Opinion filed November 21, 2013



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 11

- 00 366

- CR

__________ LARRY SEGUNDO REYES , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 29 th District Court Palo Pinto County , Texas Trial Court Cause No. 14294

M E M O R A N D U M O P I N I O N
The jury convicted Larry Segundo Reyes of the felony offense of failing to comply with sex offender registration requirements. Appellant entered a plea of true to the enhancement allegation, and the trial court assessed punishment at confinement for fifteen years and a fine of $3,000. In three issues on appeal
,2 Appellant complains that the trial judge was disqualifi ed to hear this case
, that the

pr osecutor engaged in prosecutorial misconduct, and that his trial lawyer provided
him ineffective assistance of counsel. We affirm. In 1995, Appellant was charged with unlawfully carrying a weapon while on licensed premises

. T he trial court ultimately deferred adjudicating his guilt for that
offense and placed him on community supervision . Before Appellant successfully complet ed his period of community supervision
, the State filed a motion to revoke Appellant ’s community supervision and to proceed to a djudication. The State
alle ged several violations : operating a motor vehicle with a suspended license
, fleeing from a police officer
, and sexually assaulting a child under fourteen

. In 1999, the trial court revoked Appellant’s community supervision and adjudicated
hi s guilt on the original offense related to the weapon charge

. Appellant plead ed guilty to aggravated sexual assault of a child under fourteen , and in accordance with a plea bargain, the trial court found him guilty and assessed his punishmen t at confinement for ten year s

. Because of the sexual assault conviction, Appellant was required by law to register as a sex offender for life. Appellant committed the offense that is involved in this appeal when he failed to adhere to the sex offe nder registration requirements. In his first issue, Appellant contends that the trial judge was disqualified
because the trial judge was “‘of counsel for the State’ as the state’s attorney in the underlying [conviction] requiring registration

. ” He was also the prosecutor who prosecuted the weapons case that was used to enhance punishment

. The constitutional and statutory grounds for disqualification of a j udge are mandatory and exclusive and may be raised at any time

. T EX

. C ONST . art. V, § 11;
T EX

. C ODE C RIM

. P ROC

. A NN

. art. 30.01 (West 2006 ); Gamez v. State , 737 S.W.2d 315, 318 (Tex. Crim. App. 1987). A judge is disqualified by statute from presiding3 over any case “where he has been of counsel for the State. ” C RIM

. P ROC

. art. 30.01

. Similarly , a judge is disqualified under the Texas Constitution if he has
“been counsel in the case.” T EX

. C ONST

. art. V, § 11. Under these provisions, a judge is clearly disqualified if he “actively participated in the preparation of the case against the defenda nt.” Gamez , 737
S.W.2d at 31 9

. But the statutory and constitutional prohibition “against a judge hearing a case in which he has acted as counsel requires that he actually have participated in the very case which is before him.” Id. (citing Holifield v. State , 538 S.W.2d 123 (Tex. Crim. App. 1976)). “A judge is not disqualified from sitting because he was counsel in other prosecutions against the accused, even if those prosecutions resulted in convictions which are alleged in the indictment for the

p urpose of enhancement of punishment in the event of conviction of the primary
offense.” Id. at 319 n.6. Here, the trial judge was n either statutorily n or constitutionally disqualified
because he was not “counsel in the case.” The trial judge was the d i strict a ttorney in 1999 when Appellant’s guilt was adjudicated for the weapons offense and when Appellant was convicted of aggravated sexual assault of a child

. The trial judge’s
role as d istrict a ttorney in the underlying conviction requiring sex offender registration and his role in the conviction that was used to enhance punishment
does not come within the meaning of “counsel in the case” as is constitutionally
and statutorily prohibited. Appellant’s firs t issue is overruled. In his third issue, Appellant argues that the State committed prosecutorial
misconduct because it was aware that the trial judge in this case was the district attorney in 1999 . Appellant asserts, “ B y ignoring it, [the prosecutor] co ndoned the judge’s choice to go forth with Mr. Reyes’ [s] trial, and by condoning that action, he accepted the possible consequences.” As discussed above, the trial judge was not disqualified

. Appellant’s third issue is overruled.4 In his second issue, Appellant argues that , for multiple reasons, he was
denied his Sixth Amendment right to effective assistance of counsel. To determine whether Appellant’s counsel rendered ineffective assistance at trial, we must first
determine whether Appellant 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 , 46 6 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 tri al.
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 Appellant must overcome the presumption that, under
the circum stances, 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 t he record must affirmatively demonstrate the alleged
ineffectiveness. Thompson v. State , 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Appellant first contends that counsel’s performance at trial was deficient because counsel failed to move to disqualify the trial judge based on his
involvement in the prior cases . Because the trial judge was not statutorily or constitutionally disqualifi ed, we cannot conclude that trial counsel’s fail ure to object on these grounds fell below the reasonable standard of care. Appellant next contends that trial counsel provided ineffective assistance
when she did not object to the admissibility of the “ pen p acke t ” that contained both prior convictions. Appellant argues that the pen packet was not sufficiently
authenticated because , although the pen packet itself was certified by the custodian5 of records, “not all of the documents [in the pen packet] were certified” by the
district clerk. Appellant cites Ding l er v. State to support his proposition that each of the documents contained in the pen packet must be separately authenticated by the clerk of the convicting court. See Ding l er v. State , 723 S.W.2d 806 (Tex. App.

