### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00483
- CR

Eric John Pedroza , Appellant

v. The State of Texas , Appellee

FROM THE 51ST DISTRICT COURT OF TOM GREEN COUNTY NO. A
- 17
- 0681
- SB , THE HONORABLE CARMEN DUSEK , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Eri c John Pedroza appeals from a judgment of conviction finding him guilty of one count of indecency with a child , see Tex. Penal Code § 21.11(a)(1) , and sentencing hi m to eight years of confinement with the Texas Department of Criminal Justice (TDCJ) . We wi ll affirm the judgment of conviction.

BA CKGROUND

On June 30, 2017 , a grand jury charged Pedroza by indictment with t hree second

- degree felony co unts of sexual assaul t of a child an d one second

- d e gree felony count of indec en cy with a child by contact. T h e in dictmen t alleged the offenses had occurred on o r around June 12, 2 016.

The case was tried to the bench on June 7, 2019

. Prior to trial, Pedroza signed a Waiver and Stipulation of Evidence with respect to Count Four o nl y , and the trial court2

confirmed that Pedroza understood the implications of that signing. In the Waiver and Stipulation, Pedroza stipulated:
[t] hat in T om Green County, Texas, on or about the 12 th day o f June, 2016 [he] did then and there with the inte nt to arouse or grati fy [his] sexu al desire, engage in sexual contact with [the victim], by touching the breast of [victim], a child younger than 17 years of age.

Pedroza “ further agree [d] and stipulate [d] to make restitution to [victim] in the amount of $14 0.00. ” He “ further admit [ t ed] , stipulate [ d ,] and judicially confe ss [ed] that [he is] the identical person named in the indictment . . . and that all the facts and allegations insofar as stated above are true and correct. ”

Pedroza then entered an open p lea of guilty to C ount Four, indecency with a child, and entered plea s of not guilty to Counts One, Two, and Three. As to his guilty plea to
Count Four, the trial court questioned Pedroza regarding the voluntariness of his plea and announced, “I will acce pt your plea of guilt y as to Count Four as being given freely and voluntarily.”

At trial, the State called only one witness

— the alleged victim. She testified tha t at the time of the alleged incident she was a teenager and Pedroza was a neighbor her family ha d invited in to watch movies. She testified that the rest of her family had gone to bed but that she and Pedroz a had r emained alone in the living room to finish watching a movie . She said that at some point she fe ll asleep in an arm chair and woke up t o f ind Pe droza “ doing things ” to her. When asked to clarify or specify what these “ th ings ” were, the witness declined. When asked why she w ould not describe what tr a nspired, she said she did not want to talk about it “ in front of [P edroza]

. ” On cro ss - ex ami na tion , the victim conceded that it is “ possible ” that she had3

previously offered two conf licting re ports of what happened that nigh t

. She also conceded tha t , although she was “ scared ” of Pedroza, she continued texting him f or weeks after the incident.
Li ke t he State, the Defens e called only one witness

— Pedroza ’ s wife , Karen Pedroza . By agreement of the parties an d with appro va l from the bench, Karen testified as to both guilt/ innocence and punishment. Karen devoted most of her testimony to describi ng he r hu sband ’ s medical history. She testified that he had ongoing memor y and neu rological issues due to a case of spinal meningitis h e suffered as a n inf ant. She also described his struggle with diabetes and sever al injuries he had sustained at work. Pedro za ’ s counsel asked to admit Pedroza ’ s medical records, but in absence of anyone to authenticate the records or an accompanying business records affidavit , the cou rt sustained the State ’ s objection to the records.
Ka ren finished her testimony by conce ding that Pedroza had told her he had “ licked ” the vict im.

After both sides res t ed, the trial court asked if e ither party wanted to offer the Waiver and S t ipulation into evidence. The State answered in the affirmative. The trial court asked if Pedroza wi shed to object, and his counsel answered in th e negativ e. The trial court then admitted the Waiver and Sti pulation into evidence as State ’ s Exhibit # 1.

