Frank SAENZ, Appellant, v. The STATE of Texas, Appellee.
No. 04-01-00283-CR.
Court of Appeals of Texas, San Antonio.
Jan. 29, 2003.
101 S.W.3d 541
I would hold that the error did not affect appellant‘s substantial rights and, thus, affirm appellant‘s conviction. Therefore, I must dissent.
Alan E. Battaglia, Assistant Criminal District Attorney, San Antonio, for Appellee.
Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, KAREN ANGELINI, Justice.
Opinion by KAREN ANGELINI, Justice.
Frank Saenz appeals the trial court‘s judgment finding him guilty of aggravated sexual assault. According to Saenz, he received ineffective assistance of counsel, and the submitted jury charge was erroneous. The trial court‘s judgment is affirmed.
BACKGROUND
Frank Saenz was charged with six counts of aggravated sexual assault. Trial was before a jury. At the trial, Saenz‘s two daughters, Yasmine and Stella, testified that, since 1983, Saenz had been sexually assaulting them. Saenz‘s wife, Rosalinda, testified that she did not believe her husband had sexually assaulted her daughters. And Saenz denied the allegations. Nevertheless, Saenz was found guilty of three counts of the charged offense and was sentenced to fifteen years confinement.1 Saenz appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
According to Saenz, his trial counsel provided him ineffective assistance at trial. We evaluate a claim of ineffective assistance of counsel according to the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App.1986). To satisfy this test, Saenz must first demonstrate that his attorney‘s performance was deficient. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). Second, assuming Saenz has demonstrated deficient assistance, he must affirmatively prove prejudice. Id. Saenz bears the burden of proving counsel was ineffective by a preponderance of the evidence. Id. at 813.
The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. Any allegation of ineffectiveness must be firmly founded in the record. Id. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim; absent both showings we cannot conclude that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.
According to Saenz, his trial counsel made numerous errors throughout the trial and thus rendered ineffective assistance. First, Saenz maintains his trial counsel was deficient because he lacked a firm command of the law applicable to his case. According to Saenz, this deficiency result
Although the State initially charged Saenz with six counts of aggravated sexual assault, it waived counts three, four, and five. At the charge conference, Saenz‘s trial counsel first requested an instruction disallowing the jury to consider any evidence related to the waived counts. The request was denied. Saenz‘s trial counsel then requested the following instruction:
You are instructed that the State has elected to waive the charges in Counts III, IV and V of the indictment, that is, the defendant no longer stands accused of those charges. You may still consider the evidence presented regarding those counts to the extent that evidence may be relevant to Counts I, II, and VI.
At the hearing on Saenz‘s motion for new trial, trial counsel admitted he “made a mistake” by failing to file a motion to quash the indictments on the grounds that Counts II, III, and IV were barred by limitations.
The point is that a mistake was made, and it was a very, very bad mistake. Evidence was allowed in that would never have been allowed in under the remaining counts, had the three counts that were barred by limitations not been before the jury during the whole evidentiary portion of the trial. This was a horrible mistake.
... A Motion for New Trial, when there‘s been an egregious error like this, ought to be considered, and this was an egregious error. And the Court knows that I‘m a board certified trial lawyer, but not a board certified criminal lawyer, and I think that the fact that I did not pick up on the error in the indictment, subjected Frank Saenz to going to trial and having evidence heard of counts that never should have been before the jury. And the fact that they heard it, could not-there was no possible instruction that the Court could have given that jury to have wiped out the crushing testimony by Yasmin Saenz, of things that happened many years ago, allegedly by Frank Saenz, that never should have been in evidence.
The indictments never should have come down. That is an error that shouldn‘t have happened in the first place. ... As a result, I think at least as to the indictment for those three counts, ..., I don‘t think Frank Saenz had the benefit of effective assistance of counsel.
Despite trial counsel‘s belief, the admission of evidence regarding the waived counts and his request for an instruction allowing the jury to consider that evidence were not error.
Saenz also maintains his trial counsel was ineffective because he failed to file pre-trial motions. Specifically, according to Saenz, trial counsel failed to seek discovery of statements made by Saenz and various documents and failed to request notice of the State‘s intent to introduce evidence of extraneous acts. However, the record does not demonstrate whether any such documents or statements exist. Saenz‘s complaint is, therefore, merely a conclusion not firmly founded in the record. Thompson, 9 S.W.3d at 812. Further, “[t]he failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy.” Mares v. State, 52 S.W.3d 886, 891 (Tex.App.-San Antonio 2001, pet. ref‘d). Here, trial counsel filed several pretrial motions, and his decision to file no others could have been part of his trial strategy. Id. Saenz has failed to show his trial counsel‘s performance was deficient in this respect.
