Jorge Cortez v. State ( 2020 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JORGE CORTEZ, §
No. 08-18-00156-CR
Appellant, §
Appeal from the
v. §
243rd District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20170D05240)
§
OPINION
A jury convicted Cortez, Appellant, of aggravated assault with a deadly weapon. See
TEX.PENAL CODE ANN. § 22.02(a)(2), (b)(providing for a second-degree-felony offense of
aggravated assault with a deadly weapon). Cortez elected for the trial court to assess punishment,
and after he pleaded true to several enhancement paragraphs alleged by the State that increased his
punishment range to a term not less than 25 years or more than 99 years, the trial court sentenced
him to forty-three-years’ confinement. See TEX.PENAL CODE ANN. § 12.42(d)(providing for an
enhanced penalty range where it is shown on the trial of a felony offense that the defendant has
previously been convicted of two separate felony offenses).
In two issues on appeal, Cortez argues that his trial counsel rendered ineffective assistance
through the following acts of both commission and omission relating to the introduction of his ten
prior convictions in the guilt-phase of trial: (1) eliciting testimony from Cortez on direct-
examination about his prior convictions – and, allegedly, failing to subsequently object to further
testimony the State elicited from him on cross-examination – where the age and characteristics of
those convictions made them inadmissible under Texas Rule of Evidence 609(b); and (2) failing
to request a limiting instruction in the jury charge for those convictions under Texas Rule of
Evidence 105. Finding that Cortez has not proven the deficient-performance prong for either of
his complaints, we hold that trial counsel was not ineffective, and we affirm the trial court’s
judgment.
I. BACKGROUND
A. The State’s Case
Shortly after midnight on September 6, 2017, the complainant, Alan, was alone at his home
when he went to sleep. Alan lived with his mother, Dora, and his brother. However, on this night,
Dora was working, and Alan’s brother not at home. Dora had been dating Cortez shortly before
the offense, but the two were no longer in a relationship. Once the relationship ended, Dora was
forced to change the locks on her home because Cortez would not return his key to her home.
In the middle of the night, Alan woke from his sleep to find Cortez standing at his feet.
Cortez held a knife in each hand, told Alan not to yell or he would kill him, and ordered Alan to
call Dora. Alan called his mother and handed his cell phone to Cortez. When Dora saw her son’s
number on the caller ID, she answered the phone because she believed her son was calling, and by
that time, she had blocked Cortez’s number. When she answered, Cortez told her that he would
kill Alan if she did not get home soon. Both Alan and Dora took Cortez’s threat seriously, and
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both were terrified.
After the call, Cortez did not allow Alan to go anywhere in the home by himself. Cortez
kept Alan within arm’s reach and, at times, held onto Alan’s shoulder. Throughout this time,
Cortez appeared to be drunk, and ranted in an aggressive, amped-up manner about his past
relationship with Dora. At one point, Cortez told Alan that his mother thought she was so smart
for changing the locks but that he had entered the home through a kitchen window.
Eventually, Alan feigned a reason to get away from Cortez by claiming he needed to go
outside to feed his dogs. As Alan went to the backyard patio to set out the dog bowls, Cortez stood
just inside the sliding door that faced the patio. Seeing his chance to escape, Alan slammed the
sliding door shut, and wearing only his boxer shorts and no shoes, he jumped over the backyard
rock wall to a neighbor’s house. As Alan leapt over the wall, Cortez tried to grab him and yelled
for him to come back.
After escaping from Cortez, Alan pounded on the neighbor’s door, yelling for help, even
though he had never met his neighbors before. His neighbor, Charlie, was making breakfast when
he heard loud banging and someone screaming for help. Charlie opened the door, and Alan told
Charlie that someone was trying to kill him. Charlie saw that Alan was dressed solely in underwear
and appeared scared and frantic. Charlie quickly let Alan inside, locked the door, and told others
in the house to get a shotgun. Alan then called his mother to let her know he had escaped and to
prevent her from going home. Alan also sent a text message to his brother informing him that
Cortez had entered the home through a window, threatened him, and had two knives. Although
both Alan and Dora eventually called police, Cortez was not arrested until a later date.
