Opinion
01-22-00309-CR
06-15-2023
CARLOS HUMBERTO TENAS, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 482nd District Court Harris County, Texas Trial Court Case No. 1741611
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
MEMORANDUM OPINION
Peter Kelly Justice
Carlos Humberto Tenas appeals from his conviction for aggravated sexual assault of a child younger than 14 years of age. See Tex. Penal Code § 22.021. After trial, a jury sentenced him to 14 years' imprisonment. In seven issues on appeal, he argues that: the trial court violated his constitutional rights by shackling him during trial; the trial court abused its discretion in designating an outcry witness; his counsel was ineffective for failing to challenge a veniremember for cause, failing to preserve the denial of two other challenges for cause, and for representing him despite a conflict of interest; and the cumulative errors he alleges so fatally infected the trial that it was fundamentally unfair, requiring reversal.
We affirm.
Background
Tenas was charged by indictment related to sexual conduct with his eight-year-old niece in 2019. The case proceeded to trial in April 2022.
A. Guilt-Innocence Phase
At trial, the complainant's aunt, Gloria Linares, testified that the complainant came to Houston from Guatemala. The complainant and her father stayed with various family members upon arrival, including Tenas. After two or three months, the eight-year-old complainant came to live with Linares and her husband. Linares is one of Tenas's sisters. When Linares first saw the complainant, the complainant's stomach looked as though she was pregnant, and she was also vomiting frequently. Linares and her husband took the complainant to get medical care. While at the hospital, the complainant disclosed that she had been abused by multiple people, including Tenas. The complainant told Linares that while at Tenas's home, Tenas sat her on his legs and showed her pornographic videos of adults having sex. The complainant was crying and upset when she made the disclosure to Linares. Linares contacted Child Protective Services, and the complainant participated in a full investigation.
A doctor later testified that the complainant had been diagnosed with a parasite infestation and an infection which "tend to run together from dirty water."
Houston Police Officer R. Munoz testified regarding his investigation. He interviewed Linares and her husband and testified that the complainant participated in two forensic interviews and a medical exam. The complainant stated that she had been abused by multiple people, including Tenas, another uncle, and her father. Officer Munoz interviewed Tenas. He identified Tenas in court and identified a picture of him, showing distinguishable bumps on Tenas's hands.
The forensic interviewer, Claudia Hauser, testified that she interviewed the complainant twice. At the time of the first interview, the complainant was eight years old. The complainant identified several individuals, including Tenas, as her abusers. She told Hauser that Tenas abused her in the home where she stayed with him and her father. The complainant told Hauser that Tenas showed her a pornographic video of children being raped. While showing her the video, Tenas had her sit on his lap while he put his arm around her waist. The complainant told Tenas that she did not want to see the video.
The complainant told Hauser that Tenas exposed his "part of the body used for peeing." She described that it had ball-like bumps and that it was swollen. She also described that the same type of bumps appeared on his hands. During the second interview, the complainant told Hauser that her father had sold her to other men. The complainant told Hauser that she saw Tenas give her father money to have sex with her.
A paralegal from the district attorney's office testified that she is assigned to prosecutors in the Crimes Against Children division and regularly assists with interviews of child complainants of sexual abuse. She testified that she has participated in interviews with hundreds of children. During pretrial meetings, her role is to take notes while the prosecutors ask the child questions. The paralegal met with the complainant three times in preparation for trial. Each time, she disclosed more details about the abuse. The paralegal described the complainant's statements as consistent, providing the same overarching details in each interview but adding details to describe what happened.
The complainant disclosed to the paralegal that she had moved into Tenas's apartment with her father when she was eight years old. The complainant told the paralegal that Tenas took her to his room and put her on a bed. She described her back being on the bed and Tenas standing up. He had his pants and underwear off and he took off all her clothes. The paralegal testified that the complainant said that Tenas "put his private part in her private part." The complainant described feeling pain and that it lasted about fifteen minutes. The paralegal also testified that during one of the interviews, the complainant testified that semen came out of Tenas's private part.
A doctor from Texas Children's Hospital testified that she encountered the complainant when she was brought to the emergency room. The doctor reviewed medical records from two other clinics where the complainant's aunt, Linares, had previously taken her. The complainant was diagnosed with a parasite infection and an infection commonly contracted from ingesting dirty water. The doctor also testified that specialized nurses spoke to the complainant about abuse, and the doctor performed a physical exam. She did not find physical signs of abuse and testified that that was not unexpected.
