OPINION No. 04-10-00050-CR
Irene V. RODRIGUEZ, Appellant
v.
The STATE of Texas, Appellee
From the 381st Judicial District Court, Starr County, Texas Trial Court No. 08-CR-89 Honorable Jose Luis Garza, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice (concurring in the judgment only)
Delivered and Filed: December 15, 2010
AFFIRMED
Appellant, Irene V. Rodriguez, is a notary public. A jury found appellant guilty of
holding herself out as an attorney, and the trial court assessed punishment at ten years’
confinement, probated, and a $1,000 fine. On appeal, appellant challenges the legal and factual
sufficiency of the evidence in support of the verdict, and she asserts the trial court erred in
overruling her motion for new trial. We affirm. 04-10-00050-CR
SUFFICIENCY OF THE EVIDENCE
The indictment alleged appellant “with intent to obtain an economic benefit for herself
held herself out as a lawyer, to-wit: by stating that she was a lawyer that knew how to process
immigration applications, and [she] was not then and there licensed to practice law in this state,
another state or foreign country.” Appellant asserts the evidence is legally insufficient because
the State failed to offer any evidence that she held herself out as a lawyer who “knew how to
process immigration applications,” and the State failed to offer any evidence that she committed
the relevant conduct with the intent to obtain an economic benefit for herself. Appellant asserts
the evidence is factually insufficient because the great weight and preponderance of the contrary
evidence demonstrates the jury’s verdict was clearly wrong and manifestly unjust.
There is “no meaningful distinction between the Jackson v. Virginia legal-sufficiency
standard and the Clewis factual-sufficiency standard.” See Brooks v. State, No. PD-0210-09,
2010 WL 3894613, at *8, 14 (Tex. Crim. App. Oct. 6, 2010) (overruling Clewis). Accordingly,
we will apply the same standard of review to all of appellant’s sufficiency complaints. That
standard requires us to determine whether after considering all the evidence in the light most
favorable to the verdict was a jury rationally justified in finding guilt beyond a reasonable doubt.
Id. at *8. The standard of review is the same in both direct and circumstantial evidence cases.
Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).
A. Holding Herself Out As a Lawyer
Appellant is a notary public who maintains an office in Rio Grande City, Texas. She is
not an attorney. Genaro Esparza testified he went to see appellant at her office in March 2000
because he needed help with immigration proceedings for his wife and children. Esparza said he
did not know anything about immigration and a friend of his told him appellant was an attorney.
-2- 04-10-00050-CR
He stated that when he first met with appellant and told her he needed immigration help,
appellant told him she could help, “that she was an attorney and that she was authorized to work
on immigration papers.” Esparza continued to consider appellant his attorney through 2006
because she told him she was an attorney when they first met. In May 2005, Esparza went to
speak with appellant because his son’s visa had expired and the visas held by his wife and other
children were going to expire. Appellant told him “we were going to need more money.” When
Esparza went home and told his family about this conversation, his family cautioned him that
appellant was not an attorney. Later, Esparza expressed this concern to appellant and, according
to Esparza, appellant “told [him] she was an attorney and she gave me this [business] card so that
I could be at ease.” The business card does not state appellant is an attorney, but instead, reads:
“Rodriguez Immigration & Office Services.” In January 2006, Esparza decided to terminate the
relationship with appellant. He went to her office and asked for his paperwork, which she
refused to provide. When he made a second visit to her office, she gave him his documentation.
He did not look for another attorney to help him because he had no money.
On appeal, appellant concedes this evidence provides some proof for a portion of the
indictment’s allegation; but, she contends there is no proof that she stated she was a lawyer who
knew how to process immigration applications. According to appellant, the processing of
immigration applications falls within the sole discretion of the United States government.
Therefore, appellant contends there is no evidence to suggest she held herself out as a lawyer in
the manner alleged in the indictment.
We disagree with appellant’s argument that failure to prove she actually stated she was a
lawyer who “knew how to process immigration forms” rendered the evidence insufficient.
“[W]hen faced with a sufficiency of the evidence claim based upon a variance between the
-3- 04-10-00050-CR
indictment and the proof, only a ‘material’ variance will render the evidence insufficient.”
Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). This is because the sufficiency of
the evidence is measured by a hypothetically correct jury charge, and the hypothetically correct
jury charge “will take into consideration the fatal variance doctrine and . . . [a]llegations giving
rise to immaterial variances may be disregarded in the hypothetically correct charge.” Id.; see
also Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (holding sufficiency of
evidence is measured by hypothetically correct jury charge). A hypothetically correct charge
“would be one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability and adequately describes the particular offense for which the defendant was tried.”
