                              NUMBER 13-15-00177-CR

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

HENRY OCHOA JR.,                                                                 Appellant,

                                              v.

THE STATE OF TEXAS,                                                               Appellee.


                     On appeal from the 377th District Court
                           of Victoria County, Texas.


                         MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Perkes
                Memorandum Opinion by Justice Benavides
       By two issues, appellant Henry Ochoa Jr. appeals his felony convictions for two

counts of aggravated sexual assault of a child.             See TEX. PENAL CODE ANN. §

22.021(a)(1)(B) (West, Westlaw through 2015 R.S.). Ochoa argues on appeal that:             (1)

his trial counsel rendered ineffective assistance, or, in the alternative, the trial court erred

when it failed to conduct a hearing on the issue; and (2) the trial court erred when it failed
to conduct a hearing on his motion for new trial. We affirm.

                                            I.      BACKGROUND

        A jury convicted Ochoa for two counts of aggravated sexual assault of a child.

See id.     During closing statements, the State emphasized that Ochoa’s DNA had not

been excluded from a piece of evidence.              However, the lab report and the testimony of

the laboratory technician who tested the piece of evidence both indicated that the DNA

sample was insufficient for comparison.            Ochoa’s trial counsel did not object during the

State’s closing statements. The jury subsequently assessed Ochoa’s punishment for

each count at life imprisonment with the Texas Department of Criminal Justice’s

Institutional Division.      See TEX. PENAL CODE ANN. § 22.021(b)(f)(1) (West, Westlaw

through 2015 R.S.).

        Ochoa then retained new counsel and filed a motion for new trial claiming that:

(1) he received ineffective assistance of counsel; and (2) the State withheld a taped

forensic interview with the complainant. The State responded to Ochoa’s motion and

attached an affidavit from Ochoa’s trial counsel. In the affidavit, Ochoa’s trial counsel

stated his reasons for not objecting to the State’s closing statement and swore he

received and reviewed a copy of the forensic interview.                The trial court, without holding

a hearing, denied Ochoa’s motion for new trial. This appeal followed.

                             II.      INEFFECTIVE ASSISTANCE OF COUNSEL

        By his first issue, Ochoa asserts that his trial counsel provided ineffective

assistance because he failed to object during the State’s closing statement.1


        1  Ochoa argues in the alternative that the trial court erred by not holding a hearing regarding the
ineffective assistance of counsel issue, an issue presented in his motion for new trial. We will address this

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       A. Standard of Review and Applicable Law

       Claims of ineffective assistance of counsel are governed by the United States

Supreme Court's decision in Strickland v. Washington.      466 U.S. 668, 684 (1984); see

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (en banc) (holding that

the Strickland standard applies in noncapital sentencing proceedings).     Under the two-

pronged Strickland standard, an appellant must show that:      (1) counsel's performance

was deficient and (2) counsel's deficient performance prejudiced the defense, resulting in

an unreliable or fundamentally unfair outcome.    See Strickland, 466 U.S. at 687.

       To show deficient performance under the first prong of Strickland, an appellant

must demonstrate that counsel's performance fell below an objective standard of

reasonableness.      See id. at 688. The review of defense counsel's representation is

highly deferential and presumes that counsel's actions fell within a wide range of

reasonable professional assistance.     Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.

App. 2000) (en banc).       To overcome the presumption of reasonable professional

assistance, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness.”      Thompson v.

State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). The record on direct appeal will only

be adequate in rare circumstances to show that counsel's performance fell below an

objectively reasonable standard of performance.    See Andrews v. State, 159 S.W.3d 98,

102 (Tex. Crim. App. 2005) (indicating that claims of ineffective assistance of counsel are

normally best left for habeas corpus proceedings); see also Bone v. State, 77 S.W.3d




under the second issue.

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828, 833 (Tex. Crim. App. 2002) (“Under normal circumstances, the record on direct

appeal will not be sufficient to show that counsel's representation was so deficient and so

lacking in tactical or strategic decision making as to overcome the presumption that

counsel's conduct was reasonable and professional.”

       An appellant establishes prejudice under the second prong of Strickland if he

shows there is a reasonable probability that the outcome of the proceeding was affected

by deficient performance.     See 466 U.S. at 694; see also Ex parte Cash, 178 S.W.3d

816, 818 (Tex. Crim. App. 2005). Reasonable probability is a probability sufficient to

undermine confidence in the outcome of the case.      Strickland, 466 U.S. at 694.

       Effective assistance of counsel is gauged by the totality of the representation, and

the trial as a whole must be reviewed and not based solely on isolated incidents of

counsel's performance.      See Ex parte Walker, 777 S.W.2d 427, 431 (Tex. Crim. App.

1989) (en banc); Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984) (en banc);

Sanders v. State, 346 S.W.3d 26, 33 (Tex. App.—Fort Worth 2011, pet. ref'd).            For

instance, an isolated failure to object to improper evidence does not necessarily constitute

ineffective assistance of counsel.   See Ex Parte Menchaca, 854 S.W.2d 128, 132 (Tex.

Crim. App. 1993) (en banc).      When handed the task of determining the validity of a

defendant's claim of ineffective assistance of counsel, any judicial review must be highly

deferential to trial counsel and avoid the deleterious effects of hindsight.     Ingham v.

State, 679 S.W.2d 503, 509 (Tex. Crim. App.1984).              Finally, there is a strong

presumption that counsel's conduct fell within the wide range of reasonable professional

assistance.   Strickland, 466 U.S. 668, Thompson, 9 S.W.3d at 814.             The right to

effective counsel is not the right to error-free counsel.   See Robertson v. State, 187

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S.W.3d 475, 483 (Tex. Crim. App. 2006).

