AFFIRM; Opinion Filed November 21, 2012




                                                in The
                                      niiit     uf Appiat
                          2Fifti!    IItrirt    nf exa at Iattwi
                                        No. 05-11-01643-CR
                                        No. 05-11-01644-CR


                                SAMUEL MONTANO, Appellant

                                                  V.

                               THE STATE OF TEXAS, Appellee


                         On Appeal from Criminal District Court No. 6
                                     Dallas County, Texas
                       Trial Court Cause Nos. F10-53865-X, F11-00223-X


                              MEMORANDUM OPINION
                             Before Justices Bridges, Richter, and Lang
                                      Opinion By Justice Lang

       Samuel Montano pleaded guilty to two counts of aggravated sexual assault of a child under

14 in trial court cause numbers F 10-53865 -X and F 11 -00223-X. In a single issue on appeal, Montano

claims he received ineffective assistance of counsel when his trial counsel failed to object to hearsay

testimony and was not sufficiently fluent in Spanish to explain the proceedings to Montano. We

decide against Montano on his sole issue on appeal in each case. The trial court’s judgments are

affirmed. Because all dispositive issues are clearly settled in law, we issue this memorandum

opinion. See TEx. R. App. P. 47.4.
                     I. FACTUAL AND PROCEDURAL BACKGROUND

        Montano was charged by separate indictments with two counts of aggravated sexual assault

of a child under 14 in trial court cause numbers F10-53865-X and F1l-00223-X. Montano pleaded

not guilty and elected a trial by jury in cause number Fl0-53865-X. After a jury was selected,

Montano withdrew his not guilty plea, entered a plea of guilty, and elected to have the jury assess

his punishment. That same day Montano entered an open plea of guilty in cause number F 11-00223-

X. The trial judge found Montano guilty and carried cause number Fl l-00223-X until the jury

assessed punishment in cause number F 10-53 865-X. The trial judge and both parties agreed the trial

judge would render a sentence in cause number Fl l-00223-X that would be the same as the jury’s

punishment verdict in cause number Fl0-53865-X, with the sentences to run concurrently, in

exchange for withdrawal ofMontano ‘s objection to evidence from cause number F 11 -00223-X being

presented to the jury.

       Following the presentation of punishment evidence, thejury sentenced Montano to 99 years’

confinement and a $10,000 fine in cause number Fl0-53865-X, The trial judge then rendered the

same sentence in cause number Fl l-00223-X. Montano’s trial counsel filed motions for new trial

in each case, alleging that the verdict and sentences were contrary to the law and evidence.

Montano’s appellate counsel filed amended motions for new trial in each case, alleging ineffective

assistance of trial counsel because he allegedly did not effectively communicate with Montano in

cause number Fl 1-00223-X and Montano’s guilty plea was not made knowingly and voluntarily in

cause number F 10-53 865-X. The issue oftrial counsel’s failure to object to hearsay testimony raised

on appeal was not addressed in the trial court. The trial court heard evidence regarding the motions,

but Montano’s trial counsel was not called to testify. The motions were denied.
         In a single   issue on   appeal, Montano maintains that he received ineffective assistance of

counsel. First. Montano argues his trial counsel huled to object to hearsay testimony and thereby

denied Montano the right to confrontation. Second, Montano contends, as he did at the hearing on

his motions for new trial, that “he was surprised, confused and never fully understood the

proceedings. essentially because of a language barrier between him and his attorney.” We decide

against Montano on this issue and affirm the trial court’s judgment.

                                      II. STANDARb OF REVIEW

        “An appellate court reviews a trial court’s denial of a motion for new trial under the ‘abuse

of discretion’ standard.” Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004),superseded

in part on other grountLs’ by TEX. R. App. P. 21.8(b), as recognized in State   v.   Herndon, 215 S.W.3d

901,905 n. 5 (Tex. Crim. App. 2007)). “We do not substitute our judgment for that of the trial court,

but rather we decide whether the trial court’s decision was arbitrary or unreasonable.” Id. “We must

view the evidence in the light most favorable to the trial court’s ruling and presume that all

reasonable thctual findings that could have been made against the losing party were made against

that losing party.” Id. “Thus, a trial court abuses its discretion in denying a motion for new trial only

when no reasonable view of the record could support the trial court’s ruling.” Id.