Malik, 953 S.W.2d at 240.
Here, the essential elements of the charged offense are: (1) a person, not “currently
licensed to practice law in this state, another state, or a foreign country and [who is not] in good
standing with the State Bar of Texas and the state bar or licensing authority of any and all other
states and foreign countries,” “with intent to obtain an economic benefit for” herself, (2) held
“herself out as a lawyer.” TEX. PENAL CODE ANN. § 38.122(a) (West 2003). The manner or
means by which a person holds herself out as a lawyer—in this case, as someone who can
process immigration forms—is not material and, therefore, would not be included in a
hypothetically correct charge. Accordingly, the State was not required to prove appellant
actually stated she was a lawyer who processed immigration forms.
Appellant also contends the overwhelming weight of the following evidence is contrary
to the verdict. Appellant submitted into evidence a copy of a form signed by Esparza’s wife on
April 9, 2003, which was written in Spanish and stated, in part, that “[t]his office is not
-4- 04-10-00050-CR
responsible for any type of legal representation or legal service.” Michael Aguirre, an assistant
attorney general with the Texas Attorney General’s office, testified appellant was the defendant
in a lawsuit filed by the AG’s office in 2007. Prior to that suit, the AG’s office conducted an
investigation of appellant, pursuant to which the AG’s office confirmed appellant was not an
attorney licensed in Texas, another state, or another country. Aguirre stated that in Mexico a
“notario publico” is a licensed attorney; therefore, to prevent confusion among Spanish-speaking
individuals, a notary public in Texas is not allowed to advertise as a “notario publico.” Aguirre
said his investigation did not reveal that appellant advertised as a “notario publico,” nor did the
building outside her office have any signage indicating she was an attorney. When asked if he
had ever seen a document that appellant signed “as a lawyer,” he responded that he had. Aguirre
thought the document was an immigration form sent to the INS and, although he could not recall
the precise language on the form, he thought the form included a clause “that states attorney
represents - - representing you” and it had appellant’s notary stamp. Aguirre agreed one does not
have to be a lawyer to fill out an immigration form, but it is against the law in Texas for a notary
public to complete an immigration form.
Rozanne Lopez, an investigator for the AG’s office, testified she made an appointment
with appellant under an assumed name and carrying a hidden audio/video recorder. In late 2005
and early 2006, she met with appellant under the pretext of being married to a man who was a
naturalized citizen who had a brother living in Mexico trying to get into the United States. She
paid a $20.00 fee for an initial consultation. Appellant told Lopez how the process worked, that
she (appellant) would prepare the documentation, and file the documents with INS. While Lopez
was waiting in the lobby of appellant’s office, she heard some people ask to “speak to the
-5- 04-10-00050-CR
licenciada Irene Rodriguez.” 1 She said the lobby wall had several framed letters “from people
[for whom appellant] had provided an immigration service,” and thanking her for services
provided. However, Lopez said there were no signs using the words “notario publico” or
indicating appellant was a lawyer or that she was offering legal advice.
Once inside appellant’s office, Lopez said there was a plaque on the wall behind where
appellant sat stating in English that she was not a lawyer. Lopez asked appellant about a divorce
and appellant said she did not handle divorces and she could refer Lopez to a lawyer. When
Lopez asked appellant about preparing a will, appellant told her the forms could be printed out
and she (Lopez) could complete the form. Lopez said none of the documents recovered from
appellant’s office indicated she was a “notario publico,” a lawyer, or offering legal services.
However, “the jury is the exclusive judge of the credibility of witnesses and of the weight
to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the
evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Here, despite the
lack of signage stating she was a lawyer or a “notario publico,” the jury apparently believed
appellant held herself out to Esparanza as an attorney.
B. Obtaining a Benefit for Herself
Appellant next contends the evidence is insufficient because any conduct for which she
was paid in 2000 through 2004 fell outside the limitations period, 2 and her 2005 statement that
she would “probably” need more money is nothing more than hypothetical speculation and fails
to show how any payment of more money placed her in a more advantageous position.
1 “Licenciado” is Spanish for a “title given to lawyers.” 2 The felony indictment for this offense had to be brought within three years from the date of the commission of the offense. TEX. CODE CRIM. PROC. ANN. art. 12.01(7) (West Supp. 2010). The indictment, dated April 1, 2008, alleged the offense occurred on or about May 31, 2005.
-6- 04-10-00050-CR
We do not agree that the State had to prove appellant was placed in a more advantageous
position. Texas Penal Code section 38.122 does not define “economic benefit,” but section
38.01 defines the term to mean “anything reasonably regarded as an economic gain or advantage,
including accepting or offering to accept employment for a fee, accepting or offering to accept a
fee, entering into a fee contract, or accepting or agreeing to accept money or anything of value.”