The complainant testified that she was born in Guatemala and came to Houston when she was eight years old. At the time of trial, she was eleven years old. She testified that life was hard in Guatemala and that her father made her work in a bar at four years old. She danced on the bar in short clothing given to her by her parents. She testified that her parents gave her drugs that made her feel dizzy. When she first arrived in Houston, she stayed in a location that was like a jail. Her aunt Olga picked her up, and she went to live with Olga and her husband. She did not like living there because Olga's husband abused her. She then moved from Olga's house to Tenas's apartment with her father. She identified Tenas in court and stated that he is her uncle and is related to her mother. Tenas slept in the only bedroom, and the complainant and her father slept in the living room. She did not like living with Tenas because her father and Tenas abused her. She often was home alone with Tenas while her father worked. Tenas did not work. If the complainant did not do what her father or Tenas wanted, they would hit her. She testified that Tenas threatened her and that she was afraid he would hurt somebody that she loved.
The complainant testified that on one occasion while her father was at work, Tenas showed her videos on his phone of naked men and women doing "ugly things" where "the man would put his part into the woman's part." While showing the video, Tenas put her on his legs and held onto her waist. After the video, he put the complainant down, removed his pants and underwear, and showed the complainant "his private part." She described seeing bumps on his private part. She saw the same bumps on his legs and arms. Tenas instructed her to touch and grab the private part with her hand. Next, Tenas dragged her to his bedroom, put her on his bed, and took off all her clothes. He threw himself on top of her while she was on her back and did the same thing to her that he had showed her in the video. He put his private part in her private part, and she felt pain. She described that "white stuff came out of his private part and went into hers. Tenas stopped because another aunt happened to knock on the door. The aunt arrived to take the complainant with her for the afternoon. Tenas stayed in the bedroom and told the complainant to tell her aunt that he was taking a shower. The complainant left with the aunt.
The complainant's aunt Olga Tisol testified for the defense. She stated that the complainant stayed with her for about a week before moving in with Tenas. She testified that she believed Tenas was innocent. She stated that her husband had been deported based on the complainant's outcries of abuse about him. Olga did not believe the complainant was telling the truth about being abused.
Tenas's sister Victoria also testified for the defense. She testified that she kept the complainant for three weeks and during that time, the complainant never disclosed abuse. She testified that her brother has suffered for 15 years from a physical ailment that covers his body in blisters and reduces his strength. On cross-examination, she stated that if the complainant had reported abuse to her, she would not have reported it to the police. She first would have had to investigate to have evidence. She testified that Tenas is a good, kind-hearted person.
Felisiana Garcia testified that Tenas is the father of her two children. The children are 25 and 23 years old. She lived in the same apartment complex as Tenas. On occasion, she babysat the complainant along with up to four other children in her apartment. She testified that Tenas treated their children well, and she never saw him be inappropriate with the complainant. She testified that Tenas was able to walk slowly and that he had bumps on his hands, legs, feet, and penis. Tenas once showed her a photograph of his penis covered in bumps.
Tenas testified that he is originally from Guatemala but had lived in the United States for more than 30 years. He testified that he has had arthritis for more than 10 years and is in constant pain. He testified that his sisters pay for his apartment, and they told him that the complainant and her father needed to stay with him. He did not believe what the complainant said about him and was surprised by her testimony. He testified that due to his disease, he cannot have sex, and has not had an erection in ten years. He testified that he had showed Felisiana a picture of his penis so that she could see the bumps on it. The complainant saw the same photograph on an old phone in the house. He testified that the complainant wanted a tablet, but he could not afford one. Instead, he gave her the old phone, where she found the photograph.
Tenas denied that he had shown the complainant pornographic videos. He also stated that he is not physically strong enough to lift her up and forcibly put her on his lap. He also claimed that he was not physically capable of taking off his clothes quickly and that he could not get on the bed to get on top of her. He reiterated that he never touched her inappropriately.
On cross-examination, Tenas admitted that he had driven as recently as 2019, including driving to an interview with a detective and driving the complainant's father to an interview. He also told the detective he had driven the complainant to a park. He clarified that he had not had sexual relations for 10 to 12 years but was less specific about when he had last had an erection. He stated that it had been "a long time" since he had been aroused. He also admitted that his illness was not so debilitating that it prevented him from going to family gatherings. Three months before trial, he went to his mother's birthday party and danced.
On re-direct examination, Tenas showed the jury his hands and testified that he cannot carry weight with them. He showed the jury bumps on his skin covering his arm up to his elbow joint. He also showed the jury bumps on his leg and testified that they are painful and spasm. He removed his socks and shoes and showed the jury that his feet are swollen and deformed. He stated that his condition would have prevented him from grabbing the complainant and throwing her on a bed.
The State recalled Officer Munoz after the defense rested. He testified that when he interviewed Tenas, he was able to walk into the room and was not using a cane. The State also called a family member who had a video of Tenas dancing at his mother's wedding a few months before trial. The witness testified that the video had been removed from Facebook by another family member.
