Petition for Writ of Certiorari — Gilbert Sanchez, Petitioner v. Texas

APPENDIX A

WHITE CARD DENIAL FROM THE TEXAS COURT OF

CRIMINAL APPEALS.

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS FILE COPY

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

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2/24/2021

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SANCHEZ, GILBERT

Tr. C|^Np.'ip10D0274S-120

WR-84,766-03

This is to advise that the Court ras ^tegied wittioj#written order the motion for leave

to file the original application for wMf fiaFSlTs'/eorpus.

Deana Williamson, Clerk

GILBERT SANCHEZ

CLEMENTS UNIT - TDC # 1712910

9601 SPUR 591

AMARILLO, TX 79107-9606

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

FILE COPY

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Tr. Ot. No. 2®fflW27^120

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SANCHEZ, GILBERT

On this day, the motion for leaveMo rite the oriPjindr application for writ of habeas

corpus and original application for wriTof bab,ea^ corpus has been received and

presented to the Court.

Deana Williamson, Clerk

&si

GILBERT SANCHEZ

CLEMENTS UNIT - TDC # 1712910

9601 SPUR 591

AMARILLO, TX 79107-9606

1

APPENDIX B

Petitioner’s

“MOTION

FOR

LEAVE

TO

FILE

EXTRAORDINARY WRIT TO REVIEW THE TRIAL

COURT’S ORIGINAL GRANTING OF A NEW TRIAL

WITH ATTACHED BRIEF IN SUPPORT.

GILBERT SANCHEZ

TDCJ-CID#1712910

WILLIAM CLEMENTS UNIT

9601 SPUR 591

AMARILLO, TEXAS

79107-9606

HONORABLE CLERK

COURT OF CRIMINAL APPEALS

P.O. BOX 12308, CAPITAL STATION

AUSTIN, TEXAS

78711

Dear Honorable Clerk:

Please find enclosed for presentation to the Honorable Justices, my

“MOTION FOR LEAVE TO FILE EXTRAORDINARY WRIT TO

REVIEW THE TRIAL COURT’S ORIGINAL GRANTING OF A

NEW TRIAL WITH ATTACHED APPLICATION BRIEF IN

SUPPORT,” for their consideration.

Thank you in advance for your time and attention in this matter.

Sincerely,

Gilbert Sanchez

IN THE TEXAS

COURT OF CRIMINAL APPEALS

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From a Judgment & Sentence rendered in the

120th District Court from El Paso County

Court of Appeals No. 08-11-00137-CR

Court of Criminal Appeals No. WR-84,766-01

IN RE:

GILBERT SANCHEZ, RELATOR

MOTION FOR LEAVE TO FILE EXTRAORDINARY WRIT

TO REVIEW THE TRIAL COURT’S ORIGINAL GRANTING OF A NEW

TRIAL WITH ATTACHED APPLICATION BRIEF IN SUPPORT

TO THE HONORABLE JUSTICES OF SAID COURT:

Comes now, Gilbert Sanchez, (herein after “Relator”), under Rule 72.1

of the Texas Rules of Appellate Procedure, and Article V., §5 of the Texas

Constitution. Relator submits his Application for Extraordinary Writ,

-l-

asking this Court to review the trial court’s original decision to grant

Relator a new trial which was ultimately denied by the Eighth Court of

Appeals resulting in Relator serving an illegal sentence (actual innocence),

denial of due process. Under any exception to the procedural default,

Relator’s claim demonstrates that he is actually innocent of the underlying

claim, Relator’s claim represents a fundamental miscarriage of justice

resulting in a fundamentally unjust incarceration. Relator will show this

Court the following in support of same.

INTRODUCTION

In 1978, the Legislature amended the Texas Constitution to broaden this

Court’s power to grant extraordinary relief in cases involving criminal

matter. The Texas Legislature expanded the writ power of this Court to

include among other Writ powers, motions that are extraordinary in

character. In determining the specific nature of the extraordinary relief

sought, the Court will not be limited by the denomination of the pleadings,

but will look to the essence of the pleadings, including prayers, as well as

the record. See Wade vMays, 689 S.W2d 893 (Tex.Crim.App.1985).

-2-

JURISDICTION OF THE CASE

This Court is empowered by Article V., §5 of the Texas Constitution to

issue extraordinary writs in all criminal matters.

STATEMENT OF THE CASE

A jury found Relator guilty of aggravated sexual assault and sentenced

to sixty-five years’ imprisonment. Relator appealed. While Relator’s appeal

was pending, the trial court granted Relator a new trial. However, the State

appealed, and the Eighth Court of Appeals reversed the lower court’s grant

of a new trial and reinstated Relator’s conviction. See State v Sanchez, 393

S.W. 3d 798 (Tex.App.El Paso 2012).

STATEMENT OF THE CLAIM

Due to the procedural posture of this case, this writ must be entertained

extraordinarily. Relator claims, and the trial court agreed, that he was only

legally eligible upon conviction to be sentenced under a second-degree

felony of 2-20 years. Instead, Relator was sentenced to sixty-five years

imprisonment under a first-degree felony.

