on the totality of the
representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
        In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).      We must presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. Appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. Appellant cannot meet this burden if the record does not affirmatively support the
claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A record that
specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an
ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston [1st Dist.]
1994, pet. ref’d).
        Before being condemned as unprofessional and incompetent, defense counsel should be
given an opportunity to explain his or her actions. See Bone v. State, 77 S.W.3d 828, 836 (Tex.
Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance claim
must usually be denied as speculative, and, further, such a claim cannot be built upon
retrospective speculation. Id. at 835.
        Moreover, after proving error, the appellant must affirmatively prove prejudice from the
deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.
App. 1999); Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The
appellant must prove that his attorney’s errors, judged by the totality of the representation and
not by isolated instances of error, denied him a fair trial. Burruss, 20 S.W.3d at 186. It is not
enough for the appellant to show that the errors had some conceivable effect on the outcome of
the proceedings. Id. He must show that there is a reasonable probability that, but for his
attorney’s errors, the jury would have had a reasonable doubt about his guilt or that the extent of
his punishment would have been less. See id.; see also Bone v. State, 77 S.W.3d at 837.




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Failure to Give Notice of Testifying Expert Witness
       In his first issue, Appellant argues that his counsel was ineffective because he failed to
disclose Child Forensic Interviewer Reashel Self as a potential expert witness, which resulted in
the exclusion of her testimony.
       At trial, Appellant’s counsel made clear what the substance of Self’s testimony would be.
Specifically, counsel stated that Self would testify that the two child victims, E.S. and B.S., did
not make eye contact during their interviews, which could indicate that they were lying.
Moreover, counsel stated that Self would testify to the characteristics a person who is lying
might exhibit. Lastly, counsel indicated that Self, were she called to testify, would sponsor the
videos of the forensic interviews conducted on the victims.
       In his brief, Appellant argues that had his counsel properly given notice of Self as an
expert witness, her testimony would have called into doubt the victims’ testimonies and the
outcome of the case would have been different. But the record reflects that E.S. admitted to
having lied in the past concerning the events at issue. Specifically, E.S. testified as follows:



                Q. Do you remember talking to a police officer that night?
                A. Yes.

                Q. And what did you tell the police officer?
                A. I told him some of the stuff.

                Q. Okay. How come you didn’t tell him all the stuff? Is there a reason?
                A. Trust. I don’t really like the police[]. I don’t know. I just don’t. I didn’t think it was
       also necessary to tell them everything.

                ....

                 Q. Does how much you tell about everything that happened depend on who you are
       talking to?
                 A. Yes.

              Q. When I say it depends on who you are talking to[,] is it fair to say that it depends on
       how much you trust that person?
              A. Yes.

                ....

                 Q. When you would talk to other people and you wouldn’t tell them everything[,] were
       you telling them the truth or a lie?
                 A. I guess you could say a lie.

                Q. Okay. Would that be because you didn’t tell them the entire truth?
                A. Yes.



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Moreover, B.S. similarly admitted that her in-court testimony was inconsistent with her previous
statements concerning the relevant events. Specifically, B.S. testified as follows:

                 Q. So three or four years later[,] you tell the [District Attorney] what you are saying now
       is the truth?
                 A. Yes.

                Q. Okay. So for four years[,] you continued to lie about it?
                A. Not totally.

                Q. What do you mean not totally? I don’t understand.
                A. Because I wasn’t saying the whole entire truth. I would just say parts, it would be a
       lie though.



B.S. further testified concerning a letter she wrote for school, in which she praised Appellant as a
loving father figure. At trial, she described the letter as a “cover-up story.”
       During the presentation of his case, Appellant focused heavily on attacking the credibility
of the victims’ testimonies. And it is apparent from the record that Appellant’s sole purpose for
seeking to present Self’s testimony was to attempt to further discredit the victims’ testimonies
and the statements they made in their interviews. But both B.S. and E.S. admitted to not having
been entirely forthcoming in the past concerning the events in question. Thus, even without
Self’s testimony, the jury was able to consider the victims’ in-court testimonies with the
knowledge that each witness previously had given less than complete versions of their stories.
Ultimately, the jury reasonably could have found that B.S. and E.S. lacked credibility, but it
declined to do so. Therefore, we cannot conclude that but for Appellant’s counsel’s failure to
properly notice Self as an expert witness, the outcome of the case would have been different.
Appellant’s first issue is overruled.
Failure to Make a Bill of Exception
       In his second and third issues, Appellant contends that his counsel was ineffective
because he failed to make a bill of exception regarding the testimony he expected to elicit from
Self and of the recordings of the forensics interviews of the victims her testimony would have
sponsored. However, while Appellant's trial counsel did not make a bill of exception or put on a
formal offer of proof with questions to and answers from Self, he was not required to do so to
preserve error because he described the evidence to the trial court. See Johnson v. State, 233
S.W.3d 109, 117 (Tex. App.–Houston [14th Dist.] 2007, no pet.). As set forth previously,
Appellant’s counsel made clear to the trial court the testimony he hoped to elicit from Self and