Following closing arguments, the jury found Tenas guilty of aggravated sexual assault of a child.
B. Punishment Hearing
During the punishment phase, the State put on evidence and testimony to establish that Tenas had failed to show up to court for a January 2022 trial date. A court coordinator testified that Tenas was not present when the case was originally called to trial in January 2022. She explained that when present, the defendant signs a case reset form. If the defendant is not present, he cannot sign the form and it would be his attorney's responsibility to inform him of the reset date. Tenas was not present and did not sign the reset form.
An assistant district attorney testified that she was present on the day that Tenas's case was called for trial because she had another case before the same court. She remembered the bailiff calling Tenas's name, and he did not answer. The State then moved to forfeit Tenas's bond. She explained to the jury that documents were filed notifying any law enforcement agency of an outstanding warrant for Tenas's arrest and directing law enforcement to take him into custody. She testified that the warrant was issued on January 7, 2022, and that Tenas was arrested on February 24, 2022.
A police officer testified that on February 24, 2022, he received a call that a fugitive enforcement agent, commonly known as a bounty hunter, had Tenas in handcuffs at a restaurant. He went to the restaurant and detained Tenas.
A Harris County district attorney from the bond forfeiture section testified regarding the process that typically happens when a defendant is on bond and does not show up to court. He testified that Tenas had worked with a licensed bond company to post a $20,000 bond. When he did not come to court, a lawsuit was filed against him and the bond company. The attorney testified that the bond companies work hard to return the defendants to custody and that the company did not provide a reason why Tenas did not show up to court.
Linares, the complainant's aunt who had since adopted her, testified to the behavioral changes she had seen in the complainant throughout the ordeal. The complainant also testified about the impact the abuse had on her.
Tenas's other sisters testified during the punishment hearing for the defense and asked for leniency from the jury. Several were worried about his health condition while in prison. One of Tenas' sisters testified that he always came to court, and, on the January trial date, he arrived late. His attorney told him not to enter the courtroom because the court had already issued an arrest warrant for him.
The jury sentenced Tenas to 14 years' imprisonment. He appealed.
Restraint of Criminal Defendant During Jury Trial
During the guilt-innocence phase of trial, the court ordered that Tenas be restrained. Tenas contends that the trial court abused its discretion by requiring him to be shackled during his trial. The State responds that Tenas did not preserve this complaint for appeal, and that even if the trial court abused its discretion in shackling Tenas, the error does not warrant reversal. We agree.
A. Standard of Review
The Fourteenth Amendment of the United States Constitution guarantees criminal defendants the right to a fair trial. See Estelle v. Williams, 425 U.S. 501, 503 (1976). In Deck v. Missouri, the Supreme Court recognized the longstanding rule that the U.S. Constitution forbids the routine use of visible shackles on defendants during trial. 544 U.S. 622, 624, 626-35 (2005). The court recognized that it may be necessary for certain defendants to be restrained in exceptional circumstances. Id. at 627. ("[T]rial courts may not shackle defendants routinely, but only if there is a particular reason to do so."). Such circumstances may arise, for instance, when a defendant has demonstrated a propensity to escape or has threatened or assaulted courtroom personnel, thereby implicating an essential state interest, namely, courtroom security. Wiseman v. State, 223 S.W.3d 45, 50 (Tex. App.-Houston [1st Dist] 2006, pet. ref d) (citing Deck, 544 U.S. at 632). Prior to the use of shackles, a trial court must make a specific finding that they are necessary for reasons particular to a given case. Wiseman, 223 S.W.3d at 50. Such determinations are reviewed under an abuse of discretion standard. Id. A trial court abuses its discretion when it acts without reference to any guiding rules or principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
B. Analysis
Tenas contends that he was denied a fair trial by being shackled during trial when the record does not show any specific and particularized reasons justifying the court's decision. He further argues that he was harmed by the court's error because it is substantially likely that the jury was aware of the shackles, thus infringing upon his presumption of innocence.
The record reflects that Tenas did not object at trial to being shackled or to the lack of specific findings by the trial court justifying the use of shackles in this case. Because appellant did not object at trial, he has waived his right to appeal on these grounds. See Tex. R. App. P. 33.1(a); Wiseman, 223 S.W.3d at 49 (finding defendant's failure to object at trial that his shackling violated Texas Constitution waived his right to appellate review on that ground); Rivera-Sanchez v. State, No. 01-14-004415-CR, 2015 WL 3751489, at *3 (Tex. App.-Houston [1st Dist.] June 16, 2015, no pet.) (mem. op., not designated for publication) (holding defendant waived appellate issue related to shackling when he failed to object at trial).
