Daniel Hernandez v. State of Texas

No. 04-01-00242-CR Daniel HERNANDEZ, Appellant v. The STATE Of Texas, Appellee From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 1999-CR-3543 Honorable Raymond Angelini, Judge Presiding Opinion by: Sandee Bryan Marion, Justice Sitting: Catherine Stone, Chief Justice Paul W. Green, Justice Sandee Bryan Marion, Justice Delivered and Filed: November 6, 2002 AFFIRMED A jury found defendant, Daniel Hernandez, guilty on eleven counts of aggravated sexual assault and two counts of indecency with a child. The complainants were defendant's three step-daughters. A jury sentenced defendant to forty-five years' confinement on each count of aggravated sexual assault and fifteen years' confinement on each count of indecency with a child. On appeal, defendant asserts that the trial court abused its discretion by denying him his Sixth Amendment right to confrontation by improperly limiting the scope of his cross-examination of the complainants, and defense counsel failed to render effective assistance of counsel. We conclude that the trial court did not abuse its discretion in limiting defendant's cross-examination and that defense counsel rendered effective assistance; therefore, we affirm the trial court's judgment. RIGHT OF CONFRONTATION Defendant asserts he was denied the right to impeach the testimony of two of the complainants because the trial court excluded testimony inquiring into whether they had previously accused their biological father, Dimas Garza, of inappropriately touching them. Defendant also complains he was denied the right to show the jury that Garza had access to the complainants at the time of the abuse alleged against him; the complainants' mother tried to influence the proceedings in that the testimony of her daughters was "part of her plan" during her divorce from Garza; and Garza was not allowed to testify that the complainants had made sexual abuse allegations against him. Because defendant's discussion of harm centers primarily on his inability to cross-examine the complainants about their allegations against Garza, we will address the propriety of the trial court's ruling on that issue alone. The Sixth Amendment guarantees an accused in a criminal prosecution the right to confront the witnesses against him. U.S. Const. Amend. VI; Davis v. Alaska, 415 U.S. 308, 315 (1974). The Confrontation Clause's main purpose involves the ability to cross-examine the prosecution's witnesses. Davies, 415 U.S. at 315. We weigh each Confrontation Clause issue on a case-by-case basis, taking into account the defendant's right to cross-examine and the risk factors associated with admission of the evidence. Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). The trial court has broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Id. Ordinarily, specific instances of a witness's misconduct may not be used to demonstrate a witness's untrustworthy nature. Id. at 225; Tex. R. Evid. 608(b). In Lopez, a case involving a sexual offense, the Court of Criminal Appeals addressed whether the Confrontation Clause requires that previous false accusations of sexual abuse against a person other than the defendant be admissible, notwithstanding Rule 608(b)'s specific prohibition. Although the Court refused to create a per se exception to Rule 608(b) for sexual offenses, the Court recognized that the Confrontation Clause may require admissibility of evidence that the Rules of Evidence would exclude. Lopez, 18 S.W.3d at 225. In determining whether evidence must be admitted under the Confrontation Clause, the trial court must balance the probative value of the testimony against the risk its admission entails. Id. at 222. In Lopez, the trial was a typical "swearing match" between the defendant and the complainant; thus, the Court found a "heightened need" for the defendant to impeach the complainant's credibility with evidence of the prior allegation. Id. at 225. Nevertheless, the Court determined that the Confrontation Clause did not require admission of the evidence because the prior allegation was not shown to be false, the type of act alleged was unrelated to the subsequent allegation of sexual abuse, and there was a high risk that it would unduly prejudice and confuse the jury. Id. at 225-26. Here, although the allegations against Garza and against defendant involved sexual misconduct, there was no "heightened need" for the evidence on the issue of credibility. The medical evidence tended to corroborate the girls' allegations and each girl stated she witnessed the defendant's assault of at least one of the other two girls. Furthermore, the allegations of touching against Garza lacked physical evidence and resulted in a "no-bill." Although Garza denied the allegations against him, the complainants never admitted the falsity of their allegations against him and nothing in the record indicates that the girls lied. Therefore, without proof that the allegations against Garza were false, the evidence had no probative value in impeaching the complainants' testimony and would serve only to unduly prejudice and confuse the jury. See Lopez, 18 S.W.3d at 226; Loredo v. State, 32 S.W.3d 348, 351 (Tex. App.--Waco 2000, pet. ref'd); Hughes v. State, 850 S.W.2d 260, 262-63 (Tex. App.--Fort Worth 1993, pet. ref'd). Accordingly, we hold that the trial court did not abuse its discretion in refusing to allow defendant to cross-examine the complainants about any allegations they made against Garza. