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For TW tW\ rdl Ccu/+ oP ftpp&ik t^sfrl^ FILED IN COURT OF CRIMINAL APPEAL 1W ^4ate of texeg^ FEB 1^*5 kppeWe Abel Acosta, Clerk Oh/ f\PP£lftL FftoM T\ft ^oi Msttotf} peVrtton for WtscreHontfry ReuleuJ for Pro ^e kppelWvf Tt>c3 fa ft BOM ^5te\\a Uflif RECEIVED IN COURT OF CRIMINAL APPEALS FEB 112015 Abel Acosta, Clerk Oca\ rXrgu/nfirrr- Re^uegteJ tW+- oraJ ar^u/vneAf be tyrwdeA^ bo&oA On f\pp^.\W>+ Le£t/voing b'&ability, IMiPi'caHoH -k> rlae <LcuWS or0 Crimirvil App£ak The Appe,\tft/vh5 Ptlfij^nJto MuftoJ. 'iS unabta -fo ProC^&eA na/i+\o W«4 fls-H+fon -for Di£ne^D,wy dei/i^Ld* Qrrjurvfc ftr re(/tew* f\ppe\\ftn+5 Me^n^rt) M^^I \ -rV*e, forrmJ- and \r^ryyWton oP ~tVi& PeW-iOn -Pe9r ita Le^t\ *enn\ne% be;n9 ^ \a enter -r° fite, arA pn^ce^ -fVe teuton for hisreHonary fta/Jew. Of -pVe KppeWanf3 MeywVt) KJ6t* Wi^&r e^ufcxhOf* KnbvA/l€^B Wir\% obkun an fe&oeia+e'S Decree from rTt TecWtol Xr^Vi^-e.T^e f\ppelbnf3 A\eja*v*no l*Wfo v^caVSl tife K> £tete -for -the kloX 3u4f OLu£& A* ^ quaUfy ™V ** * ^ ^ Un**rfik^ fuWy -H\t prttfiSS or W*x+ especially -rte Lego* tewmotogy for 4k> PeKtion C°r DWfcUonoiy ^ ^ TV\£ Courf of Cri//final f\ppea\^ TWx^ tfee, kppelWrrj Alejandro MufibZ uy^Vies +o etensfce h& rla>Wf to fVte (V+vde ll.<n,"fihe AppeWwh^ Wejc^Jro Kuftbl- \A4DUl4 Ukk +o -rWik t^£ Courf &P Criminal frppeafe ftr ite -hime adr -hhtL /yia^r^n o& Why). Prayer ?oc ReVief Tine App£lta/rf5 Alej^ro rtufi&z Prtxys +Wer +Ve- V\or\oa\t\e <Lourt" ljdlii\A -VclI<£ coi^\^er<^Hor\ "H^e \nftyY/?#cHon -fU-f- X Ucu^e presented on rviV beWtfi y fW+1 oriGr^ Pro ge T€3(&6 ^epw-hYienf* of TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-12-00809-CR Alejandro Munoz, Appellant The State of Texas, Appellee FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT NO. CR-11-0443, THE HONORABLE WILLIAM HENRY, JUDGE PRESIDING MEMORANDUM OPINION A jury found appellant Alejandro Munoz guilty of six counts of aggravated sexual assaultof a childfor sexually abusing thenine-year-old sonof hisuncle's girlfriend.^[1] SeeTex. Penal Code § 22.02l(a)(l)(B)(i), (iii). The trial court assessed appellant's punishment at confinement for 75 years in the Texas Department of Criminal Justice for each count, orderingthe sentences to be served concurrently. See id. §§ 3.03(b)(2)(A), 12.32. In a single point of error on appeal, appellant in not requesting that a presentence investigation (PSI) be conducted or that an expert evaluate appellant prior to the punishment hearing. First, as appellant concedes in his brief, appellant was not entitled to have a PSI conducted in the instant case because the jury convicted him of multiple counts of aggravated sexual assault of a child, and thus he was not eligible for community supervision. See Tex. Code Crim. Proc. art. 42.12, §§ 3g(a)(l)(E) (limitations on judge-ordered community supervision prohibit judge from granting community supervision ifdefendant adjudged guilty ofaggravated sexual assault), 9(g)(3) (mandated PSI not required if only available punishment is imprisonment). Second, although appellant asserts that a PSI "would have been extremely beneficial" because the trial court would have "a thorough investigation ... regarding [appellant's] background, education, lack of criminal history, and any other mitigating evidence," this is pure