                                                        4
his purpose for admitting the videos of the forensic interviews.          Therefore, we hold that
Appellant’s counsel’s failure to make a bill of exception does not amount to ineffective
assistance. Appellant’s second and third issues are overruled.
Failure to Object to Jury Charge
       In his fourth issue, Appellant argues that he received ineffective assistance of counsel
because his counsel failed to object to the absence of an instruction in the court’s charge on
punishment stating that Appellant would not be eligible for parole. In his fifth issue, Appellant
contends that his trial counsel was ineffective in not requesting that this instruction concerning
his ineligibility for parole be included in the charge. In his sixth issue, Appellant argues that his
trial counsel was ineffective because he failed to object to the trial court’s response to the jury
declining to answer its inquiry during deliberations concerning the effect of parole on
Appellant’s sentence.
       The trial court is required to give the jury a written charge setting forth the law applicable
to the case; not expressing any opinion as to the weight of the evidence, not summing up the
testimony, discussing the facts, or using any argument in his charge calculated to arouse the
sympathy or excite the passions of the jury. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West
2007). Article 37.07, Section 4 of the code of criminal procedure provides the instructions that
trial courts are required to give juries to inform them about the law of parole. See TEX. CODE
CRIM. PROC. ANN. art. 37.07, § 4 (West Supp. 2014). In clarifying the Legislature’s intent
regarding the provisions of Article 37.07, the court of criminal appeals has explained that the
Legislature did not want any creative deviations from its chosen language regarding parole law
instructions; consequently, trial judges cannot cut and paste as they see fit. See Luquis v. State,
72 S.W.3d 355, 363 (Tex. Crim. App. 2002).
       Article 37.07, Section 4, provides that the language generally required in a charge
addressing the law of parole does not apply to offenses arising under Section 21.02 of the penal
code, offenses arising under Section 22.021 of the penal code that are punishable under
subsection (f) of that section, or to capital felonies. See TEX. CODE CRIM. PROC. ANN. art. 37.07,
§ 4. Section 508.145(a) of the government code provides that a person serving a sentence for
continuous sexual abuse of a young child is not eligible for release on parole. TEX. GOV’T CODE
ANN. 508.145(a) (West Supp. 2014). Here, Appellant was convicted of continuous sexual abuse
of a child, a violation of Section 21.02 of the penal code. See TEX. PENAL CODE ANN. 21.02(b)



                                                 5
(West Supp. 2014). Thus, the instructions to inform a jury about the law of parole contained in
Article 37.07 do not apply to Appellant.
       In Cross v. State, No. 09-11-00406-CR, 2012 WL 6643832 (Tex. App. Beaumont Dec.
19, 2012, pet. ref’d) (mem. op., not designated for publication), a jury convicted the defendant of
continuous sexual abuse of a child. See id. at *1. On appeal, the appellant complained that the
trial court erred when it denied his request to include an instruction in the jury charge given in
the punishment phase of the trial advising the jury that he would not be eligible for parole. Id. at
*4. The court of appeals concluded the trial court did not err by refusing the defendant’s
requested instruction concerning his ineligibility for parole. Id. at *5. In so doing, the court
noted that “[t]he Court of Criminal Appeals has expressed its reluctance to deviate from statutory
instructions that are prescribed by the Legislature” and has indicated that, generally, special
nonstatutory instructions have no place in the charge. Id. at *4; Luquis, 72 S.W.3d at 364; see
also Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2012) (special, nonstatutory
instructions, even when they relate to statutory offenses or defenses, generally have no place in
jury charge).
       There, the instruction the defendant requested about the potential effect of a conviction
on his eligibility for parole was a special, nonstatutory instruction.         See Cross, 2012 WL
6643832, at *4. The Legislature has not provided for such an instruction in prosecutions for
continuous sexual abuse of a child, and, consequently, the appellate court concluded the trial
court did not err in refusing the instruction the defendant requested. Id. at *4.
       Because the Legislature has not provided for a parole instruction under these
circumstances, we conclude that Appellant’s trial counsel was not ineffective for his failure to
object to the trial court’s omission to a parole instruction in the charge, his failure to request such
an instruction, or his failure to object to the trial court’s response declining to answer the jury’s
inquiry concerning Appellant’s parole eligibility. Appellant’s fourth, fifth, and sixth issues are
overruled.
Failure to Object to Inadmissible Hearsay
       In his seventh issue, Appellant argues that his trial counsel was ineffective because he
failed to object to inadmissible hearsay elicited from B.S. during cross examination regarding an
alleged statement Appellant made threatening to kill the victims’ father if he were to go to




