TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00462-CR
Anthony Jesus Torres, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2013-363, THE HONORABLE DANIEL H. MILLS, JUDGE PRESIDING
MEMORANDUM OPINION
Anthony Jesus Torres challenges the district court’s judgment on remand, which
assessed a twenty-year sentence for his conviction for the second-degree felony offense of sexual
assault. See Tex. Penal Code §§ 22.011(a), 12.33(a). In three issues, Torres challenges the
admission of evidence of a plea agreement between Torres and the State, which was rejected by
the previous trial judge during the guilt-innocence phase of trial. Torres contends that the
admission of that evidence violated Rules of Evidence 403 and 410 and constituted ineffective
assistance of trial counsel. We will affirm the trial court’s judgment.
BACKGROUND
A jury found Torres guilty of the first-degree felony offense of sexual assault in a
prohibited relationship and assessed punishment at twenty-years imprisonment. Torres appealed
and this Court modified the conviction to a second-degree felony offense and remanded the case to the trial court for a new punishment hearing. Torres v. State, No. 03-14-00712-CR,
2017 WL 3124238, at *1 (Tex. App.—Austin July 21, 2017, no pet.) (mem. op., not designated
for publication). On remand, the trial court sentenced Torres to twenty years’ imprisonment.
See Tex. Penal Code §§ 22.011(a), 12.33(a).
DISCUSSION
Evidentiary Challenges
Torres’s first and second issues contend that the trial court erred by admitting
evidence of his prior plea agreements from the guilt-innocence phase of his trial, which were
rejected by the previous trial judge, because they were inadmissible under Rules of Evidence 403
and 410. See Tex. R. Evid. 403 (“The court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.”), 410(b) (listing types of evidence regarding guilty pleas, plea discussions, and related
statements that are not admissible in criminal cases). The State correctly points out that Torres
did not object to the admission of the complained of evidence.
To preserve a complaint for appellate review, (1) a party must have made a
timely, specific objection, request, or motion to the trial court that stated the specific grounds for
the ruling sought by the complaining party, unless the specific grounds were apparent from the
context, and (2) the trial court must have either ruled or refused to rule on the request—in which
case the complaining party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a). After reviewing the record, we agree with the State that Torres waived his evidentiary
complaints because he did not make any objection to the complained of evidence. See Saldano
2 v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (explaining that failure to object to
admission of evidence waives appellate complaints regarding admissibility of that evidence even
if “the error may concern a constitutional right of the defendant”). Preservation of error is a
systemic requirement. Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005). Thus, we
do not address the merit of these arguments. See Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim.
App. 2009) (“If an issue has not been preserved for appeal, neither the court of appeals nor this
Court should address the merits of that issue.”).
We overrule Torres’s first and second issues.
Ineffective Assistance of Trial Counsel
In his final issue, Torres contends that his trial counsel was ineffective for failing
to either redact the record of the guilt-innocence proceeding to prevent the trial judge who
assessed punishment from knowing the details of the plea agreement presented to and rejected by
the previous trial judge or to object to the trial judge reviewing them.
To prevail on his claim of ineffective assistance of counsel, Torres must prove by
a preponderance of the evidence that: (1) his counsel’s performance was deficient, and (2) the
deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Hernandez v. State, 988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999). The review of a trial
counsel’s representation on an ineffective-assistance challenge is highly deferential to the
counsel’s professional judgment. Strickland, 466 U.S. at 689.
To meet the first prong of the Strickland test, Torres must overcome a strong
presumption that his counsel’s conduct falls within the wide range of reasonably professional
assistance. Id. “[A]ny allegation of ineffective assistance must be firmly founded in the record,
3 and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State,
9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Generally, a reviewing court will not speculate
about counsel’s trial strategy. Mayhue v. State, 969 S.W.2d 503, 511 (Tex. App.—Austin 1998,
no pet.). When there is an absence of evidence in the record of counsel’s reasons for the
challenged conduct, we “will not conclude the challenged conduct constituted deficient
performance unless the conduct was so outrageous that no competent attorney would have
engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). “A substantial risk
of failure accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal.”
Thompson, 9 S.W.3d at 813.
