PD-0675&0676&0677&0678-15                           PD-0675&0676&0677&0678-15
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                      Transmitted 6/3/2015 12:32:20 PM
                                                        Accepted 6/4/2015 10:11:28 AM
                                                                        ABEL ACOSTA
                          NO. ___________                                       CLERK

               IN THE COURT OF CRIMINAL APPEALS

                      FOR THE STATE OF TEXAS

   _____________________________________________________________

                        RODOLFO CISNEROS,
                           PETITIONER

                                VS.

                      THE STATE OF TEXAS,
                           RESPONDENT
   _____________________________________________________________


      APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

       OF THE DECISION IN THE THIRD COURT OF APPEALS

   CAUSE NOS. 03-13-00206-CR, 03-13-00207-CR, 03-13-00208-CR and
                           03-13-00209

   _____________________________________________________________

                                 LINDA ICENHAUER-RAMIREZ
                                 ATTORNEY AT LAW
                                 1103 NUECES
       June 4, 2015              AUSTIN, TEXAS 78701
                                 TELEPHONE: 512-477-7991
                                 FACSIMILE: 512-477-3580
                                 LJIR@AOL.COM
                                 SBN: 10382944

                                 ATTORNEY FOR PETITIONER


        ORAL ARGUMENT IS RESPECTFULLY REQUESTED
                                TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................... 3

STATEMENT REGARDING ORAL ARGUMENT .............................. 6

IDENTITY OF JUDGE, PARTIES AND COUNSEL ............................ 6

STATEMENT OF THE CASE................................................................ 7

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ... 10

GROUND FOR REVIEW NUMBER ONE ............................................ 11
  THE	   COURT	   OF	   APPEALS	   ERRED	   WHEN	   IT	   SAID	   THAT	   THE	  
  RECORD	   DOES	   NOT	   REFLECT	   THAT	   TRIAL	   COUNSEL	   WERE	  
  GIVEN	   AN	   OPPORTUNITY	   TO	   EXPLAIN	   IF	   THEIR	   ACTIONS	  
  COULD	  BE	  ATTRIBUTED	  TO	  REASONABLE	  TRIAL	  STRATEGY.	  

       ARGUMENT................................................................................. 11

GROUND FOR REVIEW NUMBER TWO ............................................ 16
  THE	   OPINION	   OF	   THE	   COURT	   OF	   APPEALS	   FAILED	   TO	  
  ADDRESS	   TRIAL	   COUNSELS’	   ERRORS	   FOR	   WHICH	   THERE	  
  COULD	   BE	   NO	   REASONABLE	   TRIAL	   STRATEGY,	   SUCH	   AS	  
  ELICITING	   EVIDENCE	   OF	   EXTRANEOUS	   SEXUAL	   OFFENSES	  
  ALLEGEDLY	   COMMITTED	   BY	   PETITIONER	   AGAINST	   THE	  
  COMPLAINANT,	   NOT	   OBJECTING	   TO	   THE	   STATE	   ASKING	  
  WITNESSES	  IF	  THEY	  BELIEVED	  THE	  ALLEGED	  VICTIM	  WAS	  
  TELLING	   THE	   TRUTH	   IN	   VIOLATION	   OF	   TEX.R.EV.	   608,	  
  OPENING	   THE	   DOOR	   AND	   ENABLING	   THE	   STATE	   TO	   ASK	  
  THE	   STATE’S	   EXPERT	   IF	   SHE	   THOUGHT	   THE	   COMPLAINANT	  
  HAD	   BEEN	   ABUSED,	   NOT	   KNOWING	   THE	   LAW	   APPLICABLE	  
  TO	   THE	   CASE,	   NOT	   KNOWING	   THE	   RULES	   OF	   EVIDENCE,	  
  AND	   NOT	   KNOWING	   THE	   REQUIREMENTS	   OF	   PERFECTING	  
  ERRORS	  FOR	  APPEAL.	  

       ARGUMENT................................................................................. 16



	                                               2	  
GROUND FOR REVIEW NUMBER THREE ....................................... 24
  THE	   COURT	   OF	   APPEALS	   FAILED	   TO	   PROPERLY	   ANALYZE	  
  THE	  PREJUDICE	  PRONG	  OF	  STRICKLAND	  V.	  WASHINGTON.	  
  	  
       ARGUMENT .................................................................................................... 24	  

CONCLUSION AND PRAYER.............................................................. 26

CERTIFICATE OF COMPLIANCE ....................................................... 28

CERTIFICATE OF SERVICE ................................................................ 29

APPENDIX .............................................................................................. 30

       Cisneros v. State, 2015 Tex.App.LEXIS 2330, No. 03-13-00206-
          CR, No. 03-13-00207-CR, No. 03-13-00208-CR, No. 03-13-
          00209-CR (Tex.App.-Austin, delivered March 12, 2015)




	                                                            3	  
                                                      INDEX OF AUTHORITIES

CASES                                                                                                                                                          PAGES

Andrews	  v.	  State,	  159	  S.W.3d	  98,	  102	  (Tex.Cr.App.	  2005) ..................... 16	  
	  
Barefoot	  v.	  State,	  596	  S.W.2d	  875,	  887-­‐888	  (Tex.Cr.App.	  1980).......... 21	  

Cisneros v. State, 2015 Tex.App.LEXIS 2330, Nos. 03-13-00206-CR,
      03-13-00207-CR, 03-13-00208-CR, 03-13-00209-CR (Tex.App.-
      Austin, delivered March12, 2015) ............................................10, 11

Davis	  v.	  State,	  413	  S.W.3d	  816,	  828	  (Tex.App.-­‐Austin	  2013,	  pet.	  
	  	  	  	  	  	  	  	  	  	  	  	  ref.) ...............................................................................................16,	  18,	  23,	  28	  
	  
Ex	  parte	  Welborn,	  785	  S.W.2d	  391,	  396	  (Tex.Cr.App.	  1990)................. 27	  
	  
Fuller	  v.	  State,	  224	  S.W.3d	  823,	  833	  (Tex.App.-­‐Texarkana	  2007,	  
	  	  	  	  	  	  	  	  	  	  	  no	  pet.) .........................................................................................19,	  20,	  26,	  27	  	  
	  
Kjellerson	  v.	  State,	  1999	  Tex.App.LEXIS	  5344	  (Tex.App.-­‐San	  
                                               Antonio	  1999,	  no	  pet.)................................................................................ 23	  	  

Pyles	  v.	  State,	  755	  S.W.2d	  98,	  118	  (Tex.Cr.App.	  1988) ............................. 21	  	  
	  
Sandoval	  v.	  State,	  409	  S.W.3d	  259,	  289-­‐290	  (Tex.App.-­‐Austin	  
	  	  	  	  	  	  	  	  	  	  	  	  2013,	  no	  pet.) .......................................................................................... 24,	  26	  
	  
Sessums	  v.	  State,	  129	  S.W.3d	  242	  (Tex.App.-­‐Texarkana	  2004,	  
	  	  	  	  	  	  	  	  	  	  	  pet.	  ref’d).................................................................................................... 26,	  27	  
	  
Schutz	  v.	  State,	  957	  S.W.2d	  52,	  76	  (Tex.Cr.App.	  1997) ...................... 19,	  20	  
	  
Strickland	  v.	  Washington,	  466	  U.S.	  668,	  104	  S.Ct.	  2052,	  80	  L.Ed.2d	  
                                               674	  (1984)....................................................................................................... 24	  
	  
Wall	  v.	  State,	  184	  S.W.3d	  730	  (Tex.Cr.App.	  2006) ...................................... 22	  
	  
Yount	  v.	  State,	  872	  S.W.2d	  706,	  708	  (Tex.Cr.App.	  1993) ......................... 20	  


	                                                                                      4	  
	  
CONSTITUTIONS

Sixth	  Amendment,	  United	  States	  Constitution .....................................22,	  26



COURT RULES

Tex.R.App.Proc.	  66.3(a) .................................................................. 23,	  24,	  26,	  27	  
	  
Tex.R.App.Proc.	  66.3(c) ........................................................................................26	  	  	  	  	  

Tex.R.App.Proc. 66.3(f).................................................................... 15, 24

Tex.R.Ev. 608 ..........................................................................................19

Tex.R.Ev. 608(a) ......................................................................................17

Tex.R.Ev.	  613.............................................................................................................. 22	  
	  
	  Tex.R.Ev.	  801(e)(1)(B).......................................................................................... 22




	                                                                  5	  
                 STATEMENT REGARDING ORAL ARGUMENT

          Petitioner has raised important questions of first impression in this

Court and believes that oral argument would help clarify the issues presented

in his petition for discretionary review. Therefore he respectfully requests

oral argument.



                IDENTITY OF JUDGE, PARTIES AND COUNSEL

Trial Judge: The Honorable William Henry, 428th Judicial District Court of
              Hays County, Texas

Parties and Counsel:

	  	  	  	  	  	  	  (a)	  the	  State	  of	  Texas	  represented	  by:	  
                                    Ms.	  Cathy	  Compton,	  Asst.	  District	  Attorney	  –	  trial	  attorney	  
                                    Ms.	  Amy	  Lockhart,	  Asst.	  District	  Attorney	  –	  trial	  attorney	  
                                    Ms.	   Angie	   D.	   Roberts-­‐Huckaby,	   Asst.	   District	   Attorney	   –	  
                                           appellate	  attorney	  
                                    Hays	  County	  District	  Attorney's	  Office	  	  
                                    Hays	  County	  Justice	  Center	  
                                    712	  South	  Stagecoach	  Trail,	  Suite	  2057	  
                                    San	  Marcos,	  Texas	  78666	  
	  
	  	  	  	  	  	  	  (b)	  Mr.	  Rodolfo	  Cisneros,	  represented	  by:	  
                                    Mr.	  Mark	  Morales	  –	  trial	  attorney	  
                                    Mr.	  Carson	  Guy	  –	  trial	  attorney	  
                                    307	  Rock	  Street,	  Building	  2	  	  
                                    Georgetown,	  Texas	  78626	  
	  
                                    Ms.	  Linda	  Icenhauer-­‐Ramirez	  -­‐	  appellate	  attorney	  
                                    1103	  Nueces	  
                                    Austin,	  Texas	  78701	  
                                                                        	  



	                                                           6	  
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

                  NOW COMES Rodolfo Cisneros, Petitioner in this cause by and

through his attorney, Linda Icenhauer-Ramirez, and, pursuant to the

provisions of Tex.R.App.Proc. 66, et seq.,                                                                                                  moves this Court to grant

discretionary review, and in support will show as follows:



                                                               STATEMENT OF THE CASE

                  In Third Court of Appeals Cause No. No. 03-13-00206-CR, Petitioner

was indicted the offense of aggravated sexual assault of a child under the age

of six years by penetrating the child’s anus with his finger or fingers.1 (C.R.

