                                                                                 ACCEPTED
                                                                             14-15-00285-CR
                                                             FOURTEENTH COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                      12/23/2015 10:46:03 AM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK

                            NO. 14-15-00285-CR

           IN THE FOURTEENTH COURT OF APPEALS  FILED IN
                                        14th COURT OF APPEALS
                                                         HOUSTON, TEXAS
                            HOUSTON, TEXAS           12/23/2015 10:46:03 AM
                                                      CHRISTOPHER A. PRINE
                                                              Clerk



                    DAVID RUIZ, APPELLANT
                              V.
                 THE STATE OF TEXAS, APPELLEE



              BRIEF FOR THE STATE OF TEXAS

                    CAUSE NUMBER 11CR1921
             IN THE 212th JUDICIAL DISTRICT COURT
                 OF GALVESTON COUNTY, TEXAS

                  ATTORNEYS FOR THE STATE OF TEXAS

REBECCA KLAREN               ASSISTANT CRIMINAL DISTRICT ATTORNEY
                             STATE BAR NO. 24046225


JACK ROADY                   CRIMINAL DISTRICT ATTORNEY


600 59TH STREET, SUITE 1001
GALVESTON TX 77551
(409) 770-6004, FAX (409) 621-7952
rebecca.klaren@co.galveston.tx.us


ORAL ARGUMENT WAIVED
                     IDENTITY OF PARTIES AND COUNSEL



Presiding Judge                           Honorable Patricia Grady

Appellant                                 David Ruiz

Appellee                                  The State of Texas

Attorney for Appellant                    Chabli Hall

      (Trial Only)                        Houston, Texas

Attorney for Appellant                    Kyle Verret

      (Appeal Only)                       Galveston, Texas

Attorney for State                        T. Matthew Heermans &

                                          Richard Hayes

      (Trial Only)                        Galveston, Texas

Attorney for State                        Rebecca Klaren

      (Appeal Only)                       Galveston, Texas




                                    ii
                                  TABLE OF CONTENTS

SECTION                                                                         PAGE

Identity of Parties and Counsel                                                 ii

Table of Contents                                                               iii

Index of Authorities                                                            v

Summary of the Argument                                                         2

Statement of Facts                                                              3

First Issue                                                                     28
              Counsel showed the State’s witnesses knew Ruiz was an abuse
              victim. She also showed they were unaware of Ruiz’s head
              injury. Counsel presented evidence, through Ruiz, that he was
              sexually abused and suffered a head injury that may’ve impacted
              his ability to do probation.

              How was counsel deficient when she presented mitigating
              evidence?

              How was Ruiz prejudiced when the same judge set his
              punishment and would’ve known if cumulative mitigating
              evidence would’ve changed its sentence?

       Argument and Authorities                                                 28

       I.      Motion for New Trial Standard of Review                          29

       II.     Ineffective Assistance of Counsel Relevant Law                   30

       III.    Trial Counsel Was Not Deficient                                  33

       IV.     Ruiz Was Not Prejudiced                                          37

       V.      Conclusion—Ruiz Is Not Entitled To A New Punishment
               Hearing                                                          42


                                            iii
Second Issue                                                                 43
           A court must hold a hearing on a motion for new trial if the
           motion raises matters that aren’t determinable from the
           record and establishes reasonable grounds showing that the
           defendant could be entitled to relief.

             What’s the abuse of discretion in denying a new trial hearing
             when the record shows counsel wasn’t deficient and the judge
             who received the motion also set the punishment? The judge
             knew if the affidavits would’ve changed her sentence.

       Argument and Authorities                                              43

       I.     Motion for New Trial Hearing Relevant Law                      44

       II.    The Trial Court Did Not Abuse Its Discretion By Denying A
              Hearing On Ruiz’s Motion For New Trial                         45

Conclusion and Prayer                                                        49

Certificate of Service                                                       50

Certificate of Compliance                                                    50




                                          iv
                                         INDEX OF AUTHORITIES


CASES 

Ansari v. State, 06-14-00220-CR, 2015 WL 7300073, at *2 (Tex. App.---Texarkana
 Nov. 13, 2015, no. pet. h. .......................................................................................34

Arriaga v. State, 335 S.W.3d 331, 336-37 (Tex. App.---Houston [14th Dist.] 2010, pet.
 ref’d).......................................................................................................... 40, 42, 47

Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002). ..................................32

Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008) ......................... 30, 42

Castaneda v. State, 01-14-00389-CR, 01-14-00390-CR, 2015 WL 6930466 *9 (Tex.
 App.---Houston [1st Dist.] Nov. 10, 2015, no pet. h.) .......................... 33, 40, 42, 47

Coble v. Quarterman, 496 F.3d 430, 437 (5th Cir. 2007) ................................................39

Eddie v. State, 100 S.W.3d 437, 442 (Tex. App.---Texarkana 2003, pet. ref’d) .............34

Ex parte Martinez, 195 S.W.3d 713, 731 (Tex. Crim. App. 2006).................................39

Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). .................................32

Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006) .............................40

Frangias v. State, 450 S.W.3d 125 (Tex. Crim. App. 2013) .................................... 35, 36

Gholson v. State, 5 S.W.3d 266, 273 (Tex. App.---Houston [14th Dist.] 1999, pet. ref’d).
 ...............................................................................................................................31

Glenn v. State, 01-13-00640-CR, 2015 WL 831995, at *4 (Tex. App.—Houston [1st
 Dist.] Feb. 26, 2015, pet. ref’d) .................................................................. 40, 42, 47

Goody v. State, 433 S.W.3d 74, 81 (Tex. App.---Houston [1st Dist.] 2014, pet. ref’d). .......
 .................................................................................................................. 40, 42, 47
Harrington v. Richter, 562 U.S. 86, 112 (2011)...............................................................33

                                                                v
Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009)................................ 44, 48

Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)............................... 44, 48

Holland v. State, 761 S.W.2d 307, 319 (Tex. Crim. App. 1988) ....................................39

Ketchum v. State, 199 S.W.3d 581, 597 (Tex. App.----Corpus Christi 2006, pet. ref’d) ..39

Lair v. State, 265 S.W.3d 580, 595 (Tex. App.---Houston [1st Dist.] 2008, pet. ref’d) ..32

Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.---Houston [14th Dist.] 2015, pet. ref’d)
  ...............................................................................................................................41

Lopez v. State, 462 S.W.3d 180, 188 (Tex. App.---Houston [1st Dist. 2015, no pet.) ........
  ............................................................................................................ 33, 35, 37, 47

Lucero v. State, 246 S.W.3d 86, 94 (Tex. Crim. App. 2008). .........................................44

Mallet v. State, 9 S.W.3d 856, 868 (Tex. App.---Fort Worth 2000, no pet.) ........... 30, 32

Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010) ...................... 30, 32, 42

Potts v. State, No. 14–10–01172–CR, 2012 WL 1380230, at *1 (Tex. App.---Houston
  [14th Dist.] Apr. 19, 2012, no pet.) ............................................................ 40, 42, 47

Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) ........................................44

Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). ........................... 29, 30, 42

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) ............................ 30, 37

Scaggs v. State, 18 S.W.3d 277, 281 (Tex. App.---Austin 2000, pet. ref d).....................44

Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.---Houston [1st Dist.] 2005, pet.
  dism’d) .................................................................................... 33, 35, 37, 40, 41, 47

Smith v. State, 286 S.W.3d 333, 344-45 (Tex. Crim. App. 2009) ......................................
  .............................................................................. 33, 39, 40, 41, 42, 44, 45, 47, 48


                                                                vi
State of Texas ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) ....41

Strickland v. Washington, 466 U.S. 668, 687 (1984) .............................. 30, 31, 32, 33, 42

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)............................... 31, 32

Toupal v. State, 926 S.W.2d 606, 608 (Tex. App.---Texarkana 1996, no pet.) ...............34

Washington v. State, 417 S.W.3d 713, 728 (Tex. App.---Houston [14th Dist.] 2013, pet.
 ref’d).......................................................................................................................39

Wiggins v. Smith, 539 U.S. 510, 534, 536 (2003) ...........................................................32

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ...................... 30, 31, 37

Wong v. Belmontes, 558 U.S. 15, 22-23 (2009) ...............................................................39


STATUTES 

TEX. PENAL CODE §12.33 .........................................................................................41

TEX. PENAL CODE §22.011(f) ....................................................................................41


RULES 

TEX. R. APP. P. 21.7 ...................................................................................................44

TEX. R. APP. P. 21.8(c)...............................................................................................30

TEX. R. EVID. 602............................................................................................... 38, 39

TEX. R. EVID. 801(d) .......................................................................................... 38, 39

TEX. R. EVID. 802 .............................................................................................. 38, 39




                                                              vii
                                   NO. 14-15-00285-CR


                                          IN THE

                                  COURT OF APPEALS

                                         FOR THE

                       FOURTEENTH DISTRICT OF TEXAS

                                   HOUSTON, TEXAS


                             DAVID RUIZ, Appellant
                                     V.
                          THE STATE OF TEXAS, Appellee


                       Appealed from the 212th Judicial District
                         Court of Galveston County, Texas
                                Cause No. 11CR1921



                        BRIEF FOR THE STATE OF TEXAS




TO THE HONORABLE COURT OF APPEALS:

       Now comes Jack Roady, Criminal District Attorney for Galveston County, Texas,

and files this brief for the State of Texas.


 The one-volume Clerk’s Record is referred to in the State’s Brief as “C.R. page”. The Reporter’s
 Record is multiple volumes and is referred to as “R.R. volume number: page”.
                        SUMMARY OF THE ARGUMENT

      David Ruiz pled guilty to sexual abuse of a child and was placed on 6 years

deferred community supervision. In just over one year, the State moved to adjudicate

Ruiz’s guilt and revoke his community supervision. After hearing evidence that Ruiz

essentially did nothing on probation, the trial court found 12 probation violations true,

adjudicated Ruiz’s guilt, and sentenced him in 20 years confinement. Ruiz raises 2 issues

on appeal.

