                                                                    ACCEPTED
                                                                01-14-00758-CR
                                                     FIRST COURT OF APPEALS
                                                             HOUSTON, TEXAS
                                                            7/7/2015 2:25:43 PM
    No. 01-14-00758-CR                                    CHRISTOPHER PRINE
                                                                         CLERK


               In the
         Court of Appeals
              For the                         FILED IN
                                       1st COURT OF APPEALS
      First District of Texas              HOUSTON, TEXAS
            At Houston                 7/7/2015 2:25:43 PM
                            CHRISTOPHER A. PRINE
                                               Clerk
           No. 1401233
    In the 230th District Court
     Of Harris County, Texas
    
  RICHARD CONTRERAS
            Appellant
               V.
  THE STATE OF TEXAS
        Appellee
    
STATE’S APPELLATE BRIEF
    

                              DEVON ANDERSON
                              District Attorney
                              Harris County, Texas

                              ERIC KUGLER
                              Assistant District Attorney
                              Harris County, Texas
                              TBC No. 796910
                              kugler_eric@dao.hctx.net

                              LAUREN BARD
                              Assistant District Attorney
                              Harris County, Texas

                              1201 Franklin, Suite 600
                              Houston, Texas 77002
                              Tel: (713) 755-5826
                              FAX: (713) 755-5809

                              Counsel for Appellee

   ORAL ARGUMENT WAIVED
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 39, the State waives oral argument.


                    IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Eric Kugler  Assistant District Attorney on appeal

      Lauren Bard  Assistant District Attorneys at trial

Appellant or criminal defendant:

      Richard Contreras

Counsel for Appellant:

      Michael Driver  Counsel on appeal

      Tanya Broholm  Counsel at trial

Trial Judge:

      Hon. Brad Hart  Presiding Judge




                                         i
                                           TABLE OF CONTENTS
                                                                                                                     Page

STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

IDENTIFICATION OF THE PARTIES .............................................................................. i

INDEX OF AUTHORITIES .............................................................................................. iii

STATEMENT OF THE CASE ........................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 1

REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR .................... 3
   The appellant has failed to show that his trial counsel rendered a deficient performance
   that harmed the appellant................................................................................................. 4
CONCLUSION ................................................................................................................. 12

CERTIFICATE OF SERVICE AND COMPLIANCE ..................................................... 13




                                                              ii
                                        INDEX OF AUTHORITIES


CASES

Bingham v. State,
  915 S.W.2d 9 (Tex. Crim. App. 1994) ............................................................................ 5
Butler v. State,
  716 S.W.2d 48 (Tex. Crim. App. 1986) ........................................................................ 10
Charles v. State,
  146 S.W.3d 204 (Tex. Crim. App. 2004) ........................................................................ 7
Craig v. State,
  825 S.W.2d 128 (Tex. Crim. App. 1992) ........................................................................ 4
Duncan v. State,
  717 S.W.2d 345 (Tex. Crim. App. 1986) .................................................................... 5, 9
Hawkins v. State,
  660 S.W.2d 65 (Tex. Crim. App. 1983) .......................................................................... 4
Hernandez v. State,
  726 S.W.2d 53 (Tex. Crim. App. 1986) .......................................................................... 4
Lockhart v. Fretwell,
  506 U.S. 364 (1993) ........................................................................................................ 6
McFarland v. State,
 845 S.W.2d 824 (Tex. Crim. App. 1992) .................................................................... 5, 9
Mercado v. State,
 615 S.W.2d 225 (Tex. Crim. App. 1981) ........................................................................ 4
Miniel v. State,
  831 S.W.2d 310 (Tex. Crim. App. 1992),
  cert. denied, 506 U.S. 885 (1992) ................................................................................... 6
Perez v. State,
  310 S.W.3d 890 (Tex. Crim. App. 2010) ...................................................................... 10
Rodriguez v. State,
  329 S.W.3d 74 (Tex. App.—
  Houston [14th Dist.] 2010, no pet.) ................................................................................. 6
Salgado v. State,
  05-08-00690-CR, 2009 WL 3466430 (Tex. App.—
  Dallas Oct. 29, 2009, no pet.) ........................................................................................ 11


