Affirmed and Opinion Filed June 28, 2016




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-15-00406-CR

                                LEONEL MORENO, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the 203rd Judicial District Court
                                    Dallas County, Texas
                             Trial Court Cause No. F0912595-P

                              MEMORANDUM OPINION
                  Before Chief Justice Wright, Justice Bridges, and Justice Lang
                                   Opinion by Justice Bridges
       Leonel Moreno appeals his aggravated sexual assault conviction. Appellant entered an

open plea of no contest, and the trial court found him guilty and sentenced him to ten years’

confinement and a $3000 fine. In a single point of error, appellant argues the trial court erred in

denying his motion for new trial based on his argument that he received ineffective assistance of

counsel. We affirm the trial court’s judgment.

       In March 2010, appellant was indicted on a charge of aggravated sexual assault of a child

younger than fourteen. Prior to trial, the trial court advised appellant “that’s a first-degree felony

with a punishment range of a minimum of 5 years with a maximum range of 99 years or life.”

The trial court further stated it could defer a finding of guilt in place appellant on probation.

Appellant elected to give up his right to a jury trial and have the trial court decide his guilt or
innocence. After the trial court read the indictment, appellant entered a plea of no contest to the

charges against him.

       L.S., thirteen years old at the time of trial, testified her birthday is February 13, 2001.

When L.S. was eight, she went to a party at appellant’s house with her mother, brother, and aunt.

L.S. was friends with appellant’s twin daughters, and she stayed behind to spend the night with

them when her mother, brother, and aunt left at approximately 4:00 a.m. L.S. and the twins slept

on the floor in “the parents’ bedroom.” L.S. woke up “real early” and went into the living room

where the twins were watching television. L.S. returned to the master bedroom and went back to

sleep. When she woke up again, appellant was coming toward her. Appellant picked up L.S.,

put her on the bed, and sexually assaulted her. Appellant’s underwear was blue and “looked like

boxers.” After a time, appellant stopped, and both he and L.S. fell asleep. L.S. woke up first and

went to the living room where she watched television with the twins. At first, L.S. did not tell

anyone about the assault because she was “scared.” However, after a few days she developed a

rash, and she told her cousin and mother about the assault because she was scared something was

wrong with her. On cross-examination, L.S. testified she did not remember if appellant’s “larger

size” brother was at appellant’s house at the time of the assault. R.E.C., thirty years old at the

time of trial, testified appellant had sex with her at a motel when she was fifteen. Appellant took

R.E.C. to Mexico on a week-long trip and gave R.E.C. money to take a bus back home because

“he said he couldn’t cross [R.E.C.] over.” A.V., twenty-one years old at the time of trial,

testified appellant is her uncle, and he “brushed up on” her while she looked out a window when

she was ten. On another occasion, appellant “did not hesitate to touch [A.V.’s] chest” with both

hands while they were in a bounce house. When A.V. was eighteen, appellant gave her a ride to

work and masturbated while he was driving.




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           During argument, defense counsel emphasized that appellant’s brother was living at

appellant’s house at the time of the party and was “now facing child abuse charges against one of

the victims being [appellant’s] twin daughter.” Defense counsel posed the question whether

appellant’s brother was “the one who did it.” After hearing arguments from both the defense and

the State, the trial court noted that defense counsel said “it could have been [appellant’s] brother,

but [the trial court had] not heard anybody describe what [appellant’s] brother looked like.”

Referring to the timeline of L.S.’s testimony, the trial court stated “everything fits.” The trial

court stated L.S. gave “sensory details” and “even described that [appellant] had blue boxers.

The trial court noted that “I’ve not heard anybody say that [appellant did not] were blue boxers,

that [appellant] wear[s] briefs and never wore boxers.” The trial court concluded: “I’m not going

to find you guilty right now because I don’t know what I’m going to do about punishment, but I

do believe the State has proven your guilt beyond a reasonable doubt.” Following a hearing on

punishment, the trial court found appellant guilty and sentenced him to ten years’ confinement

and a $3000 fine.

           Appellant filed a motion for new trial in which he asserted generally that the “verdict is

contrary to the law and evidence. In an amended motion for new trial, appellant asserted his trial

counsel was ineffective in failing to investigate or present appellant’s alibi defense, advising

appellant to waive a jury trial, coercing appellant into entering a plea of no contest, and failing to

“bring up certain exculpatory evidence.” At a hearing on the motion, appellant’s wife, Diana

Medrano, testified she gave trial counsel pictures of appellant’s brother, who “looks substantially

similar” to appellant, but trial counsel did not enter the pictures into evidence.1 Medrano

testified appellant did not start wearing boxers until 2011 or 2012 and wore briefs in 2009 at the


     1
        The State introduced into evidence mugshot profiles of appellant and his brother showing that appellant’s brother was three inches taller,
fifty pounds heavier, and had a beard, whereas appellant was clean-shaven.



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time of the alleged assault. Trial counsel did not testify at the hearing. The trial court denied

appellant’s motion for new trial, and this appeal followed.