                                        III. APPLICABLE LAW

        “To prevail on a claim of ineffective assistance of counsel, an appellant must meet the two-

pronged test established by the U.S. Supreme Court in Strickland, and adopted by Texas two years

later in Hernandez.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citingStrickland

v. Washington, 466 U.S. 668, 687 (1984); ffernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986)). “Appellant must show that (1) counsel’s representation fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced the defense. id. “Unless appellant can
prove both prongs. an appellate court must not tind      counsel’s   representation to be inelThctive.” Id.

“in order to satisfy the first prong, appellant must prove, by a preponderance of the evidence, that

trial counsel’s performance fell below an objective standard of reasonableness under the prevailing

professional norms.      Id. “To prove prejudice, appellant must show that there is a reasonable

probability, or a probability sufficient to undermine conlidence in the outcome, that the result of the

proceeding would have been different.” Id. “In the context of a guilty plea, a defendant satisfies the

prejudice requirement by showing that he would not have pleaded guilty and would have insisted

on going to trial.”   Erparte   Imoudu, 284   S.W.3d 866, 869 (Tex. Crim. App. 2009). A defendant’s

“failure to satisfy one prong of the Strickland test negates a court’s need to consider the other prong.”

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (citing Strickland, 466 U.S. at 697).

        “An appellate court must make a ‘strong presumption that counsel’s performance fell within

the wide range of reasonably professional assistance.” Lopez, 343 S.W.3d at 142 (quoting I?obe itson

v. State, 187 S.W,3d 475, 483 (Tex. Crim. App. 2006)). “In order for an appellate court to find that

counsel was ineffective, counsel’s deficiency must be affirmatively demonstrated in the trial record;

the court must not engage in retrospective speculation.” Id. “When such direct evidence is not

available, we will assume that counsel had a strategy if any reasonably sound strategic motivation

can be imagined.” Id. at 143. “in making an assessment of effective assistance of counsel, an

appellate court must review the totality of the representation and the circumstances of each case

without the benefit of hindsight.” Id. “Trial counsel ‘should ordinarily be afforded an opportunity

to explain his actions before being denounced as ineffective.”Menejield v. State, 363 S.W.3d 591,

593 (Tex. Crim. App. 2012) (quoting Goodspeedv. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005)). “If trial counsel is not given that opportunity, then the appellate court should not find




                                                  -4--
deficient perlbrmance unless the challenged conduct was ‘so outrageous that no competent attorney

would have engaged in it’” 1d (quoting Goodspeeá, 187 S.W.3d at 392).

                              IV. APPLICATION OF LAW TO FACTS

        As to his first assertion that trial counsel failed to object to particular, allegedly, hearsay

testimony, fvlontano did not raise this    point in   his motions for new trial or at his hearing on the

motions. Further, he did not call trial counsel to testify at the hearing on his motions. Montano cites

A!iarado   i.   State, contending that ‘[t1ai1ure to object to inadmissible hearsay has supported claims

of ineffective counsel.” Alvarada v. Suite, 775 S.W.2d 851 (Tex. App.----San Antonio 1989, pet.

ref’d). We cannot agree Alvarado directs us to conclude counsel’s assistance was ineffective. In

Alvarado, the San Antonio Court of Appeals concluded “[w]hen the inadmissible evidence [wa]s

disregarded, the remaining evidence consist[ed] primarily of the testimony of the complainant and

her younger brother, which [wa]s a very small part of this record.” Alvarado, 775 S.W.2d at 855.

(“We do not have before us a case in which only a relatively small bit of evidence was improperly

admitted”). Fiere. Montano complains of one statement made by a therapist for the complainant who

said, “I believe that [the complainant] was diagnosed with post-traumatic stress disorder fiom the

psychologist that comes to the [Dallas Children’s Advocacy] Center.” However, the record contains

substantial admissible evidence relevant to the issue of punishment.

