Affirmed and Memorandum Opinion filed August 11, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00285-CR

                            DAVID RUIZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 212th District Court
                           Galveston County, Texas
                      Trial Court Cause No. 11-CR-1921

                 MEMORANDUM                       OPINION


      Appellant, David Ruiz, appeals the trial court’s adjudication of appellant’s
guilt for sexual assault of a child. In two issues, appellant contends the trial court
abused its discretion by: (1) failing to grant a motion for new trial based on
ineffective assistance of counsel during the adjudication proceeding; and (2) failing
to grant a hearing on the motion for new trial. We affirm.
                                   I. BACKGROUND

       In 2011, Appellant, pleaded “guilty” to sexual assault of a child.1 The trial
court placed appellant on six years’ deferred-adjudication community supervision.
The State filed a motion to adjudicate guilt, with multiple amendments between
2013 and 2015, on the grounds that appellant violated conditions of his community
supervision and failed to pay several fines. The State eventually filed a sixth
amended motion that resulted in the proceeding at issue.

       The trial court conducted a hearing on the State’s motion to adjudicate on
March 19, 2015. At the hearing, appellant pleaded “true” to two paragraphs in the
motion, admitting he “failed participate in Community Service work as approved
by the Court at a rate of no less than sixteen (16) hours per month until completed”
and “failed to comply with polygraph requirements.”

       The trial court heard evidence regarding thirteen other allegations to which
appellant pleaded “not true.” The State called as its first witness Rochell Dickey, a
community supervision officer for Galveston County, who testified as to
appellant’s failure to meet various requirements of community supervision (or
probation) as alleged in the motion to adjudicate. The State also called as a
witness Paula Welch, a certified peace officer and former sex offender compliance
officer for Galveston County Sheriff’s Office. Officer Welch testified regarding
appellant’s failure to comply with certain sex offender registration requirements.
Thereafter, the State rested.

       As its first witness, defense counsel called appellant to testify to elicit
testimony in rebuttal to the State’s allegations. Defense counsel attempted to call


       1
        Appellant was on probation for sexually assaulting his sister over an extended period of
time. She was 8 years old at the time.

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appellant’s mother as a witness; however, she was unavailable.2 The defense called
appellant’s cousin, James Merritt, who provided character witness testimony.3
After Merritt testified, the defense rested. The parties presented their closing
arguments.

       The trial court found allegations regarding appellant having internet access
through a mobile device based on certain Facebook posts were “not true.”4 The
trial court found sufficient evidence to support a finding of “true” for twelve
allegations in the State’s motion to adjudicate guilt.5

       For sentencing purposes, the trial court inquired if either party had any
motions or requests.          The State replied by moving to have all the evidence
presented during the hearing to be considered during the punishment phase and
recommending appellant be sentenced to twenty years.6 Defense counsel
recommended that appellant be allowed to remain on probation – if not deferred,
then straight probation. The trial court found appellant guilty of the initial offense

       2
         The record reflects that defense counsel stepped out in the hall to get appellant’s
mother, but returned to the courtroom and stated,“[h]is mother actually had to go to work.”
       3
         Merritt testified that appellant is a hard worker and that if the trial court would allow
appellant to remain on probation that Merritt allegedly knew of a place in Galveston that would
hire appellant as a laborer in a shipyard.
       4
         Defense counsel objected to the evidence as not properly authenticated, which the trial
court sustained. Thereafter, the trial court found not true paragraphs 57, 62, and 63.
       5
          In addition to the two paragraphs to which appellant pleaded true (31 and 56), the trial
court found true ten additional paragraphs (1d, 4, 9, 12, 13, 16, 16A, 17A, 36, and 40) of the
motion to adjudicate. The paragraphs found to be true included, but were not limited to,
allegations of failing to report to Galveston Sheriff’s Department for sex offender registration;
failing to report to his community supervision officer as ordered for the months of December,
2012, and January, February, March, April, November, and December, 2013, and February,
2014; failing to report to his community supervision officer any change of address; failing to pay
as ordered supervision fees, costs of court, compensation for appointed counsel, Crime Stopper
Program, and Sexual Assault Program Fund; failing to attend counseling sessions for sex
offenders; and failing to report to Texas City Police Department for sex offender registration.
       6
           The State did not present a victim impact statement.

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of sexual assault of a child and assessed appellant’s punishment as twenty years’
confinement.