8) On March 1, 2013, after hearing the evidence and argument of both the

State and the defense, the jury found Petitioner guilty of the offense of

aggravated sexual assault of a child under the age of six years. (R.R. VI, pp.

85-86; C.R. 64-68)                                                   On March 1, 2013, after hearing the punishment

evidence and argument from both the State and the defense, the judge

assessed Petitioner’s punishment at seventy (70) years imprisonment to be

served concurrently with Petitioner’s other three sentences. Petitioner was


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1	   This	   case	   was	   joined	   with	   three	   other	   indictments	   in	   a	   single	   jury	   trial.	   	   	   Petitioner	  

was	   convicted	   of	   aggravated	   sexual	   assault	   in	   all	   four	   cases.	   	   	   This	   consolidated	  
petition	  for	  discretionary	  review	  is	  being	  filed	  for	  all	  four	  causes.	  

	                                                                                                           7	  
sentenced that day.    (R.R. VI, pp. 123-125; C.R. 70-71) Petitioner filed a

motion for new trial on March 7, 2013. (C.R. 73) Notice of appeal was

filed on March 25, 2013.      (C.R. 78)       The trial court’s certification of

defendant’s right of appeal was filed on March 1, 2013.     (C.R. 69)

       In Third Court of Appeals Cause No. No. 03-13-00207-CR, Petitioner

was indicted for the offense of aggravated sexual assault under the age of six

years by penetrating or contacting the sexual organ of a child with his

mouth.      (C.R. 4)   On March 1, 2013, after hearing the evidence and

argument of both the State and the defense, the jury found Petitioner guilty

of the offense of aggravated sexual assault of a child under the age of six

years. (R.R. VI, pp. 85-86; C.R. 30-35)       On March 1, 2013, after hearing

the punishment evidence and argument from both the State and the defense,

the judge assessed Petitioner’s punishment at seventy (70) years

imprisonment to be served concurrently with Petitioner’s other three

sentences. Petitioner was sentenced that day.      (R.R. VI, pp. 123-125; C.R.

36-37) Petitioner filed a motion for new trial on March 7, 2013. (C.R. 40)

Notice of appeal was filed on March 25, 2013. (C.R. 45) The trial court’s

certification of defendant’s right of appeal was filed on March 1, 2013.

(C.R. 38)

       In Third Court of Appeals Cause No. 03-13-00208-CR,            Petitioner



	                                    8	  
was indicted for the offense of aggravated sexual assault of a child under the

age of six years by penetrating the sexual organ of the child with his finger

or fingers. (C.R. 4) On March 1, 2013, after hearing the evidence and

argument of both the State and the defense, the jury found Petitioner guilty

of the offense of aggravated sexual assault of a child under the age of six

years. (R.R. VI, pp. 85-86; C.R. 30-34)       On March 1, 2013, after hearing

the punishment evidence and argument from both the State and the defense,

the judge assessed Petitioner’s punishment at seventy (70) years

imprisonment to be served concurrently with Petitioner’s other three

sentences. Petitioner was sentenced that day.     (R.R. VI, pp. 123-125; C.R.

35-36) Petitioner filed a motion for new trial on March 7, 2013. (C.R. 39)

Notice of appeal was filed on March 25, 2013. (C.R. 44) The trial court’s

certification of defendant’s right of appeal was filed on March 1, 2013.

(C.R. 37)

       In Third Court of Appeals Cause No. 03-13-00209-CR,          Petitioner

was indicted for the offense of aggravated sexual assault of a child under the

age of six years by penetrating the sexual organ of the child with his finger

or fingers. (C.R. 4) On March 1, 2013, after hearing the evidence and

argument of both the State and the defense, the jury found Petitioner guilty

of the offense of aggravated sexual assault of a child under the age of six



	                                    9	  
years. (R.R. VI, pp. 85-86; C.R. 30-34)       On March 1, 2013, after hearing

the punishment evidence and argument from both the State and the defense,

the judge assessed Petitioner’s punishment at seventy (70) years

imprisonment to be served concurrently with Petitioner’s other three

sentences. Petitioner was sentenced that day.     (R.R. VI, pp. 123-125; C.R.

35-36) Petitioner filed a motion for new trial on March 7, 2013. (C.R. 39)

Notice of appeal was filed on March 25, 2013. (C.R. 44) The trial court’s

certification of defendant’s right of appeal was filed on March 1, 2013.

(C.R. 37)



            STATEMENT OF THE PROCEDURAL HISTORY

       On March 12, 2015, the Third Court of Appeals handed down an

opinion in these cases. Cisneros v. State, 2015 Tex.App. LEXIS 2330, Nos.

03-13-00206-CR, 03-13-00207-CR, 03-13-00208-CR, 03-13-00209-CR

(Tex.App.-Austin, delivered March 12, 2015). A motion for rehearing was

filed in each cause. On May 4, 2015, the Third Court of denied Petitioner’s

motions for rehearing.     The petition for discretionary review is due to be

filed on or before June 3, 2015.




	                                   10	  
                          GROUND FOR REVIEW NUMBER ONE
THE	  COURT	  OF	  APPEALS	  ERRED	  WHEN	  IT	  SAID	  THAT	  THE	  RECORD	  
DOES	   NOT	   REFLECT	   THAT	   TRIAL	   COUNSEL	   WERE	   GIVEN	   AN	  
OPPORTUNITY	   TO	   EXPLAIN	   IF	   THEIR	   ACTIONS	   COULD	   BE	  
ATTRIBUTED	  TO	  REASONABLE	  TRIAL	  STRATEGY.	  
                                                                  	  
        In	   its	   opinion	   the	   panel	   of	   the	   Third	   Court	   of	   Appeals	   makes	   short	  

shrift	   of	   Petitioner’s	   claim	   of	   ineffective	   assistance	   of	   counsel	   by	  

asserting	  “the	  record	  is	  silent	  as	  to	  whether	  there	  was	  a	  strategic	  reason	  

for	   counsels’	   conduct	   or	   what	   the	   particular	   strategy	   was.”	   	   Cisneros v.

State, 2015 Tex.App.LEXIS 2330 *5, No. 03-13-00206-CR, 03-13-00207-

CR, 03-13-00208-CR, 03-13-00209-CR (Tex.App.-Austin, delivered March

12, 2015).            The	   Court	   then	   writes	   that	   the	   assertions	   by	   appellate	  

counsel	   that	   there	   was	   no	   reasonable	   trial	   strategy	   for	   trial	   counsels’	  

actions	   are	   “mere	   speculation.”	   	   Cisneros v. State, 2015 Tex.App.LEXIS

2330 *5, No. 03-13-00206-CR, 03-13-00207-CR, 03-13-00208-CR, 03-13-

00209-CR (Tex.App.-Austin, delivered March 12, 2015).                                                  The	   Court’s	  

opinion	   goes	   on	   to	   say	   that	   because	   the	   record	   does	   not	   contain	   an	  

explanation	   of	   trial	   counsel’s	   conduct,	   the	   court	   will	   presume	   they	  

exercised	   reasonable	   professional	   judgment.	   	   The	   Court	   of	   Appeals’	  

assertion	   that	   trial	   counsel	   was	   never	   able	   to	   explain	   whether	   their	  

conduct	  amounted	  to	  reasonable	  trial	  strategy	  is	  incorrect.	  	  	  The	  record	  



	                                                          11	  
in	  this	  case	  is	  unusual	  in	  that	  it	  reflects	  that	  trial	  counsel’s	  performance	  

was	  so	  questionable	  that	  on	  several	  occasions	  even	  the	  State	  questioned	  

trial	   counsel	   outside	   the	   presence	   of	   the	   jury	   as	   to	   whether	   trial	  

counsel’s	   actions	   could	   be	   chalked	   up	   as	   “trial	   strategy.”	   	   Two	   of	   these	  

instances	  are	  set	  out	  below:

            	  

       1.               When	  trial	  counsel	  unwittingly	  opened	  the	  door	  so	  that	  the	  
                        State	   could	   ask	   the	   lead	   detective	   if	   he	   thought	   Petitioner	  
                        was	  guilty.	  
                        	  
