                               NUMBER 13-11-00591-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


FELIX MOYA,                                                                               Appellant,

                                                    v.

THE STATE OF TEXAS,                                                                        Appellee.


                       On appeal from the 148th District Court
                             of Nueces County, Texas.


                               MEMORANDUM OPINION1

                  Before Justices Rodriguez, Garza, and Perkes
                   Memorandum Opinion by Justice Rodriguez
        Appellant Felix Moya challenges his conviction for continuous sexual assault of a

child younger than fourteen, a first-degree felony. See TEX. PENAL CODE ANN. § 21.02
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          Because this is a memorandum opinion and the parties are familiar with the facts, 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. 47.4.
(West Supp. 2011). A jury found Moya guilty, and the trial court sentenced Moya to

eighty years in the Texas Department of Criminal Justice.            By one issue, Moya

complains that the trial court erred in allowing defense counsel only eighteen days to

prepare for trial, thus, rendering counsel’s assistance ineffective. We affirm.

                                     I. Background

       On November 29, 2010, the trial court appointed counsel to represent Moya. On

April 4, 2011, the trial court replaced Moya’s first counsel. Moya’s second counsel filed a

motion for discovery, a motion for discovery of exculpatory and mitigating evidence, and a

motion for a list of witnesses. In April and June 2011, the State provided notice of

possible experts. It also filed notice of its intent to offer extraneous offenses, the outcry

statement, and the child’s hearsay statement. On July 19, 2011, Moya’s second counsel

filed a motion to withdraw, citing inability to communicate effectively and an irreconcilable

conflict with Moya as the bases for his motion. Moya consented to the withdrawal. On

July 21, 2011, the trial court granted the motion to withdraw and appointed Moya’s third

counsel.

       At an August 2011 pre-trial hearing, in response to the State’s motion to disclose

expert witnesses, Moya’s counsel stated that she consulted with a medical expert who

was helping her formulate questions. She also represented to the trial court that she had

gone through the discovery motions filed by Moya’s earlier counsel and that she believed

she had everything she needed from the State. Counsel indicated that the only pre-trial

issue she was researching was whether certain pictures could be excluded. Counsel

admitted that she was aware the case was set for trial on the following Monday.


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       On August 8, 2011, just before voir dire began, Moya’s counsel raised an issue

concerning Moya’s request for an interpreter and put on the record that he had declined

the State’s plea offer. Counsel did not file a motion for a continuance and did not indicate

that she was unprepared to proceed.

       On August 9, 2011, counsel announced ready. Moya pleaded “not guilty,” and

the trial began. Again, counsel filed no motion for continuance and made no objection

that she was unprepared. During her opening statement, counsel raised the primary

defense that Moya was being accused in retaliation for his having obtained custody of his

children from his ex-wife, whose sister was the mother of the complaining witness. She

later presented numerous defense witnesses, including Moya’s daughter, a registered

nurse, Moya’s son, a Sheriff’s deputy, Moya’s ex-girlfriend, and a jail inmate who had

contact with Moya. Counsel called and questioned Moya himself. She later included

Moya’s defense in her closing argument. The jury found Moya guilty. No motion for

new trial was filed. This appeal ensued.

                            II.       MOTION FOR CONTINUANCE

       By his sole issue, Moya complains that the trial court erred in allowing defense

counsel only eighteen days to prepare for trial, which he asserts denied his trial counsel

adequate time to prepare.         Moya asserts that this, in turn, rendered his counsel’s

assistance ineffective.

       The code of criminal procedure provides for a continuance only on written motion

of the State or of the defendant, with sufficient cause shown. TEX. CODE. CRIM. PROC.

ANN. art. 29.03 (West 2008). The court of criminal appeals has also held that the


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defendant’s failure to comply with the written-motion requirement waives his right to

challenge the trial court’s denial of his unsworn oral motion for continuance. Anderson v.

State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009).

       In the present case, even had Moya’s counsel requested a continuance in

chambers as noted in appellant’s brief, there is no record of any written motion, and

counsel clearly indicated that she was ready to proceed at the time of trial. We cannot

conclude that the trial court committed error when it allowed the trial to proceed or that the

trial court denied counsel adequate time to prepare for trial. Moya waived his right to

challenge the trial court’s action. We overrule this portion of Moya’s sole issue.

                         III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Having overruled Moya’s argument regarding trial court error, Moya must show

that his attorney was ineffective for failing to ask for such a continuance and for allegedly

proceeding to trial unprepared. Moya argues that trial counsel’s failure to file a written

motion for continuance was “horribly damaging to [his] case because counsel did not

have sufficient time to prepare for trial, consult with experts, or interview witnesses . . . .”

A.     The Law

       To establish ineffective assistance of counsel, Moya must show, by a

preponderance of the evidence, that: (1) his attorney's representation fell below an

objective standard of reasonableness; and (2) he was prejudiced because there is a

reasonable probability that, but for his attorney's errors, the result of the proceeding would

have been different. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Perez v.

State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Jaynes v. State, 216 S.W.3d 839,


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851 (Tex. App.—Corpus Christi 2006, no pet). Failure to make the required showing of

either element defeats the ineffectiveness claims. Strickland, 466 U.S. at 700; Perez,

310 S.W.3d at 893.

      We review the effectiveness of counsel in light of the totality of the representation

and the circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Usually, the trial record will not be sufficient to establish an ineffective

assistance of counsel claim. Id. at 813–14.

B.    Discussion

      In this case, the trial record is undeveloped as a record to demonstrate exactly how

Moya’s counsel was denied adequate time to prepare for trial and how Moya would have

benefited had he been granted a continuance. For example, the only specific complaint

Moya raises concerns counsel’s ineffectiveness because of her failure to urge pretrial

motions, specifically a motion for continuance. However, in light of the totality of the

representation, portions of the record establish that Moya’s trial counsel clearly

represented that she obtained everything she needed from the State and that no other

pre-trial issues remained, except for a legal question she was researching concerning

whether she could exclude certain pictures. Moya has not shown what witnesses he

could have obtained or what experts he could have retained with more preparation time.

Moya offers no explanation of how the outcome of the trial would have been different had

his counsel not failed to file a motion for continuance. Thus, Moya has not met his

burden of showing prejudice, the second Strickland element. Having failed to show the

prejudice element, Moya’s ineffectiveness claim is defeated. See Strickland, 466 U.S. at


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687–96; Perez, 310 S.W.3d at 893; Thompson, 9 S.W.3d at 812–13. Accordingly, we

overrule the remaining portion of Moya’s issue.

                                    IV. CONCLUSION

       We affirm the judgment of the trial court.



                                                      NELDA V. RODRIGUEZ
                                                      Justice

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

Delivered and filed the
4th day of April, 2013.




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