      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00809-CR



                                   Alejandro Munoz, Appellant

                                                   v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
        NO. CR-11-0443, THE HONORABLE WILLIAM HENRY, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found appellant Alejandro Munoz guilty of six counts of aggravated sexual

assault of a child for sexually abusing the nine-year-old son of his uncle’s girlfriend.1 See Tex. Penal

Code § 22.021(a)(1)(B)(i), (iii). The trial court assessed appellant’s punishment at confinement for

75 years in the Texas Department of Criminal Justice for each count, ordering the sentences to be

served concurrently. See id. §§ 3.03(b)(2)(A), 12.32. In a single point of error on appeal, appellant




       1
          The jury heard evidence that the mother of nine-year-old Z.R. dated appellant’s uncle when
Z.R. was in the third grade. During the course of the relationship, Z.R. met appellant, who was
23 years old and living with his uncle. On several occasions, Z.R. spent the weekend at the home
of appellant’s uncle, sleeping with appellant in his room. Z.R. testified that during those sleepovers,
on multiple occasions, appellant “suck[ed] on [Z.R.’s] penis” and “put [appellant’s] penis in [Z.R.’s]
butt” inside the hole. Because the parties are familiar with the facts of the case, its procedural
history, and the evidence adduced at trial, we do not further recite them in this opinion except as
necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App.
P. 47.1, 47.4.
asserts that his trial counsel rendered ineffective assistance. We affirm the trial court’s judgments

of conviction.


                                           DISCUSSION

                 To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by the

defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307

(Tex. Crim. App. 2013). The appellant must first demonstrate that counsel’s performance fell below

an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687–88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable

probability—one sufficient to undermine confidence in the outcome—that the result of the

proceeding would have been different absent counsel’s deficient performance. Strickland, 466 U.S.

at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;

see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

                 Appellate review of counsel’s representation is highly deferential; we must indulge

a strong presumption that counsel’s representation falls within the wide range of reasonable

professional assistance—that is, we must presume that trial counsel’s decisions were reasonably

professional and motivated by sound trial strategy. Strickland, 466 U.S. at 686; Salinas v. State,

163 S.W.3d 734, 740 (Tex. Crim. App. 2005); see Nava, 415 S.W.3d at 307–08 (“courts indulge in

a strong presumption that counsel’s conduct was not deficient”). To rebut that presumption, a claim

of ineffective assistance must be “firmly founded in the record,” and “the record must affirmatively

                                                  2
demonstrate” the meritorious nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex.

Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will

the trial record by itself be sufficient to demonstrate an ineffective-assistance claim. Nava,

415 S.W.3d at 308; see Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). If trial counsel

has not been afforded the opportunity to explain the reasons for his conduct, we will not find him

to be deficient unless the challenged conduct was “so outrageous that no competent attorney would

have engaged in it.” Nava, 415 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593); Goodspeed,

187 S.W.3d at 392.

               Appellant complains of multiple alleged actions or inactions on the part of his trial

counsel, including failing to object to the admission of evidence, failing to have particular items of

evidence with him at trial, “curing” an error by the State, failing to request a limiting instruction,

failing to request a presentence investigation or expert evaluation, and failing to advise appellant

about the appellate process. After reviewing appellant’s complaints, we conclude that the present

record fails to demonstrate that his trial counsel rendered ineffective assistance of counsel.

               Appellant criticizes his attorney for failing to object to the admission of certain

evidence: the written statement of Z.R.’s mother detailing his outcry to her of the sexual abuse

(State’s Exhibit #3), a notebook containing appellant’s writings (State’s Exhibit #4), two notes Z.R.

wrote to his mother when he disclosed appellant’s sexual abuse of him (State’s Exhibits #1 and #2),

the video recording of Z.R.’s forensic interview at the children’s advocacy center (State’s

Exhibit #15), the video recording of the detective’s interview of Z.R.’s mother (State’s Exhibit #16),

and testimony from Melissa Rodriguez, the program director of the local children’s advocacy center,



                                                  3
who appellant contends was not qualified to testify as an expert. These failures to object do not

demonstrate deficient performance by counsel.