                                                              iii
State v. Gill,
  967 S.W.2d 540 (Tex. App.—
  Austin 1998, pet. ref’d).................................................................................................... 6
State v. Reed,
  965 S.W.2d 74 (Tex. App.—
  Austin 1998, no pet.) ..................................................................................................... 10
State v. Stevens,
  235 S.W.3d 736 (Tex. Crim. App. 2007) ...................................................................... 10
Strickland v. Washington,
   466 U.S. 668 (1984) ........................................................................................................ 4
United States v. Masat,
  896 F.2d 88 (5th Cir. 1990) ............................................................................................. 5
Wilkerson v. State,
  726 S.W.2d 542 (Tex. Crim. App. 1986),
  cert. denied, 480 U.S. 940 (1987) ................................................................................... 6


STATUTES

TEX. CODE CRIM. PROC. art. 57.01 (4) (West 2010) ........................................................... 1
TEX. CODE CRIM. PROC. art. 57.02(h) (West 2010) ............................................................ 1
TEX. CODE CRIM. PROC. art. 57.03(d) (West 2010) ............................................................ 1


RULES

TEX. R. APP. P. 39 ................................................................................................................. i




                                                                 iv
TO THE HONORABLE COURT OF APPEALS:


                              STATEMENT OF THE CASE

       The appellant was charged with the aggravated sexual assault of a child

committed on July 1, 2013 (CR – 15). He pled “guilty” to the charge, and a

presentence investigation (PSI) report was prepared (CR – 23-32) (St. Ex. 2). The

trial court sentenced him to 50 years in prison on June 10, 2014 (CR – 38). The

appellant filed a motion for new trial that same day, which was denied on August

15 (CR – 41-46). The appellant then filed a notice of appeal on September 4,

2014, and the trial court certified that he had waived his right to appeal (CR – 34,

57).


                                STATEMENT OF FACTS

       Jane1 was a ten-year-old girl who was going into the fifth grade (St. Ex. 2).

When she was six or seven years old, the appellant, her 30-year-old uncle, started


1
   A public servant who has “access to the name, address, or telephone number of a victim 17
years of age or older who has chosen a pseudonym under this chapter commits an offense if the
public servant knowingly discloses the name, address, or telephone number of the victim to any
person who is not assisting in the investigation or prosecution of the offense or to any person
other than the defendant, the defendant's attorney, or the person specified in the order of a court
of competent jurisdiction” TEX. CODE CRIM. PROC. art. 57.03(a) (West 2014). The term “victim”
means a person who was the subject of: “(A) an offense the commission of which leads to a
reportable conviction or adjudication under Chapter 62; or (B) an offense that is part of the same
criminal episode, as defined by Section 3.01, Penal Code, as an offense described by Paragraph
(A).” TEX. CODE CRIM. PROC. art. 57.01 (4) (West 2010). The release or disclosure of such
information to any person is a class C misdemeanor. TEX. CODE CRIM. PROC. art. 57.03(d) (West
2010). Therefore, the pseudonym “Jane” will be used for the victim in this case.
sexually assaulting her (St. Ex. 2). Sometime in late June or early July 2013, Jane

was watching television at her grandmother’s house when the appellant made Jane

sit next to him (St. Ex. 2). He penetrated her vagina with his finger while both of

them were covered by a blanket (St. Ex. 2). Just as he had done after other

assaults, the appellant told Jane not to tell anyone (St. Ex. 2). Jane was once on the

toilet inside a locked bathroom when the appellant used something to open the

door (St. Ex. 2). He grabbed his cell phone and took pictures of her with her

panties down (St. Ex. 2).

      On July 10, 2013, Jane was at her grandmother’s house because her mother

was teaching a cake-decorating class somewhere else (St. Ex. 2). The appellant

and Jane were the only people in the grandmother’s house when the appellant took

her to her uncle and aunt’s bedroom (St. Ex. 2). He put Jane on the bed and

penetrated her vagina with his penis (St. Ex. 2). The appellant “was moving his

body into hers, she told him to stop because it was hurting and she did not want to

do that, but he continued.” (St. Ex. 2). Something “like water” came out of the

appellant’s “front part,” and it felt sticky afterwards (St. Ex. 2). He was laughing

and told Jane not to tell anyone (St. Ex. 2).

      The appellant gave several statements to police officers (St. Ex. 2). Initially,

he lied to them and told them that he had never touched Jane in such a manner (St.

