                         NUMBER 13-12-00033-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

TRINIDAD GEORGE PEREZ,                                                Appellant,

                                           v.

THE STATE OF TEXAS,                                                   Appellee.


                    On appeal from the 24th District Court
                         of Victoria County, Texas.


                         MEMORANDUM OPINION
   Before Chief Justice Valdez, and Justices Benavides, and Perkes
              Memorandum Opinion by Justice Perkes
      Appellant Trinidad George Perez appeals his sentence for two counts of

aggravated sexual assault of a child, a first-degree felony, see TEX. PENAL CODE ANN.

§ 22.021(a)(1)(B)(i), (2)(B) (West 2011), and for one count of indecency with a child, a

second-degree felony, see id. § 21.11(a)(1). Appellant pleaded guilty to all three counts.

The trial court assessed punishment at twenty-five years’ confinement in the Texas
Department of Criminal Justice, Institutional Division, for each of the two counts of

aggravated sexual assault, and ten years’ confinement for the count of indecency with a

child. The three sentences are to run concurrently. By two issues, appellant contends

(1) he received ineffective assistance of counsel; and (2) the trial court abused its

discretion by denying his motion for deferred adjudication. We affirm.

                                           I. BACKGROUND1

        J.M. 2 was ten years old at the time of appellant’s trial.                        She testified that

appellant, who was married to J.M.’s mother but was not her biological father, sexually

assaulted her four times.3 She was sexually assaulted three times by digital penetration:

(1) twice by digital penetration while J.M.’s younger sister, R.P., who was appellant’s

biological daughter, was present in the same room; and (2) once by digital penetration,

followed by appellant placing his penis inside “the back of [J.M.’s] underwear.” Leslie

Kallus, a sexual assault nurse examiner, testified that J.M. told her that appellant sexually

assaulted her once when she “was like seven or eight-years-old . . . two times this year

and one time last year.” According to Kallus’s report, on one of the occasions, appellant

“tried putting his private part to [J.M.’s] private part in the front.”

        Appellant pleaded guilty to all three indicted counts, but testified that he sexually

assaulted J.M. only twice and that the other incidents mentioned by J.M. “didn’t happen.”

Appellant also disclaimed remembering any details of the sexual assaults, affirming that

        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

        2
            We use the initials of the minor parties, J.M. and R.P., to protect their identities.
        3
            J.M. testified there also “might have been” a previous sexual assault when J.M. was younger.
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the only reason he acknowledged the occurrence of two sexual assaults was because

they were mentioned in a report. Otherwise, appellant testified that he “believe[d] it

[another incident] didn’t happen. That’s the way I feel.”

       Doctor Stephen Thorne, a clinical forensic psychologist, testified that, based on his

observations and the risk factors he considered, appellant was a low-level risk for sexual

re-offending. He opined that appellant was half as likely as the average sex offender to

re-offend. Dr. Thorne noted that appellant was diagnosed with Post Traumatic Stress

Disorder (PTSD), and testified, “I’m not saying that caused him to commit a sexual

offense, but I believe that has affected his general mood and functioning.” Conversely,

Elena Torres, a clinical social worker with specialized training and experience in dealing

with PTSD patients, testified that she had never heard of PTSD causing child molestation.

She further testified that it would not be in J.M.’s best interest for appellant to receive

probation.

                    II. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his first issue, appellant argues he received ineffective assistance of counsel on

the grounds that his trial attorney allegedly failed to adequately prepare him to testify by

“not preparing [appellant] to accept responsibility in his testimony. . . .” No motion for

new trial or any other post-judgment motion was filed or considered.

A.     Standard of Review

       The Sixth Amendment to the United States Constitution, and section 1 of the

Texas Constitution, guarantee individuals the right to assistance of counsel in a criminal

prosecution. See U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; Lopez v. State, 343


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S.W.3d 137, 142 (Tex. Crim. App. 2011). The right is not one of errorless counsel, but to

objectively reasonable representation. Lopez, 343 S.W.3d at 142 (citing Strickland v.

Washington, 466 U.S. 668, 686 (1984); Robertson v. State, 187 S.W.3d 475, 483 (Tex.

Crim. App. 2006)).