However, even if the trial court erred in requiring Tenas to be shackled, any such error is non-constitutional error. The Court of Criminal Appeals has stated that whether error in shackling a defendant during trial is of constitutional dimension turns on "whether the record shows a reasonable probability that the jury was aware of the defendant's shackles." Bell v. State, 415 S.W.3d 278, 283 (Tex. Crim. App. 2013). A "reasonable probability" requires "a substantial basis supporting a conclusion that the jury perceived the defendant's restraints." Id. The record in this case does not support a conclusion that the jury was aware of Tenas's restraints.
Outside the presence of the jury, Tenas verified his intent to testify. The court announced it was ready for the jury, and the State immediately informed the judge that the defendant was shackled. The jury returned and the court instructed Tenas's counsel to call its next witness. Tenas testified.
During redirect examination, Tenas's counsel asked the court's permission for Tenas to get down from the witness stand. The court responded "Not right now. We have to excuse the jury for a second." Once the jury was not present, the court discussed with both attorneys, stating that the issue was that the defendant was shackled, and his counsel wanted him to step off the witness stand. Tenas's counsel requested that he be unshackled and that a court deputy stay close to him. The bailiff agreed that if a deputy was present, the shackles could be removed. Tenas was seated with a deputy next to him and redirect examination continued. On redirect examination, Tenas showed the jury various parts of his body covered in bumps. There was no further discussion regarding Tenas's shackles during the remainder of the trial.
Concluding from this record that the jury could see appellant's restraints would be entirely speculative. If appellant's shackles had become visible at some point during the trial, it is reasonable to expect that the State or trial counsel would have brought it to the court's attention. See Bell, 415 S.W.3d at 283 (noting it would be reasonable to expect defendant to bring any audible rattling of his shackles in front of jury to court's attention). Tenas was not shackled when he showed the jury parts of his body. Additionally, Tenas has not asserted that his communication with counsel was in any way hampered because of the leg shackles. The record does not support a finding that there is a reasonable probability that the jury was aware of Tenas's shackles while they were on. Consequently, any error in shackling did not amount to constitutional error and is analyzed under Texas Rule of Appellate Procedure 44.2(b).
Under Rule 44.2(b), any non-constitutional "error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). In assessing the likelihood that the jury's decision was adversely affected by the error, important factors to consider include the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. The analysis may include whether the State emphasized the error and whether overwhelming evidence of guilt was present. Id.
The record does not show that the jury saw or was otherwise aware of Tenas's shackles. When Tenas's counsel sought to have him step down from the witness stand, the court excused the jury, ultimately removing the shackles and asking a deputy to sit near Tenas. We conclude that Tenas cannot demonstrate that any shackling error had a substantial or injurious effect or influence in determining the jury's verdict. See Bell, 415 S.W.3d at 283; Rivera-Sanchez, 2015 WL 3715489 at *4 (concluding defendant waived alleged error regarding restraints but even if preserved, any error would be harmless absent evidence jury was aware of shackles); Schroeder v. State, Nos. 13-13-00379-CR & 13-13-00380-CR, 2015 WL 1632309, at *11 (Tex. App.-Corpus Christi Apr. 9, 2015, no pet.) (mem. op., not designated for publication) (concluding same). Any error in shackling Tenas was harmless.
We overrule Tenas's first issue.
Outcry Witness
Tenas asserts that the trial court reversibly erred in allowing a paralegal from the district attorney's office to testify as an outcry witness because she was not the first person to whom the complainant made an outcry. We disagree.
A. Standard of Review and Applicable Law
We review the trial court's designation of an outcry witness for an abuse of discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Polk v. State, 367 S.W.3d 449, 452 (Tex. App.-Houston [14th Dist] 2012, pet. ref d). A trial court's designation of an outcry witness will be upheld when supported by the evidence. See Garcia, 792 S.W.2d at 92. A trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its discretion if some evidence supports its decision. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
Article 38.072 of the Texas Code of Criminal Procedure allows for the admission of outcry statements that would otherwise be inadmissible hearsay for certain offenses when made by a child complainant. Tex. Code Crim. Proc. art. 38.072; see also Tex. R. Evid. 802. These offenses include aggravated sexual assault of a child. Tex. Code Crim. Proc. art. 38.072; see also Tex. Penal Code § 22.021. The outcry witness is the first person over the age of eighteen, other than the defendant, to whom the child made a statement regarding the offense, extraneous crime, wrong, or act. Tex. Code Crim. Proc. art. 38.072, § 2(a)(3). The statement must be "more than words which give a general allusion that something in the area of child abuse is going on." Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2001) (quoting Garcia, 792 S.W.2d at 91). Hearsay testimony from more than one witness may be admissible if the witnesses testify about different events. Lopez, 343 S.W.3d at 140. There may, however, only be one outcry witness per event. Id.