                                                  6
prison.1 Yet, the record before us is silent about trial counsel’s underlying strategy or why he
chose the course he did. Normally, a silent record cannot defeat the strong presumption of
effective assistance of counsel. See Garza, 213 S.W.3d at 348; Thompson v. State, 9 S.W.3d
808, 813–14 (Tex. Crim. App. 1999); but see Menefield, 363 S.W.3d 591, 593 (Tex. Crim. App.
2012) (holding if trial counsel is not given opportunity to explain allegedly deficient actions,
appellate court should not find deficient performance absent challenged conduct “so outrageous
that no competent attorney would have engaged in it”); Andrews v. State, 159 S.W.3d 98, 102–
03 (Tex. Crim. App. 2005) (reversing a conviction “in a rare case” on the basis of ineffective
assistance of counsel when trial counsel did not object to a misstatement of law by the prosecutor
during argument).
         In Andrews, the same prosecutor who filed a motion to cumulate the sentences in four
counts of sexual abuse later argued to the jury, “You give him 20 years in each case, it’s still just
20 years. It’s still not 80. You can give different amounts if you want. You can give 20, 10, 10,
five, it’s still just 20.” Id. at 100. The appellant’s trial counsel did not object to the prosecutor’s
misstatement of the law. Id. The trial court ultimately granted the State’s motion to cumulate
the sentences and imposed a combined prison sentence of seventy-eight years. Id. The court
concluded that the argument left the jury with the incorrect impression that the appellant’s
sentences could not be stacked and that the appellant would serve no more than twenty years in
prison for all four counts. Id. at 103. Therefore, the court held that, under the “extremely
unusual circumstances of [the] case,” the record contained all of the information it needed to
conclude that there could be “no reasonable trial strategy for failing to object” to the prosecutor’s
misstatement of the law. Id.
         The “extremely unusual circumstances” present in Andrews are not present in the case at
hand.    Counsel’s reasons in Andrews, if any, were unnecessary to resolve the ineffective
assistance of counsel claim. See Berry v. State, No. 05-04-01161-CR, 2005 WL 1515512, at *3
(Tex. App.–Dallas June 28, 2005, no pet.) (op., not designated for publication). But counsel’s
failing to object to a misstatement of the law that is detrimental to one’s client when the harm is
so clearly presented on appeal is quite different from determining whether to object to hearsay
testimony as a matter of trial strategy. See Walker v. State, No. 12-13-00076-CR, 2014 WL


         B.S.’s testimony revealed that she did not directly hear Appellant make this statement, but rather, that she
         1

was made aware of the statement from another source.


                                                         7
357193, at *2 (Tex. App.—Tyler Jan. 31, 2014, pet. ref’d) (mem. op., not designated for
publication) (failure of trial counsel to object to hearsay testimony not ineffective assistance
because counsel’s underlying reasons for decision not demonstrated by record).
         Having reviewed the record in the instant case, we conclude that the facts before us are
distinguishable from the facts in Andrews and Appellant’s trial counsel’s alleged deficient
conduct is not “so outrageous that no competent attorney would have engaged in it.” See
Menefield, 363 S.W.3d at 593. Thus, we decline to hold that the record before us contains all of
the information needed for us to conclude that there could be no reasonable trial strategy for
Appellant’s trial counsel’s alleged unprofessional acts. Therefore, we hold that Appellant has
not met the first prong of Strickland because the record does not contain evidence concerning
Appellant’s trial counsel’s reasons for choosing the course he did. As a result, Appellant cannot
overcome the strong presumption that his counsel performed effectively. Appellant’s seventh
issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s seven issues, we affirm the trial court’s judgment.
                                                                 BRIAN HOYLE
                                                                   Justice

Opinion delivered May 29, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                              MAY 29, 2015


                                         NO. 12-13-00260-CR


                                       OSCAR HERNANDEZ,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 2nd District Court
                          of Cherokee County, Texas (Tr.Ct.No. 17,690)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