      In his first issue, Ruiz claims his trial counsel was ineffective for failing to

investigate his case and present mitigation evidence. Ruiz claims counsel should’ve

spoken to his mother and sister. He claims the women were available to testify and

would’ve told the court that Ruiz was sexually abused by his step-father and had a head

injury. In his second issue, Ruiz claims the trial court abused its discretion by not

granting a hearing on his motion for new trial.

      First, trial counsel did show the court that Ruiz had a head injury and was sexually

abused by his step-father. His family’s information was cumulative. Applicable to both

his first and second issue, the same trial judge that set Ruiz’s punishment also received

the motion for new trial and the accompanying affidavits. By allowing the motion to be

overruled by operation of law without a hearing, the court found the affidavits would

not have impacted its punishment choice. Consequently, Ruiz’s first and second issues

should be overruled.



                                            2
                               STATEMENT OF FACTS

          Ruiz pled guilty and in exchange for 6 years deferred community supervision for

sexually assaulting his 8 year old sister over an extended period of time.1 Within 13

months of his plea, he began violating his probation.2 The probation department filed a

motion to adjudicate.3 Over the next two years, they amended it four times, each time

alleging more violations.4

          At the motion to adjudicate hearing, Ruiz pled true to not participating in

community service and failing to comply with the polygraph requirement.5 He told the

trial court that he understood the range of punishment, that he wasn’t forced to plea

true to the two allegations, that he pled true because he violated those conditions, and

that he understood that the trial court would find the two allegations true based on his

pleas.6

          The probation officer testified that the probation department explained the

probation terms to Ruiz.7 She told the trial court that every time Ruiz reported to the

department (which was generally twice a month) he had an opportunity to ask questions



1
  C.R. 8 (indictment); C.R. 20 (judgment and sentence); R.R.II: 39.
2
   C.R. 33 (motion to adjudicate guilt-revoke community supervision-sentence defendant alleging
Ruiz committed failure to register in October 2012).
3
  Id.
4
   C.R. 87 (fourth amended motion adjudicate guilt-revoke community supervision-sentence
defendant).
5
  R.R.II: 10-11.
6
  R.R.II: 12-13.
7
  R.R.II: 18.


                                              3
about his probation.8

        The probation officer also testified Ruiz violated his probation conditions in an

number of additional ways. The probation officer testified:

     Ruiz wasn’t supposed to commit a new crime, but he did by failing to register as a

        sex offender.9

     Ruiz was supposed to register with the Texas City Police Department as a sex

        offender and give notice to law enforcement and the probation department

        before changing his address.10 He didn’t give notice when he moved.11

     Ruiz was supposed to notify the probation department of any changes in address,

        employment, and arrests within 48 hours.12 For more than a week, he didn’t

        report the failure to register charge or that he was transient.13

     Ruiz was supposed to report to the probation officer at least once a month as

        directed by the officer.14 He didn’t report in December 2012, January 2013,

        February 2013, April 2013, November 2013, December 2013, or February 2014.15

     Ruiz was supposed to pay a number of different fees, but he didn’t.16 He only



8
  R.R.II: 18-19.
9
  R.R.II: 19.
10
   R.R.II: 29.
11
   R.R.II: 29.
12
   R.R.II: 20.
13
   R.R.II: 20-21.
14
   R.R.II: 19-20.
15
   R.R.II: 20-21.
16
   R.R.II: 22-23.


                                               4
        paid $260 of the $2,505 he owed as of the revocation hearing.17 The probation

        officer talked to Ruiz several times about being behind in his fees.18 Each time he

        said he had a job and would make a payment.19 Eventually, the probation

        department did a financial study.20 Ruiz had an extra $330 a month he could’ve

        paid towards his fees, but he chose not to.21 Indeed, Ruiz received two lump

        payments of thousands of dollars and promised to make a payment towards his

        fees. But, again, he did not.22

      Ruiz was supposed to attend and participate in psychological counseling for sex

        offenders.23 He didn’t.24 He had sporadic attendance and incurred no-show fees.25

        He stopped going completely after October 2013.26 The counselor even offered

        to lower the no-show fees, but Ruiz still didn’t pay.27

      Ruiz wasn’t supposed to have unmonitored access to the internet.28 The

        probation officer found a Facebook account with Ruiz’s name and image with a

        last post from October.29 Trial counsel objected to the admission of the

17
   R.R.II: 23.
18
   R.R.II: 23.
19
   R.R.II: 23.
20
   R.R.II: 25.
21
   R.R.II: 25.
22
   R.R.II: 25-26.
23
   R.R.II: 26.
24
   R.R.II: 28.
25
   R.R.II: 28.
26
   R.R.II: 28.
27
   R.R.II: 28-29.
28
   R.R.II: 30.
29
   R.R.II: 30-31.


                                              5
        Facebook post as hearsay and as improperly authenticated.30 The trial court

        sustained the objections.31

      Ruiz wasn’t supposed to engage in any kind of electronic communication with

        anyone under 18.32 He violated this by having a conversation with a female whose

        Facebook identified her as underage.33 Trial counsel objected again.34 The trial

        court sustained the objection.35

      Ruiz was supposed to identify any equipment that had access to the internet.36 He

        violated this term by making Facebook posts from a mobile device.37

        The probation officer testified she was aware of the basics of Ruiz’s underlying

case because she has to have access to his threat level, must use the information to

determine the level of supervision to provide him, and may need it to discuss facts with

the polygraphers and therapist.38 She said the offense report is also a part of the

probation file.39 The probation officer told the trial court that Ruiz was on probation for

sexually assaulting his sister over an extended period of time.40 She said they had actual



30
   R.R.II: 33.
31
   R.R.II: 36.
32
   R.R.II: 36.
33
   R.R.II: 37.
34
   R.R.II: 37.
35
   R.R.II: 37.
36
   R.R.II: 37.
37
   R.R.II: 37.
38
   R.R.II: 38.
39
   R.R.II: 38.
40
   R.R.II: 38.


                                            6
intercourse.41 The girl was 8 years old.42 She testified Ruiz told her he was innocent and

he didn’t feel like he should be on probation for anything.43 The probation officer told

the trial court that she recommended revocation.44

        On cross-examination, the probation officer testified that she was aware Ruiz and

his sister were victims of sexual assault perpetrated by their step-father.45 She testified

she wasn’t Ruiz’s probation officer when he first began probation, and she had no

firsthand knowledge if Ruiz was aware of the probation terms when he first began

probation.46 She testified she didn’t have any knowledge of Ruiz falling from a building

and cracking his skull.47 She told the court she first learned about the injury from the

defense attorney.48 She testified Ruiz told her that he had $110 of $120 to pay the sex

offender therapist and that he was going to borrow $10 from his mother so that he

could begin counseling.49 She said Ruiz told her when they first met that he suffers from

anxiety, but no longer needed medication.50 He didn’t tell her about any other mental or

physical conditions.51 She said it would surprise her to learn Ruiz took 5 medications




41
   R.R.II: 39.
42
   R.R.II: 39.
43
   R.R.II: 47.
44
   R.R.II: 39.
45
   R.R.II: 39.
46
   R.R.II: 39-40.
47
   R.R.II: 44.
48
   R.R.II: 48-49.
49
   R.R.II: 45.
50
   R.R.II: 45.
51
   R.R.II: 45.


                                            7
daily.52 She told the court the defense attorney first informed her that Ruiz was having

mental issues in the jail.53

        The Galveston County Sheriff’s sex offender registration compliance officer

explained that a person has 7 days to register with her office.54 She testified the

probation department did the initial sex offender registration forms with Ruiz and she

did additional forms with him, took his prints, and submitted his DNA to DPS.55 The

trial court admitted a certified copy of the sex offender registration form Ruiz did with

the compliance officer.56 The compliance officer testified the form documents her first

interaction with Ruiz.57

        The form shows Ruiz has a lifetime duty to register as a sex offender.58 He’s

supposed to register annually, 30 days before or after his birthday.59 The sex offender

compliance officer testified Ruiz was assigned a medium risk level.60 She told the court

this meant there’s a 50/50 chance he’d offend again.61

        The officer testified the form gives the registration requirements Ruiz must abide

by.62 She testified she went through each requirement with Ruiz and Ruiz initialed each,

52
   R.R.II: 46.
53
   R.R.II: 48-49.
54
   R.R.II: 51.
55
   R.R.II: 52.
56
   R.R.II: 53-54; State’s Exhibit 2.
57
   R.R.II: 53-54.
58
   R.R.II: 54; State’s Exhibit 2.
59
   R.R.II: 54; State’s Exhibit 2.
60
   R.R.II: 54; State’s Exhibit 2.
61
   R.R.II: 55; State’s Exhibit 2.
62
   R.R.II: 55; State’s Exhibit 2.


                                             8
saying he understood the registration requirements.63 Ruiz initialed that he understood

he was required to register with the municipality or the county where he’s going to live

for more than 7 days.64 He initialed that he must verify his registration by appearing

every year on his birthday.65 He initialed that he must give 7 days’ notice to the

probation department and the sheriff’s office before he changes his address.66 The

officer testified Ruiz initialed that he was required to notify the compliance officer if he

was transient.67 The compliance officer testified Ruiz was required to notify the sheriff’s

office and the probation department if he stays more than 48 hours at another address

three times in a month.68 The compliance officer testified Ruiz was notified of the

criminal penalties if he didn’t abide by the requirements.69 Ruiz told the compliance

officer he was living at an address in Hitchcock.70

       The compliance officer testified she underlined key words in the form to help

make sure Ruiz understood the requirements.71 Ruiz signed the registration compliance

form.72 The officer gave Ruiz a copy of the form he initialed.73 The officer testified she




63
   RR.II: 55; State’s Exhibit 2.
64
   R.R.II: 55; State’s Exhibit 2.
65
   R.R.II: 56; State’s Exhibit 2.
66
   R.R.II: 56-57; State’s Exhibit 2.
67
   R.R.II: 57; State’s Exhibit 2.
68
   R.R.II: 57; State’s Exhibit 2.
69
   R.R.II: 57-58; State’s Exhibit 2.
70
   R.R.II: 55; State’s Exhibit 2.
71
   R.R.II: 57; State’s Exhibit 2 shows the underlined words.
72
   R.R.II: 58; State’s Exhibit 2.
73
   R.R.II: 56.


