Opinion filed May 23, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00123-CR

__________

DANIEL GARCIA HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR37118

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

The jury convicted Daniel Garcia Hernandez of two counts of aggravated 

assault with a deadly weapon and assessed his punishment at confinement in the 

Institutional Division of the Texas Department of Criminal Justice for a term of 

two years on each count. The trial court sentenced him accordingly and ordered 
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his sentences to run concurrently. Because we find that defense counsel’s 

assistance was ineffective, we reverse and remand.

Hernandez presents three issues for review. In his first issue, Hernandez

alleges that he was denied effective assistance of counsel. In his second issue, he 

contends that the trial court erred when it admitted evidence of prior convictions

over his Rule 403 objection. See TEX. R. EVID. 403. Hernandez argues in his third 

issue that the evidence was legally insufficient.

We will first review whether the evidence was sufficient. We review the 

sufficiency of the evidence under the standard of review set forth in Jackson v. 

Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. 

App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, 

pet. ref’d). Under the Jackson standard, we examine all of the evidence in the light 

most favorable to the verdict and determine whether, based on that evidence and 

any reasonable inferences from it, any rational trier of fact could have found the 

essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 

319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

The evidence produced during the State’s case-in-chief showed that 

Hernandez met his ex-wife, Marisela Garcia, at a Shell gas station in Midland to 

drop off their two children after spending time with them during his Thursday 

night visitation period. Marisela’s current husband, Marco A. Garcia, who was her 

boyfriend at the time of the incident, accompanied her to pick up the children. 

Michael Wayne Gillis, an employee of the gas station, was outside smoking a 

cigarette and observed the exchange.

Marisela and Marco arrived at the gas station in a pickup, and Hernandez 

arrived in a white Volvo. Both parties parked on the north side of the gas pumps. 

Hernandez’s son, C.H., and his daughter, G.H., got out of his Volvo and walked 

toward the pickup. Marco got out of the pickup and walked over to the Volvo to 
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see why Hernandez was yelling. C.H. got in the pickup, and G.H. stood outside 

the pickup next to Marco. Hernandez remained in his Volvo; the windows were 

up. Hernandez and Marco had a heated conversation and began yelling at each 

other through the window. Hernandez drove toward one of the gas station exits at 

a high rate of speed. Gillis testified that it sounded like the Volvo pulled away 

going “full throttle.”

Instead of exiting, Hernandez made a U-turn and came back around toward 

the pickup. He quickly accelerated and drove toward Marco and G.H. Marco 

pushed G.H. back and jumped back toward the pickup. Hernandez veered away, 

but not until Marco and G.H. were already out of harm’s way. The mirror on

Hernandez’s vehicle was in front of Marco’s chest when Hernandez drove past. 

Marco testified that he felt threatened for his life and for G.H.’s life when 

Hernandez was driving toward them at a high rate of speed. There was no doubt in 

his mind that he and G.H. would have been hit if they had not moved out of the 

way. Gillis testified that he could not see exactly how close Hernandez came to 

hitting Marco and G.H. but that, if they had not jumped back, they probably could 

have been hit. Marisela also testified that, if Marco and G.H. had not moved, 

Hernandez would have hit them. On cross-examination, she testified that she did 

not recall telling the police that, when Hernandez got close to hitting Marco, he 

“veered off” and drove out of the parking lot.

After Hernandez drove by Marco and G.H., he made another U-turn, drove 

past the south side of the pumps, and exited the parking lot. Gillis called the police 

because he “didn’t feel right about a little kid’s life being put that close to danger.”

Marco, Gillis, and Marisela testified that Marco did not try to hit Hernandez

with his fists, try to punch the Volvo’s window, or try to do anything else

aggressive toward Hernandez. They further testified that there was nothing 
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blocking Hernandez from exiting the gas station and that he could have exited

without a problem if he had wanted to. 

