            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-0728-12



                               JOHN FRANGIAS, Appellant

                                              v.

                                  THE STATE OF TEXAS



            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTEENTH COURT OF APPEALS
                             HARRIS COUNTY

        P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and
W OMACK, J OHNSON, K EASLER, H ERVEY, C OCHRAN and A LCALA, JJ., joined. M EYERS,
J., did not participate.

                                       OPINION

       A jury convicted the appellant of sexual assault and assessed his punishment at eight

years’ confinement in the penitentiary. Represented by different counsel on appeal, the

appellant filed a motion for new trial in which he argued that his trial counsel provided

ineffective assistance when they failed 1) to secure the presence of a critical witness at the

guilt phase of the trial, 2) take his deposition in order to memorialize his testimony for
                                                                                Frangias — 2


presentation to the jury, or 3) alternatively, seek a continuance in order to secure that

witness’s testimony. The trial court allowed the motion for new trial to be denied by

operation of law,1 and the Fourteenth Court of Appeals upheld that ruling, holding that the

trial court did not abuse its discretion because the appellant did not establish that his trial

counsel performed deficiently.2 We granted the appellant’s petition for discretionary review

in order to examine this holding. We now reverse the judgment of the court of appeals and

remand the cause for further proceedings not inconsistent with our holding today.

                         FACTS AND PROCEDURAL POSTURE

       In March of 2010, the appellant was indicted for the offense of sexual assault, a

second degree felony,3 allegedly committed on or about July 10, 2008. By the time of trial

in October of 2010, the appellant was represented by retained attorneys Lisa Jones and Alfred

Valdez, both of whom had been on the case since at least early June of 2010. Trial was

scheduled to begin with voir dire on Friday, October 22, 2010, but on October 19 th , the trial

court continued the case until the following Monday, October 25th , in order to allow time for

defense witnesses to come in from Canada. The jury was selected on that Monday, and

testimony began on Tuesday, October 26 th .


       1

       T EX. R. A PP. P. 21.8(c).
       2

       Frangias v. State, 367 S.W.3d 806, 814-15 & 817 (Tex. App.—Houston [14 th Dist.] 2012).
       3

       T EX. P ENAL C ODE § 22.011(a)(1)(A), (b)(1), & (f).
                                                                                Frangias — 3


                                  The Evidence at Trial

       The State’s evidence showed that the complainant, K.H., flew from Toronto to

Houston to attend a Microsoft conference during the week of July 7, 2008. Upon arrival, she

discovered that her hotel was overbooked, and a room was arranged for her at the appellant’s

hotel, the Rainbow Inn Suites. On the evening of Thursday, July 10 th , K.H. attended a social

event sponsored by Microsoft. Afterward, she accompanied her business partner to his hotel

for about an hour before taking a shuttle back to the Rainbow Inn Suites. She testified that

she arrived at around 11:00 p.m. and proceeded upstairs to her room. Arriving on the second

floor, she noticed that the appellant was there talking with another patron. When the

appellant saw K.H., he excused himself from his conversation and followed her down the

hall to her room. There, he pushed her through the door and onto the bed, forcing himself

on her. After the appellant left, K.H. brushed her teeth and took a shower to try to eradicate

his taste and smell. She then telephoned her husband and a business contact, but she told

neither of them about the sexual assault. She explained to the jury that she did not

immediately report the assault because she was afraid and humiliated, and she simply wanted

to “bury” the incident and pretend that it had not happened.

       Testifying on his own behalf, the appellant, a native Greek of longstanding United

States citizenship, and proprietor of the Rainbow Inn Suites, imparted a fundamentally

different story in halting English. According to the appellant, K.H. arrived at the doorstep
                                                                                      Frangias — 4


of his hotel shortly after midnight in a state of profound inebriation. After the appellant and

one of his employees, Jay Sotomayor, helped K.H. up to her room, she called down to the

front desk for additional towels. The appellant took towels up to her room, but he did not

tarry. He testified that, over the course of that week, he had driven K.H. to a number of

functions and had noticed on several of those occasions that she seemed intoxicated.4 When

she began to ask him inappropriately personal questions, he asked her to find a room at

another hotel. At no time did he enter her room, and he “1000 percent” did not sexually

assault her. In fact, he claimed to suffer from a chronic kidney stone condition, the treatment

for which made it very painful for him to attain an erection.5

       When she returned to Toronto on July 11th , K.H. telephoned Stephanie Jones, an old

acquaintance whom she knew to be a former police detective, and reluctantly told Jones

about the assault. Contrary to her trial testimony, K.H. told Jones that the appellant had

knocked on her door—not that he had followed her to her room and pushed her through the

door—before assaulting her. Jones advised K.H. to immediately tell her husband what had

happened and to submit to a medical examination, both of which K.H. did. The rape kit




       4

        A long-time patron of the hotel also testified that he had observed K.H. several times during
the course of the week in an apparently intoxicated state. On one such occasion he observed K.H. in
a dispute with the appellant over her room rate, and he advised the appellant that he thought K.H.
would eventually prove to be “trouble.”
       5

        The appellant’s wife corroborated his testimony in this regard.
                                                                                        Frangias — 5


turned up no forensic evidence, however, and the nurse who conducted the examination

noticed no bruising or other injury indicative of forcible rape.

        Both sides were able to produce testimony to corroborate their respective accounts.

One witness, an intensive care nurse who happened to be in the lobby of the Rainbow Inn

Suites at around midnight on July 10th , testified that an obviously drunken woman had passed

out at the front door and that the appellant and another man had helped her up to her room.

The appellant later took towels up to a room, but came back down within minutes. This

witness was not asked, however, and evidently could not definitively say, whether the woman

she saw was K.H. On the other hand, testimony from K.H.’s business partner, the business

contact whom she telephoned after the assault, and her husband, all placed K.H. at the

Rainbow Inn Suites substantially before midnight. K.H.’s cell phone records apparently

backed up this testimony.6 Based upon this evidence, the prosecutor would later make it a

pervasive theme of her guilt phase summation to the jury that the drunken woman whom the

defense witnesses had seen at midnight was not, in fact, K.H., but some other unidentified

woman.




        6

         On cross-examination, K.H. admitted that she had reported to the examining nurse in Canada
that the assault had occurred just past midnight. She explained that this had been only an estimate, and
that, once she obtained her cell phone records, she was able to reconstruct the chronology of events
more accurately. The cell phone records themselves were not admitted into evidence, but K.H.
testified to their contents extensively, without objection.
                                                                                Frangias — 6


                                   The Missing Witness

       Midway through the first day of testimony, on Tuesday, October 26 th , shortly after the

lunch break and during the State’s case-in-chief, one of the appellant’s trial counsel, for the

first time on the record, broached the subject of a missing witness, Jay Sotomayor—the

Rainbow Inn Suites employee who the appellant would later testify helped him to escort the

drunken woman to her room. This first mention, during a bench conference, was fleeting.

