

                                                                                         

                                                                                                                             
 
 
 
 
NUMBER 13-09-586-CR
 
COURT OF APPEALS
 
THIRTEENTH DISTRICT
OF TEXAS
 
CORPUS CHRISTI - EDINBURG  
                                                                                                                     

 
ROEL IBARRA,                                                                    
     Appellant,
 
v.
 
THE STATE OF TEXAS,                         
                             Appellee.
                                                                                                                     
  
 
On appeal from the 105th
District Court 
of Nueces County,
Texas.
                                                                                                                     

 
MEMORANDUM OPINION
 
Before Justices
Garza, Benavides, and Vela  
Memorandum Opinion by
Justice Vela
                                                                                                                                    
A jury found appellant, Roel Ibarra,
guilty of aggravated sexual assault of a child, see Tex. Penal Code Ann. § 22.021 (Vernon
Supp. 2010), and injury to a child.  See id. § 22.04.  The trial court
assessed punishment at concurrent sentences of sixty years’ and fifty years’
imprisonment, respectively.  By five issues, Ibarra complains the trial court
erred in admitting evidence and that he received ineffective assistance of
counsel.  We affirm.
I. Factual Background
            After
Belinda Garza began dating Roel Ibarra, she and her two-year-old
daughter, I.G., started living with him in his Corpus Christi apartment.  Garza
testified that I.G. was born “with a lot of hair” and that on one occasion,
Ibarra asked her to shave I.G.’s legs.  She refused to do so.
In the evening of January 15, 2009,
Garza changed I.G.’s diaper and bathed her.  She saw no bruises on I.G.’s body
and put her to bed at 8:00 p.m.  The next morning, she went to work, leaving
I.G. in Ibarra’s care.  Later that day, Ibarra took I.G. to Thomas De Los
Santos’s apartment.  When Garza’s brother, Orlando Ramirez, arrived, Ramirez and
De Los Santos took Ibarra to two pawn shops.  During that time, I.G. stayed at
the apartment with De Los Santos’s girlfriend, Melissa Mazzella.  Ramirez
testified that while they were driving to the pawn shops, Ibarra told him “that
he hadn’t had sex in a while and that he wasn’t used to that kind of thing.”
Garza testified that when she arrived at
De Los Santos’s apartment that evening, Ibarra told her “to get some diaper
rash cream because [I.G.] had a diaper rash.”  When Garza checked I.G. for the
rash, she saw “redness” on I.G.’s “stomach area.”  She and Ibarra took I.G. to
Driscoll Children’s Hospital.
While Ibarra was at the hospital, a
social worker, Brenda Loera, interviewed Ibarra about the environmental risks
surrounding I.G.  When she asked him about “drug use,” he told her “that his
friends did smoke weed outside of the apartment and then they would come inside
[the apartment] after they did that, . . . .”
The next day, Dr. Nancy Harper, a
pediatrician with subspecialty training in child abuse, examined I.G. and
discovered numerous injuries to her body.  She testified that I.G. had:  (1) a
small, circular bruise under the bony prominence of her chin; (2) small strangulation
bruises on her neck; (3) bruising surrounding the back of the ear, meaning that
her ear had been grabbed or pulled forcefully, or that there had been a blow to
her head; (4) a bruise on the left lower part of her abdomen, indicating
“direct trauma and impact or a blow to that belly;” (5) a bruise on the right
lower side of her abdomen or stomach with another bruise closer to the belly
button, indicating “a direct blow” to the stomach or abdomen; (6) an injury to
her liver; (7) a small, round bruise to her buttocks, which can indicate a
“direct small impact” from fingertips; (8) “bruising on both sides of the
labia” on her genital area; (9) “little bruises to the top of her hymen, to the
bottom of her hymen, and also to the top of the wall of the vagina;” and (10) a
large bruise on the left side of her scalp, caused by a blow to the head or
forcible hair pulling.  Dr. Harper stated that the bruise to I.G.’s abdomen was
an “inflicted injury” that is “consistent with being “punched” or “kicked in
her belly area.”  She also testified that the injuries to I.G.’s genital area
resulted from either “a direct impact that also sort of penetrated between
those labia and also hit the vagina or it could have been penetrating trauma
from something of a more sexual nature.”
            Ibarra testified he took care of I.G. the
weekend before January 16, 2009, which was the day Garza discovered I.G.’s
bruises.  On Monday, January 12, 2009, Garza showed him a “mark behind [I.G.’s]
ear.”  This was the first time he had seen the mark, and he did not know how
I.G. received it.  The next day, he did not see I.G.  On Wednesday, he stayed
at De Los Santos’s apartment.  That evening, Garza and I.G. came to the
apartment.  While Ibarra, Garza, and I.G. spent the night there, Ibarra “heard
a little thump and a small cry.”  The next morning, Ibarra left for work and at
8:00 p.m. he returned to his own apartment.  About an hour later, Garza and
I.G. arrived at his apartment.  At that time, Ibarra could not see if I.G. had
any bruises.  The following morning, Garza went to work.  After she left,
Ibarra fed I.G., got her dressed, and then took her to De Los Santos’s
apartment, arriving about 2:00 p.m.  At some point, Ibarra, Ramirez, and De Los
Santos went to some pawn shops.  Ibarra returned to De Los Santos’s apartment
between 4:00 and 5:00 p.m.  Ibarra testified that when Garza arrived at the
apartment, she “grabbed [I.G.] and went straight behind the couch and she . . .
let us know that [I.G.] had these marks on her.”  Ibarra testified he did not
change I.G.’s diaper that day and did not tell Garza that I.G. had diaper
rash.  He stated that nothing happened between him and I.G. that morning and
that he did not know how I.G. became injured.
II. Discussion
A. Admission of Evidence
            We address issue three first wherein Ibarra
argues the trial court erred by admitting, over defense counsel’s objections,
evidence of his extraneous bad acts and statements.  See Tex. R. Evid. 404(b) (providing that
evidence of other crimes, wrongs, or acts is “not admissible to prove the
character of a person in order to show action in conformity therewith.”). 
Specifically, he contends the trial court should have excluded:  (1) Ramirez’s
testimony that Ibarra “hadn’t had sex in a while and that he wasn’t used to
that kind of thing”; (2) Loera’s testimony that Ibarra’s friends smoked weed
outside his apartment and afterwards would come into the apartment; and (3)
Garza’s testimony that he told her she needed to shave I.G.’s legs.
1. Preservation of Error
            