                First, several of these failures to object do not constitute deficient performance

because the complained-of evidence was not objectionable. For example, appellant complains about

trial counsel’s failure to object on hearsay grounds to State’s Exhibit #2, one of the “letters that the

alleged victim gave to his mother the day that he made the outcry of sexual abuse.” However, when

a defendant is charged with certain offenses against a child under the age of 14, including aggravated

sexual assault of a child, article 38.072 of the Code of Criminal Procedure (commonly referred to

as the outcry statute) creates a hearsay exception for a child-complainant’s out-of-court “statements”

that “describe the alleged offense,” so long as those statements were made “to the first [adult] person

. . . to whom the child . . . made a statement about the offense” and the procedural requirements of

the statute are met. See Tex. Code Crim. Proc. art. 38.072, § 2(a)(1)–(3); Sanchez v. State,

354 S.W.3d 476, 484 (Tex. Crim. App. 2011). “A ‘statement’ is an oral or written verbal

expression.” Tex. R. Evid. 801(a). Here, State’s Exhibit #2 was Z.R.’s written verbal expression

describing the alleged offenses that Z.R. made to his mother, the first adult to whom Z.R. disclosed

the abuse, during his outcry of the abuse. Thus, this handwritten note was admissible under

the outcry statute’s hearsay exception, and counsel was not deficient in failing to assert a

hearsay objection.

                In addition, although appellant summarily asserts that Rodriguez’s testimony was

objectionable because she was “not properly qualified to testify as an expert witness,” he fails to

explain how her qualifications fall short. We note that, contrary to appellant’s assertions, the record



                                                   4
reflects that Rodriguez was qualified as an expert.2 See Tex. R. Evid. 702 (“[A] witness qualified

as an expert by knowledge, skill, experience, training, or education may testify thereto in the form

of an opinion or otherwise.”); Jessop v. State, 368 S.W.3d 653, 689–90 (Tex. App.—Austin 2012,

no pet.) (“To be qualified to give expert opinion testimony, the witness ‘must possess some

additional knowledge or expertise beyond that possessed by the average person, but the gap need not

necessarily be monumental.’” (quoting Davis v. State, 313 S.W.3d 317, 350 (Tex. Crim. App.

2010))). Thus, counsel was not deficient in failing to object to Rodriguez’s testimony based on her

purported lack of qualifications.3

               Second, the complained-of failures to object to particular evidence might well have

been trial strategy on the part of counsel. The record demonstrates that part of the defense strategy

was to emphasize inconsistencies between the various statements Z.R. and his mother made,

particularly discrepancies in the dates of the alleged abuse and Z.R.’s outcry, as well as Z.R.’s

inability to recall details relating to the alleged abuse. Thus, counsel could very well have permitted



       2
          The record demonstrates that Rodriguez was qualified as an expert based on her education,
training, and experience. She obtained a bachelor’s degree in sociology, a master’s degree in
counseling, and completed hundreds of continuing education hours specifically relating to child
abuse. She is a forensic interviewer with over 15 years of experience and has conducted more than
1,000 forensic interviews of children. In her capacity as the program director of the children’s
advocacy center, she works with various agencies—including law enforcement and child protective
services—involved in the multidisciplinary team that conducts child-abuse investigations and
provides services to child-abuse victims. Further, Rodriguez previously testified as a child-abuse
expert on several occasions.
       3
          We also note that trial counsel utilized Rodriguez’s expertise on appellant’s behalf during
his cross-examination to demonstrate that certain conduct by appellant was equally consistent with
not sexually abusing a child. Taking advantage of her expertise in this manner would be a
reasonable trial strategy and might be an explanation for not objecting to her purported lack of
qualifications.

                                                  5
the admission of otherwise inadmissible hearsay statements (one of Z.R.’s hand-written notes,4 the

written statement of Z.R.’s mother, the video recording of Z.R.’s forensic interview, and the video

recording of the interview of Z.R.’s mother) because he wanted them in evidence in order to

demonstrate those inconsistencies and deficiencies. For example, in attempting to impeach Z.R.’s

mother with inconsistencies in her various statements, counsel cross-examined her using her written

statement. As for counsel’s failure to object to appellant’s notebook (State’s Exhibit #4), or the

writings contained therein, we note that the portions about which appellant now complains—song

lyrics “suggesting that the Appellant was involved in gang activity”—are at best a mere implication

that appellant was or wanted to be part of a gang. As other portions of the notebook were clearly

admissible—in particular, the lyrics of a song entitled “[Z.] Song,” about a nine-year-old boy

showing “a grown man” appellant’s age “the meaning of life,” see Tex. Code Crim. Proc. art. 38.37,

§ 1(b) (evidence bearing on relevant matters, including state of mind of defendant, admissible in

prosecution of certain offenses committed against children)—counsel could very well have

determined that objecting, and thereby drawing attention to evidence that was merely suggestive of

possible gang affiliation, might result in overly emphasizing the writings contained in the notebook.