              MR. VALDEZ: . . . Your Honor, we need to discuss, there’s a witness
       that we were planning on producing; he’s in El Paso at a VA Hospital.

              THE COURT: I’m sorry?

              MR. VALDEZ: He’s in the VA Hospital. He’s receiving cancer
       treatment. He’s not allowed to travel. We’re going to ask maybe during a
       break to discuss that issue and how we can get his testimony by telephone if
       we have a court reporter.

              THE COURT: We’ll take that up at the break. I’ll let you know.

Later, during an afternoon recess, the matter was taken up in greater detail.

              MR. VALDEZ: . . . [T]here is a witness named Jay Sotomayor, S-O-T-
       O-M-A-Y-O-R. We were looking to bring him to trial today. He’s at the VA
       Hospital, we’ve been told, for the last four to five months. We just found this
       out on Friday [October 22nd ], for receiving cancer, second round of cancer
       treatment for prostate cancer. It’s our understanding, according to Mr.
       Sotomayor, he’s not allowed to travel either by car or by airplane because we
       had intended to have someone fly down there, pick him up, bring him back in
       the courtroom and assist him to fly back.

              Consequently, we’re trying to make arrangements for tomorrow
       morning to have a court reporter, who is authorized to administer an oath to go
       on base there called Fort Bliss in El Paso, Texas, to be there to administer an
       oath and him to provide testimony by telephone pertaining to this case. The
                                                                          Frangias — 7


reason we believe it’s pertinent to this case is because he was a part-time
housekeeper.

       THE COURT: He was what?

       MR. VALDEZ: A part-time housekeeper and handyman at the hotel
where [the appellant] was working when this incident occurred back in 2007-
2008. And his testimony would be according to a statement that I have from
him, a copy of an affidavit actually, Your Honor, that indicated that Ms. [K.H.]
was intoxicated on the evening that she returned back on July 10th of 2008; that
she was stumbling about and that she was drunk. And so that is an issue.

       Also, he indicates that he went up, he helped or at least observed [the
appellant] go up the stairwell with Ms. [K.H.]. And also when there was an
occasion for a call for towels to her room that he observed [the appellant]
going up to drop off those towels. And noted that he did not go inside the
room at all. And then that [the appellant] returned back downstairs again. So,
consequently that’s why we believe his testimony is necessary to this case.

        [PROSECUTOR]: Judge, the State objects to having a witness testify
from another part of the state. In addition, the State believes this testimony is
also going to be cumulative based on the witnesses that I know that they’re
going to call or that they’ve indicated they’re going to call that are going to
testify to pretty much the same stuff that they believe the Complainant was
intoxicated. So, they won’t be harmed by not allowing it.

       THE COURT: How long [has he] been over there?

        MR. VALDEZ: We’ve been told, Your Honor, we literally found out
on Friday. He’s been there approximately four months receiving the cancer
treatment; that this was his second round of cancer treatment. We were trying
to track him down, and he kind of dropped out of sight on us. And finally we
got a text message indicating that he was still receiving cancer treatment at the
VA Hospital in El Paso, Texas, which is adjacent to Fort Bliss.

       THE COURT: How long has this case been set for trial?

       [PROSECUTOR]: For a while, Your Honor. It was set back in June
or July.
                                                                                  Frangias — 8


              THE COURT: The Court is not going to allow it. If there is other
       evidence of the same facts, I’ll take it up at that time, determination of what
       the other witnesses said. There’s been plenty of time if he was unavailable to
       take the deposition prior to this time.

              So, bring the jury.

             MR. VALDEZ: We did request to take depositions of other witnesses,
       which the Court had denied previously. But, literally, Your Honor, we were
       not aware this gentleman was undergoing cancer treatment. And we literally
       found out that he was unable to be an available witness on Friday.

              THE COURT: I’ll make my ruling after I hear the testimony.

              MR. VALDEZ: Yes, sir.

The topic of Sotomayor’s proffered testimony did not come up again until the end of

testimony the next day, October 27th , at which time the trial court announced that it would

“take that up in the morning.”

       The next morning, October 28th , defense counsel again urged the trial court to rule on

the appellant’s request to permit Sotomayor to testify over the telephone:

              MR. VALDEZ: . . . We have also the issue of Mr. Jay Sotomayor.
       He’s the gentleman that’s at the VA Hospital. And we need to have a ruling
       as to whether or not the Court will allow us to have a telephone testimony with
       Mr. Sotomayor. He’s suffering from cancer. He’s been at the VA Hospital for
       several months in El Paso, Texas. And it’s been represented to us through Mr.
       Sotomayor that he is, per doctor’s instructions is unable to travel.

              And from our perspective, Your Honor, we have been attempting to get
       him served with a subpoena of some sort or at least get him here, I won’t say
       served a subpoena but just get him here. I’ll take back the serve with
       subpoena. But we tried to locate him, and we have found him, but he’s not
       allowed to travel. And his testimony would be, Your Honor, that he saw Ms.
       [K.H.] in the lobby, that he saw her intoxicated, that he assisted [the appellant]
                                                                                Frangias — 9


       to take Ms. [K.H.] up the stairway into her room, in 211.

              And, thereafter, he observed [the appellant] when he took some towels
       to the Room 211 later that evening and he did not enter the room, [the
       appellant] did not enter the room and he was back down.

               So, consequently we’re requesting the Court to allow Mr. Sotomayor
       to give testimony from El Paso, Texas. We will have a court reporter there
       with him to identify him and also to administer the oath to tell the truth, and
       it will be by telephone, Your Honor.

              THE COURT: What says the State?

               [PROSECUTOR]: Judge, the State still has the same objection.
       Without having that witness here, the jury can’t adequately determine whether
       that witness is being credible. In addition, the Defense already has testimony
       that they’re seeking to introduce. They’ve already put on witnesses that claim
       they know who [K.H.] is and that that person was intoxicated. So, not
       allowing them to do this wouldn’t cause them any harm.

             THE COURT: Once again, the Court have no request – you knew this
       case was going to trial. I have no subpoena in here indicating that he was
       served with a subpoena to be here. I have no proof that he’s medically
       incapacitated. That request will be denied.

Shortly thereafter, both sides closed, the trial court read the jury charge, both sides argued,

and the jury retired to deliberate. The jury convicted the appellant.

                                   Motion for New Trial

       After the appellant’s retained attorneys withdrew, David Cunningham was appointed

to represent the appellant on appeal. On November 29, 2010, he filed a motion for new trial.

In it, he alleged that Lisa Jones and Alfred Valdez provided constitutionally ineffective

assistance of counsel in failing either to secure Sotomayor’s testimony at trial, or to seek a
                                                                                Frangias — 10


continuance. In support of this motion, the appellant attached the following matters:

       •      A notarized statement from Sotomayor, dated July 14, 2010, in which
              he claims to have seen K.H. intoxicated at the appellant’s hotel a few
              nights after she had checked in; that he watched as the appellant helped
              her up to her room; that she later called down for extra towels and he
              again accompanied the appellant up to her room; and that on neither
              occasion did the appellant enter K.H.’s room.

