EX PARTE RUBEN GUTIERREZ (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

WR-59,552-01
EX PARTE RUBEN GUTIERREZ
ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. 1998-CR-1391-A IN THE 107TH DISTRICT COURT

CAMERON COUNTY 
Per curiam.
O R D E R

This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.071, TEX. CODE CRIM. PROC.

On May 12, 1999, Applicant was convicted of the offense of capital murder. The jury answered the special issues submitted under Article 37.071, TEX. CODE CRIM. PROC., and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Gutierrez v. State, No. 73,462 (Tex. Crim. App. January 16, 2002).

In his application, Applicant presented twenty allegations in which he challenged the validity of his conviction and resulting sentence. We remanded the cause to the trial court so that the habeas corpus record could be supplemented with affidavits from trial and appellate counsel responding to Applicant's first two allegations. We denied Applicant's remaining claims. The trial court did not make additional findings of fact and conclusions of law following its receipt of the affidavits from counsel.

Applicant claims that he was denied effective assistance of counsel because trial counsel failed to object to the testimony of several witnesses on confrontation grounds and appellate counsel failed to raise these issues on direct appeal. Trial counsel incorrectly states in his affidavit that "lodging a hearsay objection was as valid as objecting on denial of right of confrontation." An objection on hearsay does not preserve error on Confrontation Clause grounds. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). Appellate counsel states in her affidavit that she could not raise confrontation claims on appeal because trial counsel did not make confrontation objections at trial. However, in her opinion, "there was not a reasonable probability that the outcome of the case would have been different if the confrontation objections had been made." We agree. Applicant has failed to meet his burden to demonstrate both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Based upon the trial court's initial findings and conclusions and our own review, we deny relief.

IT IS SO ORDERED THIS THE 14TH DAY OF MAY, 2008.

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