Following closing arguments, t he trial court found Pedroza not guilty as to
Counts One, Two , and Three , an d rendered judgments of acquittal as to tho se counts

. The trial court found Pedroza guilty as to Count Four and rendered a judgment convicting him, as to that count, of the second

- degree felony offense of Indecency with a Child by Con tact. The trial c ourt then sentenced Pedroza to eight years’ co nfinement with TDCJ ’s Institutional Division.

T r ial counse l filed a motion to withdraw, which the trial court granted

. Pedroz a did not file motion for new trial but filed pro se notice of appeal

. The trial c ourt a ppointed4

appellate counsel to file amend ed notic e of appeal

. This appeal of the judgment of conviction with respect to Count Four follow ed

.
DISCUSSION

Pedroza rai ses two issues on appeal. First, he ar gues the trial court “ violated [ his ] due proces s right to a fair trial before a neutral and d etac hed judge during trial to the court on a plea of guilty as to Count Four of the indictment. ” Second, he contends that “ defense counsel rendered ineffective assista nce by failing to obj ect to the trial cour t’s sol icitation of a proffer by the State of the W aive r and Stipulation of Evidence after the State failed to offer it before closing its case and by failing to object to admittance by the court of the Waiver and Stipulation of Eviden ce as an exhibit with out a m otion to reopen by any party. ”

Due Pro cess In h is first issue , Pedroza complains of the admission of the Waiver and Stipulation of Evidence, arguing that h e was denied due process when the trial c ourt solicited admission of this ev idence from the S tate aft er the State had already rested its ca se . Pedr oza, however, did not object to the admission of the Waiver and S t ipulation of Evidence and therefore has not preserved this p urpo rted error for our review. See Tex. R. App. P. 33.1(a) ; Clark v. State , 365 S. W.3d 333, 339 (Tex. Crim. App. 201 2).

In an att empt to overcome his failure to preserve his challenge to the admission , Pedroza argues that the record here reflects a “ struct ural error ” that may be r aised for the first time on appea l. See Mendez v . State , 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) ; Se govia

v. State , 543 S.W.3d 497, 502 (Tex. App.

— H ouston [14th Dist.] 2018 , no pet. )

. “ St ru ctural

error s ” compri se a narrow class of cases involving the deprivation of federal constitutional5

rights. Se e Johnso n v. Un ited States , 520 U.S. 461, 468

– 69 (1 997). Th ese errors include , for example, the total deprivation of t he right to counsel, the absence of an impartial trial judge, the unlawful exclusion of grand jurors of the defendant ’ s race, the denial of the r ight to self

- representation at trial, the d enial of the righ t to a public trial, and the erroneous reasonable

- doubt instruction to the jury. See id. In this case, Pedr oza argues that the trial court ’ s solicitation of the Waiver and Stipulation an d the co urt ’ s subsequent admission of that Waiver and Stipulati on in to evidence reflect a biased judge such that he suffered from structural error. 1

The federal and state constitutions guarantee a defendant the right to an impartial judge. Abdygapparova v . State , 243 S.W.3d 191, 208 (Tex. App.

— San Anton io 20 07, pet. ref ’ d) ( citing Gagnon v. Scarpelli , 411 U.S. 778, 786 (1973), and Brumit v. State , 206 S.W.3d 639, 645 (Tex. Crim. App. 2006)). When a claim of judicial bias is raised, we review the entire re cord to determine if it shows the judge ’ s bias or prej udice den ied the defendant due process. Id . at 198. Absent a strong showing to the contrary, we presume the trial judge was neutral and impartial. Id

. Unfavorable rulings do not alone show judicial b ias or p rejudice; rather, the judicial ruling mus t “co nnote a f avorable or unfavorable disposition or opin ion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to posse ss . . . or because it is excessive in degree.” Id . ( quoting L iteky

v. United States , 510 U.S. 540, 550 (1994)). Specifically, judicial remarks or rulings may show

