Full Opinion (html_with_citations)

Affirmed and Memorandum Opinion filed December 12, 2023




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-22-00732-CR

                JOSE AZAEL ZAMBRANO-PEREZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 209th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1614869

                         MEMORANDUM OPINION

      Appellant Jose Azael Zambrano-Perez was charged with continuous sexual
abuse of a child. See Tex. Code Crim. Proc. Ann. art. 21.02. Appellant was
accused of sexually abusing his step-daughter, the complainant, starting when she
was five years old and continuing until she was ten years old. The complainant
lived with the appellant and testified he penetrated her orally and anally once or
twice a week.

      A jury found appellant guilty and sentenced him to thirty-five years in
prison. In his only issue, appellant maintains that his trial counsel was ineffective
because he failed to object to hearsay testimony in medical records, which caused
prejudice. Finding no error, we overrule appellant’s issue and affirm the judgment
of the trial court.

                      Standard of review and applicable law
       To succeed on an ineffective-assistance claim, the defendant must show that:
(1) counsel's performance was deficient and (2) the deficient performance
prejudiced the defense. Garza v. State,
213 S.W.3d 338, 347
 (Tex. Crim. App.
2007) (citing Strickland v. Washington,
466 U.S. 668
 (1984)). To show deficient
performance, the defendant must prove by a preponderance of the evidence that his
counsel's representation fell below the standard of professional norms. Garza, 213
S.W.3d at 347–48. To demonstrate prejudice, the defendant must show a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Id. at 348. Appellant bears the burden of
proving ineffectiveness by a preponderance of the evidence. Perez v. State,
310 S.W.3d 890, 893
 (Tex. Crim. App. 2010). Unless appellant can prove both prongs,
an appellate court must not find counsel's representation to be ineffective. Lopez v.
State,
343 S.W.3d 137, 142
 (Tex. Crim. App. 2011).
                               Deficient performance
       To satisfy Strickland’s first prong, appellant must prove that trial counsel's
performance fell below an objective standard of reasonableness under the
prevailing professional norms. Lopez,
343 S.W.3d at 142
. An appellate court must
make a strong presumption that counsel's performance fell within the wide range of
reasonably professional assistance.
Id.
 In short, there is a strong presumption that
trial counsel's actions and decisions were reasonably professional and were



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motivated by sound trial strategy. Dewitt v. State,
651 S.W.3d 669
, 673 (Tex.
App.—Houston [14th Dist.] 2022, no pet.)
      For an appellate court to find that counsel was ineffective, counsel's
deficiency must be affirmatively demonstrated in the trial record; the court must
not engage in retrospective speculation. Lopez,
343 S.W.3d at 142
. It is not
sufficient that appellant show, with the benefit of hindsight, that his counsel's
actions or omissions during trial were merely of questionable competence.
Id.
 at
142–43. If trial counsel’s deficient performance is not apparent from the record,
“we will assume that counsel had a strategy if any reasonably sound strategic
motivation can be imagined.”
Id.
 Reasonably effective assistance of counsel does
not mean error-free representation. Dewitt, 651 S.W.3d at 673.
      If counsel’s reasons for his conduct do not appear in the record and there is
at least the possibility that the conduct could have been grounded in legitimate trial
strategy, we will defer to counsel’s decisions and deny relief on an ineffective
assistance claim on direct appeal. Garza,
213 S.W.3d at 348
. Moreover, when the
record is silent as to trial counsel's strategy, we will not conclude that appellant
received ineffective assistance unless the challenged conduct was so outrageous
that no competent attorney would have engaged in it. Lopez v. State,
565 S.W.3d 879, 886
 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). In the majority of
cases, the record on direct appeal is simply too undeveloped and insufficient to
permit a reviewing court to fairly evaluate the merits of an ineffective assistance of
counsel claim. See Lopez,
343 S.W.3d at 143
.
      In the case at hand, appellant alleges his counsel was ineffective because he
failed to object to inadmissible hearsay. To succeed with an ineffective-assistance-
of-counsel claim based on counsel’s failure to object, one must show that the trial
judge would have committed error in overruling such objection. Ex parte Parra,
420 S.W.3d 821
, 824–25 (Tex. Crim. App. 2013). An isolated failure to object to
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certain procedural mistakes or improper evidence does not constitute ineffective
assistance of counsel. Ingham v. State,
679 S.W.2d 503, 509
 (Tex. Crim. App.
1984). An appellate court should be especially hesitant to declare counsel
ineffective based upon a single alleged miscalculation during what amounts to
otherwise satisfactory representation, especially when the record provides no
discernible explanation of the motivation behind counsel's actions—whether those
actions were of strategic design or the result of negligent conduct. Thompson v.
State,
9 S.W.3d 808, 814
 (Tex. Crim. App. 1999).
       Here, appellant specifically argues that trial counsel was ineffective because
he failed to object to inadmissible hearsay within medical records. Thus, we
examine the rule against hearsay and its various exceptions. Hearsay is an out-of-
court statement that is offered into evidence for the truth of the matter asserted.
Grimm v. State,
496 S.W.3d 817, 826
 (Tex. App.—Houston [14th Dist.] 2016, no
pet.). It is generally inadmissible. Tex. R. Evid. 802. Hearsay within hearsay is
admissible “if each part of the combined statements conforms with an exception to
the hearsay rule.” Tex. R. Evid. 805; Knox v. Taylor,
992 S.W.2d 40, 64
 (Tex.
App.—Houston [14th Dist.] 1999, no pet.). Business records—such as the medical
records at issue—are admissible under an exception to the rule against hearsay if
four requirements are met: (1) the records were made and kept in the course of a
regularly conducted business activity, (2) it was the regular practice of the business
activity to make the records, (3) the records were made at or near the time of the
event that they record, and (4) the records were made by a person with knowledge
who was acting in the regular course of business. Tex. R. Evid. 803(6); In re
E.A.K.,
192 S.W.3d 133
, 141 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
An appellant challenging the admissibility of a statement as hearsay bears the
burden of showing that the statement is, in fact, hearsay. Beal v. State,
520 S.W.2d 907, 911
 (Tex. Crim. App. 1975).
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                                      Analysis
      Appellant argues trial counsel was deficient when he did not assert a hearsay
objection to certain pages of the medical records in which the complainant reported
that appellant sexually assaulted her sister. The first reference is contained in a
transcribed copy of an interview between the complainant and a sexual assault
nurse examiner. The nurse asked the complainant if the appellant has sexually
abused anyone else, and the complainant responded, “my sister.”             The next
reference is contained in hospital notes of an interview with the complainant. The
records state the following:

