                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00103-CR

                                          Melvin MARTIN,
                                             Appellant

                                                   v.

                                        The STATE of Texas,

                     From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR3537
                            Honorable Mary D. Roman, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: April 1, 2015

AFFIRMED

           Melvin Martin appeals his thirty-four convictions and sentences for sexual misconduct with

a child. In six issues, he argues the trial court committed reversible error and he received ineffective

assistance of counsel. We affirm.

                                            BACKGROUND

           Martin was indicted for thirty-six counts of sexual misconduct (including indecency,

contact, and assault) with a child. Martin pled not guilty, and the State proceeded on all but one

count. The jury convicted Martin on all of the remaining counts except one. Martin appeals.
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                                 EXTRANEOUS BAD-ACT EVIDENCE

        Citing to the child-victim’s testimony in which she testified about more incidents of

Martin’s sexual misconduct than what the indictment charged, Martin argues the trial court erred

by admitting evidence of extraneous bad acts. However, as Martin admits in his fourth issue, his

trial counsel did not object to this evidence. Martin has waived this issue for appeal. See TEX. R.

APP. P. 33.1(a)(1).

                                MOTION FOR NEW TRIAL HEARING

        In his second issue, Martin argues the trial court erred by denying him a hearing on his

motion for new trial. The State responds Martin did not properly present the motion to the trial

court. When a motion for new trial raises matters not determinable from the record, which could

entitle him to relief, a trial court abuses its discretion in failing to hold a hearing. Hiatt v. State,

319 S.W.3d 115, 122 (Tex. App.—San Antonio 2010, pet. ref’d). A defendant must present a

motion for new trial to the trial court within ten days of being filed. Id. The purpose of the

presentment requirement is to put the trial court on actual notice that the defendant desires the trial

court to hear or rule on the motion. Id. Presentment must be apparent from the record, and “it may

be shown by such proof as the judge’s signature or notation on the motion or proposed order, or

an entry on the docket sheet showing presentment or setting a hearing date.” Id.

        Martin’s motion for new trial was filed in December 2013, but the record contains no proof

the trial court was made aware of the motion. Although the record contains a certificate of

presentment signed by Martin’s counsel stating that the motion was hand delivered to the “office”

of the court, “[c]ourts have consistently rejected the notion that [such] a statement . . . is sufficient

to establish presentment.” See id. Because the record does not show Martin properly presented the

motion for new trial, the complaint is waived.



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                             INEFFECTIVE ASSISTANCE OF COUNSEL

       In his remaining four issues, Martin complains he received ineffective assistance of

counsel. Sixth Amendment ineffective assistance of counsel claims are governed by Strickland’s

two-prong test of determining whether trial counsel’s representation was constitutionally deficient

and whether the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.

668 (1984); accord Russell v. State, 90 S.W.3d 865, 875 (Tex. App.—San Antonio 2002, pet.

ref’d). “Any allegation of ineffectiveness must be firmly founded in the record.” Russell, 90

S.W.3d at 875. To satisfy Strickland’s first prong on direct appeal, the record must demonstrate:

(1) trial counsel’s deficient performance of some act or failure to perform some act; and (2) trial

counsel had no reasonable trial strategy for the act or omission. See Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). A hearing on a defendant’s allegations of ineffective assistance

of counsel is ordinarily necessary to obtain reversal for ineffective assistance on direct appeal. See

Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

       Martin’s allegations of ineffective assistance are not firmly founded in the record. The

record does not support Martin’s complaint that trial counsel failed to strike venire members who

expressed they would hold it against Martin if he failed to testify. Rather, the record shows that in

response to the prosecutor’s question of whether any venire member would hold it against Martin

for not testifying, the venire panel responded, “No.”

       Martin’s second complaint of ineffective assistance is that his trial counsel did not object

to the child-victim’s testimony that “included additional instances of sexual abuse that were

unindicted” when “the complainant seemed unsure as to the number of times a particular incident

may have occurred.” Trial counsel could have had a reasonable trial strategy for not objecting on

“extraneous bad act” grounds to an alleged child-victim’s uncertainty about the number of times



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Martin might have had improper sexual relations with her. Therefore, this allegation of deficient

performance is not firmly founded in the record.

       Martin’s last two issues complain that trial counsel failed to communicate a plea offer,

failed to investigate, and failed to subpoena a witness who was material to his defense. The only

indication in the record of these alleged omissions is in Martin’s self-serving affidavit. Martin’s

motion for new trial, which was not presented to the trial court and to which trial counsel had no

opportunity to respond, does not satisfy the requirement that an allegation of ineffectiveness be

firmly founded in the record. See Flores v. State, 18 S.W.3d 796, 800 (Tex. App.—Austin 2000,

no pet.) (“There is no evidence in this record, other than appellant’s late-filed and self-serving

affidavit, to support his claims that his counsel was ineffective and that his guilty pleas were

involuntarily made.”); Enard v. State, 764 S.W.2d 574, 576 (Tex. App.—Houston [14th Dist.]

1989, no pet.) (“We find no evidence in the record that supports appellant’s claim regarding his

attorney's advice other than appellant’s own self serving affidavit. There is no affidavit by trial

counsel to support such claims.”). Therefore, we hold Martin’s allegations of ineffective assistance

of counsel are not firmly founded in the record.

                                          CONCLUSION

       We affirm the trial court’s judgment.

                                                   Luz Elena D. Chapa, Justice

DO NOT PUBLISH




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