1 Pedroza also argues that the admission violated Code of Crim inal Procedure ar ticle 36. 0 2 ( “ The court shall allow testimony to be introduced at any time before the argument o f a cause is concl uded, if it appears that it is necessary to a due administration of justice. ” ), but that alleged error is not structural and Pedroza therefore wa ived any challenge by fai ling to ob ject. See Lake v. State , 532 S.W.3d 408, 411 (Tex. Crim. App. 2017) ( “ [W] e treat er ror as “structural” onl y if the Supreme Court has labeled it as such. ” ).6

bias if they reveal “an opinion deriving from an extrajudicial source.” Liteky , 510 U.S. at 555

. When there is no claim of an extrajudici al so urce, jud icial re marks will constitute grounds for reversal “only if they reveal such a high degree of favoritism or antagonism as to make a fair judgment impossible.” Id

. The “high degree of favoriti sm or an tagonism” must be clearly apparent from t he ju dicial re ma rks th emselves without interpretation or expansion of the words. Gaal v. State , 332 S.W.3d 448, 457

– 58 (Tex. Crim. App. 2011).

The record before us belies Pedroza ’ s arguments regarding bias and stru ctural

error . T he trial court opened the tria l by revi ewing th e Waiver and S tipulation with Pedroza and ensuring that Pedroza understood its meaning and implications. When the trial court later asked the parties if either one wanted to admi t the W aiver a nd S t ipulation, and the State an swered in the affir mative, t he trial court expressly gave Pedroza an opportunity to object. The t rial court ’ s treatment of th e Waiver and Sti pulation simply does not re flect the t ype of prejudicial treatment that ri ses to t he level of structural error. Cf

. Johnso n , 520 U.S

. at 468

– 6 9 (offering, as e xample of type o f bias that rises to level of structural error, example of adjudicant that had pecuniar y interest in outcome of case (citing Tumey v. Ohio , 273 U.S. 510 ( 1927) ) ). Nor does it reflect a high degree of fa voritism o r antagoni sm . Liteky , 510 U.S. at 555

. We therefore overrule Pedroza ’ s first issue.

Ine ffective Assistance
In his second issue, Pedroza contends that “ defense counsel rendered ineffective assist a nce by f

ailing to obj ect to the trial court’s soli citation of a pr offer by t he State of the Waiver and Stipulation of Evidence after the State failed to offer it before closing its case and by7

failing to object to admittance by the court of the Waiver and Stipulat ion of Eviden ce as an exhibit without a mo tion to reopen b y any part y. ” We disagree.

“ To establish ineffective assistance of counsel, an appellant must demonstrate by a preponderance of the evidence a deficient performance by counsel and the defe ndant suf fered prejudice as a result

. ” Strickland v . Washington , 46 6 U.S. 668 , 687 (1984); Miller v. State , 548 S.W.3d 497, 499 (Tex. Crim. App. 2018). The appellant must first demonstrate that counsel’s performanc e fell below an objective standard of re asonablen ess under prevailing professional norms. S trickland , 466 U .S. at 687

– 8 8; Ex parte Scott , 541 S.W.3d 104, 115 (Tex. Crim. App. 2017). The appellant must then show the existence of a reasonable probability

— o ne sufficient to undermine confidence in the outc ome

— that the result of the proceeding would have been diffe rent absen t counsel ’ s deficient performance. Strickland , 466 U.S. at 694; Burch

v. State , 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). “Failure to make the required showing of either defi cient per formance or sufficient prejudice defeats th e ineffectivenes s claim.”
S trickland , 466 U.S. at 700; accord Perez v. State , 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

Our review of counsel’s representation is highly deferential; we must “indulge in a strong presumption that counsel’s conduct was not deficient.” Na va v. Stat e , 415 S.W.3d 289,
307

– 08 (Tex. Crim. App. 2013) (emphasis in original) ; see Strickland , 466 U.S. at 689. To rebu t that presumption, a claim of ineffective assistance must be “f irmly fou nded in the record,” and “the record must a ffirmatively dem onstrate” th e meritorious nature of the claim. Menefield

v. State , 363 S.W.3d 591, 592 (Tex. Crim. App. 2012); Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the tria l record by itself be sufficient to demonst rate an ineffect ive

