NUMBER 13-19-00205-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FRANCISCO ESCOBEDO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Memorandum Opinion by Justice Benavides
By three issues, appellant Francisco Escobedo challenges his conviction for
aggravated sexual assault of a child under the age of six, a first-degree felony. See TEX.
PENAL CODE ANN. § 22.021(a)(2)(b). Escobedo argues that (1) his trial counsel was
ineffective; (2) the State violated its Brady obligations, see Brady v. Maryland, 373 U.S.
83 (1963); and (3) cumulative error caused harm. We affirm.
I. BACKGROUND
A. Procedural History
Escobedo’s case has been before this Court multiple times. Following his
conviction by a jury, Escobedo filed a notice of appeal and a motion for new trial. The trial
court granted Escobedo’s motion for new trial after a hearing, and the State appealed.
See State v. Escobedo, No. 13-16-00684-CR, 2018 WL 6627321, at *1 (Tex. App.—
Corpus Christi–Edinburg Dec. 19, 2018, no pet.) (mem. op., not designated for
publication) (Escobedo II). During that same time, Escobedo filed a motion with this Court
asking us to stay proceedings during the pendency of the State’s appeal. See Escobedo
v. State, No. 13-16-00590-CR, 2017 WL 3431828, at *1 (Tex. App.—Corpus Christi–
Edinburg Aug. 10, 2017, no pet.) (mem. op., not designated for publication) (Escobedo
I). We denied Escobedo’s motion to stay and dismissed his appeal for want of jurisdiction.
Id.
In the State’s appeal, the State argued that the trial court abused its discretion for
granting a motion for new trial based on ineffective assistance of counsel and an alleged
Brady violation. See Escobedo II, 2018 WL 6627321 at *1. We agreed with the State,
vacated the trial court’s order granting a new trial, and reinstated Escobedo’s conviction.
Id. This appeal stems from the jury’s conviction of Escobedo.
B. Evidence at Trial
Escobedo was indicted for sexually assaulting G.E.,1 a child under the age of six
1 We use initials for the minor and her family members in order to protect her identity. See TEX. R.
APP. P. 9.8 cmt. (“The rule does not limit an appellate court’s authority to disguise parties’ identities in
appropriate circumstances in other cases.”).
2
years old. See TEX. PENAL CODE ANN. § 22.021(a)(2)(b). 2 During the guilt-innocence
phase of his 2016 trial, the State called (1) G.E.; (2) L.U., G.E.’s mother; (3) J.U., her
grandmother; (4) D.U., her grandfather; (5) Officer Steven Moran with the Corpus Christi
Police Department; (6) Detective J.R. Rodriguez with the Corpus Christi Police
Department; (7) forensic nurse Sandra Pardo; and (8) licensed counselor Danea Mickey.
G.E., who was six years old at the time of trial, testified that her father, Escobedo,
whom she referred to as “Frank,” “did something bad to her” when she lived with him as
a four-year-old. She told the jury that Escobedo touched her “private area” and butt with
his “private area” more than once. G.E. explained that he would take her clothes off, put
his “private area” in her “private area,” that she did not like it and it was “uncomfortable,”
and he told her not to tell anyone. G.E. said she felt “safe” at her grandmother’s house
and told J.U. so the abuse would stop. G.E. also stated that Escobedo would show her
videos on his phone of adults performing sexual acts. G.E. stated she asked Escobedo
to stop, but the abuse continued.
The trial court held a hearing outside the presence of the jury where the State
sought to introduce J.U. as an outcry witness. See TEX. CODE CRIM. PROC. ANN. art.
38.072 (stating that an outcry witness is the first adult to whom the child describes being
the victim of certain crimes, including many sexual crimes). After hearing her testimony,
the trial court designated J.U. as an outcry witness and allowed her to testify regarding
G.E.’s statements. J.U. testified she would watch G.E. when G.E.’s mother worked,
2 The minimum term of imprisonment in this case was increased to twenty-five years to life without
parole because the complainant was younger than six years of age at the time that the offense was
committed. See TEX. PENAL CODE ANN. § 22.021(f)(1).