However, the trial court

conceded that she failed to properly charge the jury by omitting a specific

-3-

element of the charge. This is a clear denial of Relator’s rights to due

process under the fourteenth amendment to the United States Constitution.

STATEMENT OF THE FACTS

This is not the type of error that can be waived. Due to the trial court’s

omitting an element ofthe charged offense, the trial court conceded that she

had misdirected the jury. Relator was therefor not legally eligible for the

sentence he received. See Haley v Cockrell', 306 F. 3d 257 (5th Cir. 2002).

Relator could only be sentenced upon conviction to a second-degree felony,

not a first-degree felony. See Mizell v Stale, 119 S. W. 3d 804

(Tex.Crim.App.2003)(“A sentence that is outside the maximum or

minimum range of punishment is unauthorized by law and therefore

illegal and, unlike most trial errors which are forfeited if not timely

asserted, a party is not required to make a contemporaneous objection to

the imposition of an illegal sentence”).

Relator establishes his extraordinary writ on the following grounds

which he asserts amount to a prima facia showing that indulgence should

be conceded to file and set this case for submission and hearing on the

-4-

following facts:

FACT ONE. Relator argues he has a well-defined right under the due

process clause of the 14th amendment to the United States Constitution to

relief based on constitutional error. Relator has exhausted his appellate

remedies and filed an initial writ of habeas corpus. He has no adequate

remedy at law to redress the unlawfulness committed by the trial court

when it misdirected the jury. Relator contends unequivocally that the trial

court was statutorily mandated, or, by precedent case law, to properly

instruct the jury on every element of the charged offense.

The facts and circumstances taken together with the governing statute

and case law but one rational decision under unequivocal, well settled (i.e.,

extant statutory, constitutional, or case law sources), and clearly controlling

legal principles.

FACT TWO. The Court of Appeals’ decision to deny relief in this case

offends any notion of due process of law. The United States Constitution

forbids conviction absent proof beyond a reasonable doubt of every fact

-5-

necessary to constitute the crime. See/fi re Winship, 90S.Ct 1068 (1970).

FACT THREE.

In the interest of justice, this Court may enforce

jurisdictional powers to rectify and/or remedy an unlawful sentence to

balance Relator’s interests in the vindication of his legal right to be

sentenced according to the law, and the State’s interest in the finality of

Relator’s litigation to reform the trial court’s constitutional error of

misdirecting the jury.

The interest ofjustice confers upon this Court the prerogative to remedy

the void portion of the sentence, that is, to sentence Relator as a seconddegree felony offender rather that a first-degree felony offender. The only

redress ever endeavored for by the Relator was to reform the judgment to

reflect a conviction for a second-degree felony.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Relator prays that this

Court will grant leave to file an Application For Extraordinary Writ to

reform the judgment in this case to reflect a conviction for a second-degree

felony because the trial court’s jury charge violated Relator’s constitutional

rights to due process of law.

-6-

IN THE TEXAS

COURT OF CRIMINAL APPEALS

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From a Judgment & Sentence rendered in the

120th District Court from El Paso County

Court of Appeals No. 08-11-00137-CR

Court of Criminal Appeals No. WR-84,766-01

•kjcSticifk-k'jc'kjc'jtjcicjckJfitlijcfcjfkjc'k-k-kjtitJckjcjejcjfftitjcjficjtlckjficicie'jcjt

IN RE:

GILBERT SANCHEZ, RELATOR

RELATOR’S APPLICATION FOR EXTRAORDINARY WRIT

TO REVIEW THE TRIAL COURT’S ORIGINAL GRANTING

OF A NEW TRIAL WITH ATTACHED APPLICATION

BRIEF IN SUPPORT

leJtjtjtjckjejffcIcjtjcickJcjcjficlejtjfkie'kJc-k'k-kjfkje-k-k-k'kjckJckjtisiciejtjs-kicjtjt

-1-

TO THE HONORABLE JUSTICES OF SAID COURT:

Comes now, Gilbert Sanchez, (herein after “Relator”), under Rule 72.1

of the Texas Rules of Appellate Procedure, and Article V., §5 of the Texas

Constitution. Relator submits his Application for Extraordinary Writ,

asking this Court to review the trial court’s original decision to grant

Relator a new trial which was ultimately denied by the Eighth Court of

Appeals resulting in Relator serving an illegal sentence (actual innocence),

denial of due process. Under any exception to the procedural default,

Relator’s claim demonstrates that he is actually innocent of the underlying

claim, Relator’s claim represents a fundamental miscarriage of justice

resulting in a fundamentally unjust incarceration. Relator will show this

Court the following in support of same.

INTRODUCTION

In 1978, the Legislature amended the Texas Constitution to broaden this

Court’s power to grant extraordinary relief in cases involving criminal

-2-

matter. The Texas Legislature expanded the writ power of this Court to

include among other Writ powers, motions that are extraordinary in

character. In determining the specific nature of the extraordinary relief

sought, the Court will not be limited by the denomination of the pleadings,

but will look to the essence of the pleadings, including prayers, as well as

the record. See Wade v Mays, 689 S.W.2d 893 (Tex.Crim.App.1985).

JURISDICTION OF THE CASE

This Court is empowered by Article V., §5 of the Texas Constitution to

issue extraordinary writs in all criminal matters.