During his case-in-chief, Hernandez testified that he arrived at the Shell 

station to drop off his children and was telling them goodbye when Marco started 

banging on his window with a closed fist. Marco was yelling at him to “[g]et the 

f--k out.” Hernandez testified that Marco constantly antagonized him and tried to

get him to fight by making gestures toward him and calling him names. He drove 

off because he was afraid of what Marco was going to do. Hernandez never got 

out of his car, never rolled down his window, and never said anything to Marco.

Hernandez tried to exit the parking lot but was not able to because of traffic. 

He drove back around toward the other exit, and Marco lunged at him. Because he 

could not get out of that exit either, he drove back toward the first exit and finally 

was able to exit the parking lot. Hernandez testified that he did not recall driving 

at a high rate of speed and that he did not have any intention to strike anyone or put 

anyone in fear of bodily injury. He did not see his daughter standing outside the 

pickup and would never place her in danger; he would do anything to protect her. 

His intention was to get away from the parking lot as soon as he could because of 

Marco. Hernandez agreed that he may have consciously disregarded the 

possibility that his vehicle could have hit someone, and he stipulated that a motor 

vehicle could be a deadly weapon. 

C.H. testified that he had to get out of the car very quickly because Marco 

was there and because he knew that Marco was going to try to start something. 

After C.H. got out of the car, Marco went over to the car and started hitting 

Hernandez’s window and cursing. Hernandez drove off and tried to exit, but was 

unable to because of a long line of traffic. C.H. said that his dad turned around and 

exited at the other side of the parking lot. C.H. said that G.H. was not outside the 

pickup but that she was in it with him.
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The defense called several witnesses who testified that they had observed 

Hernandez’s relationship with his children and that he loved his children and had a 

close relationship with them. Jeanette Lynn Sanchez, an ex-girlfriend of 

Hernandez, also testified on behalf of the defense. She testified about multiple 

times that she had observed Marco act aggressively toward Hernandez. Marco 

called him names, such as “faggot”; laughed at him; threw his hands up at him; and 

made gestures toward him. On rebuttal, Marisela testified that Hernandez also 

called Marco names and that both men started fights with each other.

Although several witnesses testified on behalf of Hernandez and although 

Hernandez testified that he had no intention to strike Marco and was not aware that 

his daughter was standing outside the pickup, the jury, as the trier of fact, was the 

sole judge of the credibility of the witnesses and of the weight to be given their 

testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007), art. 38.04 (West 

1979). As such, the jury was entitled to accept or reject any or all of the testimony 

of any witness. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). 

We have reviewed the evidence in the light most favorable to the verdict, and we 

hold that a rational trier of fact could have found beyond a reasonable doubt that 

Hernandez committed the offense of aggravated assault with a deadly weapon

against Marco and G.H. Hernandez’s third issue on appeal is overruled.

In his first issue, Hernandez alleges that he was denied effective assistance 

of counsel. Specifically, he asserts that his trial counsel opened the door to allow 

the State to introduce evidence of his prior convictions of sexual assault and sexual 

assault of a child when his counsel asked Sanchez, Hernandez’s ex-girlfriend,

whether Hernandez was a violent person and she responded that he was not. 

Hernandez also contends that his trial counsel was ineffective when he (1) failed to 

object when the prosecutor asked Sanchez about the time Hernandez assaulted her,

(2) failed to object to Hernandez’s community supervision officers’ testimony, and 
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(3) failed to object when the prosecutor asked Hernandez about doing bad things in 

front of children.

In order to determine whether Hernandez’s trial counsel rendered ineffective 

assistance at trial, we must first determine whether he has shown that his counsel’s 

representation fell below an objective standard of reasonableness and, if so, then 

determine whether there is a reasonable probability that the result would have been 

different but for his counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687

(1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); 

Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986). A reasonable 

probability is a probability sufficient to undermine confidence in the outcome of 

the trial. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55. We must 

indulge a strong presumption that counsel’s conduct fell within the wide range of 

reasonable professional assistance, and Hernandez must overcome the presumption 

that, under the circumstances, the challenged action could be considered sound trial 

strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. 

Crim. App. 2000). An allegation of ineffective assistance of counsel must be 

firmly founded in the record, and the record must affirmatively demonstrate the 

alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 

1999). 