3
mostly at night or on the weekends. She explained that on September 9, 2014, while G.E.
was showering at her house, G.E. stated, “Grandma, can I tell you something . . . . you
promise you won’t get mad, Grandma . . . [Escobedo]’s been putting his pee pee on my
pee pee.” J.U. said that G.E. seemed afraid to tell her, so she did not ask any more
questions of G.E. and waited until L.U. returned home from work. J.U. told both L.U. and
D.U., and L.U. went to her home to speak to Escobedo. J.U. explained that G.E. later told
her additional information regarding watching the adult videos and described how the
sexual assault “burned.” J.U. also testified that L.U. had described to her that G.E. was
“sore down there” and would “hold herself down there.” After G.E.’s outcry, J.U. said
G.E.’s behavior “made sense.” J.U. explained that Escobedo is G.E.’s father, that she got
along with Escobedo when L.U. and he lived together, and that children can be
manipulated by adults. She stated that G.E. now has difficulty concentrating on tasks and
goes to counseling.
L.U. testified that she tried to “work it out” with Escobedo because she wanted G.E.
to have both of her parents in her life. She agreed with J.U. that she would ask her parents
to watch G.E. while she was working, unless Escobedo was off of work. She stated she
wanted things to “work out” with Escobedo until she heard G.E.’s outcry; she moved out
of his home the following day. L.U. described that, when she got home from work, that
J.U. told her what G.E. had said, and she went to G.E. and asked her to explain what had
happened. After G.E. told her, L.U. confronted Escobedo and he said “he didn’t do it,”
acting very “calm” and “level-headed.” L.U. explained that when she looked into
Escobedo’s eyes, she could tell he was not telling the truth. D.U. took G.E. to the hospital
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in the following days because L.U. was “still in shock.” L.U. stated that she did not tell
G.E. to “say things” in order to “punish” Escobedo. She also described a time prior to
G.E.’s outcry that she had found G.E. under the bed “touching” herself. L.U. also stated
on cross-examination that Escobedo does not normally have what she called a “calm”
demeanor.
D.U. testified that he has a close relationship with G.E. When J.U. told him what
G.E. had said, he told L.U. that if she went back to Escobedo, he would report her
because he did not want G.E. back with Escobedo. He stated that the following day, a
friend in law enforcement told him to take G.E. to Driscoll Children’s Hospital (Driscoll) for
an exam. D.U. explained that G.E. was very scared and the staff was only able to draw
blood from her because she was “crying and screaming.” D.U. agreed that Escobedo
would watch G.E. alone on some evenings and weekends if they did not watch her. D.U.
felt that G.E. is less focused and very emotional these days. He also testified that G.E.
once walked in on him in the bathroom and exclaimed that D.U.’s penis was “bigger” than
Escobedo’s. On cross-examination, D.U. stated that Escobedo said he had “anxiety” and
sometimes would have to walk outside to “cool off.” He also agreed that he did not check
G.E. for injuries but took her to the hospital two days after she made the outcry. D.U. also
said that G.E was normally “okay” at the doctor, but when she was at Driscoll, she was
hiding from the staff.
Detective Rodriguez testified that he is with the child crimes unit and set up the
Children’s Advocacy Center (CAC) interview for G.E. He said he spoke with L.U., as well
as J.U and D.U, but Escobedo refused to give a statement. He explained that the case
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was based on the statements of the child and the family members, and that very often, in
these types of cases, there are just statements and no physical evidence. Detective
Rodriguez also felt that G.E. “knew things” that a child that age should not know but
agreed that she could have learned that information from someone other than Escobedo.
Pardo was the forensic nurse at Driscoll who saw G.E. She testified that G.E. could
tell her why she was at the hospital and stated that Escobedo touched her sexual organ.
Pardo did not observe any surface body injuries on G.E., but when she attempted to
perform a genital examination, G.E. was crying, was fearful, looked at the floor, shook,
and ran behind the trash can. Pardo stated she stopped the exam at that time because
the exams should be nontraumatic. She determined G.E. had been sexually abused
based on the history presented. On cross-examination, Pardo told the jury that she had
never seen a patient hide behind the trash can before and G.E.’s mental stability was
more important than trying to “force” an exam. She also stated that a majority of patients
that have been sexually abused do not show any injury because that area of the body
heals quickly.
