### 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. 03-13-00206- CR NO. 03-13-00207- CR NO. 03-13-00208- CR NO. 03-13-00209- CR

Rodolf o Cisneros, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 428 TH JUDICI AL DISTRICT

NOS . CR-1 2-0 432, CR-12 -04 33, CR- 12- 0434 , & CR-12 -04 35 THE HO NORAB LE WI LLIAM R. H ENRY, JUDGE P RESIDING

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

A jury found appellant Rodolfo Cisneros g uilty of four counts of ag g rava ted sexual assault of a child for sexually abusing his step g randda ug hter, A.D ., when she was five

. See Tex. 1
Penal Code § 22.021(a) (1)( B) , (2)( B)

. The trial court assessed app ellant’s punishment at confine ment for 70 y ear s in the Texas Depa rtment of Criminal J ustice for eac h count, order ing the

The jury hear d evidenc e that appellant perpe trated various sexual acts ag ains t A.D. on 1 multipl e occasions, i ncluding perf orming oral sex on her ( “putting his tong ue on her private part” or “licking her hoo ha”) , penetr ating her sexual org an with his fing er (“touc hing inside her pr ivate part with his fing er” ), penet rating her sexual org an with his penis (“putting his private part in her private part” or “putting his hoo ha in her hoo ha”) , and penetr ating her anus with his fing er (“putting his fing er in her bottom” or “putting his fing er in her tail”). Be cause the parties are familiar with the fac ts of the ca se, its pr ocedur al history , and the evidenc e adduce d at trial, we do not r ecite them in this opinion except as nec essar y to advise the pa

rties of the Court’s decision and the basic rea sons for it. See Tex. R. App. P . 47.1, 47.4.sentenc es to be serve d concur rently

. See id. § § 12.32, 22.021(f) (1). I n a single point of err or on
appea l, a ppellant complains that he suffe red ineffe ctive assistance of counse l at trial. We find no 2

reve rsible err or. H oweve r, throug h our own revie w of the rec ord, we have found non-re versible err or in the written judgme nts of conviction. We w ill modify the judgme nts to corr ect the cler ical err ors and, as modified, a ffirm the judg ments.

DISCUSSIO N Ineff ect ive Assistance of Counsel
I n his sole point of err or, appellant contends that his trial counsel rende red ineffe ctive assistance at trial. He complains of multipl e actions o r i n ac t i o n s on the part of trial counsel, including pr opounding cer tain questions to the investiga ting detec tive, failing to object to or eliciting
extraneous miscon d u ct evidenc e, failing to prese rve err or reg arding hear say evidenc e, lacking familiarity “with the Rules of Evidence , Proper Trial Procedur e, and t he L aw in Gene ral,” and eliciting, failing to object to, or purportedly opening the door to testimony from the State’s witnesses about appe llant’s g uilt or A.D.’s cr edibility

.

To establish ineffe ctive assi s t an ce o f counsel, an appellant must demonstrate by a preponde ranc e of the evidenc e both defic ient perf ormanc e by counsel and prejudice suffe red by the defe ndant. Strickland v. W ashington , 466 U.S. 668, 687 (1984); Nava v. State , 415 S.W .3d 289, 307 (Tex. Crim. App. 2013). The appellant must first demonstrate that counsel’s perf ormanc e fell below

an objective standard of rea sonablene ss under preva iling profe ssional norms. Strickland , 466 U.S.

Appellant wa s repr esente d by two differ ent attorne y s at trial. 2 2at 687–88; Nava , 415 S.W .3d at 307. The a ppellant must then show the exist ence of a rea sonable probabili t y

— o n e sufficie nt to undermine confide nce in the outcome—that the result of the
proce eding would have been differ ent absent counsel’s defic ient perf ormanc e. Strickland , 466 U.S.
at 694; Nava , 415 S.W .3d at 308. Fa ilure to make the require d showing of either deficient perf ormanc e or sufficie nt prejudice defe ats the ineffe ctiveness claim. Strickland , 466 U.S. at 700;
see Pe rez v. State , 310 S.W .3d 890, 893 (Tex. Crim. App. 2010).

