Eusebio Loredo v. State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-01-00078-CR

Eusebio Loredo,

Appellant

v.

State of  Texas,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2000-850-C

O p i n i o n

Appellant, Eusebio Loredo (Loredo), was charged by indictment with three counts of felony Aggravated Sexual Assault of a Child. Loredo pled not guilty, but a jury found him guilty on all three counts. Punishment was assessed by the jury at 30 years imprisonment for each count. The judge ordered the sentences be served consecutively. Loredo appealed on three issues, and this court reversed the judgment on the first issue and remanded the cause for a new trial.[1] The State sought discretionary review. The Court of Criminal Appeals reversed our judgment and remanded the cause to this Court to address Loredo s two remaining issues. Loredo v. State, 107 S.W.3d 36 (Tex. App. Waco 2003), rev d, 2004 Tex. Crim. App. LEXIS 635 (Tex. Crim. App. April 7, 2004). Loredo s two remaining issues are: 1) trial counsel was ineffective for failing to file a request for notice under article 37.07 section 3(g) of the Code of Criminal Procedure; and 2) Texas Code of Criminal Procedure article 42.08 is violative of the delegation doctrine and therefore unconstitutional under article II, section one of the Texas Constitution.

We will affirm the judgment.

INEFFECTIVE ASSISTANCE OF COUNSEL

Loredo argues that his trial counsel was ineffective in failing to file a request for notice under article 37.07 section 3(g) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07 3(g) (Vernon Supp 2004-2005).[2] Counsel failed to request that the State give notice of its intent to offer evidence of extraneous offenses or bad acts, and Loredo argues that this failure fell below the objective standard of reasonableness.

The State argues that this court should not establish a bright-line rule that it is a mandatory duty of defense counsel to request notice under article 37.07 section 3(g), particularly when the State had an open-file policy[3] and without knowing Loredo s counsel s punishment-phase strategy.

We must adhere to the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was so inadequate as to violate a defendant's Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The Strickland test applies to the punishment phase of a noncapital case. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

Strickland requires a defendant to show that: (1) counsel's representation fell below an objective standard of reasonableness and (2) counsel's deficient performance prejudiced the defendant. Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S. Ct. 1029, 1034, 145 L. Ed. 2d 985 (2000); Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The assessment of whether a defendant received ineffective assistance of counsel must be made according to the facts of each case. Thompson, 9 S.W.3d at 813. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. A single error can be so substantial that it causes the attorney s assistance to fall below the Sixth Amendment standard. Id.

Entitled to Notice

Because Loredo is arguing that his counsel was deficient in failing to request notice of the State s intent to use extraneous bad acts, we first ask whether he was entitled to the notice. Jaubert v. State, 74 S.W.3d 1, 2 (Tex. Crim. App.), cert. denied, 537 U.S. 1005 (2002). Because the State offered the evidence of extraneous bad acts in its case-in-chief in the punishment phase, not during cross-examination or rebuttal, Loredo was entitled to notice of these acts. Id. at 4.

Objective Standard of Reasonableness

When reviewing a claim of ineffective assistance of counsel under the first prong of Strickland, there is a strong presumption that defense counsel's conduct was reasonable and constituted sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We evaluate the totality of the representation from counsel's perspective at trial, rather than counsel's isolated acts or omissions in hindsight. Gutierrez v. State, 8 S.W.3d 739, 749 (Tex. App. Austin 1999, no pet.). Appellant has the ultimate burden to overcome this presumption and demonstrate not only that counsel's performance was unreasonable under the prevailing professional norms, but that the challenged action was not sound trial strategy. Id.