Mickey, G.E.’s licensed professional counselor, stated that L.U. brought G.E. to
her to “help her work through things.” Mickey felt that G.E. was “very advanced” for her
age and had a strong sense of what “bad” was. She stated that it took five sessions before
G.E. was willing to discuss what had occurred and would role play very aggressively.
Mickey felt that G.E. called Escobedo “Frank” in order to not “hurt” her version of how a
father should act. Mickey also believed that the behavior G.E. exhibited was consistent
with abuse. On cross-examination, Mickey agreed there could be other explanations for
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G.E.’s behavior. She also agreed that G.E. would want to please the adults in her life,
was good at following directions, and children can makeup stories without malice.
However, Mickey also stated that she normally sees more emotion when children are
telling a lie and that G.E. showed no emotion because Mickey felt G.E. detached herself
from the trauma of the abuse. She also explained that she had worked with children that
were coached and they usually give it away, and she did not feel that G.E. was coached.
Escobedo’s mother Corina Martinez, his father Frank Escobedo Jr., and his
brothers Andrew and Nick Escobedo testified for the defense. Most of the family members
agreed that L.U. would “have a fit” if she did not get her way on something and that G.E.
did not appear uncomfortable and scared of Escobedo. Martinez stated that G.E. was not
a “well-mannered child” and that L.U. taught her to “disrespect” Escobedo. Martinez also
said that she did not believe that any abuse happened between G.E. and Escobedo.
Escobedo also testified in his own defense. He stated that he met L.U. in 2008 and
she got pregnant with G.E. about six months after they met. He stated her family did not
want him around because he was “lazy” and did not have a job. After G.E. was born, they
were not together anymore, and according to Escobedo, he tried to see G.E. but L.U.
would not allow him. In 2013, L.U. texted him and he met G.E. at a local park. When her
family found out L.U. and Escobedo were dating again, they kicked L.U. and G.E. out and
they came to live with Escobedo. G.E. calls him “Frank” like L.U. did. Escobedo denied
assaulting G.E. Escobedo stated the relationship between L.U. and him fell apart in 2014
and they both began seeing other people, but that L.U. got upset when she found out he
was talking to another female. Escobedo first found out about the allegations when he
7
was contacted by a detective who told him to “get a lawyer.” Escobedo stated that Child
Protective Services called him as well but never followed up. He explained he was
“shocked” about the allegations and L.U. never came to confront him as she claimed. On
cross-examination, he agreed he never went to court to seek visitation with G.E. because
he did not want to pay child support. He also stated that he never watched G.E. as much
as L.U.’s family testified. Escobedo said G.E. lied about the abuse and that L.U. called
three days after G.E. reported the abuse and said to “stay away.”
The jury convicted Escobedo of aggravated sexual assault of a child and
sentenced him to forty years’ imprisonment in the Texas Department of Criminal Justice–
Institutional Division. See TEX. PENAL CODE ANN. § 22.021(a)(2)(b).
C. Motion for New Trial Hearing
Escobedo alleged in his motion for new trial that the Nueces County District
Attorney’s Office failed to comply with its discovery obligations and withheld evidence
related to the CAC office. Specifically, Escobedo alleged that the District Attorney at the
time was a board member of the CAC and had personal knowledge that there were
“deficiencies in their interview processes and further that they had failed to meet state
guidelines and standards.” Escobedo alleged if he had known of these “deficiencies,”
defense counsel would have “employed a completely different trial strategy” and the
withheld evidence was “relevant and would have resulted in a different outcome should
he have presented it to the jury.”
The testimony from the hearing is further discussed in our prior opinion. See
Escobedo II, 2018 WL 6627321 at *4–6. This appeal followed.
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II. ALLEGED BRADY VIOLATION
By his second issue, which we address first, Escobedo alleges that the Nueces
County District Attorney’s Office failed to comply with its article 39.14 of the code od
criminal procedure and Brady discovery requirements. See TEX. CODE CRIM. PROC. ANN.
art. 39.14; Brady, 373 U.S. at 83.