STATEMENT OF THE CASE

A jury found Relator guilty of aggravated sexual assault and sentenced

to sixty-five years’ imprisonment. Relator appealed. While Relator’s appeal

was pending, the trial court granted Relator a new trial. However, the State

appealed, and the Eighth Court of Appeals reversed the lower court’s grant

of a new trial and reinstated Relator’s conviction. See State v Sanchez, 393

S. W. 3d 798 (Tex.App.El Paso 2012).

STATEMENT OF THE CLAIM

-3-

Due to the procedural posture of this case, this writ must be entertained

extraordinarily. Relator claims, and the trial court agreed, that he was only

legally eligible upon conviction to be sentenced under a second-degree

felony of 2-20 years. Instead, Relator was sentenced to sixty-five years

imprisonment under a first-degree felony.

However, the trial court

conceded that she failed to properly charge the jury by omitting a specific

element of the charge. This is a clear denial of Relator’s rights to due

process under the fourteenth amendment to the United States Constitution. .

STATEMENT OF THE FACTS

This is not the type of error that can be waived. Due to the trial court’s

omitting an element ofthe charged offense, the trial court conceded that she

had misdirected the jury. Relator was therefor not legally eligible for the

sentence he received. See Haley v Cockrell, 306 F. 3d 257 (5th Cir. 2002).

Relator could only be sentenced upon conviction to a second-degree felony,

not a first-degree felony. See Mizell v State, 119 S. W. 3d 804

(Tex.Crim.App.2003)(“A sentence that is outside the maximum or

minimum range of punishment is unauthorized by law and therefore

-4-

illegal and, unlike most trial errors which are forfeited if not timely

asserted, a party is not required to make a contemporaneous objection to

the imposition of an illegal sentence”).

Relator establishes his extraordinary writ on the following grounds

which he asserts amount to a prima facia showing that indulgence should

be conceded to file and set this case for submission and hearing on the

following facts:

FACT ONE. Relator argues he has a well-defined right under the due

process clause of the 14th amendment to the United States Constitution to

relief based on constitutional error. Relator has exhausted his appellate

remedies and filed an initial writ of habeas corpus. He has no adequate

remedy at law to redress the unlawfulness committed by the trial court

when it misdirected the jury. Relator contends unequivocally that the trial

court was statutorily mandated, or, by precedent case law, to properly

instruct the jury on every element of the charged offense.

The facts and circumstances taken together with the governing statute

and case law but one rational decision under unequivocal, well settled (i.e.,

-5-

extant statutory, constitutional, or case law sources), and clearly controlling

legal principles.

FACT TWO. The Court of Appeals’ decision to deny relief in this case

offends any notion of due process of law. The United States Constitution

forbids conviction absent proof beyond a reasonable doubt of every fact

necessary to constitute the crime. See In re Winship, 90S.Ct 1068 (1970).

FACT THREE.

In the interest of justice, this Court may enforce

jurisdictional powers to rectify and/or remedy an unlawful sentence to

balance Relator’s interests in the vindication of his legal right to be

sentenced according to the law, and the State’s interest in the finality of

Relator’s litigation to reform the trial court’s constitutional error of

misdirecting the jury.

The interest ofjustice confers upon this Court the prerogative to remedy

the void portion of the sentence, that is, to sentence Relator as a seconddegree felony offender rather that a first-degree felony offender. The only

redress ever endeavored for by the Relator was to reform the judgment to

-6-

reflect a conviction for a second-degree felony.

ARGUMENTS & AUTHORITIES

This Honorable Court under a trial court’s abuse of discretion standard

will not reverse an error by the trial court unless it is outside the zone of

reasonable disagreement. However, in the instant case, despite the trial

court’s own admission that she misdirected the jury in Relator’s case, this

Honorable Court allows Relator’s unlawful sentence to stand when the trial

court’s decision is not outside the zone of reasonable disagreement.

The Court of Appeals Eighth District of Texas at El Paso states that

the jury in Relator’s case would have found the essential facts

(elements) had it been properly instructed.

This statement by the court of appeals is erroneous because it’s in

direct conflict with the trial court’s own words that she misdirected the

jury, therefore, anyway you look at this error, the jury could not have

been properly instructed and therefore the court of appeals’ statement

is erroneous.

-7-

A jury verdict, if based on an instruction that allows it to convict

without properly finding the facts supporting each element of the crime

is error. See Sandstrom vMontana, 99 S.Ct 2450 (1979). Such error is

not corrected merely because an appellate court, upon review. is satisfied

that the jury would have found the essential facts had it been properly

instructed. See United States v Ben M. Hogan. Inc., 769 F.2d 1293,1298

(8th Cir. 1985). The error cannot be treated as harmless. See Connecticut

v Johnson, 103 S.Ct 769,977-78 (1983); see also Chapman v California,

87S.Ct. 824 (1967).

Despite the above stated, that is exactly what has transpired in Relator’s

case. This is fully illustrated in the eighth district court of appeals’ opinion

which is attached as EXHIBIT #1. incorporated herein by reference as if

fully printed herein in support of this argument for this Honorable Court’s

review. The question standing before this Honorable Court is will this

Court allow this fundamental miscarriage ofjustice to continue by turning

a blind eye due to procedural requirements, or will this Court exercise its

supervisory powers and correct this fundamental miscarriage of justice

-8-

which case law firmly supports and the court of appeals erroneously

denied?