       4
          The record contains two handwritten notes that Z.R. gave to his mother during his outcry.
The first expresses his fear about moving to a new house near appellant’s home and having contact
with appellant; the second details the acts of sexual abuse appellant perpetrated against him.

                                                  6
Counsel might also have determined that, given the state of the evidence,5 the mere implication of

gang affiliation was not detrimental to the defense.

                Appellant also asserts that his counsel’s performance was deficient because he “did

not have copies of key evidence with him at trial, even though all of the evidence was provided to

him through the discovery process.”          However, claims of deficient performance must be

affirmatively demonstrated in the record. See Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App.

2013) (“[C]ounsel’s alleged deficiency must be affirmatively demonstrated in the trial record.”).

This assertion is not. As proof of this deficient performance, appellant relies on the fact that his trial

counsel requested a copy of State’s Exhibit #3, the written statement of Z.R.’s mother, from the trial

court during trial. However, the record also reflects that although the State provided the requisite

notice and summary of the outcry statement to counsel, see Tex. Code Crim. Proc. art. 38.072,

§ 2(b), the document itself had not been previously tendered to counsel. Thus, counsel could not

have been deficient for “failing” to have a document with him at trial that was never in his

possession. Appellant attempts to further demonstrate this failure to have key evidence by asserting

that trial counsel did not have a copy of the search warrant for appellant’s uncle’s house that counsel

at one point contemplated offering into evidence. However, the record does not actually demonstrate

that counsel did not have a copy of the search warrant with him at trial. Rather, the record simply

demonstrates that counsel wanted to offer into evidence the copy of the search warrant that the


        5
           We note that the record otherwise demonstrates that appellant did not have any
characteristics typically associated with gang membership, nor was any affiliation with gang
members shown. Moreover, the complained-of song lyrics were in no way emphasized (or even
mentioned) during trial. Only the lyrics on the two pages of “[Z.] Song” were discussed during
questioning and referenced during argument.

                                                    7
testifying officer had with him in court. Counsel may simply have preferred to offer the officer’s

copy of the document since he was the officer who obtained the search warrant.

               Appellant next complains about his counsel’s “curing” the State’s error (failing to

have Z.R. identify appellant in open court) when counsel had Z.R. identify appellant during

cross-examination. This complaint presupposes there was error to cure. The prosecutor could very

well have been waiting until redirect to have Z.R. identify appellant.6 Anticipating such, trial

counsel could have been acting preemptively to avoid having the last testimony the jury heard from

Z.R., the last witness for the State, be his in-court identification of appellant as the individual who

perpetrated multiple acts of sexual abuse against him.

               Appellant also contends that his trial counsel was deficient in failing to request a

limiting instruction regarding “the abundance of testimony admitted regarding the alleged child

pornography that was in Appellant’s possession.” While it is true that a limiting instruction

concerning the limited admissibility of extraneous-conduct evidence must be requested at the time

of the admission of the evidence, see Delgado v. State, 235 S.W.3d 244, 253 (Tex. Crim. App. 2007)

(“[A] defendant is entitled to limiting instructions on the use of extraneous offenses during the guilt

phase only if he timely requests those instructions when the evidence is first introduced.”); see also

Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008) (“A failure to request a limiting

instruction at the time evidence is presented renders the evidence admissible for all purposes and




       6
          As the State notes in its brief, this is not an uncommon trial tactic of prosecutors in these
types of cases because it “dramatizes the moment and leaves a lasting impression on the jury.”

                                                  8
relieves the trial judge of any obligation to include a limiting instruction in the jury charge.”),

counsel could very well have not requested such an instruction for several reasons.