A. Applicable Law
The United States Supreme Court in Brady held “that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good or
bad faith of the prosecution.” Brady, 373 U.S. at 87. The Texas Court of Criminal Appeals
has held that in order to find reversible error under Brady and United States v. Bagley, a
defendant must show that: (1) the State failed to disclose evidence, regardless of the
prosecution’s good or bad faith; (2) the withheld evidence is favorable to him; and (3) the
evidence is material, that is, there is a reasonable probability that had the evidence been
disclosed, the outcome of the trial would have been different. Hampton v. State, 86
S.W.3d 603, 612 (Tex. Crim. App. 2002). “Favorable evidence is that which, if disclosed
and used effectively, ‘may make a difference between conviction and acquittal.’” Ex parte
Miles, 359 S.W.3d 647, 655 (Tex. Crim. App. 2012) (quoting Bagley, 473 U.S. at 676).
Favorable evidence includes both exculpatory and impeachment evidence. Diamond v.
State, __S.W.3d__, __, 2020 WL 3067582, at *7 (Tex. Crim. App. June 10, 2020).
The nondisclosure of favorable evidence violates due process only if it is “material”
to guilt or punishment. Id. (quoting Pena v. State, 353 S.W.3d 797, 812 (Tex. Crim. App.
9
2011)). Evidence is material only if there is a reasonable probability that, had it been
disclosed, the outcome of the trial would have been different. Id. Reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id. Materiality is
determined by examining the alleged error in the context of the entire record and overall
strength of the State’s case. Id. The suppressed evidence is considered collectively, not
item-by-item. Id.
B. Discussion
Here, Escobedo alleged the State withheld documents regarding the CAC.
Specifically, during his motion for new trial hearing, he claimed the State should have
disclosed the District Attorney’s role as a board member of the CAC, a site report that
stated deficiencies in the CAC, and the lack of proper training of certain CAC interviewers.
These same allegations were previously addressed by this Court in Escobedo II.
See 2018 WL 6627321, at 4–8. Under the “law of the case doctrine,” we are bound by
the findings made in that appeal. See State v. Swearingen, 478 S.W.3d 716, 720 (Tex.
Crim. App. 2015). There, we agreed with the State that the withheld documents would
“not have changed the outcome of the guilt-innocence trial especially given that neither
the State nor Escobedo offered [G.E.]’s forensic interview from the CAC into evidence or
played it for the jury.” Escobedo II, 2018 WL 6627321, at *6. Testimony during the motion
for new trial hearing established that the interviewer who spoke with G.E. was not the
individual who was listed as improperly credentialed in the report. Id. at *7. Further, even
though G.E. went to the CAC and gave an interview that was mentioned during trial,
G.E.’s interviewer was not called as a witness. See id. at *6–7. Escobedo II held that
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“because the documents have no bearing on any of the guilt-innocence trial testimony,
the CAC reports do not exculpate Escobedo.” Id. at *6. Additionally, we held the
undisclosed documents Escobedo complains of do not “justify, excuse or clear
[Escobedo] from alleged fault of guilt” and are neither exculpatory nor useful for
impeachment purposes. Id. Given our holding in Escobedo II, we overrule Escobedo’s
second issue.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
By his first issue, Escobedo alleges his trial counsel was ineffective by failing to:
(1) object to the State’s outcry notice; (2) object to the State’s intention to use the child
abuse victim hearsay statement; and (3) properly cross-examine witnesses and secure
rebuttal witnesses to the State’s expert.
A. Standard of Review and Applicable Law
To prevail on a claim of ineffective assistance of counsel, the defendant must show
that counsel’s performance was deficient and that the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Prine v. State, 537
S.W.3d 113, 117 (Tex. Crim. App. 2017). “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 cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. The defendant bears the burden of proving by a
preponderance of evidence that counsel was ineffective. Prine, 537 S.W.3d at 116.
Counsel’s performance is deficient if it falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 688. There is a strong presumption that counse’sl
11
conduct was reasonable; strategic decisions “made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.” Wiggins v. Smith,
539 U.S. 510, 521 (2003); Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012).
“It is not sufficient that the appellant show, with the benefit of hindsight, that his counsel’s
actions or omissions during trial were merely of questionable competence. Rather, the
record must affirmatively demonstrate trial counsel’s alleged ineffectiveness.” Mata v.