TEX. PENAL CODE ANN. § 38.01(3). The word “benefit” is defined in the Introductory Provisions
of the Penal Code as “anything reasonably regarded as economic gain or advantage, including
benefit to any other person in whose welfare the beneficiary is interested.” Id. § 1.07(a)(7).
Therefore, we review the record for evidence of whether appellant held herself out as a lawyer
with the intent to obtain an economic gain or advantage.
When Esparanza first met with appellant, he paid a $20.00 consultation fee. After
explaining his immigration problems to her, he and appellant agreed he would pay her $2,500 to
begin the immigration paperwork; and, between March 2000 and June 2000, he paid the fee in
installments. He paid another “consultation fee” in March 2001. At some point in time,
Esparanza asked appellant what could be done for “two men of age,” and she said that for
$450.00 each “she could get . . . a work permit for them.” Although the purpose of further
payments is not clear from the record, the record indicates that in 2002, appellant was paid a total
of $2,070; in 2003, she was paid a total of $1,650; and in 2004, she was paid $30 to “consult”
with Esparza’s son about his visa. In May 2005, because his son’s visa had expired and the visas
held by his wife and other children were going to expire, he went again to speak with appellant.
Appellant told him “we were going to need more money.” This statement indicates appellant did
not provide her services for free.
-7- 04-10-00050-CR
We conclude the evidence is sufficient to establish that appellant intended to obtain an
economic benefit for herself by assisting appellant and his family with their immigration
proceedings. Satterwhite v. State, 979 S.W.2d 626, 628 (Tex. Crim. App. 1998) (holding record
reflected appellant intended to obtain economic benefit for himself by representing client).
IN PARI MATERIA DOCTRINE
In her third issue, appellant argues the doctrine of in pari materia barred her conviction
on the charged offense. Appellant asserts the Penal Code section under which she was
prosecuted is in pari materia with a special statute of similar purpose providing for a lesser
punishment under the same fact scenario.
We conclude this complaint has been waived because it was not brought to the trial
court’s attention until appellant filed her amended motion for new trial. To preserve a complaint
for review, a party must present a timely request, objection, or motion stating the specific
grounds for the desired ruling if such grounds are not apparent from the context of the request,
objection, or motion. See TEX. R. APP. 33.1(a)(1). In particular, to challenge the substance of an
indictment under the in pari materia doctrine, a defendant must object before trial to preserve the
complaint on appeal. See TEX. CODE CRIM. PROC. ANN. art 1.14(b) (Vernon 2005); see also
Short v. State, 995 S.W.2d 948, 953 (Tex. App.—Fort Worth 1999, pet. ref’d) (holding failure to
raise in pari materia claim before trial waives the complaint for appellate review).
JUROR MISCONDUCT
Appellant next contends juror deceptiveness and misconduct deprived her of a fair and
impartial trial. During voir dire, the prosecutor asked if anyone knew the appellant. Veronica
Trevino, who later became the foreperson, did not respond. Veronica’s sister, Leonor Trevino,
was a former employee of appellant.
-8- 04-10-00050-CR
In support of her motion for new trial, appellant attached the affidavit 3 of Ninfa
Velasquez, who stated she is acquainted with appellant and attended the criminal trial.
Velasquez said Leonor left appellant’s employ “on unfavorable terms,” and Leonor told her
appellant “was too strict with her and she decided to quit her job.” Velasquez was “of the belief
that because of these unfavorable terms [Leonor] has a natural bias and prejudice against”
appellant. Velasquez alleged that “prior to this criminal trial . . . Leonor spoke against the case,
against [appellant], and that she was hoping the case would go against” appellant. She described
Veronica and Leonor as a “close knit family.” She believed “that Veronica had personal inside
knowledge of the workings and mechanics of [appellant’s] business which influenced Veronica’s
verdict in this case.”
Appellant bore the burden of proving the allegation of juror misconduct. Hughes v. State,
24 S.W.3d 833, 842 (Tex. Crim. App. 2000). Neither Velasquez nor Veronica was called as a
witness at the new trial hearing. Even if Velasquez’s affidavit established bias on the part of
Leonor, appellant points to nothing in the record that indicates Veronica held any bias or
influenced the other jurors in any way. We cannot speculate as to the prejudice, if any, of the
juror in favor of or against appellant. 4 Therefore, based on this record, we conclude appellant
did not establish the trial court abused its discretion for denying appellant’s motion for new trial
on the basis of juror misconduct.