       B. Discussion

       Ochoa argues that his trial counsel provided ineffective assistance of counsel

because his trial counsel failed to object during the State’s closing statement.            During

closing statements, the State emphasized that Ochoa’s DNA was not excluded from a

piece of evidence.      However, the lab report and the testimony of the laboratory

technician who tested the piece of evidence both indicated that the DNA sample was

insufficient for comparison.

       Ochoa’s trial counsel stated his strategic reasons for not objecting to the State’s

closing arguments via affidavit.          In the affidavit, Ochoa’s counsel states that he did not

object to the State’s argument because he did not believe that the trial court would sustain

the objection and that he did not want to “further point to any of those issues.”        As stated

in Thompson, courts should be especially hesitant to declare counsel ineffective based

upon a single alleged miscalculation during what amounts to otherwise satisfactory

representation, especially when the record provides no discernible explanation of the

motivation behind counsel's actions—whether those actions were of strategic design or

the result of negligent conduct.      9 S.W.3d at 814.       From our review of the totality of the

representation, the single alleged miscalculation of Ochoa’s counsel does not amount to

ineffective assistance. Additionally, Ochoa’s counsel explained his lack of objection was

strategy that he employed.     See id. Therefore, Ochoa has not met the first prong of

Strickland. We overrule Ochoa’s first issue.

                                   III.       MOTION FOR NEW TRIAL

       By his second issue, Ochoa argues that the trial court abused its discretion when

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it failed to hold a hearing on his motion for new trial because his motion (1) presented an

ineffective assistance of counsel issue and (2) raised a fact issue regarding whether the

State withheld a forensic interview with the complainant.

       A. Standard of Review and Applicable Law

       A trial court's decision not to hold a hearing on a motion for new trial is reviewed

under an abuse of discretion standard.     Lucero v. State, 246 S.W.3d 86, 94 (Tex. Crim.

App. 2008).    The purposes of a new trial hearing are (1) to determine whether the case

should be retried or (2) to complete the record for presenting issues on appeal.       Hobbs

v. State, 298 S.W.3d 193, 203 (Tex. Crim. App. 2009). While such a hearing is not an

absolute right, a trial judge abuses his discretion by failing to hold a hearing if the motion

and accompanying affidavits (1) raise matters which are not determinable from the record

and (2) establish reasonable grounds showing that the defendant could potentially be

entitled to relief. Id. This second requirement limits and prevents “fishing expeditions.”

Id.   A defendant is not entitled to a hearing on a motion for new trial when the matters

raised in the motion for new trial are subject to being determined from the record.    Smith

v. State, 286 S.W. 3d 333, 338 (Tex. Crim. App. 2009).

       B. Discussion

       Ochoa argues that the trial court erred because it did not hold a hearing on the

motion for new trial in relation to his trial counsel’s ineffectiveness and whether the State

withheld the forensic interview of the complainant.

       Regarding the ineffective assistance claim, “where a defendant asserts that he is

entitled to a hearing on a motion for new trial raising ineffective assistance of counsel, the

motion and affidavit ‘must allege sufficient facts from which a trial court could reasonably

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conclude both that counsel failed to act as a reasonably competent attorney and that, but

for counsel’s failure, there is a reasonable likelihood that the outcome of the trial would

have been different.” Gonzalez v. State, ___ S.W.3d ____, No. 13-13-00427-CR, 2014

WL 4049800 at *3 (Tex. App.—Corpus Christi 2014, pet. ref’d) (quoting Smith v. State,

286 S.W.3d 333, 339 (Tex. Crim. App. 2009)) (emphasis in original). Although Ochoa

asserts his counsel should have objected to the State’s closing argument and did not

review the forensic interview, the State attached an affidavit from Ochoa’s trial counsel

explaining why he chose not to object and stating he did review the video in the State’s

file. Therefore, the trial court could properly determine the issues presented based on

the record and affidavits and was not required to hold a hearing on the motion for new

trial. See Gonzalez, ___ S.W.3d at ___, 2014 WL 4049800 at *4.

       In addition, Ochoa’s motion for new trial does not contain any affidavits asserting

or supporting the claim that his trial counsel did not receive a copy of the complainant’s

forensic interview during discovery on this case.    Following the trial court’s denial of his

motion for new trial, however, Ochoa reasserted his arguments in a filing entitled

“Applicant’s Objections to the Court’s Finding of Fact and Conclusions of Law.” Attached

to this filing were various “offers of proof,” including a photocopy of a text message

conversation purportedly between Ochoa’s appellate counsel and trial counsel in which

Ochoa’s appellate counsel asks Ochoa’s trial counsel whether the State ever gave

Ochoa’s trial counsel “a copy of the girl’s interview,” to which Ochoa’s trial counsel replies

“Nope.” This text message conversation was not properly before the trial court during

its denial of holding a hearing on Ochoa’s motion for new trial, so we will likewise not

consider it today.

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       Instead, we note that the State attached to its response to Ochoa’s motion for new

trial an affidavit signed by Ochoa’s trial counsel stating that he “received and reviewed a

copy of the complainant’s forensic interview well in advance of trial for this case.”   After

reviewing the record, the trial court denied Ochoa’s motion for a new trial. We conclude

that the trial court did not abuse its discretion in denying Ochoa’s request for a hearing.

Nothing in the record before the trial court raised matters which were not determinable

from the record or established reasonable grounds showing that Ochoa could potentially

be entitled to relief. See Hobbs, 298 S.W.3d at 203. We overrule Ochoa’s second and

final issue.

                                     IV.       CONCLUSION

       We affirm the trial court’s judgment.



                                                               GINA M. BENAVIDES,
                                                               Justice


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

Delivered and filed the
21st day of July, 2016.




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