AFIRMEI); and Opinion Filed March 18, 2013.




                                      In The
                                 øurt nf Apprah’
                        !Fiftl! ktrict nf      tt tftai

                                      No. 05-1 1-00996-CR

                              RICHARD GOMIZ, Appellant
                                                V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. F09-30662-H

                                          OPINION
                      Before Justices O’Neill. FitzGerald, and Lang-Miers
                                   Opinion by Justice O’Neill
       Appellant Richard Gomez appeals his conviction for indecency with a child.            After

finding appellant guilty, the trial court assessed punishment at twelve years’ confinement. In a

single point of error, appellant contends he received ineffective assistance of counsel. For the

following reasons, we affirm the trial court’s judgment.

       The grand jury indicted appellant for indecency with a child, K.L.. by causing contact

between the child’s hand and appellant’s genitals. K.L. is appellant’s girlfriend’s twelve-year-

old daughter. Appellant pleaded nob contendere to the allegations in the indictment, but did not

enter a stipulation that he committed the offense and, in fact, denied commission of the offense at

trial. The State therefore presented other evidence to support the plea. TEx. CoDE CRIM. PROC.

ANN. art. 1.15 (West 2005).
       At trial, KL. did not testify to the elemems of the offense. She said she did not want to

testify against appellant because she feared for her safety. However, she did testify that she had

told her Aunt Yolanda, her grandmother, a forensic interviewer, and the prosecutor what had

happened. KL. also testified her mother, Erica Duke, was still in a relationship with appellant

and Duke sometimes lives with appellant.

       Yolanda Pitre testified as the outcry witness.      At the time of the offense, Duke was

married to Yolanda’s brother, but her brother was in prison and Duke was dating appellant. One

day, K.L. told Yolanda that appellant had come into her room and had lain down next to her.

K.L. was afraid and pretended she was asleep. K.L. told Yolanda appellant took her hand and

put it on his penis and moved her hand up and down. K.L. then screamed out, pretending to have

a nightmare, so appellant would stop.

       Yolanda admitted she was a methamphetamine addict and was actively using at the time

of the offense, but denied she was under the influence when the child made her outcry. She also

admitted a rather lengthy criminal history, including theft, forgery, fraud and drug charges.

Yolanda had pending cases at the time of trial.

       Appellant testified and denied commission of the offense. He claimed K.L. and Yolanda

made up the accusations because they did not like him living with Duke.         Appellant denied

threatening K.L.’s family in general or her thirteen-year-old brother, S.L.

       On cross-examination, appellant admitted he had a prior conviction for assaulting his cx

wife. He was initially charged with aggravated assault with a deadly weapon and interfering

with an emergency phone call.       However, appellant pleaded guilty to a reduced charge of

misdemeanor assault when his ex-wife would not testify against him. Appellant was assessed a

probated sentence in that case, which he successfully completed.
       After hearing the evidence, the trial court found the State proved appellant’s guilt, but did

not yet find him guilty, and recessed for a presentence investigation.         When the proceedings

resumed, the State presented evidence that appellant was abusive and K.L. and her family,

including Duke, all feared appellant and feared testifying against him, Appellant responded with

evidence continuing to dispute he committed the offense, including Duke’s testimony that K.L.

was making up the allegations. Appellant also presented evidence he was eligible for probation

and asked the trial court to consider a probated sentence. The trial court sentenced appellant to

twelve years’ confinement. Appellant filed a motion for new trial asserting his trial counsel was

ineffective. The trial court denied the motion after an evidentiary hearing.

       In his sole point of error, appellant contends the trial court abused its discretion in

overruling his motion for new trial. The twopronged Strickland v. Washington test applies to

challenges to guilty and nob contendere pleas. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). To

be entitled to a new trial based on an ineffective assistance of counsel claim, a defendant must

show by a preponderance of the evidence that counsel’s performance was deficient and that the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte

Lane, 303 S.W.3d 702. 707 (Tex. Crim. App. 2009). The first prong requires the defendant to

show counsel’s performance fell below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. at 687—88; Lane, 303 S.W.3d at 707. The second

prong requires the defendant to show that there is a reasonable probability that, but for his

counsel’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at

687, 694; Lane, 303 S.W.3d at 707.        In the context of a guilty or nob       contendere plea, a

defendant satisfies the second prong of the test by showing that, but for counsel’s errors, he




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would not have pleaded guilty and would have insisted on going to trial. See Hill, 474 U.S. at

59; Exparte Jrnwudu, 284 S.W.3d 866, 869 (Tex, Crim. App 2009).