                First, contrary to appellant’s reference to the “abundance of testimony” about child

pornography, the actual evidence at trial did not include any evidence that appellant had child

pornography in his possession. See Tex. Penal Code §§ 43.25(a)(1) (setting forth offense of

possession of child pornography as possession of “visual material that visually depicts a child

younger than 18 years of age at the time the image of the child was made who is engaging in sexual

conduct”), .25(a)(2) (defining sexual conduct as “sexual contact, actual or simulated sexual

intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or

lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the

areola”). According to Z.R.’s testimony, appellant showed Z.R. “not very many” pictures of little

boys on his laptop. The pictures made Z.R. “feel uncomfortable” because the boys were in their

underwear “posing,” although Z.R. could not explain what he meant by posing. Z.R. testified that

he could not see any private parts in the pictures. Similarly, in the video recording of Z.R.’s forensic

interview at the children’s advocacy center, Z.R. says that appellant showed him pictures on the

computer of kids, mostly boys, “butt naked” in “poses.” Beyond this general description, he does

not provide any details of the photographs. This evidence not constitute evidence of child

pornography. At best, this evidence demonstrates that appellant showed Z.R. some arguably

sexually suggestive photographs. Trial counsel could very well have decided not to draw attention

to this evidence, and perhaps thereby highlight the suspicious nature of it, by requesting a limiting

instruction. Moreover, counsel maintained that there was no evidence demonstrating that appellant



                                                   9
possessed any child pornography. Thus, counsel could have felt that requesting a limiting instruction

on the complained-of evidence would appear to concede the existence of child pornography and

appellant’s possession of such, or at least undermine or weaken the defense position that there was

no evidence of child pornography.

                Further, counsel may not have objected to this evidence because he deemed such

evidence to be unobjectionable in that it was admissible as evidence of extraneous misconduct under

Rule 404(b). See Tex. R. Evid. 404(b) (excluding evidence of extraneous bad acts used to prove bad

character but allowing admission of such evidence for some other purpose, “such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”).

There was testimony at trial about the behaviors that sex offenders engage in, including

showing a victim child pornography, that are part of the “grooming” process. See Morris v. State,

361 S.W.3d 649, 667–69 (Tex. Crim. App. 2011) (phenomenon of grooming of children for sexual

molestation is legitimate subject of expert testimony). Thus, evidence of appellant showing Z.R.

sexually suggestive photographs could constitute evidence of the grooming process appellant

engaged in with Z.R. As such, the evidence was admissible under Rule 404(b) to show appellant’s

preparation. See Sandoval v. State, 409 S.W.3d 259, 300 (Tex. App.—Austin 2013, no pet.) (“The

‘preparation’ or ‘plan’ exception allows admission of evidence to show steps taken by the defendant

in preparation for the charged offense.” (citing Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim.

App. 2005))).

                In this case, appellant elected to have the trial court assess his punishment after

submitting the issue of guilt to a jury. Appellant next maintains that his trial counsel was deficient



                                                 10
in not requesting that a presentence investigation (PSI) be conducted or that an expert evaluate

appellant prior to the punishment hearing. First, as appellant concedes in his brief, appellant was

not entitled to have a PSI conducted in the instant case because the jury convicted him of multiple

counts of aggravated sexual assault of a child, and thus he was not eligible for community

supervision. See Tex. Code Crim. Proc. art. 42.12, §§ 3g(a)(1)(E) (limitations on judge-ordered

community supervision prohibit judge from granting community supervision if defendant adjudged

guilty of aggravated sexual assault), 9(g)(3) (mandated PSI not required if only available punishment

is imprisonment). Second, although appellant asserts that a PSI “would have been extremely

beneficial” because the trial court would have “a thorough investigation . . . regarding [appellant’s]

background, education, lack of criminal history, and any other mitigating evidence,” this is pure

speculation. It is equally possible that such information, or other information gathered during the

PSI, would have been detrimental to appellant. Concerning the expert evaluation, appellant does not

identify what type of expert should have evaluated appellant (presumably he means an expert in sex-

offender treatment) but simply asserts that it would have been “strategic” to have appellant evaluated

regarding his likelihood to reoffend. Again, this assertion assumes that such an evaluation would

demonstrate that appellant was a low risk for recidivism as opposed to a high risk. Moreover, we

also note that trial counsel in this case was retained. Therefore, a request for a court-appointed

expert to evaluate appellant would not appear in the record. Retained trial counsel could very well

have consulted an expert or even had appellant evaluated. This is yet another claim of deficient

performance not affirmatively demonstrated in the record. See Villa, 417 S.W.3d at 463.




