Armando Jesus Pedraza v. the State of Texas

Opinion issued April 21, 2026




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-24-00742-CR
                            ———————————
                  ARMANDO JESUS PEDRAZA, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 230th District Court
                            Harris County, Texas
                        Trial Court Case No. 1817953


                          MEMORANDUM OPINION

      A jury found appellant, Armando Jesus Pedraza, guilty of the felony offense

of assault on a family member by impeding breathing or circulation.1 After appellant

pleaded true to the allegations in two enhancement paragraphs that he had been


1
      See TEX. PENAL CODE ANN. § 22.01(a), (b)(2)(B).
previously convicted of certain offenses,2 the trial court assessed appellant’s

punishment at thirty years’ confinement. In one issue, appellant contends that he

was denied effective assistance of counsel during the punishment phase of trial

because his trial counsel (1) failed to object to hearsay testimony and (2) erroneously

instructed appellant that he could testify and still exercise his Fifth Amendment right

to remain silent.

         We affirm.

                                        Background

         Appellant was charged with the offense of assault on a family member by

impeding the breathing or circulation of the blood of the complainant, Maria Esther

Dominguez, in May 2023. Appellant pleaded not guilty, and the case proceeded to

trial.

         During the guilt phase of trial, the complainant testified that she met appellant

on Facebook in 2022.          They began dating, and appellant moved in with the

complainant four months later.




2
         In 2022, appellant was convicted of the misdemeanor offense of assault of a family
         member in trial court cause number 2372682 in the County Criminal Court at Law
         No. 16 of Harris County, Texas. In 2006, he was convicted of the felony offense of
         possession with intent to distribute a controlled substance, namely cocaine weighing
         at least 400 grams, in trial court cause number 1032678 in the 208th District Court
         of Harris County.

                                              2
       The complainant testified that when she returned home from work on May 2,

2023, appellant took her cell phone and began looking for conversations with other

men. When he saw a conversation on the complainant’s phone with a male friend,

he became irate, accused the complainant of cheating on him, and told her he was

going to kill her. The complainant testified that appellant picked her up and threw

her on the bed. Appellant restrained the complainant’s arms and began punching

her head and ears and choking her. The complainant had trouble breathing and bit

her tongue. After appellant stopped hitting her, she tried to leave but became dizzy

and fell.

       The complainant left the house the next morning and called 911 to report the

assault. She had a busted lip, a black eye, and a bump on her head; her face was

swollen, and her throat and body were sore.          The officers accompanied the

complainant back to the house so she could pack a bag and leave. Photographs of

the complainant’s injuries and bloodstains on the bed, as well as the complainant’s

telephone calls to 911, were admitted into evidence.

       The jury found appellant guilty of the felony offense of assault on a family

member by impeding breathing or circulation.

       At the start of the punishment phase, appellant pleaded true to the allegations

in two enhancement paragraphs that he had been previously convicted of the offense

of assault of a family member and the felony offense of possession with intent to


                                          3
distribute a controlled substance. The State called several witnesses, including the

complainant, to testify.

      Pasadena Police Department (“PPD”) Officer H. Trujillo testified that in

August 2021, he was dispatched in response to a disturbance call. He spoke with

Carol Rodriguez who told him that appellant had entered their bedroom and struck

her because he believed she had been texting another man. Officer Trujillo testified

that Rodriguez sustained bruising to her eye and both arms as a result of appellant’s

assault. As a result, appellant was charged with the offense of assault of a family

member. Photographs of Rodriguez’s injuries were admitted into evidence.

      Through the testimony of Harris County Sheriff’s Office (“HCSO”) Officer

D. Medina, a latent print examiner, the State introduced appellant’s previous

judgments of conviction for the offenses of assault of a family member and driving

while intoxicated (“DWI”) and the felony offense of possession with intent to deliver

a controlled substance.     The State also introduced evidence of appellant’s

convictions for the first-degree felony offense of sale of a controlled substance and

the offense of making a terroristic threat in Minnesota.

      HCSO Deputy V. Garcia testified that he responded to a 911 call from the

complainant in February 2024.        According to Deputy Garcia, appellant was

harassing the complainant through cell phone calls in violation of the conditions of




                                          4
his bond for the present case. Appellant was later charged with violating his bond

conditions.

        PPD Officer Z. Mabes testified that in February 2024, he investigated a

possible auto theft.    Officer Mabes testified that following his investigation,

appellant was charged with the offense of burglary of a motor vehicle. Appellant

was on bond in the present case when he was charged with the new offense.