Appellate revie w of counsel’s repr esenta tion is highly defe rential; we must “indulg e in a st rong presumption that counsel’s conduct was not def i ci en t .” Nava , 415 S.W .3d at 307–08; see Strick land , 466 U.S. at 686. To rebut that pr esumption, a claim of inef fec tive assistance must be “firmly founded in the rec ord” and “the rec ord must aff irmatively demonstrate” the meritorious
nature of the claim. See Mene field v. State , 363 S.W .3d 591, 592 (Tex

. Crim. App. 2012); Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial re cord by itself be sufficie nt to demonstrate an ineffe ctive-a ssistance claim. Nava , 415 S.W .3d at 308. I f trial counsel has not been aff

orded the opportunity to explain the rea sons for his conduct, we will not find h i m t o b e defic ient unless the challeng ed conduct was “so outrag eous that no competent attorney would have eng ag ed in it.” Id. (quoting Mene field , 363 S

. W

. 3 d at 593); Goodspee d , 187 S.W .3d
at 392.
I n this case , appellant filed a motion for new trial. Howeve r, he did not raise a claim of ineffe ctive assistance of counsel in the motion. Thus, the rec ord is silent as to why trial counsel
acte d or failed to act in the manner that appellant now complains about on appea l. Although at some points during trial counsel indicated they wer e eng ag ing in a particula r course of conduct as part of

3“trial strateg y ,” they did not (or wer e not g iven the opportunity to) explain what the particula r strateg y was. Consequently , the record before this Court is not sufficie ntly develope d to allow us
to evalua te t hose suppos ed improper actions or f

ailures to ac t beca

use “[n]either [hi s] counsel nor the State have been g iven an opportunity to respond to” the claims of ineffe ctiveness. See Mene field , 363 S.W .3d at 593. The rec ord is silent as to whether there wa s a s t ra t egi c rea son for counsels’ conduct or what the particula r strateg y was. Appellant’s repe ated asser tion that there was no g ood trial strateg y to acc ount for or explain counsels’ conduct is mere specula tion. Such specula tion does
not constitute a demonstration, founded in the rec ord, that no rea sonable trial strateg y exis ted. See Lopez v. State , 343 S.W .3d 137, 142 (Tex. Crim. App. 2011 ) (“ [ C ] ounsel’s defic iency must be aff irmatively demonstrated in the trial rec ord; the court m u s t n ot eng ag e in retrospe ctive specula tion.”); see also Villa v. State , 417 S.W .3d 455, 463 (Tex. Crim. App. 2013) (“[C] ounsel’s alleg ed def

iciency must be aff

irmatively

demonstrated in the tr ial rec ord.”)

. Appellant’s trial attorney s wer e not aff ord ed an opportunity to explain their

reasons for the complained- of conduct. Absent rec ord evidenc e reg arding counsels’ strateg y or

re as o n i n g, we will presume they exercised rea sonable profe ssional judgme nt. See Hill v. State , 303 S.W .3d 863, 879 (Tex. App.—For t 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 f ailed to reb u t th e strong presumption of rea sonable assistance beca use without explanation for trial counsels’ decisions, the complained- of conduct does not compel a conclusion that their perfo rmanc e was defic ient. We cannot say that “no rea sonable trial strateg y could justify ” their decision to eng ag e in

4the complained- of conduct. See Lopez , 343 S.W .3d at 143. Nor can we conclude that their conduct 3

was “so o u t ra geo us that no competent attorney would have eng ag ed in it.” See Mene field , 363 S.W .3d at 592; see also Ex parte Jimene z , 364 S.W .3d 866, 883 (Tex. Crim. App. 2012) (“The

mere fac t that another attorney might have pursued a differ ent tactic at trial does not suffice to prove

a claim of in ef

fe ct i v e assistance of counsel.” ). Acc ording ly , we find that appellant has failed to demonstrate defic ient perf ormanc e on the part of his trial counsel. See Fran g i a s v. State , 450 S.W .3d 125, 136 (Tex. Crim. App. 2013) (“[U]nless there is a rec ord sufficie nt to demonstrate that counsel’s conduct was not the product of an informed strateg ic or tactica l decision, a revie wing

For ex am p l e, in half of his complaints about trial counsels’ perf ormanc e, appellant 3 criticizes them for eliciting, failing to obje ct to, or purportedly opening the door to testimony from the S tate’s witnesses reg arding their b el i ef i n appellant’ s g uilt or A.D.’s truthfulness. Ordinar ily , witnesses are not permitted to testify as to their opinion about the g uilt or innocenc e of a defe ndant, see Sandoval v. State , 409 S. W