The State’s notice of enhancement alleged Cortez had been convicted in November 2002
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for a burglary of habitation in two separate cases; and January 2003 for one burglary of a
habitation. The State’s notice of habitualization alleged Cortez had been convicted in December
1993 for burglary of a habitation in six separate cases.
The State’s notice of extraneous included one additional conviction for burglary of
habitation in November 2002. The Notice also alleged arrests for a Federal Charge of Illegal
Reentry in May 2002 and a Federal Charge of Previously Ordered Removed and Entered or
Attempted to Enter Without Being Admitted in April 2009.
B. The Defense’s Case
At trial, Cortez was the only defense witness. Before he testified, the trial judge asked
defense counsel to address with Cortez the ramifications of him testifying in light of his criminal
history. In a brief discussion with defense counsel, Cortez acknowledged on the record his counsel
had explained his right to remain silent, not testify and “all the implications legally and the impact
that it would have on your credibility with the [criminal] history [.]” However, Cortez chose to
testify regardless.
On direct-examination, Cortez admitted that he had been previously convicted of the
following offenses: (1) four counts of burglary of a habitation in 1993; (2) the federal offense of
illegal re-entry in 2002; (3) two counts of burglary of a habitation and one count of burglary of a
building in 2002; and (4) one count of burglary of a habitation in 2003.
Cortez then testified to a contravening narrative of his relationship with Dora in which she
tried to prevent him from leaving her at the time the two ended their relationship. In this narrative,
Dora also threatened to call the police on him and request a protective order. Regarding the date
of the offense, Cortez testified that he had gone to Dora’s home only to tell her not to call the
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police because he was in the county illegally. Cortez explained that he was able to enter the home
because his key still worked. Once inside the home, he woke Alan and asked him to call Dora.
However, Cortez was adamant in his testimony that he never threatened anyone, never had any
knives, and never tried to stop Alan from leaping over the rock wall.
On cross-examination, the State asked Cortez about his prior convictions. When the State
initially began to ask Cortez about those convictions, Cortez’s trial counsel objected on the basis
that the subject-matter has been “[a]sked and answered.” However, the trial court overruled the
objection. For his first two burglary-of-a-habitation charges, Cortez acknowledged that he was
placed on probation in July 1993 but was then revoked when he pleaded guilty to three more
burglary-of-a-habitation charges and was sentenced to thirteen-years’ confinement on all of those
charges. Cortez further acknowledged he was convicted in federal court for illegal re-entry in
October 2002 and was sentenced to seventy-one-months’ confinement for it. His confinement for
illegal re-entry ran concurrent with a two-year sentence for his burglary-of-a-building charge and
a fifteen-year sentence for his remaining three burglary-of-a-habitation charges. Overall, the State
elicited testimony from Cortez about the same illegal-re-entry, burglary-of-a-building, and seven
burglary-of-a-habitation convictions that Cortez admitted on direct-examination, but the State also
elicited testimony about a single additional burglary-of-a-habitation conviction that had not been
previously discussed.
At the conclusion of the State’s cross-examination, the State asked, “So basically what this
boils down to here is the jury either believes Alan or they believe the ten-time-convicted felon.
Right?” Cortez replied, “Yes, sir.”
II. ISSUES ON APPEAL
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In two issues, Cortez argues that trial counsel rendered ineffective assistance for two
reasons both relating to the admission of his ten prior convictions. In his first issue, he argues that
trial counsel was ineffective for eliciting testimony from Cortez about those prior convictions
during Cortez’s direct-examination – and for allegedly failing to object to further testimony the
State elicited from him on cross-examination – as those convictions were inadmissible under Texas
Rule of Evidence 609. In his second issue, Cortez argues that trial counsel was ineffective for
failing to request a limiting instruction in the jury charge for those convictions under Texas Rule
of Evidence 105.
