                            NUMBER 13-12-00658-CR

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG

JOSE RUBEN SEGURA,                                                                  Appellant,

                                                v.

THE STATE OF TEXAS,                                                                 Appellee.


                      On appeal from the 355th District Court
                             of Hood County, Texas.


                            MEMORANDUM OPINION1
                 Before Justices Rodriguez, Garza, and Perkes
                   Memorandum Opinion by Justice Perkes
       Appellant Jose Ruben Segura appeals his conviction of aggravated sexual assault

of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (West 2011).



       1
           This case is before this Court on transfer from the Second Court of Appeals in Fort Worth
pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West
2005).
Appellant pleaded guilty to the offense,2 and a jury assessed punishment at ninety-nine

years’ confinement in the Texas Department of Criminal Justice. By one issue, appellant

argues he received ineffective assistance of counsel. We affirm.

                                            I. BACKGROUND3

        L.G.4 accused appellant, her aunt’s husband, of sexually abusing her when she

was ten or eleven years old—about five or six years before her outcry. Investigator

Robert Young of the Hood County District Attorney’s Office interviewed appellant, and

appellant admitted he sexually abused L.G. multiple times. Appellant volunteered that

he also sexually abused L.Z., another niece by marriage, multiple times. According to

L.Z., she had been about five years old at the time.

        During appellant’s punishment trial, L.G. and L.Z. testified that appellant sexually

abused them. L.Z.’s sister, Y.Z., also claimed that appellant touched her on her “private”

on several occasions when she was five or six years old. The jury assessed punishment

at ninety-nine years’ imprisonment.                Appellant moved for a new trial on ineffective

assistance grounds, which the trial court denied.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

        By one issue, appellant contends he received ineffective assistance of counsel.

Appellant alleges four failures of trial counsel: (1) failure to request a continuance so trial

        2
          The State indicted appellant on seven counts: three counts of aggravated sexual assault, three
counts of indecency with a child by contact, and one count of continuous sexual abuse of a young child.
Appellant pleaded guilty to one count of aggravated sexual assault, and the State moved to dismiss all other
counts.
        3
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        4
            We use the child’s initials to protect her identity.
                                                         2
counsel could fully review the interpreter’s transcript of appellant’s interview with

Investigator Young, which was given to defense counsel on the day of trial; (2) failure to

request a continuance so appellant could make an informed plea decision after receiving

the transcript evidence on the day of trial; (3) failure to request a continuance when

appellant’s mitigation witnesses did not appear to testify at appellant’s punishment

hearing; and (4) failure to subpoena mitigation witnesses.

A.     Standard of Review

       To succeed on an ineffective assistance claim, appellant must satisfy the two

prongs of Strickland v. Washington, 466 U.S. 668, 686 (1984). Appellant must show that

(1) counsel’s representation fell below an objective standard of reasonableness, and

(2) the deficient performance prejudiced the defense. Id. at 687; Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011). To satisfy the first prong, appellant must prove

by a preponderance of the evidence that the trial counsel’s performance fell below “an

objective standard of reasonableness under the prevailing professional norms.” Lopez,

343 S.W.3d at 142. To satisfy the second prong, appellant must show that there is a

reasonable probability, or a probability sufficient to undermine confidence in the outcome,

that but for counsel’s deficient performance, the result of the proceeding would have been

different. Id.

       Our review of counsel’s performance is highly deferential, and we make a strong

presumption that counsel’s performance constituted sound trial strategy. Strickland, 466

U.S. at 689; Lopez, 343 S.W.3d at 142. The record must contain evidence of counsel’s

reasoning, or lack thereof, to rebut that presumption. Lopez, 343 S.W.3d at 143. We


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review the totality of representation rather than isolated instances in determining whether

trial counsel was ineffective. See id.; Robertson v. State, 187 S.W.3d 475, 483 (Tex.

Crim. App. 2006).

        When, as here, ineffective assistance was first urged in a motion for new trial, we

review the two Strickland prongs through the prism of the abuse of discretion standard.

See Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—Corpus Christi 2011, pet. denied);

State v. Gill, 967 S.W.2d 540, 542 (Tex. App.—Austin 1998, pet. ref’d). A trial court

abuses its discretion when no reasonable review of the record could support the trial

court’s ruling. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012).

B.      Discussion

        1.       Transcript of Video Interview

        By his first two sub-issues, appellant contends trial counsel should have requested

a continuance when, on the day of trial,5 the State delivered a transcript of appellant’s

interview with Investigator Young. Although appellant spoke Spanish during parts of the

interview, Investigator Young had an unofficial interpreter translate the Spanish into

English. The transcript included appellant’s Spanish statements, but also included an

English translation of those Spanish statements.

        The trial record shows that trial counsel had previously received a DVD recording

of the interview. Trial counsel testified at the new-trial hearing that she went over the

recording with appellant before he pleaded guilty.                     When the State provided the

transcript of the recording to trial counsel on the day of trial, she had a court-appointed

        5
           At the new-trial hearing, appellant’s trial counsel testified that she could not remember whether
she received the transcript on the day of the punishment trial or on the day before the trial. In an affidavit,
however, trial counsel acknowledged that she received it on the day of trial.
                                                      4
interpreter compare the transcript to the DVD recording. The interpreter told trial counsel

that some of the Spanish-to-English translations in the transcript were inaccurate. Trial

counsel informed the prosecutor that she would object if the State attempted to admit the

transcript. The State did not seek to admit it.