       •      An affidavit from Irene Alexander, a paralegal whom the appellant had
              asked to assist his trial attorneys in trial preparation. Alexander avers
              that she was “generally aware of the nature” of Sotomayor’s testimony
              at an early point in her involvement in the case, and that, about a week
              to ten days before testimony commenced she “became aware of the
              specifics of his anticipated testimony as it was set out in his affidavit.”
              She began to try to locate him at that time and was eventually able to
              find him at the VA hospital in El Paso, but he told her that his doctors
              might not let him travel to Houston to testify. On Monday, October 25,
              2010, Sotomayor confirmed that he would be unable to travel.

On December 7, 2010, the State filed a responsive affidavit from the appellant’s trial counsel,

Lisa Jones. According to her affidavit, Jones “had no knowledge of Mr. Sotomayor or his

statement” until the Friday before trial, October 22, 2010, and was “surprised” that

Alexander did not inform trial counsel of his potential testimony before that. From that point

on, trial counsel contacted Sotomayor, tried to arrange for him to travel to Houston for trial

and, when informed that this would not be allowable, made arrangements whereby he could

testify telephonically or via a live video link. They did not attempt to depose Sotomayor

because the trial court had already denied defense requests to depose other witnesses in the

case and, in any event, “the jury would not be able to see or hear” Sotomayor to evaluate his

credibility. As for the option of seeking a continuance, Jones simply opined that “the filing
                                                                                 Frangias — 11


of another [motion for] continuance was not practical nor did I believe it would be granted

by the Court.” There was no affidavit at this point from co-counsel Valdez.

       Two days later, on December 9, 2010, the appellant filed a memorandum in support

of his motion for new trial. To this memorandum he attached two more affidavits:

       •      His own affidavit in which he asserts that, when he first retained Jones
              to represent him, he gave her a list of all of the witnesses who had been
              in the lobby of the Rainbow Inn Suites on the night of the alleged
              assault, including Sotomayor. In July of 2010, he learned that
              Sotomayor would be in Houston, and Jones instructed him to obtain a
              notarized statement from him. Sotomayor prepared such a statement
              and gave it to the appellant, who turned it over to Jones and Valdez.

       •      An affidavit from appellate counsel Cunningham asserting that he
              found Sotomayor’s notarized statement in trial counsel’s files, which
              had been turned over to him in anticipation of his representation of the
              appellant.

The appellant also filed written objections to the trial court’s purported decision to decide

the merits of the motion for new trial based on the affidavits alone, without the benefit of live

testimony.

       On that same day, December 9th , the trial court conducted a hearing on the motion for

new trial, confirming its intention to decide the motion on the basis of affidavits alone. The

State represented that it had tried to obtain an affidavit from Valdez, who had declined. The

appellant proffered written questions he would have asked Jones had she been required to

testify at the motion for new trial hearing, which the trial court accepted and made a part of

the record. The appellant then formally offered all four of the affidavits that were attached
                                                                               Frangias — 12


to his pleadings into evidence for purposes of the motion for new trial hearing, and the trial

court admitted them. The State then tendered the affidavit from Jones into evidence.

Without pausing to give the trial court a chance to formally accept Jones’s affidavit into

evidence, however, the prosecutor immediately requested that the trial court order Valdez to

also submit an affidavit, after which the following colloquy transpired:

             THE COURT: Fine. The Court will order for Mr. Valdez to give a
       statement.

       [PROSECUTOR]: And we’ll prepare something in writing for that Court
       order for the Court to sign. I guess, if we could give him next week, which is
       still before your deadline [the 75 days], I believe, of January the 12 th .

              MR. CUNNINGHAM: Judge, you know, Mr. Valdez has told me that
       if the Court orders me, just call me; and I’ll do the affidavit. So, I’ll get in
       touch with him.

               THE COURT: Okay.

             MR. CUNNINGHAM: And then I guess we’ll continue the hearing
       once we get his affidavit?

               THE COURT: Well, and what is the time deadline on this, January the
       what?

               [PROSECUTOR]: 12 th , I believe.

               MR. CUNNINGHAM: Right.

               (Discussion between the Court and attorneys off the record.)

              THE COURT: Get those to me. I’ll make a determination and give you
       a ruling.

               MR. CUNNINGHAM: And also, I’m going to supplement what I’ve
                                                                                   Frangias — 13


       submitted to the Court based on what Mr. Valdez provides, if that’s fair with
       the Court.

              THE COURT: That will be fine.

There are two matters of significance to be observed about the above colloquy: first, the trial

court never explicitly admitted Jones’s affidavit into evidence; and second, the trial court did

not expressly agree that it would reconvene the motion for new trial hearing once it had

obtained Valdez’s (and any responsive) affidavit.

       On December 17, 2010, the State filed Valdez’s affidavit. According to Valdez’s

“best recollection,” he learned about Sotomayor’s existence and his notarized statement from

Alexander, the paralegal, on Friday, October 22nd . Valdez spoke with Sotomayor either that

weekend or on Monday the 25 th , the day of jury selection. In any event, he confirmed that

both he and Jones knew as early as Friday that, because of Sotomayor’s cancer treatment,

there was a possibility that he would not be allowed by his doctors to travel to Houston to

testify, but this was not confirmed until Monday. Moreover, the cancer treatment “was

ongoing and would not be concluded in several weeks.” Therefore, on Monday, trial counsel

instructed Alexander to begin making arrangements with a court reporter in El Paso to

“administer the oath to tell the truth to Sotomayor and also be able to identify him as the

individual Jay Sotomayor.” They also began to make arrangements “to set up a web-cam

feed to the courtroom in Houston, Texas, or alternatively, a telephone feed[.]” 7 Valdez


       7

       Valdez also asserts in his affidavit that he “addressed the Court on two (2) occasions during
                                                                                   Frangias — 14


opined that Sotomayor was a friendly witness who had expressed a willingness to testify on

the appellant’s behalf if he could. “Consequently, a subpoena would not have brought him

to Houston, Texas to give testimony.” With respect to seeking a motion for continuance,

Valdez believed it was neither “necessary” nor “beneficial.” In the first place, he believed

that a continuance would have been impractical because of other witnesses who had to travel

to Houston from out of state. And in any event, a continuance was not needed because trial

counsel had already made extensive arrangements to have Sotomayor testify telephonically

or via “live picture feed into the courtroom.” And finally, with respect to the option of

deposing Sotomayor, like Jones, Valdez objected that “[i]f a deposition of this witness was

taken, the jury would not be able to see him in person!” Valdez confirmed the importance

of Sotomayor as the only available defense witness who could corroborate the appellant’s

testimony that K.H. was the intoxicated woman he had helped up to her room and that the

appellant never entered her room.