	  	  	  	  	  During	   cross-­‐examination	   of	   the	   lead	   detective,	   Petitioner’s	   trial	  

counsel	   began	   asking	   the	   lead	   detective	   if	   he	   thought	   he	   had	   probable	  

cause	   to	   believe	   Petitioner	   was	   guilty.	   	   	   The	   State,	   recognizing	   that	  

asking	  a	  law	  enforcement	  officer	  his	  personal	  belief	  as	  to	  a	  defendant’s	  

guilt	   was	   totally	   improper,	   asked	   to	   approach	   the	   bench	   and	   a	  

conversation	   occurred	   during	   which	   trial	   counsel	   told	   the	   court	   that	  

pursuing	   this	   line	   of	   question	   was	   indeed	   trial	   strategy.	   	   Trial	   counsel	  

affirmatively	  stated	  to	  the	  trial	  court	  that	  it	  was	  his	  belief	  that	  this	  line	  

of	   questioning	   was	   not	   improper.	   	   	   Counsel	   then	   resumed	   his	  

questioning	   of	   the	   detective	   and	   ended	   up	   asking	   the	   detective	   point	  

blank:	   	   “So	   you	   don’t	  –	   do	   you	   have	   a	   belief	   regarding	   my	   client’s	   guilt?”	  	  

The	  detective	  knowing	  this	  was	  an	  improper	  question,	  side-­‐stepped	  the	  


	                                                               12	  
question	   in	   his	   answer.	   	   	   (R.R.	   III,	   p.	   127-­‐131)	   	   A	   few	   minutes	   later	   on	  

redirect,	  the	  prosecutor	  asked	  the	  detective	  if	  he	  had	  formed	  an	  opinion	  

as	  to	  whether	  the	  defendant	  was	  guilty	  and	  the	  detective	  replied	  that	  he	  

believed	  Petitioner	  was	  guilty.	  	  	  (R.R.	  III,	  pp.	  174-­‐175)	  

	         In	   its	   opinion	   in	   footnote	   3,	   the	   Court	   of	   Appeals	   attributes	   this	  

line	   of	   questioning	   to	   Petitioner’s	   trial	   counsel’s	   possible	   strategy	   in	  

trying	  to	  demonstrate	  the	  bias	  of	  the	  State’s	  witnesses.	  	  	  However,	  if	  this	  

was	   true	   and	   if	   trial	   counsel	   had	   truly	   wanted	   that	   information	   before	  

the	  jury,	  they	  would	  have	  asked	  the	  detective	  directly	  what	  his	  opinion	  

was	  as	  to	  Petitioner’s	  guilt	  or	  innocence.	  	  That	  never	  happened.	  	  Rather	  

trial	   counsel’s	   inartful	   questioning	   opened	   the	   door	   so	   that	   the	   State	  

could	  put	  this	  inadmissible	  evidence	  before	  the	  jury.	  

           Again,	  footnote	  3	  of	  the	  Court’s	  opinion	  rationalizes	  that	  it	  might	  

have	   been	   trial	   counsels’	   strategy	   to	   elicit	   this	   information	   in	   order	   to	  

show	  the	  bias	  of	  the	  State’s	  witnesses.	  	  However,	  the	  record	  reflects	  that	  

when	   the	   State	   asked	   the	   detective	   if	   he	   had	   formed	   an	   opinion	   as	   to	  

whether	  the	  defendant	  was	  guilty,	  trial	  counsel	  realized	  the	  mistake	  he	  

had	   made	   and	   tried	   to	   prevent	   the	   detective	   from	   answering	   the	  

question	  by	  voicing	  an	  objection	  of	  “leading”	  to	  the	  State’s	  question.	  	  The	  

trial	   court	   overruled	   trial	   counsel’s	   objection	   and	   the	   witness	   was	  


	                                                                13	  
allowed	   to	   testify	   that	   he	   believed	   Petitioner	   was	   guilty.	   	   (R.R.	   III,	   pp.	  

174-­‐175)	   	   Certainly,	   if	   the	   Court	   of	   Appeals	   was	   correct	   in	   analyzing	  

trial	  counsel’s	  strategy,	  trial	  counsel	  would	  not	  have	  voiced	  an	  objection	  

to	  this	  testimony.	  

       2.     When	   trial	   counsel	   began	   questioning	   the	   lead	   detective	  
              about	  the	  inadmissible	  topic	  of	  polygraphs.	  
	  
            During	   his	   cross-­‐examination	   of	   the	   lead	   detective,	   Petitioner’s	  

trial	   counsel	   began	   asking	   the	   detective	   if	   it	   was	   common	   for	   law	  

enforcement	   to	   ask	   defendants	   to	   take	   polygraph	   examinations.	   	   The	  

State	  immediately	  asked	  to	  approach	  the	  bench	  and	  then	  asked	  defense	  

counsel	   if	   he	   was	   trying	   to	   provoke	   a	   mistrial.	   	   Trial	   counsel,	   totally	  

oblivious	  to	  the	  error	  is	  his	  line	  of	  questioning,	  responding	  to	  the	  issue	  

of	  whether	  he	  was	  trying	  to	  provoke	  a	  mistrial,	  says:	  

                    “Are	   you	   kidding	   me?	   	   	   I	   think	   we	   are	   doing	   great.”	  	  
          (R.R.	  III,	  pp.	  154-­‐155)	  	  
                    	  
A	   discussion	   then	   ensued	   which	   showed	   that	   trial	   counsel	   had	   no	   idea	  

that	  the	  topic	  of	  polygraph	  examinations	  is	  inadmissible.	  	  	  (R.R.	  III,	  pp.	  

155-­‐157)	   	   Certainly	   a	   strategy	   premised	   on	   ignorance	   of	   the	   law	   cannot	  

be	  deemed	  reasonable.	  	  	  	  

	          The	   panel	   of	   the	   Court	   of	   Appeals	   was	   in	   error	   when	   it	   said	   that	  

Petitioner’s	   trial	   counsel	   was	   given	   no	   opportunity	   to	   explain	   whether	  


	                                                              14	  
his	  actions	  were	  reasonable	  trial	  strategy.	  	  	  As	  shown	  above,	  at	  least	  in	  

two	   instances	   during	   the	   trial,	   Petitioner’s	   trial	   attorneys	   were	  

questioned	   by	   the	   State	   and	   the	   trial	   court	   as	   to	   whether	   their	   course	   of	  

conduct,	   while	   highly	   improper,	   was	   trial	   strategy.	   	   In	   both	   of	   those	  

instances,	  Petitioner’s	  “trial	  strategy”	  was	  not	  reasonable,	  was	  improper	  

and	  resulted	  in	  severely	  harming	  Petitioner’s	  case.	  

          Here the failure of the panel of the Third Court of Appeals to conduct

a thorough review of Petitioner’s claim of ineffective assistance of counsel

and to hide behind the statement that Petitioner’s trial attorneys did not have

an opportunity to explain their strategy is indefensible.                                         In employing this

excuse and failing to address the merits of Petitioner’s claim, the Court of

Appeals has so far departed from the accepted and usual course of judicial

proceedings as to call for an exercise of the Court of Criminal Appeals’

power of supervision.                     Tex.R.App.Proc. 66.3(f). This ground for review

should be granted.




	                                                            15	  
                    GROUND FOR REVIEW NUMBER TWO
THE	   OPINION	   OF	   THE	   COURT	   OF	   APPEALS	   FAILED	   TO	   ADDRESS	  
TRIAL	   COUNSELS’	   ERRORS	   FOR	   WHICH	   THERE	   COULD	   BE	   NO	  
REASONABLE	   TRIAL	   STRATEGY,	   SUCH	   AS	   ELICITING	   EVIDENCE	   OF	  
EXTRANEOUS	   SEXUAL	   OFFENSES	   ALLEGEDLY	   COMMITTED	   BY	  
PETITIONER	   AGAINST	   THE	   COMPLAINANT,	   NOT	   OBJECTING	   TO	  
THE	   STATE	   ASKING	   WITNESSES	   IF	   THEY	   BELIEVED	   THE	   ALLEGED	  
VICTIM	  WAS	  TELLING	  THE	  TRUTH	  IN	  VIOLATION	  OF	  TEX.R.EV.	  608,	  
OPENING	   THE	   DOOR	   AND	   ENABLING	   THE	   STATE	   TO	   ASK	   THE	  
STATE’S	  EXPERT	  IF	  SHE	  THOUGHT	  THE	  COMPLAINANT	  HAD	  BEEN	  
ABUSED,	  NOT	  KNOWING	  THE	  LAW	  APPLICABLE	  TO	  THE	  CASE,	  NOT	  
KNOWING	   THE	   RULES	   OF	   EVIDENCE,	   AND	   NOT	   KNOWING	   THE	  
REQUIREMENTS	  OF	  PERFECTING	  ERRORS	  FOR	  APPEAL.	  
	  
	  
         The	   opinion	   of	   the	   Court	   of	   Appeals	   also	   fails	   to	   discuss	   those	  

errors	   that	   are	   so	   egregious	   that	   there	   could	   be	   no	   reasonable	   trial	  

strategy	  that	  would	  justify	  trial	  counsels’	  actions.	  	  As	  the	  Third	  Court	  of	  

Appeal	  recently	  wrote	  in	  Davis	  v.	  State,	  413	  S.W.3d	  816,	  828	  (Tex.App.-­‐

Austin	   2013,	   pet.	   ref.)	   “’when	   no	   reasonable	   trial	   strategy	   could	   justify	  

the	   trial	   counsel’s	   conduct,	   counsel’s	   performance	   falls	   below	   an	  

objective	   standard	   of	   reasonableness	   as	   a	   matter	   of	   law,	   regardless	   of	  

whether	   the	   record	   adequately	   reflects	   the	   trial	   counsel’s	   subjective	  

reasons	   for	   [his	   actions].	   	   Andrews	   v.	   State,	   159	   S.W.3d	   98,	   102	  

(Tex.Crim.App.	   2005).’”	   	   The	   record	   in	   Petitioner’s	   case	   shows	   that	   his	  

trial	  counsel	  committed	  several	  of	  those	  errors	  and	  the	  Court	  of	  Appeals	  




	                                                       16	  
failed	   to	   address	   them	   on	   Petitioner’s	   direct	   appeal.	   	   	   These	   errors	  

include	  the	  following:	  

