Opinion filed March 31, 2017




                                           In The


          Eleventh Court of Appeals
                                        __________

                                 No. 11-15-00281-CR
                                     __________

                     ANTONIO DE LA CRUZ, Appellant
                                              V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 106th District Court
                              Dawson County, Texas
                          Trial Court Cause No. 15-7606


                       MEMORANDUM OPINION
      The grand jury indicted Antonio De La Cruz for two offenses of aggravated
sexual assault of a child1 and for a third offense of continuous sexual abuse of a
child.2 Appellant pleaded not guilty to all charges. A jury found Appellant guilty
of all three offenses, and the trial court assessed his punishment at confinement for

      1
       See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2016).
      2
       See PENAL § 21.02.
life for each offense and ordered that the sentences shall run consecutively. In two
issues on appeal, Appellant asserts that the trial court abused its discretion when it
denied his motion for new trial and that he received ineffective assistance of counsel
at trial. We affirm.
                                       I. Evidence at Trial
        Appellant does not assert a sufficiency challenge, so we only outline those
facts necessary to provide context for the issues that he raises on appeal. Appellant
married Molly,3 who had a five-year-old daughter, A.S. Shortly after Appellant and
Molly married, Molly gave birth to Appellant’s son, L.D., and the family moved to
Lamesa. During their marriage, Appellant verbally abused Molly, and she began to
use drugs and drink. Molly admitted that her substance abuse often caused her to
“check out of reality.” While in Lamesa, Appellant worked as an undercover
narcotics officer for Dawson County Sheriff’s Department, but he spent a lot of time
at home and sexually abused A.S. at the home.
        Two years later, the family moved to Olton, and Appellant worked as a truck
driver. Molly’s substance abuse issues worsened while they lived in Olton. In
September 2008, while Appellant was away working, A.S. revealed to her mother
that Appellant had sexually abused her. Molly confronted Appellant via text
message regarding her daughter’s accusation. When Appellant returned and the
subject of A.S.’s abuse arose, Appellant beat Molly in front of A.S. and L.D. Molly
explained that, in order to “[k]eep us all safe,” she did not report her daughter’s
sexual abuse at that time. She also explained that her substance abuse led her to
compartmentalize her knowledge of her daughter’s sexual abuse. In October 2010,
Appellant assaulted Molly in another domestic violence incident, which eventually


        3
         Several surnames have been used by Molly during this case; however, in the interest of protecting
the victim, we will refer to her as Molly.

                                                    2
led to his imprisonment. In June 2013, A.S. reminded Molly of Appellant’s sexual
abuse, and Molly reported this abuse to the Lamb County District Attorney’s Office.
       At trial, A.S. testified and confirmed many of the details provided by her
mother earlier in trial, and she explained in detail how Appellant had sexually abused
her.
       Appellant testified in his own defense and claimed that he “did not molest
[A.S.].” In closing argument, Appellant’s trial counsel suggested that A.S. had
fabricated her sexual abuse claims in order to protect her mother. After the jury
convicted Appellant of all three offenses, he retained new counsel, and that counsel
moved for a new trial, which was overruled by operation of law. Appellant then
filed this appeal.
                              II. Standard of Review
       We review a trial court’s denial of a motion for new trial under an abuse-of-
discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014).
We review the trial court’s denial of a hearing on a motion for new trial under the
same standard. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). A trial
court abuses its discretion when it denies a motion for new trial when no reasonable
view of the record could support the ruling. Colyer, 428 S.W.3d at 122 (citing
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)). A trial court abuses
its discretion when it fails to grant a hearing if the motion and accompanying
affidavits raise matters not determinable from the record and establish reasonable
grounds that demonstrate the defendant could potentially be entitled to relief.
Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009).
       We review an ineffective assistance of counsel claim under the Strickland
standard, which is a two-part analysis that includes a performance prong and a
prejudice prong. Strickland v. Washington, 466 U.S. 668, 686 (1984). For the
performance prong, Appellant must show that trial counsel’s performance was
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deficient.   Id.   For the prejudice prong, Appellant must show that there is a
reasonable probability that the outcome would have differed but for trial counsel’s
errors. See Wiggins v. Smith, 539 U.S. 510, 534 (2003); Strickland, 466 U.S. at 694.
“A failure to make a showing under either prong of the Strickland test defeats a claim
of ineffective assistance of counsel.” Hudson v. State, No. 11-15-00047-CR, 2016
WL 3573484, at *2 (Tex. App.—Eastland June 30, 2016, pet. ref’d) (mem. op., not
designated for publication) (citing Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
App. 2010)).
                                        III. Analysis
      Appellant advances two issues on appeal. We address his second issue on
ineffective assistance of counsel first, followed by his claim that the trial court
abused its discretion when it denied his motion for new trial and did so without
holding a hearing.
      A. Issue Two: Appellant failed to establish that his trial counsel was
         ineffective.
      In his second issue, Appellant argues that his trial counsel’s performance was
deficient because he failed to do several things. First, he failed to adequately
investigate his case and conduct an adequate voir dire. Second, he failed to raise a
Batson4 challenge and challenge a biased venire panel. Third, he failed to adequately
cross-examine certain witnesses. Fourth, he failed to conduct a punishment phase
defense or give a closing argument in the punishment phase. An appellate review of
defense counsel’s performance is highly deferential, and we presume that counsel’s
actions fell within the wide range of reasonable and professional assistance.
Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002); Walker v. State, 406 S.W.3d 590, 594 (Tex. App.—Eastland 2013, pet. ref’d).



