Doroteo Alaniz v. State ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00090-CR
___________________________
DOROTEO ALANIZ, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 211th District Court
Denton County, Texas
Trial Court No. F17-244-211
Before Sudderth, C.J.; Pittman and Birdwell, JJ.
Memorandum Opinion by Justice Pittman
MEMORANDUM OPINION
A jury convicted Appellant Doroteo Alaniz of committing three sexual
offenses against one complainant under the age of seventeen: indecency by exposure
(Count III) and two counts of indecency by contact—touching her breast (Count II)
and touching her genitals (Count I). The jury also convicted Appellant of committing
continuous sexual abuse of a complainant under the age of fourteen by touching her
genitals on two or more occasions (Count IV). The jury assessed Appellant’s
punishment at ten years’ confinement for indecency by exposure, twenty years’
confinement for each count of indecency by contact, and thirty years’ confinement for
continuous sexual abuse of a child. The trial court sentenced Appellant accordingly,
ordering the sentences to run consecutively.
Appellant does not challenge the sufficiency of the evidence. Instead, in his
sole issue, he contends that he received ineffective assistance of counsel at trial
because his trial counsel called no witnesses. Appellant has not satisfied his burden to
prove ineffective assistance of trial counsel; we therefore affirm.
BRIEF FACTS
In the spring of 2014, four girls between the ages of seven and nineteen—Y.G.,
R.G., K.G., and M.G.—lived with their mother (Mother) and a younger brother in a
four-bedroom trailer in Lewisville, Texas. The children’s maternal grandmother
(Grandmother) traveled from out of town to help look after them during their spring
break and stayed. M.G., the nineteen-year-old, warned Mother that Grandmother’s
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long-term boyfriend, Appellant, had done something to M.G. when she was little, but
M.G. did not provide Mother any details. Mother allowed Appellant to join
Grandmother in her home later that spring, and M.G. soon moved out.
Mother’s youngest daughter, Y.G., the complainant named in Count IV, slept
with Grandmother and Appellant in their room approximately three times each week
during most of that summer. When Y.G. slept in the room with Appellant, he would
touch her genitals and penetrate them with his finger. He would tell her not to tell
Mother, and Y.G. did not tell Mother about the ongoing sexual abuse because she was
scared.
Mother’s second-oldest daughter, fifteen-year-old K.G., the complainant
named in Counts I, II, and III, was developmentally disabled. On October 24, 2014,
while Mother was at work and before the other children came home from school,
K.G. arrived home. Appellant was waiting for her. While they were in the living
room, Appellant’s roving hands touched her breasts and genitals, both over her
clothes and skin-to-skin, and also touched her “butt.” Appellant also exposed his
penis and touched it with his moving hands. When Mother came home, K.G. told
her what Appellant had done, and later that day R.G. told Mother that Appellant had
also touched her inappropriately. Y.G. did not tell Mother that Appellant had sexually
abused her until sometime later.
The jury heard evidence of Appellant’s misconduct committed against all four
girls.
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DISCUSSION
Appellant contends that he received ineffective assistance of counsel at trial
because his trial counsel did not call witnesses at either the guilt-innocence or the
punishment phase. Appellant concedes that the record is silent on trial counsel’s
reasons for calling no witnesses and that a hearing on a motion for new trial or writ of
habeas corpus might have provided more “background” but argues that this court
nevertheless “has enough” to determine trial counsel was ineffective. We disagree.
I. Appellant Must Prove by a Preponderance of the Evidence Both
Deficient Representation by Trial Counsel and a Reasonable Probability
that Without It, the Outcome of His Trial Would Have Been Different.
The Sixth Amendment guarantees a criminal defendant the effective assistance
of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.
amend. VI. To establish ineffective assistance, an appellant must prove by a
preponderance of the evidence that his counsel’s representation was deficient and that
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.
2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The record
must affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999).
In evaluating counsel’s effectiveness under the deficient-performance prong,
we review the totality of the representation and the particular circumstances of the
case to determine whether counsel provided reasonable assistance under all the
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circumstances and prevailing professional norms at the time of the alleged error. See
Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson,
9 S.W.3d at 813–14. Our review of counsel’s representation is highly deferential, and
we indulge a strong presumption that counsel’s conduct was not deficient. Nava,
415 S.W.3d at 307–08.
An appellate court may not infer ineffective assistance simply from an unclear
record or a record that does not show why counsel failed to do something. Menefield v.
State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425,
432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective.” Menefield,
363 S.W.3d at 593. If trial counsel did not have that opportunity, we should not
conclude that counsel performed deficiently unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Nava, 415 S.W.3d
at 308. Direct appeal is usually inadequate for raising an ineffective-assistance-of-
counsel claim because the record generally does not show counsel’s reasons for any
alleged deficient performance. See Menefield, 363 S.W.3d at 592–93; Thompson,
9 S.W.3d at 813–14.
Strickland’s prejudice prong requires a showing that counsel’s errors were so
serious that they deprived the defendant of a fair trial—that is, a trial with a reliable
result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant
must show a reasonable probability that the proceeding would have turned out
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differently without the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava,
415 S.W.3d at 308. A “reasonable probability” is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava,
415 S.W.3d at 308. We must ultimately focus on examining the fundamental fairness
of the proceeding in which the result is being challenged. Strickland, 466 U.S. at 696,
104 S. Ct. at 2069. “[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.” Id., 104 S. Ct. at 2069.
II. Appellant Has Failed to Show that He Would Benefit from Absent
Testimony.
Although Appellant argues that trial counsel’s failure to call witnesses on his
behalf could not stem from any reasonable trial strategy, the Texas Court of Criminal
Appeals has held that “[c]ounsel’s failure to call witnesses at the guilt-innocence and
punishments stages is irrelevant absent a showing that such witnesses were available
and appellant would benefit from their testimony.” King v. State, 649 S.W.2d 42,
44 (Tex. Crim. App. 1983). This court has followed that binding precedent. See
Gomez v. State, 552 S.W.3d 422, 435–36 (Tex. App.—Fort Worth 2018, no pet.).
Appellant states that the record indicates that Grandmother “and/or his
employer” were available to testify, but Appellant does not show proof in the record
of how he would benefit from that testimony. We therefore hold that Appellant has
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failed to show ineffective assistance of trial counsel, and we overrule his sole issue.
See King, 649 S.W.2d at 44; Gomez, 552 S.W.3d at 435–36.
CONCLUSION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
/s/ Mark T. Pittman
Mark T. Pittman
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: December 20, 2018
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