In a single reply, the State argues that Cortez has shown neither deficient performance nor
prejudice to establish that either complained-of instance amounted to ineffective assistance. As for
Cortez’s first issue, the State contends that no deficient performance exists because Cortez’s
convictions were admissible under Rule 609 and, thus, trial counsel could not have been deficient
for failing to object to admissible evidence. As for Cortez’s second issue, the State contends that
Cortez failed to prove deficient performance because it may have been trial strategy to refrain from
requesting a limiting instruction where: (1) an instruction was not warranted for extraneous-
offense evidence admitted on direct-examination; and (2) counsel may have wanted to avoid
further highlighting Cortez’s convictions to the jury. And as for the prejudice prong on both issues,
the State contends that Cortez failed to prove any possible prejudice where ample evidence
supported the jury’s verdict and where both parties argued in closing that Cortez’s prior
convictions should be used to assess his credibility.
III. DISCUSSION
A. Standard of Review for a Claim of Ineffective Assistance of Counsel
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To prevail on an ineffective-assistance-of-counsel claim, a defendant must show that: (1)
counsel’s performance fell below an objective standard of reasonableness; and (2) a reasonable
probability exists that but for counsel’s unprofessional errors the result of the proceeding would
have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The burden of proof
is on a defendant to make both showings. Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017).
A defendant’s failure to make either of the required showings defeats the claim of ineffective
assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003).
The record must be sufficiently developed to overcome the strong presumption of
reasonable assistance. See id. at 110-11. As recognized by the United States Supreme Court, the
lack of any explanation in the record on direct appeal for trial counsel’s actions or inactions often
precludes any valid consideration of whether counsel’s performance was deficient:
If the alleged error is one of commission, the record may reflect the action taken by
counsel but not the reasons for it. The appellate court may have no way of knowing
whether a seemingly unusual or misguided action by counsel had a sound strategic
motive or was taken because the counsel’s alternatives were even worse . . . The
trial record may contain no evidence of alleged errors of omission, much less the
reasons underlying them.
Massaro v. U.S., 538 U.S. 500, 505 (2003).
As a general rule, a silent record that provides no explanation for counsel’s actions will not
overcome the strong presumption of reasonable assistance with which we afford counsel’s actions
or inactions in our review of an ineffective-assistance claim. See Rylander, 101 S.W.3d at 110-11.
Thus, we will assume a strategic motive if any can be imagined, and as a corollary, we will find
counsel’s performance deficient only if the conduct was so outrageous that no competent attorney
would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005).
Furthermore, we also note that trial counsel should ordinarily be given an opportunity to explain
7
their actions before being denounced as ineffective. Rylander, 101 S.W.3d at 111.
B. Issue One: Whether Trial Counsel Committed Ineffective Assistance by Eliciting
Testimony from Cortez about His Prior Convictions and by Failing to Object to Further
Testimony the State Elicited from Cortez about those Convictions
1. Applicable Law
Although Cortez’s issues in this appeal are governed by the ineffective-assistance standard
of review discussed above, the admission of evidence is normally governed under an abuse of
discretion standard. See Johnson v. State, 490 S.W.3d 895, 908 (Tex.Crim.App. 2016). Under this
standard, the trial court has “wide discretion” in ruling on the admissibility of a prior conviction,
and we will reverse only when the decision is outside the zone of reasonable disagreement. Theus
v. State, 845 S.W.2d 874, 881 (Tex.Crim.App. 1992).
Under Texas Rule of Evidence 609, evidence that a witness has been convicted of a crime
is admissible to attack the witness’s credibility if the crime was a felony or involved moral
turpitude and the court determines that the probative value of evidence outweighs its prejudicial
effect. TEX.R.EVID. 609(a). However, evidence of a conviction is not admissible under the rule if
more than ten years has elapsed since the date of the conviction, or the release from confinement
if later, unless the probative value substantially outweighs the prejudicial effect. TEX.R.EVID.
609(b). In short, the general rule is that if a conviction is under ten-years’ old, the test for admission
is whether the probative value outweighs the prejudicial effect, and if the conviction is over ten-
years’ old, the test is whether the probative value substantially outweighs the prejudicial effect.
TEX R.EVID. 609(a), (b); see also LaHood v. State, 171 S.W.3d 613, 620 (Tex.App.—Houston
[14th Dist.] 2005, pet. ref’d). The ten-year period is measured from the date of trial, rather than
the date of the charged offense for which the defendant is on trial. Ramirez v. State, 873 S.W.2d
8
757, 762 (Tex.App.—El Paso 1994, pet. ref’d); Armstrong v. State, No. 14-18-00065-CR, 2019
WL 470373, at *3 n.2 (Tex.App.—Houston [14th Dist.] Feb. 7, 2019, pet. ref’d)(mem. op., not
designated for publication).
