                           NUMBER 13-11-00766-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

ADIEL FUENTES,                                                         Appellant,


                                         v.


THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 117th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
          Before Justices Rodriguez, Benavides, and Longoria
                Memorandum Opinion Justice Longoria
      By two issues, appellant Adiel Fuentes appeals his conviction for continuous

sexual abuse of a young child and sexual assault of a child. See TEX. PENAL CODE ANN.

§ 21.02(b) (West Supp. 2011), § 22.011 (West 2011). We affirm.
                                                I. BACKGROUND1

        Appellant met C.E., the mother of the three child complainants in this case, at a

church they both attended in Corpus Christi. Appellant began a romantic relationship

with C.E. around the time she divorced her previous husband. One of C.E.’s children,

A.E., made an outcry alleging sexual abuse by appellant. Her two sisters later made

similar allegations.

        A grand jury indicted appellant for continuous sexual abuse of a young child

(Count I), aggravated sexual assault of a child (Count II), and sexual assault of a child

(Count III).    See id. §§ 21.02(b), 22.021 (West Supp. 2011), § 22.011.                        Appellant

pleaded not guilty, and the case was tried to a jury. The jury returned a verdict of guilty

on Count I and Count III and not guilty on Count II. Appellant elected for the trial court

to assess his punishment. The trial court assessed imprisonment for twenty-five years

on Count I and imprisonment for five years on Count III.                      The court ordered the

sentences to run concurrently. This appeal followed.2

                                                  II. ANALYSIS

        A. Exclusion of Witnesses

        By his first issue, appellant argues that the trial court erred by refusing to allow

character witnesses who only knew appellant from his church to testify. Appellant’s

argument is based on the following exchange at trial:

                [Counsel]: Is the Court going to exclude testimony from
                people [appellant’s] just known from church?
        1
           Because this is a memorandum opinion, and the parties are familiar with the facts, we will only
recite the facts and law as necessary to apprise the parties of the Court’s decision and the reasons for it.
See TEX. R. APP. P. 47.4.
        2
         We twice abated this case: first for appointment of new counsel after appellant’s original
appointed counsel requested to withdraw, and again when appellant’s new counsel failed to file a brief.


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             [Judge]: Yes. They have to — I read through and it can’t be
             just based on personal knowledge, it has to be —

             [Counsel]: No, reputation.

             [Judge]: No, I’m not going to exclude it.

             [Counsel]: No, okay.

             [Prosecutor]: Well, at some point it might be cumulative.

             [Judge]: Yeah, but go ahead.

             [Counsel]: I don’t have that many witnesses and it’s not
             going to take—

             [Judge]: Okay.

             [Counsel]: — that long

             [Judge]: Okay. That’s why we’ll go through it.

      It appears that the trial court did not exclude any of appellant’s witnesses. After

this exchange, the trial court permitted six further witnesses to testify. Even assuming

that the trial court did exclude one or more of appellant’s witnesses from testifying, a

defendant may not complain of a ruling excluding evidence “unless a substantial right of

a party is affected and the substance of the evidence was made known to the court by

offer of proof.” Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998); see TEX. R.

EVID. 103(a)(2). Appellant nowhere made an offer of proof of the substance of the

testimony that the excluded witnesses planned to offer. See Warner, 969 S.W.2d at 2.

Accordingly, this issue was not preserved for our review.

      We overrule appellant’s first issue.




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       B. Ineffective Assistance of Counsel

       By his second issue, appellant contends that he received ineffective assistance

of counsel at trial.

               1. Standard of Review and Applicable Law

       We evaluate claims of ineffective assistance under the standards set forth by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).

See Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.).

Under the Strickland standard, appellant must show by a preponderance of evidence

that: (1) trial counsel’s representation fell below an objective            standard    of

reasonableness; and (2) there is a reasonable probability that the result of the

proceeding would have been different but for the attorney’s deficient performance.

Strickland, 466 U.S. at 687; Jaynes, 216 S.W.3d at 851. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”      Ex parte Ellis, 233

S.W.3d 324, 330–31 (Tex. Crim. App. 2007). If an appellant fails to prove one prong of

the test, we do not need to address the other prong. See Strickland, 466 U.S. at 697;

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

       When evaluating the quality of trial counsel’s representation, we look to “the

totality of the representation and the particular circumstances of each case in evaluating

the effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). “[A] single egregious error of omission or commission” can constitute ineffective

assistance, but the Texas Court of Criminal Appeals has been hesitant to designate any

particular error as per se ineffective assistance. Id. We apply “a strong presumption

that counsel's conduct fell within the wide range of reasonable professional assistance.”



                                            4
Id. Allegations of ineffectiveness must therefore be “firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness.” Id. (citing

McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Direct appeal is

usually inadequate to make an ineffectiveness claim because the record is frequently

undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). This

is especially true where the claimed error is one of omission and “counsel's reasons for

failing to do something do not appear in the record.” Id. The Texas Court of Criminal

Appeals has explained that “trial counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective.”       Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003) (citing Bone v. State, 77 S.W.3d 828, 836

(Tex. Crim. App. 2002)). Unless counsel had an opportunity to explain his trial strategy,

Texas appellate courts should “not find deficient performance unless the challenged

conduct was ‘so outrageous that no competent attorney would have engaged in it.’”

Goodspeed, 187 S.W.3d at 392 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

App. 2001)).

               2. Discussion

      Appellant argues that his trial counsel performed deficiently by failing to request a

jury instruction on Count I for the lesser-included offense of sexual assault of a child.

See TEX. PENAL CODE ANN. § 22.011(a)(2). However, “[d]efense counsel does not act

deficiently in failing to request a lesser-included offense if he was pursuing an all-or-

nothing trial strategy.” Shanklin v. State, 190 S.W.3d 154, 161 (Tex. App.—Houston

[1st Dist.] 2005, pet. dism’d) (citing Ex parte White, 160 S.W.3d 45, 55 (Tex. Crim. App.

2004)). Trial counsel’s reasons for not requesting an instruction on a lesser-included



                                            5
offense do not appear in the record.3 See Rylander, 101 S.W.3d at 111. Because trial

counsel could have been pursuing an all-or-nothing trial strategy in not asking for an

instruction on a lesser-included offense for Count III, we conclude that appellant has

failed to show that trial counsel performed deficiently. See Garcia, 57 S.W.3d at 440

(observing that appellate courts “will commonly assume a strategic motivation if any can

possibly be imagined” when reviewing an attorney’s failure to do something). Because

appellant is unable to show that his trial counsel performed deficiently, we need not

consider the second prong of the Strickland test. See id.

        We overrule appellant’s second issue.

                                                III. CONCLUSION

        We affirm the judgment of the trial court.


                                                         _/s/Nora L. Longoria____
                                                         NORA L. LONGORIA
                                                         Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
30th day of August, 2013.




        3
          Appellant filed a motion for new trial alleging ineffective assistance of counsel, but the motion
only makes a bald claim that counsel was ineffective for not requesting an instruction on the lesser-
included offense. The motion does not describe counsel’s trial strategy, and there was no hearing on the
motion where counsel could have described his intentions.

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