Relator’s appellate counsel, Ruben Morales, correctly argued that

Realtor was unquestionably denied due process, the right to trial by jury

and effective assistance of counsel because he was convicted and sentenced

for a charge that was neither alleged in the indictment nor presented to the

jury for consideration.

The indictment in Relator’s case only allowed upon conviction that

Relator be sentenced under a second-degree felony (2-20 years). However,

Relator was convicted and sentenced under a first-degree felony to sixthfive years imprisonment.

On April 21st, 2011, Relator’s counsel filed a timely Notice of Appeal

and Motion for New Trial. The trial court granted Relator a new trial. The

trial court held that by submitting a first-degree felony charge to the jury

when in fact, Relator was only charged with a second-degree felony, it had

misdirected the jury regarding the law and, it allowed Relator to be

sentenced incorrectly.

-9-

The trial court further expressed its concern that based on the

indictment, Relator could only be convicted of sexual assault. The trial

court stated she was bothered by the omission of the word “imminent” in

the charge because “that language....is the only way that you can be

convicted of an aggravated sexual assault as opposed to just sexual

assault”. The trial court concluded that the charge was incorrect and

misdirected the jury. The trial court further noted that the absence of the

aggravating factor would change the applicable punishment range. The trial court stated that this omitted element was “a requirement to find

aggravation, and it’s important because the aggravation changes the

punishment range,” and “if that’s defective, then you have a different

punishment range.” The trial court then reiterated “the charge was wrong.”

Based on its concerns with the legality of relator’s conviction and sentence,

the trial court granted Relator a new trial.

Despite the above stated by the trial court judge who presided over

Relator’s trial and admitting that she had misdirected the jury, the State

appealed and despite conceding the absence of a key element necessary to

-10-

convict a person of aggravated sexual assault, the State insisited and, the

Eighth Court of Appeals agreed, that because a jury could have found

imminence based on the evidence presented, the conviction and sentence

were not infirm.

This decision, especially given the trial court’s explanations, offends

any notion of due process of law under the 14th amendment. The United

States Constitution forbids conviction absent proof beyond a reasonable

doubt of every fact necessary to constitute the crime. See In re Winship, 90

S.Ct 1068 (1970). If the sixth amendment right to have a jury decide guilt

and innocence means anything, it means that the facts essential to

conviction must be proven beyond the jury’s reasonable doubt, not the

court of appeals. The question thus follows: If the jury was not given the

proper jury instruction that omitted the “imminence” required finding to

make the charge a first-degree felony instead of a second-degree felony and

the jury was not even able to deliberate on the imminence factor, it is

impossible for either the State, or the Court of Appeals to conclude that the

-li-

jury found all the facts necessary to convict. Just making this statement,

refutes it. The State and the Court of Appeals’ erroneous decision flies in

the face of Relator’s right to due process of law.

The grave error in this case is that the jury never was required to find the

necessary nexus between a first-degree and second-degree felony. Instead,

it was directed to basically conclude, through a misstatement of law, that

an element of the crime had been proved when in actuality, they were never

properly instructed on the law regarding the facts of the case.

Relator was charged by indictment with sexual assault. Although the

indictment was titled aggravated sexual assault, it did not contain the

elements required to prove aggravated sexual assault. Specifically, the

indictment did not allege that the complainant was placed in fear that death

would be imminently inflicted on her. Under Texas penal Code Section

22.02l(a)(2)(A)(ii), to commit aggravated sexual assault a person must

commit sexual assault and, “by act or words place the victim in fear

that...death...will be imminently inflicted on any person.”

Under Texas law, sexual assault is a second-degree felony punishable

-12-

by two to twenty years in prison. Texas Penal Code §§22.011; 12.33.

Aggravated Sexual Assault is a first -degree felony punishable by five to

ninety-nine years, or life in prison. Texas Penal Code §§22.021; 12.32.

In this case, Relator was never charged with aggravated sexual assault

and he was never tried for aggravated sexual assault. The trial court’s jury

charge simply tracked the indictment. The State conceded that the

indictment only charged Relator with sexual assault, an offense that carries

a possible sentence of 2 to 20 years in prison. Yet, he was convicted and

sentenced for aggravated sexual assault, an offense that carries a possible

sentence of 5-99 years or life in prison. Such a result is a clear due process

violation under the Fifth and Fourteenth Amendment of the United States

Constitution. See Dunn v United States, 442 U.S. 100, 106 (1979)(“To

uphold a conviction on a charge that was neither alleged in an indictment

nor presented to a jury at trial offends the most basic notions of due

process. Few constitutional principles are more firmly established than

a defendant’s right to be heard on the specific charges of which he is

accused. ”); Jackson v Virginia, 443 U.S. 307,314 (1979)(“Itisaxiomatic

-13-

that a conviction upon a charge not made or upon a charge not tried

constitutes a denial of due process. ”); McCormick v United States, 500

U.S. 257, 270 n.8 (1991)(“This Court has never held that the right to a

jury trial is satisfied when an appellate court retries a case on appeal

under different instructions and on a different theory that was ever

presented to the jury. Appellate courts are not permitted to affirm

convictions on any theory they please simply because thefacts necessary

to support the theory were presented to the jury. ”) See also Wooley v

State, 273 S.W. 3d 260, 271 (Tex.Crim.App.2008))(“Appellateys due

process rights were violated when the court of appeals affirmed his

conviction under a theory not submitted to thejury”). Relator was charged

with and tried for a second-degree felony. His conviction and sentence are

for a first-degree felony. Therefore, Relator’s right to due process have

been violated and he is entitled to relief.