       The appellant filed no additional affidavits in response to Valdez’s and lodged no

further objections to the manner in which the motion for new trial was resolved. The trial

court never reconvened the hearing. Rather than make an explicit ruling on the motion, the

trial court allowed it to be denied by operation of law.




the trial about allowing the [appellant] to put on testimony of Sotomayor by telephone and/or video
feed.” While the record excerpts from trial, as set out above, confirm that Valdez twice mentioned
telephonic testimony to the trial court, there was simply no mention—at least none on the record—of
the possibility of video testimony or of a “web-cam feed” in the courtroom.
                                                                              Frangias — 15


                                           On Appeal

       On appeal, the appellant failed to contest the manner in which the trial court

adjudicated his motion for new trial. He did not complain that the trial court resolved the

motion on affidavits without permitting live testimony at the hearing. Instead, he simply

argued that, given the appellate record and the documentary evidence, the trial court erred

in allowing the motion for new trial to be denied by operation of law. In the Statement of

Facts in his appellate brief, the appellant pointed out that the trial court never explicitly

admitted the affidavits of Jones and Valdez into evidence during the hearing on his motion

for new trial, suggesting that for this reason they do not constitute competent evidence for

purposes of appellate review.8 He argued that, based upon his own affidavits, which were

formally admitted at the hearing, he had conclusively established trial counsel’s

ineffectiveness. The State did not directly address the appellant’s argument that Jones’s and

Valdez’s affidavits did not count as substantive evidence, but simply treated them as such in

its appellate brief.9

       On the other hand, the State challenged the legitimacy of Sotomayor’s notarized

statement on the ground that it did not establish on its face that Sotomayor had actually been




       8

        Appellant’s Brief on Direct Appeal at 19-20.
       9

        State’s Appellate Brief at 9-10.
                                                                               Frangias — 16


placed under oath by the notary when he executed it.10 In a reply brief, the appellant

countered that Sotomayor’s statement was “properly before the Court” if only because the

State forfeited any complaint about its unsworn character by failing to object to it on that

basis (or any other) when it was admitted at the motion for new trial hearing.11

       The court of appeals did not address any of these competing contentions. It simply

considered all of the affidavits in the record, without regard to whether they were properly

sworn or formally admitted into evidence at the hearing, and held that the trial court did not

abuse its discretion in denying the appellant’s motion for new trial.12 First, the court of

appeals held that the record supports a presumptive finding by the trial court that appellant’s

defense team did not subpoena Sotomayor or seek to depose him prior to trial because they

were unaware of his whereabouts before Friday, October 22, 2010.13 It would have been

useless to seek to depose Sotomayor by that time, the court of appeals held, because, “as the

trial court pointed out on the record, there was no proof that Sotomayor was medically

incapable of travel.”14 Moreover, any request for a deposition would have been untimely,


       10

       Id. at 8 & n.1.
       11

       Appellant’s Reply Brief on Direct Appeal at 1-2.
       12

       Frangias, supra, at 817.
       13

       Id. at 813.
       14

       Id. at 814.
                                                                                       Frangias — 17


given that the indictment had been pending for nearly a year, and the trial court would have

been within its rights to deny it on that basis.15 For these reasons, the appellant’s trial counsel

were not operating outside the bounds of prevailing professional norms in failing to secure

Sotomayor’s testimony, either live or by deposition.16

        Turning next to the question whether trial counsel performed deficiently in failing to

seek a continuance, the court of appeals pointed to Jones’s assertion that she did not seek one

because she did not think it would be granted. The court of appeals agreed, reiterating that

there was no sworn showing that Sotomayor was medically incapacitated, and adding that,

because the appellant had already obtained one (albeit brief) continuance in the case, he

would be required to show that he reasonably expected to be able to produce the witness’s

testimony “at the next term of the court.”17 “Because there is no evidence that defense

counsel could have made such a showing,” the court of appeals concluded, “we cannot say

that defense counsel rendered ineffective assistance by failing to move for a further

continuance.”18 Thus, the court of appeals resolved the appellant’s contentions by holding

        15

        Id.
        16

        Id.
        17

        Id. at 815 (quoting T EX. C ODE C RIM. P ROC. art. 29.07) (internal quotation marks omitted).
        18

         Id. In a motion for rehearing, the appellant argued that the court of appeals should reconsider
its opinion on original submission with respect to its holding that there was no evidence that
Sotomayor’s testimony could reasonably be expected to be procured by the next term of the court, as
is required for a second motion for continuance. Appellant’s Petition for Rehearing at 6. Ironically,
                                                                                        Frangias — 18


that the appellant failed to establish that his trial counsel performed deficiently for purposes

of fulfilling the first prong of Strickland v. Washington,19 and so the trial court did not abuse

its discretion to deny his motion for new trial.20 The court of appeals offered no opinion with

respect to the second prong of the Strickland standard—whether the appellant was prejudiced

by any deficiencies in trial counsel’s representation.21

                                    On Discretionary Review

        In his petition for discretionary review, the appellant contends that all of the

justifications offered by the court of appeals for why the trial court could have denied

defense motions to take Sotomayor’s deposition or continue the case were themselves the

product of trial counsel’s deficiencies. Even assuming that his trial counsel were unaware

of Sotomayor’s existence, location, and proposed testimony until the Friday before trial

began, the appellant contends, the fact that they may not have succeeded in persuading the

trial court to grant a deposition or a continuance at that late date was due entirely to

deficiencies in their own performance. We granted the appellant’s petition in order to



he cites to the affidavit of Lisa Jones as the evidentiary support for this proposition. Id. The court of
appeals denied his motion for rehearing without comment.
        19

        466 U.S. 668 (1984).
        20

        Frangias, supra, at 817.
        21

         See Strickland, supra, at 697 (“[T]here is no reason for a court deciding an ineffective
assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient
showing on one.”).
                                                                               Frangias — 19


consider these contentions. We hold that, by any view of the evidence, the court of appeals

erred in failing to conclude that the appellant’s trial counsel performed deficiently; we

therefore remand the cause to the court of appeals to determine whether the trial court could

have properly denied the appellant’s motion for new trial on the ground that he failed to

satisfy the prejudice component of Strickland and to address any evidentiary issues the

parties have raised that may prove necessary in order to make that determination.