                                                 11
               Finally, appellant asserts that trial counsel was deficient because he “did not

effectively advise [appellant] on his rights regarding the appellate process.” As proof of this

deficiency, appellant notes that appellant filed a pro se notice of appeal and that the record does not

reflect that retained counsel withdrew as counsel of record. However, it is not uncommon for trial

counsel to have the defendant sign the notice of appeal when counsel knows he will not be

representing the defendant on appeal to avoid becoming counsel of record on appeal. See Tex. R.

App. P. 6.1(a) (“Unless another attorney is designated, lead counsel for an appellant is the attorney

whose signature first appears on the notice of appeal.”). Moreover, the pro se notice of appeal filed

in this case was a typed document, not a hand-written letter, that contains language typically found

in notices of appeal drafted by attorneys, including a certificate of service. This suggests that trial

counsel prepared the notice of appeal for appellant to sign, which would indicate that counsel did

discuss the appeal with appellant. Further, the fact that trial counsel did not formally withdraw from

the case is not demonstrative of anything, as counsel was retained. While perhaps preferable for

counsel to do so, the obligation to withdraw as counsel of record stems from the statute governing

the appointment of counsel for indigent defendants. See Tex. Code Crim. Proc. art. 26.04(j).

Regardless, what counsel advised appellant about his right to appeal and the appeal process—or that

counsel failed to advise him of such—is not reflected in the record before us. Thus, once again,

appellant’s claim of deficient performance is not affirmatively demonstrated in the record. See Villa,

417 S.W.3d at 463.

               As additional proof of deficient performance, appellant cites several comments the

prosecutor made during the course of trial about the conduct or strategy of appellant’s trial counsel.



                                                  12
However, contrary to appellant’s contention, such comments do not “clearly exemplif[y]

[appellant’s] trial counsel[’s] complete lack of strategic or tactical decision-making.” Rather, such

comments demonstrate, at most, that the prosecutor disagreed with her opponent’s trial tactics. The

mere fact that another attorney might have pursued a different course of action at trial does not

suffice to prove a claim of ineffective assistance of counsel. Tretter v. State, No. 03-12-00034-CR,

2014 WL 3893016, at *6 (Tex. App.—Austin Aug. 7, 2014, pet. ref’d, untimely filed) (mem. op.,

not designated for publication); Harris v. State, 125 S.W.3d 45, 54 (Tex. App.—Austin 2003, pet.

ref’d, untimely filed); see Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012), cert.

denied, --- U.S. ----, 133 S.Ct. 834 (2013).

               In this case, appellant did not file a motion for new trial. Thus, the record is silent

as to whether there was a strategic reason for counsel’s alleged conduct about which appellant

complains. Appellant’s assertions such as “there [was] no absolutely no plausible trial strategy” and

“there [was] no reasonable trial strategy” for the alleged deficiencies are mere speculation. Such

speculation does not constitute a demonstration, founded in the record, that no reasonable trial

strategy existed. See Lopez, 343 S.W.3d at 142 (“[C]ounsel’s deficiency must be affirmatively

demonstrated in the trial record; the court must not engage in retrospective speculation.”); see also

Villa, 417 S.W.3d at 463.

               Appellant’s trial counsel was not afforded an opportunity to explain his reasons for

the complained-of conduct. Absent record evidence regarding counsel’s strategy or reasoning, we

will presume he exercised reasonable professional judgment. See Hill v. State, 303 S.W.3d 863, 879

(Tex. App.—Fort Worth 2009, pet. ref’d); Poole v. State, 974 S.W.2d 892, 902 (Tex. App.—Austin



                                                 13
1998, pet. ref’d); see also Lopez, 343 S.W.3d at 143. Appellant has failed to rebut the strong

presumption of reasonable assistance because without explanation for trial counsel’s decisions, the

complained-of conduct does not compel a conclusion that trial counsel’s performance was deficient.

We cannot say that “no reasonable trial strategy could justify” counsel’s decision to engage in the

complained-of conduct. See Lopez, 343 S.W.3d at 143. Nor can we conclude that counsel’s conduct

was “so outrageous that no competent attorney would have engaged in it.” See Menefield,

363 S.W.3d at 592. Accordingly, we hold that appellant has failed to demonstrate deficient

performance on the part of his trial counsel. See Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim.

