Frank Lara v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00553-CR

Frank LARA, Appellant

v.

The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2014CR1129 Honorable Ray Olivarri, Judge Presiding

Opinion by: Jason Pulliam, Justice

Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Jason Pulliam, Justice

Delivered and Filed: December 30, 2015

AFFIRMED

A jury convicted Appellant Frank Lara of two counts of trafficking a child and two counts

of compelling prostitution of a child, and the trial court sentenced Lara to four terms of life

imprisonment. On appeal, Lara contends he received ineffective assistance of counsel at trial. The

trial court’s judgment is affirmed.

PROCEDURAL BACKGROUND

Frank Lara was arrested on February 4, 2013, following an investigation conducted by the

FBI Crimes Against Children Task Force. Lara was initially indicted on May 6, 2013, but that 04-14-00553-CR

indictment was later dismissed. Lara was re-indicted on February 12, 2014, under a new cause

number. The State alleged Lara committed two counts of trafficking a child, two counts of

compelling prostitution of a child, and three counts of aggravated sexual assault of a child.

The case proceeded to trial on June 16, 2014. The State waived the three counts of

aggravated sexual assault of a child and moved forward only on the first four counts in the

indictment. The jury returned a guilty verdict on all four counts. Lara elected for the trial court to

assess punishment, and the trial court sentenced Lara to four terms of life imprisonment, with the

punishment for Count I to run consecutively to the punishments for Counts II, III, and IV. Lara

subsequently perfected this appeal.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his sole issue on appeal, Lara argues he was denied effective assistance of trial counsel.

Lara contends trial counsel’s performance was deficient because trial counsel: (1) elicited

testimony on cross-examination that Belen Mendoza was Lara’s parole officer; (2) failed to timely

object to the use of extraneous offenses as adoptive admissions; (3) failed to object to the State’s

leading questioning of witness M.P. on direct examination; (4) requested the admission of the

entire data report compiled from the cellular phone found in Lara’s possession at the time of his

arrest; and (5) failed to timely object to Special Agent Fernando Gutierrez’s speculation regarding

the interpretation of text messages and electronic data. Pointing to these alleged instances of

ineffectiveness, Lara also contends counsel’s performance was cumulatively deficient.

To prevail on an ineffective-assistance-of-counsel claim, an appellant must prove, by a

preponderance of the evidence that (1) counsel’s performance was deficient, i.e., counsel’s

assistance fell below an objective standard of reasonableness, and (2) he was prejudiced by

counsel’s deficient performance, i.e., a reasonable probability exists that but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Strickland v. -2- 04-14-00553-CR

Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). Failure to make the required showing of either deficient performance or prejudice defeats

an appellant’s ineffectiveness claim. Thompson, 9 S.W.3d at 813.

Deficient Performance

When evaluating counsel’s effectiveness, an appellate court looks to the totality of the

representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. “It is

all too tempting for a defendant to second-guess counsel’s assistance after it has proved

unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”

Strickland, 466 U.S. at 689. Therefore, an appellate court indulges a strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance. Thompson, 9

S.W.3d at 813. Therefore, Lara “‘must overcome the presumption that, under the circumstances,

the challenged action might be considered sound trial strategy.’” Ex parte Moore, 395 S.W.3d

152, 157 (Tex. Crim. App. 2013) (quoting Strickland, 466 U.S. at 689).

“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. In most instances, the record on direct

appeal is undeveloped and does not adequately reflect the alleged failings of trial counsel. Id. at

813-14. In the absence of a developed record, an appellate court will not speculate as to the reasons

trial counsel acted as he did. Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San Antonio

2010, no pet.). Rather, the appellate court presumes the actions were taken as part of a strategic

plan for representing the client. Id. Moreover, an appellate court should not find deficient

performance unless the complained-of conduct was “so outrageous that no competent attorney

would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

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Mendoza Cross-Examination Testimony

Lara complains counsel elicited testimony from Mendoza on cross-examination that she

was Lara’s parole officer, which Lara contends opened the door for the State to introduce evidence

of other crimes, wrongs, or acts. See TEX. R. EVID. 404(b). Lara specifically complains the jury

learned Lara was placed on house arrest on May 7, 2012, and he was on super intensive

supervision, the highest level of parole supervision, based on Lara’s current and past offenses.

Although the reasons for counsel’s conduct may not readily appear in the record, if there

is at least a possibility the conduct could have been a part of legitimate trial strategy, an appellate

court will generally defer to counsel’s decisions. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.

Crim. App. 2002).

Lara did not file a motion for a new trial complaining of counsel’s actions, and there was

no corresponding hearing at which counsel’s reasons for eliciting the complained-of testimony

from Mendoza were made known. However, the record does support the existence of some trial

strategy.

The record shows trial counsel expressed concern regarding media coverage of Lara’s case

and pointed out to the trial court that Lara being on house arrest and parole had already been made

public through media reports. Additionally, through counsel’s cross-examination of Mendoza, as

well as through his later examination of Lara’s mother, trial counsel reiterated the lack of internet

access in Lara’s residence. Further, although the jury learned Lara was on parole, Mendoza’s

testimony also revealed Lara was not on parole for a sex offense. During closing, counsel argued

that because of the dates of Lara’s incarceration, parole, and house arrest, Lara could not be linked

to the victim or the phone associated with the offenses, as alleged by the State, prior to the date he

was placed on house arrest.

