Johnny Hernandez v. The State of Texas

San Antonio, Texas - Criminal Defense Lawyer Indecency with a Child charge.

In February of 2018, Hernandez’s then-ten-year-old daughter, A.H., told her mother that

Hernandez touched her “on [her] private part” during an overnight visit. On March 26, 2019, a

Bexar County grand jury charged Hernandez with one count of indecency with a child under 17

by contact. After hearing the evidence, including testimony from A.H., a jury convicted Hernandez

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as charged in the indictment. On December 10, 2019, the trial court sentenced Hernandez to eight

years’ imprisonment. Hernandez now appeals his conviction.

ANALYSIS

Hernandez challenges the sufficiency of the evidence supporting his conviction. He also

argues his trial attorneys provided ineffective assistance of counsel.

Sufficiency of the Evidence

Standard of Review

In reviewing a complaint that the evidence presented at trial is legally insufficient to

support a jury’s guilty verdict, we must determine whether any rational trier of fact could have

found beyond a reasonable doubt the essential elements of the charged offense. See Adames v.

State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). We view the evidence in the light most favorable to the jury’s guilty verdict and resolve

all reasonable inferences from the evidence in its favor. Tate v. State, 500 S.W.3d 410, 413 (Tex.

Crim. App. 2016).

The jury has the sole responsibility “to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 318–19). “Because the

jury is the sole judge of witness credibility and determines the weight to be given to testimony, we

must defer to [] its determinations.” Hines v. State, 383 S.W.3d 615, 623 (Tex. App.—San Antonio

2012, pet. ref’d). “If any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt, we must affirm the trial court’s judgment.” Hernandez v. State, 198

S.W.3d 257, 260 (Tex. App.—San Antonio 2006, pet. ref’d).

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Applicable Law

A person commits indecency with a child under 17 years of age if he, inter alia, “engages

in sexual contact with the child or causes the child to engage in sexual contact[.]” TEX. PENAL

CODE ANN. § 21.11(a)(1). The Texas Penal Code defines sexual contact with a child as, inter alia,

“any touching by a person, including touching through clothing, of the anus, breast, or any part of

the genitals of a child” if that touching is “committed with the intent to arouse or gratify the sexual

desire of any person.” Id. § 21.11(c)(1). Here, the indictment alleged that Hernandez “intentionally

and knowingly engage[d] in sexual contact with [A.H.]” by touching her genitals.

Application

Hernandez does not identify any specific element of the offense that he contends is

unsupported by the evidence. Instead, he challenges the credibility of the testimony offered by

A.H. and her mother and claims A.H.’s medical records do not support a finding that A.H. was

molested. He also notes that he “ha[s] no prior felony convictions” and that “[h]is mother and

brother testified as to his good law-abiding character.” As noted above, however, the jury is the

sole judge of the credibility of the witnesses and the weight to be given to the evidence, and we

must defer to its determinations on those issues. See Hines, 383 S.W.3d at 623.

A.H. testified that Hernandez put his hand in her shorts “on [her] private part” while they

were lying in bed together. She specifically identified her “private part” as “[t]he part I go pee

with.” See Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977) (“Where the child has

sufficiently communicated to the trier of fact that the touching occurred to a part of the body within

the definition of [the applicable statute], the evidence will be sufficient to support a conviction

regardless of the unsophisticated language that the child uses.”). She stated that when she tried to

remove Hernandez’s hand, he forced it “under [her] clothes on [her] skin” and “started to rub [her]

private part.” A.H. also testified that Hernandez “hump[ed]” her and that she heard him groaning

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during the act. Based on this testimony, a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. TEX. PEN. CODE § 21.11; Hernandez, 198

S.W.3d at 260. We therefore overrule Hernandez’s first issue.

Ineffective Assistance of Counsel

Standard of Review and Applicable Law

“To prevail on a claim of ineffective assistance of counsel, the [appellant] must show that

counsel’s performance was deficient and that the deficient performance prejudiced the defense.”

Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim. App. 2017) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984)). To make a showing of deficient performance, the appellant must

demonstrate that his attorney’s conduct fell below an objective standard of reasonableness to the

extent that it “undermined the proper functioning of the adversarial process.” Id. at 116–17. In

reviewing such a claim, we must apply highly deferential scrutiny to trial counsel’s performance.

Mata v. State, 226 S.W.3d 425, 428 (Tex. Crim. App. 2007). The appellant bears the burden to

overcome a strong presumption that his attorney’s conduct was “within the wide range of

reasonable professional assistance.” Prine, 537 S.W.3d at 117 (internal quotation marks omitted).

