Huizar v. State

• Decision Date: 18 March 1998
• Docket Number: No. 04-96-00837-CR,04-96-00837-CR
• Citation: 966 S.W.2d 702
• Parties: Vincent HUIZAR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 702

966 S.W.2d 702

Vincent HUIZAR, Appellant, v. The STATE of Texas, Appellee.

No. 04-96-00837-CR.

Court of Appeals of Texas,

San Antonio.

March 18, 1998.

Richard E. Langlois, Law Offices of Richard D. Langlois, San Antonio, for Appellant.

Daniel Thornberry, Asst. Crim. Dist. Atty., San Antonio, for Appellee.

Before HARDBERGER, C.J., and RICKHOFF, LPEZ, STONE, GREEN, DUNCAN and ANGELINI, JJ., en banc.

OPINION

LPEZ, Justice.

This appeal arises from the conviction of Vincent Huizar for aggravated sexual assault. A jury found Huizar guilty as charged and assessed punishment at confinement for 99 years and a $10,000.00 fine. Because we find reversible error in the trial court's punishment charge, we affirm the court's judgment of conviction, and reverse the sentence and remand for a new hearing on punishment.

The victim in this case, a sixth-grade student, reported to her school counselor that a man who was living at her house had sexually molested her the previous day. The counselor reported the event to Child Protective Services. The student, J.N., later reported that the man had assaulted her two other times. Shortly thereafter, Huizar, J.N.'s cousin, was indicted on one count of aggravated sexual assault.

In his only point of error, Huizar contends that he did not receive effective assistance of counsel at trial. Specifically, Huizar complains that during the guilt-innocence phase of his trial, his attorney failed to: (1) object to, or obtain adverse rulings to hearsay evidence by State's witnesses Williams, Morales, and Navarro; (2) object to, or to preserve error on testimony by Williams and the complainant, J.N., that the latter had been sexually abused by Huizar on multiple occasions (3) request a limiting instruction to inform jurors that they would have to find proof beyond a reasonable doubt before they could consider extraneous misconduct; and (4) object to victim-impact testimony by Lee Navarro. In addition to these trial failures, Huizar maintains that his attorney failed to render effective assistance during the punishment phase of his trial by failing to request an instruction to instruct jurors that evidence of the extraneous offense that he abused A.R. (another cousin) must be established beyond a reasonable doubt before they could consider that evidence.

Because of these failures, he argues, the jury was permitted to hear inadmissible testimony that was harmful to his case. These deficiencies, combined with his attorney's failure to preserve the trial record for appellate review, represents to Huizar, an "abdication of [his attorney's] basic threshold responsibility to require the State to establish guilt by admissible evidence." While Huizar recognizes that the constitutional right to counsel does not mean errorless counsel judged in hindsight, he argues that the combination of these circumstances show that his attorney's representation fell below the objective standard of reasonableness. Consequently, Huizar argues, this court should grant him a new trial.

In response, the State maintains that Huizar's trial attorney provided effective assistance by defending Huizar during the guilt-innocence phase of trial and by calling witnesses during the punishment phase. The State speculates that defense counsel's trial strategy may have been to admit to an improper relationship between Huizar and the child complainant, but to deny actual sexual intercourse to support an instruction on the lesser-included offense of indecency with a child. The State characterizes the failure to request a limiting instruction concerning the testimony of A.R. during the punishment phase as an isolated omission that did not constitute ineffective assistance of counsel.

Whether an attorney has provided effective assistance in the guilt-innocence phase of a non-capital trial is determined using the test set out in Strickland v. Washington, 466 U.S. 668, 698-99, 104 S.Ct. 2052, 2070-71, 80 L.Ed.2d 674 (1984); see Holland v. State, 761 S.W.2d 307, 314 (Tex.Crim.App.1988) (following standard established in Strickland to determine effectiveness of trial counsel); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App.1986) (adopting Strickland test in Texas). Under Strickland, the appellant must show that (1) his attorney's performance was deficient, and (2) that the deficient performance prejudiced the defense to such a degree that he was deprived of a fair trial. See Holland, 761 S.W.2d at 314 (reiterating Strickland test for ineffective assistance of counsel). Whether an attorney provided effective assistance is to be determined as of the time of trial, not through hindsight. See Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App.1991); Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App.1986).