B. Analysis
Tenas was indicted for aggravated sexual assault of a child, specifically "unlawfully, intentionally, and knowingly caus[ing] the sexual organ of [the complainant], a person younger than fourteen years of age, to contact the sexual organ of [appellant]." After outcry witness hearings, the trial court designated three witnesses as outcry witnesses: (1) Linares, the complainant's aunt, for the defendant allegedly showing the complainant pornography; (2) Hauser, the forensic interviewer, for the exposure of the defendant's penis and trafficking the complainant; (3) the paralegal "regarding the defendant penetrating the complainant's private part, ejaculation, placing her on the bed, and feeling pain for 15 minutes."
Tenas was initially indicted for indecency with a child, but the charge was refiled as aggravated sexual assault of a child following the complainant's disclosure to the paralegal.
Tenas argues that the trial court improperly designated the paralegal as an outcry witness because she was not the first person to whom the complainant made statements regarding abuse. He argues that the complainant admits that the abuse occurred on one occasion, therefore the proper outcry witness is the first person to whom the complainant made an outcry. Tenas argues that this is Linares, who was told that Tenas showed the complainant pornography while she was sitting on his lap. Tenas argues that the paralegal was not an appropriate outcry witness because she was not told until two years later and was not the first person to whom the complainant stated she had been abused by Tenas.
The trial court did not abuse its discretion in admitting the paralegal as an outcry witness. In general, only one witness may provide outcry testimony as to a specific act of abuse. See Tex. Code Crim. Proc. art. 38.072 § 2(a)(3) (limiting outcry testimony to first person to whom child made a statement); see also Lopez, 343 S.W.3d at 140; Garcia, 792 S.W.2d at 91. However, different witnesses may testify if the testimony is about different specific acts of abuse. See Rosales v. State, 548 S.W.3d 796, 807 (Tex. App.-Houston [14th Dist.] 2018, pet. ref'd) (holding trial court did not abuse its discretion in holding that mother was proper outcry witness regarding appellant putting penis in complainant's mouth and another outcry witness was proper regarding complainant's statement that defendant put his penis in her anus); Hernandez v. State, No. 02-14-00262-CR, 2016 WL 4903206, at *9 (Tex. App.-Fort Worth Sep. 15, 2016, pet. ref d) (mem. op., not designated for publication) (holding that trial court did not err in designating two outcry witnesses when the complainant made outcries of different offenses to the two people). The trial court's exercise of its broad discretion in admitting the paralegal as a third outcry witness concerning a different act of abuse falls within the zone of reasonable disagreement. Taylor, 268 S.W.3d at 579.
Moreover, even if the trial court erred in admitting the paralegal as an outcry witness, we conclude that the error was harmless. The erroneous admission of hearsay testimony under article 38.072 is non-constitutional error. Rosales, 548 S.W.3d at 808. Such an error is harmless if we are reasonably assured that the error did not influence the verdict or had but a slight effect. Id. Where the same or similar evidence is admitted without objection at another point in the trial, the error is harmless. Id.
In this case, the same or similar evidence was admitted without objection through the complainant. The complainant provided detailed testimony about sexual assault by Tenas. She told the jury that Tenas showed her videos on his phone of naked men and women, where "[t]he man would put his part into the woman's part." She testified that Tenas put her on his lap when he showed her the videos, and afterwards, he showed her "his private part" and had her grab it. The complainant testified that when she removed her hand from his "private part," Tenas took her to his room where he put her on his bed and removed her clothing. She testified that Tenas threw himself on top of her while she was on her back, and "[h]e did the same thing that he had showed [her] in the video." She testified that he put his "private part" in her "private part," causing her pain. She also testified that she saw "some white stuff come out of his penis and go inside her. The complainant further testified that Tenas stopped what he was doing because her aunt knocked on the door. Tenas told the complainant to tell the aunt that he was taking a shower. The complainant left with the aunt. Even if the trial court erred in admitting the paralegal's testimony as an outcry witness, the error was harmless because the complainant provided the same testimony. Rosales, 548 S.W.3d at 808.
We overrule Tenas's issue regarding the admission of outcry witness testimony.
Ineffective Assistance of Counsel During Voir Dire
Tenas next complains that his counsel was ineffective during voir dire. Specifically, he argues that his counsel was ineffective for failing to strike a veniremember for cause and for failing to request additional peremptory strikes when the court denied his strikes for cause of two other veniremen. The State responds that counsel was not ineffective, and that Tenas cannot establish ineffective assistance on a silent record. We agree.
A. Standard of Review
The Sixth Amendment of the United States Constitution and the Texas Constitution guarantee a criminal defendant the right to reasonably effective assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; see Lopez, 343 S.W.3d at 142. The right to effective assistance of counsel requires objectively reasonable representation, not errorless performance. Lopez, 343 S.W.3d at 142 (citing Strickland v. Washington, 466 U.S. 668, 686 (1984), and Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)).
