                                  / 9?-/S
                        APPEAL   NO.    05-13-01137-CR
                                                                   ORIGINAL
                                                                COURT OF CRIMINAL APPEALS
                    IN THE COURT OF CRIMINAL APPEALS                 ^pR 23 2015
                                  OF    TEXAS

                                                                 Abel Acosta, Clerk




LUIS RODOLFO LOPEZ/
                                        FILED IN
                                                                     APPELLANT
                                 COURT OF CRIMINAL APPEALS
                                         APR 23 2015
VS.


                                       Abel Acosta, Clerk
THE STATE OF TEXAS,                                                  APPELLEE




          APPELLANT'S PETITION FOR DISCRETIONARY REVIEW




                ON APPEAL FROM CAUSE NUMBER F11-60773-M

                    IN CRIMINAL DISTRICT COURT NO.          6

                        DALLAS COUNTY/       TEXAS




SUBMITTED BY:
                                                LUIS RODOLFO LOPEZ/#1874821
                                                POLUNSKY UNIT
                                                3872 FM 350 SOUTH
                                                LIVINGSTON/ TEXAS           77351
                                      INTERESTED   PARTIES




Luis Rodolfo Lopez,               Appellant                  Appearing pro se
Polunsky Unit
3872    Fm    350   South
Livingston, Texas                     77351



Robert       "Robbie"     Pfeiffer,                          State's   Counsel
Assistant District Attorney
133    N.    Riverfront      Blvd.
11th    Floor
Dallas,       Texas       75202



Billy "Bill" Stoval,                                         Appellant's Counsel
SBOT    No.    24008097
Dallas,       Texas




Russ    Henrichs/                                             Appellant Counsel
Post    Office      Box    190983
Dallas,       Texas       75219




Judge Quay Parker,            Sitting for,
Judge Jeanine Howard
Dallas County Courthouse
600 Commerce Street
Dallas, Texas  75202



State Prosecuting Attorney                                   State's   Counsel
Post    Office      Box    13046
Austin,       Texas       78711-3406
                                      TABLE     OF    CONTENTS




INTERESTED             PARTIES                                                               i

INDEX OF AUTHORITIES                                         .'                .{; . ... .   •ii
CONSTITUTIONAL AND STATURORY PROVISIONS                                                      iii

STATEMENT REGARDING ORAL              ARGUMENT                    <                          1

STATEMENT OF THE CASE                                                                        1

STATEMENT OF THE PROCEDURAL HISTORY                                                          2
QUESTION(S) PRESENTED FOR REVIEW                                      '                      2
ARGUMENT                                                                              ••     2 - 5
PRAYER FOR RELIEF                                                                            5
CERTIFICATE OF SERVICE                                                                       6




                                     INDEX OF    AUTHORITIES

foA-tt)
ji^o-e- v     State,
226 S.W.3d 435,430 Tex.Crim.App . 2008)                                    '

Ex   Parte         Graves,
70 S.W.3d 103 (Tex. Crim. App.             2002)                      '.
                                                         /


Mann      v   State,
134 S.W.3d 873 (Tex. App. 14th Dist. 2004-pet. ref'd,)

Martinez v Ryan,
132 S.Ct. 1309 (2012)

Strickland v Washington,
104 S.Ct. 2052 (1984)

Trevino        v       Thaler,
 133 S.Ct.             1911 (2013)

Ex   Parte         Varela,
45 S.W.        3d 627 (Tex.Crim.App. 2001)

Willaims           v    State,
 301 S.W.3d 675 (Tex.Crim. App.                 2009)




                                                 ii
                           IN   THE   COURT    OF    CRIMINAL      APPEALS

                                              OF    TEXAS




LUIS   RODOLFO        LOPEZ,                         §
                          APPELLANT
                                                     §
VS.                                                  §
                                                     §      APPEAL NO.       05-13-01137-CR
                                                     §
THE    STATE    OF    TEXAS,
                         APPELLEE                    §



                APPELLANT'S       PETITION         FOR   DISCRETIONARY       REVIEW




          COMES NOW,        Luis Rodolfo Lopez,              the Appellant herein,         and

pursuant to Rule 68.3,                of the Texas Rules of Appellate Procedure,

timely and properly files this Petition for Discretionary Review

praying for review and relief.                     In support thereof,         Appellant

would    show:



                           STATEMENT      REGARDING         ORAL   ARGUMENT



          Appellant believes that the single issue presented herein

is already settled law and that Oral Argument will not benefit

the Court in setting aside the Febraury 2, 2015, decision del

ivered by the Fifth Court of Appeals which is appended hereto

as    APPENDIX       A.




