Case Number: 04-17-00216-CR

Judge: Karen Angelini

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney: Jay Brandon
Nicholas LaHood

Defendant's Attorney: Matthew Allen

Description: Chapa and his co-defendant, Emmanuel Galindo, were charged with multiple counts of
compelling prostitution, sexual assault, and official oppression after law enforcement authorities
investigated a scam Chapa and Galindo devised while they were employed as police officers. In
furtherance of the scam, Chapa and Galindo recruited women to pose as their girlfriends in a
nonexistent undercover operation. Chapa and Galindo told the women they would be paid based
on their level of performance with the highest amount being paid to those women willing to engage
in sexual intercourse. Although some women declined the “job opportunity,” other women
engaged in sexual intercourse in an effort to be paid at the highest level.
At the conclusion of a trial that lasted several days, the jury found Chapa guilty of multiple
counts. Chapa appeals.
MOTION TO SEVER
In his first two issues, Chapa asserts the trial court erred in denying his motion to sever his
trial from Galindo’s trial. First, Chapa contends he was prejudiced by the joint trial. Second,
Chapa contends trial counsel rendered ineffective assistance in representing both Chapa and
Galindo.
A. Whether Chapa was Prejudiced by the Joint Trial
Article 36.09 of the Texas Code of Criminal Procedure provides:

Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a
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joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.

TEX. CODE CRIM. PROC. ANN. art. 36.09 (West 2007). Article 36.09 “imposes two basic
requirements for showing entitlement to a severance: (1) that the motion for severance be timely,
and (2) that at least one of two possible grounds for severance be alleged, with supporting
evidence.” Qualley v. State, 206 S.W.3d 624, 631 (Tex. Crim. App. 2006). “The two grounds for
severance are: (1) the co-defendant has a previous admissible conviction, and (2) a joint trial would
prejudice the (moving) defendant.” Id. In this case, Chapa alleged a joint trial would prejudice
him. “To establish prejudice, the defendant must show a serious risk that a specific trial right
would be compromised by a joint trial, or that a joint trial would prevent the jury from making a
reliable judgment about guilt or innocence, and that the problem could not be adequately addressed
by lesser curative measures, such as a limiting instruction.” Id. at 636.
Before trial began, trial counsel urged Chapa’s motion to sever, asserting “I think it’s
generally prejudicial, but I mean, I don’t have the specifics, Your Honor.” One of the grounds
alleged in the written motion was that a joint trial would be prejudicial to Chapa because the
quantity of the evidence against Galindo was grossly disproportionate to that against Chapa. The
law, however, is “well settled that mere proof of differing degrees of culpability will not support
a severance.” Moesch v. State, No. 03-11-00267-CR, 2012 WL 3629847, at *2 (Tex. App.—
Austin Aug. 24, 2012, pet. ref’d) (not designated for publication) (citing King v. State, 17 S.W.3d
7, 17–18 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Davila v. State, 4 S.W.3d 844, 847
(Tex. App.—Eastland 1999, pet. ref’d); Silva v. State, 933 S.W.2d 715, 719 (Tex. App.—San
Antonio 1996, no pet.); Gibbons v. State, 794 S.W.2d 887, 891 (Tex. App.—Tyler 1990, no pet.)).
In addition to stating he did not have a specific ground to establish prejudice, trial counsel did not
present any evidence at the pre-trial hearing on the motion to sever. A trial court does not abuse
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its discretion in denying a motion to sever if no evidence is presented in support of the motion.
See Qualley, 206 S.W.3d at 631 (noting evidence must be presented supporting the grounds for
severance being alleged); Davila, 4 S.W.3d at 847 (“It is not an abuse of discretion for the trial
court to deny a motion to sever when no evidence is presented to support the motion.”).
Accordingly, when Chapa moved to sever before trial, he failed to show a serious risk that a
specific trial right would be compromised by a joint trial; therefore, the trial court did not err in
denying the pre-trial motion to sever. See Qualley, 206 S.W.3d at 636.
During trial, trial counsel re-urged the motion to sever on two grounds. First, Chapa
claimed he was prejudiced because one of the witnesses was only a witness against Galindo.
Second, Chapa claimed he was prejudiced because he would call Galindo’s wife to testify as a
witness, but Galindo’s wife would invoke the spousal privilege to not testify against Galindo. Both
of these grounds, however, were known to trial counsel before the trial commenced. “To be timely,
a motion for severance must be made before trial if the factual basis for seeking a severance was
known prior to trial.” Qualley, 206 S.W.3d at 638. Because trial counsel did not present either of
these grounds as a basis for granting the motion to sever at the pre-trial hearing, the motion made
during trial was untimely. See id. In addition, because Chapa was not charged with any offense
relating to the witness who only testified against Galindo, he cannot establish he was prejudiced
by the testimony. Finally, the trial court ruled the spousal privilege only prevented the State from
calling Galindo’s wife as a witness and did not preclude Chapa from calling her as a witness.
B. Ineffective Assistance of Counsel Due to a Conflict of Interest
To establish ineffective assistance of counsel due to a conflict of interest, “the appellant
must show that his trial counsel had an actual conflict of interest, and that the conflict actually
colored counsel’s actions during trial.” Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim. App.
2014). “A defendant can waive the right to conflict-free counsel if he does so knowingly and
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voluntarily.” Perez v. State, 352 S.W.3d 751, 755–56 (Tex. App.—San Antonio 2011, no pet.);
see also Ex parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981); Brink v. State, 78 S.W.3d
478, 485 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
At a pre-trial hearing, the trial court expressly inquired about whether Chapa and Galindo
were informed of the conflict created by both men being represented by the same attorney. Chapa
and Galindo both stated they had discussed the conflict with their attorney and agreed to waive
any conflict. Because Chapa knowingly and voluntarily waived the conflict, he cannot raise the
conflict as a basis for reversal on appeal.
Chapa’s first and second issues are overruled. MOTION FOR CONTINUANCE In his third issue, Chapa contends the trial court erred by denying his motion for
continuance. To support his contention, Chapa points to a notice of appearance filed by one of his
attorneys on February 14, 2017, which was only two weeks before trial commenced on February
27, 2017.
“We review a trial court’s ruling on a motion for continuance for abuse of discretion.”
Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). “[I]n order to show reversible error
predicated on the denial of a pretrial motion for continuance, a defendant must demonstrate both
that the trial court erred in denying the motion and that the lack of a continuance harmed him.”
Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).
Three months before trial, the trial court held a hearing on a motion for continuance which
was based on new counsel taking over Chapa’s representation. All of the attorneys who
represented Chapa to that date were employed by Alan Brown, who the trial court also considered
to be representing Chapa. Although the trial court granted the continuance, the trial court
emphasized no further continuances would be granted based on new representation, asserting:
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THE COURT: Okay. I’ll grant the Motion for Continuance. It’ll go on the regular docket. However, again, next time around I don’t want to hear and I won’t grant a continuance based off reported issues of discovery or lack of discovery or lack of ability to wade through everything.