speculation. It is equallypossible that such information, or other information gathered during the PSI, would have been detrimental to appellant. Concerning the expert evaluation, appellant does not identify whattype of expert should haveevaluated appellant (presumably hemeans an expert in sex- offendertreatment)but simplyassertsthat it wouldhavebeen "strategic" to have appellantevaluated regarding his likelihood to reoffend. Again, this assertion assumes that such an evaluation would demonstrate that appellant was a low risk for recidivism as opposed to a high risk. Moreover, we also note that trial counsel in this case was retained. Therefore, a request for a court-appointed expert to evaluate appellant would not appear in therecord. Retained trial counsel could very well have consulted an expert or even had appellant evaluated. This is yet another claim of deficient performance not affirmatively demonstrated in the record. See Villa, 417 S.W.3d at 463.

Finally, appellant asserts that trial counsel was deficient because he "did not effectively advise [appellant] on his rights regarding the appellate process." As proof of this deficiency, appellant notes that appellant filed a pro se notice of appeal and that the record does not reflect that retained counsel withdrew as counsel of record. However, it is not uncommon for trial counsel to have the defendant sign the notice of appeal when counsel knows he will not be representing the defendant on appeal to avoid becoming counsel of record on appeal. See Tex. R.

App. P. 6.1(a) ("Unless another attorney is designated, lead counsel for an appellant is the attorney whose signature first appears on the notice of appeal."). Moreover, the pro se notice of appeal filed in this case was a typed document, not a hand-written letter, that contains language typically found in notices of appeal drafted by attorneys, including a certificate of service. This suggests that trial counsel prepared the notice of appeal for appellant to sign, which would indicate that counsel did discuss the appealwith appellant. Further,the fact that trial counsel did not formallywithdraw from

the case is not demonstrative of anything, as counsel was retained. While perhaps preferable for counsel to do so, the obligation to withdraw as counsel of record stems from the statute governing the appointment of counsel for indigent defendants. See Tex. Code Crim. Proc. art. 26.04(j).

Regardless, what counsel advisedappellantabouthis right to appeal and the appealprocess—orthat

counsel failed to advise him of such—is not reflected in the record before us. Thus, once again, appellant's claim ofdeficient performance isnotaffirmatively demonstrated intherecord. See Villa, 417S.W.3dat463.

As additional proofof deficient performance, appellant cites several comments the prosecutor made during the course oftrial about the conduct orstrategy ofappellant's trial counsel.

However, contrary to appellant's contention, such comments do not "clearly exemplify]

[appellant's] trial counsel's] complete lack of strategic or tactical decision-making." Rather, such

comments demonstrate, at most, that the prosecutor disagreed with her opponent's trial tactics. The mere fact that another attorney might have pursued a different course of action at trial does not

suffice to prove a claim of ineffective assistance of counsel. Tretterv. State, No. 03-12-00034-CR, 2014 WL 3893016, at *6 (Tex. App.—Austin Aug. 7, 2014, pet. ref d, untimely filed) (mem. op., not designated for publication); Harris v. State, 125 S.W.3d 45, 54 (Tex. App.—Austin 2003, pet.

ref d, untimely filed); see Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012), cert, denied, — U.S. —-, 133 S.Ct. 834 (2013).

In this case, appellant did not file a motion for new trial. Thus, the record is silent as to whether there was a strategic reason for counsel's alleged conduct about which appellant

complains. Appellant's assertionssuch as "there [was] no absolutelyno plausible trial strategy"and "there [was] no reasonable trial strategy" for the alleged deficiencies are mere speculation. Such speculation does not constitute a demonstration, founded in the record, that no reasonable trial strategy existed. See Lopez, 343 S.W.3d at 142 ("[Counsel's deficiency must be affirmatively demonstrated in the trial record; the court must not engage in retrospective speculation."); see also ra/a,417S.W.3dat463.