To establish that trial counsel provided ineffective assistance, an appellant bears the burden to demonstrate by a preponderance of the evidence that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142. An appellant must establish both prongs before an appellate court will find counsel's representation to be ineffective. Lopez, 343 S.W.3d at 142 (citing Strickland, 466 U.S. at 687); see Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong.").
To satisfy the first prong, an appellant must show that his trial counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 687-88; Lopez, 343 S.W.3d at 142. Under the second prong, an appellant must demonstrate prejudice or "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see Lopez, 343 S.W.3d at 142. A reasonable probability is one sufficient to undermine confidence in the outcome. Lopez, 343 S.W.3d at 142.
For an appellate court to find that counsel was ineffective, "counsel's deficiency must be affirmatively demonstrated in the trial record; the court must not engage in retrospective speculation." Id. "It is not sufficient that appellant show, with the benefit of hindsight, that his counsel's actions or omissions during trial were merely of questionable competence." Id. at 142-43. (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)). Furthermore, a claim of ineffective assistance of counsel also requires proof of prejudice. Bone v. State, 77 S.W.3d 828, 836-37 (Tex. Crim. App. 2002).
In most cases, the record on direct appeal is undeveloped and thus inadequate to prove a claim of ineffective assistance. See Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ("A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal."). The Court of Criminal Appeals has repeatedly stated that trial counsel "should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). When trial counsel is not provided an opportunity to explain his actions, we will not find that counsel's performance was deficient unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. (quoting Goodspeed, 187 S.W.3d at 392).
Claims of ineffective assistance of counsel rejected on direct appeal "due to lack of adequate information may be reconsidered on an application for a writ of habeas corpus." Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
B. Analysis
1. Failure to strike veniremember 21
Tenas argues that his counsel was ineffective for failing to strike veniremember 21. First, he argues that the veniremember could not be impartial based on family background, and second, he argues that the veniremember refused to consider the entire statutory sentencing range.
Veniremember 21 answered the prosecutor's question of why a child would delay an outcry of sexual abuse. He stated that a child might try to protect a family member. His response included that his wife was assaulted by a family member at a young age: "She went through that . . . . I don't think it will affect my judgment now."
A juror can be challenged for cause if he has a bias or prejudice in favor of or against the defendant or the law on which the defendant is entitled to rely. Tex. Code Crim. Proc. art. 35.16(a)(9), (c)(2); Comeaux v. State, 445 S.W.3d 745, 749 (Tex. Crim. App. 2014). Veniremember 21 did not state that knowledge of his wife's childhood abuse would render him unable to be a fair and impartial juror. He stated specifically the opposite, that he did not think it would affect his judgment. Challenging this juror for cause would have been meritless. See Comeaux, 445 S.W.3d at 749 (challenger must show that the potential juror understands the law and still cannot overcome his prejudice). Counsel was not ineffective for failing to pursue a meritless challenge.
Tenas also argues that the same veniremember was subject to a challenge for cause because he could not consider the entire sentencing range. The trial court addressed punishment during voir dire. Some veniremembers referred to an inability to consider the entire punishment range, specifically the low end of the range. The trial court reiterated that consideration of the full punishment range was in the context of a hypothetical case. Later, defense counsel asked if any prospective juror could not consider a five-year sentence as punishment for sexual assault of a child. Veniremember 21 stated, "I am just saying if it's proven beyond a reasonable doubt that he's guilty then five years would be too low a sentence for me as well." The veniremember answered "No" when asked by defense counsel to clarify that the low-end sentence was not within the "realm of possibility" for him. Defense counsel did not request to strike the veniremember for cause and did not object to the impaneled jury, which included the veniremember.
We note at the outset that Tenas did not file a motion for new trial. Trial counsel has not had an opportunity to explain or defend his trial strategy in response to the matters that Tenas contends was deficient. The way trial counsel exercises challenges for cause is inherently a matter of trial strategy based upon "counsel's best professional judgment." Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). On a record that does not reveal counsel's reasoning, we "must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that [counsel] 'made all significant decisions in the exercise of reasonable professional judgment.'" Id. (quoting Strickland, 466 U.S. at 690); see State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 2008) (record insufficient to determine trial counsel's performance was constitutionally inadequate and not the product of strategic or tactical decision).