       Represented by new counsel, appellant timely filed a motion for new trial.
Appellant argued that his trial counsel was ineffective for not investigating and
presenting mitigating evidence. Appellant attached affidavits from both his mother
(Gloria Lopez) and his sister (Yesenia Lopez),7 claiming they would have testified
and were available if counsel had contacted them and informed them they could
testify. In both affidavits, they allege appellant’s step-father sexually assaulted
appellant and that appellant was forced by his step-father to have sex with his
younger sister. Both affidavits further allege that appellant fell, fractured his skull,
and had seizures.         Yesenia alleged that appellant has trouble understanding
instructions and has to hear them multiple times. Appellant’s mother claimed
appellant is depressed and that he has mentioned suicide.

       Appellant’s motion for new trial, with the accompanying affidavits, was
presented to the same district judge who conducted the hearing on the motion to
adjudicate guilt. The trial court initially scheduled a hearing on the motion, issuing
a subpoena to Galveston County jail for any medical records of appellant as well as
subpoenas to appellant’s mother and sister. Although multiple attempts were made
to serve appellant’s mother and sister with the subpoenas, they were unsuccessful
and unable to serve either individual. Thereafter, the trial court denied appellant’s
request for a hearing. The trial court allowed the motion for new trial to be
overruled by operation of law.8 This appeal timely followed.



       7
           Yesenia Lopez was not the complainant in the offense in the case at bar.
       8
         A motion for new trial is deemed denied absent a timely ruling by written order. See
Tex. R. App. P. 21.8(c).

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                                      II. ANALYSIS

A.     Motion for new trial based on ineffective assistance of counsel

       In his first issue, appellant argues that the trial court abused its discretion by
denying his motion for new trial because he claims he established that his trial
counsel was ineffective for not investigating and presenting mitigating evidence
during his revocation hearing. Appellant argues that knowing that the trial court
could sentence Appellant to the full range of punishment based on his plea of true,
trial counsel’s failure to investigate and present mitigating evidence was deficient.

       1.     Standard of review

       We review a trial court’s ruling on a motion for new trial under an abuse of
discretion standard, reversing only if the trial judge’s opinion was clearly
erroneous and arbitrary.9 Riley v. State, 378 S.W.3d 453, 457 & n.9 (Tex. Crim.
App. 2012) (citations omitted); Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d). “A trial court abuses its discretion if no
reasonable view of the record could support the trial court’s ruling.” Id., at 457 &
n.10 (citing Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Charles
v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004)). This deferential review
requires us to view the evidence in the light most favorable to the trial court’s
ruling. Id., at 457 & n.11. We must not substitute our 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.         See id. (citations omitted).        “Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.” Id. (citations omitted). “This same deferential review must be

       9
          “A trial court’s decision to deny a motion for new trial or allow it to be overruled by
operation of law is also reviewed on an abuse of discretion standard.” Mallet v. State, 9 S.W.3d
856, 868 (Tex. App.—Fort Worth 2000, no pet.).

                                               5
given to a trial court's determination of historical facts when it is based solely on
affidavits, regardless of whether the affidavits are controverted.” Id. (citations
omitted).

      2.     Ineffective assistance of counsel

      Ineffective assistance of counsel may be raised in a motion for new trial.
Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). An appellant
seeking to challenge trial counsel’s representation must establish that his counsel’s
performance (1) was deficient and (2) prejudiced his defense.          Strickland v.
Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999). To show deficient performance “the appellant must prove
by a preponderance of the evidence that his counsel’s representation objectively
fell below the standard of professional norms.” Smith, 286 S.W.3d at 340 n.26
(quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)). To show
prejudice, the appellant “must show there is a reasonable probability that, but for
his counsel’s unprofessional errors, the result of the proceeding would have been
different. Smith, 286 S.W.3d at 340 n.27 (quoting Strickland, 466 U.S. at 694).

      In considering an ineffective-assistance claim, we indulge a strong
presumption that counsel’s actions fell within the wide range of reasonable
professional behavior and were motivated by sound trial strategy. Strickland, 466
U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective
assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814.
In most cases, direct appeal is an inadequate vehicle for raising such a claim
because the record is generally undeveloped and cannot adequately reflect the
motives behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11
(Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. When the record is silent

                                          6
regarding trial counsel’s strategy, we will not find deficient performance unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

      3.      Application of Strickland

             a.     Trial counsel’s performance was effective

      Appellant alleges that his mother and sister were available and willing to
testify and that trial counsel was defective for not investigating and presenting the
mitigating evidence they had to offer through their testimony. According to their
affidavits, they would have testified that appellant was a sexual abuse victim and
that he had fallen from a balcony and had a head injury. Appellant contends that
their testimony would have resulted in the trial court sentencing him to less than
the maximum punishment. We disagree.