        The complainant testified that appellant smoked methamphetamine regularly

during their relationship. According to her, appellant was a “totally different person”

when he smoked; he became paranoid and thought “people were after him.” The

complainant testified that appellant was violent toward her on several occasions

before the assault in this case. In August 2022, appellant struck the complainant in

the face after becoming angry when he thought he was late for work.               The

complainant testified that she called the police and appellant was charged with the

offense of assault. Appellant later told her that he was on bond at the time for

assaulting another woman. The complainant testified that appellant called her

numerous times after the August 2022 assault in violation of the conditions of his

bond.

        When the State asked the complainant why she wanted to testify, the

following exchange took place:

        Q.    Did you want to testify today?


                                          5
A.    Yes.

Q.    Why do you want to testify about what happened?

A.    Because I don’t want this to happen to anybody else.

Q.    Are you worried that [appellant] would do this to anyone else?

A.    Yes.

Q.    Why do you believe that?

A.     Because it’s a pattern. I mean, from -- from the research that I’ve
done -- you know, from a case where he held a woman hostage and her
child.

Q.    Do you know what case that is?

A.    A Minnesota case, I think.

Q.    How did you find out about that case?

A.    I Googled.

Q.    What did you Google?

A.    His name.

Q.    Why did you do that?

A.    I just had a feeling. Out of curiosity, let me just look it up.

Q.    And when you Googled his name, what did you find?

A.    I found an article.

Q.    What kind of article?

A.    It was an article that explained, you know, what had happened to
that woman and her child.
                                    6
                                          ....

      Q.     What do you remember that that article said?

      A.    I remember that it stated that the woman was held captive at her
      house with her child, and that she was receiving -- she was getting
      beaten -- being beaten by him, and that he had bit her. It stated that he
      had a machete and beg[a]n to cut her in pieces with the machete.

             It also said that her child [was] there . . . , and the child was
      listening, and said that the child testified to that, as well.

                                          ....

      Q.     When you read that article, how did you feel?

      A.    It’s like a bucket of water just poured all over me, like, huge
      anxiety.

Appellant’s trial counsel did not object to this testimony. After the State rested, trial

counsel called appellant to testify.

      Appellant testified that he had pleaded true to the allegations in two

enhancement paragraphs that he had been convicted of the offense of assault of a

family member in 2022, for which he served a year in jail, and the felony offense of

possession with intent to deliver a controlled substance in 2006, for which he was

sentenced to fifteen years’ confinement. He also testified that he had pending

criminal charges against him at the time of trial, including a charge for the offense

of burglary of a motor vehicle. According to appellant, he was drunk and using

drugs at the time of the burglary offense. When trial counsel asked whether he



                                           7
intended to assert his Fifth Amendment right against self-incrimination regarding

the pending charges, appellant answered “yes.”

       On cross-examination, appellant denied causing the bruising to the

complainant’s eye that appeared in the photographs admitted into evidence. Trial

counsel objected, stating, “[Appellant] at this point still has a pending assault with

previous conviction, and it’s still pending, so these questions right now are having

him self-incriminate. He’s incriminating himself for a potential future trial.” Noting

that appellant had taken the stand, the trial court overruled the objection.

       Later, when the State asked appellant if he knew how the complainant had

sustained the scratch to the back of her ear, appellant replied that he “would plead

the fifth.” The trial court instructed appellant to answer the question, and appellant

denied causing the injury to the complainant’s ear.

       While testifying, appellant continued to deny the complainant’s account of the

assault, stating:

       A.     No. My testimony is that nothing of what she’s saying happened.
       My testimony is that I still maintain my innocence, okay, on all the
       pending charges that you have, and I would like to appeal the one that
       is just right now the verdict. So, yes, what I’m trying to tell you, in
       essence, is I think I need to take the Fifth here, but you’re not allowing
       me to.

The State replied, “No, not how that works. You elected to testify, and you have to

answer these questions.” At that point, the trial court stated, “Let me make sure

everybody is aware. He elected to testify. He can’t testify about some things and
                                           8
then take the Fifth on other things. It is not allowed. You’re going to have to answer

the questions because you took the stand.” Appellant responded, “[O]kay.”

      Appellant admitted to punching his former girlfriend in the eye, a charge for

which he was on bond when he was arrested for assaulting the complainant in August

2022. He also admitted to violating his bond conditions while the present case was

pending by using drugs and alcohol.

      After both sides rested, the trial court found the two enhancement paragraphs

true3 and sentenced appellant to thirty years’ confinement.

                         Ineffective Assistance of Counsel

      In his sole issue, appellant contends that he was denied effective assistance of

counsel during the punishment phase of trial because his trial counsel (1) failed to

object to hearsay statements the complainant made about the news article she read

detailing the allegations surrounding the terroristic threat charge against him in

Minnesota and (2) erroneously instructed him that he could testify and still exercise

his Fifth Amendment right to remain silent.

A.    Standard of Review

      The Sixth Amendment to the United States Constitution guarantees the right

to counsel in criminal prosecutions. U.S. CONST. amend. VI; see also TEX. CONST.