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Upon review of the record, this court concludes Lara failed to affirmatively demonstrate

his ineffective assistance of counsel claim regarding trial counsel’s cross-examination of Mendoza.

See Ex parte Moore, 395 S.W.3d at 157. This court cannot say trial counsel did not engage in

reasonable trial strategy. That other counsel may have tried the case differently does not show

ineffective assistance. See Ortiz, 93 S.W.3d at 88-89; Bone v. State, 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002). To the contrary, this court is bound by the strong presumption that counsel’s

conduct was reasonable and professional and could be considered sound trial strategy. Id. Lara’s

claims are not firmly founded in the record, and this court will not engage in retrospective

speculation. Id. at 835; see also Ex parte Moore, 395 S.W.3d at 157.

Thus, Lara’s contention trial counsel was ineffective for eliciting the complained-of

testimony during Mendoza’s cross-examination is overruled.

Failure to Object

Lara next complains trial counsel failed to timely object to the admission of extraneous

offenses as adoptive admissions pursuant to TEX. R. EVID. 801(e)(2)(b).

When the State moved to admit extraneous offenses as adoptive admissions in the form of

excerpts of data and text messages downloaded from a cellular phone that was in Lara’s possession

at the time of his arrest, the trial court asked trial counsel if he was prepared to argue against the

evidence’s admission. Trial counsel stated he was ready to argue against the admission of the

evidence, but when the trial court queried whether counsel was prepared to offer case law

supporting his position, counsel admitted he did not have case law available. Ultimately, the trial

court admitted the evidence. The following day, counsel presented case law arguing against

admission of the evidence, but it had already been admitted.

To succeed on an ineffectiveness claim regarding counsel’s failure to object, an appellant

must show the trial court would have committed error in overruling such an objection. See Ex -5- 04-14-00553-CR

parte White, 160 S.W.3d 46, 53-54; Brooks v. State, 357 S.W.3d 777, 792 (Tex. App.—Houston

[14th Dist.] 2011, pet ref’d). Although Lara argues trial counsel’s actions were deficient, Lara

presents no discussion regarding whether the trial court would have committed error in overruling

a timely objection to the admission of the extraneous offenses as adoptive admissions. Thus, Lara

has not met his burden of demonstrating deficient performance, and his contention trial counsel

was ineffective for failing to object to the admission of the complained-of evidence is overruled.

Remaining Claims of Ineffective Assistance

Lara lists three additional complaints he describes as “Circumstantial Evidence of Deficient

Performance.” Lara contends trial counsel performed deficiently by: (1) failing to object to the

State leading witness M.P. on direct examination; (2) requesting admission of the entire report of

the electronic data extracted from the cellular phone found in Lara’s possession at the time of his

arrest; and (3) failing to object to Gutierrez’s speculative testimony regarding the interpretation of

text messages and electronic data. Lara also briefly mentions cumulatively deficient performance

he contends led to ineffective assistance of counsel. Lara’s brief, however, contains no additional

discussion of the facts or reference to relevant authority with regard to these contentions.

Rule 38.1(i) of the Texas Rules of Appellate Procedure provides that an appellant’s brief

“must contain a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.” TEX. R. APP. P. 38.1. Although this court must construe briefing

requirements liberally and reasonably, a party asserting error on appeal must put forth some

specific argument and analysis showing the record and the law support his contentions. See Rocha

v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000). When an appellant fails to discuss the evidence

supporting his claim or apply the law to the facts, he presents nothing for review. See id.

Thus, Rule 38.1(i) requires Lara to provide this court with a discussion of the facts and the

authorities relied upon. See TEX. R. APP. P. 38.1. Lara fails to analyze his contentions as intended -6- 04-14-00553-CR

by the rule. The brief, conclusory statements provided do not satisfy the briefing requirements of

Rule 38.1. See id. Lara’s argument on this issue is difficult to discern because the brief lists only

the alleged instances of deficient performance and a brief mention of cumulatively deficient

performance. The brief provides no argument or analysis pertaining to the complained-of

ineffective assistance or cumulatively deficient performance.

From the brief, we cannot discern how trial counsel’s actions constituted deficient

performance. We therefore conclude Lara waived the final three contentions of ineffective

assistance of counsel based upon his failure to comply with Rule 38.1(i).

Conclusion

Having examined Lara’s arguments concerning trial counsel’s allegedly deficient

performance this court concludes Lara failed to meet his burden of showing trial counsel’s

representation was deficient. In the absence of such a showing, Lara’s claim of ineffective

assistance of trial counsel must fail. See Thompson, 9 S.W.3d at 813 (noting that failure to make

a showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim);

see also Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006) (the failure to

satisfy either prong of the Strickland test is fatal).

Accordingly, Lara’s sole issue on appeal is overruled.

Based on the foregoing reasons, the trial court’s judgment is affirmed.

Jason Pulliam, Justice

DO NOT PUBLISH

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