                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
                                                                No. 08-11-00377-CR
                                                §
 EX PARTE: LUIS IVAN ESTRELLA                                        Appeal from
                                                §
                                                                 409th District Court
                                                §
                                                              of El Paso County, Texas
                                                §
                                                                (TC # 20060D04732)
                                                §

                                         OPINION

       Luis Ivan Estrella appeals from an order of the trial court denying his application for writ

of habeas corpus. For the reasons that follow, we affirm.

                                  PROCEDURAL HISTORY

       In 2007, a jury acquitted Appellant of aggravated sexual assault of a child but found him

guilty of indecency with a child. The jury assessed his punishment at imprisonment for ten

years, probated for ten years. On July 15, 2009, we issued an opinion and judgment affirming

Appellant’s conviction. Estrella v. State, No. 08-07-00173-CR, 2009 WL 2136827 (Tex.App.--

El Paso July 15, 2009, no pet.).      Appellant subsequently filed a writ application alleging

ineffective assistance of counsel both at trial and on appeal.       More specifically, Appellant

complained that counsel was ineffective because he: (1) failed to call an expert to testify

regarding the psychology of memory and particular challenges to children’s memory; (2) failed
to interview and present favorable character witnesses; (3) asked questions of Susan Schanne-

Knoblach, a State’s witness, which bolstered the testimony of the child victim; (4) failed to

preserve error related to the exclusion of a letter written by the child’s mother; and (5) filed a

deficient brief on appeal. The State filed an answer. Following an evidentiary hearing, the trial

court denied the writ application and entered written findings of fact and conclusions of law.

                                     INEFFECTIVE ASSISTANCE

       Appellant raises three issues on appeal challenging the trial court’s determination that he

was not deprived of his right to effective assistance of counsel during trial and appeal.

                              Standard of Review and Relevant Law

       Both the United States and the Texas Constitutions guarantee an accused the right to

assistance of counsel.      U.S. CONST. amend. VI; TEX.CONST. art. I, § 10; TEX.CODE

CRIM.PROC.ANN. art. 1 .05 (West 2005). This right includes the right to reasonably effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 683-86, 104 S.Ct. 2052, 2062, 80

L.Ed.2d 674 (1984); Ex parte LaHood, 401 S.W.3d 45, 49 (Tex.Crim.App. 2013). Ineffective-

assistance-of-counsel claims are cognizable on habeas review, and to determine whether to grant

habeas relief for ineffective assistance of counsel, Texas courts apply the standard set forth in

Strickland v. Washington. LaHood, 401 S.W.3d at 49; Ex parte Martinez, 330 S.W.3d 891, 900

(Tex.Crim.App. 2011). Under that standard, the applicant is required to show that: (1) counsel’s

performance fell below an objective standard of reasonableness under prevailing professional

norms and according to the necessity of the case, and (2) counsel’s performance prejudiced his

defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; LaHood, 401 S.W.3d at 49; Ex parte

Moore, 395 S.W.3d 152, 156-57 (Tex.Crim.App. 2013). A failure to make a showing under

either prong defeats an ineffective assistance claim. See Rylander v. State, 101 S.W.3d 107, 110



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(Tex.Crim.App. 2003).

       The applicant has the burden to prove ineffective assistance of counsel by a

preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998).

In analyzing a claim for ineffective assistance, we begin with the strong presumption that

counsel was competent. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; LaHood, 401 S.W.3d at

50. Thus, the applicant must overcome the presumption that counsel’s conduct falls within the

wide range of reasonable, professional assistance, and that, under the circumstances, the

challenged action might be considered sound trial strategy. Thompson v. State, 9 S.W.3d 808,

814 (Tex.Crim.App. 1999). Counsel’s action or inaction will be found to be reasonable if the

record is silent as to the facts, circumstances, or rationale behind a particular course of action.

Id.

       Prejudice requires a showing that, but for counsel’s unprofessional error, there is a

reasonable probability that the result of the proceeding would have been different. Strickland,

466 U.S. at 687, 104 S.Ct. at 2064; Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002).

Reasonable probability is defined as a “probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The proper standard of review for

claims of ineffective assistance of counsel is whether, considering the totality of the

representation, counsel’s performance was ineffective. LaHood, 401 S.W.3d at 49.