Even assuming the prospective juror could have been struck for cause, the record is silent as to why trial counsel chose not to make a challenge for cause. As noted in Delrio, trial counsel may have had strategic or tactical reasons for not challenging the prospective juror for cause. For example, trial counsel may have believed the juror was a favorable juror for Tenas. In the absence of an opportunity to respond to Tenas's allegation of ineffective assistance, we must presume that Tenas received effective assistance of counsel. See Goodspeed, 187 S.W.3d at 392. Trial counsel's performance was not so deficient that no competent attorney would have engaged in it. See Notias v. State, 491 S.W.3d 371, 377-78 (Tex. App.- Houston [1st Dist.] 2016, no pet.) (involving silent record and claim that trial counsel failed to challenge veniremember for cause after veniremember explicitly stated inability to be fair and impartial). We overrule Tenas's first allegation of ineffective assistance of counsel.
2. Failure to preserve claims that trial court erred in denying challenges for cause for veniremembers 24 and 32
Tenas argues that his trial counsel was ineffective for failing to preserve the denial of his challenges to veniremembers 24 and 32. He argues that his counsel should have requested additional peremptory strikes when the court denied his strikes for cause.
Veniremember 24 stated that he knew of three teachers who had been falsely accused of child sexual abuse and suffered financial repercussions. The veniremember stated that based on this experience, "I would hope that I could be fair and impartial. I can't guarantee it." He also testified that he was a paramedic for 40 years and had personal experience with child sexual abuse, having seen hundreds of cases. He also had several family members who had experienced sexual abuse. As to whether he could be fair and impartial based on those experiences, the veniremember stated, "I would like to think that I could be impartial, but it wouldn't take much of anything to twist me to a very biased state. So, I will say probably not, no." When the State asked if that meant probably the veniremember would be fair or probably not fair, the response was, "To my mind it would be fair. Whether it will be fair in other people's minds, I don't know." The defense challenged this veniremember for cause on grounds that the member could not be fair and impartial. The trial court denied the challenge. Tenas's trial counsel did not request additional peremptory strikes.
Veniremember 32 answered a question about why children might lie. The veniremember stated that children lie because they want to be with their friends and to get out of trouble. Later, after Tenas's counsel asked whether anyone could not consider a five-year sentence as punishment for sexual assault of a child, the following exchange occurred:
Veniremember 21: I am just saying if it's proven beyond a reasonable doubt that he's guilty then five years would be too low a sentence for me as well.
Defense counsel: 32?
Veniremember 32: Same thing. Five years is not enough, if it's proven.
Defense counsel: Never consider it?
Veniremember 32: (shakes head no)
Defense counsel: Motion on 32, Your Honor.
The Court: That is denied. Remember my question. I am not asking what you will give. You don't know the facts of the case.
Veniremember 32: Okay.
The Court: The question is, as you sit there can you consider the full range of punishment?
Veniremember 32: Yes.
The Court: Can you? We are not saying he can prove him guilty. That has not happened. He's presumed to be innocent. The question is: Can you consider the full range of punishment as you sit in those very uncomfortable benches right now? That is the question.
Veniremember 32: Right now, yes. Yes. Sorry.
Tenas's counsel challenged veniremember 32 for cause "on punishment." The trial court denied the challenge, and counsel did not request additional peremptory strikes. Both veniremember 24 and 32 were struck, and neither served on the jury.
Although the challenged individuals were not seated on the jury, Tenas asserts that his counsel was ineffective by failing to preserve any error by the trial court in denying the challenges for cause. To preserve error for a trial court's erroneous denial of a challenge for cause, appellant must show that (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of veniremember; (3) his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010).
Tenas did not raise his complaint by motion for new trial, and the record does not reflect counsel's strategy in exercising any peremptory challenge or in failing to preserve any error by the trial court in denying the challenges for cause. See Morales, 253 S.W.3d at 698 (decision to waive alleged error in denial of challenge for cause by using peremptory challenges on other prospective jurors could be counsel's reasonable tactical choice); see also Crawley v. State, No. 05-08-01067-CR, 2009 WL 1664951, at *4 (Tex. App.-Dallas June 16, 2009, no pet.) (mem. op., not designated for publication) (declining to find trial counsel ineffective for failure to preserve error in denying challenges for cause without developed record). On this record, we cannot say that trial counsel's conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed, 187 S.W.3d at 392. Tenas has not established that trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88. Having determined that Tenas failed to establish the first prong of the Strickland test, we need not consider whether the allegedly deficient performance prejudiced his defense. See Williams, 301 S.W.3d at 687.
We overrule Tenas's issues related to ineffective assistance of counsel during voir dire.
Conflict of Interest
Tenas argues that his counsel provided ineffective assistance due to a conflict of interest. The State responds that the record on appeal is not sufficiently developed to find an actual conflict of interest. We agree.