                                  STATEMENT         OF   THE   CASE



          Upon a plea of not guilty, a Dallas County jury found

found Appellant guilty of Continuous Sexual Abuse of a Child, a

first degree felony. On August 8, 2013, the jury assessed punish

ment at forty-years imprisonment. Timely notice of appeas was

entered    of    record.


                                                   -1-
                     STATEMENT          OF    THE    PROCEDURAL       HISTORY



       On February 2,             2015,       the Dallas Court of Appeals affirmed

the judgement of the trial court in an unpublished opinion styled;

Lopez v State,       (05-13-01137-CR). No Motion for Rehearing was pro

secuted.



                              QUESTION PRESENTED FOR REVIEW



           WHETHER        THE     DALLAS       COURT     OF    APPEALS     SERIOUSLY

           ERRED    IN        FAILING    TO ABATE       AND    REMAND    APPELLANT'S

           APPEAL        IN    LIGHT    OF     APPELLATE        COUNSEL'S        FIRMLY

           GROUNDED           INEFFECTIVE       ASSISTANCE       OF   TRIAL     COUNSEL

           CLAIM    SINCE       THE    COURT    OF    APPEALS    FOUND    THE    RECORD

           TOTALLY        INADEQUATE TO              EVALUATE A CLAIM OF INEFF

           ECTIVE    ASSISTANCE          OF    COUNSEL    ON    DIRECT    APPEAL.


       The Fifth Court of Appeals has decided an important quest

ion of Constitutional law governing the Sixth Amendment right to

the effective assistance of counsel that should now be settled by

the Texas Court of Criminal Appeals.



                                               ARGUMENT



       In the Court's 10 page opinion,                         the Dallas Court of Appeals

erroneously resolved Appellant's Sixth Amendment ineffective ass

istance of counsel claim [against him]                         (see Court Opinion at page

10), even though the Court of Appeals concluded that the silent

appellate record was inadequate to determine if indeed counsel

ineffective.


       In part, the Dallas Court of Appeals followed this Court's



                                                 -2-
guidelines announced in^iia^a-e-v State,               226 S.W.3d 425,430       (Tex.

Crim.   App.   2002),    and Williams v State,           301 S.W.3d 675       (Tex.Crim.

App. 2009),     where the Court held:


               "Because the appellate record is rarely adequate to
               explain counsel's     trial strategy,      claims of ineff
               ective    assistance of counsel        are better developed
               through an application for writ of habeas corpus."

         And more pertinent to the circumstances surrounding App

ellant's   case,     this   same   Court   in    Ex   Parte   Vareia,   45   S.W.3d   627

(Tex .Crim.App. 2001), determined:

                    "A claim of ineffective assistance of counsel

                    is cognizable through an application for writ
                    of habeas corpus,   [even if it was raised and
                    rejected on direct appeal]."


         Accordingly,       i t is plain on the face of the record that the

Dallas Court of Appeals abandoned Appellant and left him with no

adequate remedy at law in which to pursue his claim that his                          trial

provided ineffective assistance of counsel because Texas has no

rules or procedures governing the appointment of counsel for in

digent defendants seeking habeas corpus relief on ineffective

assistance     of   counsel   claims.



         In this regard, Appellant ssho.u:Id :[no,t]- be forced to abandon

his claims that his trial counsel performed so dificiently that he

was glaringly denied the Sixth Amendment right to the effective

assistance of counsel at his criminal trial.. Standing alone,                           App

ellant Lopez in incapable of representing himself in a complicated


                                           -3-
habeas corpus proceedings since any allegation of ineffectiveness

must be firmly founded in the record. Strickland v Washington,

466 U.S. 668, 104 S.Ct.      2052, 80 L.Ed.2d 674 (1984). And needless

to say that Appellant Lopez does not have a copy of any of his

trial records that would support his claims.