       The standard of review for ineffective assistance claims was set out in Strickland.

See Strickland, 466 U.S. at 687; Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986) (adopting Strickland two-prong test). In order for appellant to succeed on an

ineffective assistance of counsel claim, appellant must satisfy the two prongs of

Strickland: appellant must show (1) counsel’s representation fell below an objective

standard of reasonableness, and (2) the deficient performance prejudiced the defense.

Lopez, 343 S.W.3d at 142 (citing Strickland, 466 U.S. at 689); see also Moreno v. State, 1

S.W.3d 846, 864 (Tex. App.—Corpus Christi 1999, pet. ref’d). To satisfy the first prong,

appellant must prove, by a preponderance of the evidence, trial counsel’s performance

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

norms.” Lopez, 343 S.W.3d at 142. To satisfy the second prong, appellant must show

there is a reasonable probability, or a probability sufficient to undermine the confidence in

the outcome, that but for counsel’s deficient performance the result of the proceeding

would have been different. See id.; Moreno, 1 S.W.3d at 864 (citing Strickland, 466 U.S.

at 694).

       Our review of counsel’s performance is highly deferential; we must make a strong

presumption that counsel’s performance fell within the wide range of reasonably

professional assistance. Lopez, 343 S.W.3d at 142 (citing Robertson, 187 S.W.3d at


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483); Moreno, 1 S.W.3d at 865. In reviewing counsel’s performance, we look to the

totality of the representation to determine the effectiveness of counsel, indulging a strong

presumption that the attorney’s performance falls within the wide range of reasonable

professional assistance or trial strategy. Thompson v. State, 9 S.W.3d 808, 812–13

(Tex. Crim. App. 1999); Moreno, 1 S.W.3d at 865 (citing Strickland, 466 U.S. at 689;

Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992)). The record must contain

evidence of counsel’s reasoning, or lack thereof, to rebut that presumption. Id. (citing

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)); see also Lopez, 343

S.W.3d at 143 (requiring a showing that no reasonable trial strategy could justify trial

counsel’s acts or omissions); Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002)

(en banc) (“If counsel’s reasons for his conduct do not appear in the record and there is at

least the possibility that the conduct could have been legitimate trial strategy, we will defer

to counsel’s decisions and deny relief on an ineffective assistance claim on direct

appeal.”). “When such direct evidence is not available, we will assume that counsel had

a trial strategy if any reasonably sound strategic motivation can be imagined.” Lopez,

343 S.W.3d at 143 (citing Garcia v. State, 57 .S.W.3d 436, 440 (Tex. Crim. App. 2001)).

B.     Discussion

       Appellant makes much of the fact that his counsel, when asked by the trial court

how many witnesses he planned to call, responded, “We don’t know yet, Judge. . . . We

haven’t made a decision yet. It might be Mr. Perez.” Appellant also directs us to the

beginning of his trial testimony, during which the following exchange occurred between

appellant and his attorney regarding the decision for appellant to testify:


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       Q:     Mr. Perez, you and I chatted about this this morning?

       A:     Yes.

       Q:     And you made a decision this afternoon, although we’ve talked about
              it over the course of my representation?

       A:     Correct.

According to appellant, these statements, in combination with appellant’s refusal during

his testimony to accept responsibility for the offenses to which he pleaded guilty, evince

ineffective assistance by not preparing appellant to testify.

       Appellant relies on Perrero v. State, 990 S.W.2d 896, 899 (Tex. App.—El Paso

1999, pet. ref’d) for the proposition that an attorney may be ineffective for failing to

prepare a client, who admits guilt, to accept responsibility for his actions in his testimony

during the sentencing phase of the trial. Unlike here, the trial court in Perrero held a

hearing on the defendant’s motion for new trial, during which defense counsel testified

that he believed he was negligent in not preparing Perrero to avoid opening the door to

his prior criminal history during his testimony. See id.

       In the instant case, appellant did not file a motion for new trial, and no evidence

was adduced to show that counsel did not properly advise him. Nothing in the record

supports appellant’s complaint that defense counsel failed to prepare him for his

testimony or warn him about the consequences of testifying on his own behalf.