- assist an ce claim. Nava , 415 S.W.3d at 308; see Prine v. State , 537 S.W.3d 113, 117 (Tex. Crim. App. 2017) (observing tha t record on direct appeal “is generally insufficient to show8

th at counse l ’ s performance was deficient”). If trial counsel has not been affor de d the opportunity to explain the reasons for his conduct, we will not find him to be deficient unless the challen ged conduct was “so outrageous that no competent attorney would have eng aged in it.”
Nava , 415 S.W.3d at 308 (quot ing Menefield , 3 63 S.W.3d at 593); Goodspeed , 187 S.W.3d
at 392. Given the high degree of deference we afford to counsel ’ s decision s, Pe droza cannot show ineffec tive assistance here. The trial court open ed the pr oce edings by asking Pedroza about the Waive r and S t ipulati o n of Evide nc e:

THE COURT: I also have in front of me a yellow sheet. It is a document that ’ s

called a Waiver and Stipulation of Evidence. It appears to have bee n signed by you and is d ated toda y, June 7 th

. Did you go over this yellow p iece of paper wi th your la wy er today? PEDROZA : Yes, we did. THE COURT: All right. And you understand everything that you have agreed to

in that document? PEDROZA : Yes. THE COURT: Do you understand that by procee ding with this document today

that you are giving up your r ight to re ma in silent with regard to guilt and innocence in this case? PEDROZA : Yes, ma ’ am. THE COURT: All right.

The trial court then accepted Pedroza ’ s guilty plea with respect to Cou nt Four.

Later, a fter the State had rested and P edro za had waived re buttal, the trial c ourt revi s i ted the W aiver and S tipulati on:9

THE COURT: Counsel, clarify one thing. When we went over, at the beginning,

with the guilty plea we addressed the waiver and stipulati on. Does either party wish to have that ad mitted into evidence? THE STAT E : Yes, Yo ur Honor. We would offer the stipulation of evidence. THE COURT: Any objection to the waiver

— DEFENSE : No, Your Honor. THE COURT:

— and stipulation being admitted? All righ t. The waiver and

stipulation is accepted b y the Court and is adm itted. That will be State ’ s [exhibit number] 1. THE STATE : Yes.

There is no indication in the record, nor does Pedroza contend in his brief, that he asked his attorney to object to the admi ssion. And cou nsel has not been given an o pportunity to explain his deci sion. See id

.

On this record, we cannot consider counsel ’ s decision not to object “ so outrageous that no competent attorney would have ” made the same decision

. See id

. P rior to tri al, c ounsel reviewed the Waiver and Stipu lation with Pedroza to confirm that Pedr oza understood it and wanted to sign and submit it. At the beginning of trial, the presiding judge again confirmed that Pedro za under stood the implications of the W aiver and Stipulation . And following that dialogue , the trial court allo wed Pedr oza to ent er a guilty plea to Count Four and accepted Pedroza ’ s attestation that the guilty was voluntarily given

. This record reveals no reason for counsel to thi nk that hi s client wa nted him to object to the admi ssion

. Further , given Pedro za ’ s guilty plea, counsel ’ s choice not to object to the stipulation could have been part of a strategy to obtain a more lenient sentence.

Pedr oza, however, argues t hat arti cle 36.02 of th e Code of C riminal Procedure requires a motion to reopen t he case before the trial court can admit evidence af t er the parties10

have rested , and thus that his attorney made a mistake by failing to recognize this p urported requirement

. The art icle provides, “ The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice

. ” Tex. C ode Crim. Proc. art. 36.0 2. Pedroza provides n o su ppor t for his const ruction of article 36.02 , as the tw o cases he cit es are inapposite. See Peek v. State , 106 S.W.3d 72, 79 (Tex. Crim. App. 2003); Reeves v. State , 113 S.W.3d 791, 794 (Tex. App.