                                                  9
believed Ruiz understood her instructions.74

        The compliance officer also testified that in May, she tried to contact Ruiz at the

address he provided to make sure he was living there.75 Ruiz wasn’t there, so the officer

left a hanger on the gate with a message to call her within 24 hours.76 The officer

testified the people who lived at the address called her.77 They asked why she left a

hanger because there were no sex offenders living at the address.78 The officer informed

them that Ruiz is a sex offender.79 The residents said Ruiz couldn’t live with them

anymore.80 The officer called Ruiz.81 Ruiz told her he’d work it out and that he’d be

staying at the same address.82

        In August, the officer went to the address again.83 Nobody was home.84 She left

another notice.85

        In October, the compliance officer received an email from the probation officer

to update Ruiz’s registration because he got a new job.86 The compliance officer called

the probation officer and told her that Ruiz’s sex offender requirements require Ruiz to


74
   R.R.II: 58.
75
   R.R.II: 58-59.
76
   R.R.II: 59.
77
   R.R.II: 59.
78
   R.R.II: 59.
79
   R.R.II: 59.
80
   R.R.II: 59-60.
81
   R.R.II: 60.
82
   R.R.II: 60.
83
   R.R.II: 60.
84
   R.R.II: 60.
85
   R.R.II: 60.
86
   R.R.II: 61.


                                            10
make the notification.87

        The sex offender registration compliance officer testified she planned to go out

on Halloween for compliance checks.88 She went to Ruiz’s registered address.89 A

person living at the house said Ruiz had not been living there.90 The officer called Ruiz

on speaker phone.91 Ruiz admitted to the officer that he was not living there.92 The

compliance officer took a written statement from the resident.93 Over trial counsel’s

objection, the court admitted the statement.94 The resident stated Ruiz hadn’t lived at the

address since May.95

        The compliance officer told the court that Ruiz did not contact the sheriff’s office

in June, July, August, September, or October to register.96 The officer testified that when

she talked to Ruiz on Halloween, he asked her for another chance to register.97 She told

him no.98 The officer testified Ruiz was supposed to give her notice 7 days before

moving and he didn’t.99 The officer testified Ruiz failed to give notice of his change in




87
   R.R.II: 61.
88
   R.R.II: 61.
89
   R.R.II: 61.
90
   R.R.II: 61-62.
91
   R.R.II: 62.
92
   R.R.II: 62.
93
   R.R.II: 62-63; State’s Exhibit 3.
94
   R.R.II: 64.
95
   R.R.II: 64; State’s Exhibit 3.
96
   R.R.II: 65.
97
   R.R.II: 66.
98
   R.R.II: 66.
99
   R.R.II: 66.


                                             11
employment.100

        On cross-examination, the compliance officer testified she didn’t know if Ruiz

saw her message hangers in May or in August.101 The officer testified she didn’t know if

the probation department told Ruiz he had to notify the sheriff’s office of a change in

employment (although that’s a requirement in the sex offender form that Ruiz initialed,

signed, and had a copy of).102 The officer testified she did have paperwork that Ruiz

reported to a Texas City Police sex offender compliance officer.103 She agreed that it was

possible that in October, Ruiz was living in Texas City.104 The officer testified that Ruiz

was required to give the sheriff’s office 7 days’ notice if he moved to Texas City.105

        On re-direct, the compliance officer testified she filed against Ruiz for his failure

to give 7 days’ notice before moving.106 She told the court that she was confident Ruiz

understood the 7 day requirement.107

        On re-cross, the officer testified that she had no firsthand knowledge of Ruiz’s

mental or physical incapacities.108 The officer repeated that she underlined the

requirements that are usually violated to make sure Ruiz understood.109 She repeated that


100
    R.R.II: 67.
101
    R.R.II: 67-68.
102
    R.R.II: 69; State’s Exhibit 2.
103
    R.R.II: 69-70.
104
    R.R.II: 70.
105
    R.R.II: 71.
106
    R.R.II: 71.
107
    R.R.II: 72
108
    R.R.II: 72.
109
    R.R.II: 73.


                                             12
Ruiz understood.110

        Ruiz also testified.111 He said he understood why they were in court.112 He said he

believed he was living with his grandmother in Texas City on Halloween.113 He claimed

he told his probation officer and the Texas City police compliance officer where he was

living.114 He claimed he contacted the Texas City officer within 7 days of moving

there.115 He said the probation officer and the Texas City compliance officer went to his

grandmother’s house.116 He told the court that he believed the probation officer and the

Texas City officer would contact the sheriff’s office.117 He said his grandmother let him

live there.118 She was having a hard time because his grandfather died.119 He said she had

no other family around her, but him.120 He told the court that he believed he was in

compliance with his registration requirements.121

        Despite the probation officer’s testimony, Ruiz told the court that he did report

to the probation officer in December 2012, January 2013, February 2013, March 2013,

April 2013, November 2013, December 2013, and February 2014.122


110
    R.R.II: 73.
111
    R.R.II: 74.
112
    R.R.II: 74.
113
    R.R.II: 75.
114
    R.R.II: 75.
115
    R.R.II: 78.
116
    R.R.II: 75.
117
    R.R.II: 78.
118
    R.R.II: 75.
119
    R.R.II: 76.
120
    R.R.II: 76.
121
    R.R.II: 76.
122
    R.R.II: 77.


                                            13
        Ruiz claimed he was never told a specific amount of money he was supposed to

pay the probation department each month.123 He said he paid something, but getting a

job was hard.124 He said he had several jobs, but when they ran his background, they’d

let him go.125 He said he had to pay for the house, food, and clothes.126 He claimed he

always kept some money aside to pay probation.127 He said it was a big issue not to be

able to keep a job.128

        Ruiz testified that he did see his sex offender therapist.129 He admitted he couldn’t

say when he stopped seeing the therapist.130 But said he stopped seeing him because he

was going to have to start paying fees.131 Ruiz, despite the probation officer’s testimony

to the contrary, said that the therapist wasn’t going to allow him to make payments.132

He said he didn’t have $120 upfront.133

        Ruiz told the court that he was available to the prosecution.134 He said the

prosecution called him to testify against his step-father.135 The State objected to




123
    R.R.II: 77.
124
    R.R.II: 77.
125
    R.R.II: 77.
126
    R.R.II: 78.
127
    R.R.II: 78.
128
    R.R.II: 83-84.
129
    R.R.II: 82-83.
130
    R.R.II: 83.
131
    R.R.II: 83.
132
    R.R.II: 83.
133
    R.R.II: 83.
134
    R.R.II: 78.
135
    R.R.II: 79.


                                             14
relevance.136 The trial court sustained the objection.137

        Ruiz explained that before this, he was living with his mother.138 He told the court

he wasn’t allowed to live there anymore because of the probation conditions.139 He said

his mother was supportive and active in his life.140 He said his mother was outside the

courtroom.141 He also said he believed he had family support.142

        Ruiz told the court that he’s gone over the probation conditions ten times with

trial counsel and now he better understands them.143 He explained he may understand

the terms better now that he’s on medication.144 He said he takes Risperdal for

depression, Paxil for anxiety, Hydrozyine for blood, Dillantin for seizures, and

Effexor.145

        Ruiz said he wasn’t in a car accident.146 He told the court, “I fell off . . . 16 foot

balcony and cracked my skull.”147 He said it was “kind of traumatic” for him.148 He told

the court, “after that, I just – that’s when, I guess, it kind of went downhill for me after




136
    R.R.II: 79.
137
    R.R.II: 79.
138
    R.R.II: 80.
139
    R.R.II: 80.
140
    R.R.II: 80.
141
    R.R.II: 80-81.
142
    R.R.II: 81.
143
    R.R.II: 81.
144
    R.R.II: 81.
145
    R.R.II: 81-82.
146
    R.R.II: 82.
147
    R.R.II: 82.
148
    R.R.II: 82.


                                              15
that.”149 He told the court the in injury caused seizures.150

        Ruiz asked the court for another chance.151 He said he can do it and that he’s not

giving up.152 He told the court he’s not a bad person.153 He asked the court to let him

stay on probation.154 He told the court that his cousin had a job lined up for him when

he got out.155 He said he had a house to go to as well.156

        On cross-examination, Ruiz said his accident happened a few years back.157 He

said he couldn’t remember how it happened, though he remembered falling and being in

the hospital for a while.158 He repeated that the injury affected his ability to do

probation.159 He claimed he understood his probation since being incarcerated because

he went to the law library and asked different officers to explain it to him.160

        Ruiz claimed he didn’t understand that he committed another offense until he

went to the law library.161

        Ruiz said he thought he’d be alright if he paid off all his fees before the end of his




149
    R.R.II: 82.
150
    R.R.II: 82.
151
    R.R.II: 78.
152
    R.R.II: 78.
153
    R.R.II: 78.
154
    R.R.II: 78-79.
155
    R.R.II: 80.
156
    R.R.II: 80.
157
    R.R.II: 85.
158
    R.R.II: 85.
159
    R.R.II: 86.
160
    R.R.II: 86, 89.
161
    R.R.II: 88.