          Then along came Martinez v Ryan,              U.S.        , 132 S.Ct.

1309, 162 L.Ed.2d 272 (2012), an Arizona* case decided March 20,
2012, which presents issues quite similar to those raised by App

ellant in this Petition for Discretionary Review. Basically,                the

Supreme Court decision in Matinez v Ryan, supra determined that:


              "A criminal defendant has the Constitutional right
              to the effective assistance of counsel in his coll
              ateral   proceedings because    it is his first -.oppor
              tunity to raise his Sixth Amendment claim that his
              counsel was ineffective."


          This is an important case because never in the history of

the Supreme Court has the Court decided that a criminal defendant

[is] entitled counsel in a collateral habeas corpus proceeding.

Cf. Ex Parte Graves, 70 S.W.3d 103 (Tex.Crim.App. 2002), and Mann

v State, 134 S.W.3d 873 (Tex. App. 14th Dist.2004 - pet- ref'd.),

holding that there is no Constitutional right to counsel or the
effective assistance of counsel in a postconviction writ of habeas

corpus.




 Arizona appellate rules now require defendants to raise claims of ineffective
 assistance of counsel issues on collateral review via the State's habeas cor
 pus procedure instead of on direct appeal.



                                      -4-
          Nearly one year after the Martinez v Ryan decision,                           the

Supreme Court decided Treyino v Thaler,                            U.S.            , 133 S.Ct.

1911,    185 L.Ed.2d 1044 (2013),            a Texas case where the Supreme Court

determined that the rule announced in Martinez applied to Texas

cases    because    Texas   courts    have    directed       defendants       to    raise


claims of ineffective assistance of counsel through the writ of

habeas corpus.


          Appellant strongly urges that the decisions in Martinez and

Trevino apply to his case and that the Dallas Court of Appeals

should    never    have   abandoned    him    and    left    him   to   his   own    resources.




                                PRAYER       FOR    RELIEF




         Wherefore,       for all the reasons stated herein,                      Appellant

now prays that the Honorable Court of Criminal Appeals wil ex

ercise it's discretionary authority and grant review and relief

in Appellant's case.


                                               Respectfully Submitted



                                                   ^•y^ k-o<Jpffir> L&#1874821
                                               Luis Rodolfo Lopez,
                                               Polunsky Unit
                                               3872    Fm    350   South      •
                                               Livingston,         Texas             77351



Executed: April       f^ , 2015,




                                             -5-
                      CERTIFICATE       OF   SERVICE




       Service has been accomplished by forwarding a true and

correct copy of Appellant's Petition for Discretionary Review,

postage prepaid, via United States Postal Service, on this f/v

day of April,   to:



                       District Attorney,
                       Dallas County
                       133    N.   Riverfront      Blvd,
                       Dallas,     Texas        75202



                       State Prosecuting Attorney
                       Post    Office     Box    13046
                       Austin,      Texas       78711-3406




                                      ,uis Rodolfo Lopez,! Appellant




                                    -6-
AFFIRM; and Opinion Filed February 2,2015.




                                              In The

                                  Court of Appeals
                         JFifti? BtBtrkt of Qtexas at Ballaa
                                      No. 05-13-01137-CR

                             LUIS RODOLFO LOPEZ, Appellant

                                                V.


                              THE STATE OF TEXAS, Appellee

                      On Appeal from the, 194th Judicial District Court
                                   Dallas County, Texas
                              Trial Court Cause No. F-1160773-M


                             MEMORANDUM OPINION
                         Before Justices Bridges, Lang-Miers, and Myers
                                 Opinion by Justice Lang-Miers

       Luis Rodolfo Lopez appeals his conviction for the offense of continuous sexual abuse of

a child. In two issues, appellant argues that he was denied timely discovery and due process and

that his counsel rendered ineffective assistance. Because all dispositive issues are settled in law,

we issue this memorandum opinion. Tex. R. App; P. 47.2(a), 47.4. We affirm.

                                          Background


       Appellant was charged by indictment with the offense of continuous sexual abuse of a

child. Appellant was the stepfather of the complainant. After appellant pleaded not guilty, a jury

found appellant guilty and assessed his punishment at forty years in prison.