When the case was called the first day of trial, one of the attorneys who announced she was
representing Chapa further announced she was not ready for trial. When the attorney stated she
was requesting a continuance because she had “been with Mr. Brown’s office only a few weeks,”
the trial court instructed the attorney that he had cautioned Mr. Brown at a prior hearing that he
would not grant a continuance if Mr. Brown hired another attorney to assist him in the case.
Addressing Mr. Brown, the trial court stated:
I know that you’re a very competent attorney. I told you I would not grant another continuance — I believe I did — regarding this issue and so, you know, I’m not going to grant a motion for continuance because your office represents both people. You represent both people. And the fact that M[s]. Cutter has come into your office just recently ain’t going to cut it with the Court.

Mr. Brown responded, “I understand, Your Honor. I just think we wanted certain things on the
record.” After further reviewing the motion for continuance and its reference to discovery, the
trial court noted its prior order required discovery to be completed by December 9, 2016, and any
hearings on motions to be completed by January 20, 2017. When Ms. Cutter responded that
another attorney was Chapa’s attorney at that time, the trial court responded:
Well, Mr. Chapa is represented by Mr. Brown. You may be helping him, but Mr. Brown tells me he’s representing Mr. Chapa. So your motion for continuance is denied because you were not — I’ll leave it at that. All right. So I’ve taken care of the continuances.