We have previously held that there could be no strategic basis for not requesting notice under article 37.07 section 3(g). Jaubert v. State, 65 S.W.3d 73, 81-82 (Tex. App. Waco 2000), rev d on other grounds by 74 S.W.3d 1 (Tex. Crim. App.), cert. denied, 537 U.S. 1005 (2002).[4] The purpose of article 37.07 3(g) is to avoid unfair surprise, that is trial by ambush. Chimney v. State, 6 S.W.3d 681, 697 (Tex. App. Waco 1999, no pet.). [T]he purpose is to allow the defendant adequate time to prepare for the State s introduction of the [evidence] at trial. Id. at 693-94. Because Loredo s counsel should not want to be ambushed with extraneous bad acts introduced by the State at the punishment hearing, we find this failure to request notice unreasonable and not justifiable by sound trial strategy. See Ex Parte Menchaca, 854 S.W.2d 128, 129 (Tex. Crim. App. 1993) (finding counsel was ineffective in failing to file a motion in limine to prohibit the introduction of a prior rape conviction in a trial for delivery of a controlled substance); see also Autry v. State, 27 S.W.3d 177, 182 (Tex. App. San Antonio 2000, pet. ref d) ( [P]urposefully deciding not to request disclosure by the State of its intent to introduce evidence of extraneous offenses may amount to questionable trial strategy . . . ). Loredo has met his burden to show that his counsel s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Jaubert, 65 S.W.3d at 82-83.

Prejudice

The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Mallet v. State, 9 S.W.3d 856, 866 (Tex. App. Fort Worth 2000, no pet.). The appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., at 669, at 2056.

During the State s case-in-chief in the punishment phase, the State introduced testimony of eight witnesses. Three were law enforcement officers who testified they were familiar with Loredo s bad reputation with regard to being peaceful and law-abiding.

Another witness, Melissa Pick, the mother of two of Loredo s children, testified that Appellant was not peaceful and law-abiding. She testified that Loredo is a drug user. She described one incident where he stole money from her for drugs and she confronted him, which lead to a fight with him pushing and slinging her and then he held a knife to her throat and threatened to kill her. She also testified that he punched her in the eye during labor with their second child. She testified that he threw his dad over the dining room table after one of their fights. She explained an incident where he punched her in the eye one night and that she reported to the police. Finally, she stated she left him because of his violence and he no longer visited his children. The police officer, who took the report from Melissa about being punched in the eye, testified consistently with Melissa s testimony.

Sabrina, the mother of Loredo s third child, also testified that Loredo was not peaceful or law-abiding. She testified that Loredo was a drug user. Sabrina described an incident where Loredo punched her in the face and attempted to choke her when she was eight months pregnant. She testified about another incident where Loredo pointed an AK-47 at her head while she was holding their son and then started shooting the gun all around the room and then punched her in the face. She also testified that Loredo grabbed her by the neck and hair at a dance and police officers had to get Loredo off of her. Two detectives testified about this incident at the dance and stated that they arrested Loredo for assault that night. Additionally, Sabrina described an assault on her and a sexual assault on Sally (a friend of theirs) one evening when they were partying. She stated that she eventually left him.

On cross-examination, Appellant s counsel did not ask any questions to four of the State s witnesses and asked a few questions to the other State s witnesses. During rebuttal, Appellant s counsel called Sally, and she testified that Loredo did not sexually assault her. Loredo s counsel also called Loredo s mother who testified that Loredo did not own an AK-47, and Loredo did not throw his father (her husband) across a dining room table. She also testified that Sabrina would have reason to lie because she resented Loredo for having sole possession of their son for an extensive period of time after she left him.

During rebuttal by the State, an officer testified that he responded to the call where Loredo allegedly assaulted Sabrina and sexually assaulted Sally. He testified consistently with the description provided by Sabrina. On further rebuttal, Appellant s counsel called Alicia (a friend who was present the night of the assaults), and she testified that Sabrina and Loredo were consuming cocaine that night and Loredo did not try to mess with Sally. Alicia stated that she did not speak to the police that night regarding what had happened. The State then recalled the officer who responded the night of the alleged sexual assault and testified that Alicia did tell him that Loredo wanted to f___ Sally and had been trying to get her all day, which he documented in his report.

After hearing this testimony, the jury assessed punishment at 30 years imprisonment and no fine for each of the three counts. The maximum punishment for each count was life imprisonment and a $10,000.00 fine. Our review of the punishment phase of the trial shows that Loredo s counsel appeared to have been prepared to rebut the State s evidence of the extraneous bad acts based on his immediate rebuttal with Sally and Loredo s mother and later rebuttal with Alicia. Loredo s counsel did not seem surprised by any of the State s witnesses. There is nothing in the record to indicate and Loredo does not argue that his counsel would have taken different steps to rebut or object to the State s evidence had he received written notice of these extraneous bad acts. See Autry v. State, 27 S.W.3d 177, 182 (Tex. App. San Antonio 2000, pet. ref d) ( [Appellant] has not stated what steps he would have taken if he had received written notice of the State's intent to introduce extraneous evidence. ). There is also nothing in the record to indicate that the jury might have assessed less than 30 years for each count based on the record, it is not reasonably probable that Loredo s sentence would have been any less. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Therefore, we do not find that counsel s error was so serious that it deprived Loredo of a fair trial. Id., at 687, at 2064. This error was not of a magnitude significant enough to render Loredo s counsel ineffective. Thompson, 9 S.W.3d at 813. We overrule issue one.