. 3 d 2 5 9 , 2 92 (Tex. App.—Austin 2013, no pet.); Boyde v. State , 513 S.W .2d 588, 590 (Tex. Crim. App. 1974), or the cre dibilit y of a complainant or the truthfulness of a complainant’s alleg ations, see Sandoval , 409 S.W .3d at 292; Schutz v. St a t e , 957 S.W .2d 52, 59 (Tex. Crim. App. 1997); Y o u n t v. State , 872 S.W .2d 706, 711 (Tex. Crim. App. 1993). An arg ument can be made, howeve r, that counsel eng ag ed in the conduct here in or der to de monstrate the bias of the State’s witnesses. For example, the questions propounded to law enfor ceme nt officia ls arg uably attempted to highlig ht the office rs’ immedia te a s s u mp ti o n th a

t a p p e lla nt was g uilty afte r hear ing about A.D.’s outcry , which led to a failure to conduct a thoroug h or complete investiga tion. The failure to object to the testimony of A.D.’s family members about believing A.D. allowed counsel to emphasize the fac t that even though, as they all conce ded, they trusted appellant and never , throug hout their deca des-long rela tionship with him, had any rea son to suspect he had ever eng ag ed in any inappropria te behavior with children, they automatically believed A.D. without any corr oborating proof. Opening the door or not objecting to testimony from cer tain experts—the prog ram direc tor from the children’ s advoca cy cente r, the sexual assault nurse examiner, and A.D.’s counselor—a ffor ded counsel the opportunity to highlig ht the limit ed—and biased—na ture of their knowledg e and opinions: t h es e i n d ividuals admitted they wer e child advocates who wer e only familiar with A.D. and her side of the story , having no knowledg e of appellant or the circ umstances of the situation other than f rom information g ained f rom A.D. 5court should presume that trial counsel’s perf ormanc e was constitutionally adequate ‘unless the challeng ed conduc t was so outrag eous that no compe tent attorney would have e ng ag ed in it.’”).
Be cause appellant failed to meet his burden on the first prong of Strickland , we need
not consider the require ments of the second prong —prejudice

. Lopez , 343 S.W .3d at 144; see also
W illiams v. State , 301 S.W .3d 675, 687 (Tex. Crim. App. 2009) (“ An appe llant’s failure to satisfy

one prong of the Strickland test neg ates a court’s need to consider the other prong .”). Neve rtheless,

we a lso find that appellant fa iled to demonstrate that he suffe red pr ejudice.

Even if an appellant shows that particula r err ors of counsel wer e u n re as onable, he
must further show that they actua lly had an adver se effec t on the def ense. Strickland , 466 U.S. at 693–95; Cochran v. State , 78 S.W .3d 20, 24 (Tex. App.—Ty ler 2002, no pe t.). I t is not sufficie nt that a defe ndant show, with the benef it of hindsight, that his counsel’s actions or omissions during trial wer e of questionable competenc e. Lopez , 343 S.W .3d at 142–43. Fur ther, mere ly showing that the err ors had some conce ivable eff ect on the proce eding s will not suffice

. Strickland , 466 U.S. at 693; Ex parte Martinez , 330 S.W .3d 891, 901 (Tex. Crim. App. 2011). I nstead, he must prove that counsel’s err ors, judge d by the totality of the repr esenta tion, not by isolated instances of err or or by a portion of the tr ial, denied him a f air trial. Strickland , 466 U.S. at 695.
I n his arg ument reg arding prejudice , appellant arg ues that this Court should find prejudice beca

use the cumulative eff

ect of the alleg ed err ors demonstrates that his lawy ers failed to subject the State’s case to a meaning ful adver sarial ch al l en ge. He contends that their err ors “per vaded and prejudice d the e n ti r e d e f e n s e ” a nd their “inef

fec tive perf

ormanc e seriously prejudice d [hi s ] ri gh t t o a fair trial.” He claims that “[h] ad defe nse counsel done their job, the State’s case

6would have been far less persua sive and there is a rea sonable probability that the outco m e o f the

g uilt-innocence proce eding would have been differ ent

. . . [and] a rea sonable probability that the trial
court would have assessed a shorter sentenc e.” These asser tions are specula tive claims without support in the rec ord.