Appellant's trial counselwas not afforded an opportunity to explain his reasons for the complained-ofconduct. Absentrecord evidence regarding counsel's strategyor reasoning, we will presume heexercised reasonable professional judgment. SeeHillv. State, 303 S.W.3d863, 879

(Tex. App.—Fort Worth 2009, pet. ref d); Poole v. State, 91A 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 ofreasonable assistance because without explanation for trial counsel's decisions, the complained-ofconduct does not compel a conclusion that trial counsel's performance was deficient.

We cannot say that "no reasonable trial strategy could justify" counsel's decision to engage in the complained-ofconduct. SeeLopez, 343 S.W.3dat 143. Nor can we conclude that counsel's conduct

was "so outrageous that no competent attorney would have engaged in it." See Menefield, 363 S.W.3d at 592. Accordingly, we hold 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) ("[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.'").

Because appellant failed to meet his burden on the first prong of Strickland, we need not considerthe requirements of the secondprong—prejudice. SeeLopez, 343 S.W.3d at 144;see also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong.").

Nevertheless, we would also conclude that appellant failed to demonstrate that he suffered prejudice.

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 anappellant show, with the benefit of hindsight, that his counsel's actions oromissions during trial were ofquestionable competence. Lopez, 343 S.W.3dat \A2-A3. Further, merely showing that the errors had some conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at

693; ExparteMartinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). The appellant 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 summarily asserts that "[h]ad

[appellant's] trial counsel made proper objections, there is a reasonable probability that the jury

would not have found [him] guilty" because, according to appellant, this case relied solely on the credibility ofZ.R. andhismother since there was noevidence corroborating theallegations, and the admission of the evidence to which counsel did not object improperly bolstered their credibility.

Appellant further asserts that "[t]here is also a reasonable probability that if [appellant's] trial counsel had presented any beneficial evidence during punishment for the trial court toconsider that

[appellant's] sentence could have been less severe." These assertions are speculative claims without support in the record.

Appellant maintains that "the present case presents incompelling terms 'a breakdown in the adversarial process that our system counts ontoproduce justresults.'" We disagree. During voir dire, trial counsel questioned the jury panel regarding their ability to serve on the jury: he

discussed important legal concepts such as appellant's Fifth Amendment right not to testify; he explored possible bias or preconceptions relating to homosexuality and sexual orientation; he discussed issues factually relevant to the case such as child development and differing perceptions ofchildren as well as misconceptions concerning child molestation; he asked the jurors their views regarding homosexuality and child molestation; he discussed witness credibility and how to assess it; and he successfully challenged severalpanel members for cause. Further, the record showsthat counsel presented anddeveloped a defense strategy of asserting a false accusation as evidenced by

inconsistentstatements, Z.R.'s inability to recall details, and the lack of corroboratingevidence. In support ofthis defense, trial counsel emphasized, through cross-examination ofthe State'switnesses

and injury argument, thediscrepancies in the various statements given by Z.R. andhis mother and the deficiencies in the police investigation. During his closing argument, trial counsel discussed

Z.R.'s inability to recall specific details associated with the abuse and Z.R.'s behaviors that were

inconsistent with having been sexually abused. Counsel also provided alternative explanations for evidence possibly corroborating Z.R.'s allegation of abuse (such as appellant's writings) and reminded the jury that even though there was mention ofchild pornography there was no evidence of appellant's possession of such.

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 counsel's trial strategy was to focus on the

inconsistencies ofthe statements given byZ.R. and his mother, the lack ofcorroborating evidence, the inadequate police investigation, and a possible motive for Z.R. and his mother to fabricate the allegations. The fact that this strategy ultimately proved unsuccessful does not render counsel's assistance ineffective. On the record before us, appellant has failed to demonstrate deficient performance on the part ofhis trial counsel or that he suffered prejudice because ofthe 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.

CONCLUSION

Having overruled appellant'ssolepointof error, weaffirm thetrialcourt'sjudgments of conviction.