       In a single issue, appellant argues the trial court erred in denying his motion for new trial

because he received ineffective assistance of counsel.           The two-pronged Strickland v.

Washington test applies to challenges to guilty and nolo contendere pleas. See Hill v. Lockhart,

474 U.S. 52, 58, (1985); Gomez v. State, 399 S.W.3d 604, 605-06 (Tex. App.—Dallas 2013, pet.

ref’d). To be entitled to a new trial based on an ineffective assistance of counsel claim, a

defendant must show by a preponderance of the evidence that counsel’s performance was

deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

687 (1984); Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009); Gomez, 399 S.W.3d at

605. The first prong requires the defendant to show counsel’s performance fell below an

objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687-88; Lane, 303 S.W.3d at 707; Gomez, 399 S.W.3d at 605-06. The second prong requires

the defendant to show that there is a reasonable probability that, but for his counsel’s errors, the

result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Lane, 303

S.W.3d at 707; Gomez, 399 S.W.3d at 606. In the context of a guilty or nolo contendere plea, a

defendant satisfies the second prong of the test by showing that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial. See Hill, 474 U.S. at

59; Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009); Gomez, 399 S.W.3d at 606.

       Appellant’s complaints of ineffective assistance are based on counsel’s alleged

ineffectiveness at the “guilt/innocence” phase of the proceeding. In particular, appellant alleges

counsel was ineffective in failing to establish appellant’s brother was more likely the perpetrator

of the assault and appellant did not wear boxer shorts.         Appellant argues “any evidence

impeaching [L.S.’s] credibility potentially raised a reasonable doubt.” Appellant further argues

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that, but for trial counsel’s errors, he would have received a lesser sentence than the ten-year

sentence he received. Although this argument purports to address counsel’s ineffectiveness at

the “sentencing” phase of the proceeding, appellant cites nothing in support of this argument.

Instead, appellant’s complaints focus solely on counsel’s ineffectiveness in failing to raise a

reasonable doubt by offering impeachment evidence concerning appellant’s brother’s appearance

and the boxer shorts.

       Before addressing the merits of appellant’s complaints, it is important to understand the

procedural posture of this case. Appellant presents his complaint as though he pleaded not guilty

to the offense. However, appellant pleaded nolo contendere to the allegations in the indictment.

A plea of nolo contendere has the same legal effect as a guilty plea for purposes of the criminal

prosecution. TEX. CODE CRIM. PROC. ANN. art. 27.02(5) (West 2006). When a defendant waives

a jury trial and enters a no contest plea on a non-capital offense, the proper procedure is to

conduct a unitary trial. Saldana v. State, 150 S.W.3d 486, 489 (Tex. App.—Austin 2004, no

pet.) (citing Barfield v. State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001)); Lopez v. State, 96

S.W.3d 406, 412 (Tex. App.—Austin 2002, pet. ref’d).            In a unitary trial, there is no

“bifurcation” (where the guilt/innocence and punishment stages are conducted separately), even

when the trial court employs procedures characteristic of bifurcation. Saldana, 150 S.W.3d at

489. Rather, such a procedure remains a unitary trial “punctuated by a recess in the middle.” Id.

       Appellant’s complaints are all connected to the trial court’s finding of guilt. Appellant

does nothing to link the alleged ineffectiveness to either his nolo contendere plea or to the

sentence assessed, other than his bare assertion that he would have received a lesser sentence.

We recognize that in the trial proceedings, although appellant pleaded nolo contendere, the

parties treated this case in some respects as a “not guilty” plea, and it is clear appellant was

contesting his guilt.   Trial counsel’s use of this procedure could reasonably interpreted as

                                              –5–
counsel’s trial strategy to avoid provisions of the code of criminal procedure prohibiting a trial

court from placing a defendant on probation for indecency with a child unless he pleads guilty or

nolo contendere. TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 3g(a)(1), 5(a) (West 2006).

Despite appellant's nolo contendere plea, appellant was given many of the benefits of a “not

guilty” plea. For example, the trial court permitted appellant to contest his guilt and stated it was

holding the State to the constitutional “beyond a reasonable doubt” burden of proof. On appeal,

appellant now seeks to avoid the effect of his plea and seeks review as if he had pleaded not

guilty. However, appellant does not assert his plea was not voluntary, that the trial court should

have sua sponte withdrawn the plea, or that trial counsel should have sought to withdraw the

plea. Because appellant does not link his trial counsel’s ineffectiveness either to his no contest

plea or to his sentence, he has made no showing that but for trial counsel’s alleged

ineffectiveness, the result of the proceeding would have been different. We overrule appellant’s

sole point of error.

        We affirm the trial court’s judgment.




                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

150406F.U05




                                                –6–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

LEONEL MORENO, Appellant                           On Appeal from the 203rd Judicial District
                                                   Court, Dallas County, Texas
No. 05-15-00406-CR        V.                       Trial Court Cause No. F0912595-P.
                                                   Opinion delivered by Justice Bridges. Chief
THE STATE OF TEXAS, Appellee                       Justice Wright and Justice Lang
                                                   participating.

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


Judgment entered June 28, 2016.




                                             –7–
