Andres Hernandez v. State
05-15-01567-CR
| Tex. App. | Oct 19, 2016Background
- Hernandez was convicted of indecency with a child by contact; punishment set at 12 years' imprisonment.
- Hernandez, a pastor and family friend, invited P.M. (age 10) and her brother E.M. to the church; P.M. was with him in his office when the alleged acts occurred.
- In the office, Hernandez touched P.M.’s breast, touched her vagina over clothing, and compelled her to touch his penis until ejaculation, instructing her not to tell.
- P.M. disclosed the incident to sisters and E.M. the same day; police were contacted, P.M. was taken to the hospital for examination, and Hernandez was arrested that night.
- Hernandez challenged trial counsel’s performance (ineffective assistance) and asserted fundamental-error issues related to courtroom questions and a detective’s testimony; the State defended on preservation grounds and reasonable-objective-review standards.
- The court affirmed, applying Strickland’s standards for ineffective assistance, noting the record was silent on counsel’s reasons and that the failure to file a new-trial motion left the record insufficient to show deficient performance; issues about preservation of objections were also analyzed and found not preserved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance based on multiple objections | Hernandez argues trial counsel failed to object to certain evidence and testimony. | State contends record is silent on counsel’s rationale; cannot show deficiency. | Record silent; ineffective-assistance claim not proven. |
| Whether the prosecutor’s in-court question and the detective’s testimony were preserveable errors | Marin-based theory permits relief without objection. | Forfeitable errors require objection; most rights are forfeitable. | Both claims not preserved; no reversible error. |
| Preservation of error for in-court formatting of indictment and related testimony | Same as above; rights not forfeitable in some contexts. | General rule: objections required to preserve error. | Not preserved; affirmed. |
Key Cases Cited
- Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) (ineffective assistance analysis; two-prong Strickland test; strong presumption of reasonable assistance)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes two-prong standard for ineffective assistance of counsel)
- Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) (silence on record and need for explanation of counsel decisions; reasonableness of strategies)
- Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012) (silence on record; warranting habeas corpus as appropriate vehicle for IAC claims)
- Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002) (application to raise IAC claims; record needs explanation)
- Fuller v. State, 253 S.W.3d 220 (Tex. Crim. App. 2008) (forfeiture of complaints about admissibility absent objection; preservation requirement)
- Stewart v. State, 473 S.W.2d 495 (Tex. Crim. App. 1971) (necessity of timely objection; arraignment in presence of jury not error absent objection)
- Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (not-forfeitable rights are narrow; generally require objection to preserve error)
- Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014) (narrow exceptions to preservation rule for certain rights)