Even
though defense counsel objected to the admission of the complained-of
statements and received adverse rulings, any error in the admission of the
first two statements was harmless.  We note that during Loera’s
cross-examination, defense counsel raised the issue of Ibarra’s friends smoking
weed.  Specifically, defense counsel asked Loera, “[W]hen these friends are
coming over, whoever is smoking marijuana, we don’t know who those individuals
are, do we?”  She answered, “No.”  Next, defense counsel asked her, “We don’t
know the mother is present for that as well?”  To this, Loera said, “No.” 
During Ramirez’s cross-examination, defense counsel asked him, “During this
trip [to the pawn shops] you stated he [Ibarra] made some comment about him and
Belinda [Garza] not having sex, is that right?”  He answered, “Yes.”
This Court has stated that “overruling
an objection to evidence will not result in reversal when other such evidence
was received without objection, either before or after the complained-of
ruling.  This rule applies whether the other evidence was introduced by the
defendant or the State.’”  Reyes v. State, 267 S.W.3d 268, 274 (Tex.
App.–Corpus Christi 2008, pet. ref’d) (quoting Leday v. State, 983
S.W.2d 713, 718 (Tex. Crim. App. 1998)).  Here, during cross-examination of
Loera and Ramirez, defense counsel raised the issues of Ibarra’s friends
smoking marijuana and Ibarra not having sex.  Thus, any error in admitting the
complained-of testimony of both Loera and Ramirez was rendered harmless because
defense counsel brought up the same issues on cross-examination.  See Willis
v. State, 785 S.W.2d 378, 383 (Tex. Crim. App. 1989) (noting that
admission of inadmissible evidence is rendered harmless if the same or similar
evidence is introduced without objection elsewhere during trial).
Furthermore, with respect to Loera’s
testimony about Ibarra’s friends smoking weed, article 38.37 of the code of
criminal procedure provides that in assaultive and certain other offenses
against children, “evidence of other crimes, wrongs, or acts committed by the
defendant against the child who is the victim of the alleged offense shall be
admitted for its bearing on relevant matters, including:  (1) the state of mind
of the defendant and the child; and (2) the previous and subsequent
relationship between the defendant and the child.”  Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon Supp.
2010).  In this case, Loera’s testimony regarding Ibarra’s conduct of allowing
his friends, who had just smoked marijuana, to come into his apartment in
I.G.’s presence, shows Ibarra’s state of mind concerning his duty to protect
I.G.’s welfare and his previous relationship with I.G.   
            With respect to the admission of Garza’s
testimony that Ibarra asked her to shave I.G.’s legs, caselaw provides that to
constitute an extraneous offense, the evidence must show a crime or bad act and
must tie the accused to it.  Greene v. State, 287 S.W.3d 277, 285 (Tex.
App.−Eastland 2009, pet. ref’d) (citing Lockhart v. State, 847
S.W.2d 568, 573 (Tex. Crim. App. 1992)).  The evidence must include some kind
of extraneous conduct on the defendant’s behalf that forms a part of the
alleged extraneous offense.  Id. (citing Moreno v. State, 858
S.W.2d 453, 463 (Tex. Crim. App. 1993)).  “Statements concerning a defendant’s
thoughts of wrongdoing are merely inchoate thoughts.”  Id.  To implicate
Rule 404(b) of the Texas Rules of Evidence, “there must be actual conduct that
alone or in combination with these thoughts could constitute a bad act, wrong,
or crime.”  Id. (citing Massey v. State, 933 S.W.2d 141, 154
(Tex. Crim. App. 1996)).
            Ibarra’s statement to Garza that she should
shave I.G.’s legs pertained to his thoughts and did not implicate any conduct
on his part that would invoke Rule 404(b).  Moreover, his statement tends to
show his attraction to I.G. or his thoughts about her in an adult or sexual
manner and are highly relevant to his state of mind.  See id. (stating