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant argues that trial counsel did not provide effective assistance because counsel failed to (1) obtain a ruling on a pretrial motion in limine as to certain admissions by defendant, (2) object to prejudicial testimony, (3) urge a motion for a directed verdict, and (4) present an opening statement. We follow the standard of review for evaluating claims of ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, a defendant must first show that counsel's performance was so deficient that it fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, defendant must affirmatively prove that he was prejudiced by counsel's conduct. Id. In other words, defendant must prove by a "reasonable probability" that, but for counsel's unprofessional conduct, the result of the proceeding would have been different. Id. A "reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial." Id. The assessment of whether defendant can prevail on a claim of ineffective assistance of counsel is a fact-intensive inquiry. Id. at 813. Defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence, and it must be firmly supported by the record. Id. Defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex. Crim. App. 1994). This court will look to the totality of the representation and the particular circumstances of this case in evaluating whether defendant's counsel was effective. Thompson, 9 S.W.3d at 813. We will not make a finding of ineffectiveness based on speculation. Jackson, 877 S.W.2d at 770-71. Defendant complains that defense counsel did not object before the prosecutor asked the complainants' mother the following question: "So, he [the defendant] essentially said that your affair caused him to abuse the children?" Defense counsel objected to the prosecutor's question, and the trial court sustained the objection and instructed the jury to disregard the question. We presume the jury complied with the court's limiting instruction and disregarded the prosecutor's question unless the defendant provides evidence to the contrary. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). The defendant has not pointed to any evidence in the record to rebut the presumption that the jury disregarded the instruction; therefore, defendant has not shown that he was prejudiced by counsel's inaction. Defendant asserts that defense counsel should have obtained a ruling on a pretrial motion in limine regarding defendant's statements to the complainants' mother. Defendant asserts a ruling "might have had some value" because the State would have been required to first approach the bench before questioning the mother. Defendant admits on appeal that the trial court "was clearly not inclined to grant this motion in limine as to the admission." Defendant's complaint is pure speculation about trial counsel's strategy and his claim of ineffective assistance is not supported by the record. Defendant contends counsel should have moved for a directed verdict at the conclusion of the State's case-in-chief because the State failed to connect defendant to the offenses. The fact that defense counsel may or could have moved for the directed verdict on the possibility of its being granted does not show that counsel was ineffective. McGarity v. State, 5 S.W.3d 223, 229 (Tex. App.--San Antonio 1999, no pet.). Even if traditional practice calls for defense counsel to move for a directed verdict on the grounds of insufficient evidence, the "possibility" that the motion may have been granted is not sufficient to show that counsel's failure to make the motion was deficient performance that prejudiced the defense. Id. There must be a showing of a reasonable probability that but for counsel's omission, the result of the proceedings would have been different. Id. A reasonable probability is more than a possibility, it is a probability sufficient to undermine confidence in the outcome of the proceedings. Id. Defendant's argument that the trial court would have granted the motion for directed verdict because the State's witnesses were not credible does not establish by a preponderance of the evidence that defense counsel's failure to move for a directed verdict would have provided a different outcome of the trial. Finally, defendant's complaint that counsel did not present an opening statement does not rebut the presumption that counsel acted reasonably in making this tactical decision. See Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.--Fort Worth 1997, pet. ref'd). Not making an opening statement does not necessarily render ineffective assistance. Calderon v. State, 950 S.W.2d 121, 127-28 (Tex. App.--El Paso 1997, no pet.). Because giving an opening statement provides the State with a preview of the defense strategy, the failure to give an opening statement is a valid tactical decision. See Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.--Fort Worth 1996, no pet.). Furthermore, defendant does not direct this court to anywhere in the record that indicates he was prejudiced by counsel's decision not to make an opening statement. We hold that defendant has not overcome the presumption that counsel provided reasonably effective professional assistance at trial or that he was prejudiced by counsel's actions. CONCLUSION Because the trial court did not abuse its discretion in limiting the scope of defendant's cross-examination, and defendant did not meet his burden of proof on his ineffective assistance of counsel claim, we affirm the trial court's judgment. Sandee Bryan Marion, Justice DO NOT PUBLISH