During the guilt-innocence phase of Torres’s trial, plea agreements were
presented to the judge on the record and rejected by the trial court. On remand, a different trial
judge heard the punishment evidence and assessed Torres’s sentence. At the beginning of the
punishment hearing, the sentencing judge stepped out of the courtroom so that counsel could
create a record, through testimony by Torres, regarding plea negotiations relevant to the
punishment hearing that was taking place without the sentencing judge hearing the details of the
plea negotiations. Torres testified that his trial counsel communicated the State’s offer but that
he rejected the offer because he would not accept anything less than “time-served,” which would
have been about six years at the time of the hearing. After this testimony concluded, the trial
judge returned and the hearing continued.
The trial judge made a couple of references to parts of the guilt-innocence record
that were provided to him by the attorneys. First, he noted: “At the request of the parties for the
record, the Court was given a—some disks, so the Court has read most of the transcript of all of
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00462-CR
Anthony Jesus Torres, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2013-363, THE HONORABLE DANIEL H. MILLS, JUDGE PRESIDING
MEMORANDUM OPINION
Anthony Jesus Torres challenges the district court’s judgment on remand, which
assessed a twenty-year sentence for his conviction for the second-degree felony offense of sexual
assault. See Tex. Penal Code §§ 22.011(a), 12.33(a). In three issues, Torres challenges the
admission of evidence of a plea agreement between Torres and the State, which was rejected by
the previous trial judge during the guilt-innocence phase of trial. Torres contends that the
admission of that evidence violated Rules of Evidence 403 and 410 and constituted ineffective
assistance of trial counsel. We will affirm the trial court’s judgment.
BACKGROUND
A jury found Torres guilty of the first-degree felony offense of sexual assault in a
prohibited relationship and assessed punishment at twenty-years imprisonment. Torres appealed
and this Court modified the conviction to a second-degree felony offense and remanded the case to the trial court for a new punishment hearing. Torres v. State, No. 03-14-00712-CR,
2017 WL 3124238, at *1 (Tex. App.—Austin July 21, 2017, no pet.) (mem. op., not designated
for publication). On remand, the trial court sentenced Torres to twenty years’ imprisonment.
See Tex. Penal Code §§ 22.011(a), 12.33(a).
DISCUSSION
Evidentiary Challenges
Torres’s first and second issues contend that the trial court erred by admitting
evidence of his prior plea agreements from the guilt-innocence phase of his trial, which were
rejected by the previous trial judge, because they were inadmissible under Rules of Evidence 403
and 410. See Tex. R. Evid. 403 (“The court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.”), 410(b) (listing types of evidence regarding guilty pleas, plea discussions, and related
statements that are not admissible in criminal cases). The State correctly points out that Torres
did not object to the admission of the complained of evidence.
To preserve a complaint for appellate review, (1) a party must have made a
timely, specific objection, request, or motion to the trial court that stated the specific grounds for
the ruling sought by the complaining party, unless the specific grounds were apparent from the
context, and (2) the trial court must have either ruled or refused to rule on the request—in which
case the complaining party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a). After reviewing the record, we agree with the State that Torres waived his evidentiary
complaints because he did not make any objection to the complained of evidence. See Saldano
2 v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (explaining that failure to object to
admission of evidence waives appellate complaints regarding admissibility of that evidence even
if “the error may concern a constitutional right of the defendant”). Preservation of error is a
systemic requirement. Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005). Thus, we
do not address the merit of these arguments. See Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim.
App. 2009) (“If an issue has not been preserved for appeal, neither the court of appeals nor this
Court should address the merits of that issue.”).
We overrule Torres’s first and second issues.
Ineffective Assistance of Trial Counsel
In his final issue, Torres contends that his trial counsel was ineffective for failing
to either redact the record of the guilt-innocence proceeding to prevent the trial judge who
assessed punishment from knowing the details of the plea agreement presented to and rejected by
the previous trial judge or to object to the trial judge reviewing them.
To prevail on his claim of ineffective assistance of counsel, Torres must prove by
a preponderance of the evidence that: (1) his counsel’s performance was deficient, and (2) the
deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Hernandez v. State, 988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999). The review of a trial
counsel’s representation on an ineffective-assistance challenge is highly deferential to the
counsel’s professional judgment. Strickland, 466 U.S. at 689.
