                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-15-00111-CR

                                         Claudia CORTEZ,
                                             Appellant

                                                v.

                                        The STATE of Texas,
                                              Appellee

                    From the County Court at Law No. 13, Bexar County, Texas
                                     Trial Court No. 446387
                       The Honorable Monica A. Gonzalez, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

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

Delivered and Filed: October 14, 2015

AFFIRMED

           Appellant Claudia Cortez was found guilty of assault causing bodily injury—family

violence. The jury assessed punishment at one-year confinement in the Bexar County Jail and a

fine in the amount of $700.00; the sentence was suspended and probated for a term of one year.

On appeal, Cortez contends the trial court’s refusal to hold a hearing on her motion for new trial

prevented her from creating the necessary record to prove her claim that she received ineffective

assistance of counsel. We affirm the trial court’s judgment.
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                           FACTUAL AND PROCEDURAL BACKGROUND

       The State alleged that on July 29, 2012, Cortez intentionally, knowingly, and recklessly

caused bodily injury to her then husband, Santos Cortez, when she scratched his face with her

hand. On December 11, 2014, after a three-day trial, the jury found Cortez guilty and assessed

punishment at one-year confinement in the Bexar county jail and a fine in the amount of $700.00;

the sentence was suspended and probated for a period of one year.

       On December 16, 2014, Cortez filed a motion for new trial asserting her trial counsel

afforded ineffective assistance. Specifically, Cortez contended her counsel erroneously failed to

request the lesser included offense of assault causing offensive contact be included in the jury

charge. Attached to the motion for new trial was trial counsel’s affidavit wherein he averred that

he provided ineffective assistance to Cortez by failing to request the lesser included offense. Trial

counsel’s affidavit claims his omission of the lesser included offense of assault causing offensive

contact deprived Cortez of her right to a fair trial. The motion for new trial was set on December

18, 2014.

       On December 18, 2014, the hearing was reset to December 29, 2014, due to illness by both

the judge and defense counsel. On December 29, 2014, the trial court denied the motion

concluding, the “[h]earing on [the] motion for new trial was set in error. Judge never intended to

have this matter set for hearing. The court never signed an order setting for hearing.”

       On January 9, 2015, Cortez timely filed an amended motion for new trial. On January 16,

2015, Cortez’s amended motion for new trial was set for hearing on February 6, 2015. On February

4, 2015, the setting was vacated by the trial court.

       In her sole issue on appeal, Cortez alleges the trial court erred in refusing to hold an

evidentiary hearing on her motion for new trial raising her claim of ineffective assistance of

counsel.
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                                     MOTION FOR NEW TRIAL

A.     Standard of Review

       “An appellate court reviews a trial court’s denial of a hearing on a motion for new trial for

an abuse of discretion.” See Hobbs v. State, 298 S.W.3d 193, 200 (Tex. Crim. App. 2009); accord

Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009); see also State v. Gonzalez, 855

S.W.2d 692, 696 (Tex. Crim. App. 1993) (quoting Grizzell v. State, 164 Tex. Crim. 362, 298

S.W.2d 816, 821 (1956)) (“‘The decision on a motion for new trial rests within the sound discretion

of the trial court, and in the absence of an abuse of discretion this [C]ourt would not be justified in

reversing the judgment.’”). The trial court’s determination on a motion for new trial is based on

(1) whether the evidence warranted a retrial of the cause of action or (2) “to complete the record

for presenting issues on appeal.” Hobbs, 298 S.W.3d at 199 (citing Smith, 286 S.W.3d at 338). A

motion for new trial “must be supported by an affidavit specifically setting out the factual basis

for the claim.” Id. (quoting Smith, 286 S.W.3d at 339).

       A hearing on a defendant’s motion for new trial is not an absolute right. Id. (citing Smith,

286 S.W.3d at 338); accord Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). “[A]

trial judge abuses his discretion in failing to hold a hearing if the motion and accompanying

affidavits (1) raise matters which are not determinable from the record and (2) establish reasonable

grounds showing that the defendant could potentially be entitled to relief.” Hobbs, 298 S.W.3d at

199 (citing Smith, 286 S.W.3d at 338–39). In Smith, the Court of Criminal Appeals held the

defendant was not entitled to a hearing on his ineffective assistance of counsel claims based on his

failure to sufficiently prove prejudice as required under Strickland. See Smith, 286 S.W.3d at 345.

B.     Arguments of the Parties

       Cortez asserts she is entitled to a hearing for a new trial based on her claim that she received

ineffective assistance of counsel. See Reyes, 849 S.W.2d at 816 (holding that trial counsel was
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ineffective for failing to inform appellant of a plea bargain offered by the State); Hobbs, 298

S.W.3d at 198–200. Specifically, Cortez alleges her trial counsel failed to request the lesser

included offense of assault causing offensive contact be included in the jury charge 1. Based on

trial counsel’s failure, Cortez contends she was deprived of her right to a fair and impartial trial.