Having reviewed the record, we cannot conclude the trial court abused its discretion in
denying the continuance given that a previous continuance was granted on the same basis, Mr.
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Brown was instructed no further continuances would be granted if he hired another attorney to assist him, and the trial court concluded Mr. Brown continued to represent Chapa.2
Chapa’s third issue is overruled. SEVERANCE OF COUNTS In his fourth issue, Chapa contends trial counsel rendered ineffective assistance of counsel
in failing to timely move to sever the sexual assault counts into a separate trial so that two of the
witnesses could be cross-examined about their sexual history.
To prevail on an ineffective assistance of counsel claim, an appellant must prove, by a
preponderance of the evidence that (1) counsel’s performance was deficient, i.e., counsel’s
assistance fell below an objective standard of reasonableness; and (2) he was prejudiced by
counsel’s deficient performance, i.e., a reasonable probability exists that but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307-08 (Tex. Crim. App.
2013). Appellant must satisfy both Strickland elements, and the failure to show either deficient
performance or prejudice will defeat the claim. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
App. 2010).
Rule 412 of the Texas Rules of Evidence excludes the following evidence in a prosecution
for sexual assault: “(1) reputation or opinion evidence of a victim’s past sexual behavior; and (2)
specific instances of a victim’s past sexual behavior.” TEX. R. EVID. 412. In his brief, Chapa
asserts that if the sexual assault counts had been severed from the compelling prostitution and
official oppression counts, he could have cross-examined two of the witnesses about prior sexual
2 In his brief, Chapa contends the denial of the continuance resulted in Ms. Cutter rendering ineffective assistance of counsel because she was not prepared; however, the trial court ruled Chapa was also represented by Mr. Brown, and Chapa does not make any similar allegation regarding Mr. Brown’s preparedness.
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assault allegations and about one witness’s motivation to fabricate the sexual assault allegation,
i.e., to prevent her boyfriend from believing she cheated on him. In his brief, however, Chapa
does not explain how this testimony would be relevant and admissible at a trial on the other
offenses or how the result of the proceeding on those offenses would have been different if the
cross-examination was allowed. In fact, rather than discussing the second Strickland prong,
requiring Chapa to show a reasonable probability that the result of the proceeding would be
different but for trial counsel’s deficient performance, Chapa discusses the harm analysis applicable to an error under Crawford v. Washington.3 As a result, Chapa has failed to carry his
burden under the second prong of Strickland. Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App.
1999) (holding appellant’s failure to make any effort to prove the prejudice prong of the Strickland
test precludes any relief); Fino v. State, No. 04-12-00055-CR, 2013 WL 1639256, at *7 (Tex.
App.—San Antonio Apr. 17, 2013, pet. ref’d) (not designated for publication) (“The failure to
make any effort to prove the prejudice prong precludes any relief.”); Becerra v. State, No. 01-06
00840-CR, 2008 WL 339770, at *1 (Tex. App.—Houston [1st Dist.] Feb. 7, 2008, no pet.) (not
designated for publication) (“We need not address the merits of his ineffective assistance claim,
because appellant has failed to specifically address prejudice under Strickland’s second prong.”)
(not designated for publication).
Chapa’s fourth issue is overruled.
3 “In Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause bars the admission of an out-of-court testimonial statement made by a non-testifying witness absent evidence (1) the witness is unavailable to testify, and (2) ‘the defendant has had a prior opportunity to cross-examine’ the witness.’” Watson v. State, 421 S.W.3d 186, 196 (Tex. App.—San Antonio 2013, pet. ref’d). The holding in Crawford has no application to the ineffective assistance of counsel issue asserted by Chapa in his brief.
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TOTALITY OF THE REPRESENTATION In his fifth issue, Chapa contends trial counsel rendered ineffective assistance based on the
totality of the representation. In support of this issue, Chapa argues in his brief, “Each point of
error above could constitute ineffective assistance of counsel and necessitate a new trial by
themselves. When the totality of trial counsel’s actions and inactions are taken into consideration,
the prejudice and harm to Chapa is undeniable.” Because we have rejected each of Chapa’s
specific complaints of ineffective assistance, we also overrule this issue. RIGHT OF CONFRONTATION In his sixth issue, Chapa contends the trial court violated his right of confrontation by
refusing to allow him to cross-examine the two witnesses regarding their prior allegations of sexual
assault and the one witness’s motive for fabricating the sexual assault allegation.