      4
       Batson v. Kentucky, 476 U.S. 79 (1986).
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      To overcome this presumption, Appellant’s claim of ineffective assistance
must be firmly founded in the record, and the record must affirmatively demonstrate
the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.
1999). In most cases, a silent record that provides no explanation for counsel’s
actions will not overcome the strong presumption of reasonable assistance. Id. at
813–14. Appellant must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy. Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648
(Tex. App.—Eastland 2005, pet. ref’d). If trial counsel has not had an opportunity
to explain the challenged actions, then we will not conclude that those actions
constituted deficient performance unless they were so outrageous that no competent
attorney would have engaged in them. See Goodspeed v. State, 187 S.W.3d 390,
392 (Tex. Crim. App. 2005); Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003). As we explain below, we disagree with Appellant that his trial counsel
was deficient under Strickland.
             1. Alleged failure to investigate case and conduct an adequate
                voir dire.
      Appellant asserts that the testimony of the witnesses named in his motion for
new trial would have changed the trial’s outcome. Any trial counsel “has a duty to
make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at 691. If trial counsel
fails to investigate witnesses, particularly eyewitnesses, this failure can support an
ineffective assistance of counsel claim. Joseph v. State, 367 S.W.3d 741, 744–45
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). A reviewing court determining
whether counsel’s performance was ineffective does not second-guess these
decisions but, rather, looks to the “reasonableness” of the attorney’s actions at the
time he made the decisions. Strickland, 466 U.S. at 690–91. In Appellant’s case,

                                          5
even if the named witnesses were available and willing to testify, they were not
eyewitnesses, and their testimony would have done little other than further diminish
Molly’s already damaged credibility. Further pursuit of that line of attack would
have done nothing to refute A.S.’s testimony. See Hale v. State, 140 S.W.3d 381,
392 (Tex. App.—Fort Worth 2004, pet. ref’d) (trial counsel not found deficient for
failing to call certain witnesses because they were not eyewitnesses and could not
have exculpated him). Appellant also claims that his counsel’s failure to call any
defense witnesses, other than Appellant, or present exhibits is representative of his
ineffective assistance. But an ineffective assistance of counsel claim must “be firmly
founded in the record.” Thompson, 9 S.W.3d at 813. Appellant references nothing
in the record to demonstrate that no plausible, professional reason existed for not
including more witnesses. See Bone, 77 S.W. 3d at 833.
      Appellant also asserts that his trial counsel was ineffective because he failed
to adequately question venire members and allowed a racially biased jury to be
seated. Appellant alleges that his trial counsel “did not ask one question that could
be reasonably expected to result in a strike for cause or to reveal any undiscovered
bias against the Defendant.” However, trial strategy dictates the topics covered in
voir dire. Prior to the defense’s voir dire, the prosecution covered many topics
pertinent to the jury’s impartiality. These topics included, but were not limited to,
the panel’s familiarity with the parties and potential witnesses, the panel’s
experience with and feelings toward sexual assault, and the panel’s ability to follow
the law and the evidentiary standards common in sexual assault cases.             If a
prosecutor’s voir dire has already elicited prejudices and biases among the venire
panel, then defense counsel is not ineffective for failing to retread that same ground.
See Goodspeed, 187 S.W.3d at 392 (it may be appropriate trial strategy for defense
counsel to avoid repeating prosecutor’s line of questioning on voir dire). In addition,
trial counsel asked the venire panel if anyone on the venire panel had already formed
                                          6
an opinion as to his client’s guilt, asked if any of them had worked for Child
Protective Services, and stressed the importance of keeping an open mind to his
client’s case. After a review of the record, we cannot say that trial counsel’s decision
not to retrace several areas of questioning that the State had already covered was an
unsound strategy that no reasonable professional would have employed.
             2. Alleged failure to make a Batson challenge and challenge the
                jury’s bias.
      Appellant asserts that his counsel was ineffective when counsel failed to raise
a Batson challenge on the ground that eleven members of the jury panel and both
alternates were Caucasian, while his client was Hispanic. Since there was no Batson
challenge at trial, the record is silent as to the reasons for the State’s peremptory
strikes. Appellant references nothing in the record that demonstrates that the jury
was racially prejudiced against him. Furthermore, Appellant has not shown that trial
counsel’s failure to raise a Batson challenge constituted ineffective assistance in this
case. Appellant has met neither prong of Strickland with respect to his Batson
assertion. See Batiste v. State, 888 S.W.2d 9, 15 (Tex. Crim. App. 1994). The Court
of Criminal Appeals has stated that the “possibility of racial prejudice in the selection
of the petit jury affects the adversarial presentation of the case not at all.” Id.
Though an all-white jury can certainly render a fair and impartial verdict in the trial
of a minority defendant, its failure to do so eliminates but one mechanism with which
a neutral fact-finding body is created. Id.
      Appellant argues that his counsel was ineffective because he allowed five
objectionable veniremembers to be empaneled on the jury. Appellant argues that
these jurors were objectionable because four jurors knew witnesses in the case and
one juror knew Appellant, Molly, A.S., and L.D. First, we note that a person’s past
personal experience with the subject of the trial or a previous relationship with the
parties of the case does not necessarily strip that person of his or her ability to