To meet the first prong of the Strickland test, Torres must overcome a strong
presumption that his counsel’s conduct falls within the wide range of reasonably professional
assistance. Id. “[A]ny allegation of ineffective assistance must be firmly founded in the record,
3 and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State,
9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Generally, a reviewing court will not speculate
about counsel’s trial strategy. Mayhue v. State, 969 S.W.2d 503, 511 (Tex. App.—Austin 1998,
no pet.). When there is an absence of evidence in the record of counsel’s reasons for the
challenged conduct, we “will not conclude the challenged conduct constituted deficient
performance unless the conduct was so outrageous that no competent attorney would have
engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). “A substantial risk
of failure accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal.”
Thompson, 9 S.W.3d at 813.
During the guilt-innocence phase of Torres’s trial, plea agreements were
presented to the judge on the record and rejected by the trial court. On remand, a different trial
judge heard the punishment evidence and assessed Torres’s sentence. At the beginning of the
punishment hearing, the sentencing judge stepped out of the courtroom so that counsel could
create a record, through testimony by Torres, regarding plea negotiations relevant to the
punishment hearing that was taking place without the sentencing judge hearing the details of the
plea negotiations. Torres testified that his trial counsel communicated the State’s offer but that
he rejected the offer because he would not accept anything less than “time-served,” which would
have been about six years at the time of the hearing. After this testimony concluded, the trial
judge returned and the hearing continued.
The trial judge made a couple of references to parts of the guilt-innocence record
that were provided to him by the attorneys. First, he noted: “At the request of the parties for the
record, the Court was given a—some disks, so the Court has read most of the transcript of all of
everything through the guilt/innocence.” The trial judge also stated: “There—the Court noted in
4 reading the transcripts that at some point in time there was a plea offer made during the trial that
apparently was rejected by [the previous judge], too. I don’t know how relevant that is, but, you
know, that—that was in the record that you gave me.” The full reporter’s record from the
guilt-innocence phase of trial was then admitted into evidence by the State, which included the
hearing at which the previous trial judge heard and rejected the terms of the parties’
plea agreement.
On appeal, Torres contends that Rule 410 prohibited the admission of the portion
of the guilt-innocence record that mentioned the plea bargains. See Tex. R. Evid. 410. Rule 410
provides:
In a criminal case, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea that was later withdrawn;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty or nolo contendere plea or they resulted in a later-withdrawn guilty or nolo contendere plea.
Id.
We have no record from which we may discern that counsel’s performance was
not based on sound strategy. See Thompson, 9 S.W.3d at 813–14 (“A substantial risk of failure
accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal. . . . In the
majority of instances, the record on direct appeal is simply undeveloped and cannot adequately
5 reflect the failings of trial counsel.”). Although a motion for new trial was filed, it did not raise
this issue and no hearing was held. Torres relies heavily on the fact that his trial counsel made
sure to keep details of the plea negotiations regarding punishment from the sentencing judge but
allowed unredacted details of the earlier plea agreement to be entered into evidence. He
contends that this demonstrates that his counsel was deficient because counsel knew that details
from plea negotiations should not be presented to the judge who would be assessing punishment.
However, the plea deals were for two different offenses. Torres does not explain how his trial
counsel’s decision to prevent the sentencing judge from knowing the details of plea negotiations
relevant to the offense he was being sentenced for makes it so that trial counsel could not have a
reasonable trial strategy for allowing in information about a different offense. We are not
convinced that under the facts of this case that failing to object to the admission of the reporter’s
record or request that the reporter’s record be redacted are so egregious that no competent
attorney would have acted similarly. See Strickland, 466 U.S. at 689 (“[A] court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’”); Garcia, 57 S.W.3d at 440
(“[I]n the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court
. . . will not conclude the challenged conduct constituted deficient performance unless the
conduct was so outrageous that no competent attorney would have engaged in it.”).
Accordingly, we overrule Torres’s ineffective-assistance claim.
6 CONCLUSION
Because we overruled all of Torres’s issues, we affirm the trial court’s judgment.
__________________________________________ Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Theofanis
Affirmed
Filed: August 2, 2023
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