UNCONSTITUTIONALITY OF TEXAS CODE OF

CRIMINAL PROCEDURE ART. 42.08(A)

Loredo argues that article 42.08(a) violates the constitutional delegation doctrine (principle of separation of powers) because there are not sufficient or adequate guidelines for the trial court s exercise of its discretion in determining whether the sentences should be cumulated or run concurrently. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2004-2005). Appellant properly preserved this issue in his motion for new trial. Tex. R. App. P. 33.1(a)(1).

When reviewing an attack on the constitutionality of a statute, the appellate court begins with a presumption that the statute is valid and the Legislature has not acted unreasonably or arbitrarily. Luquis v. State, 72 S.W.3d 355, 365 n.25 (Tex. Crim. App. 2002). This presumption stands until the contrary is shown beyond a reasonable doubt. Williams v. State, 514 S.W.2d 772, 773 (Tex. Civ. App. Beaumont 1974, writ ref d n.r.e.) (citing Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946)). The burden is on the party challenging the statute to establish its unconstitutionality. Ex parte Ports, 21 S.W.3d 444, 446 (Tex. App. San Antonio 2000, pet. ref d).

Loredo acknowledges that the Court of Criminal Appeals has ruled that this statute is not an unconstitutional delegation of authority. See Johnson v. State, 492 S.W.2d 505, 506 (Tex. Crim. App. 1973); Hammond v. State, 465 S.W.2d 748, 752 (Tex. Crim. App. 1971). But he argues that Johnson has been impliedly overruled by Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978) (en banc) (regarding the constitutionality of Tex. Code Crim. Proc. Ann. art. 43.14 (1977)), and In re Johnson, 554 S.W.2d 775, 780-81 (Tex. Civ. App. Corpus Christi 1977), writ ref d n.r.e. per curiam, 569 S.W.2d 882 (Tex. 1978) (regarding the constitutionality of Tex. Rev. Civ. Stat. Ann. art. 2324 (1976)). Neither Ex parte Granviel or In re Johnson deal with the constitutionality of article 42.08; therefore we disagree with Loredo that Johnson and Hammond have been impliedly overruled. Since there has been no change in article 42.08 that is material to this appeal since Johnson and Hammond were decided, we are bound by the Court of Criminal Appeals' holdings regarding its constitutionality. We overrule issue two.

CONCLUSION

We overrule both of Loredo s issues. Therefore, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed December 8, 2004

Publish

[CRPM]

[1] The remaining two issues were not decided.

[2] Section 3(a) of article 37.07 permits the court to admit evidence at punishment of extraneous offenses or bad acts. Tex. Code Crim. Proc. Ann. art. 37.07 3(a) (Vernon Supp 2004-2005). However, through section 3(g), a defendant can discover if the State intends to offer this type of evidence. Tex. Code Crim. Proc. Ann. art. 37.07 3(g) (Vernon Supp. 2004-2005).

[3] We reject this argument because an open file policy cannot substitute for an article 37.07 section 3(g) request. See Jaubert v. State, 65 S.W.3d 73, 81-82 (Tex. App. Waco 2000), rev d on other grounds by 74 S.W.3d 1 (Tex. Crim. App.), cert. denied, 537 U.S. 1005 (2002) (finding the difference between open file policy and the notice request under article 37.07 section 3(g) is that under article 37.07 section 3(g), there is a continuing duty on the State to notify defendant of all extraneous offense evidence it intends to introduce).

[4] The Texas Court of Criminal Appeals reversed our Jaubert decision finding ineffective assistance of counsel because the extraneous offenses were only presented in cross-examination/rebuttal, not in the State s case-in-chief. Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App. 2002). Here, the State introduced the extraneous offenses in its case-in-chief.