The Strickland test does not apply, however, to the punishment phase of a non-capital trial. Instead of Strickland, the test from Ex parte Duffy is used. See Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Crim.App.1980) (establishing test for ineffective assistance of counsel in punishment phase of non-capital trial). Under Duffy, the appellate court must determine whether counsel was reasonably likely to render effective assistance and whether counsel reasonably rendered such assistance. See Craig v. State, 825 S.W.2d 128, 130 (Tex.Crim.App.1992); Duffy, 607 S.W.2d at 516. In applying this standard, the court must consider the totality of the circumstances to judge both the competency of counsel and the assistance actually rendered. See Ex parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App.1991).

Huizar's Complaints About the Guilt-Innocence Phase of His Trial

As specific complaints about the guilt-innocence phase of his trial, Huizar relies on testimony that appears to have been inadmissible hearsay when taken out of context, but that does not consider other properly admitted evidence establishing the same facts. Huizar carefully dissected the reporter's record and identified the points at which his trial attorney could have done something more during trial, but did not, and then developed an argument for ineffective assistance of counsel. For example, Huizar complains that his attorney failed to preserve error as to testimony by Witness Williams concerning extraneous misconduct.

Williams was the school counselor at J.N.'s school. During trial, Williams testified that J.N. told her that Huizar had assaulted her the previous day and that she reported the incident to Child Protective Services. In response to questioning by the State, Williams testified as follows:

Q: And do you remember about when she told you about this?

A: It was in May. It was like, you know, the last month of school.

Q: When she told you about it, did she tell you when was the last time it had happened?

A: The day before.

Huizar complains that by failing to request a hearing under article 38.072 of the Code of Criminal Procedure prior to the admission of this testimony, the jury was permitted to hear testimony that he had sexually assaulted J.N. more than once. Article 38.072 designates out-cry testimony as an exception to the hearsay rule. See TEX.CODE CRIM. PROC. ANN. art 38.072 (Vernon Supp.1997) (setting forth requirements for admissibility of hearsay statements of child abuse victim). This exception, however, applies only to statements that describe the charged offense and does not extend to extraneous conduct. See Beckley v. State, 827 S.W.2d 74, 78-79 (Tex.App.--Fort Worth 1992, no pet.). To determine admissibility of out-cry testimony, this article provides for a hearing outside the presence of the jury. Thus, by not requesting a hearing, Huizar waived error.

Although his attorney's performance may have been deficient in failing to request a hearing prior to Williams's testimony, thus satisfying the first prong of the Strickland test, Huizar ignores testimony by the complainant, J.N., who testified to the same thing in more specific terms.

In describing the events leading to her assault, J.N. testified as follows:

Q: When he did that, did you know what he was going to do?

A: Yes

Q: How did you know what he was going to do?

A: Because he did it before.

Q: And how many times before had he done it?

A: A few times.

Q: How many?

A: A few times.

Thus, the issue that was raised by Williams's testimony--whether Huizar had assaulted J.N. on more than one occasion--was established by properly admissible evidence. The reference by Williams to any previous assault was brief and unembellished. As a result, we do not determine that the failure to preserve error by not requesting a hearing prejudiced Huizar to such a degree as to deprive him of a fair trial. Because he had a fair trial, the second prong of the Strickland test is not satisfied. Huizar's attorney perhaps should have requested a hearing to determine the admissibility of Williams's testimony, but failure to do so does not amount to ineffective assistance of counsel under Strickland. Because the above is representative of Huizar's arguments regarding his attorney's performance during the guilt-innocence phase of his trial, we next address his complaints about his attorney's performance during the punishment phase of his trial.

Huizar's Complaints About the Punishment Phase

In addressing the punishment phase of his trial, Huizar complains that his attorney failed to request that the jury be instructed that the evidence must establish beyond a reasonable doubt that Huizar abused A.R. before it could consider that evidence. A.R., another cousin of Huizar, testified during the punishment phase that Huizar had also sexually assaulted her. According to A.R., Huizar, who was a juvenile at the time, began touching her when she was eight or nine years old and that the touching had culminated in her assault when she was fourteen or fifteen.

While the jury may not consider extraneous offense evidence unless it believes beyond a reasonable doubt that the defendant committed the extraneous...