Cisneros, Rodolfo ( 2015 )

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
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