Appellant ma in

ta in s th a t h e “did not even rec eive the minimal standard of advoca cy .”
We disag ree . During voir dire, trial counsel questioned the members of the jury panel reg arding their ability to serve on the jury : they discussed im portant leg al conce pts such as the presumption of innocenc e, the State’s burden of proof, and appellant’s Fif t h Amendment right not to testify ; they explored possible bias or prec onceptions rela ting to child sexual abuse case s; they discussed issues fac tually rele vant to the case such as children’ s knowledg e of or exposure to information reg arding
sex; they asked the ju rors their views reg arding the truthfulness of children; and they discussed potential bias ag ainst appellant. They also succe ssfully challeng ed sever al panel members for cause . Fur ther, the rec ord shows that throug hout tr ial counsel prese nted and develope d a defe nse strateg y of a fals e accusation. I n support of this defe nse, trial counsel emphasized, throug h

cross-e x amination of the State’s witnesses and in jury arg ument, the one-sided nature of the State’s

case , the flawe d police investiga tion (including an incomplete SANE exam), the lack of

corr oborating evidence, inconsistent statements from the outcry witness (A.D.’ s g randmother ),
A.D.’s inability to rec ou n t d et ail s 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 knowledg e of sexual a cts, including obse rving her pa rents eng ag e in sexual acts and obtaining information from her teena g e half-br other. During closing arg ument, trial counsel discussed A.D.’s vague response s

7during her testimony at trial, the lack of corr oborating evidenc e, the rush to assume appellant’ s g uilt

by those involved in the investiga tion of the alleg ations, and the bias of A.D.’s family members and the State’s experts. Trial counsel ag ain discussed the presumption of innocenc e, prese nted source s of reasonable doubt to the j ury , and reminded the j ury that appellant had co n s istently denied guilt and had cooperat ed ful ly with the police investiga tion, even voluntarily providing a sample for DNA testing

. An acc used is not entitled to entirely err orless repr esenta tion, and we look to the
tot ality of the repr esenta tion in g aug ing the adequa cy of counsel’s perf ormanc e. Frangias , 450 S.W .3d at 136. The rec ord in this case re v ea l s that trial counsels’ trial strateg y was to demonstrate that appellant was the victim of a false acc usation. Counsel focuse d on the bias of the
State ’s wi tnesses, the lack of corr oborating evidenc e, the inadequa te police investiga tion, and possible alterna tive source s from which A.D. could have obtained information about sex. The fac t that this strateg y ultimately proved unsucce ssful—or that appellate counsel disag ree s with it—does not rende r counse ls’ assistance ineffe ctive.

On t he record before us, appellant has failed to demonstrate deficie nt perfo rm ance

on the part of his trial counsel or that he suffe red prejudice beca use of the alleg ed err ors of counsel. Thus, he has not show n himself entitled to r ever sal based on ineffe ctive assistance of counse l. We

overr ule appe llant’s sole point of err or.

Cleric al Error in Judgme nts On revie w of the rec ord, howeve r, we observe that the wr i t t en j udg ments of conviction in this case contain a cler ical err or. The judgme nts of conviction state that the “Statute

8for Offe nse” is “21.021(a )(2) (f) (1) Penal Code.” The statute for the offe nses as alleg ed in the

indictments here , howeve r, is section 21.021(a) (1) (B ), (2)( B) of the Penal Code. This Court has authority to modify incorre ct judgme nts w hen the nece ssary information is a vailable to do so. See
Tex. R. App. P. 46.2(b); Bigley v. State , 865 S.W .2d 26, 27–28 (Te x . Crim. App. 1993).
Acc ording ly , b e c a

u s e th e nece ssary information is available here , we modify the incorre ct judgme nts to refle ct the cor

rec t Penal Code section.

CONCLUSION Having conclude d t hat appellant failed to demonstrate that he suffe red ineffe ctive assistance of counsel, we modify the trial court’s judgme nts of conviction as noted above and aff irm the judg ments as modified.

__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Goodwin, and F ield Modified and, a s Modified, Aff irmed Filed: Mar ch 12, 2015 Do Not Publish

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