Opinion issued October 22, 2015.




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                              ————————————
                                NO. 01-14-00910-CR
                             ———————————
                             JOSE RAMOS, Appellant
                                           V.
                        THE STATE OF TEXAS, Appellee


                    On Appeal from the 182nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1405942


                           MEMORANDUM OPINION

      A jury convicted appellant, Jose Ramos, of aggravated sexual assault and

assessed punishment at sixty years’ confinement. In two points of error, appellant

contends that (1) his trial counsel was ineffective for failing to prepare for trial, and
(2) the trial court erred in denying appellant’s motion for a new trial based on such

ineffective assistance of counsel. We affirm.

                                  BACKGROUND

       A grand jury indicted appellant for the offense of aggravated sexual assault

of the complainant, Jane,1 appellant’s neighbor. Jane’s husband regularly left for

work at around 5:00 A.M., and Jane would usually shut the door behind him after

he left. At trial, Jane testified that appellant forcefully entered her apartment as she

attempted to close the door after her husband had left for work. Appellant then

threatened Jane with a gun, telling her not to yell or resist or he would shoot her.

Appellant took Jane to the bathroom where she was forced at gun point to perform

oral sex on appellant. Appellant then forced her into the living room, throwing her

onto the couch. Jane further testified that appellant raped her on the couch while

holding the gun to her forehead. Afterward, appellant forced her back into the

bathroom and demanded she wash herself. Appellant then robbed Jane, taking

$200 in cash and her cell phone. Jane waited until she knew appellant was gone

and then went over to her friend’s apartment where she eventually called the

police. An ambulance transported Jane to the hospital where a sexual assault exam

was performed and a rape kit taken.



1
    The pseudonym “Jane” will be used for the victim in this case. See TEX. CODE
    CRIM. PROC. art. 57.02(b) (West 2010).
                                           2
      Several days later, Jane recognized appellant walking in her apartment

complex, and she and her husband called the police. The police found that

appellant had Jane’s cell phone, but he told police he did not know Jane and had

received the phone from a friend. Appellant provided a DNA sample and was

arrested. A DNA analyst analyzed Jane’s rape kit, and found semen on Jane’s

vaginal cervical swab and underwear. The analyst determined that appellant’s

DNA could not be excluded from Jane’s underwear or her vaginal swab. Jane

identified appellant in court as her attacker. The State introduced testimony

regarding Jane’s version of the events. The trial court also admitted the DNA test

results indicating that appellant was a source of DNA for the vaginal swabs taken

from Jane.

      After appellant’s trial counsel advised him regarding the right to testify,

appellant chose to testify on his own behalf. Appellant testified he spoke with Jane

many times and eventually established a sexual relationship with her. He testified

the two would meet up early in the mornings when her husband would leave for

work. Appellant admitted he was there the morning of the alleged incident, and

that he had sex with Jane after her husband left that day. Appellant testified that

Jane mentioned to appellant her desire to become a permanent resident, and asked

if appellant could help her “fix her papers.” Appellant contends after he refused to

help with her papers that she became angry and promised he was “going to pay for


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it.” He admitted to stealing the phone, but only as “revenge” for Jane becoming

upset with him. Other than appellant, trial counsel did not call any witnesses, nor

did he introduce any evidence concerning appellant’s good character. A jury then

found appellant guilty of aggravated sexual assault as charged in the indictment.

      Jane testified during the punishment phase as well. She testified concerning

the after-effects of the incident, in which she felt afraid something would happen to

her if she called the police. She also testified that the relationship between her and

her husband has changed due to the incident, and that she is still afraid and cannot

sleep at night. She testified that she was pregnant when the incident occurred, and

feared for her other child who was sleeping in the next room during the incident.

Although trial counsel for appellant renewed his motion to acquit, which was

denied, trial counsel did not call any witnesses or introduce any mitigating

evidence during the punishment phase.

      Appellant, with newly appointed counsel, filed a motion for new trial

primarily asserting that appellant’s trial counsel “failed to prepare himself” for

trial. Specifically, appellant claims that trial counsel was ineffective because he: 1)

failed to investigate the offense; 2) failed to prepare appellant to testify on direct

and cross-examination; and 3) failed to subpoena witnesses on appellant’s behalf.