Hernandez contends that the first instance of ineffective assistance of 

counsel occurred when his counsel asked Sanchez, Hernandez’s ex-girlfriend,

whether Hernandez was a violent person and she responded that he was not. 

Defense counsel opened the door for the State to introduce evidence of 

Hernandez’s character for violence by eliciting testimony from Sanchez that 

Hernandez was not a violent person. See TEX. R. EVID. 405(a) (when evidence of a 

person’s character is offered in the form of opinion testimony, the opposing party 

may ask the witness whether they know about specific instances of conduct that are 
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relevant to the character trait). Thus, on cross-examination, the State was 

permitted to ask Sanchez whether she knew that Hernandez had pleaded guilty to 

two prior sexual assaults even though under TEX. R. EVID. 609(c)(2) the 

convictions were otherwise inadmissible. Rule 609(c)(2) prohibits the admission 

of prior convictions in which the defendant successfully completed probation. 

The parties specifically addressed this issue during a hearing on Hernandez’s

pretrial motion regarding the admissibility of his prior convictions for 

impeachment purposes. During the pretrial hearing, the State agreed that 

Hernandez’s prior convictions could not come in under Rule 609(c)(2) as 

impeachment evidence because Hernandez successfully completed probation. 

However, the State argued that the prior convictions could become admissible if 

Hernandez opened the door by presenting evidence that he was a good person or a 

law-abiding citizen. Defense counsel acknowledged that this could be possible,

and the trial court instructed the State to approach the bench if it believed 

Hernandez opened the door.

When the parties approached the bench after defense counsel opened the 

door, defense counsel immediately requested that he be allowed to withdraw the 

question so that the State could not present evidence of Appellant’s prior 

convictions. The indication is that defense counsel realized that he had opened the 

door to the admission of the otherwise inadmissible evidence. The trial court did 

not permit counsel to withdraw the question and it permitted the State to ask 

Sanchez whether she knew Hernandez had pleaded guilty to two prior sexual 

assaults.

In Robertson v. State, defense counsel, as part of his trial strategy to 

convince the jury that the defendant was not a liar, asked the defendant during 

direct examination about the defendant’s two prior convictions. Robertson v. 

State, 187 S.W.3d 475, 477, 480–81 (Tex. Crim. App. 2006) (Robertson I). 
8

During a hearing on the motion for new trial, defense counsel testified that he now 

knew that the convictions were not admissible for impeachment purposes because 

the cases were pending on appeal. Id. at 481 (inadmissible under TEX. R.

EVID. 609). The court stated:

[I]n cases like this where appellant’s self-defense claim rested almost 

entirely on his credibility, the weight of authority supports a holding 

that appellant’s trial lawyer performed deficiently under the first 

prong of Strickland by allowing the jury to hear prejudicial and 

clearly inadmissible evidence because this evidence could serve no 

strategic value including demonstrating that appellant is not a liar.

Id. at 484. The court remanded the case to the court of appeals to address the 

second prong of Strickland. Id. at 486. On remand, the court of appeals found that 

the defense was prejudiced by counsel’s deficient performance because the 

deficient performance undermined the defendant’s credibility, which was critical to 

his claim of self-defense. Robertson v. State, 214 S.W.3d 665, 668 (Tex. App.–

Waco 2007, no pet.).

Similarly, in Ex parte Menchaca, the Court of Criminal Appeals held that 

defense counsel’s assistance was ineffective when counsel failed to object to 

inadmissible prior convictions because such a decision could not be considered 

sound trial strategy and because the deficient performance undermined the 

defendant’s credibility, which was at the very heart of his defense. Ex parte 

Menchaca, 854 S.W.2d 128, 133 (Tex. Crim. App. 1993). Relying on Robertson I

and Ex parte Menchaca, we recently held that defense counsel’s performance fell 

below an objective standard of reasonableness when defense counsel, during the 

defendant’s direct examination, elicited evidence of two prior convictions that 

were inadmissible under Rule 609. Vasquez v. State, No. 11-10-00334-CR, 2012 

WL 4826966, at *5–6 (Tex. App.—Eastland Oct. 11, 2012, pet. ref’d) (mem. op., 

not designated for publication). We further held that the defendant met the second
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prong of Strickland because the evidence of the prior convictions, the prosecutor’s 

cross-examination of the defendant regarding his prior convictions, and the 

prosecutor’s closing argument implied that the defendant was not to be believed. 