       1. Trial	   Counsel	   Eliciting	   Evidence	   of	   Petitioner’s	   Own	  
          Extraneous	  Offenses	  
          	  
          During	   cross-­‐examination	   of	   Petitioner’s	   wife,	   Petitioner’s	   trial	  

counsel	   asked	   her	   if	   Petitioner	   had	   ever	   shown	   “any	   proclivities	  

towards	   any	   sexually	   deviant	   behavior.”	   	   The	   State	   fearing	   that	   once	  

again,	  counsel	  was	  about	  to	  commit	  further	  error,	  asked	  to	  approach	  the	  

bench	   and	   warned	   defense	   counsel	   that	   if	   the	   witness	   answered	  

affirmatively,	  she	  would	  then	  be	  able	  to	  describe	  additional	  extraneous	  

offenses.	  	  	  Defense	  counsel,	  apparently	  realizing	  the	  big	  mistake	  he	  was	  

about	   to	   make,	   told	   the	   court	   that	   he	   would	   move	   on.	   	   	   (R.R.	   IV,	   pp.	   114-­‐

116)	   	   But	   a	   little	   while	   later,	   defense	   counsel,	   in	   what	   could	   only	   be	  

described	  as	  very	  unreasonable	  trial	  strategy,	  asked	  the	  following:	  	  

       	  “So	   would	   it	   be	   fair	   to	   say	   that	   prior	   to	   these	   allegations	  
       that	  brought	  us	  here	  today,	  you	  never	  suspected	  that	  Rudy	  
       had	  ever	  done	  anything	  inappropriate	  with	  A____?”	  	  	  (R.R.	  IV,	  
       pp.	  120)	  
       	  
Petitioner’s	   wife	   then	   proceeded	   to	   tell	   the	   jury	   about	   two	   other	  

instances	   she	   saw	   where	   she	   believed	   that	   Petitioner	   was	   having	   sexual	  

contact	  with	  the	  child.	  	  	  (R.R.	  IV,	  pp.	  120-­‐121,	  129-­‐130,	  134-­‐135)	  




	                                                                 17	  
	         The	  opinion	  of	  the	  Court	  of	  Appeals	  did	  not	  address	  this	  lapse	  by	  

trial	   counsel.	   	   	   Petitioner	   asserts	   again	   as	   he	   did	   on	   direct	   appeal	   that	  

there	   can	   be	   no	   reasonable	   trial	   strategy	   that	   would	   justify	   defense	  

counsel	   eliciting	   two	   more	   extremely	   damaging	   extraneous	   offenses	  

from	   a	   State’s	   witness.	   	   	   There	   was	   no	   need	   to	   have	   Petitioner’s	   trial	  

attorneys	  attempt	  to	  explain	  their	  trial	  strategy	  with	  respect	  to	  this	  part	  

of	   their	   performance.	   	   	   Case	   law	   is	   clear	   that	   defense	   counsel’s	  

representation	  is	  deficient	  when	  he	  elicits	  extraneous	  offense	  evidence	  

against	   his	   own	   client	   which	   would	   otherwise	   not	   have	   been	   admissible	  

during	  the	  guilt-­‐innocence	  phase	  of	  the	  trial.	  	  	  Davis	  v.	  State,	  supra.	  

       2.	  Trial	  Counsel	  Failing	  to	  Object	  to	  the	  Admission	  of	  Extraneous	  
                Offenses	  
                	  
             During	   the	   State’s	   case-­‐in-­‐chief,	   Petitioner’s	   wife	   testified	  

nonresponsively	   that	   Petitioner	   had	   a	   habit	   of	   smoking	   pot.	   	   	   Trial	  

counsel	   voiced	   no	   objection	   to	   this	   testimony.	   	   	   Instead	   the	   State	  

approached	   the	   bench	   and	   asked	   the	   judge	   to	   admonish	   the	   witness	  

about	   testifying	   about	   Petitioner’s	   bad	   acts.	   	   	   The	   State	   (and	   not	  

Petitioner’s	   trial	   counsel)	   also	  asked	  the	  judge	  to	  give	  the	  jury	  a	  limiting	  

instruction.	   	   (R.R.	   IV,	   pp.	   78-­‐79)	   	   	   How	   can	   Petitioner’s	   trial	   counsels’	  




	                                                            18	  
failure	   to	   object	   and	   protect	   their	   client	   be	   reasonable	   trial	   strategy?	  	  	  

The	  opinion	  of	  the	  Court	  of	  Appeals	  did	  not	  discuss	  this	  lapse	  at	  all.	  	  	  	  	  

       3.     Trial	  Counsel	  Failing	  to	  Object	  When	  the	  State	  Asked	  Several	  
              of	   its	   Witnesses	   if	   They	   Believed	   the	   Alleged	   Victim	   was	  
              Telling	  the	  Truth	  in	  Violation	  of	  Tex.R.Ev.	  608.	  
	  
            The	  opinion	  of	  the	  Court	  of	  Appeals	  failed	  to	  address	  the	  instances	  

raised	   in	   Petitioner’s	   brief	   when	   Petitioner’s	   trial	   counsel	   failed	   to	  

object	  to	  the	  State’s	  repeated	  violation	  of	  Tex.R.Ev.	  608.	  	  	  This	  occurred	  

when	   the	   State	   asked	   the	   child’s	   mother	   if	   she	   believed	   the	   child	   was	  

telling	   the	   truth	   (R.R.	   IV,	   p.	   180)	   and	   when	   the	   State	   asked	   the	   child’s	  

father	  if	  he	  believed	  the	  child	  was	  telling	  the	  truth	  (R.R.	  IV,	  p.	  186).	  	  	  The	  

law	   is	   clear	   that	   a	   lay	   witness	   may	   not	   testify	   to	   the	   complainant’s	  

truthfulness.	   	   	   Schutz	   v.	   State,	   957	   S.W.2d	   52,	   76	   (Tex.Cr.App.	   1997);	  

Fuller	  v.	  State,	  224	  S.W.3d	  823,	  833	  (Tex.App.-­‐Texarkana	  2007,	  no	  pet.);	  

Tex.R.Ev.	  608(a).	  	  

            	  	  	  Trial	   counsel	   also	   failed	   to	   object	   when	   the	   State	   asked	   the	  

complainant’s	   counselor	   Stephanie	   Watts	   if	   she	   saw	   any	   red	   flags	   that	  

indicated	   that	   the	   complainant	   was	   fabricating	   the	   allegations	   against	  

Petitioner.	   	   	   	   (R.R.	   V,	   pp.	   77-­‐80,	   85)	   	   	   Once	   again	   this	   was	   not	   a	  

reasonable	   trial	   strategy.	   	   	   Had	   Petitioner’s	   trial	   counsel	   wanted	   this	  

information	   before	   the	   jury,	   he	   would	   have	   asked	   it	   of	   the	   witness.	  	  	  


	                                                               19	  
Instead,	  he	  stood	  quietly	  by	  and	  allowed	  Watts	  to	  testify	  in	  response	  to	  

at	  least	  four	  different	  questions,	  that	  she	  believed	  the	  complainant	  was	  

telling	   the	   truth.	   	   	   This	   was	   in	   clear	   violation	   of	   the	   law.	   	   	   See	  Yount	   v.	  

State,	   872	   S.W.2d	   706,	   708	   (Tex.Cr.App.	   1993);	   Fuller	   v.	   State,	   supra;	  

Schutz	  v.	  State,	  supra.	  	  	  	  Certainly	  there	  can	  be	  no	  reasonable	  strategic	  

reason	   to	   allow	   the	   State	   to	   violate	   this	   clear	   rule	   and	   introduce	   such	  

damaging,	  improper	  evidence.	  	  

       4.     Trial	  Counsel	  Opening	  the	  Door	  and	  Enabling	  the	  Prosecutor	  
              to	  ask	  the	  State’s	  Expert	  if	  She	  Thought	  the	  Complainant	  Had	  
              Been	  Abused.	  
	  
            On	   page	   51	   of	   Petitioner’s	   brief	   on	   original	   appeal,	   Petitioner	  

asked	   the	   Court	   of	   Appeals	   to	   address	   the	   instance	   where	   Petitioner’s	  

trial	   counsel	   began	   cross-­‐examining	   the	   State’s	   expert	   Melissa	  

Rodriguez	   about	   the	   complainant’s	   truthfulness	   and	   opened	   the	   door	   so	  

that	   the	   State	   was	   able	   to	   ask	   if	   she	   believed	   that	   the	   complainant	   was	   a	  

victim	  of	  child	  abuse.	  	  	  The	  Court	  of	  Appeals	  opinion	  did	  not	  address	  this	  

lapse,	   instead	   relying	   on	   the	   umbrella	   theory	   that	   perhaps	   it	   was	   the	  

trial	  attorney’s	  strategy	  to	  argue	  that	  of	  course,	  all	  the	  State’s	  witnesses	  

would	   believe	   the	   complainant	   and	   therefore	   were	   biased.	   	   	   Petitioner	  

would	   assert	   that	   there	   was	   no	   such	   reasonable	   strategy	   behind	   trial	  

counsel’s	   actions.	   	   	   If	   that	   was	   the	   strategy,	   trial	   counsel	   would	   have	  


	                                                                    20	  
asked	  the	  State’s	  expert	  witness	  the	  ultimate	  question	   –-­‐	  did	  she	  believe	  

that	   the	   complainant	   was	   being	   abused	   by	   Petitioner.	   	   	   Trial	   counsel	   did	  

not	  do	  so.	  	  	  