In determining whether the probative value of evidence outweighs the prejudicial effect,
courts look to the following factors proffered by the Court of Criminal Appeals: (1) the
impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the
charged offense and the witness’s subsequent history; (3) the similarity between the past crime
and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the
importance of the credibility issue. Theus, 845 S.W.2d at 880.
Eliciting testimony from the accused as to his own prior conviction can be a matter of
sound trial strategy if the prior conviction is admissible. Huerta v. State, 359 S.W.3d 887, 891
(Tex.App.—Houston [14th Dist.] 2012, no pet.); Martin v. State, 265 S.W.3d 435, 443
(Tex.App.—Houston [1st Dist.] 2007, no pet.). It is common practice for defense attorneys to elicit
such testimony because doing so removes the sting from an attack that would otherwise come from
the State. Huerta, 359 S.W.3d at 891-92; see also Stone v. State, 17 S.W.3d 348, 349 (Tex.App.—
Corpus Christi 2000, pet. ref’d). And of course, trial counsel cannot be held to have committed
deficient performance where counsel did not object to admissible evidence. See, e.g., Ex parte
Salcido, No. 08-19-00178-CR, 2020 WL 1861967, at *7 (Tex.App.—El Paso Apr. 14, 2020, pet.
ref’d)(not designated for publication); Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970, at
*7 (Tex.App.—El Paso Feb. 8, 2012, no pet.)(not designated for publication).
2. Application of the Five Theus Factors to this Case
i. Impeachment Value
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Regarding the first Theus factor, the impeachment value of prior crimes involving
deception or moral turpitude is greater than for crimes involving violence. Theus, 845 S.W.2d at
811. Burglary of a building and burglary of a habitation are crimes of deception. See LaHood, 171
S.W.3d at 621 (holding that burglary of a non-habitation is a crime of deception); White v. State,
21 S.W.3d 642, 647 (Tex.App.—Waco 2000, pet. ref’d)(holding that burglary of a habitation is a
crime of deception).
Here, Cortez’s prior convictions included one burglary of a building and eight burglaries
of a habitation. All of these are crimes of deception. See LaHood, 171 S.W.3d at 621; White, 21
S.W.3d at 647. Thus, the impeachment value for these convictions is high. See Theus, 845 S.W.2d
at 811. And regarding the single non-burglary conviction for illegal re-entry, Cortez does not
discuss in his brief whether his conviction for illegal re-entry was a crime of deception or, for that
matter, how it should be analyzed under the first Theus factor. Therefore, we will assume that it,
too, is a crime of deception along with Cortez’s burglary convictions. Even if it were not, this
single conviction would not change the balance of this factor in light of Cortez’s nine burglary
convictions. Accordingly, we hold that this factor weighs in favor of admission.
ii. Temporal Proximity of Past Offenses
In deciding whether, in the interests of justice, the probative value of a remote conviction
substantially outweighs its prejudicial effect, a court may consider all relevant specific facts and
circumstances, including whether intervening convictions dilute the prejudice of that remote
conviction. Meadows v. State, 455 S.W.3d 166, 170 (Tex.Crim.App. 2015).
Here, trial began on August 3, 2018. Neither party disputes that Cortez’s burglary
convictions in 1993, his illegal re-entry conviction in 2002, and his burglary-of-a-building
10
conviction in 2002 all exceed the ten-year mark under Texas Rule of Evidence 609(b). See
TEX.R.EVID. 609(b).
Yet, Cortez was convicted for two additional burglaries in November 2002 and one
additional burglary in January 2003, and his sentence for all three was fifteen-years’ confinement
to run concurrently. The State points out that the record does not indicate when Cortez was released
from confinement on these convictions. Although we appreciate the State’s candor on this Theus
factor, we nonetheless observe that this unknown release date for these three most recent
convictions militates against him here because his arguments on appeal are all in the posture of an
ineffective-assistance claim, and for such a claim, he bears the burden of proof. See Weaver, 137
S. Ct. at 1910. Accordingly, we will analyze these most recent three convictions as falling well-
within the ten-year mark of Rule 609(b). See TEX.R.EVID. 609(b)(providing that the ten-year
period for determining the appropriate balancing test is measured from the later of the date of the
conviction or release from confinement).