Ex. 2). The appellant later admitted that he started assaulting Jane when she was



                                           2
six or seven years old in Houston (St. Ex. 2). He stated that he would touch Jane

while they were cuddling on the couch under a blanket by rubbing her vagina with

his fingers in a circular motion and that Jane never told him to stop (St. Ex. 2). He

confessed that sometimes Jane would touch his penis while they were under the

blanket, and he would ejaculate (St. Ex. 2). The appellant admitted that he and

Jane went into a bedroom on one occasion; he put a condom on his penis and

started to get on top of her, but stopped “before the cum came out.” (St. Ex. 2).

The appellant stated that he might have touched Jane with the tip of his penis but

did not put it inside her (St. Ex. 2).


              REPLY TO APPELLANT’S FIRST AND SECOND
                         POINTS OF ERROR

       The appellant complains in his first point of error that he received ineffective

assistance of counsel because his trial counsel allegedly did not make an adequate

argument at the PSI hearing, did not develop mitigating evidence, and presented no

witnesses. (App’nt Brf. 12). His related second point of error complains that the

trial court did not grant his motion for new trial due to the alleged ineffective

assistance of counsel. (App’nt Brf. 14). These arguments lack merit because the

totality of trial counsel’s performance did not fall below prevailing professional

norms, and the appellant was not harmed by counsel’s performance.




                                           3
      The appellant has failed to show that his trial counsel rendered a
           deficient performance that harmed the appellant.
      The Sixth Amendment of the United States Constitution guarantees a

criminal defendant the effective assistance of counsel. Strickland v. Washington,

466 U.S. 668, 686 (1984); see also Hernandez v. State, 726 S.W.2d 53, 56-57

(Tex. Crim. App. 1986) (stating that the Strickland standard is applied to

ineffective assistance of counsel claims under the Texas constitution).           In

Strickland, the Supreme Court held that the benchmark for judging any claim of

ineffective assistance of counsel is whether counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id..

      In order to show ineffectiveness, the appellant must first show that counsel’s

performance was deficient. Strickland, 466 U.S. at 687. This requires a showing

that counsel made errors so serious that counsel was not functioning as the

“counsel” guaranteed by the Sixth Amendment. Id. In order to determine whether

trial counsel’s performance was deficient, this Court must weigh the defense

attorney’s representation under prevailing professional norms. Craig v. State, 825

S.W.2d 128, 129 (Tex. Crim. App. 1992). Assertions of ineffective assistance of

counsel must be firmly founded in the record. See Mercado v. State, 615 S.W.2d

225, 228 (Tex. Crim. App. 1981); Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim.

App. 1983).


                                         4
       If a defendant, upon full advice of the consequences, demands that counsel

follow a flawed strategy, a subsequent claim of ineffective assistance will not lie.

McFarland v. State, 845 S.W.2d 824, 848 (Tex. Crim. App. 1992) (“When a

defendant preempts his attorney’s strategy by insisting that ... certain evidence be

put on or kept out, no claim of ineffectiveness can be sustained.”), overruled on

other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994); Duncan

v. State, 717 S.W.2d 345, 348 (Tex. Crim. App. 1986) (“[W]hen a defendant

preempts his attorney’s strategy by insisting that a different defense be followed,

no claim of ineffectiveness can be made.”); United States v. Masat, 896 F.2d 88,

92 (5th Cir. 1990) (“Cutting through the smoke, it is apparent that we are being

asked to permit a defendant to avoid conviction on the ground that his lawyer did

exactly what he asked him to do. That argument answers itself.”).

       The Strickland Court stated that in order to satisfy the prejudice requirement

of the test,

       [i]t is not enough for the defendant to show that the errors had some
       conceivable effect on the outcome of the proceeding…
                                        ***
       The defendant must show that there is a reasonable probability that,
       but for counsel’s unprofessional errors, the result of the proceeding
       would have been different…
                                        ***
       Moreover, a verdict or conclusion only weakly supported by the
       record is more likely to have been affected by errors than one with
       overwhelming record support.




                                          5
Id., 466 U.S. at 693, 694, 696. A reasonable probability is defined as a probability

sufficient to undermine confidence in the outcome. Miniel v. State, 831 S.W.2d

310, 323 (Tex. Crim. App. 1992), cert. denied, 506 U.S. 885 (1992). Prejudice

requires a showing that counsel’s deficient performance deprived the defendant of

“a fair trial, a trial whose result is reliable.” Lockhart v. Fretwell, 506 U.S. 364,

369 (1993).