       5.	  	  Failing	  to	  Know	  and	  Apply	  the	  Rules	  of	  Evidence.	  
	  
	             Beginning	   on	   page	   39	   of	   his	   brief	   on	   original	   appeal,	   Petitioner	  

presented	   two	   examples	   from	   the	   record	   that	   demonstrated	   that	  

Petitioner’s	   trial	   counsel	   did	   not	   understand	   the	   Rules	   of	   Evidence	   or	  

the	   law	   applicable	   to	   the	   case.	   	   	   The	   first	   involved	   one	   of	   Petitioner’s	  

trial	   attorneys	   asking	   a	   hypothetical	   question	   to	   a	   non-­‐expert	   witness,	  

specifically	   Petitioner’s	   wife.	   	   	   The	   law	   is	   clear	   that	   hypothetical	  

questions	  are	  to	  be	  used	  only	  in	  the	  examination	  of	  experts.	  	  See	  Pyles	  v.	  

State,	   755	   S.W.2d	   98,	   118	   (Tex.Cr.App.	   1988);	   Barefoot	   v.	   State,	   596	  

S.W.2d	   875,	   887-­‐888	   (Tex.Cr.App.	   1980).	   	   	   An	   attorney	   needs	   to	   be	  

familiar	  with	  the	  rules	  of	  trial	  procedure	  and	  evidence	  if	  they	  are	  going	  

to	  effectively	  represent	  their	  clients.	  

       6.	  	  	  Failing	  to	  Know	  and	  Apply	  the	  Law	  Applicable	  to	  the	  Case.	  

               The	  second	  example	  involved	  the	  same	  attorney	  trying	  to	  make	  an	  

objection	   when	   the	   State	   offered	   into	   evidence	   State’s	   Exhibit	   25,	   the	  

actual	   interview	   of	   Petitioner’s	   wife.	   	   	   A	   review	   of	   the	   record	   shows	   that	  

trial	  counsel’s	  objection	  was	  improper	  in	  that	  the	  case	  law	  cited	  by	  the	  


	                                                            21	  
attorney	   was	   not	   applicable	   to	   the	   situation	   at	   hand.	   	   	   Trial	   counsel	  

objected	   to	   the	   evidence	   on	   the	   basis	   of	   Petitioner’s	   Sixth	   Amendment	  

right	   to	   confrontation	   and	   cited	   the	   case	   of	   Wall	   v.	   State,	   a	   2007	   case	  

from	   the	   Court	   of	   Criminal	   Appeals.	   	   	   (R.R.	   IV,	   pp.	   127-­‐128)	   	   His	  

objection	   was	   overruled.	   	   	   Trial	   counsel’s	   objection	   was	   not	   correct	  

because	   there	   was	   no	   denial	   of	   cross-­‐examination	   and	   confrontation.	  	  	  

Petitioner’s	   wife	   was	   on	   the	   stand	   and	   trial	   counsel	   had	   just	   finished	  

cross-­‐examining	   her.	   	   	   A	   reading	   of	   Wall	   v.	   State,	   184	   S.W.3d	   730	  

(Tex.Cr.App.	  2006)	  shows	  that	  it	  was	  not	  applicable	  to	  Petitioner’s	  case	  

because	   it	   actually	   involved	   introducing	   a	   statement	   of	   a	   nontestifying	  

witness.	   	   	   There	   was	   a	   correct	   objection	   to	   make	   –	   namely	   that	   the	  

admission	   of	   Petitioner’s	   wife’s	   statement	   was	   a	   violation	   of	   Tex.R.Ev.	  

613	  and	  Tex.R.Ev.	  801(e)(1)(B).	  	  	  However,	  trial	  counsel	  failed	  to	  make	  

the	  proper	  objection	  and	  error	  was	  not	  preserved	  for	  appeal.	  	  

       7. 	  	  Failing	   to	   Know	   How	   to	   Object	   and	   Preserve	   Error	   For	  	  	  	  
          Appeal.	  	  	  
	  
           On	  page	  45	  of	  Petitioner’s	  brief,	  Petitioner	  pointed	  out	  an	  instance	  

during	   trial	   where	   trial	   counsel	   failed	   to	   preserve	   an	   error	   for	   appeal	  

when	   the	   State	   elicited	   improper	   hearsay	   testimony	   from	   Melissa	  

Rodriguez,	  the	  director	  of	  the	  local	  child	  advocacy	  center.	  	  	  Once	  again,	  



	                                                           22	  
there	   can	   be	   no	   reasonable	   trial	   strategy	   for	   a	   defense	   attorney	   not	   to	  

preserve	   error	   for	   appeal.	   	   	   And	   case	   law	   holds	   that	   failing	   to	   make	   a	  

motion	   for	   mistrial	   and	   thus	   preserve	   a	   point	   of	   error	   for	   review	   on	  

appeal	   “fall[s]	   below	   norms	   of	   professional	   conduct.”	   	   	   Kjellerson	   v.	  

State,	   1999	   Tex.App.LEXIS	   5344	   (Tex.App.-­‐San	   Antonio	   1999,	   no	   pet.).	  	  	  

Despite	  this	  holding,	  the	  Court	  of	  Appeals	  opinion	  failed	  to	  address	  this	  

lapse	  by	  trial	  counsel.	  

          These	   errors	   were	   so	   egregious,	   there	   was	   no	   way	   that	   they	   could	  

ever	  be	  considered	  reasonable	  trial	  strategy.	  	  	  The	  opinion	  of	  the	  Court	  

of	   Appeals	   was	   wrong	   when	   it	   failed	   to	   address	   Petitioner’s	   claims	   of	  

ineffective	  assistance	  of	  counsel	  due	  to	  trial	  counsel	  not	  being	  given	  an	  

opportunity	   to	   explain	   if	   their	   actions	   were	   part	   of	   a	   reasonable	   trial	  

strategy.	   	   	   The	   opinion	   of	   the	   Court	   of	   Appeals	   in	   this	   case	   directly	  

conflicts	   with	   another	   opinion	   of	   the	   Third	   Court	   of	   Appeals,	   Davis	   v.	  

State,	   413	   S.W.3d	   816,	   828	   (Tex.App.-­‐Austin	   2013,	   pet.	   ref.)	   and	   the	  

Court	   of	   Criminal	   Appeals	   needs	   to	   address	   this	   conflict	   and	   give	  

guidance	   to	   the	   Third	   Court	   of	   Appeals.	   	   	   Tex.R.App.Proc.	   66.3(a).	   	   	   In	  

addition,	  by	  failing	  to	  review	  Petitioner’s	  claims	  of	  ineffective	  assistance	  

of	   counsel	   when	   there	   could	   no	   explanation	   of	   a	   reasonable	   trial	  

strategy,	  the	  Court	  of	  Appeals	  has	  so	  far	  departed	  from	  the	  accepted	  and	  


	                                                            23	  
usual	   course	   of	   judicial	   proceedings	   as	   to	   call	   for	   an	   exercise	   of	   the	  

Court	   of	   Criminal	   Appeals’	   power	   of	   supervision.	   	   	   Tex.R.App.Proc.	  

66.3(f). This ground for review should be granted.



                          GROUND FOR REVIEW NUMBER THREE
THE	   COURT	   OF	   APPEALS	   FAILED	   TO	   PROPERLY	   ANALYZE	   THE	  
PREJUDICE	  PRONG	  OF	  STRICKLAND	  V.	  WASHINGTON.	  
        	  
        In	   its	   opinion,	   the	   Court	   of	   Appeals	   wrote	   that	   the	   Petitioner’s	  

claims	  of	  prejudice	  were	  speculative	  and	  without	  support	  in	  the	  record.	  	  	  

Petitioner	  urges	  the	  Court	  of	  	  Criminal	  Appeals	  to	  examine	  the	  prejudice	  

prong	   of	   the	   inquiry	   into	   ineffective	   assistance	   of	   counsel	   in	   his	   case.	  	  	  

Strickland	   v.	   Washington,	   466	   U.S.	   668,	   104	   S.Ct.	   2052,	   80	   L.Ed.2d	   674	  

(1984).	   	   	   In	   the	   recent	   case	   of	   Sandoval	   v.	   State,	   409	   S.W.3d	   259,	   289-­‐

290	   (Tex.App.-­‐Austin	   2013,	   no	   pet.),	   the	   Third	   Court	   of	   Appeals	  

discussed	  the	  “he	  said,	  she	  said”	  nature	  of	  these	  types	  of	  cases.2	  	  	  	  Just	  as	  

in	   Sandoval,	   the	   only	   direct	   evidence	   of	   a	   sexual	   assault	   in	   Petitioner’s	  
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2	  Interestingly	  Sandoval	  was	  a	  child	  sexual	  abuse	  case	  tried	  in	  the	  same	  county	  and	  

with	   the	   same	   prosecutors	   as	   in	   appellant’s	   case.	   	   	   The	   Third	   Court	   of	   Appeals	  
reversed	  Sandoval’s	  case	  because	  of	  errors	  very	  similar	  to	  the	  errors	  that	  occurred	  
in	   appellant’s	   case.	   	   	   	   The	   only	   difference	   is	   that	   in	   Sandoval,	   Sandoval’s	   attorneys	  
did	  not	  commit	  the	  error	  or	  by	  their	  actions,	  open	  the	  door	  so	  that	  the	  State	  could	  
commit	   the	   error.	   	   It	   was	   the	   State	   engaging	   in	   the	   improper	   conduct.	   	   Sandoval’s	  
attorneys	   preserved	   the	   error	   for	   appeal	   and	   effectively	   advocated	   for	   their	   client.	  	  	  
In	  Petitioner’s	  case,	  Petitioner’s	  trial	  attorneys	  actually	  aided	  and	  abetted	  the	  State	  
in	   obtaining	   a	   conviction	   based	   on	   improper	   evidence.	   	   	   	   It	   is	   very	   hard	   to	  
understand	   how	   the	   Third	   Court	   can	   reconcile	   the	   result	   in	   Petitioner’s	   case	   with	  
the	  result	  in	  Sandoval.	  	  	  	  Tex.R.App.Proc.	  66.3(a).	  