It should further be noted that it was stipulated by both parties that if

called, trial counsel would testify to the following: “A basic part of

representing a criminal defendant is reviewing the charging instrument; in

-14-

this case Mr. Sanchez was charged by indictment. In this case, although I

did review the indictment, I did not notice that the indictment did not allege

the elements of imminence required to elevate the offense to a first-degree

felony. Had I noticed the missing element, I would have used that to limit

the range of punishment in this case to that of a second-degree felony. My

failure to do so or attempt to do so was not a strategic decision; my failure

to make any other objections relevant to the issue of the missing element

was not a strategic decision.”

The unending search for symmetry in the law can cause judges to forget

about justice. This should have been a simple case as the very judge who

presided over the trial with total recollection granted a new trial based on

her belief that the jury had been misdirected on the law, a misstatement of

law.

The State, and the Eighth District Court of Appeals all agreed with the

trial court judge that the trial court erroneously omitted from the jury

charge the aggravating element that the complainant feared her death was

imminent, thereby misdirecting the jury about the law. Therefore, Relator

-15-

is actually innocent of the underlying offense. However, the State, and

Court of Appeals claim that Relator suffered no egregious harm. That

statement, however, is contrary to law because this type of error cannot be

treated as harmless. Without the factual imminence finding which was not

presented to the jury, there is no basis for Relator’s conviction for a firstdegree felony, it follows inexorably that Relator has been denied due

process of law. See Thompson v Louisville, 362 U.S. 199 (1960); Jackson

v Virginia, 443 u.S. 307 (1979). And because that constitutional error

clearly and concededly resulted in the imposition of an unauthorized

sentence, it also follows that Relator is a “victim of a miscarriage of

justice,” entitled to relief.

WHEREFORE, PREMISES CONSIDERED, Relator prays this

Honorable Court find that he is entitled to the requested relief, that his

conviction and sentence be reversed and reformed to reflect a conviction

for sexual assault as alleged in the indictment with a jury determination

within the prescribed range of 2 to 20 years.

Respectfully submitted,

Gilbert Sanchez

-16-

EXHIBIT #1

£*M6lT *//.

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

§

GILBERT SANCHEZ,

No. 08-11-00137-CR

§

Appellant,

Appeal from the

§

v.

120th Judicial District Court

§

THE STATE OF TEXAS,

of El Paso County, Texas

§

Appellee.

(TC# 20100D02745)

§

OPINION

Gilbert Sanchez appeals his conviction for aggravated sexual assault. In three issues,

Appellant maintains that (1) he suffered egregious harm from a defective jury charge that failed

to address the critical "imminence of harm” element of aggravated sexual assault. (2) the court

should have granted a mistrial during the punishment phase based on a witness’s comments that

she was

victim number nine,” and (3) trial counsel rendered constitutionally ineffective

assistance during cross-examination. We affirm.

BACKGROUND

Factual History

In December 2009, Appellant and Jeanette Ribail had been dating for more than a month.

During that period of time, Appellant and Ribail had a consensual sexual relationship.

However,

Ribail decided to break off her relationship with Appellant after RibaiPs cousin recognized

Appellant as the ex-husband of a former co-worker. Appellant’s cousin warned Ribail that

Appellant was “bad news.”

After Ribail asked Appellant about what her cousin had said,

Appellant became very upset. Ribail attempted to gradually distance herself from Appellant, but

he continued to try and contact her, wanting to know why she was withdrawing.

On December 30, 2009, Appellant tracked down Ribail at her sister’s trailer and told her

he wanted to speak with her about their relationship. Ribail stated that Appellant appeared to be

intoxicated. While Appellant was outside smoking, Ribail exited through the back door and

went back to her own trailer. Ribail testified that Appellant called her numerous times once he

realized she had left, and that after she refused to answer, he came to her trailer and broke down

the door after banging on her windows and screaming. Ribail further testified that Appellant

climbed on top of her and began screaming obscenities at her, and that a physical altercation

ensued after she attempted to push him off, with Appellant punching her, attempting to smother

her with a pillow, and telling her that he did not care if she died. Appellant then dragged her by

I

her hair to the bathroom, then forced her to clean the blood off her body after threatening her

with a pair of scissors, stating that he would use them on her if she attempted to leave and telling

her that she and him needed to talk about their relationship. He then told her it was time to go to

the bedroom and grabbed her arm. Ribail indicated to Appellant she did not want to have sex by

shaking her head no, but Appellant proceeded to have intercourse with her

over her protest.

