      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00303-CR



                                Omar Terrell Nelson, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
          NO. 67615, THE HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Omar Terrell Nelson pled guilty to aggravated sexual assault of a child, and

the trial judge assessed his punishment at five years’ imprisonment. In a single point of error on

appeal, appellant complains that he received ineffective assistance of counsel at the punishment

hearing. We affirm the trial court’s judgment of conviction.


                                         DISCUSSION1

               In an open plea to the court, appellant judicially confessed and pled guilty to the

offense of aggravated sexual assault of a child. See Tex. Penal Code § 22.021. The trial judge

withheld a finding of guilt, ordered a presentence investigation (PSI), and reset the case for




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         As this is a memorandum opinion and the parties are familiar with the facts and procedural
history of the case, we will not recite them here except as necessary to advise the parties of the
Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
sentencing. At the punishment hearing, both sides relied on the PSI report and declined to offer

evidence. Citing appellant’s impeccable military record, his misunderstanding about the victim’s

age, and the consensual nature of the offense, appellant’s counsel argued that deferred-adjudication

community supervision was an appropriate punishment. The State simply indicated that it left the

punishment to the judge’s discretion. The trial judge adjudicated appellant guilty and assessed his

punishment at five years’ confinement in the Texas Department of Criminal Justice, the minimum

sentence for the offense. See id. § 12.32. In his sole point of error on appeal, appellant asserts that

he was denied effective assistance of counsel because his attorney failed to call witnesses to testify

on his behalf at the punishment hearing.

               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); Menefield v. State, 363 S.W.3d 591,

592 (Tex. Crim. App. 2012). Failure to make the required showing of either deficient performance

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

actions or inaction and decisions were reasonably professional and motivated by sound trial strategy.

Strickland, 466 U.S. at 686; see Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim. App. 2013).

To rebut that presumption, a claim of ineffective assistance must be “firmly founded in the record”

and “the record must affirmatively demonstrate” the meritorious nature of the claim. See Menefield,



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363 S.W.3d at 592 (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005));

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). “[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.’” Frangias, 392 S.W.3d at 653 (quoting Goodspeed, 187 S.W.3d at 392) (internal

quotation marks omitted).

               The “failure to call witnesses at the guilt-innocence and punishment stages is

irrelevant absent a showing that such witnesses were available and appellant would benefit from their

testimony.” Perez, 310 S.W.3d at 894 (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App.

1983)). Accordingly, a claim of ineffective assistance of counsel based on counsel’s failure to call

witnesses fails in the absence of a showing that such witnesses were available to testify and that the

defendant would have benefitted from their testimony. Ex parte White, 160 S.W.3d 46, 52 (Tex.

Crim. App. 2004).

               In his brief, appellant asserts that he was harmed by his trial counsel’s failure to call

“available witnesses” to testify about (1) the family support he would have had in order to

successfully complete deferred-adjudication community supervision if granted, (2) appellant’s

conduct since the incident forming the basis of his conviction, and (3) additional information

(beyond that provided in the PSI) about his military service. Appellant does not identify these

“available witnesses” but only refers generally to “family members” and “witnesses who could

testify [about his] military duties and service.” However, it is apparent that in making his argument



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appellant is relying on testimony adduced at a motion for new trial hearing held 82 days following

imposition of his sentence. The evidence from that hearing is not properly in the record before us.

               A motion for new trial must be filed no more than 30 days after the date the trial court

imposes sentence. Tex. R. App. P. 21.4(a). An amended motion for new trial must be filed within

30 days after the imposition of sentence and before the trial court overrules any previously filed

motion for new trial. Tex. R. App. P. 21.4(b). The trial court must rule on a motion for new trial

within 75 days after imposing sentence. Tex. R. App. P. 21.8(a). If the trial court fails to rule by

written order within 75 days of imposition of sentence, a motion for new trial is overruled by

operation of law. Tex. R. App. P. 21.8(c). Once a motion for new trial is overruled by operation of

law, the trial court is without jurisdiction to rule on the motion. State v. Garza, 931 S.W.2d 560, 562

(Tex. Crim. App. 1996). A hearing held after the trial court has lost jurisdiction to rule on

the motion is not authorized, and therefore, will not be considered on appeal. Parmer v. State,

38 S.W.3d 661, 667 (Tex. App.—Austin 2000, pet. ref’d).

               In the instant case, the trial court imposed appellant’s sentence on January 18, 2012.

Appellant filed a motion for new trial on February 10, 2012, 23 days following imposition of

sentence. Thereafter, on April 5, 2012, 78 days after imposition of sentence, appellant filed his

amended motion for new trial. This motion was untimely in two ways. First, it was not filed within

30 days after appellant was sentenced. See Klapesky v. State, 256 S.W.3d 442, 454–55 (Tex.

App.—Austin 2008, pet. ref’d) (defendant may amend motion for new trial before it is acted on as

long as it is amended within 30 days of sentencing date) (citing Tex. R. App. P. 21.4(b)). Second,

it was filed after the motion for new trial had been overruled by operation of law on April 3, 2012,



                                                  4
the 76th day after the date appellant’s sentence was imposed. See Tex. R. App. P. 21.8(c); State

v. Moore, 225 S.W.3d 556, 568–69 (Tex. Crim. App. 2007). Thus, there was no pending motion to

amend. Nevertheless, the trial court held a hearing on appellant’s motion for new trial and amended

motion for new trial on April 9, 2012, 82 days following imposition of sentence. However, because

appellant’s motion for new trial had already been overruled by operation of law, the trial court lacked

jurisdiction to hold a hearing on appellant’s motion for new trial or amended motion for new trial.

Accordingly, we cannot consider the facts developed at that hearing.

               Because we may not consider the evidence adduced at the untimely hearing, the

record does not contain any evidence to support appellant’s contention that his counsel failed to call

witnesses that would have provided favorable testimony. Further, the record lacks any explanation

from trial counsel of why he did not present witness testimony at the punishment hearing. Absent

evidence on these issues, appellant cannot meet his burden to show that counsel was ineffective in

failing to call witnesses at the punishment hearing. See Strickland, 466 U.S. at 690 (to succeed on

claim of ineffective assistance of counsel appellant must show both deficient performance and

prejudice to defense); Menefield, 363 S.W.3d at 592 (ineffective-assistance claim must be “firmly

founded in the record” and “the record must affirmatively demonstrate” meritorious nature of claim);

see also Perez, 310 S.W.3d at 894 (failure to call witnesses at punishment phase is irrelevant absent

showing such witnesses were available and appellant would benefit from their testimony).

Accordingly, we overrule appellant’s sole point of error.




                                                  5
                            CLERICAL ERROR IN JUDGMENT

              However, we observe that the trial court’s judgment of conviction contains a clerical

error. The judgment reflects that appellant was convicted of “Aggravated Sexual Assault” when in

fact he was convicted of “Aggravated Sexual Assault of a Child.” This Court has authority to

modify incorrect judgments when the necessary information is available to do so. See Tex. R. App.

P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we modify

the judgment to include the omitted language and reflect that the “Offense for which Defendant

Convicted” is “Aggravated Sexual Assault of a Child.”


                                        CONCLUSION

              Having overruled appellant’s sole point of error, we modify the trial court’s judgment

of conviction as noted above and affirm the judgment as modified.



                                             __________________________________________
                                             Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Modified and, as Modified, Affirmed

Filed: June 18, 2014

Do Not Publish




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