      An appellate court does not judge trial counsel’s decisions in hindsight and

strongly presumes that counsel was competent. See Miniel, 831 S.W.2d at 323

(stressing the need to avoid the “distorting effects of hindsight”). The appellant

has the burden to rebut this presumption by proving that his attorney’s

representation was not sound strategy. Id. Whether the Strickland standard has

been met is judged by the “totality of the representation,” rather than by isolated

acts or omissions of trial counsel, and the test is applied at the time of trial.

Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480

U.S. 940 (1987).

      Because the appellant asserted his claim of ineffective assistance through a

motion for new trial, this Court must review the Strickland standards “through the

prism of an abuse of discretion standard.” State v. Gill, 967 S.W.2d 540, 542 (Tex.

App.—Austin 1998, pet. ref’d); see also Rodriguez v. State, 329 S.W.3d 74, 81

(Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing Charles v. State, 146



                                         6
S.W.3d 204, 207–08 (Tex. Crim. App. 2004)). Under that standard, this Court

must view the evidence in the light most favorable to the trial court’s ruling, and

reverse only if no reasonable view of the record could support the trial court’s

finding. Charles, 146 S.W.3d at 208.

      In the present case, Hattie Shannon with the Harris County Public

Defender’s Office was appointed as counsel for the appellant on September 18,

2013 (CR – 6). Tanya Broholm then filed a motion to substitute as counsel less

than one month later (CR – 7-10). Broholm went by the jail and spoke with the

appellant when she filed the motion to substitute (CR – 47). She also went to the

office for the child abuse division and reviewed the offense reports, the medical

reports, the appellant’s statements, the witness statements, and Jane’s Child

Assessment Center video (CR – 47). After examining the evidence, Broholm went

back to the jail to speak with the appellant (CR – 47). Broholm learned that Jane

had reported that the appellant took her into the bedroom he shared with his wife,

took off his clothes, took off his pants, put on a condom, and inserted his penis into

her vagina while he laughed (CR – 48). The appellant admitted to Broholm that

everything Jane said was accurate (CR – 48).

      The appellant told Broholm that he did not want a trial and wanted probation

(CR – 48). The prosecution was offering 35 years, which was negotiated down to

25 years (CR – 48). But the appellant was not interested in further negotiations; he



                                          7
thought that he deserved probation because Jane “came on to him and she wanted

it.” (CR – 47-48). Prior to the appellant’s plea, Broholm fully discussed the plea

and its consequences with him, and the appellant swore that he was “totally

satisfied with the representation provided by” Broholm (CR – 24, 28) (RR. Plea –

6). Broholm conveyed all offers by the State to the appellant and provided letters

regarding the appellant’s character for consideration by the trial court (CR Supp. –

3, 4). And four such letters were incorporated into the PSI report, including a letter

from the appellant’s wife, from his mother, from a close friend, and from his

former baseball coach (St. Ex. 2).

      Broholm went to the jail more than five times and spent countless hours on

the phone and in person with the appellant’s family to discuss the ramifications of

pleading guilty to the judge (CR – 48). After the plea, Broholm went to the jail

and prepared the appellant for the PSI interview (CR – 48). She clearly discussed

the importance of accepting responsibility (CR – 48). But the appellant did not

take that advice; he continued to claim that it was Jane’s fault (CR – 48). The

appellant said things like “she liked it,” “she wanted it,” and “[she] provoked me

[by dancing in front of me.]” (CR – 48).

      Broholm allowed the appellant to “proceed in front of the judge as he

requested.” (CR – 50).      Through her research and investigation in this case,

Broholm was thoroughly familiar with the facts of the case, the participants of the



                                           8
case, and the reports in this case (CR – 50). She also “did everything possible to

help [the appellant] through his [] situation by visiting and communicating with

him and family weekly, investigating every aspect of this case and advising him of

the risks and consequences of the offenses.” (CR – 50).           The totality of the

representation afforded the appellant was well above the prevailing professional

norms.