                                     THE STANDARD

       An appellant claiming constitutionally ineffective assistance of counsel must establish

both that his trial counsel performed deficiently and that the deficiency operated to prejudice

him.22 Because the court of appeals addressed only the performance prong of Strickland and

did not reach the prejudice prong, our review today is similarly circumscribed. In evaluating

the performance prong, reviewing courts must not second-guess informed strategic or tactical

decisions made by trial counsel in the midst of trial, but instead “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance[.]”23 This means that, unless there is a record sufficient to demonstrate that

counsel’s conduct was not the product of an informed strategic or tactical decision, a

reviewing court should presume that trial counsel’s performance was constitutionally



       22

       Id. at 687.
       23

       Id. at 689.
                                                                                        Frangias — 20


adequate “unless the challenged conduct was so outrageous that no competent attorney would

have engaged in it.”24 Reviewing courts are obliged to defer to strategic and tactical

decisions of trial counsel, so long as those decisions are informed by adequate investigation

of the facts of the case and the governing law.25 Moreover, an accused is not entitled to

representation that is wholly errorless, and a reviewing court must look to the totality of the

representation in gauging the adequacy of counsel’s performance.26                 But even a single

instance of attorney error can rise to the level of deficient performance, if the error was

egregious and had a seriously deleterious impact on the balance of the representation.27 “The

proper measure of attorney performance remains simply reasonableness under prevailing

professional norms[,]” and “[c]ounsel . . . has a duty to bring to bear such skill and

knowledge as will render the trial a reliable adversarial testing process.” 28 The appellant

argues that his trial counsel failed to bring to bear the requisite degree of skill and knowledge

        24

        Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (internal quotation marks
omitted).
        25

        Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
        26

        Id.
        27

        Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992); Ex parte Zepeda, 819 S.W.2d 874
(Tex. Crim. App. 1991). See George E. Dix & John M. Schmolesky, 42 T EXAS P RACTICE: C RIMINAL
P RACTICE AND P ROCEDURE § 29:77, at 848 (3d ed. 2011) (“[A] single error can render counsel’s
performance ineffective, if its consequences are so severe that ‘it permeates the entirety of [counsel’s]
representation.’” (quoting Jackson v. State, 766 S.W.2d 504, 511 n.6 (Tex. Crim. App. 1985))).
        28

        Strickland, supra, at 688.
                                                                                     Frangias — 21


to his case as to assure a reliable adversarial proceeding. We agree.

                                           ANALYSIS

       Both sides now renew their challenges to the other side’s documentary evidence. The

court of appeals did not address any of these contentions. Because we conclude that, even

considering all of the evidence in the case, the court of appeals erred to conclude that the

appellant’s trial counsel did not render deficient performance, we will assume, without

deciding, that all of the evidence was properly before the trial court.

                                             Strategy

       The appellate record amply demonstrates that the failure to introduce testimony from

Sotomayor was not the product of any considered strategy on the part of the appellant’s trial

counsel. From the record excerpts set out above, it is evident that they believed his testimony

was a critical component of their defense and that they fervently wished to present it. It is

not hard to see why they would regard Sotomayor’s testimony so. Judging by Sotomayor’s

notarized statement and Alexander’s affidavit,29 Sotomayor was the only witness who could

directly corroborate the appellant’s account that the drunken woman who arrived at the hotel

at around midnight was K.H. and that he never entered her room.30 The affidavits of Jones


       29

        In her affidavit, Alexander avers that Sotomoyor’s testimony would have been “essential” to
the defense because “he had information that was supportive of [the appellant’s] claim that he (a) did
not have any sort of sexual contact or intercourse with the complainant and (b) did not enter the
complainant’s room on the night in question.”
       30

        At trial, the appellant attempted to introduce a written statement from James Murrell, another
                                                                                      Frangias — 22


and Valdez confirm that they both regarded Sotomayor’s putative testimony as

“exculpatory,” at least “beneficial,” if not “critical” to the appellant’s defense, and not

redundant of other defensive evidence, as the State claimed at trial.31

       Not surprisingly, then, the court of appeals did not purport to rely on the ordinary

appellate presumption that trial counsel’s omission was the product of a legitimate trial

strategy. Instead, the court of appeals seems to have determined that, once their initial

gambit for executing that strategy—remote sworn testimony via telephone, web-cam, or

video link—failed, the appellant’s trial counsel made a reasonable decision not to pursue any

other tactic to ensure that the jury would be able to hear Sotomayor’s admittedly “critical”

testimony. Because neither a deposition nor a continuance was a feasible alternative, the

court of appeals held, trial counsel did not perform deficiently by failing to ask for them. We

agree with the appellant, however, that the abandonment of alternative ways of implementing



witness in the lobby of the hotel, which also indicated that the drunken woman was K.H., that the
appellant helped her up to her room but then came right back down, and that he later took towels up
to her room but again came right back down. Murrell had died prior to the appellant’s trial, however,
and the trial court sustained the State’s objection to Murrell’s unsworn out-of-court statement.
       31

        Valdez’s affidavit asserts:

       As to the [State’s] objection to redundancy, Mr. Sotomayor’s testimony supported the
       testimony of [the appellant]; Mr. Sotomayor’s testimony verified that [the appellant]
       did not enter Ms. [K.H.]’s room; Mr. Sotomayor’s testimony stated that Ms. [K.H.]
       appeared to be intoxicated on the night of the alleged sexual assault; this testimony is
       totally contrary to Ms. [K.H.]’s testimony that she was not intoxicated. Finally, the
       testimony of Mr. Sotomayor further supported the position that the lady on the ground
       outside the hotel lobby door was that of Ms. [K.H.] and not some other individual as
       asserted by the prosecutor.
                                                                                           Frangias — 23


a particular trial strategy is reasonable only if trial counsel have undertaken reasonable efforts

to pursue those alternatives—by conducting a reasonable investigation and then bringing a

professionally appropriate level of knowledge and skill to bear—before deciding to abandon

them. If the likelihood that the trial court would not have granted a request for a deposition

or continuance in the appellant’s case is itself attributable to trial counsel’s lack of diligence

in preparing for the contingency that their first gambit might fail, we cannot fairly

characterize trial counsel’s performance as reasonable for Sixth Amendment purposes.

                                               Deposition

        Viewing the record in the light most favorable to the trial court’s ultimate ruling, the

court of appeals took for granted that the trial court had found, as a factual matter, that trial

counsel were unaware of Sotomayor’s location and the particulars of his account until

Alexander told them on the Friday (October 22nd ) before trial started.32 By that weekend,

trial counsel were endeavoring to obtain the services of a court reporter in an effort to


        32

          Frangias, supra at 813. The appellant’s affidavit contends that he told Jones about
Sotomayor’s potential testimony as early as June of 2010 and that she instructed him to obtain a sworn
statement in July, when he told her Sotomayor would be in Houston. And indeed, Sotomayor’s written
statement purports on its face to have been notarized on July 14, 2010—consistent with the appellant’s
account. Nevertheless, like the court of appeals, we will presume that the trial court chose to believe
trial counsel’s assertions that they did not become aware of the nature of Sotomayor’s testimony or his
whereabouts until October 22nd , when Alexander told them. We observe, however, that neither Jones
nor Valdez offered to explain in their affidavits why their investigation of the case had not already
uncovered such an obvious and critical witness. Indeed, among the many questions that the appellant
proffered to the trial court in support of his written objections to its denial of a live evidentiary hearing
on his motion for new trial were several directed at Jones that would have required her to explain the
extent of her investigation leading up to October 22nd and how she could possibly have conducted a
constitutionally adequate investigation and not already found Sotomayor.
                                                                               Frangias — 24


arrange Sotomayor’s remote testimony. They did not also immediately seek to depose

Sotomayor because, as Valdez expressed it, “the jury would not be able to see him in

person!” They offered no further explanation.