that the evidence concerning the defendant’s feelings towards the child victim
and what he wanted to do to her did not implicate Rule 404(b) and “was relevant
to, and highly probative of,” his state of mind and the relationship between
himself and the child during his trial for sexual assault of a child and
indecency with a child).  Issue three is overruled.
            In issue four, Ibarra argues the trial court
erred in allowing Detective David Perez, the lead investigator in this case, to
testify about Belinda Garza’s truthfulness.  During the State’s
re-direct-examination of Detective Perez, the prosecutor requested permission
from the trial court ”to go into whether or not he [Detective Perez] thought
the mother [Belinda Garza] was telling the truth.”  The trial court overruled
defense counsel’s objection, and the prosecutor asked Detective Perez a series
of three questions.  First, the prosecutor asked, “Without going into
specifics, did you believe that the mother was telling the truth?”  To this, he
said, “Yes.”  Next, without objection, the prosecutor asked him, “Did you at
any time feel that she was not?”  To this, he said, “No.”  Third, without
objection, the prosecutor asked him, “Did anyone come forward at any time and
tell you they felt she was not being truthful?”, he said, “No.”
            In Valle v. State, the court of criminal appeals
stated that “[t]o preserve error in admitting evidence, a party must make a proper objection and
get a ruling on that objection.  In addition, a party
must object each time the inadmissible evidence is offered or obtain a running
objection.”  109 S.W.3d 500, 509 (Tex. Crim. App. 2003).  In this case, defense
counsel did not obtain a running objection and did not object to the
prosecutor’s second and third questions, both of which elicited testimony about
Garza’s truthfulness.  Thus, appellant failed to preserve this issue for
appellate review.  See id.  Furthermore, even if the trial court erred
in overruling the objection, any error in admitting Detective Perez’s testimony
with respect to the first question was cured because the admission of
inadmissible evidence is rendered harmless if the same or similar evidence is
introduced without objection elsewhere during trial.  See Willis,
785 S.W.2d at 383.  In
this case, the second and third questions to Detective Perez elicited the same
or similar evidence that was elicited by the first question.  Therefore, the
testimony elicited by the second and third questions rendered harmless any
error made by the trial court in overruling defense counsel’s objection.  Issue
four is overruled.
            In issue five, Ibarra argues
that the trial court erred in allowing the State to elicit testimony from
Detective Perez about rare instances when the perpetrator masturbated and left
semen after fondling a child.  During the State’s re-direct-examination of
Detective Perez, the prosecutor asked him, “[T]here was no semen found [in
Ibarra’s apartment], is that correct?”  He replied, “We didn’t search for any,
no.”  Later, the prosecutor asked Detective Perez, “Are there times based on
your experience in cases you have handled where a defendant may masturbate
after placing─”.  At that point, defense counsel objected based upon
“relevance,” and the trial court overruled the objection.  Next, the prosecutor
asked Detective Perez, “Have you found that sometimes a defendant will sexually
assault a child and then masturbate to it after the occurrence?”  To this, he
said, “I haven’t personally had a case like that, but that information has been
taught to me.”  Then, the prosecutor asked him, “Okay, and how many cases do
you have where semen is found but where there is a molestation?”  To this, he
said, “It happens, but it’s kind of rare.”
Rule 33.1 of the Texas Rules
of Appellate Procedure governs preservation of error, and states, in part:
(a) In General.-As a
prerequisite to presenting a complaint for appellate review, the record must
show that:
 