                                                                       APPENDIX       A
           Nine months before trial, the State gave appellant State's Notice of Extraneous Offenses

providing notice of the crimes, wrongs, or acts of appellant other than the act alleged in the

indictment that the State may introduce into evidence. Five days before trial, appellant filed

Omnibus Pre-Trial Motions and Election, which included his request for a hearing outside the

presence of the jury before the State offered any evidence of extraneous transactions, crimes,

wrongs, or acts allegedly committed by appellant,' or reputation testimony, and "further

requested] notice prior to trial, pursuant to" rule of evidence- 404(b)1 and article 38.37 of the

rules of criminal procedure.2 The record reflects that the court did not rule on the Omnibus

Motions.


           The day before trial started, the State filed an Amended Notice of Extraneous Offenses,

which included a paragraph that was not included in the State's original Notice of Extraneous

Offenses giving notice that the State may introduce evidence that appellant showed the

complainant adult pornographic images and that the complainant's mother saw appellant viewing

child pornography and adult7 pornography.                           On the following day—the day when the trial

began—the State filed an Amended Notice of Experts Who May Be Called to Testify to include

"Donald Wills, from Regional Computer Forensics Laboratory, to testify to images recovered

from search of Defendant's laptop" and also listed Donald Wills on the State's Amended

Response to Defendant's Motion to List Witnesses.



      1Tex. R. Evid. 404(b).
     2                                                                          ,
       The legislature amended article38.37 in 2013 to delete the requirement that a defendant requestnotice. The amended article applies to
criminal proceedings beginning on or after September 1,2013. The priorversion applies herebecause appellant's trial began July 30,2013. Act
of May 29,1995,74th Leg.,R.S.,ch. 318, § 48, 1995 Tex. Gen. Laws2734,2748-49, amended byAct of May24,2005,79th Leg.,R.S.,ch. 728,
§4.004,2005 Tex. Gen. Laws 2188,' 2192, amended by Act of April 7,2011,82nd Leg., R.S., ch. 1, §2.08,2011 Tex. Sess. Law Serv. 1,6
(West) (amended 2013)(current version at TEX. Code Crim. Proc. Ann. art. 38.37 (WestSupp. 2014)). The Omnibus Motions also requested,
undercode of criminal procedure article37.07, notice prior to trial and a hearingoutsidethe jury's presence concerning evidenceof bad'acts or
adjudicated offenses allegedly committed by appellant that the State intended to admitduringthe sentencing stage. See Tex. Code Crim. Proc.
Ann. art. 37.07(WestSupp. 2014). Article 37.07doesnotapply to the issueherebecause appellant complains of lackof timely noticeduringthe
guilt-innocence phase of trial.                      ••••'-                           '                      <




                                                                   -2-
           Prior to swearing in the jury and before the.presentation of evidence, the court conducted

 a sub.rosa hearing concerning appellant'.s motion in limine regarding the timeliness of the

 Amended, Notice, of Extraneous Offenses.         According to defense counsel, on the previous

 Saturday, defense counsel realized that he had not received information from the State

 concerning a search of appellant's laptop computer, and. he sent a. message to the prosecutor

 asking if she had information concerning the results of the computer search. The following day,

 the prosecutor responded that she had not received any information about the computer search

 and that she did not intend to present evidence concerning data recovered from the computer.

 On.the day ofjury selection,, the prosecutor informed defense counsel that the State had received

 the results of the computer investigation and that pornographic images,were recovered from the

 computer.     The'prosecutor provided the defense with a copy of the data recovered from the

 computer and an Amended Notice of Extraneous Offenses that referred to the pornographic

 images on the computer.

           At the hearing, defense counsel argued that the Amended Notice of Extraneous Offenses

 was. untimely because it "was given the day of Jury Selection" and involved "some real

 substantive issues." Defense counsel contended that, because the amended notice was untimely,

 he did not and would not have an opportunity to have a forensic expert investigate the computer.