— Dallas 2003 , no pet. ). In Peek , the defen se sought to reopen th e ca se t o intr oduce medic al records

. See 106 S.W.3d at 73

– 74

. The court denied the motion , the defense appealed, the court of appeals reversed, and the State successful ly sought discretionary review. Id . at 74

– 75

. The Court of Cri minal Appe als agreed w ith the court of appeals, holdi ng that “ a judge should reopen the case if the evidence would materially change the case in the proponent ’ s favor. ” Id . at 79

. The case makes no mention of any motion requiremen t. Reeves , meanwhile, a pplie s the rule from P e ek and then h olds that e ven where the trial court abuses its discretion under Reeves , the appellate court must proceed to a harm analysis to determine whether the a buse results in reversible error. See 113 S.W.3d at 79 4

– 95. Again, the case make s no ment ion of a motio n requireme nt. 2 But even assuming that Pedroza is correct that the trial court could not admit the

2 Moreover, there is some authority suggesting that a court may sua sponte reopen a case wher e the administ ration of justic e so requires. See Martinez v. S tate , 336 S. W.3d 3 38, 341 (Tex. App.

— San Antonio 2010 , no pet. ) ( “ In his first issue, appellant contends the trial court abused its discretion by, sua sponte , admitting th e cheek swabs after both sides rested but before clo sing arguments , [b ut] [w] e disag r ee. ” ); Cubic Energ y, Inc. v. Kees , No. 11

- 03

- 0 0313

- CV, 2004 WL 2066206, at *3 (Tex. App.

— Eastland Sept. 16, 2004 , pet. denied ) (mem. op.) ( holding , under nearly identically worded rule governing civil matt ers, see Tex. R. C iv. P. 270, that whether to sua s ponte reope n case to allow for the admission o f additional evidence is within the

“ sound discretion ” of the trial court) ; Gilmore v. State , 792 S.W.2d 553, 554 (Tex. App.

— Houston [1st Dist.] 1990, no pet.) ( “It is ordinaril y not an abuse of discretion to a llow the Sta te to reopen to correct a deficiency in its evidence.” (citing Granato v. State , 493 S.W.2d 822, 825 (Tex. Crim . App. 1973)) ).11

Waiver and Stipulation with out a motion to reopen the case , and even assuming that counsel made a mistake by failing to rec ognize that purport ed requi rement and o bject , a simple mist ake on the part of an attorney is not alone sufficient to show ineffective assistance of counsel. See, e .g ., Ramirez v. State , 301 S.W.3d 410, 416 (Tex. App.

— Austin 2009 , no p et. ); Killough

v. State , No. 04

- 07

- 00762

- CR, 200 8 WL 5 06286, at * 6 (Tex. App.

— San Anto nio Feb. 27, 2008 ,

no pet. ) (mem. op., n ot de signated for publication ).

Finally , even assuming a deficiency in counsel ’ s failure to object to the admission, Pedroza has not shown how that failure prejudiced hi m . It i s poss ible , as Pe droza
seems to believe, that i f counsel had object ed , the trial court w ould have sustained the objection and would not have admitted the Waiver and Stipulation due to the absence of a motion to
reopen . But it is also possible that the S t ate sim ply would h ave moved th e trial court to r e open the case and that the court would have granted the motion and offered the Waiver and Stipulation

. In short, even i f we assume a deficie nt performance in counsel ’ s failure t o object to the admission of the Wai ver and Sti pula tion , Pe droza ’ s challenge does not undermine our confidence in the outcome of the case, an d he therefore cannot prevail with his ineffect ive

assistance challenge. See Strick land , 466 U.S. at 694; Burch , 5 41 S.W.3d at 820

. We therefore

over rule his se cond issue.

CONCLUSION

We affirm t he judgment of conviction.12 __________________________________________ Edward Smith , Justice Before Ju stices Good win, Kelly, and Smith Affirmed File d: July 9, 20 21 Do Not Publish