       In reviewing the trial court’s decision to grant or deny habeas corpus relief, we view the

facts in the light most favorable to the trial court’s ruling and uphold it absent an abuse of

discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003), overruled on other

grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007). A reviewing court should

afford almost total deference to the trial court’s determination of the historical facts that are



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supported by the record, especially when the fact findings are based on an evaluation of

credibility and demeanor. Id. That same level of deference is afforded to a trial court’s ruling on

application of law to fact questions, sometimes referred to as mixed questions of law and fact, if

the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id.

We will engage in de novo review of those “mixed questions of law and fact” that do not depend

upon credibility and demeanor. Id.

                               Failure to Present Expert Testimony

       Appellant’s first two issues are related to his claim that trial counsel was ineffective

because he failed to present expert testimony at trial. In Issue One, he contends that he was

denied the effective assistance of counsel at trial because his attorney failed to present the

testimony of an expert witness regarding the “psychology of memory and particular challenges

to children’s memory.” In his second issue, he argues that the trial court erred by concluding

that Dr. Angel Rodriguez-Chevres, a psychiatrist, was not qualified to testify as an expert on the

psychology of memory or the psychosexual development of children.

       Here, the twelve-year-old child victim made a delayed outcry and accused Appellant of

molesting her when she was five years of age. At the writ hearing, Appellant presented the

testimony of Dr. Rodriguez-Chevres, a psychiatrist with twenty-four years of experience treating

adults and adolescents. He testified generally that memory degrades over time and memory is

not 100% reliable. Consequently, a person’s memory about an event will be different seven

years after an incident than it was closer in time to the event.     Dr. Rodriguez-Chevres also

explained that environmental changes in a child’s life would be stress factors and could affect the

child psychosexually. Appellant also presented the testimony of his trial attorney, Gary Weiser,

at the writ hearing. The entirety of that testimony is as follows:



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       [Writ counsel]: Mr. Weiser, I met you for the first time today. Is that correct?

       [Trial counsel]: That is correct, sir.

       [Writ counsel]: And you understand my name is Luis Vera and I am representing
       Mr. Luis Estrella in this writ application. Do you understand that?

       [Trial counsel]: Yes.

       [Writ counsel]: Okay. And, Mr. Weiser, I just want to ask you two questions --
       three, I guess. You were the attorney for Mr. Luis Estrella in the trial of this
       cause that I believe led to a conviction. Is that correct?

       [Trial counsel]: Yes, sir.

       [Writ counsel]: Mr. Weiser, when you represented Mr. Estrella did you at any
       time hire or interview an expert in the area of what’s known as memory, the
       psychology of memory?

       [Trial counsel]: No, sir.

       [Writ counsel]: Is it my understanding that your strategy in the case was -- or as
       you saw it, I should say, it was the credibility of the child witness versus the
       credibility of Luis Estrella?

       [Trial counsel]: In part that is correct, sir.

       [Writ counsel]: And that is how you tried the case?

       [Trial counsel]: Yes, sir.

       [Writ counsel]: At any time did you discuss with Mr. Estrella hiring an expert to
       help him in his defense in the psychology of memory?

       [Defense counsel]: Sir, I honestly don’t recall whether I did or not. Probably not,
       but I just don’t recall.

Appellant asserts that the testimony is unchallenged and established that Mr. Weiser never

considered hiring an expert witness to testify regarding the psychology of memory, but the

record does not support this claim. Appellant did not ask Mr. Weiser whether he ever considered

hiring such an expert and he did not ask him any questions regarding his strategy for not

presenting this type of expert testimony. While the record establishes that Mr. Weiser did not

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hire an expert, it does not demonstrate why. Thus, the record is silent with respect to trial

counsel’s strategy.

       The trial court concluded that Appellant failed to overcome the presumption that trial

counsel’s decision not to present expert testimony was part of a well-reasoned strategy. As the

Court of Criminal Appeals has observed, it should be a rare case where ineffective assistance of

counsel is found from a record that is silent as to counsel’s trial strategy. See Andrews v. State,

159 S.W.3d 98, 103 (Tex.Crim.App. 2005). When the record is silent on the subject of trial

counsel’s strategy, a court can find ineffective assistance of counsel only if the challenged

conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). While these observations are typically made

on direct appeal when the record has not been sufficiently developed to address an ineffective

assistance of counsel claim, the concept applies equally in this case because Appellant failed to

present any evidence regarding trial counsel’s strategy.