Although not all of Cortez’s convictions lie outside the ten-year period under Rule 609(b),
both parties appear to generally lump all of Cortez’s convictions together for the balancing test,
and the State analyzes the Theus factors under the more stringent test of Rule 609(b), requiring
that the probative value of those convictions substantially outweighs their prejudicial effect. Thus,
we will also utilize that more stringent test in our overall review of the Theus factors.
As the age of most of Cortez’s convictions is greater than ten years, we would normally
hold that this factor weighs against admission of the accumulated sum of those convictions.
However, the nature and timing of convictions that Cortez accumulated in both the more distant
past and the not-so-distant past leads us to conclude that any prejudice has been sufficiently diluted
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under these circumstances. First, aside from a single conviction for illegal re-entry, all of Cortez’s
convictions are for repeated burglaries. Second, Cortez’s spree of burglaries did not amount to a
solitary period of time in his life that can be neatly partitioned, and instead, his convictions
occurred across four separate dates throughout a nearly ten-year period. And third, three of his
burglaries fall within the ten-year period of Rule 609 for our analysis, as discussed above.
Considering the totality of these specific facts and circumstances, we hold that the more recent,
intervening convictions in Cortez’s criminal history – namely, the five offenses beginning with his
October 2002 illegal re-entry conviction onward – demonstrate an undiminished propensity for
crime that sufficiently dilutes any prejudice stemming from admission of his older convictions
under this Theus factor. See Meadows, 455 S.W.3d at 170 (instructing that intervening convictions
can dilute the prejudice of remote convictions); see also Lynch v. State, No. 08-15-00371-CR,
2018 WL 636265, at *5 (Tex.App.—El Paso Jan. 31, 2018, pet. ref’d)(not designated for
publication)(where this Court held that the second Theus factor favored admission of defendant’s
remote conviction where his other crimes were evenly spread over the twenty-year period between
that first conviction and trial and where his crimes demonstrated a propensity for running afoul of
the law); Cavitt v. State, 507 S.W.3d 235, 258-59 (Tex.App.—Houston [1st Dist.] 2015, pet.
ref’d)(holding that intervening convictions diluted prejudice in introducing a forty-year-old
crime).
Accordingly, we hold that this factor favors admission of Cortez’s convictions.
iii. Similarity of Crimes
If the past crime and charged crime are similar, the third factor will militate against
admission. Theus, 845 S.W.2d at 881. In its brief, the State notes that “Cortez was not on trial for
12
burglary of habitation, but because there was evidence that he entered Herrera’s home without her
consent, this factor likely weights against admission.” The State does not discuss how Cortez’s
conviction for illegal re-entry should be analyzed under this Theus factor, but as the State noted
this factor likely weighs against admission overall, we will assume that Cortez’s single conviction
for illegal re-entry does not affect the balance of this factor here. With these concessions, we will
assume, without expressly so holding, that this factor weighs against admission under these facts.
Accord Chavez v. State, No. 05-17-00795-CR, 2018 WL 2773259, at *4 (Tex.App.—Dallas
June 11, 2018, no pet.)(mem. op., not designated for publication) (holding that the charged
aggravated robbery and the prior offenses of burglary and theft were sufficiently similar to weigh
against admission, even where the elements of those offenses were not identical).
iv. Importance of Testimony and Credibility
The last two factors are related because both depend on the nature of a defendant’s defense
and the means available to him to prove that defense. Theus, 845 S.W.2d at 881. As the Court
stated in Theus, “[w]hen the case involves the testimony of only the defendant and the State’s
witnesses, however, the importance of the defendant’s credibility and testimony escalates. As the
importance of the defendant’s credibility escalates, so will the need to allow the State an
opportunity to impeach the defendant’s credibility.” Id.