 He requested that the Court instruct the State "not to go into anything regarding the computer

 and what was on the computer." The prosecutor responded that the complainant's testimony

 concerning, what appellant showed her on the,computer should be admissible under code of

 criminal procedure article 38.37. Tin addition, the prosecutor contended that the State did not
  intend
/rnt       to introduce the computer disk) but rather intended to have the/€bmplainaiwtestify. as to

 what she saw on the computer and to have a forensic evaluator discuss what was on the computer

 "as corroboration." She contended that the appellant would not be "surprised by any of that

                                                  -3-
                 nformation" because defense counsel had previously had discovery materials that included

                 brensic interview notes "where the victim herself had said that the defendant did show her these

            •* images on the computer." And she argued that, once she received the results of the forensic

                evaluation, she provided appellant with "the disk and everything" on the same day. After some

                discussion at the hearing, the prosecutor stated that, if defense counsel was asserting'that the

                information in the amended notice about the mother seeing the pornographic images was "new

                informationf,]" the State would agree that it would not have the complainant's mother testify

                concerning the pornographic images that the mother saw on the computer.

            .j- — —The court ruled that the State could question the complainant concerning what she saw or

                what appellant showed her on his computer and could have a forensic computer expert testify as

                to what the expert found on the computer, but that th? Stat*could not introduce imaees found on
/•   -0 '   <
                the computer. The court then granted appellant a running objection.

                             Both during the State's case in chief and on cross-examination by the defense, the

                complainant testified as to the sexuaijmages that appellant showed her on a computer.3 The

                State also called Don Wills, a senior forensic examiner: for the Federal Bureau of Investigation,

                who testified that "adult pornographic movies and adult images with pornography" were

                recovered from appellant's computer and described the contents of those movies and images.

                                                      Notice of Extraneous Offense Evidence

                                                         Applicable Law and Standard of Review

                             An extraneous offense is any act of misconduct, whether or not it resulted iri prosecution

                which was shown to have been committed by the accused and which is not shown in the

                charging instrument, Hernandez v. State, 817 S.W.2d 744, 746 (Tex. App.—Houston [1stDist.]


                     3
                         The defense questioned thecomplainant as to whether shepreviously stated thatthe images were on appellant's computer andtestified at
                trial that the images wereo'ri her mom's computer. This issueis not beforeus on appeal.        '                       ''
1991, no pet.). We review a trial court's decision regarding the admissibility of extraneous

offense evidence under an abuse of discretion standard.. Prible v. State, MS S.W.3d 724, 731

(Tex. Crim. App. 2005). If it was within the zone of reasonable disagreement, there was no

abuse of discretion and we will uphold the trial court's ruling. Id. .

          Rule 404(b) of the rules of evidence states:                                                            ;     -

                  Evidence of other crimes;, wrongs or acts is not admissible to prove the
          character of a person in order to show action in conformity therewith. It may,
          however, be admissible for other purposes, such as proof of motive, opportunity,
          intent, preparation, plan, knowledge, identity, or absence of mistake or accident,
          provided that upon timely request by the accused in a criminal case, reasonable
          notice is given in advance of trial of intent to introduce in the State's case-in-chief
          such evidence other than that arising in the same transaction.4

          Article 38.37 of the code of criminal procedure concerns admission of evidence of

extraneous offenses or acts committed by a defendant against the child victim in cases,alleging

sexual offenses against minors. The previous version of article 38.37 of the code of criminal

procedure that applies here provides, in relevant part:                          ,

                 Sec. 2. Notwithstanding Rules 404 and 405, Texas Rules of Evidence,
          evidence of other crimes, wrongs, or acts committed by the defendant against the
          child who is the victim of.the alleged offense shall be admitted for its bearing on
          relevant matters, including:

                    (1) the state of mind of the defendant and the child; and

                    (2) the previous and subsequent relationship between the defendant and
          the child.


                    Sec. 3.      On timely request by the defendant, the state shall give the
          defendant notice of the state's intent to introduce in the case in chief evidence
          described by Section 2 in the same manner as the state is required to give notice
          under Rule 404(b), Texas Rules of Evidence.