                                           7
impartially weigh a defendant’s guilt. See Garcia v. State, 887 S.W.2d 846, 858
(Tex. Crim. App. 1994) (trial court did not abuse its discretion in refusing to grant
defendant’s challenge for cause because venireperson stated he could set aside his
preconceptions). Second, we realize that it often proves prudent for defense counsel
to decline to challenge a venire person who is familiar with a witness but who may
otherwise prove to be favorably inclined to the defendant or, in the alternative, may
prove to be less objectionable than other veniremembers. See Wilkins v. State, No.
11-07-00341-CR, 2009 WL 2403570, at *2 (Tex. App.—Eastland Aug. 6, 2009, pet.
ref’d) (mem. op., not designated for publication) (counsel was not deficient for
failing to challenge juror who knew a witness when other venirepersons could have
proved more objectionable).       This latter dilemma tends to arise in smaller
communities without a large pool of veniremembers. See id.
      Appellant has not demonstrated the deficiency of his counsel’s voir dire. All
veniremembers in question stated in voir dire that they could be impartial despite the
fact that they knew some of the witnesses or parties involved. Furthermore, in small
communities like the one in which this trial was held, many veniremembers are
acquainted with the case’s witnesses, making it impracticable to select a jury
completely unfamiliar with the case’s witnesses. Indeed, trial counsel could have
reasonably concluded that these veniremembers were preferable to other
veniremembers who also knew witnesses. Trial counsel’s decision not to challenge
the seating of Kenny Singleton, who knew Appellant, the victim, and her mother,
could have been a trial strategy. Referring to this prior relationship, Singleton
volunteered during a bench conference that “we used to hang out with them and eat
and stuff.” Despite this prior relationship, Singleton said he could remain impartial.
Asked again by the State whether his past relationship with the victim and her mother
would affect his impartiality, Singleton reaffirmed that he could remain impartial in