       Appellant’s complaints of ineffective assistance are all based on counsel’s alleged

ineffectiveness at the “guilt/innocence” phase of the proceeding. In particular, appellant alleges

counsel was ineffective for (1) failing to object to improper impeachment, (2) failing to

investigate and present evidence of a recantation defense at “guiltlinnocence,” (3) failing to

impeach complainant with evidence of recantation and her reputation for untruthfulness, and (4)

failing to impeach the outcry witness with evidence of bias and her reputation for untruthfulness.

       Before addressing the merits of appellant’s complaints, it is important to understand the

procedural posture of this case. Appellant presents his complaint as though he pleaded not guilty

to the offense. However, appellant pleaded nob contendere to the allegations in the indictment.

A plea of nob contendere has the same legal effect as a guilty plea for purposes of the criminal

prosecution. TEX. CODE CRIM, PRoc. ANN, art. 27.02(5) (West 2006). When a defendant waives

a jury trial and enters a no contest plea on a non-capital offense, the proper procedure is to

conduct a unitary trial. Saldana v. State, 150 S.W.3d 486, 489 (Tex. App.—Austin 2004, no

pet.) (citing Barfield v. State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001)); Lopez v. State, 96

S.W.3d 406, 412 (Tex. App.—Austin 2002, pet. ref’d).             In a unitary trial, there is no

“bifurcation” (where the guilt/innocence and punishment stages are conducted separately), even

when the trial court employs procedures characteristic of bifurcation. Saldana, 150 S.W.3d at

489. Rather, such a procedure remains a unitary trial “punctuated by a recess in the middle.” Id.

       Appellant’s complaints are all connected to the trial court’s finding of guilt.   Appellant

does nothing to link the alleged ineffectiveness to either his nob     contendere plea or to the

sentence assessed. We recognize that in the trial proceedings, although appellant pleaded nob




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contendere, the parties treated this case in some respects as a not guilty” plea. and it is clear

appellant was contesting his guilt.         ft appears this procedure was used to avoid provisions of the

code of criminal procedure prohibiting a trial court from placing a defendant on probation for

indecency with a child unless he pleads guilty or fob contendere. TEx. CODE (‘RIM. PROC. ANN.

art. 42.12.      3g(a)( I   ),   5(a) (West 2006).   Despite appellant’s nob   contendere plea, appellant

was given many of the benefits of a “not guilty” plea. For example. the trial court perrflitte(l

appellant o contest his guilt and stated it was holding the State to the constitutional “beyond a

reasonable doubt” burden of proof. On appeal, appellant now seeks to avoid the effect of his

plea and seeks review as if he had pleaded not guilty. However, appellant does not assert his

plea was not voluntary, that the trial cotirt should have sua sponte withdrawn the plea. or that

trial counsel should have sought to withdraw the plea. Because appellant does not link his trial

counsel’s ineffectiveness either to his no contest plea or to his sentence, he has made no showing

that but for trial counsel’s alleged ineffectiveness, the result of the proceeding would have been

different.    Under these circumstances, we resolve the sole issue against appellant and affirm the

trial court’s judgment.




Publish

I 10996F.P05




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                                          JUDGMENT

RICHARD GOMEZ, Appellant                           On Appeal from the Criminal District Court
                                                   No. 1, Dallas County, Texas
No. 05-1 1-00996-CR                                Trial Court Cause No, F09-30662-H.
                                                   Opinion delivered by Justice O’Neill.
THE STATE OF TEXAS, Appellee                       Justices FitzGerald and Lang-Miers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


                        th
                        18
Judgment entered this        day of March, 2013.