                                              16
probation.162 He told the court he didn’t know not paying would be a violation or that

paying a little amount would be a violation.163 He said he didn’t know paying $260 out of

$4,800 over 4 years was a violation.164 When asked where the $360 extra a month the

probation department’s financial study found, Ruiz said “to a little bit of everything.”165

When asked where the $4,000 he received on his 21st birthday went, Ruiz said he had to

pay the person he was living with.166 He admitted he paid nothing towards his probation

fees.167 He claimed when he got the money, he was still going to the sex offender

therapist and he spent it all before quitting therapy.168

        Ruiz admitted he wasn’t discharged from the sex offender course.169 He repeated

he stopped going because he was supposed to start paying.170 Then he agreed that the

payments were no-show fees.171 Ruiz, contrary to the probation officer’s testimony, said

he didn’t tell the officer he had $110 of the $120 for the therapy no-show fees.172

        Ruiz repeated he had family support.173 He said that he didn’t always have their

support, but they’re standing by him now.174


162
    R.R.II: 87.
163
    R.R.II: 90.
164
    R.R.II: 90.
165
    R.R.II: 92.
166
    R.R.II: 92.
167
    R.R.II: 92.
168
    R.R.II: 93.
169
    R.R.II: 84.
170
    R.R.II: 94-95.
171
    R.R.II: 95.
172
    R.R.II: 95.
173
    R.R.II: 93-94.
174
    R.R.II: 93-94.


                                              17
        Ruiz told the court he wouldn’t say he did nothing for 4 years of probation.175

        Ruiz admitted that he’s “been together” with his girlfriend since “I was 18, 18

½.”176 He said they’ve been together “almost” 5 years.177 He told the court he was

positive they’re the same age and that she’s not 19.178 He said it would be inaccurate if

his girlfriend’s Facebook said that she just turned 19.179 The State pointed out that if his

girlfriend was 19 now and they’d been together 5 years, the girl would’ve been 14 when

they got together.180 Ruiz said that’s not his testimony.181

        After showing Ruiz something not in evidence, the State asked Ruiz his

girlfriend’s age.182 Ruiz admitted she’s 19.183 The State asked, “You testified earlier, a

minute ago you had been together 5 years, correct?”184 Ruiz replied, “No, I didn’t say 5

years.”185 The State asked if he said he was 18.186 Ruiz repeated he didn’t say 5 years.187

He claimed, “I said we knew each other since we were 18.”188 The State asked:

                 I believe you did tell me just a few minutes ago that you
                 were with your girlfriend since you were 18 and now you're
                 23. And you just told me your girlfriend’s 19. So that means

175
    R.R.II: 94.
176
    R.R.II: 95.
177
    R.R.II: 96.
178
    R.R.II: 96.
179
    R.R.II: 96.
180
    R.R.II: 96-97.
181
    R.R.II: 97.
182
    R.R.II: 99.
183
    R.R.II: 99.
184
    R.R.II: 99.
185
    R.R.II: 99.
186
    R.R.II: 99.
187
    R.R.II: 99.
188
    R.R.II: 99.


                                              18
                you have been with your girlfriend since she was 14. And
                that also means that you’ve been hanging out with
                someone during your probation period who is younger
                than 18, isn’t that a fact?189

Ruiz replied by saying “No, that’s not a fact.”190

        Ruiz said it would be “astonishing” if there’s a picture of him bowling with

children.191 When asked what his explanation would be for him holding a beer at a bbq,

he said he’d ask if he was on probation when the photo was taken.192

        The State showed Ruiz the sex offender registration requirements he signed,

initialed, and put his fingerprint on.193 Ruiz admitted the initials, fingerprint, and

signature were his.194 Ruiz said that despite his print, initials, and signature, he didn’t

know he was supposed to tell the sheriff’s office he was moving.195

        On re-direct, Ruiz said that he’s got one payment from his settlement left.196 He

claimed it’s enough to cover all the fees left on his probation.197

        After Ruiz testified, the trial court asked if he had any other witnesses.198 Trial

counsel said, “Yes, Your Honor, his mother – if I could step out.”199 The court granted


189
    R.R.II: 99.
190
    R.R.II: 99.
191
    R.R.II: 98.
192
    R.R.II: 98.
193
    R.R.II: 100-01.
194
    R.R.II: 100-01.
195
    R.R.II: 101.
196
    R.R.II: 105.
197
    R.R.II: 105.
198
    R.R.II: 106.
199
    R.R.II: 106.


                                             19
counsel permission.200 Then there was a discussion off the record.201 Counsel said Ruiz’s

mother had to go to work.202

        Trial counsel called Ruiz’s cousin as a character witness.203 The State objected if

he was strictly a character witness.204 The State said if they’re going to have a punishment

phase of the hearing, that the witness might be better suited for that.205 If not, the State

said it would change its objection.206 The court asked the State if it was going to present

a victim impact statement or any evidence during punishment.207 The State said no.208

The court said, “Why don’t we allow him to begin to testify. When you hear a question

that you object to, we’ll take it from there.”209 The State agreed.210

        Ruiz’s trial counsel began questioning Ruiz’s cousin.211 The cousin told the court

he’s assisting Ruiz in finding steady employment.212 He said he’s always known Ruiz to

be a hard worker.213 He told the court that Ruiz always attempted to get employment,

even if it was only temporary.214 He said he’s spoken to his supervisor and was told Ruiz


200
    R.R.II: 106.
201
    R.R.II: 106.
202
    R.R.II: 106.
203
    R.R.II: 106.
204
    R.R.II: 106.
205
    R.R.II: 106.
206
    R.R.II: 106.
207
    R.R.II: 106-07.
208
    R.R.II: 107.
209
    R.R.II: 107.
210
    R.R.II: 107.
211
    R.R.II: 107.
212
    R.R.II: 107.
213
    R.R.II: 109.
214
    R.R.II: 109.


                                              20
had a job as soon as he got out.215 The supervisor knows about Ruiz’s criminal history.216

        Ruiz’s cousin said he’s been close to Ruiz all of his life.217 He said Ruiz has been

trying to get stable housing.218 He said all of their family is behind Ruiz and are trying to

get him on his feet.219 He said they’d follow whatever the trial court puts in place if Ruiz

is allowed to remain on probation.220 He told the court that, in his opinion, Ruiz would

do well if he was allowed back on probation.221

        On cross-examination, Ruiz’s cousin admitted he’s never overseen Ruiz’s

probation.222 He agreed he knew nothing about Ruiz’s probation fees.223 He said he

knew about some of the stipulations---like not being around children, not drinking, and

not having Facebook.224 He agreed it wasn’t his job to follow Ruiz around to make sure

he kept up with his probation.225

        After asking if there was any more witnesses, the trial court asked counsel for

closing arguments.226 The State argued Ruiz has done nothing during 4 years of

probation.227 The State noted the court heard excuses and “vague allusions to some kind


215
    R.R.II: 107-08.
216
    R.R.II: 107-08.
217
    R.R.II: 108.
218
    R.R.II: 108.
219
    R.R.II: 108.
220
    R.R.II: 108.
221
    R.R.II: 110.
222
    R.R.II: 110.
223
    R.R.II: 110-11.
224
    R.R.II: 110-11.
225
    R.R.II: 111.
226
    R.R.II: 111.
227
    R.R.II: 112.


                                             21
of head injury,” but heard nothing to justify a complete lack of effort on probation.228

The State pointed out that Ruiz changed his story about his girlfriend, her age, and when

they got together.229 The State argued that Ruiz was given a gift of 6 years deferred for

sexual assault of a child, despite pleading guilty to forcefully having sex with his 8 year

old sister.230 The State’s attorney told the court he wasn’t the prosecutor at the time of

the plea, but there was a reason Ruiz was given a chance.231 The State argued since Ruiz

received his chance, he had a $6,500 windfall, but paid $260 out of $5,000 to

probation.232 He stopped therapy.233 He didn’t do any community service.234 And he

didn’t take his polygraph.235 The State argued this is not a typical second degree felony.236

The State argued Ruiz was given a gift that he threw in the trash by making no effort.237

The State concluded by arguing this is a max type offense.238 The State told the court it

was asking for the max.239

        Ruiz’s trial counsel began by telling the trial court, “I beg to differ that being

forced by your step-father to have sex with your younger sister, I beg to differ that that’s



228
    R.R.II: 112.
229
    R.R.II: 113.
230
    R.R.II: 113.
231
    R.R.II: 113.
232
    R.R.II: 113-14.
233
    R.R.II: 114.
234
    R.R.II: 114.
235
    R.R.II: 114.
236
    R.R.II: 114.
237
    R.R.II: 114.
238
    R.R.II: 114-15.
239
    R.R.II: 115.


                                             22
a gift for anybody.”240 Counsel reminded the court that Ruiz was also sexually abused

and was a child when these heinous acts first started.241 Counsel agreed that she, like the

current prosecutor, was not the lawyer that put Ruiz on probation.242 She argued:

                I do not have the underlying facts of this probation, besides
                what was given to me in the motion to revoke and in the
                underlying file. I don't know why he pled to what he pled,
                but the reality is that he did. But he is not -- he is not the
                heinous person that the prosecution is attempting to make
                him out to be. He is a victim, in fact, too. In fact, he
                testified in this very court on -- against his step-father, who
                still charged at him while he was on the stand. He is not a
                heinous criminal.243

She noted Ruiz suffers from some physical and mental incapacities and is on 5

medications.244 She argued Ruiz did his best, even though he couldn’t live with his

mother and didn’t have a college degree.245 She argued it was hard for Ruiz to get a job,

but he did his best to find work.246 Trial counsel asked the court to give Ruiz an

opportunity to redeem himself.247 She claimed Ruiz understood the terms now and was

willing to stay on probation.248

        After a discussion off the record, the trial court found there was sufficient



240
    R.R.II: 115.
241
    R.R.II: 115.
242
    R.R.II: 115.
243
    R.R.II: 115-16.
244
    R.R.II: 116.
245
    R.R.II: 116.
246
    R.R.II: 116-17.
247
    R.R.II: 118.
248
    R.R.II: 118.