	                                                                                                        24	  
case	   was	   the	   complainant’s	   account	   in	   her	   testimony.	   	   	   Thus	   the	   main	  

issue	  in	  the	  case	  was	  the	  complainant’s	  credibility.	  	  	  Trial	  counsel’s	  task	  

then,	   was	   to	   present	   a	   case	   which	   attacked	   the	   child’s	   credibility.	   	   	   What	  

happened	   was	   just	   the	   opposite.	   	   The	   complainant’s	   testimony	   was	  

improperly	  bolstered	  by	  trial	  counsel	  opening	  the	  door	  for	  the	  State	  to	  

elicit	   from	   the	   lead	   detective	   that	   he	   thought	   Petitioner	   was	   guilty,	  

failing	   to	   object	   when	   the	   prosecutor	   asked	   both	   the	   complainant’s	  

mother	   and	   father	   if	   they	   believed	   their	   child	   was	   telling	   the	   truth,	  

failing	   to	   object	   when	   the	   State	   elicited	   from	   the	   complainant’s	  

counselor,	   Stephanie	   Watts,	   that	   she	   believed	   the	   child	   was	   telling	   the	  

truth,	   and	   opening	   the	   door	   for	   State’s	   expert	   Melissa	   Rodriguez	   to	  

testify	   on	   redirect	   that	   she	   believed	   the	   complainant	   had	   been	   abused	  

and	   then	   allowing	   her	   to	   continue	   to	   express	   that	   opinion	   on	   cross-­‐

examination.	  	  This	  prejudice	  was	  compounded	  by	  trial	  counsel	  actually	  

eliciting	   from	   a	   State’s	   witness	   (Petitioner’s	   wife)	   that	   Petitioner	   had	  

committed	   two	   additional	   extraneous	   sexual	   offenses	   against	   the	  

complainant	   and	   then	   failing	   to	   object	   to	   evidence	   of	   the	   extraneous	  

offense	  of	  smoking	  marijuana.	  

          Petitioner	  urges	  the	  Court	  of	  Criminal	  Appeals	  to	  grant	  review	  in	  

his	  case	  and	  take	  a	  good	  look	  at	  the	  prejudice	  he	  suffered	  as	  a	  result	  of	  


	                                                            25	  
his	   attorneys’	   performance.	   	   	   Petitioner	   asserts	   that	   the	   opinion	   in	   his	  

case	  directly	  is	  in	  direct	  conflict	  with	  the	  Third	  Court	  of	  Appeals	  opinion	  

in	  Sandoval	  v.	  State,	  409	  S.W.3d	  259,	  289-­‐290	  (Tex.App.-­‐Austin	  2013,	  no	  

pet.)	   and	   so	   the	   Court	   of	   Criminal	   Appeals	   needs	   to	   step	   in	   and	   speak	   to	  

this	  conflict.	  	  	  Tex.R.App.Proc.	  66.3(a).	  	  	  Petitioner	  also	  asserts	  that	  the	  

opinion	   of	   the	   Third	   Court	   of	   Appeals	   has	   decided	   an	   important	  

question	   of	   state	   and	   federal	   law,	   the	   question	   of	   a	   defendant’s	   Sixth	  

Amendment	   right	   to	   effective	   assistance	   of	   counsel,	   in	   a	   way	   that	  

conflicts	   with	   the	   applicable	   decisions	   of	   the	   Texas	   Court	   of	   Criminal	  

Appeals	  and	  the	  United	  State’s	  Supreme	  Court.	  	  	  Tex.R.App.Proc.	  66.3(c).	  	  	  

In	   Petitioner’s	  case,	  the	  most	  damaging	  and	  prejudicial	  evidence	  against	  

him	  was	  admitted	  only	  because	  of	  trial	  counsels’	  mistakes.	  	  	  The	  State’s	  

case	   was	   not	   tested	   by	   Petitioner’s	   trial	   counsel	   in	   any	   way.	   	   	   An	  

attorney	  just	  standing	  up	  and	  going	  through	  the	  motions	  of	  a	  trial	  does	  

not	  equate	  with	  effective	  assistance	  of	  counsel.	  	  	  And	  as	  can	  be	  seen	  in	  

Petitioner’s	  case,	  can	  lead	  to	  a	  total	  collapse	  of	  the	  adversarial	  process.	  	  	  

This	  ground	  for	  review	  should	  be	  granted.	  

                                             CONCLUSION	  AND	  PRAYER	  

          In	   his	   brief	   on	   original	   appeal,	   Petitioner	   argued	   that	   his	   case	   was	  

eerily	  similar	  to	  the	  cases	  of	  Fuller	  v.	  State,	  supra	  and	  Sessums	  v.	  State,	  


	                                                             26	  
129	   S.W.3d	   242	   (Tex.App.-­‐Texarkana	   2004,	   pet.	   ref’d),	   both	   of	   which	  

involved	   sexual	   assaults	   against	   children.	   	   	   In	   both	   cases,	   on	   direct	  

appeal,	   defense	   counsel	   was	   found	   to	   have	   rendered	   ineffective	  

assistance	  of	  counsel	  where	  counsel,	  like	  Petitioner’s	  trial	  counsel,	  failed	  

to	   object	   to	   evidence	   of	   the	   complainant’s	   truthfulness	   and	   where	  

counsel,	   like	   Petitioner’s	   trial	   counsel,	   elicited	   harmful	   extraneous	  

offense	   evidence	   against	   their	   own	   clients.	   	   	   The	   appellate	   courts	   in	  

those	  cases	  found	  that	  there	  was	  no	  reasonable	  trial	  strategy	  that	  would	  

have	  justified	  such	  testimony	  being	  admitted	  into	  evidence	  where,	  just	  

as	  in	  Petitioner’s	  case,	  the	  main	  issue	  in	  the	  case	  was	  the	  credibility	  of	  

the	   complainant.	   	   	   The	   opinion	   of	   the	   Third	   Court	   of	   Appeals	   did	   not	  

even	  address	  these	  cases	  or	  try	  to	  distinguish	  them	  in	  any	  way.	  	  	  Petition	  

for	   discretionary	   review	   should	   be	   granted	   in	   this	   case	   because	   the	  

decision	   of	   the	   Third	   Court	   of	   Appeals	   conflicts	   with	   the	   Texarkana	  

Court	  of	  Appeals	  in	  Fuller	  v.	  State,	  supra,	  and	  in	  Sessums	  v.	  State,	  supra	  

on	  this	  same	  issue.	  	  	  Tex.R.App.Proc.	  66.3(a)	  

          Likewise,	  the	  Texas	  Court	  of	  Criminal	  Appeals	  has	  recognized	  that	  

although	   a	   single	   error	   might	   be	   insufficient	   proof	   of	   counsel’s	  

ineffective	   assistance,	   counsel’s	   performance	   taken	   as	   a	   whole	   may	  

compel	   such	   a	   holding.	   	   	   Ex	   parte	   Welborn,	   785	   S.W.2d	   391,	   396	  


	                                                         27	  
(Tex.Cr.App.	  1990);	  Davis	  v.	  State,	  supra.	  	  Petitioner	  asserts	  that	  his	  case	  

is	   just	   such	   a	   case.	   	   Petitioner	   asks	   the	   Court	   to	   grant	   his	   Petition	   for	  

Discretionary	   Review	   and	   either	   review	   the	   merits	   of	   his	   argument	   or	  

remand	   the	   case	   back	   to	   the	   Third	   Court	   of	   Appeals	   so	   that	   it	   can	  

conduct	  a	  full	  and	  complete	  analysis	  of	  his	  arguments	  on	  direct	  appeal. 	  

                                                                  Respectfully submitted,

                                                                  /s/ Linda Icenhauer-Ramirez
                                                                  LINDA ICENHAUER-RAMIREZ
                                                                  ATTORNEY AT LAW
                                                                  1103 NUECES
                                                                  AUSTIN, TEXAS 78701
                                                                  TELEPHONE: 512-477-7991
                                                                  FACSIMILE: 512-477-3580
                                                                  ljir@aol.com
                                                                  SBN: 10382944

                                                                  ATTORNEY FOR PETITIONER



                                CERTIFICATE OF COMPLIANCE

       I hereby certify that excluding the following: caption, identity of
parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix, this petition
for discretionary review contains 3,679 words, as calculated by the word
count function on my computer and is prepared in Times New Roman 14
point font.

                                                                  /s/ Linda Icenhauer-Ramirez
                                                                  LINDA ICENHAUER-RAMIREZ



	                                                             28	  
                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of Petition for
Discretionary Review was e-served to the office of the State Prosecuting
Attorney and to the Hays County District Attorney’s Office on this 3rd day
of June, 2015.

                                     /s/ Linda Icenhauer-Ramirez
                                     LINDA ICENHAUER-RAMIREZ




	                                 29	  
                             APPENDIX

Cisneros v. State, 2015 Tex.App.LEXIS 2330, No. 03-13-00206-CR, 03-13-
00207-CR, 03-13-00208-CR, 03-13-00209-CR (Tex.App.-Austin, delivered
March 12, 2015)




	                               30	  
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                                                           2015 Tex. App. LEXIS 2330, *

                                    Rodolfo Cisneros, Appellant v. The State of Texas, Appellee

              NO. 03-13-00206-CR, NO. 03-13-00207-CR, NO. 03-13-00208-CR, NO. 03-13-00209-CR

                                     COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

                                                            2015 Tex. App. LEXIS 2330


                                                              March 12, 2015, Filed

    NOTICE: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF
    UNPUBLISHED OPINIONS.

    PRIOR HISTORY: [*1] FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
    NOS. CR-12-0432, CR-12-0433, CR-12-0434, & CR-12-0435, THE HONORABLE WILLIAM R. HENRY,
    JUDGE PRESIDING.