3
      The trial court stated that it would “make no specific findings as to the Minnesota
      case.”

                                           9
art. I, § 10. “[T]he right to counsel is the right to the effective assistance of counsel.”

Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.

Richardson, 397 U.S. 759, 771, n.14 (1970)).

       To prevail on an ineffective assistance claim, a defendant must prove that

(1) his trial counsel’s performance was deficient and (2) the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687; Hart v. State, 667 S.W.3d 774,

781 (Tex. Crim. App. 2023). The defendant bears the burden of proving both prongs

by a preponderance of the evidence. Strickland, 466 U.S. at 687; Dryer v. State, 674

S.W.3d 635, 646 (Tex. App.—Houston [1st Dist.] 2023, pet. ref’d). “The purpose

of this two-pronged test is to assess whether counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be said to have

produced a reliable result.” Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App.

2013). A failure to make a showing under either prong of the Strickland test defeats

a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.

Crim. App. 2003).

       Under the first prong, trial counsel’s performance is deficient if it falls below

an objective standard of reasonableness. Ex parte Moore, 395 S.W.3d 152, 157

(Tex. Crim. App. 2013). Judicial scrutiny of counsel’s performance is highly

deferential. Villa, 417 S.W.3d at 463. There is “a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the


                                            10
defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” Hart, 667 S.W.3d at

781 (quoting Strickland, 466 U.S. at 689).

         An ineffective assistance claim “must be firmly rooted in the record.” Id. at

782. Generally, “the record on direct appeal will not be sufficient to show that

counsel’s representation was so deficient and so lacking in tactical or strategic

decision-making as to overcome the strong presumption that counsel’s conduct was

reasonable and professional.” Id. (quoting Scheanette v. State, 144 S.W.3d 503, 510

(Tex. Crim. App. 2004)). Trial counsel should ordinarily be given an opportunity to

explain his conduct on the record before a court will sustain an ineffective assistance

claim.     Id.   When counsel has not been given such an opportunity, “courts

‘commonly assume a strategic motive if any can be imagined and find counsel’s

performance deficient only if the conduct was so outrageous that no competent

attorney would have engaged in it.’” Id. (quoting Okonkwo v. State, 398 S.W.3d

689, 693 (Tex. Crim. App. 2013)). Counsel’s performance is deficient only if the

court finds, as a matter of law, that “no reasonable trial strategy could justify trial

counsel’s acts or omissions, regardless of his . . . subjective reasoning.” Id. (quoting

Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)).

         Under Strickland’s second prong, we must determine whether there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the


                                           11
proceeding would have been different. 466 U.S. at 694. “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Id. That an

error had “some conceivable effect on the outcome” will not suffice. Perez v. State,

310 S.W.3d 890, 894 (Tex. Crim. App. 2010). When a defendant claims that his

trial counsel’s deficient performance resulted in a harsher punishment, he must show

that a reasonable probability exists that, absent the alleged errors, the fact finder

would have assessed a more lenient punishment. See Swinney v. State, 663 S.W.3d

87, 90 (Tex. Crim. App. 2022).

B.    Analysis

      Appellant asserts that he was denied effective assistance of counsel in two

ways. First, his trial counsel failed to object during the punishment phase to the

complainant’s hearsay testimony4 concerning the news article she read online about

appellant’s terroristic threat charge in Minnesota. He argues that her testimony that

she remembered the article stating that appellant had hit and bitten the Minnesota

complainant and cut her with a machete5 constituted hearsay and speculation, was




4
      Hearsay is an out-of-court statement offered for the truth of the matter asserted. See
      TEX. R. EVID. 801(d).
5
      Contrary to appellant’s assertion, the complainant did not testify that appellant hit
      and bit the Minnesota complainant or that he cut her with a machete; rather, she
      testified that the news article stated it.

                                            12
unfairly prejudicial,6 and it violated his right to confront and cross-examine the

witnesses against him.7 He argues that trial counsel’s failure to object was deficient

performance because no reasonable trial strategy could justify allowing the trial

court to hear such aggravating evidence.

      Second, he asserts that trial counsel also erroneously advised him that he could

testify at the punishment phase of trial and still plead the Fifth Amendment

concerning questions about pending criminal charges against him and the charged

offense.8 According to appellant, trial counsel’s incorrect belief and advice to him

concerning the Fifth Amendment resulted in the trial court hearing testimony from

him about all of his extraneous offenses and the present conviction. He argues that

these errors were so outrageous that no competent attorney would have made them.