 (1) the complaint
was made to the trial court by a timely request, objection, or motion that:
 
(A) stated the
grounds for the ruling that the complaining party sought from the trial court
with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context;
 
Tex. R. App. P.
33.1.
             “The complaining party bears the
responsibility of clearly conveying to the trial judge the particular
complaint, including the precise and proper application of the law as well as
the underlying rationale.”  Reyna v. State, 168 S.W.3d 173, 177 (Tex.
Crim. App. 2005).  In order to avoid forfeiting a complaint on appeal, “the
party must ‘let the trial judge know what he wants, why he thinks he is
entitled to it, and to do so clearly enough for the judge to understand him at
a time when the judge is in the proper position to do something about it.’”  Pena
v State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston v.
State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).  This method gives the
trial court and the opposing party a chance to correct the error.  Id. 
“Whether a party’s particular complaint is preserved depends on whether the
complaint on appeal comports with the complaint made at trial.  In making this
determination, we consider the context in which the complaint was made and the
parties’ shared understanding at that time.”  Id. (footnote omitted).
            Here, defense counsel did not request a
running objection and did not object to Detective Perez’s testimony about rare
instances where the perpetrator masturbated and left semen after fondling a
child.  Thus, the issue is not preserved for appellate review.  See Tex. R. App. P. 33.1; Pena, 285
S.W.3d at 464.  Issue five is overruled.
B. Ineffective Assistance of Counsel
1. Motion for New Trial
            Ibarra’s appellate counsel
filed a motion for new trial, alleging ineffective assistance of counsel, which
was denied by the trial court.  The motion included several affidavits in
support of the ineffectiveness claim.  The affidavits are summarized as
follows:
a. Affidavit of Roel Ibarra
            Prior to trial, Ibarra gave
his trial counsel, Robert Flynn, the names of several witnesses to contact.  He
also wanted Mr. Flynn to call his family members, friends, six-year-old
daughter, her mother, Stephanie Rios, and Stephanie’s mother, Connie Rios, to
testify.  On the day of the verdict, Mr. Flynn asked Ibarra for the names of
people he wanted to testify at the punishment phase.  Ibarra gave Mr. Flynn the
names of the people he had already given him, plus Lorenzo Rios.  Mr. Flynn did
not call these witnesses to testify at the punishment phase.
b. Affidavit of Veronica Alvarado
Ibarra’s mother, Veronica Alvarado,
stated that Mr. Flynn did not ask her to testify as a character witness until
the day of the verdict.  If she had known ahead of time that she was going to
be asked to testify, she would have emotionally and physically prepared herself
to testify.  The day before the verdict, Mr. Flynn asked her to contact Nicole
Ibarra, Lorenzo Rios, and Stephanie Rios to testify.  Alvarado was not able to
contact them on short notice.  She stated her son is a great, young father and
a hard worker who has always been good with children.
c.  Affidavit of Lorenzo Rios
            Lorenzo stated he was available to testify
and that nobody contacted him before or during the trial.  He would have
testified that Ibarra is an honest and truthful person.  He lived with Ibarra
and Belinda Garza from about October 2008 until early January 2009.  He never
saw Ibarra abuse I.G. and claimed that when I.G. stayed with Garza’s mother or
sister, I.G. would come home with bruises.
d. Affidavit of Stephanie Rios
            Stephanie stated she lived with Ibarra and
their daughter from December 2002 “off and on” until December 2008.  She was
available to testify, but no one “on the defense side” ever contacted her.  She
stated Ibarra never mistreated her or her daughter and “that he was a peaceful
and law abiding and honest person, who was a good father, . . . .”
e. Affidavit of Connie Rios
Stephanie’s mother, Connie, stated she
was available to testify but was never contacted by Mr. Flynn.  She would have
testified that Ibarra lived with her and her daughter, Stephanie, and his and
Stephanie’s daughter “on and off” from December 2002 until early 2008.  She
stated Ibarra was “honest and truthful,” “law abiding,” and had a “good
reputation.”  
f. Affidavit of Suzette Lara
            Lara, Ibarra’s maternal aunt, stated she was
available to testify but was never contacted by Mr. Flynn.  Ibarra lived with her
for a month in 2004 and during some of that time took care of her two children,
who were seven and ten years old.  Her children “had a very good relationship
with” Ibarra.  She stated he never abused her children and was never