      As an initial matter, the record evidence contradicts some of the claims
asserted in the affidavits of appellant’s mother and sister. Specifically, appellant’s
mother and sister both claim they would have been available and would have
testified on his behalf. As set forth above, appellate counsel attempted to have
subpoenas served on both women for the initially scheduled motion for new trial
hearing; neither woman, however, accepted service, despite multiple attempts to
serve them and notes left at their homes.       Their avoidance of service of the
subpoenas undercuts their affidavit testimony that they would have been available
and willing to testify on appellant’s behalf.

      Appellant acknowledges in his brief that he pled true to two allegations in
the motion to adjudicate guilt and, consequently, the full range of punishment was
open to the trial court. He further admits that his trial counsel conducted “some
investigation” into the existence of mitigating evidence.         He concedes that


                                           7
mitigation evidence was presented on his behalf at the hearing; however, he
characterizes such evidence as “meager.” Where a defendant pleads “true” to
allegations in a revocation proceeding, “failure to conduct a full-fledged
independent investigation of the facts does not necessarily result in counsel
rendering constitutionally ineffective assistance.” Eddie v. State, 100 S.W.3d 437,
442 (Tex. App.—Texarkana 2003, pet. ref’d); see also Toupal v. State, 926 S.W.2d
606, 608 (Tex. App.—Texarkana 1996, no pet.) (“We do not agree that the
magnitude of independent factual investigation for a contested proceeding is
necessary to protect a defendant’s rights when the defendant knowingly and
voluntarily pleads guilty to the alleged offense.”).

      The record demonstrates that his counsel cross-examined Officer Dickey
(probation officer) and Officer Welch (sex offender compliance officer) about their
knowledge, or lack thereof, of appellant’s head injury and any mental incapacity.
Additionally, under cross examination, trial counsel elicited testimony that Officer
Dickey was surprised to learn appellant took five medications for physical and
mental issues, and Officer Welch was unaware that appellant was on medication.
She further questioned whether Officer Dickey knew appellant was a sexual abuse
victim. Trial counsel asked both Officer Dickey and Officer Welch regarding
appellant’s understanding of the terms of his probation. Moreover, through direct
questioning of appellant, trial counsel presented the head trauma and sexual abuse
mitigation evidence. Appellant testified he was taking seizure and depression
medicine. He told the court that the prosecution called him to testify against his
step-father. Appellant testified that he had a traumatic fall that left him in the
hospital for a long time and caused seizures. Finally, trial counsel discussed the
mitigating evidence in closing argument. She argued appellant was a sexual abuse
victim, had suffered head trauma, suffers from some mental incapacities and takes


                                           8
five different medications, and should receive another chance to redeem himself.
Thus, trial counsel presented and argued mitigating evidence during the hearing.

       Lastly, there is no indication that a further investigation by trial counsel
revealing additional, cumulative mitigating evidence espoused by appellant’s
mother and sister would have changed the result of the case. 10 “Evidence that is
merely cumulative will rarely be judged by trial or appellate courts to bring about a
different result.” Meek v. State, No. 14-02-01024-CR, 2003 WL 22232670, at *2
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (citing Cf. Kennerson v. State,
984 S.W.2d 705, 708 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)). “Simply,
an attorney is not ineffective for failing to present cumulative testimony.” See id.
(citing Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.—Tyler 1996, pet. ref’d)).

       Under these circumstances, appellant has not shown that his trial counsel’s
representation fell below an objective standard of reasonableness.                     As such,
appellant has failed to prove Strickland’s first prong.

               b.     No prejudice by counsel’s failure to investigate or present
                      mitigating evidence by calling appellant’s mother and sister
                      as witnesses11
       Even if appellant could demonstrate deficient performance by his trial
counsel, he cannot show that he was prejudiced by her errors–i.e., but for her
deficient performance the result would have been different. Here, as set forth

       10
          Even if the affidavits were not cumulative of other mitigating evidence, we still would
not necessarily conclude that trial counsel’s failure to investigate and present appellant’s mother
and sister during the revocation hearing could support a claim for ineffective assistance of
counsel. Where a valid trial strategy, or a feasible trial strategy in the absence of record
evidence, is the basis for such inaction by defense counsel, an appellant has not demonstrated
ineffective assistance of counsel. See Wallace v. State, 75 S.W.3d 576, 590 (Tex. App.—
Texarkana 2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003).
       11
          “An appellant’s failure to satisfy one prong of the Strickland test negates a court’s
need to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.
2009).