       The decision to present witnesses is largely a matter of trial strategy. Shanklin v. State,

190 S.W.3d 154, 164 (Tex.App.--Houston [1st Dist.] 2005, pet. dism’d).            The trial court

concluded that it was objectively reasonable for counsel to not present the testimony of an expert

like Dr. Rodriguez-Chevres because the State could have utilized his expertise to explain why

the child victim could not recall details of the incident and this would have undercut the defense

that the child could not recall details because she had fabricated it. In the absence of any

evidence regarding counsel’s trial strategy, Appellant failed to rebut the presumption that

counsel’s conduct falls within the wide range of reasonable, professional assistance, and that,

under the circumstances, the challenged action might be considered sound trial strategy. It is

therefore unnecessary to address whether Dr. Rodriguez-Chevres was qualified to testify as an



                                               -6-
expert or whether the expert testimony would have been admissible at trial under TEX.R.EVID.

702. We overrule Issues One and Two.

                                        Deficient Performance on Appeal

          In his third issue, Appellant asserts that his appellate attorney1 rendered ineffective

assistance of counsel during the direct appeal because he failed to complain that trial counsel was

ineffective because:          (1) he failed to present the testimony of an expert witness on the

psychology of memory; (2) he failed to present favorable character witnesses; (3) his cross-

examination of Susan Schanne-Knoblach had the effect of bolstering the testimony of the child

victim; and (4) he failed to preserve error related to the exclusion of a letter from the child’s

mother to Appellant.

          A defendant has a constitutional right to effective assistance of appellate counsel. Evitts

v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Ex parte Coy, 909 S.W.2d

927, 928 (Tex.Crim.App. 1995). A claim of ineffective assistance of counsel on appeal is

reviewed under the Strickland standard. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145

L.Ed.2d 756 (2000); Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex.Crim.App. 2001).

Appellate counsel does not have a constitutional duty to raise every non-frivolous issue

requested by his client. Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 3314, 77 L.Ed.2d

987 (1983).         A reviewing court must not second-guess counsel’s reasonable professional

judgments about how to prosecute the appeal. Id., 463 U.S. at 754, 103 S.Ct. at 3314. The

attorney who represented Appellant on direct appeal was not called to testify at the writ hearing.

          Strickland requires the defendant to show both that counsel’s performance was deficient

and that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104

S.Ct. at 2064. To demonstrate that appellate counsel was constitutionally ineffective for failing
1
    Appellant was represented by a different attorney on appeal.

                                                         -7-
to raise a particular point of error or issue on appeal, the defendant must first prove that counsel’s

decision not to raise the issue was objectively unreasonable. Robbins, 528 U.S. at 285, 120 S.Ct.

at 764; Ex parte Miller, 330 S.W.3d 610, 623 (Tex.Crim.App. 2009). If the defendant succeeds

in making such a showing, he then must demonstrate prejudice by establishing there is a

reasonable probability that, but for his counsel’s unreasonable failure to file a brief raising the

issue, he would have prevailed on his appeal. Id., 528 U.S. at 285-86, 120 S.Ct. at 764; Ex parte

Miller, 330 S.W.3d at 623.

       Appellant has failed to carry his burden of establishing that appellate counsel’s failure to

raise these four issues on appeal was objectively unreasonable or that he would have prevailed

on direct appeal had these issues been presented. To succeed on appeal, Appellant would have

been required to rebut the presumption that trial counsel’s conduct falls within the wide range of

reasonable, professional assistance, and that, under the circumstances, the challenged action

might be considered sound trial strategy. Appellant has failed to make this showing because the

record is silent with regard to trial counsel’s strategy and Appellant has failed to show that these

issues involve conduct so outrageous that no competent attorney would have engaged in it. For

this reason alone, Appellant’s claim of ineffective assistance of counsel on appeal fails. Issue

Three is overruled. Having overruled each issue of the issues presented, we affirm the judgment

of the trial court denying habeas corpus relief.


March 12, 2014
                                       ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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