       The court of appeals held that they were not deficient in failing to pursue a deposition

because, in any event, the trial court could readily have denied such a request, on any of the

following three grounds.33 First, when a criminal defendant seeks to use a deposition at trial,

he must personally file an affidavit along with his application to depose. 34 Here, there was

no affidavit from the appellant.35 Second, no formal proof was offered to the trial court by

anyone with firsthand knowledge “that Sotomayor was medically incapable of travel.” 36

Finally, any request for a deposition with trial so imminent could have been denied as

untimely.37   In our view, however, the first two grounds are directly attributable to

deficiencies in trial counsel’s performance, while the last is not reasonably supported by the

case law that the court of appeals cited.

       We are aware of no provision in the Code of Criminal Procedure that speaks to the


       33

       Id. at 813-14.
       34

       T EX. C ODE C RIM. P ROC. arts. 39.02 & 39.12.
       35

       Frangias, supra, at 813.
       36

       Id. at 814.
       37

       Id.
                                                                                     Frangias — 25


admissibility of trial testimony of an ordinary witness via telephone or video link. By

contrast, Chapter 39 of the Code expressly contemplates the admissibility of testimony by

deposition under certain enumerated circumstances when a witness is missing. If a putative

witness is unavailable “by reason of . . . bodily infirmity” and therefore “cannot attend” trial,

a defendant may “read” the witness’s deposition testimony at trial.38 But he must first show

that there is “good reason” to take the witness’s deposition and, if he intends to use that

deposition at trial, he must personally swear out the affidavit that accompanies the

application to depose.39      The court of appeals correctly observed that depositions are

extraordinary and subject to the broad discretion of the trial court, but also that it is

appropriate to grant a deposition “if the witness has information critical to a significant factor

at trial, or if the witness has exclusive possession of certain information.” 40

       From trial counsel’s own affidavits it is apparent that, with the proper documentation,

they should have been able to meet this standard and therefore positioned themselves to make

a persuasive argument to the trial court that it should exercise its discretion to allow

Sotomayor’s deposition. After all, trial counsel displayed the wherewithal to make weekend

arrangements for a court reporter in contemplation of the contingency that the trial court

       38

        T EX. C ODE C RIM. P ROC. art. 39.12.
       39

        T EX. C ODE C RIM. P ROC. art. 39.02.
       40

       Frangias, supra, at 812 n.3 (citing, inter alia, Janecka v. State, 937 S.W.2d 456, 468-70 (Tex.
Crim. App. 1996) (per curiam)).
                                                                                 Frangias — 26


would allow telephonic or video-link testimony over an inevitable State’s objection. It is not

hard to imagine that trial counsel could at least as readily have obtained affidavits from their

own client and from Sotomayor himself, if not his doctor, to satisfy the statutorily governed

(and therefore more definite) criteria for taking deposition testimony and admitting it at

trial—establishing both the good cause to take Sotomayor’s deposition and the verity of the

medical condition that prevented him from traveling. We do not think it was reasonable for

trial counsel to prefer the first, unregulated method for implementing their trial strategy to

the exclusion of the second, statutorily authorized method.

       Both of the appellant’s trial counsel complained in their respective affidavits that the

jury would not have been able “to see” Sotomayor. If by this they meant to suggest that his

deposition testimony would have been objectionable on this basis alone, they are inexcusably

mistaken about the law.         Article 39.12 of the Code of Criminal Procedure clearly

contemplates that deposition testimony may be “read” at trial so long as the statutory criteria

are met, regardless of the jury’s inability “to see” the witness.41 Perhaps, alternatively, trial

counsel meant to indicate that they would have preferred that the jurors not even hear

Sotomayor’s testimony unless they could also “see” it, so that they could evaluate his

credibility, for instance. But, given the unique importance of Sotomayor’s testimony to the

appellant’s defense, we would not regard this as a choice that any reasonable trial attorney



       41

        T EX. C ODE C RIM. P ROC. art. 39.12.
                                                                                       Frangias — 27


would make. The appellant had absolutely nothing to lose by admitting Sotomayor’s

deposition, even if it constitutes a sub-optimal form of testimony. For these reasons we reject

the only explanation that trial counsel offered for failing to seek a deposition.

        What, then, about the timeliness of an application to take Sotomayor’s deposition?

Even had trial counsel presented it before jury selection started on Monday, the court of

appeals held, the trial court could have denied it solely on the basis that it would have been

filed after “the indictment had been pending for just three days less than a year, [the]

appellant had been represented by his two retained attorneys for more than four months, the

trial was repeatedly set and rescheduled; and the trial court previously continued the case at

[the] appellant’s request.”42 For the proposition that such an application would be untimely,

the court of appeals cited several cases holding that a trial court does not abuse its discretion

to deny an application for deposition filed on the eve of trial.

        Insofar as we can tell, however, each of these cases involves a defendant’s application

to depose State’s witnesses, in a bald and belated attempt at discovery.43 In this case, the

        42

        Frangias, supra, at 814.
        43

         See Langston v. State, 416 S.W.2d 821, 822 (Tex. Crim. App. 1967) (trial court did not abuse
its discretion to deny application to depose a State’s witness three days before trial was set to begin
when trial counsel had had two months to prepare); Jasso v. State, 699 S.W.2d 658, 662-63 (Tex.
App.—San Antonio 1985, no pet.) (trial court did not abuse its discretion to deny the defendant’s
motion to depose the prosecutrix four days before trial for the express purpose of discovering “the
nature of [her] testimony” where the motion was not timely and the record revealed that the defendant
was not disadvantaged by the lack of discovery). See also Aguilar v. State, 468 S.W.2d 75, 78-79
(Tex. Crim. App. 1971) (citing Langston, supra, to hold that no abuse of discretion to deny application
to depose multiple witnesses unidentified in the opinion because the application was not filed until the
                                                                                        Frangias — 28


application to depose Sotomayor would not constitute an abusive attempt at discovery, but

instead (assuming that trial counsel were genuinely unaware of Sotomayor’s existence,

location, and unavailability to testify in person until the Friday before trial, notwithstanding

their own diligent investigation), a reasonably timely attempt to preserve critical testimony

that might otherwise be lost.44 Chapter 39 imposes no hard and fast deadline for the filing

of an application for deposition.45 It is far from a foregone conclusion that the trial court

would have denied an application to depose Sotomayor as time-barred on the facts presented.