The trial court heard appellant’s motion for new trial by affidavits on February 13,

2015. In his affidavits, appellant claimed that defense counsel only met with him


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once in defense counsel’s office to prepare for his testimony. He also asserted that

his wife, sisters, and brother-in-law were available to testify, but defense counsel

did not call them. He asserted that the witnesses would have testified about “my

life, how I really am, that they don’t believe I would do something like that.”

Appellant admitted that he had sex with the victim, but stated that it was

consensual.

      Defense counsel testified by affidavit that he never met with appellant in jail,

and that once appellant was released on bond, he never scheduled an appointment.

Defense counsel believed appellant’s representations that appellant was going to

hire another lawyer. When counsel showed up at the first trial setting, he was

surprised that appellant had not hired someone, so counsel asked for a continuance

to prepare for trial. Defense counsel did not challenge the DNA evidence because

appellant admitted to having sex with the complainant, who he claimed was his

girlfriend. Defense counsel asked appellant for any witnesses who could support

his story that the complainant was his girlfriend, but appellant said no one else

knew. The prosecutor testified that appellant’s wife, who was at trial, seemed

upset about appellant’s testimony at the guilt-innocence phase and would not be

returning to court. Defense counsel stated that appellant’s wife and relatives, who

were present at guilt-innocence, did not return to court for punishment because

appellant “did not want them there.”


                                          5
      After reviewing the affidavits and hearing arguments from both parties, the

trial judge noted that appellant had intentionally not hired a new lawyer because

“he thought he could delay ever having a trial and having to answer the charges.”

The judge denied appellant’s motion for mew mrial. Appellant filed a timely notice

of appeal.

                 INEFFECTIVE ASSISTANCE OF COUNSEL

      In his first point of error, appellant contends that his trial counsel rendered

constitutionally ineffective assistance. Specifically, appellant contends that his trial

counsel: (1) failed to investigate the offense; (2) failed to prepare appellant to

testify; (3) failed to meet with appellant; (4) failed to listen to the complainant’s

audio statement; and (5) failed to subpoena witnesses on appellant’s behalf. In his

second point of error, appellant contends the trial court erred in overruling his

motion for new trial based on the ineffectiveness alleged in point of error one.

Thus, we address both issues together.

Standard of Review

      To establish that trial counsel rendered ineffective assistance, an appellant

must demonstrate, by a preponderance of the evidence, that (1) his counsel’s

performance was deficient, and (2) there is a reasonable probability that the result

of the proceeding would have been different but for his counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064


                                           6
(1984); Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010); Cannon

v. State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008). An appellant’s failure

to make either of the required showings of deficient performance and sufficient

prejudice defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d

107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the

Strickland test negates a court’s need to consider the other prong.”).

      An appellant must first show that his counsel’s performance fell below an

objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483

(Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). The second prong of Strickland requires an appellant to demonstrate

prejudice—“a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at

694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Strickland, 466

U.S. at 694, 104 S. Ct. at 2068.

      We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance, and, therefore, appellant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review


                                          7
is highly deferential to counsel, and we do not speculate regarding counsel’s trial

strategy. See Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002). To

prevail on an ineffective assistance claim, appellant must provide an appellate

record that affirmatively demonstrates that counsel’s performance was not based

on sound strategy. Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

see Thompson, 9 S.W.3d at 813 (holding that record must affirmatively

demonstrate alleged ineffectiveness).

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

an abuse of discretion, reversing only if the trial judge’s opinion was clearly

erroneous and arbitrary. Freeman v. State, 340 S.W.3d 717, 732 (Tex. Crim. App.

2011). A trial court abuses its discretion if no reasonable view of the record could

support the trial court’s ruling. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim.

App. 2007). This deferential review requires the appellate court to view the

evidence in the light most favorable to the trial court’s ruling. Charles v. State, 146

S.W.3d 204, 208 (Tex. Crim. App. 2004). The appellate court must not substitute

its own judgment for that of the trial court and must uphold the trial court’s ruling

if it is within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109,

112 (Tex. Crim. App. 2007). “Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”

Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511


                                          8
(1985). This same deferential review must be given to a trial court’s determination

of historical facts when it is based solely on affidavits, regardless of whether the

affidavits are controverted. Charles, 146 S.W.3d at 208. The trial court is free to

disbelieve an affidavit, especially one unsupported by live testimony. Kober v.

State, 988 S.W.2d 230, 234 (Tex. Crim. App. 1999).