       As Montano’s trial counsel was not called to testify at the hearing of the motions for new

trial, he had no “opportunity to explain his actions.”           See Menefield, 363 S.W.3d at 593.

Accordingly, the record is silent as to any motivation or strategic reason for the absence of an

objection to the testimony. See Id. There is a strong presumption that counsel’s actions fell within

the wide range of reasonable professional assistance. See Lopez, 343 S.W.3d at 143. Finally,

Montano made no argument or specific contention as to whether “there is a reasonable probability,
or a probability sufficient to undermine conlidence in the outcome, that the result of the proceeding

would have been different” had his attorney objected to the hearsay. See id. at 142.

        Second, Montano argues his counsel provided ineffective assistance due to the fact that he

speaks very little English and his trial counsel does not speak or understand “much Spanish.”

Montano contends the language barrier prevented him from understanding the proceedings.

Accordingly, he claims his plea was not voluntary. The record is silent as to the extent of Montano’s

ability to understand English. Nor does the record reflect that Montano asked any questions during

the trial court proceedings or otherwise indicated he did not understand the proceedings. Rather, the

record shows the trial court used a licensed interpreter to explain the proceedings to Montano and

thoroughly questioned Montano regarding the voluntariness of the plea, the applicable sentence

range, the effect of a guilty plea on citizenship, and the implications of sex offender status.

Moreover, the punishment hearing record shows that when the interpreter was unable to translate the

Spanish word “camote” from Spanish to English, Montano’s trial counsel offered the correct English

translation. Montano testified at the hearing on his motions for new trial that his guilty plea was due

to his inability to understand anything his trial counsel said in out-of-court discussions. However,

as noted above, Montano did not call his trial counsel to testif’ to explain his actions or the strategy

behind Montano’s guilty pleas. See Menejield, 363 S.W.3d at 593.

        On this record, we conclude Montano has failed to satisfy the first prong of the Strickland

test because he did not “affirmatively demonstrate[] in the trial record         ...   that trial counsel’s

performance fell below an objective standard of reasonableness under the prevailing professional

norms.” See Lopez, 343 S.W.3d at 142. Further, even assuming Montano’s allegations reflected

deficiencies of counsel to meet the Strickland test, Montano did not “show that there [wa]s a

reasonable probability that, but for counsel’s unprofessional errors,’   ...   he would not have pleaded




                                                 —6—
gtiiltv and would have insisted on going to trial.’’ 5’’   Li   J)(lrW Inioudu, 24 S.W.3d at X69 (quoting

Strickland. 466 U.S. at 694). We resolve his sole issue a1ainst him.

                                          V. CONCLUSION

        On this record, we decide Montano’s sole issue against him. The trial court’s judgments are

affirmed.




                                                                    _._   _-:<

                                                           D000LASS.LANG
                                                           JUSTlCE
Do Not Publish
TLx. R. Aip. P. 47
11 1643F.U05




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                                      JUDGMENT
SAMUEL MONTANO, Appellant                          Appeal from the Criminal District Court No.
                                                   6 of Dallas County, Texas. (Tr.Ct.No. FlO
No. 05-1 1-01643-CR         V.                     53$65-X).
                                                   Opinion delivered by Justice Lang, Justices
THE STATE OF TEXAS. Appcllce                       Bridges and Richter participating.


      Based on the Court’s opinion of this date. the judgment of the trial court is AFFIR1’IED.



Judgment entered November 21, 2012.




                                                   OOUGLAS S. LANG
                                                   JUSTiCE
                               nitrt uf     iah
                      fiftIi tilsirict uf xai at at1aa
                                      JUDGMENT
SAMUEL MONTANO, Appellant                         Appeal from the Criminal District Court No.
                                                  6 of Dallas County, Texas. (Tr.Ct.No. Fli
No. 05-1 1-01644-CR         V.                    00223-X).
                                                  Opinion delivered by Justice Lang, Justices
THE STATE OF TEXAS, Appellee                      Bridges and Richter participating.


      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered November 21, 2012.


                                                                        /

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                                                  DOUGLASS LANG
                                                  JUST1C/                   /