— Tyler 1987), pet. dism’d , 768 S.W.2d 305 (Tex. Crim. App. 1989). However, in Reed
, the Court of Criminal Appeals overruled Ding l er and concluded
that a Texas Department of Criminal Justice Institutional Division record clerk’s certification of the copies of the judgment is sufficient to authenticate the judgment of a prior conviction under T EX

. R. E VID

. 901. See Reed v. State , 811 S.W.2d 582,
584 , 586 (Tex. Crim. App. 1991). “The requirement of authentication or iden tification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” T EX

. R. E VID . 901. In Reed , the records clerk certified that the copies in the pen packet were “full, true and correct .

. . cop[ies].” Reed , 811 S.W.2d at 587. The Court of Criminal Appeals held that “the TDCJID record clerk’s certification of the pen packet copies of the judgment
and sentence constitutes sufficient extrinsic evidence that the copies are authentic.”
Id. The c ourt explained that, in addition, “[t]he fact that the records are copies of those upon which TDCJID relies in admitting and detaining prisoners at the state correctional facility constitutes extrinsic evidence t hat the records are what the proponent claims them to be.” Reed , 811 S.W.2d at 587 (citing T EX

. R.
E VID

. 901(a)). Here, Vanessa Jones attested that she was the Chairman of Classification and Records for TDCJID and that she was “personally acquainted with the facts
herein stated.” Jones certified that the documents attached to her affidavit “are true and correct copies of t he original records now on file in [her] office.” Additionally, both of the judgments contained in the pen packet were certified by6 the district clerk. We conclude that the TDCJID record chairman’s certification of the pen packet constitutes sufficient e xtrinsic evidence that the copies are
authentic. See id

. Because the pen packet was sufficiently authenticated under Rule 901, trial counsel did not provide ineffective representation when she did not object on authentication grounds. Appellant also argues that the affidavit is not sufficient as a business record affidavit and that the State failed to comply with the notice provisions required for
a business record

. B ecause we conclude that the pen packet was admissible under Rule 901, we need not as sess its admissibility as a business record

. Appellant further maintains that trial counsel provided him with ineffective
assistance when she did not object to the use of the prior conviction for enhancement purpose s on the ground that the judgment does not reflect that Appellant waived his right to a jury trial

. The State argues that such a recital is not necessary in this judgment because an accused is not entitled to a jury in a proceeding to adjudicate guilt. We agree. When a judgment is attacked on direct appeal upon a claim that there is a missing recital that a jury was waived, a jury waiver cannot be presumed from a
silent record. Samudio v. State , 648 S.W.2d 312 (Tex. Crim. App. 1983). But,
when “ collaterally attacked, the judgments reflecti ng those convictions are presumed to be regular, and the accused bears the burden of defeating that presumption.” Williams v. State , 946 S.W.2d 886, 900 (Tex. App.

— Waco 1997, no pet.). The burden is on the party collaterally attacking the validity of the
conviction to show whether the record is indeed silent. West v. State , 720 S.W.2d 511, 519 (Tex. Crim. App. 1986). Although the judgment does not reflect that Appellant waived his right to trial by jury, Appellant did not in troduce “all the papers” in the case to show “ that no waiver was reflected in th os e record s.” See i d

.7 We cannot, then, say that a failure to object on those grounds rendered trial counsel’s representation ineffective. Finally, Appellant argues that trial counsel was ineffective when she did not object to the admission of the prior conviction on the weapon charge

. On appeal, Appellant reasons that the State did not give sufficient notice of its intent to use the prior conviction to enhance pu nishmen t

. A defendant is entitled to notice “in some form” prior to trial that the State intends to use a prior conviction to enhance punishment

. Brooks v. State , 957 S.W.2d 30, 3 4 (Tex. Crim. App. 1997). The right to notice of the State’s intent to
offer evidence of prior convictions is ro o ted in due process. Villescas v. State , 189 S.W.3d 290, 293 (Tex. Crim. App. 2006). The “Court [of Criminal Appeals] no longer requires that notice be provided by allegations in a charging instrument, nor does it requi re that it be given prior to trial.” Ex p arte Parrott , 396 S.W.3d 531, 537 (Tex. Crim. App. 2013). Indeed, if “ a defendant receives notice after he has been convicted, his due

- process rights are not violated as long as notice is
sufficient to enable him ‘ to prepare a defense to them, ’ and he is afforded an opportunity to be heard.” Id. (quoting Pelache v. State , 324 S.W.3d 568, 577 (Tex. Crim. App. 2010)). Thirteen days before the trial in this case, the State filed its “Notice of In t ent to Use Prior Con victions to Enhance Punishment.” The notice reflected that the
S tate would allege the following during the punishment phase: That on the 26th day of March, 1999, in the 29th District Court of Palo Pinto County, Texas, in Cause No. 10193, styled The State of Texas vs. LARRY SEGUNDO REYES , prior to the commission of the primary offense alleged in the indictment in this cause, the defendant in this cause was convicted of the felony offense of Unlawfully Carrying a Weapon While on Licensed Premises, and said conviction became final prior to the commission of the primary offense alleged in the indictment in this cause.8 At the beginning of the punishment hearing, the prosecutor read the above paragraph to the trial court

. We conclude that the State sufficiently gave notice of its intent to offer evidence of the 1999 conviction by filing its notice thirteen days before trial. Accordingly, trial counsel did not provide ineffective assistance of
counsel when she did not object to this evidence

. The failure to obj ect does not constitute ineffective assistance of counsel if the evidence was not objectionable.
McFarland v. State , 845 S.W.2d 824, 846 (Tex. Crim. App. 19 92 )

. We have examined each of Appellant’s ineffective assistance claims. None
are well

- taken
, and Appellant’s second issue is overruled. We affirm the judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

November 21, 2013 Do not publish. See T EX

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. P. 47.2(b).
Panel consists of: Wright, C.J., Willson, J., and Bailey, J