As previously noted, Rule 412 of the Texas Rules of Evidence excludes evidence of
specific instances of a victim’s past sexual behavior in a prosecution for sexual assault. TEX. R.
EVID. 412. Although Chapa does not challenge the exclusion of the evidence under Rule 412,
“‘[t]he Confrontation Clause occasionally may require the admissibility of evidence that the Rules
of Evidence would exclude.’” Henley v. State, 493 S.W.3d 77, 95 (Tex. Crim. App. 2016) (quoting
Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000)). “Whether there has been a violation
of the Confrontation Clause is determined on a case-by-case basis.” Id. “In determining whether
evidence must be admitted under the Confrontation Clause, the trial court must balance the
defendant’s right to cross-examine and the probative value of the proffered evidence against the
risk factors associated with admission of the evidence.” Id. “The trial court maintains broad
discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice,
confusion of the issues, endangering the witness, and the injection of cumulative or collateral
evidence.” Id.
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In ruling on Chapa’s objection that the exclusion of the evidence violated Chapa’s right of
confrontation, the trial court explained the manner in which Chapa was charged with sexual assault
in the instant case required the State to prove Chapa coerced the complainants to submit to the
sexual acts by threatening to take or withhold action as a public servant; in this case, threatening
to exclude the complainants from the undercover operation or to only allow the complainants to
participate at a lower level. The trial court then concluded that the proffered cross-examination
was not probative of a defense to the charged offense because the prior sexual assault allegations
and the fabrication were not based on coercion by a public servant and, therefore, were not
probative. In addition to the trial court’s explanation of the probative value of the proffered cross
examination, we also note Rule 412 excludes the proffered evidence because of its tendency to
harass victims of sexual assault and inject collateral evidence into a trial. See Montgomery v. State,
415 S.W.3d 580, 584 (Tex. App.—Amarillo 2013, pet. ref’d) (“Rule 412 strives to balance a
defendant’s right to defend himself against the need to protect victims from undue public
humiliation and ridicule.”)
In his brief, Chapa does not address the law applicable in determining whether the trial
court’s ruling violated his right of confrontation or the balancing the trial court was required to
undertake. Given the manner in which the offense of sexual assault was charged in the instant
case, we hold the trial court did not violate Chapa’s right of confrontation in disallowing the cross
examination. Chapa’s sixth issue is overruled. HEARING ON MOTION FOR NEW TRIAL In his final issue, Chapa asserts the trial court erred in failing to hold a hearing on his
motion for new trial.
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“Failure to hold a hearing on [an] appellant’s motion for new trial is an abuse of discretion
when the motion raises matters not determinable from the record, as long as the defendant provides
a supporting affidavit showing reasonable grounds for holding that relief should be granted.”
Griffith v. State, 507 S.W.3d 720, 721 n.1 (Tex. Crim. App. 2016) (internal quotation omitted).
Recognizing a hearing on a motion for new trial is only required if the motion raises matters that
cannot be determined from the record, Chapa’s argument in his brief asserting a hearing was
required consists of the following three sentences:
Here, even though a lot of the ineffective assistance of counsel claims have been somewhat developed enough to show that there was no strategic reason for these actions, a hearing could assist this appellate court to demonstrate further the full extent of the harm and prejudice suffered by Chapa. This is especially true in regards to the fact that Chapa decided not to testify when he and his attorneys discussed how it would harm Galindo. The affidavit provides facts and allegations of how Chapa was harmed by the joint representation and how he did not receive effective assistance as a result. If the court deems that the record in this is insufficient to determine whether trial counsel was ineffective, Appellant asks this case be remanded for a full hearing on those matters.

With regard to Chapa’s assertion that a hearing was necessary on the issue of the conflict
of interest due to the joint representation of both Chapa and Galindo, the trial court could have
determined, as this court has, that the conflict was waived. Similarly, because the trial court could
have determined, as this court has, that the record is sufficiently established to overrule Chapa’s
ineffective assistance of counsel claims, we hold the trial did not abuse its discretion in refusing to
hold a hearing on Chapa’s motion for new trial.
Chapa’s seventh issue is overruled.

Outcome: The trial court’s judgments are affirmed.

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