                                              23
evidence to support the allegations in the State’s motion to adjudicate guilt.249 The court

found Ruiz violated his probation in 12 ways.250 Specifically, the trial court found:

               1. On or about the 31st day of October, 2012, in Galveston
                  County, Texas, said Defendant, David Ruiz, did then and
                  there, while being a person required to register with the
                  local law enforcement authority in the municipality and/ or
                  county where the defendant resided or intended to reside
                  for more than seven days, to-wit: Galveston County,
                  because of a reportable conviction for sexual assault of a
                  child on the 8th day of September, 2011 in cause number
                  11CR1921, in the 212th District Court of Galveston
                  County, Texas intentionally and knowingly, fail to report
                  the anticipated move date and new address to the
                  Galveston County Sheriff’s Office, the local law
                  enforcement authority designated as the said defendant s
                  primary registration authority, not later than the 7th day
                  before the intended change; and

               2. Said Defendant did fail to report to his adult Community
                  Supervision Officer as ordered for the month(s) of
                  December, 2012 and January, February, March, April,
                  November, and December 2013, and February 6, 2014; and

               3. Said Defendant did fail to report within forty-eight hours
                  to his Community Supervision Officer of any change of
                  address; and

               4. Said Defendant did fail to pay Supervision fees as ordered,
                  and is currently $1,275.00 in arrears;

               5. Said Defendant did fail to pay Cost of Court to the
                  G.C.C.S.C.D as ordered, and is currently $350.00 in arrears;




249
      R.R.II: 119.
250
      R.R.II: 119.


                                               24
          6. Said Defendant did fail to reimburse Galveston County for
             compensation of appointed counsel as ordered, and is
             currently $350.00 in arrears;

          7. Said Defendant did fail to pay Crime Stoppers Program
             payment as ordered, and is currently $25.00 in arrears;

          8. Said Defendant did fail to pay the Sexual Assault Program
             Fund fee as ordered and is currently$ 175.00 in arrears; and

          9. Said Defendant failed to participate in Community Service
             work as approved by the Court at a rate of no less than
             sixteen (16) hours per month until completed; and

          10. Said Defendant has failed to attend counseling sessions for
              sex offenders; and

          11. Said defendant failed to report to Texas City Police
              Department within (7) days for sex offender registration as
              ordered; and

              On February 27, 2014, said defendant, David Ruiz, was
              arrested for Sex Offenders Failure to Comply by Galveston
              Police Department; and

          12. Said Defendant has failed to comply with polygraph
              requirements.251

       After adjudicating Ruiz’s guilt, the trial court asked if either side had any motions,

requests, or anything additional to present for punishment.252 The State replied that if

this is the punishment phase, it would move to interject all the evidence presented

during the hearing to be considered and then asked the court to sentence Ruiz to 20


251
     R.R.II: 119; C.R. 91-92 (fourth amended motion to adjudicate, alleging Ruiz’s probation
violations).
252
    R.R.II: 119.


                                             25
years.253 Ruiz asked to remain on probation and if not deferred, receive straight

probation.254 The trial court found Ruiz guilty of sexual assault of a child and sentenced

him to 20 years confinement.255

        Ruiz filed a motion for new trial, arguing that his trial counsel was ineffective for

not investigating and presenting mitigating evidence.256 He argued (as he does on appeal)

that his mother and his sister (a sister he wasn’t convicted of sexually assaulting) were

available to testify.257 He attached affidavits from both.258 Ruiz’s mother and sister

claimed they would’ve testified and were available if counsel had contacted them and

informed them they could testify.259 Ruiz’s mother said she was at the adjudication

hearing and would’ve asked to testify if she knew she could.260 She did not explain where

she was when trial counsel tried to call her to testify and looked for her in the

courthouse. Both women said his step-father sexually assaulted Ruiz.261 Both women

claimed Ruiz was forced by his step-father to have sex with his sister.262 Ruiz’s mother

said his innocence was stolen.263 Both said Ruiz fell, fractured skull, and had seizures.264

Ruiz’s sister said he has trouble understanding instructions and has to hear them
253
    R.R.II: 119-20.
254
    R.R.II: 120.
255
    R.R.II: 120.
256
    C.R. 154-60.
257
    C.R. 155-58.
258
    C.R. 162-66.
259
    C.R. 162, 165.
260
    C.R. 162.
261
    C.R. 162-63, 165.
262
    C.R. 163, 165.
263
    C.R. 163.
264
    C.R. 162, 165.


                                             26
multiple times.265 Ruiz’s mother claimed he was depressed, told her he had nothing left,

and that he mentioned suicide.266

       Ruiz presented the motion with the affidavits to the trial court.267 The trial judge

signed Ruiz’s certification of presentment.268 The court scheduled hearing on the

motion,269 but then denied the hearing.270 The trial court allowed the motion to be

overruled by operation of law.271 This appeal followed.




265
    C.R. 165.
266
    C.R. 163.
267
    C.R. 175.
268
    C.R. 175.
269
    C.R. 182-84.
270
    C.R. 196.
271
    TEX. R. APP. P. 21.8(c) (providing motion for new trial is deemed denied absent timely ruling by
written order).


                                                27
                                     FIRST ISSUE

       Counsel showed the State’s witnesses knew Ruiz was an abuse
       victim. She also showed they were unaware of Ruiz’s head injury.
       Counsel presented evidence, through Ruiz, that he was sexually
       abused and suffered a head injury that may’ve impacted his ability
       to do probation.

       How was counsel deficient when she presented mitigating
       evidence?

       How was Ruiz prejudiced when the same judge set his punishment
       and would’ve known if cumulative mitigating evidence would’ve
       changed its sentence?



                        ARGUMENT AND AUTHORITIES

       In his first issue, Ruiz argues the trial court abused its discretion by denying his

motion for new trial because he claims he established his trial counsel was ineffective for

not investigating and presenting mitigating evidence during the revocation hearing. He

contends his mother and his sister (one of the sisters he wasn’t convicted of sexually

assaulting) were available and willing to testify. According to their affidavits, they

would’ve testified Ruiz fell from a balcony and was a sexual abuse victim. He argues that

their live testimony would’ve led the trial court to give him a lesser punishment.

       Even if this Court and the trial court were to assume Ruiz’s sister’s and mother’s

affidavits were credible, Ruiz hasn’t shown counsel was deficient or that he was

prejudiced. He also hasn’t shown he would’ve received a lesser sentence. The trial court



                                            28
set his punishment. The trial court heard the testimony of Ruiz’s probation officer and

the sex offender registration compliance officer. The trial court heard that Ruiz did very

little to comply with his probation. The trial court found he violated 12 conditions of his

probation---including failing to complete his sex offender therapy and failing to register

as a sex offender.272 Only the trial court, as Ruiz’s punisher, would know if the affidavits

would impact its sentence. The affidavits were before the trial court when it allowed

Ruiz’s motion for new trial to be overruled by operation of law. Clearly the court did not

find the affidavits compelling.

        The trial court didn’t abuse its discretion by denying Ruiz’s motion. Ruiz is not

entitled to new punishment hearing.

I.      Motion For New Trial Standard Of Review

        The appellate court reviews a trial court’s denial of a motion for new trial for an

abuse of discretion, reversing only if the trial court’s opinion was clearly erroneous and

arbitrary.273 “A trial court abuses its discretion if no reasonable view of the record could

support the trial court’s ruling.”274 This deferential review requires the appellate court to

view the evidence in the light most favorable to the trial court’s ruling.275 The reviewing

court may not substitute its own judgment for that of the trial court and must uphold



272
    R.R.II: 119; C.R. 123 (judgment adjudicating guilt).
273
    Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012).
274
    Id.
275
    Id.


                                                   29
the trial court’s ruling if it’s within the zone of reasonable disagreement.276 “This same

deferential review must be given to a trial court’s determination of historical facts when

it is based solely on affidavits, regardless of whether the affidavits are controverted.”277

“Where there are two permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.”278 The same standard of review applies regardless of

whether the motion for new trial is denied by an express ruling or overruled by

operation of law.279

II.     Ineffective Assistance Of Counsel Relevant Law

        To establish ineffective assistance of counsel, the appellant must demonstrate,

by a preponderance of the evidence, that (1) his counsel’s performance was deficient,

and (2) there is a reasonable probability that the result of the proceeding would have

been different but for his counsel’s deficient performance.280 An appellant’s failure to

make either of the required showings defeats the claim of ineffective assistance.281

        Strickland’s first prong requires the appellant to show that his counsel’s



276
    Id.
277
    Id.
278
    Id.
279
    See TEX. R. APP. P. 21.8(c); Mallet v. State, 9 S.W.3d 856, 868 (Tex. App.---Fort Worth 2000, no
pet.) (“A trial court’s decision to deny a motion for new trial or allow it to be overruled by operation
of law is also reviewed on an abuse of discretion standard.”).
280
    Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex.
Crim. App. 2010); Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008).
281
    Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d
675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the Strickland test
negates a court’s need to consider the other prong.”).


                                                   30
performance fell below an objective standard of reasonableness.282 Strickland’s second

prong requires the appellant to demonstrate prejudice—“a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.”283

       The appellate court looks to the totality of the representation and the particular

circumstances of each case, not to isolated errors.284 The reviewing court considers the

adequacy of assistance as viewed at the time of trial, not through hindsight.285 The fact

that Ruiz’s appellate attorney might have pursued a different course does not support a

finding of ineffectiveness.286 The issue is whether counsel’s assistance was reasonable

under all the circumstances and prevailing professional norms at the time of the alleged

error.287

       The reviewing court indulges a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance, and, therefore, the appellant

must overcome the presumption that the challenged action constituted “sound trial

strategy.”288 The appellate review is highly deferential to counsel, and the appellate court



282
    Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999).
283
    Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.
284
    Robertson, 187 S.W.3d at 483-84 Thompson, 9 S.W.3d at 813.
285
    Robertson, 187 S.W.3d at 482.
286
    Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992); Gholson v. State, 5 S.W.3d 266, 273
(Tex. App.---Houston [14th Dist.] 1999, pet. ref’d).
287
    See Strickland, 466 U.S. at 688-89.
288
    Strickland, 466 U.S. at 689; Williams, 301 S.W.3d at 687.