App. 2013) (“[U]nless there is a record sufficient to demonstrate that counsel’s conduct was not the

product of an informed strategic or tactical decision, a reviewing court should presume that trial

counsel’s performance was constitutionally adequate ‘unless the challenged conduct was so

outrageous that no competent attorney would have engaged in it.’”).

               Because appellant failed to meet his burden on the first prong of Strickland, we need

not consider the requirements of the second prong—prejudice. See Lopez, 343 S.W.3d at 144; 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.”).

Nevertheless, we would also conclude that appellant failed to demonstrate that he suffered prejudice.

               Even if an appellant shows that particular errors of counsel were unreasonable, he

must further show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at

693–95; Cochran v. State, 78 S.W.3d 20, 24 (Tex. App.—Tyler 2002, no pet.). It is not sufficient

that an appellant show, with the benefit of hindsight, that his counsel’s actions or omissions during



                                                 14
trial were of questionable competence. Lopez, 343 S.W.3d at 142–43. Further, merely showing that

the errors had some conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at

693; Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). The appellant must prove

that counsel’s errors, judged by the totality of the representation, not by isolated instances of error

or by a portion of the trial, denied him a fair trial. Strickland, 466 U.S. at 695.

               In his argument regarding prejudice, appellant summarily asserts that “[h]ad

[appellant’s] trial counsel made proper objections, there is a reasonable probability that the jury

would not have found [him] guilty” because, according to appellant, this case relied solely on the

credibility of Z.R. and his mother since there was no evidence corroborating the allegations, and the

admission of the evidence to which counsel did not object improperly bolstered their credibility.

Appellant further asserts that “[t]here is also a reasonable probability that if [appellant’s] trial

counsel had presented any beneficial evidence during punishment for the trial court to consider that

[appellant’s] sentence could have been less severe.” These assertions are speculative claims without

support in the record.

               Appellant maintains that “the present case presents in compelling terms ‘a breakdown

in the adversarial process that our system counts on to produce just results.’” We disagree. During

voir dire, trial counsel questioned the jury panel regarding their ability to serve on the jury: he

discussed important legal concepts such as appellant’s Fifth Amendment right not to testify; he

explored possible bias or preconceptions relating to homosexuality and sexual orientation; he

discussed issues factually relevant to the case such as child development and differing perceptions

of children as well as misconceptions concerning child molestation; he asked the jurors their views



                                                  15
regarding homosexuality and child molestation; he discussed witness credibility and how to assess

it; and he successfully challenged several panel members for cause. Further, the record shows that

counsel presented and developed a defense strategy of asserting a false accusation as evidenced by

inconsistent statements, Z.R.’s inability to recall details, and the lack of corroborating evidence. In

support of this defense, trial counsel emphasized, through cross-examination of the State’s witnesses

and in jury argument, the discrepancies in the various statements given by Z.R. and his mother and

the deficiencies in the police investigation. During his closing argument, trial counsel discussed

Z.R.’s inability to recall specific details associated with the abuse and Z.R.’s behaviors that were

inconsistent with having been sexually abused. Counsel also provided alternative explanations for

evidence possibly corroborating Z.R.’s allegation of abuse (such as appellant’s writings) and

reminded the jury that even though there was mention of child pornography there was no evidence

of appellant’s possession of such.

                An accused is not entitled to entirely errorless representation, and we look to the

totality of the representation in gauging the adequacy of counsel’s performance. Frangias,

392 S.W.3d at 653. The record in this case reveals that counsel’s trial strategy was to focus on the

inconsistencies of the statements given by Z.R. and his mother, the lack of corroborating evidence,

the inadequate police investigation, and a possible motive for Z.R. and his mother to fabricate the

allegations. The fact that this strategy ultimately proved unsuccessful does not render counsel’s

assistance ineffective. On the record before us, appellant has failed to demonstrate deficient

performance on the part of his trial counsel or that he suffered prejudice because of the alleged errors




                                                  16
of counsel. Thus, he has not shown himself entitled to reversal based on ineffective assistance of

counsel. We overrule appellant’s sole point of error.


                                           CONCLUSION

                 Having overruled appellant’s sole point of error, we affirm the trial court’s judgments

of conviction.




                                                __________________________________________
                                                J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed

Filed: November 14, 2014

Do Not Publish




                                                   17