Ribail testified that she cried during the rape but did not physically resist because she was afraid

for her life.

An investigator who performed a rape kit testified that initial forensic testing indicated

the presumptive presence of seminal fluid on Ribail’s body.

2

However, further testing

demonstrated that no spermatozoa cells were contained inside the seminal fluid.

Procedural History

A jury found Appellant guilty of aggravated sexual assault, and he was sentenced to 65

years’ in prison. Sanchez appealed to this Court. Sanchez also moved for a new trial in the trial

court, asserting that the jury charge was defective, the evidence on the issue of imminence was

legally insufficient, and that the court should have granted a mistrial on punishment due to

Ribail s prejudicial comments. While Sanchez’s appeal was pending, the trial court granted

Sanchez a new trial, but did not specify in writing which ground it relied on in granting the

motion, nor did it provide findings of fact or conclusions of law when requested. The State

appealed, and we abated Sanchez’s appeal pending the outcome of the State’s appeal. On State’s

appeal, we reversed the lower court’s grant of a new trial and reinstated Sanchez’s conviction.

State v. Sanchez, 393 S.W.3d 798 (Tex.App.-El Paso 2012, pet. refd). The Court of Criminal

Appeals refused to grant Sanchez’s petition for discretionary review. On October 7, 2013, the

United States Supreme Court denied certiorari, making Sanchez’s conviction final. Sanchez v.

State, 134 S.Ct. 221, 187 L.Ed.2d 144 (2013). Mandate issued in Sanchez I, and we reinstated

Sanchez’s original appeal. This opinion addressing the merits of Sanchez’s original points as

follows.

DISCUSSION

Jury Charge Error

In Issue One, Appellant contends that the jury charge erroneously failed to specify that

Ribail’s fear of death was imminent, thereby allowing the jury to find him guilty of an

aggravated offense without first assessing whether proof beyond a reasonable doubt existed on

the improperly articulated aggravating element. The State concedes that failure to include an

imminence component as part of the aggravating element was error, but argues that

our previous

decision in the State’s appeal that Appellant suffered no resultant egregious harm governs under

the law of the case. We agree.

Law of the case is a court-created doctrine providing that, absent exceptional

circumstances, our resolution of an issue im an initial appeal generally controls our disposition of

the same issue in subsequent appeals arising from the

same case. Howlett v. State, 994 S.W.2d

663, 666 (Tex.Cnm.App. 1999); Ojeda v. State, 08-02-00404-CR, 2004 WL 2137653

, at *8

(Tex.App.-El Paso Sept. 24, 2004, pet. ref d)(not designated for publication); cf. York v. State,

342 S.W.3d 528, 553 (Tex.Crim.App. 201 l)(Womack, J„ concurring)(noting, in double jeopardy

context, that similar estoppel concept of issue preclusion prevents ’‘a party from relitigating an

issue. .. that was previously determined in a suit between the

consistency over time and “eliminates the

same parties”). The rule promotes

need for appellate courts to prepare opinions

discussing previously resolved matters” while still giving us the flexibility to “reconsider [ourj

earlier disposition of a point of law” in light of “circumstances that mitigate against relying

[our] prior decision.” Howlett, 994 S.W.2d at 666.

on

Such circumstances may include, inter alia,

recognition that our previous ruling was “ clearly erroneous,” id, or situations where “there has

been a change in the controlling law” in the time period between our first decision and the

subsequent appeal. Carroll v. State, 42 S.W.3d 129,

131 (Tex.Crim.App. 2001).

In our initial decision in the State’s appeal, State v. Sanchez,

El Paso 2012, pet. refd), cert, denied, 134 S.Ct. 221,

393 S.W.3d 798 (Tex.App.-

187 L.Ed.2d 144 (2013), we reversed the

trtal court's gram of a new trial and reinstated Sanchez's conviction, holding that he failed to

establish that he suffered “egregious harm”

from the unpreserved jury charge error as required

4

under Almanza) See Sanchez, 393 S.W.3d at 803-06. We rejected Sanchez’s contention that the

charge was egregiously harmful per se under Flores v. State, 48 S.W.3d 397, 402 (Tex.App.-Waco 2001, pet. refd), because the jury charge did not authorize the jury to convict Sanchez for

“conduct that is not an offense.” Sanchez, 393 S.W.3d at 805-06. In weighing harm, we noted

that although the jury charge language weighed in favor of a harm finding for failing to include

all relevant statutory language, any harm was cured by references to imminence in voir dire and

counsels’ closing arguments contextually referencing Ribail’s belief that her death was imminent

after Sanchez tried to smother her with a pillow. Id. at 804-05. We also held that the jury could

have found the three sub-elements comprising the “imminent death” element beyond a

reasonable doubt. Id.

Here, Appellant largely rehashes the same arguments as before. Given that we have

previously passed judgment on this exact issue, we find that law of the case governs and rely on

our previous ruling. Appellant did not suffer egregious harm from the erroneous jury charge.

Issue One is overruled.

Mistrial

In Issue Two, Appellant asserts that the trial court abused its discretion by failing to grant

a mistrial at punishment after a witness twice gave non-responsive testimony in which she

referred to herself as being “victim number nine.” We disagree.

