### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00477- CR

Raul Sau cedo-Z avala, Appellan t

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 4 O F TRAVIS CO UNTY NO. C-1 -CR- 11- 5016 28, TH E H ONO RAB LE MI KE DENTON, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

A j u ry convicted appellant Raul Saucedo- Z avala of the misdemeanor offe nse o f
assault

. S

ee T ex

. P enal Code § 22.01(a) (1), (b). Upon appellant’ s elec tion for the trial court to

assess his punishment, the trial court sentenc ed appellant to 180 day s in the county jail but suspended imposit ion of that sentenc e and place d appellant on community supervision for 18 months. See Tex. Code Crim. Proc. art. 42.12, § 3.

I n a si ng le poi nt of e rr o r on appea l, appellant contends that he rece ived i neff ective
assistance of counsel at tri al. The State ag ree s—noting that appellant’ s trial counsel “see med

g ener ally unprepa

red, often uninformed, unconce rned about his own costly mistakes, and g ener ally
showed a decide d lack of judgme nt”—and joins in the pray er to reve rse and rema nd for a new trial. 1

The State’s letter brief also states that the prosec utor confe rre d with the judge who presided 1
over appellant’ s trial and that the judge “has also come t o t h e independe nt conclusion that trial counsel wa s ineffe ctive.”We are mindful that our revie w of counsel’s perf ormanc e must be highly defe rential, judge d by the totality of his repr esenta tion. See Strickland v. W ashington , 466 U.S. 668, 690 (1984).

Howeve r, our revie w of the rec ord compels us to ag ree with the parties that appellant’ s trial counsel
rende red ineffe ctive assistance to a ppellant. Be cause the parties ag ree , we do not f ind it nece ssary

to rec ite all the deficiencie s of t rial counsel’s perf ormanc e or t h e various way s those defic iencies, individually and cumulatively , prejudice d appellan t

. See id. at 687 (to succe ed in claim of
ineffe ctive assistanc e of c ounsel appe llant must show both de ficient perf ormanc e and prejudice to
defe nse). Suffice it to say that counsel’s ineffe ctive assistance perme ated the trial proce eding below, beg inning with jury selec tion, continuing throug h the prese ntation of evidenc e, enduring throug h the punishment phase, and c ulminating at the he aring on the motion for new tr ial. 2

Fo r example, during jury selec tion, other than g ener alized rhetoric al questions, counsel 2 asked no questions of the venire panel or individual jurors

. He incorre ctly identified appellant’ s offe nse as “assa

ult with serious bodily injury ” when appellant was char g ed only with assault causing bodily injury and, eve n afte r the State’s obje ction, persisted in talking about “g rea t bodily injury .” He briefly ref

err ed to self-de fense , sug g esting it would be an issue in this case , but wholly failed to explain any aspec t of the law of self-de fense or ask questions rela ting to that issue. Finally , counsel failed to challeng e for cause or pere mptorily strike a biased juror who admitted that his decision in this case would be influence d by his past experience with family violence. This juror was ultimately seate d on appellant’ s jury

. Throug hout the trial, counsel repe atedly asked improper impeachme nt questions and
numerous irrele vant question s ( to the point that the trial judge eventua lly admonished counsel during the puni shment phase to ref rain from doing so). During the g uilt-innocence phase, counsel failed to obje ct to the introduction of evidenc e of appellant’ s drug use during the testimony of the victim and her daug hter. Fur

thermore , counsel opened the door to evidenc e of extraneous conduct that appellant ha d tried to forc e the victim to perf orm oral se x on him. At the outset of the punishment phase, counsel asser ted his client’s innocenc e even while acknow l ed g ing the jury ’s guilty verdic t and asked the court about t he possi bility of a continuance to “ bring one of those police office rs back on the stand . . . [s] o we c an cla rify as to what he said.” He continued to insist on appellant’ s innocenc e throug hout the punishment heari n g ra t h er than addre ss the issue of appropr iate punishment. I n fac t, the trial court (the fac t-finder assessing punishment) expressed conce rn about the fac t that the entire punishment phase was dedica ted to
2Our revie w of the rec ord compels us to conclude that appellant’ s conviction resulted

from a brea

kdown in the adver sarial proce ss tha t rende red the result of his trial unre liable. See id.

Acc ording ly , we reve rse the trial court’s judgme nt of conviction and rema nd for further proce eding s consistent with this opi nion. 3

__________________________________________ Melissa Goodwin, Jus tice

Be fore J ustices Pury ear , Goodwin, and F ield

Reverse d and Remande d Filed: June 11, 2014
Do Not Publish

disputing appe llant’s g uilt, an issue alrea dy resolved by

the jury

. Concerning his motion for new trial, we initially observe that the trial court conducte d three separ ate hear ings on the motion for new trial, two of them outside the 75-day period. Trial counsel not only did not objec t t o co n t inuing the hear ing bey ond the 75-day period, but filed documents rela ted to the motion for new trial afte r the 75-day period had expired, appar ently unawa re that the motion for new trial had been overr uled by opera tion of law. See Parmer v. State , 38 S.W .3d 661, 666–67 (Tex. App.—Austin 2000, pet. ref ’d) (if motion for new trial has n o t b een ruled on by written orde r within 75 day s after imposit ion of sentenc e, motion is overruled by opera tion of law and trial court loses jurisdiction to rule on motion; hear ing conducte d afte r motion for new trial has been overr

uled by opera tion of law is not au t h o ri z ed ); T ex

. R. App. P. 21.8. The prese ntation of counsel’s g rounds for new trial demonstrate a lack of judgme nt and leg itimate trial strateg y
. Counsel’s arg uments (and gr ounds) failed to articula te any basis for a new tria l and wer e not only unsubstantiated but also extremely confusing , irrele vant, and a bsurd.
We also g rant the State’s reque st to expedite the issuance of the mandate. See Tex. R. App. 3 P. 18.1(c).
3