Indeed, the trial court might well have granted it, and trial counsel cannot be excused from

making the attempt, if only to preserve the issue for appeal. In any event, even if the trial

court could justifiably have denied an application for continuance on the ground that




very day of trial and the defendant had announced that he was ready for trial two days before).
        44

         See Collins v. State, 24 Tex. App. 141, 149-50, 5 S.W. 848, 850 (1887) (construing “bodily
infirmity” for purposes of the predecessor to Article 39.12 and holding that the infirmity need not be
permanent so long as witness cannot presently attend trial; trial court “did not err in permitting his
[deposition] testimony to be read”); Freeman v. State, 115 Tex. Crim. 66, 69, 30 S.W.2d 330, 331
(1930) (disavowing Collins’s construction of the statute to the extent that it is the State that seeks to
use deposition testimony of a witness who is not permanently disabled, observing that to permit the
State to do so “where the impediment to the attendance of the witness is merely of a temporary nature”
would impinge upon a criminal defendant’s constitutional rights to confrontation and compulsory
process); George E. Dix & John M. Schmolesky, 42 T EXAS P RACTICE: C RIMINAL P RACTICE AND
P ROCEDURE § 27:106, at 618 (3rd ed. 2011) (“Until the 1965 revision of the Code [of Criminal
Procedure], . . . depositions were designed primarily and perhaps exclusively to preserve testimony and
procure it from infirm and out-of-State witnesses.”); id. § 27:116, at 626 (“The deposition process is,
of course, clearly still available to preserve testimony.”).
        45

         Dix & Schmolesky, supra, § 27:108, at 620 (“There is [not] a rigid timeframe [for filing
applications to depose] imposed by the Code.”).
                                                                                        Frangias — 29


Sotomayor’s “infirmity” did not render him permanently unavailable,46 trial counsel might

still have used such a request to tactical advantage in an attempt to persuade the trial court,

alternatively, to grant a second continuance of the case until such time as Sotomayor could

become available.47

                                            Continuance

        With respect to the appellant’s claim that his trial counsel should also have sought a

second continuance, the court of appeals found no deficient performance because “there is

no evidence that [the] appellant’s trial counsel could have met the statutory requirements

governing such motions[.]”48 First, “[a]ll motions for continuance must be sworn to by a

person having personal knowledge of the facts relied on for the continuance.” 49 Because

there was “no evidence that anyone with personal knowledge of Sotomayor’s condition was

willing to swear that [Sotomayor] was medically unable to travel to Houston” for trial, the



        46

        See Freeman, supra.
        47

         The record presents no particular reason to doubt that counsel could have obtained affidavits
from the appellant and from Sotomayor or his doctor by Monday, the day jury selection began. Neither
Jones nor Valdez has explained in their respective affidavits why they did not divulge to the trial court
the need to secure Sotomayor’s testimony—one way or another—any sooner than at midday during
the testimony on Tuesday. If an application to depose Sotomayor that would have been reasonable and
timely if made on Monday morning is rendered abusively late because trial counsel inexplicably waited
until midday Tuesday to file it, that is just another deficiency in their performance.
        48

        Frangias, supra, at 814-15.
        49

        Id. at 815 (quoting T EX. C ODE C RIM. P ROC. art. 29.08) (internal quotation marks omitted).
                                                                               Frangias — 30


court of appeals suggested, this statutory requisite was not satisfied.50

       This strikes us as an overly parsimonious view of the record, at least considering (as

the court of appeals did) the totality of the affidavits, including the State’s affidavits from

trial counsel. Alexander, the paralegal, asserted that she made a concerted effort to locate

Sotomayor during the week before trial. When she was finally able to speak to him on

Friday, October 22nd , “[h]e was more than willing to come to Houston to provide testimony

consistent with” his notarized statement. When Jones spoke to Sotomayor the next day,

according to her affidavit, “[h]e informed [her] that he wanted to come and testify.” Valdez

confirms that, sometime during that weekend, “Jones informed me that Mr. Sotomayor was

willing to come to Houston, Texas, but he had to clear it with his doctor.” Both attorneys

claim that they did not believe it was necessary to subpoena Sotomayor precisely because he

was such a “willing” witness. It is no great stretch to infer from the totality of the

documentary evidence that, had the appellant’s trial counsel simply asked Sotomayor to

provide an affidavit in support of a motion for continuance, once it became apparent that his

doctor would not “clear” him to travel, to the effect that his medical condition rendered him

unavailable to testify, he would eagerly have supplied one. That trial counsel did not

anticipate the need for such an affidavit is but another indication of their deficiency—either

deficient knowledge of the statutory requisites for a motion for continuance, or deficient



       50

       Id.
                                                                                           Frangias — 31


diligence in capturing Sotomayor’s testimony.

        The second statutory requirement for a motion for continuance that the court of

appeals found lacking was any demonstration that the appellant had a reasonable expectation

of procuring Sotomayor’s testimony for trial at the next term of the court.51 But, while this

circumstance may yet prove an insurmountable impediment to the appellant’s satisfaction of

the prejudice prong of Strickland—a question that we leave to the court of appeals to

consider on remand—we do not regard it as determinative of the performance prong. The

affidavits of Alexander, Jones, and Valdez all establish that, at the time of the appellant’s

trial, Sotomayor was undergoing chemotherapy treatment at the Veterans Administration

Hospital in El Paso. Jones and Valdez each assert that the treatment was for “cancer,” but

they do not identify a particular form of cancer.52 Valdez indicates that, as of the time of

trial, “Mr. Sotomayor’s cancer treatment was ongoing and would not be concluded in several

weeks.” Moreover, he was told by Alexander that, “as of early December 2010, Mr.

        51

        Id. at 815. See T EX. C ODE C RIM. P ROC. art. 29.07(2) (“Subsequent motions for continuance
on the part of the defendant shall, in addition to the requisites in [Article 29.06], state also . . . [t]hat
the defendant has reasonable expectation of procuring [the missing witness’s testimony] at the next
term of the court.”).
        52

         At trial, Valdez represented to the trial court that Sotomayor was suffering from prostate
cancer. See p. 6, ante. According to the American Cancer Society’s web site, men who have been
diagnosed with prostate cancer have a 5-year “relative survival rate” (that is, as compared with other
men of the same age who have not been diagnosed with cancer) of 100%. Their 10-year “relative
survival rate” is 98%, while their 15 year “relative survival rate” is 91%. See Survival Rates for
Prostate Cancer, C ANCER.ORG, http://www.cancer.org/cancer/prostatecancer/overguide/prostate-cancer
-overview-survival-rates (last updated Jan. 17, 2013). In their affidavits, however, neither Jones nor
Valdez confirms that Sotomayor’s cancer was of the prostate.
                                                                                           Frangias — 32


Sotomayor [was] still undergoing cancer treatment and that he [was] scheduled for surgery

as it pertains to the cancer treatment.” But the “next term” of the 262 nd District Court of

Harris County would have extended from the first Monday in November of 2010 through the

first four business days of February of 2011.53 There is nothing in the record necessarily to



        53

         See T EX. G OV’T C ODE § 24.439(c) (“The terms of the 262nd District Court begin on the first
Mondays in February, May, August, and November. Each term continues until the court has disposed
of the business for that term.”). We judicially notice that the first Monday of February 2011 fell on
February 7th . In order to satisfy the literal terms of Article 29.07(2), then, the appellant’s trial counsel
would have had to show that he could reasonably expect to procure Sotomayor’s testimony for any trial
setting that would begin no later than Friday, February 4, 2011.