“inappropriate with them.”
g. Affidavit of George Loredo
            Loredo, Ibarra’s uncle by marriage, knew
Ibarra for eighteen years and was available to testify.  In reference to family
gatherings and reunions, Loredo stated Ibarra “has always helped out with the
other younger children and there have never been any indications from anyone
that there was any abuse or signs of abuse from” him.  He stated Ibarra “is a
trusting individual and I trusted him with my children many times.”  On several
occasions between 2004 and 2007, Loredo observed Ibarra with Stephanie Rios and
their daughter.  Loredo stated, “[t]here was never any indication of abuse or
signs of abuse during the time I observed them.”
h. Affidavit of Annette Zundt
            Zundt, Ibarra’s maternal aunt, stated she was
available to testify and that on the last day of the guilt-innocence phase, Mr.
Flynn asked her to contact “Lorenzo Rios, Nicole Ibarra, Lorenzo’s sister and
Stephanie Rios” to testify.  This was the first time Mr. Flynn asked her to
contact these witnesses.  Zundt was unable to contact these witnesses in such a
short time and stated that all of these witnesses, except for Nicole, “would
have been available to testify had they had prior notice, . . . .”  Zundt would
have testified that Ibarra “was a trustworthy person, of good character, a hard
worker who lived with me for several months in 2005.”  She stated Ibarra played
with her twelve-year-old son, and she saw no “indications of abuse or signs of
abuse from” Ibarra.
The trial judge, who presided over
Ibarra’s trial, held a hearing on the motion for new trial, during which
appellate counsel called only Ibarra as a witness.
Ibarra testified that during his first
meeting with Mr. Flynn, he gave Mr. Flynn the names, addresses, and phone
numbers of Lorenzo, Connie, and Stephanie Rios as well as his employer, Bill
Hall.  Ibarra expected either Lorenzo, Stephanie, or Connie to testify and said
that even though Lorenzo was not living with him at the time of the incident in
question, Lorenzo “pretty much was with me the whole time, . . . even during
work, so he knows how I am with [I.G.] and he’s pretty much there.”  He stated
Lorenzo worked with him every day of the week of the incident in question and
said Lorenzo “could have pretty much led the jury to pinpoint where [I.G.] was
at.”  Ibarra stated that the week of the incident in question, I.G. was with
her mother’s relatives and that Lorenzo “could . . . have said . . . that the
bruising would occur when the child [I.G.] stayed with relatives.”  He said
that with respect to punishment, Lorenzo knew his character and knew him to be
“truthful.”
Ibarra said that Stephanie, Connie, and
his Aunt Annette could have testified as character witnesses.  In addition,
Stephanie could have testified about how he was “as a father.”  Ibarra testified
that Connie could have testified about his relationship with Stephanie and how
he raised Connie’s granddaughter.  Ibarra stated that towards the end of the
guilt-innocence phase, Mr. Flynn asked Ibarra’s Aunt Annette to “find the
witnesses” whose names Ibarra gave to him.
Ibarra further testified that his
mother, his Uncle George, and his Aunt Suzette were character witnesses.  He
stated that he “was around their children,” lived with his Aunt Suzette for
about a month, and baby-sat his Uncle George’s children.  
On cross-examination, Ibarra testified
that Stephanie “wasn’t around the week” of the incident in question.  When the
prosecutor asked Ibarra, “[Y]ou would agree with me that everyone that
interacted with you or the victim [I.G.] that day [I.G.’s injuries were
discovered] came in and testified?”, he said, “Yes, . . . except for the
manager in maintenance.”  However, Ibarra agreed with the prosecutor that the
“manager in maintenance did not interact with [him] for very long if at all on
that day in question.”  With respect to Ibarra’s employer, Ibarra testified
that his (Ibarra’s) work schedule was not “an issue in this case[.]”
The State called Robert Flynn as its
sole witness.  Mr. Flynn practiced law for over twelve years, spending the
first ten working for the district attorney’s offices in Nueces and Kleberg
Counties, where he prosecuted sexual-assault cases as well as other felony
cases.  For the past year-and-a-half, he worked as a solo practitioner,
representing felony defendants on many occasions.
Mr. Flynn testified that “the big issue”
in Ibarra’s case was “when did these injuries to [I.G.] occur?”  He said that
I.G. had numerous bruises and that based upon his “review of the experts,” the
red bruises were zero to forty-eight hours old and the purple and blue bruises
were two to five days old.  His strategy to exclude Ibarra as the perpetrator
was to show that I.G.’s bruises occurred before the day Garza discovered them. 