      Even assuming trial counsel’s failure to object to the complainant’s testimony

about the news article and his erroneous advice to appellant that he could both testify


6
      “The court may exclude relevant evidence if its probative value is substantially
      outweighed by a danger of . . . unfair prejudice . . . .” TEX. R. EVID. 403.
7
      A defendant has a constitutional right to confront and cross-examine the witnesses
      against him. See U.S. CONST. amend. VI.
8
      If a criminal defendant exercises his right to testify, he is subject to the same rules
      of examination and cross-examination as any other witness. See Felder v. State,
      848 S.W.2d 85, 99 (Tex. Crim. App. 1992) (noting once defendant decides to testify,
      he opens himself up to cross-examination on any relevant subject matter); Temple
      v. State, 342 S.W.3d 572, 593 (Tex. App—Houston [14th Dist.] 2010) (“The scope
      of cross-examination is wide open, and once the defendant testifies at trial, he opens
      himself up to questioning by the prosecutor on any subject matter that is relevant.”),
      aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013).

                                            13
and assert his Fifth Amendment right against self-incrimination established the first

prong of the Strickland test, we conclude the record does not affirmatively

demonstrate the second prong of the Strickland test—that there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different. 466 U.S. at 694.

      Appellant asserts that the combined errors by trial counsel permitted the trial

court to consider evidence that was aggravating in determining his punishment.

According to appellant, trial counsel’s deficient performance prejudiced the defense

as demonstrated by the fact that the trial court sentenced him to thirty years’

confinement for an offense with a minimum sentence of five years’ confinement.

Thus, appellant claims that his trial counsel’s deficient performance resulted in a

harsher punishment. See Swinney, 663 S.W.3d at 90.

      The habitual felony offender statute elevated appellant’s offense from a

second-degree felony9 to a first-degree felony.10 The punishment range for a


9
      Texas Penal Code section 22.01(b-3) provides that an offense under section (a)(1)
      (bodily injury assault) is a felony of the second degree if: (1) the offense is
      committed against a person with whom the defendant has a “dating relationship,”
      (2) it is shown on the trial of the offense that the defendant has been previously
      convicted of an offense that was committed against a person with whom the
      defendant had a “dating relationship,” and (3) the offense is committed by
      intentionally, knowingly, or recklessly impeding the normal breathing or circulation
      of the blood of the person by applying pressure to the person’s throat or neck or by
      blocking the person’s nose or mouth. TEX. PENAL CODE ANN. § 22.01(b-3).
10
      “If it is shown on the trial of a felony of the second degree that the defendant has
      previously been finally convicted of a felony other than a state jail felony punishable
                                            14
first-degree felony offense is imprisonment for life or for any term of not more than

ninety-nine years or less than five years. See TEX. PENAL CODE ANN. § 12.32(a).

      The trial court was presented with evidence of appellant’s lengthy criminal

history, including a conviction in October 2022 for assaulting another woman for

which he served a year in jail. The complainant testified that appellant was on bond

for that offense when he first assaulted the complainant in August 2022; appellant

was later charged with assault based on the August 2022 incident. Appellant’s

judgment of conviction for the offense of DWI was also admitted into evidence, and

the trial court heard evidence that appellant violated several bond conditions while

on bond for the present offense, including contacting the complainant, burglarizing

a vehicle, drinking alcohol, and using drugs. And, although it made no specific

findings, the trial court had before it evidence of appellant’s convictions for the

offense of making a terroristic threat and first-degree felony drug offense in

Minnesota. Finally, appellant pleaded true to, and the trial court found true, the

allegations in the enhancement paragraphs that appellant had been previously

convicted of the offense of assault of a family member and the felony offense of

possession with intent to deliver a controlled substance.




      under [Texas Penal Code] [s]ection 12.35(a), on conviction the defendant shall be
      punished for a felony of the first degree.” Id. § 12.42(b).

                                          15
      The punishment range in this case was imprisonment for five to ninety-nine

years or life. See TEX. PENAL CODE ANN. § 12.32(a). The trial court sentenced

appellant to thirty years’ confinement, which is less than the forty-four years the

State requested. On this record, we conclude that appellant did not demonstrate a

reasonable probability that, but for counsel’s errors, the trial court would have

assessed a more lenient punishment. See Miller v. State, 548 S.W.3d 497, 499 (Tex.

Crim. App. 2018) (noting if deficient performance might have affected punishment

verdict, prejudice issue is whether there is reasonable probability that, absent errors,

sentencer would have assessed more lenient punishment). Because appellant did not

establish the second prong of the Strickland test, we hold that his ineffective

assistance claim fails. See Lopez, 343 S.W.3d at 142 (“Unless appellant can prove

both prongs, an appellate court must not find counsel’s representation to be

ineffective.”). We overrule appellant’s sole issue.

                                     Conclusion

      We affirm the trial court’s judgment.



                                                Kristin M. Guiney
                                                Justice

Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Guiney.

Do not publish. TEX. R. APP. P. 47.2(b).



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