Emilio Sierra v. the State of Texas ( 2022 )

Affirm and Opinion Filed June 21, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00282-CR
EMILIO SIERRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1566708
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Garcia
Opinion by Justice Molberg
Appellant Emilio Sierra appeals his conviction of indecency with a child. In
one issue, he argues he was denied effective assistance of counsel because his
counsel failed to object to the State’s expert opinion regarding the truthfulness of the
complainant, which he claims prejudiced him. We affirm the trial court’s judgment
in this memorandum opinion.1 See TEX. R. APP. P. 47.4.
1
This case was transferred to us from the Fourteenth District Court of Appeals in Houston pursuant to
a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001.
Because this is a transfer case, we apply the precedent of the Fourteenth Court of Appeals to the extent it
differs from our own. See TEX. R. APP. P. 41.3.
BACKGROUND
Sierra was charged by indictment with a second-degree felony offense of
indecency with a child. See TEX. PENAL CODE §§ 21.11(a)(1); 21.11(d). He pleaded
not guilty. The case was submitted to a jury for the guilt-innocence phase. Five
witnesses testified in that phase: a forensic examiner, a child abuse pediatrician,
complainant’s mother and father, and complainant. Sierra, who is complainant’s
cousin, did not testify.
The jury found Sierra guilty of the offense. The trial court assessed
punishment and sentenced appellant to fifteen years’ confinement in the Texas
Department of Criminal Justice, Institutional Division. Sierra timely appealed. He
did not file a motion for new trial or other post-judgment motion.
DISCUSSION
In one issue, Sierra contends he was deprived of his Sixth Amendment right
to effective assistance of counsel because his counsel failed to object when the State
asked its first witness, a forensic examiner, if she felt complainant was “telling the
truth” and she testified, “I do.”
Applicable Standards
A defendant is entitled to reasonably effective assistance of counsel under the
Sixth Amendment to the United States Constitution and under section 10 of article I
of the Texas Constitution. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. The
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right does not entitle one to errorless counsel but rather to objectively reasonable
representation. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
“To prevail on a Sixth Amendment claim alleging ineffective assistance of
counsel, a defendant must show that his counsel’s performance was deficient and
that his counsel’s deficient performance prejudiced him.” Andrus v. Tex., 140 S.Ct.
1875, 1881 (2020) (per curiam) (citing Strickland v. Washington, 466 U.S. 668, 688,
694 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)
(appellant must prove by a preponderance of the evidence counsel was ineffective)
(citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).
In determining whether or not counsel’s representation was deficient, we
indulge a strong presumption that counsel’s conduct falls within a wide range of
reasonable professional assistance. Strickland, 466 U.S. at 689; see also Tong v.
State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Jackson v. State, 877 S.W.2d
768, 771 (Tex. Crim. App. 1994). To defeat the presumption of reasonable
representation, an allegation of ineffectiveness must be firmly founded in the record
and the record must affirmatively demonstrate the alleged ineffectiveness. Mallett
v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Prine v. State, 537 S.W.3d 113,
117 (Tex. Crim. App. 2017). A silent record that provides no explanation for
counsel’s actions will not overcome the strong presumption of reasonable assistance.
Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Thompson, 9
S.W.3d at 814.
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To show prejudice under the second prong of Strickland, an appellant must
demonstrate a reasonable probability the outcome would have differed but for trial
counsel’s errors. Strickland, 466 U.S. at 694; see also Jackson, 877 S.W.2d at 771.
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Jackson, 877 S.W.2d at 771 (quoting Strickland, 466 U.S. at 694). It is
not sufficient to show defense counsel’s errors “had some conceivable effect on the
outcome of the proceeding.” Strickland, 466 U.S. at 693. Rather, to establish
prejudice, an appellant must show counsel’s errors were “so serious as to deprive
defendant of a fair trial, a trial whose result was reliable.” Id. at 687.
Failure to satisfy either prong of the Strickland standard is fatal. Perez v.
State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Ex parte Martinez, 195 S.W.3d
713, 730 n.14 (Tex. Crim. App. 2006); Rylander, 101 S.W.3d at 110. We need not
examine both Strickland prongs if one cannot be met. Strickland, 466 U.S. at 697.
In rare cases, an appellant claiming ineffective assistance of counsel is not
required to show prejudice; rather, prejudice is presumed and the appellant only is
required to show deficient performance. Id. at 692 (citing United States v. Cronic,
466 U.S. 648, 658–60 (1984)). Cronic identified three situations that were so likely
to prejudice the accused as to justify a presumption of prejudice, including:
(1) the accused was denied the presence of counsel at a critical stage of
trial, (2) counsel entirely failed to subject the prosecution’s case to
meaningful adversarial testing, or (3) circumstances at trial were such
that, although counsel was available to assist the defendant during trial,
the likelihood that any lawyer, even a fully competent one, could
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provide effective assistance is so small that a presumption of prejudice
is appropriate without inquiry into the actual conduct of the trial.
Cronic, 466 U.S. at 659–60. None of the Cronic factors are argued here.
“Direct opinion testimony about the truthfulness of another witness, without
prior impeachment, is inadmissible as it does more than ‘assist the trier of fact to
understand the evidence or to determine a fact in issue.’” Lopez, 343 S.W.3d at 143–
44 (citations omitted).
Analysis
The sole issue is before us is whether Sierra was deprived of his Sixth
Amendment right to effective assistance of counsel because his counsel failed to
object when the State asked the forensic examiner if she felt complainant was
“telling the truth” and she testified, “I do.”