State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). The defendant must overcome the
“strong presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance” and that the conduct constituted sound trial strategy. Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
To defeat this presumption, allegations of ineffective assistance must be found in
the record and trial counsel should be given an opportunity to explain his actions before
being determined to be ineffective. Prine, 537 S.W.3d at 117. In the face of an
undeveloped record, counsel should be found ineffective only if his 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).
B. Discussion
Escobedo alleges trial counsel was deficient for not objecting to the State’s outcry
notice. However, the State’s outcry notice is not contained in the records Escobedo
designated to be provided to this Court, so we are unable to assess trial counsel’s
effectiveness in this regard. For this reason, we conclude that Escobedo has wavied any
complaint regarding his counsel’s failure to object to the outcry notice. See TEX. R. APP.
12
P. 33.1; Johnson v. State, 409 S.W.3d 738, 743 (Tex. App.—Houston [1st Dist.] 2013, no
pet.) (“Because it was appellant’s burden to ensure a complete record on appeal, we
presume that omissions support the judgment of the trial court.”).
Next, Escobedo alleges trial counsel was deficient because he failed to object to
the State’s intention to use an outcry witness. Under article 38.072 of the code of criminal
procedure, the State must give notice of its intent to call an outcry witness and provide
the name and summary of the statement at least fourteen days before the proceedings
begin. See TEX. CODE CRIM. PROC. ANN. art. 38.072(b)(1)(A)–(C). The trial court then
conducts a hearing, outside the presence of the jury, and must make a finding that the
statement is reliable on the time, content, and circumstances of the statement, and that
the child is available to testify. Id. art. 38.072(b)(2), (3). During a hearing conducted
outside the presence of the jury, Escobedo’s trial counsel was able to cross-examine the
outcry witness, J.U. He argued to the trial court that a specific time was not determined
from the incidents G.E. allegedly told J.U. of and that it was an unreliable statement. The
trial court found the statement reliable and allowed J.U. to testify as an outcry witness.
Nothing that Escobedo’s trial counsel did would be considered deficient or fell below the
objective standard of reasonableness. See Strickland, 466 U.S. at 688. Additionally, even
though Escobedo had a hearing on his motion for new trial, this particular allegation of
deficient performance was not addressed and trial counsel has not been given the
opportunity to explain the reasons for his actions. See Prine, 537 S.W.3d at 117.
Lastly, Escobedo argues that trial counsel was ineffective because he did not
properly cross-examine witnesses or find rebuttal witnesses regarding the State’s
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experts. Although Escobedo makes broad references to what experts felt were the “best
practices” and asserts that “numerous doctors, as well as nurses” as well as “a friend of
mine who is a Licensed Professional Counselor” would have been available to testify,
there is no specific reference to who trial counsel should have called and what specifically
they would have testified to. Counsel’s conscious decision not to pursue or to call a
witness is not insulated from review, but unless a defendant overcomes the presumption
that counsel’s actions were based in sound trial strategy, counsel will generally not be
found to be ineffective. See Ex parte Rogers, 369 S.W.3d 858, 862 (Tex. Crim. App.
2012); Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005). However, again,
although Escobedo had a hearing on his motion for new trial, this particular allegation of
deficient performance was also not raised and trial counsel has not been given an
opportunity to explain his actions. See Prine, 537 S.W.3d at 117. On this record, there is
no way to know if this was deliberate and trial strategy or done for some other reason.
See id. We overrule Escobedo’s first issue.
IV. CUMULATIVE ERROR
By his third issue, Escobedo alleges that the previous alleged errors cumulatively
caused him harm which require a reversal. However, the Texas Court of Criminal Appeals
has held that there is “no authority holding that non-errors may in their cumulative effect
cause error.” Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009);
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). Since we have found
no error in our analysis of Escobedo’s previous issues, we overrule this third issue.
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V. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
8th day of October, 2020.
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Francisco Escobedo v. State
Combined Opinion