       Whether appellant’s counsel adequately prepared appellant to testify requires

substantial speculation. The record is unsurprisingly silent, the court not being privy to

confidences of the attorney-client relationship.      A review of the record reveals no

identifiable deficient conduct. Appellant’s testimony affirmed that he discussed testifying

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with his attorney “over the course” of his attorney’s representation and affirmed to the trial

court that he had “ample opportunity to talk to” his attorney regarding testifying. Because

there is no evidence manifesting counsel’s reasoning, or lack thereof, we assume

counsel’s conduct constituted sound trial strategy.       Lopez, 343 S.W.3d at 143; see

Moreno, 1 S.W.3d at 865. We overrule appellant’s first issue.

                            III. PROPRIETY OF SENTENCE

       By his second issue, appellant argues the trial court abused its discretion by

denying his requested deferred-adjudication community supervision. We disagree.

       In cases of aggravated sexual assault or indecency with a child, the trial court has

discretion to place a defendant on deferred-adjudication community supervision only after

making a finding in open court that such placement is in the best interest of the victim.

See TEX. CRIM. PROC. CODE ANN. art. 42.12 § 5(a) (West Supp. 2011). We review the

trial court’s decision under an abuse-of-discretion standard.        Jackson v. State, 680

S.W.2d 809, 813 (Tex. Crim. App. 1984) (en banc) (holding review of a trial court’s

determination of an appropriate sentence should be afforded a “great deal of discretion”).

A trial court abuses its discretion when it acts without reference to any guiding rules and

principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372,

380 (Tex. Crim. App. 1990) (en banc).

       At appellant’s sentencing hearing, J.M. testified, “I think that he should go to jail

and do the time in jail. He deserves punishment that is required for all of this.” Torres

testified that it would be in J.M.’s best interest for the court to not place appellant on

deferred-adjudication community supervision. When appellant testified, he claimed he


                                              7
had no memory of the indicted events, denied any other assaults occurred, and refused to

accept responsibility for his actions. To the extent appellant challenges the credibility of

witnesses, we defer to the trial court, which occupies the exclusive role of weighing the

witnesses’ credibility.     See Anderson v. State, 322 S.W.3d 401, 405 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 707

(Tex. Crim. App. 2008) (holding the fact-finder is the exclusive judge of the credibility of

witnesses and of the weight to be given to their testimony). The evidence is sufficient to

show that such a placement would not be in J.M.’s best interest.

       Appellant points to his financial support of his family, coupled with J.M.’s mother’s

full-time student status, as a ground for deferred-adjudication community supervision.

Appellant’s argument is relevant, but does not fully dominate the victim’s best-interest

calculus. We hold that the trial court was within the range of sound discretion to weigh

the other factors against appellant’s financial contribution.

       Appellant lastly contends that the trial court exhibited a “discreet prejudice” against

him, noting that the State proceeded on the three indicted counts, rather than prosecute

appellant for continued sexual abuse of a young child, for which deferred-adjudication

community supervision is unavailable. The trial court commented as follows:

       The State, in charging, elected to proceed with three separate counts.

       They had the option of proceeding with the continuous sexual assault of a
       young child, which they did not do, for whatever reason. Under that,
       deferred is not an option—under that type of offense.

       Since they proceeded with three separate counts, you are eligible to be
       considered for community supervision and there is a requirement, under the
       statute, and I think I mentioned this to you previously.


                                              8
       The court has to make a determination—has to make a finding that placing
       you on community supervision is in the best interest of the victim. After
       hearing [J.M.’s] testimony, I can’t make that finding.

(Appellant’s emphasis). The court explained that its assessment included all of the

testimony, including Dr. Thorne’s opinion that appellant was a low-risk for recidivism, the

nature of the offenses, and appellant’s PTSD diagnosis and military service. Based on

the full context of the court’s statement and the record, we hold that there was no manifest

prejudice against appellant and that the trial court’s decision was premised on its inability

to make the requisite finding that probation would be in J.M.’s best interest.

       We conclude that the trial court acted neither arbitrarily nor unreasonably by

sentencing appellant to confinement rather than ordering deferred-adjudication

community supervision. We overrule appellant’s second issue.

                                   IV. CONCLUSION

       We affirm the trial court’s judgment.




                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of July, 2013.




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