Standard of Review and Applicable Law

A mistrial is the trial court’s remedy for improper conduct that is so prejudicial that

expenditure of further time and expense would be wasteful and futile.” Hawkins v. State, 135

S.W.3d 72, 77 (Tex.Crim.App. 2004)[Intemal quotation marks omitted]. We review the trial

A,mai^a v- State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984), superseded on other grounds by rule as stated in

(TexCrim Ani?™nfiv58 f ■2d.™7 Tex.Crim.App. 1988); see also Igo v. State. 210 S.W.3d 645. 646-47

(1 ex.Cnm.App. 2006)(applymg Almanza to jury charge errors presented in motion for new trial)

5

court’s mistrial ruling for abuse of discretion.

Coble v. State, 330 S.W.3d 253, 292

(Tex.Crim.App. 2010). “[A] mistrial should be granted only in cases where the reference was

clearly calculated to inflame the minds of the jury or was of such damning character as to

suggest it would be impossible to remove the harmful impression from the jurors’ minds.”

Young v. State, 283 S.W.3d 854, 878 (Tex.Crim.App. 2009)[Internal citation and quotation

marks omitted].

“Only in extreme circumstances, where the prejudice is incurable, will a

mistrial be required.” Hawkins, 135 S.W.3d at 77.

Witness comments or outbursts “which interfere^ with the normal proceedings of a trial

will not result in reversible error” unless there is a reasonable probability “that the conduct

interfered with the jury’s verdict.” Coble, 330 S.W.3d at 292. “An instruction to disregard

ordinarily renders testimony referring to or implying extraneous offenses harmless.” Brown v.

State, 08-11-00347-CR, 2013 WL 1281917, at *2 (Tex.App.~El Paso Mar. 28, 2013, pet.

refd)(not designated for publication). In assessing prejudice, we balance three factors: (1) “the

magnitude of the [remark-s] prejudicial effect[;]” (2) any curative measures adopted at the trial

level; and (3) the certainty of the punishment outcome, including the strength of the evidence

underlying the punishment. Archie v. State, 221 S.W.3d 695, 700 (Tex.Crim.App. 2007); see

also Brown, 2013 WL 1281917, at *2.

Analysis

During her testimony at the punishment phase of trial, Ribail twice made references to

her status as “victim number nine.” The first reference came during prosecution questioning

about Ribail’s feelings toward Appellant:

[PROSECUTION]:

0

[RIBAIL]:

How do you feel about men now? Well, not

men, just him. How do you feel about him?

I feel sorry for him because now he’s going

6

to get what he deserves.

[DEFENSE COUNSEL]:

I'm sorry. I didn't get that response, Judge.

[RIBAIL]:

I feel sorry for him and he’s going to get

what he deserves, because it took - I’m

victim number nine, and it took —

[DEFENSE COUNSEL]:

At this point, Judge, objection. My [sic] we

approach?

The second reference came during re-direct examination, when the State asked Ribail if

she wanted Appellant to get probation, and she responded, “No.

I’m victim number nine.”

Defense counsel objected again, and the court admonished the State to speak with the witness

and have her only answer the question asked. The trial court also issued an instruction to

disregard sua sponte.

The State advances a three-fold argument against mistrial. First, the State contends that it

proved up the existence of at least nine people who Appellant victimized “physically, sexually,

emotionally, and/or financially,” rendering Ribail’s comment about being victim number nine

factually accurate. Second, the State argues Ribail’s comment regarding other bad acts could

have been cured by an instruction to disregard. Third, the State maintains that the overwhelming

weight of other punishment evidence shows that the jury did not rely on those comments in

reaching its verdict.

We question whether the jury actually took Ribail’s comments to mean that she was

Appellant s ninth rape victim and not merely someone in a line of people he victimized

generally, and we acknowledge the gravity of such a remark at the sentencing stage. See Archie,

221 S.W.3d at 700 (taking gravity of comment as factor in

assessing mistrial ruling). However,

we agree with th€ State that in this instance, the instruction to disregard and the cumulative

weight of the punishment evidence rendered the comments’ prejudice minimal.

7

In Williams v. State, 14-11-00148-CR, 2013 WL 1187426 (Tex.App.—Houston [14th

Dist.] Mar. 21, 2013, no pet.)(mem. op., not designated for publication), the Houston Fourteenth

Court of Appeals held that the trial court’s instruction to disregard cured any prejudice arising

from a witness’s comment that the defendant “murdered peoplef.]” Id. at *8-*9. It also held that

the amount of evidence of other bad acts presented at punishment made it unlikely that the jury’s

verdict was unduly swayed by the stray comment referencing other bad acts. Id. at *10-*1.

Here, the factual circumstances are very similar. The trial court issued an instruction to the jury

to disregard both comments and admonished the State to control the witness and only have her

answer the question asked, evidencing curative measures. The trial court’s corrective actions

mitigated any prejudice under the second Archie factor. See Archie, 221 S.W.3d at 700; Young,

283 S.W.3d at 878. Further, the State presented a large corpus of evidence demonstrating that

Appellant had inter alia been previously convicted of assault, filed a false police report to have

someone arrested, stolen $4,100 from his own mother, and physically and sexually abused prior

girlfriends. Given the strength of the underlying punishment evidence, we are satisfied after

balancing the Archie factors that Ribail’s comments did not substantially affect the jury’s

punishment verdict. The trial court properly exercised its discretion in denying Appellant’s

motion for a mistrial.