3 Although a trial court may receive evidence by affidavit, the affidavit is not considered evidence unless it is offered into evidence at the hearing on the motion. Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009). Velasquez’s affidavit was not offered into evidence during the new trial hearing, and therefore, was not before the trial court. Nevertheless, we consider the merits of appellant’s complaint. 4 At the new trial hearing, appellant’s attorney stated he did not have a conversation with Veronica and he agreed with the State’s argument that whether Veronica was influenced by her sister would be speculative.
-9- 04-10-00050-CR
INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, appellant contends she received ineffective assistance of counsel for a number of
reasons. We review an appellant’s claim of ineffective assistance of counsel under the well-
established standard of review. See Strickland v. Washington, 466 U.S. 668, 690 (1984);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reviewing court cannot
speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must
presume that the actions were taken as part of a strategic plan for representing the client. See
Young v. State, 991 S.W.2d 835, 837–38 (Tex. Crim. App. 1999). The appellate record must
affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State,
101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813. Generally, the trial
record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9
S.W.3d at 813–14. Here, we have the record from the new trial hearing. Although appellant’s
trial attorney filed an affidavit 5 that was attached to the motion for new trial, counsel did not
testify at the hearing.
Appellant first asserts that if this court finds the in pari materia argument to have been
waived, then counsel was ineffective for failing to raise the objection. This complaint calls for
speculation about why counsel did not object. On appeal, appellant contends there could be no
possible trial strategy for not objecting because the objection goes to the trial court’s jurisdiction.
However, we note that no Texas court has yet considered whether the two statutes at issue here
are in pari materia. “Ignorance of well-defined general laws, statutes and legal propositions is
not excusable and such ignorance may lead to a finding of constitutionally deficient assistance of
counsel, but the specific legal proposition must be ‘well considered and clearly defined.’” Ex
5 Counsel’s affidavit was not offered into evidence during the new trial hearing, and therefore, was not before the trial court. See Rouse, 300 S.W.3d at 762.
- 10 - 04-10-00050-CR
parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005). It is universally recognized that
because “the law is not an exact science and it may shift over time,” “an attorney is not liable for
an error in judgment on an unsettled proposition of law . . . .” Id. “[L]egal advice which only
later proves to be incorrect does not normally fall below the objective standard of reasonableness
under Strickland.” Id. at 359. “[C]ounsel’s performance will be measured against the state of
the law in effect during the time of trial and we will not find counsel ineffective where the
claimed error is based upon unsettled law.” id. (citation omitted); see also Ex parte Smith, 296
S.W.3d 78, 81 (Tex. Crim. App. 2009) (counsel not ineffective because proper construction of
statute was unresolved and unclear). Because no caselaw exists to guide counsel on whether the
two statutes are in pari materia, we cannot say counsel was ineffective for failing to raise the
objection.
Appellant next asserts counsel was ineffective because he failed to object to prejudicial
evidence of the Texas Attorney General’s civil suit against appellant and because counsel failed
to ask for a limiting instruction once the evidence was admitted. When the State called Michael
Aguirre to the stand, he was asked how he knew appellant. Aguirre responded that appellant was
a “defendant in the lawsuit that the Attorney General filed . . . .,” and that he investigated her at
that time. Defense counsel did not object. Although defense counsel filed an affidavit, he did
not explain his strategy or concede he was ineffective for failing to object or ask for a limiting
instruction. This complaint asks the court to speculate about counsel’s trial strategy, something
we may not do. Also, although appellant complains about Aguirre’s testimony, her sufficiency
of the evidence argument relies in large part upon the results of the investigation the AG’s office
conducted for the civil trial.
- 11 - 04-10-00050-CR
Appellant next complains counsel was deficient because he did not request a jury charge
on limitations. This complaint again asks for this court to speculate. Also, appellant has not
established she would have been entitled to such an instruction if one had been requested.
Finally, appellant contends counsel’s cumulative errors prejudiced her defense. Because we
conclude appellant did not meet her burden of establishing individual instances of ineffective
assistance of counsel, we hold that she cannot show an adverse cumulative effect from the
actions of trial counsel. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)
(while a number of errors may become harmful in their cumulative effect, non-errors cannot
become error cumulatively). Therefore, the trial court did not err in denying appellant’s motion
for new trial on this basis.
Appellant’s other two grounds for complaining of the trial court’s denial of her motion
for new trial are that the evidence is insufficient and the interests of justice demand a new trial.
Based on the above discussion, we conclude these complaints are without merit.
CONCLUSION
We overrule appellant’s complaints on appeal and affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
Publish
- 12 -