      Pt reports that her step father used to sexually assault his own 10 y/o
      daughter in the past.
      Patient stated step-father also does bad things to her sister. . .When the
      nurse asked what part the step-father used, the patient pointed to the
      front area. Then the nurse asked patient where the step-father puts that
      part and patient pointed to the buttocks and vagina area. Patient stated
      step-father also makes her suck and touch it. Patient stated this has
      been happening since she was 5 years old. Patient also disclosed this
      happens to her sister[.]

      Appellant recognizes the medical records as a whole fall within the business
record exception to the rule against hearsay. See Tex. R. Evid. 803(6). But he
argues that the three references quoted above constitute hearsay within hearsay and
that each statement must independently meet a hearsay exception to be admissible.
See Tex. R. Evid. 803(6); Tex. R. Evid. 805. Appellant contends these portions of
the medical records do not fall under the medical diagnosis hearsay exception
under Tex. R. Evid. 803(4). See Tex. R. Evid. 803(4); Green v. State,
191 S.W.3d 888, 895
 ((Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). (“Rule 803(4)
provides an exception to the hearsay rule for “[s]tatements made for the purposes
of medical diagnosis or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the cause or

                                          5
external source thereof insofar as reasonably pertinent to diagnosis or treatment.”)
Therefore, he argues they are inadmissible hearsay, and trial counsel performed
deficiently when he failed to object to their admissibility at trial.

       The record is silent as to why appellant’s trial counsel did not object to the
statements alleging appellant also abused his other daughter, the complainant’s
sister. 1 This court assumes the attorney’s choice to not object was part of a
reasonable trial strategy. See Thompson,
9 S.W.3d at 814
 (When “the record
provides no reference to explain why counsel chose not to object, or failed to
object, when the prosecutor doggedly pursued the introduction of inadmissible
hearsay,” it is not an error sufficiently egregious to satisfy the first prong of
Strickland as a matter of law.”); see also Walker v. State,
676 S.W.3d 213
, 226
(Tex. App.—Houston [14th Dist.] 2023, pet. filed) (“no deficient performance on a
silent record as to why counsel failed to object to inadmissible hearsay.”). One
rational and plausible reason why counsel may have chosen not to object is to
avoid emphasizing the evidence. See Ferreira v. State,
514 S.W.3d 297, 304
 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d) (Holding counsel is not ineffective
for wanting to avoid drawing attention to evidence that may further damage his
client's case.).
       Further, appellant’s argument is based on the premise that the cited
assertions within the medical records constitute hearsay statements. But it is not
clear that they are. An appellant bears the burden of showing that a statement
claimed to be hearsay is in fact hearsay. Beal,
520 S.W.2d at 911
. Here, the record
does not reveal the source of the complainant’s knowledge. He does not establish
how the complainant came to believe appellant also sexually abused her sister. If
the complainant was told by her sister that appellant had sexually abused her, then
       1
          In a hearing on a motion for a new trial on an unrelated issue, the trial counsel attributed
all decisions made during the trial as part of trial strategy.

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the sister’s statement to the complainant as reflected in the medical records would
constitute a separate hearsay statement. If, on the other hand, the complainant
knew that appellant sexually abused her sister because the complainant saw the
abuse happen, then the challenged assertions are not hearsay but are based on the
complainant’s personal knowledge. See Beal,
520 S.W.2d at 911
. Because it is
not clear that the complainant’s statements accusing appellant of sexually
assaulting her sister are inadmissible hearsay, appellant has failed to show the trial
judge would have committed error in overruling an objection to the statements.2
See id.; Rodriguez v. State,
398 S.W.2d 124, 127
 (Tex. Crim. App. 1965) (“[T]he
answer of the witness does not appear to be hearsay. The source of her knowledge
was not shown.”). Thus, we conclude that, on this record, appellant has not
demonstrated that his counsel’s performance was so outrageous that no competent
attorney would have engaged in it. Consequently, appellant has failed to meet his
burden to prove the first prong of the ineffective assistance of counsel analysis.
We need not address the second Strickland prong. Strickland,
466 U.S. at 687
.

                                         Conclusion

       Because appellant failed to satisfy the first prong of the ineffective
assistance of counsel analysis, we affirm the judgment of the trial court.




                                             /s/       Ken Wise
                                                       Justice




       2
         Appellant does not argue that his counsel was deficient for failing to develop the record
to show the source of complainant’s knowledge that appellant abused her sister in order to
establish that the challenged statements were hearsay.

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Panel consists of Chief Justice Christopher, and Justices Wise and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).




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