    DISPOSITION: Modified and, as Modified, Affirmed.

     CASE SUMMARY:



     OVERVIEW: HOLDINGS: [1]-Where defendant was convicted of four counts of aggravated sexual
     assault of a child under Tex. Penal Code Ann. § 22.021(a)(1)(B), (2)(B), he failed to prove that he
     was denied the effective assistance of trial because the record was silent as to why trial counsel
     made certain decisions regarding the admission or exclusion of evidence; [2]-As defendant did not
     raise the ineffective assistance of counsel claim in a motion for new trial, neither defense counsel
     nor the State had been given an opportunity to respond; [3]-The appellate court had the authority
     under Tex. R. App. P. 43.2(b) to modify the incorrect judgments to reflect the correct Texas Penal
     Code sections.

     OUTCOME: Modified; and affirmed as modified.



     CORE TERMS: trial counsel, ineffective assistance of counsel, bias, trial strategy, deficient
     performance, putting, sexual, finger, guilt, counsel's conduct, counsel's performance, private part,
     failed to demonstrate, modified, modify, prong, sexual acts, trial record, judgments of conviction,
     clerical errors, failing to object, opportunity to explain, competent attorney, corroborating evidence,
     police investigation, affirmatively, truthfulness, penetrating, probability, speculation



     LEXISNEXIS(R) HEADNOTES
     Criminal Law & Procedure > Counsel > Effective Assistance > Tests
     Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence
     HN1 To establish ineffective assistance of counsel, an appellant must demonstrate by a
           preponderance of the evidence both deficient performance by counsel and prejudice
           suffered by the defendant. The appellant must first demonstrate that counsel's

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              performance fell below an objective standard of reasonableness under prevailing
              professional norms. The appellant must then show the existence of a reasonable
              probability—one sufficient to undermine confidence in the outcome—that the result of the
              proceeding would have been different absent counsel's deficient performance. Failure to
              make the required showing of either deficient performance or sufficient prejudice defeats
              the ineffectiveness claim.

     Criminal Law & Procedure > Appeals > Standards of Review > Deferential Review > Ineffective
     Assistance
     Governments > Courts > Court Records
     Evidence > Inferences & Presumptions > Presumptions > Rebuttal of Presumptions
     HN2 Appellate review of counsel's representation is highly deferential; the appellate court must
           indulge in a strong presumption that counsel's conduct was not deficient. To rebut that
           presumption, a claim of ineffective assistance must be firmly founded in the record and the
           record must affirmatively demonstrate the meritorious nature of the claim. Rarely will the
           trial record by itself be sufficient to demonstrate an ineffective-assistance claim. If trial
           counsel has not been afforded the opportunity to explain the reasons for his conduct, the
           appellate court will not find him to be deficient unless the challenged conduct was so
           outrageous that no competent attorney would have engaged in it.

     Criminal Law & Procedure > Counsel > Effective Assistance > General Overview
     Governments > Courts > Court Records
     HN3 Counsel's deficiency must be affirmatively demonstrated in the trial record; the court must
           not engage in retrospective speculation.

     Governments > Courts > Court Records
     Criminal Law & Procedure > Counsel > Effective Assistance > General Overview
     Evidence > Inferences & Presumptions > Presumptions > General Overview
     Evidence > General Overview
     HN4 Absent record evidence regarding counsels' strategy or reasoning, the appellate court will
           presume they exercised reasonable professional judgment.

     Criminal Law & Procedure > Counsel > Effective Assistance > Trials
     HN5 The mere fact that another attorney might have pursued a different tactic at trial does not
           suffice to prove a claim of ineffective assistance of counsel.

     Governments > Courts > Court Records
     Criminal Law & Procedure > Counsel > Effective Assistance > Trials
     HN6 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 adequate unless the challenged conduct
           was so outrageous that no competent attorney would have engaged in it.

     Evidence > Testimony > Credibility > General Overview
     Evidence > Testimony > Lay Witnesses > Ultimate Issue
     HN7 Witnesses are not permitted to testify as to their opinion about the guilt or innocence of a
           defendant, or the credibility of a complainant or the truthfulness of a complainant's
           allegations.

     Criminal Law & Procedure > Counsel > Effective Assistance > Tests
     HN8 An appellant's failure to satisfy one prong of the Strickland test negates a court's need to
           consider the other prong.


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     Criminal Law & Procedure > Trials > Defendant's Rights > Right to Fair Trial
     Criminal Law & Procedure > Counsel > Effective Assistance > Tests
     HN9 Even if an appellant shows that particular errors of counsel were unreasonable, he must
           further show that they actually had an adverse effect on the defense. It is not sufficient
           that a defendant show, with the benefit of hindsight, that his counsel's actions or omissions
           during trial were of questionable competence. Merely showing that the errors had some
           conceivable effect on the proceedings will not suffice. Instead, he must prove that
           counsel's errors, judged by the totality of the representation, not by isolated instances of
           error or by a portion of the trial, denied him a fair trial.

     Criminal Law & Procedure > Counsel > Effective Assistance > General Overview
     HN10 An accused is not entitled to entirely errorless representation, and the appellate court
            looks to the totality of the representation in gauging the adequacy of counsel's
            performance.

     Criminal Law & Procedure > Appeals > Procedures > Records on Appeal
     Governments > Courts > Authority to Adjudicate
     HN11 The appellate court has authority to modify incorrect judgments when the necessary
            information is available to do so. Tex. R. App. P. 43.2(b).



    COUNSEL: For Appellant: Ms. Linda Icenhauer-Ramirez, Attorney At Law, Austin, TX.

    For State: Ms. Angie D. Roberts-Huckaby, Assistant Criminal District Attorney Hays County
    Government Center, San Marcos, TX.

    JUDGES: Before Justices Puryear, Goodwin, and Field.

    OPINION BY: Melissa Goodwin

     OPINION



    MEMORANDUM OPINION

    A jury found appellant Rodolfo Cisneros guilty of four counts of aggravated sexual assault of a child for
    sexually abusing his step granddaughter, A.D., when she was five.1 See Tex. Penal Code § 22.021(a)
    (1)(B), (2)(B). The trial court assessed appellant's punishment at confinement for 70 years in the
    Texas Department of Criminal Justice for each count, ordering the sentences to be served concurrently.
    See id. §§ 12.32, 22.021(f)(1). In a single point of error on appeal, appellant complains that he
    suffered ineffective assistance of counsel at trial.2 We find no reversible error. However, through our
    own review of the record, we have found non-reversible error in the written judgments of conviction.
    We will modify the judgments to correct the clerical errors and, as modified, affirm the judgments.

     FOOTNOTES

     1 The jury heard evidence that appellant perpetrated various sexual acts against A.D. on multiple
     occasions, including performing oral sex on her ("putting his tongue on her private [*2] part" or
     "licking her hoo ha"), penetrating her sexual organ with his finger ("touching inside her private part
     with his finger"), penetrating her sexual organ with his penis ("putting his private part in her


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     private part" or "putting his hoo ha in her hoo ha"), and penetrating her anus with his finger
     ("putting his finger in her bottom" or "putting his finger in her tail"). Because the parties are
     familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we do
     not recite them in this opinion except as necessary to advise the parties of the Court's decision and
     the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.

     2   Appellant was represented by two different attorneys at trial.



    DISCUSSION

    Ineffective Assistance of Counsel

    In his sole point of error, appellant contends that his trial counsel rendered ineffective assistance at
    trial. He complains of multiple actions or inactions on the part of trial counsel, including propounding
    certain questions to the investigating detective, failing to object to or eliciting extraneous misconduct
    evidence, failing to preserve error regarding hearsay evidence, lacking familiarity "with the Rules of
    Evidence, Proper Trial Procedure, and [*3] the Law in General," and eliciting, failing to object to, or
    purportedly opening the door to testimony from the State's witnesses about appellant's guilt or A.D.'s
    credibility.

    HN1   To establish ineffective assistance of counsel, an appellant must demonstrate by a preponderance
    of the evidence both deficient performance by counsel and prejudice suffered by the defendant.
    Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Nava v. State,
    415 S.W.3d 289, 307 (Tex. Crim. App. 2013). The appellant must first demonstrate that counsel's
    performance fell below an objective standard of reasonableness under prevailing professional norms.
    Strickland, 466 U.S. at 687-88; Nava, 415 S.W.3d at 307. The appellant must then show the existence
    of a reasonable probability—one sufficient to undermine confidence in the outcome—that the result of
    the proceeding would have been different absent counsel's deficient performance. Strickland, 466 U.S.
    at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient performance
    or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; see Perez v.
    State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

    HN2    Appellate review of counsel's representation is highly deferential; we must "indulge in a strong
    presumption that counsel's conduct was not deficient." Nava, 415 S.W.3d at 307—08; see Strickland,
    466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must be "firmly founded
    in the record" and "the record must affirmatively demonstrate" [*4] the meritorious nature of the
    claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012); Goodspeed v. State, 187
    S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record by itself be sufficient to
    demonstrate an ineffective-assistance claim. Nava, 415 S.W.3d at 308. If trial counsel has not been
    afforded the opportunity to explain the reasons for his conduct, we will not find him to be deficient
    unless the challenged conduct was "so outrageous that no competent attorney would have engaged in
    it." Id. (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d at 392.