Id. at *6. 

Here, defense counsel opened the door to Hernandez’s prior convictions and 

allowed prejudicial and otherwise inadmissible evidence to be presented before the 

jury. We are aware that we must indulge a strong presumption that counsel’s 

conduct fell within the wide range of reasonable professional assistance. We are 

also aware that Hernandez must overcome the presumption that, under the 

circumstances, the challenged action could be considered sound trial strategy. 

Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. We cannot see how the 

challenged action in this case could be considered sound trial strategy. Because 

Hernandez has shown that his counsel’s representation fell below an objective 

standard of reasonableness, he has met the first prong of Strickland.

We must next determine whether there is a reasonable probability—a 

probability sufficient to undermine the outcome of the trial—that the result of the 

proceeding would have been different but for defense counsel’s deficient 

performance. Strickland, 466 U.S. at 687, 694; Hernandez, 726 S.W.2d at 55–57. 

We consider the totality of the evidence in determining whether counsel’s 

performance prejudiced the defense. Strickland, 466 U.S. at 695–96. 

Here, defense counsel opened the door for the State to cross-examine 

Sanchez on whether she knew of Hernandez’s prior convictions for sexual assault. 

Defense counsel then called Kimberly Rogers, who works for the Adult Probation 

Department, to testify that Hernandez had successfully completed probation on 

both of his prior convictions. However, defense counsel also elicited testimony 

from Rogers that Hernandez did not follow all of the rules of his probation. On 

cross-examination, the State was able to elicit testimony that, even though 
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Hernandez completed his probation, Rogers had concerns regarding his 

rehabilitation and was specifically concerned for the safety of his ex-wife. When 

Hernandez testified, the State questioned him regarding the two prior convictions 

and specifically asked him how he could claim that he would never do anything 

bad in front of children when he had been convicted of sexually assaulting a child. 

During closing arguments, defense counsel emphasized that the prior convictions 

occurred many years ago, that the defendant had completed probation on both 

charges, that he had not re-offended, and that he was not restricted from seeing his 

children in any way because of his past. The prosecutor emphasized that there was 

not a more violent crime than sexual assault, besides murder, that could be 

committed against a child. He also argued that the two prior convictions showed

Hernandez’s violent nature, stating: “That’s the kind of person this man is.”

Hernandez contends that the result of the proceeding would have been 

different because, if counsel had not opened the door, Hernandez could have 

testified without the jury knowing of his prior sexual assault convictions. He 

claims that the credibility of the parties was vital in this case and that, because of 

counsel’s errors, the jury was not going to believe him. Hernandez’s defense was 

that he was trying to get away from Marco and that he had no intention to hurt 

anyone. Thus, the credibility of his testimony was a key component of his defense 

strategy. Although the trial court gave the jury a limiting instruction as to how it 

could consider the prior convictions, the limiting instruction specifically allowed 

the jury to consider Hernandez’s prior convictions for the sole purpose of 

determining Hernandez’s character for violence.

1

 We find that Hernandez has 

shown that there is a reasonable probability that the result of the trial might have 

been different but for his counsel’s deficient performance. Hernandez has met the 

 1

In the jury charge, the trial court instructed the jury that it could only consider the prior convictions to aid 

the jury in passing upon the credibility of Sanchez. 
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second prong of Strickland, as to the first instance of ineffective assistance of 

counsel that he raised. Without reaching the other instances of alleged ineffective 

assistance of counsel, we sustain his first issue. 

Because we have sustained Hernandez’s first issue, we need not address 

Hernandez’s second issue.

We reverse the judgment of the trial court, and we remand the cause for 

further proceedings.

JIM R. WRIGHT

CHIEF JUSTICE

May 23, 2013

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.