She further asserts the facts supporting her allegations are not determinable from the record.

         The State counters the trial court properly denied a hearing on Cortez’s motion for new

trial because: 1) Cortez did not raise an issue that would entitle her to relief, 2) the issues raised

are determinable by examining the record, and 3) assault causing offensive contact is not a lesser

included offense of assault causing bodily injury.

         Because Cortez’s argument centers on her claim of ineffective assistance of counsel, our

focus turns to whether the evidence of her ineffective assistance claim warranted a new trial or

whether a hearing was required for completion of a record on appeal. Hobbs, 298 S.W.3d at 199.

C.       Ineffective Assistance of Counsel

         In Strickland v. Washington, 466 U.S. 668, 687, 694 (1984), the United States Supreme

Court set out a two-prong test to determine whether trial counsel’s representation was ineffective:

(1) “[t]he defendant must show that counsel’s performance was deficient” and (2) “a reasonable

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

been different.” Accord Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013); Menefield

v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Ex parte Moore, 395 S.W.3d at 157 (citing

Strickland, 466 U.S. at 687). When a convicted defendant complains of the ineffectiveness of



1
 Although Cortez raised additional complaints against trial counsel’s assistance in her motion for new trial, Cortez’s
brief and argument are limited to whether trial counsel failed to advise her of the lesser included offense of pleading
assault causing offensive contact. See TEX. R. APP. R. 33.1.

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counsel’s assistance, the defendant must show that counsel’s representation “‘fell below an

objective standard of reasonableness’ under prevailing professional norms.”             Id. (quoting

Strickland, 466 U.S. at 687–88); see also Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim.

App. 2011). To prove harm, Cortez “must demonstrate that [she] was prejudiced by [her]

attorney’s performance or that ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” Id. at 158 (citations

omitted) (quoting Strickland, 466 U.S. at 694).

       We remain mindful that appellate courts must view matters “from the viewpoint of an

attorney at the time he acted, not through 20/20 hindsight.” Ex parte Jimenez, 364 S.W.3d 866,

883 (Tex. Crim. App. 2012); accord Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App.

2014). Our review of trial counsel’s actions is “highly deferential and presumes that counsel’s

actions fell within the wide range of reasonable and professional assistance.” Garza v. State, 213

S.W.3d 338, 348 (Tex. Crim. App. 2007) (citing Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002)).

D.     Analysis

       1.      Affidavit Requirement

       Any allegation of ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999); accord Burgess v. State, 448 S.W.3d 589, 602 (Tex. App.—Houston [14th

Dist.] 2014, no pet.). In an attempt to guard against “fishing expeditions,” a motion must be

supported by an affidavit either of the accused or someone else specifically showing the truth of

the grounds of attack. See Smith, 286 S.W.3d at 339; Reyes, 849 S.W.2d at 816. Importantly,

however, affidavits attached to a motion for new trial are merely pleadings and not evidence. See

Martins v. State, 52 S.W.3d 459, 468 (Tex. Crim. App. 2001). Although courts are hesitant to
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assign any error as per se ineffective assistance of counsel as a matter of law, we acknowledge that

a single egregious error of omission or commission by appellant’s counsel may constitute

ineffective assistance. Thompson, 9 S.W.3d at 813 (quoting Jackson v. State, 766 S.W.2d 504,

508 (Tex. Crim. App. 1988)); accord Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App. 2013).

       2.      Counsel’s Affidavit

       Cortez’s motion for new trial contained the affidavit of her trial counsel stipulating he

provided ineffective assistance to Cortez by failing to request the lesser included offense of assault

causing offensive contact be included in the trial court’s charge. Trial counsel averred his decision

was not a matter of trial strategy, an “all or nothing” strategy, a “go for broke” strategy, nor any

type of gamble strategy. Trial counsel’s affidavit opines the assistance he provided Cortez was

ineffective because he failed to advise of the lesser included offense of assault causing offensive

contact and he failed to advise Cortez of the right to have the lesser included offense included in

the jury charge.

       Although we are deferential to trial counsel’s actions, “affidavits that are conclusive in

nature and unsupported by facts do not provide the requisite notice of the basis for the relief

claimed; thus, no hearing is required.” See Smith, 286 S.W.3d at 339. Here, trial counsel accepted

responsibility for the ineffective assistance and offers his reasoning why he provided ineffective

assistance:

               (1)   his focus of the assault on the sole issue of injury as opposed
                     to offensive contact; and
               (2)   he did not realize his error of not considering nor requesting
                     the inclusion of a lesser included offense, until a juror
                     questioned why a lesser included offense was not made an
                     option.




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       Based on Cortez’s claims, we must first determine whether, if properly requested by trial

counsel, Cortez was entitled to an instruction on assault causing offensive contact as a lesser

included offense of assault causing bodily injury.