        Appellant argues that because trial counsel knew of the translation problems in the

transcript, trial counsel should have moved for a continuance because there was

insufficient time to fully review the forty-nine-page transcript before trial. We do not see

any deficient performance in this regard. Trial counsel did not need additional time for

review because counsel achieved her goal of preventing the State’s use of the transcript

against appellant. Appellant seems to suggest that the transcript highlighted substantive

material in the interview that the defense could have used to rebut the State’s evidence.6

Appellant does not, however, identify anything objectionable in the transcript. Moreover,

any substantive defect in the interview would have been observable on the DVD copy of

the interview, which trial counsel possessed before trial. Finally, a continuance would

have allowed the State to correct the transcript issue and possibly use it against

appellant.




        6
            At the hearing on appellant’s motion for new trial, appellant argued that he was improperly
Mirandized due to the language barrier. See Miranda v. Arizona, 384 U.S. 436, 444–45 (1966)
(establishing “Miranda” rights). Appellant does not explicitly repeat this argument on appeal, although he
may be alluding to it when he complains, “[T]here were no objections regarding the confession, no Motion to
Suppress, and only an uninformed guilty plea.” To the extent appellant subtly re-urges this argument on
appeal, we overrule it as inadequately briefed. See TEX. R. APP. P. 38.1(i). Regardless, as the State
noted at the new-trial hearing, appellant’s interview with Investigator Young at the district attorney’s office
was not a custodial interrogation given that appellant was not under arrest and came and left voluntarily.
Miranda warnings were not required. See generally TEX. CODE CRIM. PROC. ANN. art. 38.22 § 2 (West
2005); Miranda, 384 U.S. at 444. In addition, although the transcript’s English translation of the Spanish
version of the Miranda warnings contained inaccuracies, appellant presents no evidence that the warnings
were incorrectly communicated to him at the time of the interview.
                                                      5
       Further, and to the extent appellant contends his plea was not an informed plea,

the evidence does not support his contention. Trial counsel testified she reviewed the

DVD copy of the interview with appellant before he pleaded guilty.          The trial court

effectively admonished appellant before receiving his guilty plea. Trial counsel testified

that the decision to plead guilty was discussed with appellant “at length” and that the

ultimate decision to plead guilty was appellant’s decision.

       2.     Punishment Mitigation Witnesses

       By his other two sub-issues, appellant argues that trial counsel was ineffective for

not subpoenaing mitigation witnesses or moving to continue the trial when only one

mitigation witness appeared to testify. Appellant, however, has not identified the names

of the witnesses or otherwise indicated what their testimony would have been. See, e.g.,

Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2011) (applying King v. State, 649

S.W.2d 42, 44 (Tex. Crim. App. 1983)) (holding that to prevail on a claim that counsel was

ineffective for failing to call a witness, the appellant must show that a witness was

available and appellant would benefit from the witness’s testimony); Ex parte White, 160

S.W.3d 46, 52 (Tex. Crim. App. 2004) (same).

       At the hearing on his motion for new trial, appellant testified that he asked friends

and family to testify at his punishment trial. According to appellant, they did not appear

because “[t]hey were not given permission at work to come.” Trial counsel asserted,

however, that the defense witnesses, who were also friends and family of the victims,

were reluctant to help. She feared they would not be wholeheartedly on appellant’s side.

Trial counsel affirmed that she made a strategic decision to not push the witnesses to


                                             6
appear because they could have damaged the defense, especially on cross-examination.

In addition, trial counsel believed a continuance would not be helpful because the

problem was the witnesses’ willingness to help appellant.

       3.     Conclusion

       After considering appellant’s four sub-issues, we conclude the record supports the

trial court’s ruling. See McQuarrie, 380 S.W.3d at 150. Appellant failed to rebut the

strong presumption that trial counsel’s decisions constituted sound trial strategy.

Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142. In fact, in evaluating the totality

of representation, see Lopez, 343 S.W.3d at 143, we cannot overlook the fact that trial

counsel conducted effective voir dire, made proper objections, and delivered an effective

opening and closing. Moreover, trial counsel convinced the State to dismiss six counts

of the indictment. One of those counts—continuous sexual abuse of a young child—had

a minimum sentence of twenty-five years, see TEX. PENAL CODE ANN. § 21.02(h) (West

2011), which is twenty years more than the minimum for the offense to which appellant

pleaded guilty. See id. § 22.021.

        Appellant also failed to show how the trial’s outcome would have been different

under any of his sub-issues. See Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142.

Appellant did not identify anything objectionable in the transcript of his interview, and he

did not identify any mitigation witnesses or otherwise disclose what their testimony may

have been.    We conclude the trial court did not abuse its discretion in concluding

appellant failed to show he received ineffective assistance of counsel. See Cueva, 339

S.W.3d at 857; Gill, 967 S.W.2d at 542. We overrule appellant’s sole issue.


                                             7
                                   III. CONCLUSION

       We affirm the trial court’s judgment.

                                                   GREGORY T. PERKES

                                                   Justice

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

Delivered and filed the
19th day of December, 2013.




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