In this case, the jury was faced with resolving a “he-said-she-said” conflict between Alan
and Cortez that would determine the outcome of its verdict. Alan testified that Cortez threatened
to kill him and held two knives with which he appeared ready to reinforce that threat. Although
Alan’s testimony was corroborated by other evidence, he was the only person who witnessed the
precise acts by Cortez that constituted aggravated assault – i.e., Cortez’s threat and use or
13
exhibition of knives. By contrast, Cortez testified, as the sole defense witness at trial, that he never
had any knives and never threatened anyone. And in his testimony, Cortez agreed that the case
“boiled down” to who the jury chose to believe.
In distilled form, the jury’s verdict thus turned solely on a credibility determination
between the victim and defendant, and we hold that this factor weighs significantly in favor of
admission because the defendant’s testimony and credibility was of paramount importance here.
See Theus, 845 S.W.2d at 881.
v. Conclusion: Cortez’s Prior Convictions would have been Admissible under Rule 609
Having found that four of the five Theus factors weigh in favor of admission, we
consequently hold that the probative value of Cortez’s accumulated prior convictions substantially
outweighed their prejudicial effect and that his convictions were therefore admissible to attack his
credibility. See TEX.R.EVID. 609(b). At the very least, the trial court would not have abused its
discretion in admitting those convictions in light of the “wide discretion” afforded to it on such an
evidentiary ruling under Rule 609. See Theus, 845 S.W.2d at 880.
As Cortez’s convictions were admissible, trial counsel could not have performed
deficiently by eliciting testimony from Cortez about those convictions on direct-examination or by
failing to object to further testimony about those convictions on cross-examination. See, e.g., Ex
parte Salcido, 2020 WL 1861967, at *7; Gomez, 2012 WL 390970, at *7 (cases where this Court
held that trial counsel cannot commit deficient performance by failing to object to admissible
evidence). Therefore, we overrule Cortez’s first issue presented for review based on his failure to
show deficient performance on his claim, and we need not consider the prejudice component of
this ineffective-assistance claim. See Strickland, 466 U.S. at 687; Rylander 101 S.W.3d at 110.
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C. Issue Two: Whether Trial Counsel Committed Ineffective Assistance by Failing to
Request a Limiting Instruction in the Jury Charge for Cortez’s Prior Convictions
1. Applicable Law
Limiting instructions are governed by Texas Rule of Evidence 105, and this rule provides
that “[i]f the court admits evidence that is admissible against a party or for a purpose--but not
against another party or for another purpose--the court, on request, must restrict the evidence to its
proper scope and instruct the jury accordingly.” TEX.R.EVID. 105(a). For impeachment evidence,
the limited purpose for which the jury should consider such evidence is to determine the credibility
of the witness sought to be impeached. See Walker v. State, 300 S.W.3d 836, 851 (Tex.App.—Fort
Worth 2009, pet. ref’d). A limiting instruction should be given, if requested, both when the
evidence is admitted and then again at the final jury charge. See Ex parte Varelas, 45 S.W.3d 627,
631 (Tex.Crim.App. 2001)(observing that the trial court should give a limiting instruction, if
requested by a defendant, at the time evidence is admitted); see also Delgado v. State, 235 S.W.3d
244, 251 (Tex.Crim.App. 2007)(observing that a limiting instruction should be given in the jury
charge if the defendant requested a limiting instruction at the time the evidence was first admitted).
However, a defendant cannot impeach himself as a witness. Moss v. State, 364 S.W.2d 389,
390 (Tex.Crim.App. 1963); Crow v. State, 648 S.W.2d 17, 18 (Tex.App.—Dallas 1983, no pet.).
Thus, a defendant is not entitled to a limiting instruction where the defendant admits to his prior
convictions in direct-examination. See Bush v. State, 642 S.W.2d 787, 789 (Tex.Crim.App. 1982);
Kirkpatrick v. State, 515 S.W.2d 289, 292 (Tex.Crim.App. 1974); Rodriguez v. State, 687 S.W.2d
505, 508 (Tex.App.—Houston [1st Dist.] 1985, no pet.); Crow, 648 S.W.2d at 18. And counsel
cannot be ineffective for failing to make a meritless argument. See, e.g., Ex parte Miller, No. 08-
11-00245-CR, 2012 WL 5949741, at *3 (Tex.App.—El Paso Nov. 28, 2012, no pet.)(not
15
designated for publication); Montoya v. State, No. 08-01-00452-CR, 2004 WL 1490184, at *9
(Tex.App.—El Paso July 1, 2004, no pet.)(not designated for publication).
