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 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 https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc…doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 Page 5 of 7 Get a Document - by Citation - 2015 Tex. App. LEXIS 2330 6/1/15 3:46 PM 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. https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc…doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 Page 6 of 7 Get a Document - by Citation - 2015 Tex. App. LEXIS 2330 6/1/15 3:46 PM 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 Do Not Publish Service: Get by LEXSEE® Citation: 2015 Tex.App.LEXIS 2330 View: Full Date/Time: Monday, June 1, 2015 - 4:44 PM EDT About LexisNexis | Privacy Policy | Terms & Conditions | Contact Us Copyright © 2015 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc…doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 Page 7 of 7

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 [email protected] 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   Get a Document - by Citation - 2015 Tex. App. LEXIS 2330 6/1/15 3:46 PM 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 https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc…doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 Page 1 of 7 Get a Document - by Citation - 2015 Tex. App. LEXIS 2330 6/1/15 3:46 PM 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. https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc…doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 Page 2 of 7 Get a Document - by Citation - 2015 Tex. App. LEXIS 2330 6/1/15 3:46 PM 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 https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc…doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 Page 3 of 7 Get a Document - by Citation - 2015 Tex. App. LEXIS 2330 6/1/15 3:46 PM 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 https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc…doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 Page 4 of 7 Get a Document - by Citation - 2015 Tex. App. LEXIS 2330 6/1/15 3:46 PM 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