      The appellant claims that his trial counsel was ineffective because she failed

to make a lengthier closing argument or present witnesses during the PSI hearing

(App’nt Brf. 12). While Broholm’s closing argument was 64 words long, the

State’s closing was only 105 words long (RR. II – 7). Furthermore, neither side

presented witnesses. It is possible that counsel for both sides believed that the trial

court would reward brevity, especially in light of the fact that the trial court had

already taken notice of the PSI report, which contained the mitigation evidence

(RR. II – 5). Moreover, with the appellant’s insistence on blaming Jane for the

assaults, there was little for Broholm to argue to the court. See McFarland, 845

S.W.2d at 848 (“When a defendant preempts his attorney’s strategy by insisting

that ... certain evidence be put on or kept out, no claim of ineffectiveness can be

sustained.”); Duncan, 717 S.W.2d at 348 (“[W]hen a defendant preempts his

attorney’s strategy by insisting that a different defense be followed, no claim of




                                          9
ineffectiveness can be made.”). Thus, counsel was not deficient in her closing

argument.

      The appellant also complains that Broholm failed to investigate and develop

a line of mitigating evidence. (App’nt Brf. 12). But in cases where a defendant

challenges trial counsel’s failure to present evidence, it is necessary to show that

such evidence was available and relevant. See, e.g., Perez v. State, 310 S.W.3d

890, 894 (Tex. Crim. App. 2010) (“[T]he failure to call witnesses at the guilt-

innocence and punishment stages is irrelevant absent a showing that such witnesses

were available and appellant would benefit from their testimony.”); Butler v. State,

716 S.W.2d 48, 55 (Tex. Crim. App. 1986) (“Counsel’s failure to call such

witnesses would be irrelevant absent a showing that such witnesses were available

and appellant would benefit from their testimony.”). And the appellant has failed

to show what a more detailed investigation would have revealed.            Thus, the

appellant has failed to show that Broholm was deficient in her investigation.

      The appellant claims that the trial court made an incorrect conclusion of law

as part of its findings on the motion for new trial. (App’nt Brf. 13). But this Court

must uphold the trial court’s ruling if the ruling is supported by the record and is

correct under any theory of law applicable to the case regardless of the trial court’s

stated basis. See State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);

State v. Reed, 965 S.W.2d 74, 77 (Tex. App.—Austin 1998, no pet.) (providing



                                         10
that a trial court’s decision to deny a motion for new trial will be sustained if it is

correct on any theory of law applicable to the case). Thus, whether the trial court

made incorrect conclusions of law is effectively irrelevant to whether that court’s

decision should be upheld. And as stated previously, the appellant failed to show

that the totality of Broholm’s representation fell below the prevailing professional

norms.

      Even if this Court believes that Broholm was deficient, the appellant cannot

show that he was harmed by her performance.          The evidence of the appellant’s

guilt was overwhelmingly strong.        He freely and repeatedly admitted to the

commission of the assaults; his only defense appeared to be that a six-year-old girl

was asking to be sexually assaulted by him, repeatedly (CR – 48) (St. Ex. 2).

Moreover, the trial court stated that “regardless of the amount of mitigating

evidence” it “could not see giving the Defendant less than his original sentence

based upon the aggravating factors, which the Defendant pleaded to at the time of

the original proceeding.” (CR Supp. – 4). See Salgado v. State, 05-08-00690-CR,

2009 WL 3466430, at *1 (Tex. App.—Dallas Oct. 29, 2009, no pet.) (not

designated for publication) (“the trial court ruled that even if the testimony had

been offered at the time of appellant’s punishment hearing, it would not have

changed the outcome of the trial. Appellant has failed to meet his burden of

showing ineffective assistance of counsel.”). Therefore, it cannot be said that there



                                          11
is a reasonable probability that the result of the proceeding would have been

different if Broholm had given a longer closing argument or presented more

evidence at the PSI hearing. The trial court did not abuse its discretion in denying

the appellant’s motion for new trial, and the conviction must be affirmed.



                                 CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas

                                                   /s/ Eric Kugler
                                                   ERIC KUGLER
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002-1923
                                                   (713) 755-5826
                                                   kugler_eric@dao.hctx.net
                                                   TBC No. 796910




                                        12
              CERTIFICATE OF SERVICE AND COMPLIANCE
      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 3,334 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

         Michael Driver
         Attorney at Law
         402 Main, 4th floor
         Houston, TX 77002
         Mikedriverlaw@gmail.com

                                                  /s/ Eric Kugler
                                                  ERIC KUGLER
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002-1923
                                                  (713) 755-5826
                                                  TBC No. 796910
Date: July 7, 2015




                                       13