He stated that early in his
representation of Ibarra, Ibarra gave him a list of witnesses.  Mr. Flynn
testified that after receiving the list, “I talked to Mr. Ibarra, we knew that
they weren’t going to be present.  We knew they really weren’t going to be of
value, . . . at the trial because they couldn’t really testify to anything. . .
.”  However, Mr. Flynn “considered that possibility they may be needed for
punishment, . . . .”  He said that “these witnesses were notified. . . . 
[T]hey all talked to each other, . . .  and only his [Ibarra’s] mother and the
aunt showed up, but I did ask them if they wanted to come down, let them know
because we may need them for punishment, . . . .”  When the prosecutor asked
Mr. Flynn, “Was there any indication to you that they needed to be
subpoenaed?”, he said, “No, I understood they would all be cooperative in
coming in on their own and they would not be hostile. . . .”
Mr. Flynn explained that with respect to
his trial strategy concerning character witnesses, “I don’t think that
sometimes character evidence always weighs very well with the jury because
there’s still going to be concern about how those bruises [on I.G.] got there,
and that’s the main issue we wanted to focus in on.”  He stated that three
witnesses, who were unrelated to Ibarra; i.e., Orlando Ramirez, Thomas De Los Santos,
and Melissa Mazzella, “testified at trial, and they got into the fact that
[Ibarra] was very good with both children [I.G. and Ibarra’s biological
daughter] and I thought that would be more powerful to a jury to hear from
unbiased witnesses rather than family members testifying about his good
character. . . .”  He said that Ramirez “mentioned . . . that he [Ibarra] was
very good and that [I.G.] was like a daughter to him, . . . .”
With respect to Ibarra’s request that
his biological daughter testify, Mr. Flynn did not let her testify because she
stated in an interview at the Children’s Advocacy Center that Ibarra “had been
mean to [I.G.] and had hit her. . . .”  When the prosecutor asked Mr. Flynn,
“[H]ad different people [said] how wonderful he [Ibarra] was, would there have
been a good chance the State would have been able to bring up . . . the alleged
punching to the victim’s mother’s stomach or the fact that the Defendant’s own
daughter witnessed him being violent with the victim?”, he said, “Those are
always your concerns on those issues.”  
When asked why he did not call Ibarra’s
employer to testify, Mr. Flynn stated that “we actually had his employer ready
to testify, . . . [but the prosecutor] agreed to let in [Ibarra’s] work hours,
so we didn’t have to call him as a witness. . . .”  Mr. Flynn could not think
of any other reason to call the employer to testify.  When the prosecutor asked
Mr. Flynn if, during trial, Ibarra “indicate[d] to you that you needed to call
more witnesses?”, he said, “The only time that was discussed is when the issue
was brought up about the weekend prior [to the discovery of I.G.’s bruises]. .
. . [Ibarra] told me that Lorenzo [Rios] was there. . . .”  When Ibarra told
this to him, Mr. Flynn asked Ibarra’s mother, who was at the trial, to contact
Lorenzo to see if he was available to testify.  She told Mr. Flynn that Lorenzo
“could not come down from Houston.”  Mr. Flynn testified that during the
guilt-innocence phase, Ibarra did not mention any more witnesses.
            When the prosecutor asked Mr. Flynn about why
he did not call any witnesses to testify at the punishment phase, he said that
“[t]he only ones we were really left with were the aunt and him [Ibarra] and
[Ibarra’s] mother. . . .”  Mr. Flynn explained that he gave Ibarra’s mother the
option to testify; however, she told him she was “emotionally distraught” over
the verdict and could not testify.  He said that neither Ibarra nor his aunt
wanted to testify.  He stated that if Ibarra “did indicate that maybe we should
call some other witnesses or he would like some witnesses to come at punishment
. . . I . . . could have asked for more time from the judge. . . .”
            On cross-examination, Mr. Flynn testified his
defense included the “timeline and the bruising and the aging of the bruises, .
. . .”  When appellate counsel asked him, “And you have to agree that Lorenzo’s
affidavit contributes to the fact that these bruises could possibly have been
done by someone else?”, he said, “Lorenzo’s affidavit wasn’t dealing with
anything that happened two to five days before the event [the discovery of
I.G.’s bruises]. . . .”  He also stated that Ibarra never said Lorenzo was
“anywhere in the picture” two to five days before the discovery of I.G.’s
bruises.  As far as Mr. Flynn knew, “Lorenzo never gave any statement or any
indication that he witnessed bruises on the child the week prior to [the
discovery of the bruises]. . . .”
            When appellate counsel asked Mr. Flynn if he