                     Sec. 4.      This article does not limit the admissibility of evidence of
          extraneouscrimes, wrongs, or acts under any other applicable law.5

     4Tex. R. Evid. 404(b).          .       .
     5Act ofMay 29,1995, 74th Leg., R.S., ch. 318, §48,1995 Tex. Gen. Laws 2734,2748, amended by Act ofMay 24,2005,79th Leg., R.S.,
ch. 728, § 4.004,2005 Tex. Gen. Laws 2188,2192 (amended 2013).
                                                   Arguments of the Parties

      .- Appellant argues that he was not provided with timely notice of the State's intent to use

evidence of pornography from the computer. He argues that, because he was denied timely

discovery of evidence on the computer, he was deprived of his ability to fully prepare for trial

and due process. He contends that he did not have sufficient time to employ his own expert and

conduct a professional analysis of the computer evidence.-

          The State argues—among other arguments—that,-even- if the State provided untimely

notice of its intent to use extraneous offense evidence, the trial court did not err in admitting the

evidence because appellant's "embedded request for notice" within the Omnibus Motions did not

"trigger the State's duty to provide notice." The State maintains that the court must have ruled

on the motion before the State had a duty to produce or disclose.

                                                                Analysis

          We agree with the State.6 Rule of evidence 404(b) requires the State to give reasonable
notice in advance of trial of its intent to introduce evidence of extraneous offenses in the State's

case in chief "upon timely request by the accused in a criminal case[.]" Tex. R. Evid. 404(b).

Similarly, the previous version of article 38.37 of the code of criminal procedure requires the

State to give the defendant notice of its intent to introduce evidence of extraneous offenses as

provided in that article "fo]n timely request by the defendant[.]"7 When a defendant includes his

request for notice within a motion that requests the court to enter an order, the filing of the

motion alone is insufficient to trigger the duty to provide notice. See Simpson v. State, 991

S.W.2d 798, 801 (Tex. Crim. App. 1998); Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim.

App. 1993) (per curiam) (concluding "the State need not comply with requests contained in a

      Givenour disposition of this issue,we do not addressthe State's other arguments, including its contention that appellant waivederror.

     7Act ofMay 29,1995, 74th Leg., R.S., ch: 318, §48,1995 Tex. Gen. Laws 2734,2748, amended by Act ofMay 24,2005,79th Leg., R.S.,
ch. 728, §4.004,2005 Tex. Gen. Laws 2188,2192 (amended 2013).                                          '                          •



                                                                    -6-
discovery motion until the trial court orders it to do so"); see also Simpson v. State, 991 S.W.2d

at 802 (Meyers, J., joined by Baird and Price, J.J., concurring) ("Because Appellant's request for

notice is ineffective under Rule 404(b), it is also ineffective under Article 38.37."); Samora v.

State,-Ho, 13-09r00587-CR,2010 WL, 3279536, at *8 (Tex. App.—Corpus Christi Aug. 19,

2010, no pet.) (mem. op., not designated for publication) ("Samora's failure to make a specific

request to the trial court under article 38.37, and his failure to obtain a ruling on such a request,

waives the article 38.37 notice requirement."). When a defendant states his request for notice in

a motion to the court, the duty of the State to provide notice is triggered only when the defendant

obtains a ruling on the motion. See Simpson, 991 S.W.2d at 801; Espinosa, 853 S.W.2d at 39.

           In this case, appellant filed a document entitled Omnibus Pre-Trial Motions and Election

that.included his request that the trial court order the State to provide notice prior to trial*of its

intent to introduce evidence of extraneous offenses pursuant to rule of evidence 404(b) and code

of criminal procedure article 38.37.                         The record does not reflect that the court ruled on the

motion. Because appellant did not obtain a ruling on the motion, the notice requirements were

not triggered.

           In addition, appellant does not provide arguments or legal authorities to support his

assertion that he was deprived of due process.8 As a result, we conclude that he has not

sufficiently presented his contention that he was deprived of due process for appellate review.

&eTEX.R.APP.P.38.1(i).

           We overrule appellant's first issue.




       Appellant's brief includes a quote that discussesthe general principleof due process, but he does not indicatethe source of that quote or
indicate how that quote applies to the facts of this case.



                                                                    -7-
                                          Ineffective Assistance of Counsel


            Appellant argues that he was denied effective assistance of counsel based on (1) his

counsel's failure to file a motion to suppress evidence concerning pornographic materials on

appellant's computer9 and (2) his counsel's failure to.file a motion for the trial court to identify

the State's outcry witness.                .                                     '.