Issue Two is overruled.

%

Ineffective Assistance of Counsel

In Issue Three, Appellant argues that trial counsel rendered constitutionally ineffective

assistance by making remarks that undermined the defense theory that Appellant did not sexually

penetrate Ribail.

Specifically, Appellant contends trial counsel’s statement during Ribail’s

cross-examination that Appellant had a vasectomy provided the jury with an explanation as to

8

why investigators found seminal fluid with no spermatozoa cells during Ribail’s sexual assault

examination. The State counters that Appellant failed to show sufficient evidence to rebut the

presumption of competence. We agree.

Standard of Review and Applicable Law

“For a claim of ineffective assistance of counsel to succeed, the record must

demonstrate^]” by a preponderance of the evidence, “both deficient performance by counsel and

prejudice suffered by the defendant.” Menefield v. State, 363 S.W.3d 591, 592 (Tex.Crim.App.

2012); see also Perez v. State, 310 S.W.3d 890, 892-93 (Tex.'Crim.App. 2010).

Counsel’s

representation is constitutionally deficient where it falls “below an objective standard of

reasonableness based unpon prevailing professional norms.”

Id., citing Strickland v.

Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984).

To

demonstrate prejudice, the defendant must show that there is a reasonable probability that, but

for counsel s unprofessional errors, the result of the proceeding would have been different.”

Perez, 310 S.W.3d at 893. “The two prongs of Strickland need not be analyzed in a particular

order-the prejudice prong may be analyzed first and the performance prong second.” Ex parte

Martinez, 330 S.W.3d 891, 900 n.19 (Tex.Crim.App. 2011).

The benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial

relied upon as having produced a just result.”

cannot be

Holland v. State, 761 S.W.2d 307, 320

(Tex.Cnm.App. 1988). We strongly presume that counsel is competent, and that his actions

were strategic and fell within the scope of reasonable professional assistance. Bone v. State, 77

S.W.3d 828, 836 (Tex.Crim.App. 2002). Appellant may rebut that presumption where he shows,

by a preponderance of the evidence, “that there is, in fact, no plausible professional

9

reason for a

specific act or omission.” Bone, 77 S.W.3d at 836. “Ordinarily on direct appeal, the record is

too underdeveloped to sustain the serious charge of ineffective assistance absent examination of

counsel at a motion for new trial hearing.” Murray v. State, 08-12-00062-CR, 2014 WL 340384,

at *3 (Tex.App.~El Paso Jan. 29, 2014, no pet.)(not designated for publication). Thus, we

generally do not reverse for ineffectiveness on direct appeal absent an explanation from trial

counsel “unless the challenged conduct was so outrageous that no competent attorney would

have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005)[lntemal

quotation marks omitted].

While a “single egregious error of omission” by counsel could

theoretically rise to the level of ineffective assistance, Ex parte Harrington, 310 S. W.3d 452, 459

(Tex.Crim.App. 2010), generally speaking, “[ejffectiveness is judged by the record as a whole

and not by isolated errors.” Murray, 2014 WL 340384, at *3. “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 v. State, 213 S.W.3d 338, 348

(Tex.Crim.App. 2007).

Analysis

Here, Appellant has failed to demonstrate that counsel’s trial actions fell below an

objective standard of reasonableness as required by Strickland.

Trial counsel referred to

Appellant’s vasectomy while he cross-examined Ribail about her prior sexual activity with

Appellant, asking her, in an apparent attempt to attack her general credibility as a witness, why

she requested Appellant pull out prior to ejaculation as their usual form of birth control if she

knew he had a vasectomy. He also contrasted that usual practice with her claim that

occasion, Appellant ejaculated inside her. This method of impeachment on

10

on this

witness credibility

was not ‘‘so outrageous that no competent attorney would have engaged in it.” Goodspeed, 187

S.W.3d at 392; see, e.g., Ex parte Harrington, 310 S.W.3d at 459 (no reasonable strategy behind

counsel’s advice to client to plead guilty to felony DWT following failure to investigate client’s

truthful claim that a prior conviction used for felony enhancement erroneously identified him as

the convicted party). Nor was the error - assuming arguendo it was, indeed, an error and not

deliberate - so egregious that it “had a seriously deleterious impact on the balance of the

representation.” Frangias v. State, 392 S.W.3d 642, 653 (Tex.Crim.App. 2013). As such, we

apply the presumption that trial counsel was competent and his moves strategic. Further, since

the record is silent as to what trial counsel’s motivations were in engaging in this line of

questioning, and since questioning on this topic could have conceivably been calculated to

impeach Ribail’s credibility, we find that Appellant has failed to proffer sufficient evidence to

rebut the presumption. Garza, 213 S.W.3d at 348. Thus, his claim for ineffective assistance of

counsel is without merit.

Issue Three is overruled. We affirm Appellant’s conviction.

- I

June 20, 2014

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)

ll