                                                31
does not speculate regarding counsel’s trial strategy.289 To prevail on an ineffective

assistance claim, the appellant must provide an appellate record that affirmatively

demonstrates that counsel’s performance was not based on sound strategy.290

        Trial counsel is required to seek out and interview potential witnesses as a part of

his investigation of the facts of the case.291 However, the failure to call witnesses is

irrelevant absent a showing that the witnesses were available and their testimony would

have changed the result of the proceeding.292 In evaluating the effect of potential

punishment-phase witnesses, the reviewing court compares the evidence presented by

the State with the evidence that the factfinder did not hear due to counsel’s failure to

investigate.293

        When the ineffective assistance of counsel claim is focused on the appellant’s

punishment, the appellate court’s prejudice inquiry is whether there’s a reasonable

probability that the assessment of punishment would’ve been less severe in the

absence of defense counsel’s deficient performance.294 A reasonable probability is a

probability sufficient to undermine confidence in the outcome.295 It’s not enough for

the appellant to show “that the errors had some conceivable effect on the outcome of

289
    See Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002).
290
    Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001); see Thompson, 9 S.W.3d at 813 (holding
that record must affirmatively demonstrate alleged ineffectiveness).
291
    Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
292
    See Perez, 310 S.W.3d at 894.
293
    See id. at 896.
294
    See Wiggins v. Smith, 539 U.S. 510, 534, 536 (2003); Lair v. State, 265 S.W.3d 580, 595 (Tex. App.---
Houston [1st Dist.] 2008, pet. ref’d).
295
    Strickland, 466 U.S. at 694.


                                                   32
the proceeding.”296 “The likelihood of a different result must be substantial, not just

conceivable.”297 When defense counsel presents “no evidence of mitigating factors . . .

to balance against the aggravating factors presented by the State” and fails to do so

because he did not investigate mitigating factors or contact potential mitigation

witnesses, there’s prejudice.298 There’s prejudice because there’s no possibility that the

factfinder considering mitigating evidence.299

       Notably, when the trial judge presiding over a motion for new trial also

presided over the trial itself, the reviewing court presumes that the judge knew how

the evidence included with the motion for new trial would have affected his ruling on

punishment.300

III. Trial Counsel Was Not Deficient

       This is not a case where trial counsel conceded she did nothing to investigate or

present mitigating evidence. Instead, this is a case where there’s conflicting evidence




296
    Id. at 693.
297
    Harrington v. Richter, 562 U.S. 86, 112 (2011).
298
     Lopez v. State, 462 S.W.3d 180, 188 (Tex. App.---Houston [1st Dist. 2015, no pet.) (quoting
Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.---Houston [1st Dist.] 2005, pet. dism’d)).
299
     See id. at 188-89 (quoting Shanklin, 190 S.W.3d at 165-66 (“We conclude that appellant has
demonstrated prejudice in this case. . . . [D]efense counsel’s failure to interview or call a single
witness, other than appellant, deprived him of the possibility of bringing out even a single mitigating
factor.”)).
300
    See Smith v. State, 286 S.W.3d 333, 344-45 (Tex. Crim. App. 2009); Castaneda v. State, 01-14-00389-
CR, 01-14-00390-CR, 2015 WL 6930466 *9 (Tex. App.---Houston [1st Dist.] Nov. 10, 2015, no pet.
h.) (finding that when a judge sentences a defendant also denies a hearing on a motion for new trial,
reviewing court presumes that the trial judge knew whether additional testimony produced in
affidavits would’ve influenced his normative sentencing judgment).


                                                  33
regarding the extent of trial counsel’s investigation.301 Ruiz’s mother’s and sister’s

affidavits claim trial counsel didn’t contact them and, consequently, didn’t uncover the

mitigating evidence regarding Ruiz’s head injury and sexual abuse history. However, the

evidence during the revocation hearing shows counsel was aware of Ruiz’s history and

presented evidence of both during the hearing.

       The record shows counsel cross-examined the probation officer and the sex

offender compliance officer about their ignorance of Ruiz’s head injury. Counsel

showed the probation officer wasn’t aware that Ruiz was on medication. Counsel also

asked whether the probation officer knew Ruiz was a sexual abuse victim. Counsel

questioned the probation officer and the sex offender registration compliance officer

regarding Ruiz’s understanding of the terms of his probation. Moreover, counsel

presented the head trauma and sexual abuse mitigation evidence through Ruiz. Ruiz

testified he was taking seizure and depression medicine. He told the court his step-father

sexually abused him. He said he had a traumatic fall that left him in the hospital for a

long time and caused seizures. Counsel used the mitigating evidence in closing

argument. She argued Ruiz was a victim, had head trauma, and should receive another
301
    Notably, Ruiz pled true to 2 of the revocation allegations. There’s no allegation the pleas were
unknowing or involuntary. A sister appellate court held that “Where a defendant pleads true to
allegations in a revocation proceeding, ‘failure to conduct a full-fledged independent investigation of
the facts does not necessarily result in counsel rendering constitutionally ineffective assistance.’”
Ansari v. State, 06-14-00220-CR, 2015 WL 7300073, at *2 (Tex. App.---Texarkana Nov. 13, 2015, no.
pet. h. (quoting Eddie v. State, 100 S.W.3d 437, 442 (Tex. App.---Texarkana 2003, pet. ref’d) and
citing Toupal v. State, 926 S.W.2d 606, 608 (Tex. App.---Texarkana 1996, no pet.) (“We do not agree
that the magnitude of independent factual investigation for a contested proceeding is necessary to
protect a defendant’s rights when the defendant knowingly and voluntarily pleads guilty to the
alleged offense.”)).


                                                  34
chance to redeem himself. If counsel had not investigated Ruiz’s case, she wouldn’t have

been able to effectively cross-examine the State’s witnesses and wouldn’t have been able

to elicit mitigating evidence from Ruiz.

       Unlike counsel in Lopez who admitted he was unaware of the defendant’s mental

health history and didn’t participate in collecting mitigating evidence302 or counsel in

Shanklin who admitted he didn’t conduct any punishment investigation,303 here the

evidence shows trial counsel was aware of Ruiz’s head injury and that he was a sexual

abuse victim and presented evidence of both.

       Relying on Frangias v. State,304 Ruiz claims counsel was also deficient for not

requesting a continuance because his mother left the revocation hearing without

testifying.305 According to Ruiz’s mother’s affidavit, had she known she could’ve

testified, she would’ve stayed for the hearing. Frangias is distinguishable. In Frangias, trial

counsel intentionally chose not to seek a continuance when the only witness who could

corroborate the defendant’s version of events and provide him a defense to the crime

was unable to come to court due to medical treatment in a distant city.306 Here, as

discussed more thoroughly below, Ruiz’s mother’s testimony would’ve been, at most,


302
    Lopez, 462 S.W.3d at 186 (trial counsel admitted in affidavit that he was unaware of defendant’s
mental health issues or history).
303
    Shanklin, 190 S.W.3d at 164 (trial counsel admitted in affidavit that he “did not conduct any
meaningful investigation as regards [to] the punishment stage of [appellant’s] case” and that his
failure to interview or call witnesses wasn’t the result of reasoned trial strategy).
304
    See Frangias v. State, 450 S.W.3d 125 (Tex. Crim. App. 2013).
305
    Ruiz’s brief 29.
306
    See Frangias, 450 S.W.3d at 137, 143.


                                                35
additional mitigation evidence. She would’ve testified about Ruiz’s head injury and his

sexual abuse history. Ruiz already testified that he fractured his skull after a fall, had

seizures, and had a hard time on probation because of the injury. Ruiz also testified he

was sexually abused by his step-father. Unlike Frangias, where the defendant was

deprived of evidence that could’ve proven his innocence,307 here there already was

mitigation evidence in front of the court and (as discussed below) the additional

evidence wouldn’t have impacted the trial court’s punishment choice.

       Importantly, there is some evidence in the record that contradicts Ruiz’s mother’s

and sister’s claim that they would’ve been available and would’ve testified on his behalf.

Appellate counsel attempted to have both served for the later canceled motion for new

trial hearing. Neither woman accepted the subpoenas, despite multiple attempts to serve

them and notes left at their homes.308 In fact, the serving officer received a voicemail

from Ruiz’s sister.309 After returning her call and leaving her a voicemail, she texted the

officer and said she was busy.310 The officer went to her home.311 A vehicle was in the

driveway, but nobody answered the door.312

       Ruiz hasn’t established that his trial counsel was deficient. Unlike defense counsel

in Lopez, Shanklin, and Frangias, the record shows Ruiz’s trial counsel was familiar with

307
    See id. at 137.
308
    C.R. 189-91 (return of summons for Ruiz’s mother after 3 attempts to locate); C.R. 193-95 (return
of summons for Ruiz’s sister after 3 attempts to locate).
309
    C.R. 195.
310
    Id.
311
    Id.
312
    Id.


                                                 36
the mitigating evidence and presented it to the trial court. Ruiz failed to prove Strickland’s

first prong. Ruiz also failed to prove Strickland’s second prong.

IV. Ruiz Was Not Prejudiced

       Even if counsel was deficient, Ruiz cannot show he suffered any prejudice.

There’s no evidence the trial court would’ve changed its punishment had it heard Ruiz’s

mother or sister testify to the content in their affidavits. An ineffective assistance of

counsel claim fails if prejudice isn’t proven.313

       Unlike the defendants in Lopez314 and Shanklin315 who were denied the effective

assistance of counsel because their lawyers utterly failed to present any mitigating

evidence, Ruiz’s trial counsel did offer mitigating evidence. While Ruiz attempts to

downplay his testimony, he did testify at the revocation hearing about his fractured skull,

that it affected his ability to do probation, and that he only recently understood the

terms of his probation after discussing the terms repeatedly. He testified he’s on

medication for depression, anxiety, and seizures. He also testified he was sexually abused

by his step-father.