                                        Applicable Law and Standard of Review

            To prevail on his claim of ineffective assistance of counsel, appellant must show that his

attorney's representation fell below an objective standard of reasonableness and that there is a

reasonable probability that, but for his attorney's errors, the result of the proceeding would have

been different. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Appellant has

the burden of proving by a preponderance of the evidence that counsel was ineffective.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A claim of ineffective assistance

must be "firmly founded in the record" and the record must "affirmatively demonstrate" the

claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting

Thompson, 9 S.W.3d at 813).

            Our review of an attorney's performance must be highly deferential. Andrews v. State,

159 S.W.3d 98, 101 (Tex. Crim..App. 2005). We apply a strong presumption that counsel's

conduct fell within the wide range of reasonable professional assistance. Id. Generally, a silent

record that provides no explanation for counsel's actions will not overcome this strong

presumption of reasonable professional assistance. Rylander, 101 S.W.3d at 110-11.




     9
         Appellant states thatthis evidence concerning his computer was presented at the punishment phase. It was presented during the guilt-
innocence stage.
                                                   Arguments of the Parties

         Appellant argues that his counsel was deficient in not investigating, filing, and presenting

a motion to suppress the testimony of an expert from the Federal Bureau of Investigation

regarding the recovery of pornographic materials from appellant's computer.                                                  In addition,

appellant argues that his attorney failed to file a motion for the court to identify the State's outcry

witness. Appellant contends that, after the State designated three outcry witnesses, the court

permitted a fourth witness—Melissa Dobbins, a therapist with the Dallas Children's Advocacy

Center—to testify."as though she w[as] a designated outcry witness." Appellant contends that

Dobbins's testimony "went beyond the parameters of therapy" and included damaging hearsay

evidence that was "clearly bolstering" and "served only to corroborate" the complainant's

testimony, and that his counsel did not object to the "damaging hearsay presentation." Appellant

also argues that his counsel permitted testimony of extraneous offenses—namely, the

complainant's testimony concerning alleged sexual acts that appellant did to the complainant

over a number of years-^-to go before the jury without making an objection.

         The State argues that the record does not demonstrate ineffective assistance by

appellant's trial counsel.

                                                               Discussion                                                       »

         Appellant did not raise his claim that his counsel was ineffective in the trial court by a
  '       -              —•                                                              •                   *                      •


motion for new trial10 or introduce any evidence concerning his counsel's rationale or reasoning

for not filing a motion to suppress or a motion to identify the State's outcry witness or for not

objecting to certain testimony. A silent record provides no explanation for counsel's actions and,

as a result, the record on direct appeal is usually not sufficient to establish that counsel's

representation was so lacking and deficient in strategic or tactical decisionmaking to overcome

      1Appellant submitted a motion for new trial solely on the grounds that the verdict was contrary tothe law and the evidence.
the presumption that counsel's conduct was reasonable and professional. Cannon v. State, 252

S.W.3d 342,'349 (Tex. Crim. App. 2008); Rylander, 101 S.W.3d at 110-11. In addition, counsel

should ordinarily be given an opportunity to explain his actions before being denounced as

ineffective: Rylander, 101 S.W.3d at 111. Because the trial court record is silent as to the

reasons for the actions of appellant's attorney, we cannot conclude that the record firmly

demonstrates that the attorney's performance fell below an objective standard of reasonableness.

See Goodspeed, 187 S.W.3d at 392 (stating that appellate courts ordinarily will not conclude

counsel's performance was deficient without a record demonstrating that counsel had the

opportunity to explain his actions). We resolveappellant's second issue against him.

                                         Conclusion


       We affirm the trial court's judgment:




                                                      /Elizabeth Lang-Miers/
                                                      ELIZABETH LANG-MIERS
                                                      JUSTICE



Do Not Publish
Tex. R. App. P. 47.2(b)

131137F.U05'




                                               -10-
                                 Court of Appeals
                       Jfitftlj Btstrkt of ©exas at Dallas
                                      JUDGMENT


LUIS RODOLFO LOPEZ, Appellant                      On Appeal from the 194th Judicial District
                                                   Court, Dallas County, Texas
No. 05-13-01137-CR                                 Trial Court Cause No. F-l 160773-M.
                                                   Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                       Justices Bridges and Myers participating.


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


Judgment entered this 2nd day of February, 2015.




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