Analysis

      A. Failure to Investigate the Offense

      In his first claim of ineffective assistance, appellant complained that his trial

counsel rendered ineffective assistance of counsel by failing to conduct a proper

investigation of the facts of the case. 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, 104 S. Ct. at 2066. A claim for

ineffective assistance based on trial counsel’s general failure to investigate the

facts of the case fails absent a showing of what the investigation would have

revealed that reasonably could have changed the result of the case. Stokes v. State,

298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). A

challenge to defense counsel’s failure to investigate will only be sustained when,

because of that failure, “the only viable defense available to the accused is not

advanced, and there is a reasonable probability that, but for counsel’s failure to




                                          9
advance the defense, the result of the proceeding would have been different.”

Cantu v. State, 993 S.W.2d 712, 718 (Tex. App.—San Antonio 1999, pet. ref’d).

      Trial counsel testified via affidavit that he discussed the case with appellant

all eight times they were in court, specifically regarding the “state’s case . . . and

the facts with [appellant].” Appellant told his defense counsel that he had sex with

the complainant, but the sex was consensual.         Defense counsel asked if any

witnesses could verify the claimed dating relationship between appellant and the

complainant, but appellant did not provide any names. The prosecution further

testified via affidavit that she ensured the trial counsel received all pertinent

documents relating to the case, and it was clear to her the trial counsel had

familiarized himself with the content of those documents. The record contains no

evidence about how many hours outside of the courtroom trial counsel spent

preparing for trial. Appellant has failed to show what any further investigation by

defense counsel would have revealed.           Defense counsel, in fact, vigorously

presented the only defense available to appellant in light of his admission to having

sex with the complainant, i.e., consent. Defense counsel furthered appellant’s

consent defense by developing a possible motive for Jane to fabricate the assault—

her desire for appellant to help her obtain papers to remain in the United States.

      Furthermore, appellant’s motion for new trial and appellate brief do not state

how further investigation or interviews could have changed the result of the case.


                                          10
      We overrule appellant’s first claim of ineffective assistance.

      B. Failure to Prepare Appellant to Testify

      Appellant’s second claim of ineffective assistance of counsel is that trial

counsel failed to prepare appellant to testify. Without a showing of prejudice, we

cannot conclude that trial counsel’s preparation of the witnesses constituted

ineffective assistance of counsel. Radcliff v. State, 01-02-00419-CR, 2004 WL

584688, at *3 (Tex. App.—Houston [1st Dist.] Mar. 25, 2004, no pet.).

Specifically, appellant contends that trial counsel should not have let him deny

responsibility for his prior convictions or answer “yes” when asked whether he

would like to stay out of trouble. However, the record does not indicate that with

proper preparation appellant would have answered these questions differently.

Indeed, if appellant believed his testimony to be true, he could not have testified

differently.

      The record shows that trial counsel informed appellant of his rights and

warned appellant criminal history would be relevant. Appellant’s testimony,

though risky, was the only means by which to advance his defensive theory of

consent, because no other witnesses were available to testify about the purported

dating relationship between appellant and the complainant.

      Because appellant provided no evidence that additional meetings with trial

counsel regarding his testimony would have made a difference in the case or would


                                         11
have produced different answers at trial, we overrule appellant’s second claim of

ineffective assistance.

      C. Failure to Meet with Appellant

      In his third claim of ineffective assistance, appellant argues that trial counsel

was deficient for failing to meet with him outside of the courtroom. Appellant’s

trial counsel admitted that he had not met with appellant while he was confined in

jail. Trial counsel further stated that he did not meet with appellant outside of the

courtroom while he was out on bond; appellant told the trial counsel he would be

hiring another attorney, but did not do so.2 Appellant contends that even if the trial

counsel believed appellant would be hiring another attorney, it does not excuse the

trial attorney for failing to meet with appellant prior to this. Appellant opines that

“perhaps if trial counsel had met with appellant, he would have provided names of

possible witnesses.” This is discounting the multiple meetings that took place in

the courtroom between trial counsel and appellant where appellant could have

provided trial counsel with any information that might be helpful in this case, but

did not do so. Defense counsel testified by affidavit that he asked appellant for

names of witnesses who could verify his alleged relationship with the complainant,

but appellant provided none. And, regarding defense counsel’s failure to call




2
      Appellant stated that he did meet with defense counsel once at his office.
                                           12
witnesses at punishment, appellant told his defense counsel that “he did not want

[the witnesses] there.”

      As such, appellant provides no evidence that the meetings appellant had with

counsel were insufficient or that additional meetings between appellant and trial

counsel would have made a difference in the case. See Perrett v. State, 871 S.W.2d

838, 841 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (finding appellant failed

to show how jail consultations, as opposed to court consultations, would have

impacted the outcome of the case).

