             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-17-00090-CR
      ___________________________

      DOROTEO ALANIZ, Appellant

                      V.

          THE STATE OF TEXAS


  On Appeal from the 211th District Court
         Denton County, Texas
      Trial Court No. F17-244-211


Before Sudderth, C.J.; Pittman and Birdwell, JJ.
  Memorandum Opinion by Justice Pittman
                           MEMORANDUM OPINION

      A jury convicted Appellant Doroteo Alaniz of committing three sexual

offenses against one complainant under the age of seventeen: indecency by exposure

(Count III) and two counts of indecency by contact—touching her breast (Count II)

and touching her genitals (Count I). The jury also convicted Appellant of committing

continuous sexual abuse of a complainant under the age of fourteen by touching her

genitals on two or more occasions (Count IV).            The jury assessed Appellant’s

punishment at ten years’ confinement for indecency by exposure, twenty years’

confinement for each count of indecency by contact, and thirty years’ confinement for

continuous sexual abuse of a child. The trial court sentenced Appellant accordingly,

ordering the sentences to run consecutively.

      Appellant does not challenge the sufficiency of the evidence. Instead, in his

sole issue, he contends that he received ineffective assistance of counsel at trial

because his trial counsel called no witnesses. Appellant has not satisfied his burden to

prove ineffective assistance of trial counsel; we therefore affirm.

                                    BRIEF FACTS

      In the spring of 2014, four girls between the ages of seven and nineteen—Y.G.,

R.G., K.G., and M.G.—lived with their mother (Mother) and a younger brother in a

four-bedroom trailer in Lewisville, Texas.       The children’s maternal grandmother

(Grandmother) traveled from out of town to help look after them during their spring

break and stayed. M.G., the nineteen-year-old, warned Mother that Grandmother’s

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long-term boyfriend, Appellant, had done something to M.G. when she was little, but

M.G. did not provide Mother any details.         Mother allowed Appellant to join

Grandmother in her home later that spring, and M.G. soon moved out.

         Mother’s youngest daughter, Y.G., the complainant named in Count IV, slept

with Grandmother and Appellant in their room approximately three times each week

during most of that summer. When Y.G. slept in the room with Appellant, he would

touch her genitals and penetrate them with his finger. He would tell her not to tell

Mother, and Y.G. did not tell Mother about the ongoing sexual abuse because she was

scared.

         Mother’s second-oldest daughter, fifteen-year-old K.G., the complainant

named in Counts I, II, and III, was developmentally disabled. On October 24, 2014,

while Mother was at work and before the other children came home from school,

K.G. arrived home. Appellant was waiting for her. While they were in the living

room, Appellant’s roving hands touched her breasts and genitals, both over her

clothes and skin-to-skin, and also touched her “butt.” Appellant also exposed his

penis and touched it with his moving hands. When Mother came home, K.G. told

her what Appellant had done, and later that day R.G. told Mother that Appellant had

also touched her inappropriately. Y.G. did not tell Mother that Appellant had sexually

abused her until sometime later.

         The jury heard evidence of Appellant’s misconduct committed against all four

girls.

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                                   DISCUSSION

      Appellant contends that he received ineffective assistance of counsel at trial

because his trial counsel did not call witnesses at either the guilt-innocence or the

punishment phase. Appellant concedes that the record is silent on trial counsel’s

reasons for calling no witnesses and that a hearing on a motion for new trial or writ of

habeas corpus might have provided more “background” but argues that this court

nevertheless “has enough” to determine trial counsel was ineffective. We disagree.

I.    Appellant Must Prove by a Preponderance of the Evidence Both
      Deficient Representation by Trial Counsel and a Reasonable Probability
      that Without It, the Outcome of His Trial Would Have Been Different.

      The Sixth Amendment guarantees a criminal defendant the effective assistance

of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.

amend. VI.    To establish ineffective assistance, an appellant must prove by a

preponderance of the evidence that his counsel’s representation was deficient and that

the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.

2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The record

must affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999).

      In evaluating counsel’s effectiveness under the deficient-performance prong,

we review the totality of the representation and the particular circumstances of the

case to determine whether counsel provided reasonable assistance under all the


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circumstances and prevailing professional norms at the time of the alleged error. See

Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson,

9 S.W.3d at 813–14. Our review of counsel’s representation is highly deferential, and

we indulge a strong presumption that counsel’s conduct was not deficient. Nava,

415 S.W.3d at 307–08.

      An appellate court may not infer ineffective assistance simply from an unclear

record or a record that does not show why counsel failed to do something. Menefield v.

State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425,

432 (Tex. Crim. App. 2007).        Trial counsel “should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective.” Menefield,

363 S.W.3d at 593. If trial counsel did not have that opportunity, we should not

conclude that counsel performed deficiently unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it.” Nava, 415 S.W.3d

at 308. Direct appeal is usually inadequate for raising an ineffective-assistance-of-

counsel claim because the record generally does not show counsel’s reasons for any

alleged deficient performance.      See Menefield, 363 S.W.3d at 592–93; Thompson,

9 S.W.3d at 813–14.

      Strickland’s prejudice prong requires a showing that counsel’s errors were so

serious that they deprived the defendant of a fair trial—that is, a trial with a reliable

result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant

must show a reasonable probability that the proceeding would have turned out

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differently without the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava,

415 S.W.3d at 308. A “reasonable probability” is a probability sufficient to undermine

confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava,

415 S.W.3d at 308. We must ultimately focus on examining the fundamental fairness

of the proceeding in which the result is being challenged. Strickland, 466 U.S. at 696,

104 S. Ct. at 2069. “[A] verdict or conclusion only weakly supported by the record is

more likely to have been affected by errors than one with overwhelming record

support.” Id., 104 S. Ct. at 2069.

II.   Appellant Has Failed to Show that He Would Benefit from Absent
      Testimony.

      Although Appellant argues that trial counsel’s failure to call witnesses on his

behalf could not stem from any reasonable trial strategy, the Texas Court of Criminal

Appeals has held that “[c]ounsel’s failure to call witnesses at the guilt-innocence and

punishments stages is irrelevant absent a showing that such witnesses were available

and appellant would benefit from their testimony.” King v. State, 649 S.W.2d 42,

44 (Tex. Crim. App. 1983). This court has followed that binding precedent. See

Gomez v. State, 552 S.W.3d 422, 435–36 (Tex. App.—Fort Worth 2018, no pet.).

      Appellant states that the record indicates that Grandmother “and/or his

employer” were available to testify, but Appellant does not show proof in the record

of how he would benefit from that testimony. We therefore hold that Appellant has




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failed to show ineffective assistance of trial counsel, and we overrule his sole issue.

See King, 649 S.W.2d at 44; Gomez, 552 S.W.3d at 435–36.

                                  CONCLUSION

      Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.


                                                     /s/ Mark T. Pittman
                                                     Mark T. Pittman
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 20, 2018




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