       Additionally, the admissible portions of Ruiz’s mother and sister’s testimonies

would’ve been cumulative of Ruiz’s own testimony. Ruiz’s mother said in her affidavit

313
    See Rylander, 101 S.W.3d at 110; Williams, 301 S.W.3d at 687.
314
    Lopez, 462 S.W.3d at 189-90 (reversing trial court’s denial of motion for new trial because trial
counsel was ineffective during punishment for failing to investigate and present any mitigating
evidence) (emphasis added).
315
    Shanklin, 190 S.W.3d at 164 (holding “Defense counsel’s failure to investigate and call any
punishment witnesses amounts to deficient performance.”) (emphasis added).


                                                 37
that Ruiz fell from an elevated porch and suffered skull fractures. She said it caused

memory loss and that he had a seizure at school. She said Ruiz and her other children

were victims of her ex-husband. She described her “understanding” of the charges

against her ex-husband. Ruiz’s mother did not say she had personal knowledge of the

abuse. Her “understanding” was based on what Ruiz told her. This portion of her

testimony wouldn’t have been admissible at a hearing or during a trial.316 She said Ruiz

lost his innocence and that “I think” he stopped eating and is depressed. She also said

Ruiz told her there’s nothing left for him and that he mentioned suicide.

       What Ruiz told his mother is hearsay and would not be admissible at a hearing.317

Ruiz’s sister said in her affidavit that Ruiz fell and fractured his skull. She said he has a

hard time understanding instructions and is very slow. She said he must be told to do

something over and over and has a bad memory. She said she thinks his hard time on

probation was because of his head injury. She said Ruiz told “told me” he’s had seizures

within the past year. She then said Ruiz “told me” about the sexual abuse he suffered

from their step-father. What Ruiz told his sister is hearsay and wouldn’t be admissible at

a hearing.318


316
    See TEX. R. EVID. 602 (“A witness may testify to a matter only if evidence is introduced sufficient
to support a finding that the witness has personal knowledge of the matter. Evidence to prove
personal knowledge may consist of the witness’s own testimony. This rule does not apply to a
witness’s expert testimony . . . .”); TEX. R. EVID. 802 (stating hearsay is not admissible); TEX. R.
EVID. 801(d) (defining “hearsay” as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”).
317
    See TEX. R. EVID. 602; TEX. R. EVID. 801(d); TEX. R. EVID. 802.
318
    See TEX. R. EVID. 602; TEX. R. EVID. 801(d); TEX. R. EVID. 802.


                                                  38
        To raise the specter of ineffective assistance of counsel, the proffered witness

evidence must be more than cumulative of other evidence.319 His mother’s and sister’s

evidence was cumulative of his own testimony. Ruiz hasn’t shown ineffective assistance

of counsel.

        Furthermore, Ruiz hasn’t shown that the allegedly new evidence substantially

differed from the evidence actually presented to the trial court.320 The trial court already

knew Ruiz fell years before and had head trauma. The court knew Ruiz was on

medication for seizures and depression. The court knew Ruiz was a sexual abuse victim.

Because the trial court was aware of this evidence when it sentenced Ruiz, Ruiz wasn’t

prejudiced by his counsel’s alleged failure to investigate and present the additional

mitigating evidence.321

        Moreover, as in Smith and Goody322 and unlike in Shanklin,323 the trial court here

presided over both the revocation hearing and the motion for new trial. The trial judge

319
    See Holland v. State, 761 S.W.2d 307, 319 (Tex. Crim. App. 1988); Ketchum v. State, 199 S.W.3d 581,
597 (Tex. App.----Corpus Christi 2006, pet. ref’d); see also Wong v. Belmontes, 558 U.S. 15, 22-23 (2009)
(holding that cumulative mitigation evidence is unnecessary); Coble v. Quarterman, 496 F.3d 430, 437
(5th Cir. 2007) (refusing to find Strickland error when counsel presented similar mitigating evidence
at trial, even if only in outline form).
320
    See Washington v. State, 417 S.W.3d 713, 728 (Tex. App.---Houston [14th Dist.] 2013, pet. ref’d)
(quoting Ex parte Martinez, 195 S.W.3d 713, 731 (Tex. Crim. App. 2006) and holding that appellant
didn’t show that the new mitigating evidence “differ[s] in a substantial way –in strength and subject
matter]] from the evidence actually presented at sentencing.”).
321
    See Washington, 417 S.W.3d at 728 (citing Ex parte Martinez, 195 S.W.3d at 731 (“[S]ince the jury
was privy to some of the severe abuse applicant suffered during his childhood, there is not a
reasonable probability that the unadmitted alleged mitigating evidence would have tipped the scale in
applicant’s favor,” despite the omitted mitigating evidence about his abuse being “strong.”)).
322
    See Smith, 286 S.W.3d at 344-45; Goody v. State, 433 S.W.3d 74, 81 (Tex. App.---Houston [1st Dist.]
2014, pet. ref’d).
323
    See Shanklin, 190 S.W.3d at 157 (noting defendant convicted and sentenced by jury).


                                                   39
had the witness affidavits before her when she allowed the motion to be overruled.324 As

evidenced by the trial court’s denial, the judge did not find the affidavits persuasive

enough to alter her punishment decision.325 The reviewing court should defer to the trial

court’s implied factual determination that trial counsel conducted a sufficient

investigation.326 This Court must also presume from the trial court’s denial of Ruiz’s

motion, that the witnesses’ testimony wouldn’t have affected its sentencing decision.327

       Notably, Ruiz asks this Court to abandon Smith in a revocation context.328 Smith

was decided by the Court of Criminal Appeals.329 This Court cannot jettison binding




324
    C.R. 175 (the trial judge, Hon. Patricia Grady, signed Ruiz’s certificate of presentment of his
motion for new trial).
325
    See Smith, 286 S.W.3d at 345 (“[W]e presume that [the trial court] knew . . . what the appellant’s
testimony . . . would be, and that, even assuming any such testimony to be accurate and reliable,
knew that it would not have influenced his” punishment determination); Glenn v. State, 01-13-00640-
CR, 2015 WL 831995, at *4 (Tex. App.—Houston [1st Dist.] Feb. 26, 2015, pet. ref’d) (finding
defendant didn’t prove prejudice when counsel failed to discover and present medical records during
adjudication hearings because same judge heard the motion for new trial); Goody, 433 S.W.3d at 81;
Potts v. State, No. 14–10–01172–CR, 2012 WL 1380230, at *1 (Tex. App.---Houston [14th Dist.] Apr.
19, 2012, no pet.) (holding defendant didn’t establish prejudice where same judge who sentenced
defendant also considered motion for new trial and determined additional testimony would not have
influenced punishment assessment); Arriaga v. State, 335 S.W.3d 331, 336-37 (Tex. App.---Houston
[14th Dist.] 2010, pet. ref’d) (in part holding that “In the absence of a hearing on the appellant’s
motion for new trial, we presume that (1) the trial court knew from the motion for new trial and the
affidavit what Carlos’s testimony at a hearing would be; and (2) even assuming any such testimony to
be accurate and reliable, the trial court knew the facts alleged in the motion would not have
influenced its ‘ultimate normative judgment’ in assessing punishment within the statutory range. . . .
Thus, the trial court could have concluded without the necessity of a hearing that the appellant
suffered no prejudice from any alleged deficiency on appellant’s trial counsel’s part.”).
326
    See Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006).
327
    See Smith, 286 S.W.3d at 344-45; Castaneda, 01-14-00389-CR, 01-14-00390-CR, 2015 WL 6930466
*9; Glenn, 01-13-00640-CR, 2015 WL 831995, at *4; Goody, 433 S.W.3d at 81; Potts, No. 14–10–
01172–CR, 2012 WL 1380230, at *1; Arriaga, 335 S.W.3d at 336-37.
328
    Ruiz brief p. 37-39.
329
    See Smith, 286 S.W.3d at 333.


                                                 40
precedent.330 Additionally, under Ruiz’s request, prejudice would be presumed. A

reviewing court would have to presume the appellant’s punishment would be lesser,

regardless of the fact that only the trial court (who set the sentence) would know what

evidence would’ve impacted its punishment decision. It would mean trial courts that set

a defendant’s punishment couldn’t be trusted to know what would influence their

punishment sentences.

        Lastly, the trial court’s decision to punish Ruiz with the maximum sentence for

sexual assault of a child331 was justified by the evidence. Ruiz pled true to 2 probation

violations. The trial court found he violated 10 more. He didn’t continue participating in

sex offender treatment. He wasn’t reporting to his probation officer. He didn’t do his

community service or his polygraph. He was also seeing an underage girl. And he

committed a new criminal offense by failing to register as a sex offender. Plus, unlike

Shanklin, Ruiz did not express remorse.332 He did not apologize to his sister for sexually

assaulting her.



V.      Conclusion—Ruiz Is Not Entitled To A New Punishment

330
    See Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.---Houston [14th Dist.] 2015, pet. ref’d); see also
State of Texas ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) (“The Court of
Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other
court of this state has authority to overrule or circumvent its decisions, or disobey its mandates.”).
331
    TEX. PENAL CODE §22.011(f) (sexual assault of a child is a 2nd degree felony); TEX. PENAL CODE
§12.33 (2nd degree felonies are punishable from 2 years to 20 years confinement).
332
    Shanklin, 190 S.W.3d at 165-66 (holding appellant proved prejudice when jury heard him
apologize to his victim’s family, but presented no other mitigating evidence).


                                                   41
       Hearing

       It was Ruiz’s burden to establish his trial counsel was deficient and the deficiency

prejudiced him.333 Even if the trial court or this Court were to accept Ruiz’s mother’s

and sister’s affidavits in their entirety,334 Ruiz hasn’t met either Strickland prong. He

hasn’t shown his trial counsel was deficient. He hasn’t shown his punishment would’ve

been less severe. To find otherwise would require this Court to assume the trial court’s

role and substitute its decision for that of the lower court---an action this Court is

forbidden from doing.335

       Ruiz’s first issue should be overruled.