had waited until after the jury rendered its verdict before asking Ibarra’s
mother to testify, he said, “I did ask her at that time to testify, but we had
talked previously that she may testify at the [punishment] hearing if needed, .
. . .”  When appellate counsel asked Mr. Flynn if the testimony of Ibarra’s
ex-girlfriend, Stephanie Rios, would have had a “strong impact” on punishment,
he said the CPS records “indicate[d] that Roel [Ibarra] had a temper. . . . 
[T]hat may have been something that the State could have attacked him on or
attacked her on was his temper.”
            After hearing argument from both sides, the
trial court denied the motion for new trial.
2. Issues Presented
In issue one, Ibarra argues trial
counsel was ineffective during the guilt-innocence phase for failing to call
witnesses crucial to his defense.  In issue two, Ibarra argues trial counsel
was ineffective for failing to present any punishment evidence.
3. Standard of Review
Strickland v. Washington
defines the components required to show ineffective assistance of counsel.  466
U.S. 668, 687 (1984).  The two required components are a performance component
and a prejudice component.  Id.  First, the defendant must show that
counsel’s performance was deficient, which requires a showing that counsel made
errors so serious that counsel was not functioning as the counsel guaranteed by
the Sixth Amendment of the United States Constitution.  Perez v. State,
310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010).  To satisfy this prong of the
analysis, the defendant “must show that counsel’s representation fell below an
objective standard of reasonableness” based upon “prevailing professional
norms.”  Strickland, 466 U.S. at 688.  For this performance inquiry, we
consider all the circumstances with “a strong presumption that counsel’s
conduct [fell] within the wide range of reasonable professional assistance.”  Id.
at 688-89.
            Second, the defendant must show that
counsel’s deficient performance prejudiced the defense.  Perez, 310
S.W.3d at 893.  This requires the defendant to show that counsel’s errors “were
so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.”  Id. (citing Strickland, 466 U.S. at 687).  To satisfy
this element, the “‘defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Id. (quoting Strickland, 466 U.S. at
694).  The defendant has the burden of proving ineffectiveness by a
preponderance of the evidence.  Id. (citing Salinas v. State, 163
S.W.3d 734, 740 (Tex. Crim. App. 2005)).
            To obtain relief on an
ineffective-assistance-of-counsel claim based on an uncalled witness, the
appellant must show that the witness “had been available to testify and that
his testimony would have been of some benefit to the defense.”  Ex parte
White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004); King v. State, 649
S.W.2d 42, 44 (Tex. Crim. App. 1983), see Holland v. State, 761 S.W.2d
307, 319 (Tex. Crim. App. 1988) (stating that “[a]bsent a showing by appellant
that he would have benefitted from the testimony, the decision not to call
witnesses at either stage of trial does not raise the specter of ineffective
assistance.”).
In addition, in order to prevail on a
claim of ineffective assistance for counsel’s failure to call witnesses, an
appellant must present some evidence to rebut the presumption that counsel
exercised sound trial strategy by not calling the witnesses in question.  See
Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.−Corpus Christi 1999,
pet. ref’d).  Specifically, the appellant must rebut the possibility that trial
counsel did not feel the witnesses were material or credible.  See id. 
In the context of an ineffectiveness challenge, we will not second guess
counsel’s decision not to call a witness when “the testimony was a
‘double-edged sword’ that could have hurt more than it helped.”  De Pena v.
State, 148 S.W.3d 461, 470 (Tex. App.−Corpus Christi 2004, no pet.).
We review the trial court’s denial of a
motion for new trial under an abuse-of-discretion standard.  Charles v.
State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).  We do not substitute
our judgment for that of the trial court; rather, we decide whether its
decision was arbitrary or unreasonable.  Id.  We must view the evidence
in the light most favorable to the trial court’s ruling and presume that all
reasonable factual findings that could have been made against the losing party
were made against that party.  Id.  Thus, a trial court abuses its
discretion in denying a motion for new trial only when no reasonable view of
the record could support the trial court’s ruling.  Id.  The trial court
has a right to either believe or disbelieve uncontroverted testimony or
affidavits.  Id. at 210.
a. Failure to Call Witnesses at
Guilt-Innocence Phase
Mr. Flynn testified that I.G. had
numerous bruises and that based upon his “review of the experts,” her red