According to Saenz, trial counsel, by failing to object to the State‘s comments made during opening argument, was ineffective. Saenz cites the State‘s reference to allegedly inadmissible extraneous bad acts, which the State never attempted to prove except through inadmissible hearsay. However, Saenz has not pointed out which “bad acts” he refers to, why reference to these alleged “bad acts” is inadmissible, or why trial counsel failed to object to these references. Without making such a showing, we cannot determine whether counsel‘s failure to object was erroneous or reasoned trial strategy. See Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)(noting that in absence of counsel‘s reasons for challenged conduct, court presumes “strategic motivation“).
Saenz further maintains that his trial counsel provided deficient representation by introducing damaging testimony against him. During cross-examination of Saenz‘s daughter, Yasmin, counsel introduced a poem she wrote when she was twelve years old.
For A Father
A man in my life lead me to become a young lady
He taught me how to enjoy life and expect the unexpected to come to me
The man I know means a lot to me and made an impact in my life
He‘s the one who taught me many things including how to drive
That man is my Daddy and I‘ve known him as long as I can remember
My Daddy cares for me and loves me and will forever
Even if I have a boyfriend he still cares for me the same
His eyes are getting puffy from having so much worrys [sic] and being in so much pain
The grief in his eyes and the streaks of gray in his hair
And all that I see on him every time I stare
I love my daddy because he‘s always been here
And when I was little I‘d have a bad dream, but he‘d explain “there‘s nothing to fear” Maybe one day I‘ll get married I don‘t want to but maybe I will
I need him to give me away and be there for years to come and fill
Right now he knows (I hope) I Love him
And thats [sic] all that really matters
Because no matter he says [sic] or what he do [sic] I‘ll always be his Daughter
I Love You Daddy Merry Christmas
I know I can‘t give you much but I‘ll give you this for now. And thank you for being here for me. And thank [sic] for all the little things you‘ve done for me
According to Saenz, admission of this poem into evidence “had no exculpatory or mitigating value whatsoever” and “invited the jury to infer an unhealthy relationship between daughter and father.” An equally logical inference, however, is that trial counsel viewed the poem as representative of a normal father/daughter relationship and he, thus, introduced the poem to impeach Yasmin‘s testimony. Accordingly, counsel‘s choice to introduce the poem into evidence and to question Yasmin regarding the poem could have been trial strategy. Saenz has failed to show counsel‘s performance was deficient in this regard.
Next, Saenz maintains that trial counsel was ineffective for failing to object to Yasmin‘s testimony that Saenz grabbed her by her shoulders and pushed her against the wall as impermissible character evidence. As we noted earlier,
Saenz additionally complains that trial counsel failed to voir dire a key expert witness-a Child Protective Services worker pursuant to
Saenz further alleges trial counsel was ineffective because, during cross examination, he elicited opinion testimony from two of the State‘s witnesses regarding the complainant‘s credibility and Saenz‘s guilt. Nothing in the record, however, demonstrates that cross-examination of these witnesses was the product of unreasoned trial strategy, or that it lead to an unreliable guilty verdict.
According to Saenz, counsel was ineffective by failing to object to inadmissible hearsay statements. At trial, an assis
Well, she said-she told me that she wanted to retract the statement, and I said, “What I hear you telling me is not that this didn‘t happen, but that you just want it to go away.” And she was just quiet. And I told her this isn‘t going to go away, that her sister made the charge also. That it wasn‘t her responsibility, that her sister had made a charge, and that she wasn‘t retracting her statement, so we were still going to go forward. I just need to know what to do, because we‘re going to present this case to the grand jury. I need to know what to do. I need to know what really happened. I said, you can tell whoever is-because I asked her at one time, I said, “Is someone telling you to do this?” And she said, “Yes.” And I said, “You can tell them-blame it on me. You can blame it on me. I‘m the one who makes these decisions. It‘s not your decision. We‘re still going to go forward. You can tell them that you told them you wanted to drop the charges, and that I‘m the one that said we‘re going forward.” I said, “What I need to know is did it happen?” And she said, “Yes, it did.” And then we went into the grand jury room.