A. Applicable Law
The Sixth Amendment guarantees the right to reasonably effective assistance of counsel, which includes the right to "conflict-free" representation. See Strickland, 466 U.S. at 692; Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980). "[T]he proper standard by which to analyze claims of ineffective assistance of counsel due to a conflict of interest is the rule set out in Cuyler v. Sullivan, that is, the appellant must show that his trial counsel had an actual conflict of interest, and that the conflict actually colored counsel's actions during trial." Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007) (citing Cuyler, 446 U.S. at 348). "An 'actual conflict of interest' exists if counsel is required to make a choice between advancing his client's interest in a fair trial or advancing other interests (perhaps counsel's own) to the detriment of his client's interest." Acosta, 233 S.W.3d at 355 (quoting Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997)). The appellant bears the burden of proof by a preponderance of the evidence on a claim of ineffective assistance due to conflict of interest, which is to say that if "no evidence has been presented on the issue," or if "the evidence relevant to that issue is in perfect equipoise," the appellant's claim will fail. Odelugo v. State, 443 S.W.3d 131, 136-37 (Tex. Crim. App. 2014) (quoting Braxton v. State, 909 S.W.2d 912, 920 (Tex. Crim. App. 1995) (Clinton, J. dissenting) ("It is the function of a burden of proof to determine which party should prevail on a particular issue in the event the evidence relevant to that issue is in perfect equipoise.")). A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice to obtain relief. Cuyler, 446 U.S. at 349-50. Until the appellant shows that counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Id. at 350.
B. Analysis
During the punishment phase, the State presented evidence that Tenas had jumped bail. The trial court's coordinator testified that if a defendant is not present, he may not sign a reset form, and it would be the defendant's attorney's responsibility to notify the defendant about the reset date. Documentation of appellant's bond, a case reset form, and a notice of reindictment were offered into evidence. Defense counsel objected. Counsel stated that he could not testify and serve as Tenas's lawyer at the same time. The trial court overruled defense counsel's objections to the exhibits and stated that the fact that the reset form did not have the defendant's signature goes to the weight of the document, not its admissibility.
The reset form, dated December 10, 2021, did not have a signature in the area for the appellant's signature or the prosecutor's signature. A signature appears in the area for appellant's attorney. Tenas did not appear on December 10, 2021. The form reset trial to January 7, 2022.
An assistant district attorney testified that Tenas was not present for jury selection on January 7, 2022, and that a bailiff called for Tenas, but he did not answer. Tenas was arrested in late February pursuant to a warrant issued on the day of jury selection. The State offered bond forfeiture documents into evidence. The court overruled defense counsel's objections and admitted the documents into evidence.
Tenas called one of his sisters to testify. On cross-examination, she stated that he had been coming to court monthly but did not know his trial date. She testified that appellant's attorney called him last minute about the trial, and Tenas did show up on his trial date, but he arrived too late. She explained that his attorney told Tenas "not to go in" because the trial court had already issued an arrest warrant. Tenas did not check in or turn himself in. When asked if there was any redirect examination, trial counsel stated, "Can't comment, Your Honor. I have no questions."
Tenas contends that there is an actual conflict of interest because his trial counsel was a witness to an essential fact, but the record does not support this contention. Appellant did not move for a new trial; therefore, the record is silent as to what facts trial counsel would have testified to regarding the missed trial setting. Appellate review of counsel's representation is highly deferential; we must "indulge in a strong presumption that counsel's conduct was not deficient." Nava v. State, 415 S.W.3d 289, 307-08 (Tex. Crim. App. 2013); see Strickland, 466 U.S. at 669 (stating judicial scrutiny of counsel's performance must be highly deferential). To rebut that presumption, a claim of ineffective assistance must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Menefield, 363 S.W.3d at 592. The record does not contain trial counsel's efforts to relay the trial date to appellant. It is possible that Tenas's counsel's testimony would have been against Tenas's interests, perhaps explaining that Tenas was aware of the trial date or discrediting his sister's testimony that he came to court on the day of the January trial. On this record, we cannot conclude that Tenas has met his burden to establish an actual conflict of interest demonstrating that he received ineffective assistance of counsel.
We overrule Tenas's issue related to a possible conflict of interest.
Cumulative Error
Tenas contends that the trial was fundamentally unfair and requires reversal under the cumulative error doctrine.
"The cumulative error doctrine provides relief only when constitutional errors so fatally infect the trial that they violated the trial's fundamental fairness." Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010). "In a cumulative-error analysis, we consider only errors that were preserved for appeal. The cumulative-error doctrine does not apply unless the complained-of errors have been preserved for appeal and are actually errors." Schmidt v. State, 612 S.W.3d 359, 372 (Tex. App.-Houston [1st Dist] 2019, pet. ref d) (citations omitted).
We have held that the issues raised by Tenas were either not preserved or not error. Therefore, the cumulative error doctrine does not apply. We overrule Tenas's issue.
Conclusion
We affirm the judgment of the trial court.