bruises were zero to forty-eight hours old, and her purple and blue bruises
were two to five days old   His strategy was to show that the bruising occurred
within five days before January 16, 2009, the date the bruises were discovered
after Ibarra had been alone with I.G.
None of the affidavits attached to the
motion for new trial contain statements showing that any of the affiants,
including Lorenzo Rios, saw bruising on I.G. within five days before the date
the bruises were discovered.  With respect to Mr. Flynn’s failure to call
Ibarra’s employer to testify, we note that Ibarra’s defense was not based upon
his work schedule; rather, it was based on the possibility that I.G.’s bruises
were older than the State’s evidence showed and that they occurred prior to the
day the bruises were discovered.   
Thus, even assuming all of the witnesses
who provided affidavits were available to testify at the guilt-innocence phase,
their testimony would not have benefitted Ibarra’s case.  Therefore, appellant
has failed to show that counsel’s performance was deficient.  See Perez,
310 S.W.3d at 892-93.  Even assuming counsel was deficient in failing to
call these witnesses, appellant has failed to show that counsel’s deficient
performance prejudiced the defense.  Id. at 893.  We hold that the trial
court did not abuse its discretion by denying the motion for new trial based
upon counsel’s failure to call additional witnesses at the guilt-innocence
phase.  Issue one is overruled.
b. Failure to Present Punishment
Evidence
Mr. Flynn testified that the witnesses
on Ibarra’s witness list were notified that they may be needed for punishment. 
However, only Ibarra’s mother, aunt, and brothers showed up for the punishment
hearing.  Ibarra’s mother, Veronica Alvarado, refused to testify at the
punishment hearing.  She stated in her affidavit that Mr. Flynn did not ask her
to be a character witness until the day of the verdict.  Had she known ahead of
time that Mr. Flynn was going to call her as a character witness, she would
have prepared herself emotionally and physically to testify.  Mr. Flynn
testified that on the day of the verdict, he did ask Alvarado to testify. 
However, he further testified that he and Alvarado “had talked previously that
she may testify at the [punishment] hearing if needed, . . . .”
Ibarra’s Aunt Annette stated in her
affidavit that she “was present during all of the trial and was available to
testify at the time of trial.”  However, Mr. Flynn testified that when he asked
her to testify, she refused to do so.
Mr. Flynn decided not to let Ibarra’s
brothers testify at the punishment hearing because one of them “had made a
comment or a gesture” towards Mazzella and De Los Santos in the “parking lot.” 
Mr. Flynn believed if the brother had testified, the State could have
cross-examined the brother about that incident.
During the punishment hearing, Mr. Flynn
prevented the State from calling I.G.’s mother, Belinda Garza, to testify concerning
Ibarra’s prior bad acts.  Because the State did not call any other witnesses,
the punishment case for both sides was dependent upon the evidence presented at
the guilt-innocence phase.  During that phase, Mr. Flynn elicited testimony
from three witnesses regarding Ibarra’s character and his relationship with
I.G.  Orlando Ramirez testified Ibarra was a “good friend” to him and “was
good” with I.G.  He said Ibarra baby-sat I.G., took care of her, fed her, and
treated her and his (Ibarra’s) biological daughter “equally.”
De Los Santos testified Ibarra would
come over to his apartment with I.G.  He stated that Ibarra treated I.G. “good”
and was “nice” to her.  He “never noticed anything unusual” between Ibarra and
I.G.
Melissa Mazzella testified she “never
saw anything wrong between” Ibarra and I.G., and she remembered telling the
police that Ibarra “had a good relationship with” I.G.  She also saw Ibarra
with his biological daughter and said that what she saw between them was “very
good.”
Accordingly, before assessing
punishment, the trial court had heard testimony about Ibarra’s good character
and his good relationship with I.G.  Thus, even assuming counsel was deficient
for failing to present evidence during the punishment hearing, appellant has
failed to “’show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’”  Id. (quoting Strickland, 466 U.S. at 694).  We hold
that the trial court did not abuse its discretion by denying the motion for new
trial based upon counsel’s failure to present evidence at the punishment
hearing.  Issue two is overruled.
III. Conclusion
            The trial court’s judgment is affirmed. 
 
 
                                                                                         ROSE
VELA
                                                                                         Justice
 
Do not publish.
Tex.
R. App. P.
47.2(b).
 
Delivered and filed
the 
13th day of January,
2011.