      We overrule appellant’s third claim of ineffective assistance.

      D. Failure to Listen to Complainant’s Audio Statement

      In his fourth claim of ineffective assistance, appellant argues that trial

counsel was deficient for not listening to Jane’s audio statement. In his affidavit,

defense counsel states that he did not listen to the complainant’s audio statement,

and he did not “know why I didn’t.” Defense counsel also stated that listening to

the statement before trial would not have changed his only defense because

appellant admitted having sex with the complainant, and consent was his defense.

He further testified by affidavit that he knew the substance of the complainant’s

statement through the offense report.

       Criminal defense counsel has a responsibility to seek out and interview

potential witnesses and the failure to do so is to be ineffective where the result is


                                         13
that any viable defense available to the accused is not advanced. Ex Parte Ybarra,

629 S.W.2d 943, 946 (Tex. Crim. App. [Panel Op.] 1982). An attorney’s failure to

investigate or present witnesses will be a basis for establishing ineffective

assistance of counsel only where it is affirmatively shown that the presentation of

that evidence would have benefitted appellant. See Butler v. State, 716 S.W.2d 48,

55 (Tex. Crim. App. 1986).

      Counsel for the State testified via affidavit that the trial counsel was able to

discuss the case and facts of the case in detail as it seemed he had an understanding

“of the underlying facts of the case, as well as the details of the [c]omplainant’s

statement, information in the police report and DNA lab report.” It was clear to the

prosecutor that trial counsel had reviewed the State’s file, including all of the

witness statements and reports, although trial counsel admitted that he did not

listen to the taped witness statements. The record does not support appellant’s

claim that counsel provided ineffective assistance of counsel based on not listening

to the victim’s audio statement. Defense counsel took steps to become familiar

with the facts through reviewing the State’s file and reading the witness statements.

See Barraza v. State, 08-00-00042-CR, 2001 WL 1100401, at *3 (Tex. App.—El

Paso Sept. 20, 2001, no pet.).




                                         14
      Further, Appellant makes no effort to explain what viable defense was not

advanced as the result of counsel’s preparation, nor does he address how he would

have benefitted had counsel listened to the audiotape.

         We overrule appellant’s fifth claim of ineffective assistance.

      E. Failure to Subpoena Witnesses on Appellant’s Behalf

      In his sixth claim of ineffective assistance, appellant argues that trial counsel

failed to call witnesses on his behalf. “Counsel’s failure to call witnesses at the

guilt-innocence and punishment stages is irrelevant absent a showing that such

witnesses were available and appellant would benefit from their testimony.” King

v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); cf. Perez v. State, 403 S.W.3d

246, 251–52 (Tex. App.—Houston [14th Dist.] 2008), aff’d, 310 S.W.3d 890 (Tex.

Crim. App. 2010) (finding counsel deficient for failing to interview two alibi

witnesses that appellant asked him to contact when record showed those witnesses

provided personal affidavits as to how they would have testified).

      Regarding the failure to call witnesses at guilt/innocence, defense counsel

stated that he asked appellant for a list of witnesses who could verify appellant’s

claim of a romantic relationship with the complainant, and appellant provided no

names. Defense counsel cannot be deficient for failing to call witnesses that were

never identified by appellant. “Because appellant did not describe the witnesses

with reasonable particularity, it was not ineffective assistance for trial counsel not


                                          15
to seek them out to investigate them.” Cannon v. State, 668 S.W.2d 401, 403 (Tex.

Crim. App. 1984).

      Regarding defense counsel’s failure to call witnesses at punishment, it

should be noted that appellant’s family members, who he asserted could have

testified about “my life, how I really am, that they don’t believe I would do

something like that[,]” were not available at the punishment hearing, although they

had been present at trial. The prosecutor testified that appellant’s wife seemed

upset by appellant’s trial testimony, and did not return for punishment. And

finally, appellant told defense counsel that his family was not at punishment

because “he did not want them there.” Although defense counsel stated that he

could have called family members to “humanize the defendant to the jury” at

punishment, he is not ineffective for failing to call witnesses that appellant did not

want to be there.

      We overrule appellant’s sixth claim of ineffective assistance. Having

overruled all of appellant’s claims of ineffective assistance of counsel, we overrule

points of error one and two.




                                         16
                                CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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