        Professors Dix and Schmolesky have suggested that the rubric of “terms of court” has become
anachronistic for purposes of requests for the delay of trials. “Modern practice, under which the terms
of the trial court are usually of no significance, makes the formal statutory requirements totally
unrealistic.” George E. Dix & John M. Schmolesky, 43 T EXAS P RACTICE: C RIMINAL P RACTICE AND
P ROCEDURE § 33:43, at 199 (3rd ed. 2011). They go on to suggest that

               [w]hat would most reasonably be required are two separate things. First, the
        moving party should be required to specify the approximate delay the party believes
        necessary to . . . produce the witness. Second, the moving party should be required to
        represent that there is a reasonable expectation of procuring the witness during that
        time.

Id. Elsewhere in their treatise they observe that,

                [a]lthough the courts have not made this explicit, the case law effectively
        means that a party seeking any delay must demonstrate a reasonable likelihood (i.e.,
        a “probability”) of securing the witness’s presence if the trial court grants the delay
        requested. This is the case regardless of whether the delay sought would move the case
        into the next term of the trial court. The better practice would certainly be to require
        the party both to specify the delay sought and to demonstrate the likelihood of the
        witness being secured within the requested time period.

See id, § 33:52, at 210-11 (footnotes omitted). Given our ultimate disposition of the issue post, we
need not contemplate the propriety of taking such liberties with the statutory language in the present
case.
                                                                                        Frangias — 33


suggest that Sotomayor’s cancer was terminal or that he could not possibly be available to

travel for the next two months, notwithstanding any treatment or surgery he had scheduled

for early December of 2010. More importantly, there is nothing in the affidavits of Jones and

Valdez to suggest that they even thought to investigate this possibility in pursuit of a second

motion for continuance.

        Instead, because other witnesses had to travel from out of state and Canada, Jones

opined that “the filing of another continuance was not practical nor did I believe it would be

granted by the Court.” Valdez similarly believed “that it was not necessary or beneficial” to

file a motion for continuance on account of Sotomayor’s absence, both because the defense

was already poised to offer his testimony electronically from El Paso, should the trial court

permit it, and because other witnesses would be inconvenienced by a delay. But neither

Jones nor Valdez offered the opinion (nor plausibly could have, in our estimation) that any

of the defense witnesses that they actually did call at trial (other than the appellant himself)

was more critical to their chosen defensive posture than Sotomayor. It was therefore

incumbent upon them to conduct an investigation that was adequate to determine whether it

was possible to satisfy the statutory criteria for a second continuance that would assure

Sotomayor’s presence to testify.54          Given the obvious and overriding importance of

        54

         In order to perform adequately, “counsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations unnecessary.” Strickland, supra, at
691. Perhaps (although they have not expressly said so) Jones and Valdez believed that the trial court
would not likely grant a second motion for continuance— even assuming that they could have satisfied
the statutory criteria—so there was no point in investigating. With so little to lose and so much to gain
                                                                                      Frangias — 34


Sotomayor’s testimony to trial counsel’s admitted strategy for defending the case, we cannot

permit their uninformed pessimism that the trial court would actually grant a second motion

for continuance to excuse their failure to investigate and pursue it in the first place by the

simple expedient of inquiring of Sotomayor or his doctor whether his medical condition

would prevent him from testifying at any time over the next several months. They evidently

made no such inquiry.

                                         CONCLUSION

       For the above reasons, we hold that the court of appeals erred to conclude that trial

counsel’s performance did not fall below the threshold of reasonableness under prevailing

professional norms, for purposes of a first-prong Strickland analysis.                This does not

necessarily mean, of course, that the trial court erred to deny the appellant’s motion for new

trial. There remains the question of whether it was within the trial court’s considerable

discretion to allow the motion for new trial to be denied by operation of law on the ground




by trying to obtain a continuance, however, they cannot have reasonably decided that such an
investigation was unnecessary. Cf. Wiggins v. Smith, 539 U.S. 510, 522 (2003) (focusing not on
whether trial counsel performed ineffectively by failing to present mitigating evidence at capital
punishment phase, but whether the investigation that informed the decision not to present that evidence
was adequate); Ex parte Briggs, 187 S.W.3d 458, 466-69 (Tex. Crim. App. 2005) (trial counsel
performs deficiently by making a purely “economic” decision not to fully investigate potential
defensive evidence). If nothing else, an investigation resulting in an affidavit from a “willing”
Sotomayor or his doctor demonstrating that he should be available to testify at least before the end of
the next term of court would, if all other statutory criteria were met, present a reasonable basis for
appeal in the event that the trial court should deny a second continuance—and perhaps a retrial, should
the appeal succeed, at which Sotomayor would be able to testify.
                                                                                      Frangias — 35


that the appellant failed to satisfy the prejudice prong of Strickland.55 As we have noted

repeatedly, the court of appeals did not reach the prejudice prong of Strickland. Moreover,

in addressing the question of prejudice, it may also be necessary to resolve the competing

contentions with regard to the evidentiary status of the various affidavits submitted by the

parties—another issue that was raised, at least incidentally, but not resolved originally by the

court of appeals. When there is no decision of the court of appeals on a particular issue in a

case, this Court does not ordinarily reach that issue in the first instance.56 Especially when

the proper resolution of such extant matters is not plain, we will allow the court of appeals

to pass upon them first and review the lower appellate court’s decision on remand only as we

deem fit in our capacity as a discretionary review court.57 Accordingly, we reverse the

judgment of the court of appeals and remand the cause to that court for further consideration

not inconsistent with this opinion.

DELIVERED:             February 27, 2013
PUBLISH



       55

        See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (appellate court reviews
ruling on motion for new trial under abuse of discretion standard, reversing only when no reasonable
view of the record could support the trial court’s ruling).
       56

        E.g., Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009).
       57

         See Fuller v. State, 363 S.W.3d 583, 589 n.30 (Tex. Crim. App. 2012) (for the sake of judicial
economy, this Court may pass upon the question of harm in the first instance, but only when it is plain
that the error is harmless, vel non; ordinarily, we do not exercise our discretionary review authority
to make an initial harm analysis).