Sierra argues there was no reasonable trial strategy in counsel’s failure to
object to this and that counsel’s failure prejudiced him because it gave the jury an
independent basis to believe the complainant and invaded the jury’s duty to
determine the her credibility. Sierra relies on Fuller v. State, 224 S.W.3d 823 (Tex.
App.—Texarkana 2007, no pet.); Miller v. State, 757 S.W.2d 880 (Tex. App.—
Dallas 1988, pet. ref’d); and Garcia v. State, 712 S.W.2d 249 (Tex. App.—El Paso,
1986, pet. ref’d) to support his position. He also cites Lyons v. McCotter, 770 F.2d
529, 534 (5th Cir. 1985) as support for the proposition that the presentation of
prejudicial and inadmissible evidence has no strategic value.
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The State acknowledges that, on its face and in isolation, the forensic
examiner’s complained-of testimony appears to constitute an inadmissible direct
opinion as to the complainant’s truthfulness. The State argues, however, this does
not automatically mean Sierra’s counsel’s failure to object constitutes
constitutionally deficient representation, particularly when Sierra has pursued his
ineffective assistance claim on direct appeal, without a motion for new trial or other
post-judgment motion, which leaves us with a silent record as to any strategy or
reasoning for his counsel’s actions. As support, the State relies on Lopez, 343
S.W.3d at 142–44; Strahan v. State, 617 S.W.3d 198 (Tex. App.—Houston [1st
Dist.] 2020, pet. ref’d); Navarro v. State, Nos. 05-18-00891-CR, 05-18-00892-CR,
05-18-00893-CR, 2020 WL 113671 (Tex. App.—Dallas Jan. 10, 2020, pet. ref’d)
(mem. op., not designated for publication); and Macias v. State, 539 S.W.3d 410(Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). Sierra does not discuss or
distinguish any of these cases.
Lopez is binding and controls the outcome here. In that case, Lopez’s trial
counsel failed to object to direct opinion testimony by both an outcry witness and a
law enforcement officer regarding the complainant’s truthfulness. See Lopez, 343
S.W.3d at 140. On direct appeal, the court of appeals reversed Lopez’s conviction
based on a finding of ineffective assistance and remanded for further proceedings
after finding, in part, that his counsel’s failure to object to such testimony fell below
a reasonable standard of performance, when there was no reasonable strategy for not
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opposing the admission of testimony about the complainant’s credibility, the sole
issue at trial. Id. at 139, 141. The State sought a petition for review, which the court
of criminal appeals granted, and the court reversed the judgment of the court of
appeals and remanded the case to that court to address Lopez’s remaining issues. Id.
at 144. After detailing applicable review standards for ineffective assistance claims,
the court noted the record was silent as to counsel’s strategy and concluded:
The record could have been supplemented through a hearing on a
motion for new trial, but appellant did not produce additional
information about trial counsel’s reasons . . . for allowing opinion
testimony about the credibility of the complainant[.] [Lopez] has thus
failed to meet his burden under the first prong of Strickland, and the
court of appeals erred in finding otherwise. Because [he] failed to meet
his burden on the first prong of Strickland, we need not consider the
requirements of the second prong.
Id. at 142–44. Recently, the court reaffirmed the same standards, noting that
“[c]ounsel gets the benefit of the doubt from a silent record[.]” Johnson v. State,
624 S.W.3d 579, 586 (Tex. Crim. App. 2021) (citing Lopez, 343 S.W.3d at 143).
In this case, Sierra invites us, in effect, to make the same mistake our sister
court made in Lopez. We decline the invitation to do so.
Thus, because the record here is silent, as Lopez requires, we conclude Sierra
failed to meet his burden under Strickland’s first prong because he failed to produce
any information about trial counsel’s reasons for not objecting to the forensic
examiner’s testimony about complainant’s truthfulness. See Lopez, 343 S.W.3d at
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144.2 Because Sierra failed to meet his burden on Strickland’s first prong, we need
not consider the requirements of the second prong. Id.CONCLUSION
We overrule Sierra’s sole issue and affirm the trial court’s judgment.
/Ken Molberg/
KEN MOLBERG
JUSTICE
210282f.u05
Do Not Publish
TEX. R. APP. P. 47.2
2
See also Mejia v. State, No. 14-19-00432-CR, 2021 WL 3577659, at *4–5 (Tex. App.—Houston [14th
Dist.] Aug. 10, 2021, no pet.) (mem. op., not designated for publication) (distinguishing Garcia, Fuller and
Miller—three of the cases Sierra relies on—and concluding, based on silent record, appellant failed to meet
his burden to show counsel’s performance was deficient); Strahan, 617 S.W.3d at 204–07 (applying Lopez
and concluding, based on silent record, appellant did not demonstrate his counsel’s failure to object to
detective’s testimony fell below an objective standard of reasonableness under prevailing professional
norms); Navarro, 2020 WL 113671, at *4–5 (distinguishing Fuller and Miller—two of the cases Sierra
relies on—and concluding, on a similar record, “this is not the ‘rare case’ in which a silent record establishes
ineffective assistance of counsel”); Macias, 539 S.W.3d at 417–19 (applying Lopez, distinguishing Fuller
and Miller, and concluding appellant failed to meet both Strickland prongs); Benavides v. State, Nos. 14-
10-00768-CR, 14-10-00769-CR, 2011 WL 5119014, at *13 (Tex. App.—Houston [14th Dist.] October 27,
2011, no pet.) (mem. op., not designated for publication) (applying Lopez and concluding, based on silent
record, appellant failed to meet his burden under first Strickland prong).
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EMILIO SIERRA, Appellant On Appeal from the 174th District
Court, Harris County, Texas
No. 05-21-00282-CR V. Trial Court Cause No. 1566708.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Molberg. Justices Reichek and
Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 21st day of June, 2022.
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