       3.      Lesser Included Offenses

               a.      Two-Step Analysis

       Whether a defendant is entitled to a lesser-included offense instruction requires a two-step

analysis. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011) (citing Hall v. State, 225

S.W.3d 524, 528 (Tex. Crim. App. 2007)); Zapata v. State, 449 S.W.3d 220, 224 (Tex. App.—San

Antonio 2014, no pet.). “We first consider whether the offense contained in the requested

instruction is a lesser-included offense of the charged offense. If so, we must decide whether the

admitted evidence supports the instruction.” Goad, 354 S.W.3d at 446.

       In determining whether the lesser-included offense is included in the proof necessary to

establish the charged offense, a court must compare the elements alleged in the indictment with

the elements of the potential lesser offense. Zapata, 449 S.W.3d at 224 (citing Cavazos v. State,

382 S.W.3d 377, 382 (Tex. Crim. App. 2012)). As stated in the Texas Code of Criminal Procedure,

an offense is a lesser-included offense if “it is established by proof of the same or less than all the

facts required to establish the commission of the offense charged.” TEX. CODE CRIM. PROC. ANN.

art. 37.09(1) (West 2006). In other words, an offense is a lesser-included offense of another

offense if the indictment for the greater offense alleges all of the elements of the lesser offense.

Zapata, 449 S.W.3d at 224 (citing Cavazos, 382 S.W.3d at 382); see also Royster v. State, 622

S.W.2d 442, 446 (Tex. Crim. App. [Panel Op.] 1981).




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               b.     Statutory Distinctions

       Cortez was charged with assault causing bodily injury—“[i]ntentionally, knowingly, or

recklessly causing bodily injury to another, including the person’s spouse.” TEX. PEN. CODE ANN.

§ 22.01(a)(1). Assault causing offensive contact is defined as: “Intentionally or knowingly causing

physical contact with another when the person knows or should reasonably believe that the other

will regard the contact as offensive or provocative.” TEX. PEN. CODE ANN. § 22.01(a)(3).

       “Assault causing bodily injury requires proof the defendant caused bodily injury to the

complainant; assault by offensive touching requires proof the defendant knew or should have

reasonably believed that the complainant would regard the contact as offensive or provocative.”

McKithan v. State, 324 S.W.3d 582, 585 (Tex. Crim. App. 2010). As the court explained in

McKithan, although the State’s evidence may have shown offensive contact, the State was not

required to prove Cortez’s actions were offensive contact in establishing that her actions

constituted bodily injury. Id. at 593–94; see also Welsh v. State, No. 2-08-169-CR, 2009 WL

1425194, at *2 (Tex. App.—Fort Worth May 21, 2009), aff’d, 324 S.W.3d 582 (Tex. Crim. App.

2010) (“To establish that Welsh intentionally or knowingly caused bodily injury to C.W. by

kicking her with his foot, the State was not required to prove that Welsh knew or reasonably should

have believed that C.W. would regard the contact as offensive or provocative.”); cf. Hall v. State,

225 S.W.3d 524, 528 (Tex. Crim. App. 2007) (concluding that because additional facts were not

necessary to support the requested lesser included, the offense was a lesser included offense).

       4.      Determinations by the Trial Court

       Here, the relevant question was “not what the evidence may show but what the State is

required to prove to establish the charged offense.” See McKithan, 324 S.W.3d at 594 (citing Hall,

225 S.W.3d at 536–37). The trial court could reasonably determine from the facts contained in

the record whether Cortez was entitled to a lesser-included charge on offensive physical contact
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without holding a hearing. See id. at 589; Reyes, 849 S.W.2d at 816 (holding motion must establish

that reasonable grounds exist to hold hearing). The information only required the State to prove

that Cortez caused bodily injury to her husband, not that the complainant would consider such

contact as offensive or provocative. See McKithan, 325 S.W.3d at 591. Thus, trial counsel’s

reasons for not requesting the lesser included charge were irrelevant because Cortez was not

entitled to the instruction she now claims was erroneously excluded.

       Cortez failed to satisfy Strickland’s second-prong because she failed to show the outcome

of the case would have been different but for her trial counsel’s ineffective assistance. Strickland,

466 U.S. at 691. The record, therefore, substantiated that any error by counsel, even assuming

professional unreasonableness, had no effect on the judgment. Strickland, 466 U.S. at 691. Based

on the statutory language set forth in section 37.09, all of the facts required to establish the

commission of the offense charged are not the same or less than the charge of the lesser included

offense. See TEX. CODE CRIM. PROC. ANN. § 37.09; McKithan, 324 S.W.3d at 594. We, therefore,

conclude a hearing was not necessary to determine Cortez’s lack of entitlement to the jury charge

on the lesser included offense of assault offensive contact. Accordingly, Cortez’s motion for new

trial did not warrant setting aside the judgment or require a holding to make such determination,

the trial court did not err in refusing to set a hearing on Cortez’s motion, see McKithan, 324 S.W.3d

at 594, and we affirm the trial court’s judgment.

                                                    Patricia O. Alvarez, Justice

DO NOT PUBLISH




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