To meet this burden, the appellant must show that the record “affirmatively demonstrate[s]

trial counsel’s alleged ineffectiveness.” Mata, 226 S.W.3d at 430. The Texas Court of Criminal

Appeals has noted that the record in a direct appeal is often insufficient to present an ineffective

assistance claim, either because “[t]he very ineffectiveness claimed . . . prevent[ed] the record

from containing the information necessary to substantiate such a claim” or because the trial court

record “does not reflect counsel’s reasons for doing or failing to do actions of which the defendant

complains.” Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). Additionally, trial

counsel “should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)

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(internal quotation marks omitted). If trial counsel is not given that opportunity, then the reviewing

court “should not find deficient performance unless the challenged conduct was ‘so outrageous

that no competent attorney would have engaged in it.’” Id. (quoting Garcia v. State, 57 S.W.3d

436, 440 (Tex. Crim. App. 2001)). We may not find trial counsel’s performance deficient “if any

reasonably sound strategic motivation can be imagined.” Lopez v. State, 343 S.W.3d 137, 142–43

(Tex. Crim. App. 2011).

Application

Hernandez contends his trial attorneys’ performance was deficient because they did not:

(1) challenge Juror Number 14, who self-identified as a volunteer with Child Advocates of San

Antonio during voir dire and then subsequently served on the jury; (2) object to purported

“bolstering” testimony by a detective who investigated A.H.’s outcry; or (3) object to a portion of

the State’s closing argument. Hernandez did not file a motion for new trial or otherwise attempt to

develop a record to support his claim of ineffective assistance. See Freeman v. State, 125 S.W.3d

505, 506–07 (Tex. Crim. App. 2003). As a result, the record is silent as to Hernandez’s attorneys’

reasons for failing to take the actions Hernandez argues were required here. See Lopez, 343 S.W.3d

at 143–44. To prevail on his claim of ineffective assistance, Hernandez must therefore show the

challenged conduct was so outrageous that no competent attorney would have engaged in it. See

Menefield, 363 S.W.3d at 593.

Hernandez first complains that his attorneys should have challenged Juror Number 14

because during voir dire, she stated, “I’m a CASA. Does that make a difference to you?” She did

not, however, say anything to indicate this status would bias her against Hernandez or otherwise

influence her view of the evidence. See Notias v. State, 491 S.W.3d 371, 378 (Tex. App.—Houston

[1st Dist.] 2016, no pet.). To the contrary, the record shows both the State and the defense

questioned the entire panel, including Juror Number 14, about whether they could render a verdict

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based solely on the evidence presented at trial, and Juror Number 14 did not indicate an

unwillingness or inability to do so. Under these circumstances, Hernandez has not shown that no

competent attorney would have decided not to challenge Juror Number 14. See Menefield, 363

S.W.3d at 593; Notias, 491 S.W.3d at 378.

Hernandez next complains that his attorneys should have objected to the testimony of San

Antonio Police Department Detective David Bierman. He contends Detective Bierman improperly

bolstered his own testimony by stating he only files about a quarter of the child sex assault cases

he investigates with the district attorney’s office for prosecution. An appellant who claims

ineffective assistance based on a failure to object “must demonstrate that if trial counsel had

objected, the trial court would have committed error by overruling the objection.” Gauna v. State,

534 S.W.3d 7, 12 (Tex. App.—San Antonio 2017, no pet.). Hernandez has not presented any

argument about whether the trial court would have erred by overruling an objection to Detective

Bierman’s purported bolstering. See id. Moreover, as the State notes, our sister court recently

explained that “[w]hether ‘bolstering’ remains a valid objection is in doubt.’” Prestiano v. State,

581 S.W.3d 935, 945 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (citing Rivas v. State, 275

S.W.3d 880, 886–87 (Tex. Crim. App. 2009)). For these reasons, Hernandez has not shown his

trial counsel rendered ineffective assistance by failing to object to Detective Bierman’s testimony.

Gauna, 534 S.W.3d at 12.

Finally, Hernandez argues his attorneys should have objected to the prosecutor’s statement

during closing argument that Hernandez “molested his daughter’s vagina.” He contends that

because there was no evidence of penetration in this case, the State’s phrasing was “inflammatory”

and “place[d] matters before the jury that are outside the record and prejudicial to the accused.”

As the State notes, however, Hernandez appears to have conflated the terms “molestation” and

“penetration.” Cf. Ex parte Nagle, 48 S.W.3d 213, 218 (Tex. App.—San Antonio 2000, no pet.)

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(distinguishing between penetration and molestation “by other means”). Because Hernandez has

not shown the challenged statement was unsupported by the evidence, he also has not shown the

trial court would have erred by overruling an objection to the State’s closing argument. See Gauna,

534 S.W.3d at 12. We therefore reject Hernandez’s assertion that his trial counsel rendered

ineffective assistance by failing to object to the State’s closing argument. See id.

We overrule Hernandez’s second issue

We affirm the trial court’s judgment of conviction.