                                                9
above, information regarding appellant’s head injury and appellant being a sexual
abuse victim was elicited during trial counsel’s cross examination of State’s
witnesses. As such, the additional testimony of his mother and sister would have
been cumulative. Given that the trial judge had this mitigating evidence before
her, that appellant pled true to two violations of conditions of his probation, and
that the trial judge found appellant violated in total twelve conditions of his
probation, appellant has not demonstrated a reasonable probability that the result of
the proceedings would have been different had appellant’s trial counsel called his
mother and sister to the stand to testify.

      Viewing the evidence in the light most favorable to the trial court’s ruling,
we find that appellant has not shown either deficient performance by trial counsel
or there is a reasonable probability that such investigation or mitigating evidence
would have produced a different result. As such, appellant has failed to meet his
burden under both prongs of Strickland, and the trial court properly denied
appellant’s motion for new trial that was based on his claim of ineffective
assistance. We overrule appellant’s first issue.

B.    Evidentiary hearing on motion for new trial

      In appellant’s second issue, he contends the trial court abused its discretion
in denying him a hearing on his motion for new trial.

      1.     Standard of review

      We review a trial court’s denial of a hearing on a motion for new trial for an
abuse of discretion.     Smith, 286 S.W.3d at 339.      A defendant’s right to an
evidentiary hearing is not absolute, i.e., a trial court is not required to hold a
hearing when the matters raised in the motion are subject to being determined from
the record. See id., at 338. To be entitled to a hearing on a motion for new trial,


                                             10
the movant must raise one or more matters not determinable from the record and
establish the existence of reasonable grounds showing that he could be entitled to
relief. See id., at 339.

       Thus, as a prerequisite to a hearing when the grounds in the motion are
based on matters not already in the record, the motion must be supported by an
affidavit, either of the defendant or someone else, specifically setting out the
factual basis for the claim. See Smith, 286 S.W.3d at 339. “[A]ffidavits that are
conclusory in nature and unsupported by facts do not provide the requisite notice
of the basis for the relief claimed; thus, no hearing is required.” Id. The motion
and affidavits need not present a prima facie case for a new trial, but the movant
“must at least allege facts that show reasonable grounds to believe that he could
prevail under both prongs of the test for ineffective assistance of counsel under
Strickland.” Id. at 338 (emphasis in original); see also Wallace v. State, 106
S.W.3d 103, 108 (Tex. Crim. App. 2003).

       2.     Whether matters are determinable from the record and whether
              reasonable grounds exist that show appellant could be entitled to
              relief
       When a judge who sentences a defendant also denies the defendant’s hearing
on a motion for new trial, we presume that the judge knew whether additional
testimony produced in affidavits would have influenced his normative sentencing
judgment. Smith, 286 S.W.3d at 344–45. Only the trial judge could have known
what factors he took into consideration when he assessed the punishment, and only
he would know how additional testimony might have affected his assessment. Id.
at 344. The trial judge may conclude, without conducting a hearing, that the
appellant suffered no prejudice from any deficiency of the trial counsel with
respect to the punishment phase. Id. at 345.



                                        11
      Here, the judge who sentenced appellant is the same judge who initially set
the motion for new trial for a hearing, subsequently denied the hearing, and
thereafter denied the motion for new trial by operation of law. Consistent with
Smith, the trial judge could have determined without a hearing that the alleged
deficiencies of trial counsel by failing to provide this evidence at the punishment
phase would not have affected his sentencing decision. See Smith, 286 S.W.3d. at
344–45.

      Moreover, as discussed above, the evidence provided in the motion for a
new trial included affidavits from appellant’s mother and sister that offered
evidence cumulative to that already in the record. “[A] trial court is not required to
conduct a hearing on a motion for new trial to hear complaints about counsel’s
failure to present cumulative evidence.” Meek, 2003 WL 22232670, at *3.

      Because we find that appellant’s motion for new trial raised matters that
were determinable from the record and did not raise grounds that would reasonably
entitle him to relief, we hold that the trial court did not err in denying an
evidentiary hearing on appellant’s motion for new trial. See Smith, 286 S.W.3d at
339. We overrule appellant’s second issue.

                               III. CONCLUSION

      We affirm the trial court’s judgment.



                                       /s/    John Donovan
                                              Justice



Panel consists of Justices Jamison, Brown, and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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