The assistant district attorney‘s testimony demonstrates that Yasmin intended to recant her allegations against her father. Trial counsel could have viewed the assistant district attorney‘s statements as evidence that Yasmin had fabricated the allegations and thus, his failure to object could have been sound trial strategy. Nothing in the record demonstrates that it was not.
Saenz further contends trial counsel was ineffective by eliciting damaging character evidence from a State‘s witness, opening the door to prior bad acts. A deputy sheriff testified on behalf of the State. On cross examination, Saenz‘s counsel asked the deputy whether there was “anything about what you knew that made you think to yourself I knew something like this was going to happen.” The deputy responded “yes.” On redirect, the State asked the deputy to explain whether he was surprised by the charges against Saenz, to which the deputy responded “I had been informed there was a prior complaint for sexual abuse with another sister.” First, the record is silent as to why Saenz‘s counsel asked the questions he did of the deputy or why he failed to object once the deputy made the allegedly inadmissible statements. Thompson, 9 S.W.3d at 814. And second, the jury already was aware that both Yasmin and Stella both had made allegations that their father had sexually abused them. Accordingly, even if counsel‘s question opened the door to evidence of prior bad acts, Saenz has failed to demonstrate that the deputy‘s testimony compromised the integrity of the jury‘s guilty verdict.
Finally, Saenz contends that “because his trial counsel so entirely failed to ‘subject the prosecution‘s case to meaningful adversarial testing,’ this court may presume that the conviction was insufficiently reliable to pass muster under the Sixth and Fourteenth Amendments to the United States Constitution.” We disagree. Although trial counsel‘s representation was not a model of perfection, based upon this record, Saenz has failed to overcome the presumption that counsel‘s decisions fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 814. We do note, however, that Saenz may have recourse available through an application for writ of habeas corpus. Id.
JURY CHARGE
At the charge conference, Saenz‘s counsel requested the following jury instruction:
You are instructed that the State has elected to waive the charges in Counts III, IV and V of the indictment, that is, the defendant no longer stands accused of those charges. You may still consider the evidence presented regarding those counts to the extent that evidence may be relevant to Counts I, II, and VI.
According to Saenz, the trial court implied to the jury that counts III, IV, and V were proved beyond a reasonable doubt and impermissibly singled out testimony and commented on the weight of the evidence in violation of
CONCLUSION
Having overruled all of Saenz‘s issues on appeal, the trial court‘s judgment is affirmed.
Dissenting opinion by CATHERINE STONE, Justice.
CATHERINE STONE, Justice, dissenting.
Because I believe that Frank Saenz received ineffective assistance of counsel during the trial of this case, I respectfully dissent.
At the conclusion of testimony, the State waived three counts of the charged offense. By then, of course, substantial evidence had been admitted as to those three (time-barred) offenses. At the charge conference, Saenz‘s counsel requested an instruction informing the jury that the State had waived three counts of the charged offense. The requested instruction further informed the jury that it could not consider any evidence presented regarding the waived offenses. After the trial court denied this request, defense counsel, obviously flustered, requested the instruction now attacked on appeal. That instruction informed the jury about the three waived counts, and further stated: “You may still consider the evidence presented regarding those counts to the extent that evidence may be relevant to Counts I, II, and VI.”
The majority contends this instruction and the admission of evidence regarding the waived counts is not erroneous because the evidence would be admissible under
There is no silent record here leaving this court to speculate. The State managed to introduce ample evidence on offenses that were barred by limitations. Defense counsel was thwarted in his efforts to avoid a mistrial with a requested instruction when the trial court denied his initial request. Counsel‘s second requested instruction failed to properly limit the jury‘s consideration of the extraneous offense evidence. The jury obviously had questions about this very issue, as revealed by the note they sent back to the judge. However, there is no question about counsel‘s strategy or lack thereof-he admitted that he committed egregious error.
This case involves allegations of abusive and abhorrent conduct, but it is a swearing match between two individuals. There is no physical evidence to support the allegations. One of the victims recanted her accusations. From this record I do not believe one can conclude that Saenz received a fair trial. Rather, I can only conclude that Saenz was prejudiced by counsel‘s deficient performance. I would reverse the conviction and remand the cause for a new trial.
KAREN ANGELINI
Justice