    In this case, appellant filed a motion for new trial. However, he did not raise a claim of ineffective
    assistance of counsel in the motion. Thus, the record is silent as to why trial counsel acted or failed to
    act in the manner that appellant now complains about on appeal. Although at some points during trial
    counsel indicated they were engaging in a particular course of conduct as part of "trial strategy," they
    did not (or were not given the opportunity to) explain what the particular strategy was. Consequently,
    the record before this Court is not sufficiently developed to allow us to evaluate those supposed
    improper actions or failures to act because "[n]either [his] counsel nor the State have been given an
    opportunity to respond to" the claims of ineffectiveness. See Menefield, 363 S.W.3d at 593. The record


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    is silent as to [*5] whether there was a strategic reason for counsels' conduct or what the particular
    strategy was. Appellant's repeated assertion that there was no good trial strategy to account for or
    explain counsels' conduct is mere speculation. Such speculation does not constitute a demonstration,
    founded in the record, that no reasonable trial strategy existed. See Lopez v. State, 343 S.W.3d 137,
    142 (Tex. Crim. App. 2011) ("HN3 [C]ounsel's deficiency must be affirmatively demonstrated in the
    trial record; the court must not engage in retrospective speculation."); see also Villa v. State, 417
    S.W.3d 455, 463 (Tex. Crim. App. 2013) ("[C]ounsel's alleged deficiency must be affirmatively
    demonstrated in the trial record.").

    Appellant's trial attorneys were not afforded an opportunity to explain their reasons for the
    complained-of conduct. HN4 Absent record evidence regarding counsels' strategy or reasoning, we will
    presume they exercised reasonable professional judgment. See Hill v. State, 303 S.W.3d 863, 879
    (Tex. App.—Fort Worth 2009, pet. ref'd); Poole v. State, 974 S.W.2d 892, 902 (Tex. App.—Austin
    1998, pet. ref'd); see also Lopez, 343 S.W.3d at 143. Appellant has failed to rebut the strong
    presumption of reasonable assistance because without explanation for trial counsels' decisions, the
    complained-of conduct does not compel a conclusion that their performance was deficient. We cannot
    say that "no reasonable trial strategy could justify" their decision to engage in the complained-of
    conduct.3 See Lopez, 343 S.W.3d at 143. [*6] Nor can we conclude that their conduct was "so
    outrageous that no competent attorney would have engaged in it." See Menefield, 363 S.W.3d at 592;
    see also Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) ("HN5 The mere fact that
    another attorney might have pursued a different tactic at trial does not suffice to prove a claim of
    ineffective assistance of counsel."). Accordingly, we find that appellant has failed to demonstrate
    deficient performance on the part of his trial counsel. See Frangias v. State, 392 S.W.3d 642, 653
    (Tex. Crim. App. 2013) ("HN6 [U]nless 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 adequate 'unless the challenged conduct
    was so outrageous that no competent attorney would have engaged in it.'").

     FOOTNOTES

     3 For example, in half of his complaints about trial counsels' performance, appellant criticizes them
     for eliciting, failing to object to, or purportedly opening the door to testimony from the State's
     witnesses regarding their belief in appellant's guilt or A.D.'s truthfulness. Ordinarily, HN7
     witnesses are not permitted to testify as to their opinion about the guilt or innocence of a
     defendant, see Sandoval v. State, 409 S.W.3d 259, 292 (Tex. App.—Austin 2013, no pet.); Boyde
     v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974), or the credibility of a complainant or the
     truthfulness [*7] of a complainant's allegations, see Sandoval, 409 S.W.3d at 292; Schutz v.
     State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997); Yount v. State, 872 S.W.2d 706, 711 (Tex.
     Crim. App. 1993). An argument can be made, however, that counsel engaged in the conduct here
     in order to demonstrate the bias of the State's witnesses. For example, the questions propounded
     to law enforcement officials arguably attempted to highlight the officers' immediate assumption
     that appellant was guilty after hearing about A.D.'s outcry, which led to a failure to conduct a
     thorough or complete investigation. The failure to object to the testimony of A.D.'s family members
     about believing A.D. allowed counsel to emphasize the fact that even though, as they all conceded,
     they trusted appellant and never, throughout their decades-long relationship with him, had any
     reason to suspect he had ever engaged in any inappropriate behavior with children, they
     automatically believed A.D. without any corroborating proof. Opening the door or not objecting to
     testimony from certain experts—the program director from the children's advocacy center, the
     sexual assault nurse examiner, and A.D.'s counselor—afforded counsel the opportunity to highlight
     the limited—and biased—nature of their knowledge and opinions: these individuals admitted they
     were child advocates who were [*8] only familiar with A.D. and her side of the story, having no
     knowledge of appellant or the circumstances of the situation other than from information gained

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     from A.D.



    Because appellant failed to meet his burden on the first prong of Strickland, we need not consider the
    requirements of the second prong—prejudice. Lopez, 343 S.W.3d at 144; see also Williams v. State,
    301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("HN8 An appellant's failure to satisfy one prong of the
    Strickland test negates a court's need to consider the other prong."). Nevertheless, we also find that
    appellant failed to demonstrate that he suffered prejudice.

    HN9   Even if an appellant shows that particular errors of counsel were unreasonable, he must further
    show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at 693-95; Cochran
    v. State, 78 S.W.3d 20, 24 (Tex. App.—Tyler 2002, no pet.). It is not sufficient that a defendant show,
    with the benefit of hindsight, that his counsel's actions or omissions during trial were of questionable
    competence. Lopez, 343 S.W.3d at 142-43. Further, merely showing that the errors had some
    conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at 693; Ex parte Martinez,
    330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Instead, he must prove that counsel's errors, judged by
    the totality of the representation, not by isolated instances of error or by a portion of the trial, denied
    him a fair trial. Strickland, 466 U.S. at 695.

    In his argument regarding prejudice, appellant [*9] argues that this Court should find prejudice
    because the cumulative effect of the alleged errors demonstrates that his lawyers failed to subject the
    State's case to a meaningful adversarial challenge. He contends that their errors "pervaded and
    prejudiced the entire defense" and their "ineffective performance seriously prejudiced [his] right to a
    fair trial." He claims that "[h]ad defense counsel done their job, the State's case would have been far
    less persuasive and there is a reasonable probability that the outcome of the guilt-innocence
    proceeding would have been different . . . [and] a reasonable probability that the trial court would
    have assessed a shorter sentence." These assertions are speculative claims without support in the
    record.

    Appellant maintains that he "did not even receive the minimal standard of advocacy." We disagree.
    During voir dire, trial counsel questioned the members of the jury panel regarding their ability to serve
    on the jury: they discussed important legal concepts such as the presumption of innocence, the State's
    burden of proof, and appellant's Fifth Amendment right not to testify; they explored possible bias or
    preconceptions relating to child sexual abuse cases; they [*10] discussed issues factually relevant to
    the case such as children's knowledge of or exposure to information regarding sex; they asked the
    jurors their views regarding the truthfulness of children; and they discussed potential bias against
    appellant. They also successfully challenged several panel members for cause. Further, the record
    shows that throughout trial counsel presented and developed a defense strategy of a false accusation.
    In support of this defense, trial counsel emphasized, through cross-examination of the State's
    witnesses and in jury argument, the one-sided nature of the State's case, the flawed police
    investigation (including an incomplete SANE exam), the lack of corroborating evidence, inconsistent
    statements from the outcry witness (A.D.'s grandmother), A.D.'s inability to recount details about the
    abuse in her testimony, and the bias of the State's witnesses. Counsel also attempted to provide
    alternative explanations for A.D.'s knowledge of sexual acts, including observing her parents engage in
    sexual acts and obtaining information from her teenage half-brother. During closing argument, trial
    counsel discussed A.D.'s vague responses during her testimony at trial, [*11] the lack of
    corroborating evidence, the rush to assume appellant's guilt by those involved in the investigation of
    the allegations, and the bias of A.D.'s family members and the State's experts. Trial counsel again
    discussed the presumption of innocence, presented sources of reasonable doubt to the jury, and
    reminded the jury that appellant had consistently denied guilt and had cooperated fully with the police
    investigation, even voluntarily providing a sample for DNA testing.



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    HN10   An accused is not entitled to entirely errorless representation, and we look to the totality of the
    representation in gauging the adequacy of counsel's performance. Frangias, 392 S.W.3d at 653. The
    record in this case reveals that trial counsels' trial strategy was to demonstrate that appellant was the
    victim of a false accusation. Counsel focused on the bias of the State's witnesses, the lack of
    corroborating evidence, the inadequate police investigation, and possible alternative sources from
    which A.D. could have obtained information about sex. The fact that this strategy ultimately proved
    unsuccessful—or that appellate counsel disagrees with it—does not render counsels' assistance
    ineffective.

    On the record before us, appellant has failed [*12] to demonstrate deficient performance on the part
    of his trial counsel or that he suffered prejudice because of the alleged errors of counsel. Thus, he has
    not shown himself entitled to reversal based on ineffective assistance of counsel. We overrule
    appellant's sole point of error.

    Clerical Error in Judgments

    On review of the record, however, we observe that the written judgments of conviction in this case
    contain a clerical error. The judgments of conviction state that the "Statute for Offense" is "22.021(a)
    (2), (f)(1) Penal Code." The statute for the offenses as alleged in the indictments here, however, is
    section 22.021(a)(1)(B), (2)(B) of the Penal Code. HN11 This Court has authority to modify incorrect
    judgments when the necessary information is available to do so. See Tex. R. App. P. 46.2(b); Bigley v.
    State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, because the necessary information
    is available here, we modify the incorrect judgments to reflect the correct Penal Code section.

    CONCLUSION

    Having concluded that appellant failed to demonstrate that he suffered ineffective assistance of
    counsel, we modify the trial court's judgments of conviction as noted above and affirm the judgments
    as modified.

    Melissa Goodwin, Justice

    Before Justices Puryear, Goodwin, and Field

    Modified and, as Modified, [*13] Affirmed

    Filed: March 12, 2015

    Do Not Publish

       Service:      Get by LEXSEE®
      Citation:      2015 Tex.App.LEXIS 2330
         View:       Full
    Date/Time:       Monday, June 1, 2015 - 4:44 PM EDT




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