333
    See Strickland, 466 U.S. at 687; Perez, 310 S.W.3d at 892-93; Cannon, 252 S.W.3d at 348-49.
334
    Ruiz argues the trial court should’ve heard his mother’s and sister’s live testimony. He argues the
trial court shouldn’t rely on affidavits because live testimony allows the court to weigh the witness’s
credibility better. Ruiz brief p. 39. This is another attempt to have the reviewing court substitute its
judgment for that of the lower court. The same rebuttal argument applies. The trial court, as the fact
finder who sentenced Ruiz, would know whether the proffered testimony (in whatever form) would
impact its punishment decision. See Smith, 286 S.W.3d at 345; Castaneda, 01-14-00389-CR, 01-14-
00390-CR, 2015 WL 6930466 *9; Glenn, 01-13-00640-CR, 2015 WL 831995, at *4; Goody, 433
S.W.3d at 81; Potts, No. 14–10–01172–CR, 2012 WL 1380230, at *1; Arriaga, 335 S.W.3d at 336-37.
335
    See Riley, 378 S.W.3d at 457.


                                                  42
                                     SECOND ISSUE

       A court must hold a hearing on a motion for new trial if the motion
       raises matters that aren’t determinable from the record and
       establishes reasonable grounds showing that the defendant could be
       entitled to relief.

       What’s the abuse of discretion in denying a new trial hearing when
       the record shows counsel wasn’t deficient and the judge who
       received the motion also set the punishment? The judge knew if the
       affidavits would’ve changed her sentence.



                         ARGUMENT AND AUTHORITIES

       In his second issue, Ruiz argues the trial court abused its discretion by not

granting a hearing on his motion for new trial because he raised matters not

determinable from the record that could entitle him to relief. Ruiz relies on his claim that

he raised and proved ineffective assistance of counsel for failing to investigate and

present his mother’s and sister’s testimonies. He contends he rebutted the presumption

that trial counsel was effective and, consequently, there should’ve been a hearing to

allow counsel to explain her trial strategy.

       The trial court didn’t abuse its discretion because Ruiz wasn’t entitled to a

hearing. Ruiz failed to raise matters that weren’t determinable from the record and he

failed to establish reasonable grounds showing he could potentially be entitled to relief.



I.     Motion For New Trial Hearing Relevant Law

                                               43
        An appellate court reviews the trial court’s decision on whether to hold a hearing

on a defendant’s motion for new trial for abuse of discretion.336 A trial court abuses its

discretion only when its decision lies outside the zone of reasonable disagreement.337 A

trial court “abuses [its] discretion in 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.”338 A trial court may base its motion for new trial ruling on sworn

affidavits without live testimony.339 “[A] hearing is not required when the matters raised

in the motion for new trial are subject to being determined from the record.”340 The trial

judge only abuses her discretion if the defendant meets both criteria.341 In other words, a

defendant is “not entitled to a hearing on his motion for new trial unless he establishes

the existence of reasonable grounds showing that the defendant could be entitled to

relief.”342

        In the context of a motion for new trial based on ineffective assistance of

counsel and ineffective assistance during a punishment proceeding, a defendant is

336
    Lucero v. State, 246 S.W.3d 86, 94 (Tex. Crim. App. 2008).
337
    Smith, 286 S.W.3d at 339.
338
    Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009) (citing Smith, 286 S.W.3d at 338).
339
    See TEX. R. APP. P. 21.7 (“The court may receive evidence by affidavit or otherwise.”); Holden v.
State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); see also Scaggs v. State, 18 S.W.3d 277, 281 (Tex.
App.---Austin 2000, pet. ref d) (“It has long been held that a trial court may decide a motion for new
trial based on sworn pleadings and affidavits admitted in evidence without hearing oral testimony.”).
340
    Smith, 286 S.W.3d at 338 (emphasis omitted) (quoting Reyes v. State, 849 S.W.2d 812, 816 (Tex.
Crim. App. 1993)).
341
    Id.
342
    Id. at 339.


                                                 44
entitled to a hearing on the motion if he alleges sufficient facts from which the trial

court could reasonably conclude that (1) counsel failed to act as a reasonably

competent attorney; and (2) there’s a reasonable likelihood the outcome of the trial

would have been different without counsel’s error.343 When the judge who sentences

the defendant also denies the defendant’s hearing on a motion for new trial, the

appellate court presumes that the trial judge knew whether additional testimony

produced in the affidavits would’ve influenced her normative sentencing judgment.344

Only the trial judge could have known what factors she took into consideration when

she assessed the defendant’s punishment, and only she would know how additional

testimony might’ve impacted her assessment.345 The trial judge may conclude, without

conducting a hearing, that the appellant suffered no prejudice from any deficiency of

the trial counsel with respect to the punishment.346

II.     The Trial Court Did Not Abuse Its Discretion By Denying A

        Hearing On Ruiz’s Motion For New Trial

        Here, the trial judge that revoked Ruiz’s deferred community supervision and

sentenced Ruiz, also signed Ruiz’s certification of presentment of motion for new trial.

The motion included Ruiz’s mother’s and sister’s affidavits. The same judge set a hearing

on the motion and then denied the hearing. The same judge allowed the motion to be

343
    Id. at 340-41.
344
    Id. at 344-45.
345
    Id. at 344.
346
    Id. at 345.


                                           45
overruled by operation of law. The judge already had the opportunity to evaluate Ruiz

and his trial counsel during the revocation hearing. The judge was familiar with the facts

of the case. And the judge was familiar with the issues raised in the motion---ineffective

assistance of counsel, investigation, and presentation of punishment mitigation evidence.

          The trial court could’ve reasonably concluded, based on the record and

witnessing counsel’s performance during the revocation hearing, that counsel was not

deficient.

          The record reflects that trial counsel made proper objections. Indeed, she

successfully kept out potentially harmful Facebook posts. She cross-examined the State’s

witnesses. She got both the probation officer and the sex offender compliance officer to

admit they were not familiar with Ruiz’s head injury. Counsel’s implication being the

witnesses didn’t know what deficits Ruiz may have in regards to his understanding of the

probation conditions. She also got the probation officer to testify Ruiz was a sexual

abuse victim. And she showed that the State’s witnesses didn’t know Ruiz was on or

needed medication.

          Additionally, counsel called both Ruiz and his cousin for the defense. As

discussed in response to Issue 1, unlike the defendants in Lopez or Shanklin who were

totally deprived of the presentation of any mitigating evidence, Ruiz’s trial counsel did

present mitigation.347 Counsel elicited testimony from Ruiz that he suffered a head


347
      See Lopez, 462 S.W.3d at 189-90; Shanklin, 190 S.W.3d at 164.


                                                    46
injury, was a victim of sexual assault, and was taking a cocktail of medications to help

with seizures and depression.

       Moreover, in closing arguments, counsel stressed Ruiz was sexually abused by his

step-father. She argued Ruiz was forced to have sex with his sister. She reminded the

court that Ruiz has mental and physical incapacities and is taking five different

medications. She argued Ruiz did his best, despite not being able to live with his mother

at a young age. She argued Ruiz consistently tried to find a job. She asked the trial court

to give Ruiz an opportunity to redeem himself.

       Furthermore, consistent with Smith348 and a line of similar cases cited in response

to Ruiz’s first issue, the trial judge could’ve reasonably concluded without conducting a

hearing that the affidavits didn’t establish the existence of reasonable grounds showing

that he could be entitled to relief.349 The trial court could’ve reasonably concluded that

trial counsel’s alleged deficiency would not have affected her punishment decision.350

       Ruiz failed to raise matters which were not determinable from the record and

failed to establish reasonable grounds showing he could potentially be entitled to

relief.351 The trial court’s decision is entitled to deference.352 Based on the information


348
    The State argued in Issue 1 that this Court cannot ignore binding precedent. The State will not
repeat the argument here.
349
    See Smith, 286 S.W.3d at 345; Castaneda, 01-14-00389-CR, 01-14-00390-CR, 2015 WL 6930466 *9;
Glenn, 01-13-00640-CR, 2015 WL 831995, at *4; Goody, 433 S.W.3d at 81; Potts, No. 14–10–01172–
CR, 2012 WL 1380230, at *1; Arriaga, 335 S.W.3d at 336-37.
350
    See id.
351
    See Hobbs, 298 S.W.3d at 199; Smith, 286 S.W.3d at 338.
352
    See Holden, 201 S.W.3d at 764.


                                                47
before the trial judge, including her prior knowledge of the parties and the case, the

judge did not abuse her discretion by allowing Ruiz’s motion to be overruled without a

hearing.353




353
      See id.


                                         48
                            CONCLUSION AND PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment

of the trial court be affirmed in all respects.

                                            Respectfully submitted,

                                            JACK ROADY
                                            CRIMINAL DISTRICT ATTORNEY
                                            GALVESTON COUNTY, TEXAS


                                                   /s/ Rebecca Klaren
                                            REBECCA KLAREN
                                            Assistant Criminal District Attorney
                                            State Bar Number 24046225
                                            600 59th Street, Suite 1001
                                            Galveston, Texas 77551
                                            Tel (409)770-6004/Fax (409)621-7952
                                            rebecca.klaren@co.galveston.tx.us




                                              49
                           CERTIFICATE OF SERVICE

      The undersigned Attorney for the State certifies a copy of the foregoing brief was

sent via email, eFile service, or certified mail, return receipt requested, to Kyle Verret,

attorney for David Ruiz, at kyle@verretlaw.com or 2029 Strand Suite 3, Galveston, Tx

77550, on December 23, 2015.




                                              /s/ Rebecca Klaren
                                         REBECCA KLAREN
                                         Assistant Criminal District Attorney
                                         Galveston County, Texas



                        CERTIFICATE OF COMPLIANCE

      The undersigned Attorney for the State certifies this brief is computer generated,

and consists of 11,391 words.




                                              /s/ Rebecca Klaren
                                         REBECCA KLAREN
                                         Assistant Criminal District Attorney
                                         Galveston County, Texas




                                            50
