                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                             ____________________
                                NO. 09-17-00033-CR
                             ____________________

                      SALVADOR ARELLANO, Appellant

                                           V.

                        THE STATE OF TEXAS, Appellee

________________________________________________________________________

                   On Appeal from the Criminal District Court
                           Jefferson County, Texas
                          Trial Cause No. 15-22929
________________________________________________________________________

                           MEMORANDUM OPINION

      In a single issue, Salvador Arellano contends he received ineffective

assistance of counsel during his trial at which the jury found him guilty of indecency

with a child. See Tex. Penal Code Ann. § 21.11(a)(2) (West Supp. 2018). 1 Arellano

asserts his trial counsel was ineffective by failing to impeach the testimony of the



      1
         We cite to the current version of the statute, as it does not affect the outcome
of this appeal.
                                           1
complainant and other witnesses supporting the complainant’s allegations. We

conclude Arellano failed to meet his burden of showing his trial counsel rendered

ineffective assistance. We overrule his issue and affirm the trial court’s judgment.

                                     Background

      According to the complainant, while watching television with her little cousin

at her aunt and uncle’s house one evening in June of 2013, her uncle, Arellano, came

into the room and asked if she wanted a massage. Arellano began massaging her legs

and then proceeded to touch her inappropriately. The complainant, who was fifteen

years old at the time of the incident, claimed she texted her sister immediately,

relayed what happened, and asked her sister to pick her up, but her sister was not

available. About a year after the complainant alleged Arellano committed these acts,

she told her mother, who then sought help for her daughter. This resulted in the

investigation that led to Arellano’s trial and guilty verdict for committing indecency

with a child.

      After the trial, Arellano’s appellate counsel filed a motion for new trial

claiming Arellano received ineffective assistance of counsel. Specifically, Arellano

argued in the motion, as well as in his appellate brief, his trial counsel was ineffective

by failing to impeach the complainant’s testimony by asking her during cross-

examination whether she had ever told her grandmother, M. Contreras, that Arellano

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had not inappropriately touched her. Arellano claims the complainant told Contreras

he had not committed the act and Contreras was available to testify at trial and would

have told the jury the complainant recanted the allegations. Additionally, Arellano

argues his trial counsel failed to impeach the complainant, her mother, and her sister

by asking them whether the complainant had falsely accused Arellano of sexual

contact to obtain legal residency for the complainant’s mother as a relative of a crime

victim. According to Arellano, the complainant’s mother told M. Osburn, an

acquaintance, in June 2013, in the presence of the complainant and her sister, that

she was “going to do something to make someone beat [her] up or rape [her] or rape

one of [her] daughters” so that complainant’s mother could obtain legal residency in

the U.S. pursuant to a “U Visa,” which allegedly provides the victim of a crime or a

relative of the victim residency. Osburn was also available to testify for the defense

regarding this statement.

      Arellano attached the affidavits of both Contreras and Osburn to his motion

for new trial, as well as other affidavits explaining these statements were conveyed

to Arellano’s trial counsel, and the witnesses were available to testify at trial. The

trial court denied Arellano’s motion for new trial, and this appeal ensued.




                                          3
                         Ineffective Assistance of Counsel

      To prevail on a claim of ineffective assistance of counsel, an appellant must

satisfy a two-pronged test:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the defendant
      by the Sixth Amendment. Second, the defendant must show that the
      deficient performance prejudiced the defense. This requires showing
      that counsel’s errors were so serious as to deprive the defendant of a
      fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,

726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986). An appellant must demonstrate a

reasonable probability that but for his counsel’s errors, the outcome would have been

different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). “Appellate

review of defense counsel’s representation is highly deferential and presumes that

counsel’s actions fell within the wide range of reasonable and professional

assistance.” Id.

      The right to effective assistance of counsel ensures the right to “reasonably

effective assistance[,]” it does not require counsel be perfect or the representation be

errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).

Arellano must prove there was no professional reason for specific acts or omissions

of his counsel. See Bone, 77 S.W.3d at 836. The appropriate context is the totality

                                           4
of the representation; counsel is not to be judged on isolated portions of his

representation. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999);

Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990).

      Arellano filed a motion for new trial. Attached to his motion were several

affidavits, namely those of Contreras and Osburn. As explained above, Contreras is

the complainant’s grandmother and claimed the complainant told her that Arellano

did not inappropriately touch her, and the allegations were false. Additionally,

Osburn explained in her affidavit that the complainant’s mother told her in the

presence of the complainant and her sister that she planned on making up something

regarding her being hurt or raped, or her daughters being raped to obtain a special

visa for victims of crimes or victims’ relatives. Arellano contended his trial counsel

was ineffective by failing to use these witnesses, who he argued were available to

testify in his defense at trial to impeach the testimony of the complainant, her mother,

and sister.

      The State filed its response to Arellano’s motion for new trial and attached the

affidavit of Arellano’s trial counsel. Arellano’s trial counsel acknowledged he was

aware of Contreras and Osburn and their claims concerning the allegations against

Arellano. Arellano’s trial counsel called six witnesses during the guilt/innocence

stage of trial, including Arellano himself. Additionally, in his affidavit, Arellano’s

                                           5
trial counsel asserted he “presented the witnesses [he] felt were needed and most

credible” for Arellano’s defense.

      “Weighing the advantages and disadvantages of calling a particular witness to

testify is a matter usually left within the province of trial counsel’s discretion.” Ex

parte Ruiz, 543 S.W.3d 805, 821 (Tex. Crim. App. 2016) (quoting Ruiz v. Thaler,

783 F. Supp. 2d 905, 949 (W.D. Tex. 2011)). In addition, any allegations of

ineffectiveness “must be ‘firmly founded in the record’ and ‘the record must

affirmatively demonstrate’ the meritorious nature of the claim.” Menefield v. State,

363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Thompson, 9 S.W.3d at 813).

      Consequently, on this record, we cannot conclude Arellano received

ineffective assistance of counsel. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005). Arellano has failed to defeat the strong presumption that

counsel’s decisions during trial fell within the wide range of reasonable professional

assistance. See Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 814. We overrule

Arellano’s sole issue on appeal and affirm the trial court’s judgment.

      AFFIRMED.



                                              ______________________________
                                                     CHARLES KREGER
                                                           Justice

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Submitted on February 16, 2018
Opinion Delivered October 31, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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