Furthermore, this Court has previously observed that “virtually all courts” have declined
to find deficient performance for trial counsel’s failure to request a limiting instruction on
extraneous-offense evidence where the record is silent on the reasons for counsel’s choice:
In [ ] situations involving extraneous offense evidence, virtually all courts have
declined to make a finding of ineffective assistance of counsel on direct appeal
based on a trial attorney’s failure to request a limiting instruction even when an
instruction would have been required if requested. These courts recognize that a
trial attorney may have had a reasonable basis for not requesting a limiting
instruction and in the absence of a record revealing trial counsel’s strategy, have
declined to hold that trial counsel’s failure to request a limiting instruction
amounted to ineffective assistance of counsel.
Villalva v. State, No. 08-13-00219-CR, 2015 WL 4134531, at *5 (Tex.App.—El Paso July 8, 2015,
no pet.)(not designated for publication).
2. Application
For two reasons, we reject Cortez’s claim that his trial counsel committed ineffective
assistance by failing to request a limiting instruction on his prior convictions. First, as discussed
above, trial counsel engaged in reasonable trial strategy by having Cortez admit to his prior
convictions on direct-examination. By choosing that strategy, Cortez was then not entitled to
receive a limiting instruction on those convictions. See Bush, 642 S.W.2d at 789; Kirkpatrick, 515
S.W.2d at 292; Rodriguez, 687 S.W.2d at 508; Crow, 648 S.W.2d at 18. Thus, we hold that trial
counsel’s failure to request an instruction to which Cortez was not entitled could not have
amounted to any deficient performance. See, e.g., Ex parte Miller, 2012 WL 5949741, at *3;
Montoya, 2004 WL 1490184, at *9.
Second, the record is silent about counsel’s rationale behind not requesting a limiting
16
instruction. In an attempt to overcome the ineffective-assistance standard of review providing for
a strong presumption of reasonable assistance, Cortez argues on appeal that trial counsel’s failure
to request a limiting instruction is categorically not a reasonable trial strategy. We recognize that
some errors by trial counsel can constitute deficient performance even without an explanation in
the record from counsel if such errors are so outrageous that no competent attorney would have
engaged in them. See Andrews, 159 S.W.3d at 101. But trial counsel’s decision in this case to not
request a limiting instruction for the defendant’s prior convictions does not belong to this
exceptional category of errors because strategic reasons can be imagined for that decision. See,
e.g., Villalva, 2015 WL 4134531, at *6 (“[S]everal courts have noted that a trial attorney may
reasonably decide, as part of her trial strategy, not to request a limiting instruction because a
limiting instruction may actually have the effect of bringing unwanted attention to the extraneous
offense evidence, and thereby have a negative impact on the defendant’s case.”); Agbogwe v. State,
414 S.W.3d 820, 837 (Tex.App.—Houston [1st Dist.] 2013, no pet.)(“The failure of defense
counsel to request a limiting instruction is not, by itself, ineffective assistance . . . a reasonable
explanation for counsel’s actions can be that, as a trial tactic, counsel did not wish to remind the
jury of those matters.”) [Internal citation and quotations omitted]. Thus, we hold that Cortez has
failed to overcome the strong presumption of reasonable assistance and show deficient
performance on the silent record in this case. See Rylander, 101 S.W.3d at 110-11.
Accordingly, we overrule Cortez’s second issue presented for review based on our holdings
that he failed to show deficient performance on his claim, and as with his first issue on appeal, we
need not consider the prejudice component of this second ineffective-assistance claim either. See
Strickland, 466 U.S. at 687; Rylander 101 S.W.3d at 110.
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IV. CONCLUSION
The trial court’s judgment is affirmed.
November 18, 2020
YVONNE T. RODRIGUEZ, Justice
Before Alley, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
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