                                          8
the trial. As a result, Appellant has not demonstrated the deficiency of his counsel’s
voir dire.
             3. Alleged failure to adequately cross-examine Ranger Willer.
   Appellant claims that his trial counsel’s inquiry into the details of Ranger Willer’s
report was deficient and that it irreparably harmed Appellant’s chances of acquittal.
Texas Ranger Stuart Willer, Jr. testified about Appellant’s arrest interview and
Appellant’s reaction to the sexual abuse allegations. As the lead investigator of this
case, Ranger Willer also reviewed the interview the victim gave at the Child
Advocacy Center, made a report of his findings, and recommended charges be filed
against Appellant. Trial counsel’s cross-examination of Ranger Willer focused
largely on the dates and events of Ranger Willer’s investigation, as well as the details
of the report, some of which were graphic in nature. On redirect, the prosecution
inquired about many similar details of Ranger Willer’s report.
      The record does not reveal trial counsel’s reasoning for the questions asked
during cross-examination of Ranger Willer. Trial counsel could have reasonably
thought that it was in his client’s best interests to preemptively introduce detrimental
testimony early in the trial and hope that his client’s later testimony would ameliorate
this effect, or he could have hoped to show inconsistencies in the victim’s testimony.
“[C]ross-examination is an art, not a science, and it cannot be adequately judged in
hindsight.” Ex parte McFarland, 163 S.W. 3d 743, 756 (Tex. Crim. App. 2005).
However, even if we were to assume this cross-examination was deficient, we are
not convinced this performance prejudiced Appellant.              The State adduced
overwhelming evidence of Appellant’s guilt that supports the jury’s finding of guilt
beyond a reasonable doubt. The jury heard compelling testimony from the victim
and her mother, the forensic interviewer, and from Appellant himself, whose
credibility was severely questioned by the State.


                                           9
             4. Alleged failure to present more evidence and a closing
                argument in the punishment phase.
      Appellant next argues that his counsel was ineffective because trial counsel
failed to present sufficient evidence in the punishment phase and failed to present a
closing argument. First, we turn to Appellant’s argument that counsel failed to
present a defense. A defendant has a right to present mitigating evidence during the
punishment phase of a trial, but there is no requirement that he do so. TEX. CODE
CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2016). A defendant may waive
any rights enjoyed with the exception of the right of trial by jury in a capital felony
case. CRIM. PROC. art. 1.14 (West 2005). Appellant’s trial counsel cross-examined
several witnesses called by the State, but he only called one witness in the
punishment stage, Molly. Upon the conclusion of Molly’s cross-examination,
Appellant’s trial counsel made the following statement regarding the remainder of
his client’s punishment phase defense:
      Judge, after visiting with Mr. Antonio De La Cruz, and also visiting
      with him about witnesses, that I certainly would be more than happy to
      present, including family members and everything, Mr. De La Cruz has
      reviewed the PSI. There is one correction he wants to make, and that’s
      as to his permanent address. Other than that, there will be no further
      witnesses from our side.
Appellant did not controvert this waiver in his motion for new trial, and the record
provides no evidence that trial counsel failed to accede to Appellant’s requests.
      Finally, Appellant claims that his punishment phase defense was prejudiced
by his counsel’s failure to deliver a closing argument or to object to the State’s
motion to stack his sentences. Again, we disagree. We begin by examining trial
counsel’s closing argument during the punishment phase. In this respect, trial
counsel “has wide latitude in deciding how best to represent a client, and deference
to counsel’s tactical decisions in his closing presentation is particularly important
because of the broad range of legitimate defense strategy at that stage.”

                                          10
Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003). Therefore, a review of an attorney’s
summation is “highly deferential.” Id.
      Although trial counsel’s closing argument was brief, Appellant’s decision to
instruct his counsel not to call additional witnesses in the punishment phase, even
though counsel was prepared to do so, was Appellant’s choice. In light of the
overwhelming weight of evidence against Appellant, we cannot say that counsel’s
actions in the punishment phase lacked a strategy because counsel acceded to
Appellant’s wishes. Likewise, the trial court had the discretion to stack or cumulate
the sentences. See PENAL § 3.03(b)(2)(A). Appellant has not demonstrated in the
record that an objection to cumulation, given the nature of the offenses and the
overwhelming evidence against him, would have resulted in a different outcome on
punishment.
      B. Issue One: The trial court did not abuse its discretion when it denied
         Appellant’s motion for new trial without a hearing.
      Appellant asserts in his first issue that the trial court abused its discretion when
it refused to grant his motion for new trial because he alleged that his trial counsel
failed to call material witnesses that would have revealed his innocence and because
his trial counsel allowed perjured testimony to aid in Appellant’s conviction. When
an appellant alleges ineffective assistance of counsel in a motion for new trial, he
must allege facts that demonstrate that he could prevail under both prongs of the
Strickland test. Smith, 286 S.W.3d at 338; see Strickland, 466 U.S. at 686. Thus,
Appellant must demonstrate that his counsel’s performance fell below an objective
standard of reasonableness and that, but for these errors, the outcome of the trial
would have been different. Strickland, 466 U.S. at 693–94.
      Appellant complains that his trial counsel should have investigated the
following witnesses whose testimony would have helped prove his innocence:
Dr. Enrique Martinez, David Martinez, Mary Infante, Gayle Villarreal, and

