Jorge Ortega v. State
14-15-00525-CR
Tex. App.Aug 9, 2016Background
- Ortega was prosecuted for harassment for repeatedly calling the complainant to harass/annoy her; he pleaded not guilty and was convicted. Punishment: 180 days confinement probated for 18 months and a $1,500 fine.
- Ortega and the complainant dated; trial evidence described controlling and jealous behavior (constant calls/texts, monitoring, showing up at her work/home, controlling finances). The complainant and her mother identified Ortega in court.
- The charged incident period included repeated calls alleged to have occurred on or about January 19, 2014; Ortega contended a call on that date related to a car-payment/check issue, not harassment.
- Ortega raised (1) sufficiency of the identification evidence and (2) multiple ineffective-assistance-of-counsel claims (voir dire remarks, failure to seek 404(b) notice/limiting instruction, failure to object to evidence/hearsay, and failure to investigate or introduce checks/complete phone records).
- The trial court denied Ortega’s motion for new trial after a hearing; the appellate court reviewed the sufficiency and Strickland issues and affirmed the conviction.
Issues
| Issue | Ortega's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of identification evidence | State never adequately identified Ortega as the person who committed the harassment | Complainant and her mother made in-court identifications; Ortega was the only defendant and court noted identifications | Identification evidence sufficient; conviction upheld |
| Voir dire remarks by defense counsel | Counsel’s inflammatory comment during voir dire prejudiced Ortega | Remark was not as offensive as precedent and record lacks counsel explanation; tactical reasons possible | Not ineffective assistance; no deficient performance shown |
| Admission of "prior bad acts" / Rule 404(b) | Prior acts (sitting outside work/home, jealousy incidents) were extrinsic bad-acts requiring notice/limitation | Those acts were intrinsic to charged conduct (part and parcel), not 404(b) "other-act" evidence | 404(b) not implicated; counsel not ineffective for failing to request notice or limiting instruction |
| Alleged inadmissible/hearsay evidence (witness statements about others telling her Ortega was outside) | Counsel should have objected to hearsay and prejudicial testimony (mother, sergeant) | Non-hearsay testimony elsewhere corroborated same facts; record lacks counsel explanation and evidence was cumulative/harmless | No ineffective assistance; failures were not "so outrageous" and any hearsay had corroboration |
| Failure to investigate/introduce checks and phone records | Counsel failed to present checks, loan document, and complete phone records that would support Ortega’s benign intent | Introducing checks likely would've supported complainant’s testimony of financial control; documentation would not legally negate harassing intent; record lacks explanation for counsel’s choices | Not ineffective: counsel’s strategy reasonable and additional docs would not likely change result |
Key Cases Cited
- Gear v. State, 340 S.W.3d 743 (Tex. Crim. App.) (standard for reviewing sufficiency of the evidence)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (due-process sufficiency standard)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance)
- Rohlfing v. State, 612 S.W.2d 598 (Tex. Crim. App. Panel Opinion) (totality test for in-court identification sufficiency)
- Miller v. State, 728 S.W.2d 133 (Tex. App.—Houston [14th Dist.]) (example of ineffective assistance based on inflammatory conduct)
- Worthy v. State, 312 S.W.3d 34 (Tex. Crim. App.) (distinguishing intrinsic evidence from extrinsic "other acts" under Rule 404(b))
- Ex parte White, 160 S.W.3d 46 (Tex. Crim. App.) (counsel not ineffective for failing to object to admissible evidence)
- Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App.) (existence of facially legitimate purpose does not negate prohibited intent for calls)