                                           11
Dr. Richard Lee Wall. However, Appellant filed no affidavits from any of those
witnesses, nor did he confirm that they were available to testify and would have
testified at trial. As a result, we cannot consider the hypothetical effect that these
witnesses could have had on Appellant’s trial. See Idowu v. State, No. 05-02-00503-
CR, 2003 WL 21350105, at *1 (Tex. App.—Dallas June 10, 2003, pet. ref’d) (not
designated for publication) (holding that trial court did not abuse its discretion by
denying motion for new trial without a hearing when the appellant failed to include
affidavits demonstrating the availability of the witnesses).
      Appellant also claims that Molly’s damaging testimony could have been
mitigated or wholly vitiated had defense counsel called Velma G. Solórzano, his
attorney in his divorce proceeding with Molly. Appellant claimed that Solórzano
would have testified how Molly lied about one of her abuse allegations against
Appellant. However, Solórzano’s affidavit, which was signed on April 16, 2016,
was not attached to Appellant’s motion for new trial. Because this affidavit was not
before the trial court at the time that Appellant filed his motion for new trial, we will
not consider it on appeal.
      Appellant also argues that the trial court abused its discretion when it failed
to hold a hearing on Appellant’s motion for new trial. Appellant claimed in his
affidavit, which was attached to his motion for new trial, and in his brief that his
counsel failed to adequately prepare for trial and failed to interview potential
witnesses that would have allegedly aided Appellant’s defense. A defendant does
not have an “absolute right” to a hearing on a motion for new trial. Reyes v. State,
849 S.W.2d 812, 815 (Tex. Crim. App. 1993). The purposes of a hearing on a motion
for new trial are (1) to determine whether the case should be retried and (2) to prepare
a record for presenting issues on appeal if the trial court denies the motion. Reyes v.
State, 465 S.W.3d 801, 805 (Tex. App.—Eastland 2015, pet. ref’d). A defendant
need only assert reasonable grounds for relief that are not determinable from the
                                           12
record in order to be entitled to a hearing. Jordan v. State, 883 S.W.2d 664, 665
(Tex. Crim. App. 1994). In addition, a motion for new trial must be supported by
an affidavit specifically setting out the factual basis for the claim. Hobbs, 298
S.W.3d at 199. If the affidavit is conclusory, is unsupported by facts, or fails to
provide requisite notice of the basis for the relief claimed, no hearing is required. Id.
However, Appellant could be entitled to a new trial if the new evidence was not
merely cumulative or impeaching. Reyes, 465 S.W.3d at 806 (citing Boyett v. State,
692 S.W.2d 512, 516 (Tex. Crim. App. 1985)). Appellant, with respect to an
ineffective-assistance-of-counsel claim, “does not have to plead a prima facie case,
but he must at least allege facts that show reasonable grounds to believe that he could
prevail under both prongs” of the Strickland test. Smith, 286 S.W.3d at 338; see
Strickland, 466 U.S. at 686.
      As we previously explained, Appellant did not attach any affidavits from the
potential witnesses. He also did not allege in his motion and accompanying affidavit
evidentiary facts outside the record that specifically outlined what witnesses were
available to testify and what they would have said that addressed A.S.’s allegations.
He also failed to show evidentiary facts outside the record that supported the
allegation that defense counsel’s performance was deficient and that, but for that
deficiency, the outcome of the trial would have been different. Appellant also claims
that Molly allegedly committed “food-stamp” fraud, abused medications or drugs,
and asserted that Appellant had abused or assaulted her, but Appellant provides no
evidentiary facts outside the record to substantiate how his allegations affect A.S.’s
abuse allegations. In addition, Appellant does not explain in his affidavit what
admissible testimony Infante or Martinez could have provided that would have
resulted in a different outcome of the trial. Finally, Appellant did not explain how
he thought the jurors were racially biased or why he thought defense counsel had not
properly questioned them. Because Appellant did not raise evidentiary facts outside
                                           13
the record on matters not determinable from the record and because he failed to
establish reasonable grounds to prove both the performance and prejudice prongs of
Strickland, the trial court did not abuse its discretion when it failed to hold a hearing
on Appellant’s motion for new trial. See Hobbs, 298 S.W.3d at 199.
                            IV. This Court’s Ruling
      After a review of the record, we overrule Appellant’s first and second issues
on appeal. We affirm the judgments of the trial court.




                                                      MIKE WILLSON
                                                      JUSTICE


March 31, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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