Opinion filed June 17, 2021

In The

Eleventh Court of Appeals 

__________

No. 11-18-00361-CR

__________

ABEL ARMENDARIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-38,387

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

The jury convicted Abel Armendariz of sexual assault of a child. Based upon 

Appellant’s plea of “true” to a prior felony conviction alleged for enhancement 

purposes, the jury assessed his punishment at confinement in the Institutional 

Division of the Texas Department of Criminal Justice for a term of fifty years. In a 

single issue on appeal, Appellant challenges his sentence based on the contention 

that he received ineffective assistance of trial counsel. We affirm.
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Background Facts

The indictment alleged that Appellant sexually assaulted M.D., a female child 

younger than seventeen, on or about July 28, 2010. See TEX. PENAL CODE ANN.

§ 22.011(a)(2)(A) (West Supp. 2020). Appellant was tried for the offense in 

December 2018. M.D. testified that she was fourteen in July 2010 and that she was 

twenty-three at the time of trial. M.D. testified that she lived in the same apartment 

complex as Appellant and his girlfriend or wife, Stephanie Orum. M.D. stated that 

Appellant was her friend’s stepfather and that she sometimes babysat for him. M.D. 

considered Orum to be a friend and someone she could trust.

M.D. described an evening in July 2010 when she and her friends were 

“hanging out” drinking alcohol on a stairwell in the apartment complex. M.D. 

testified that Orum joined them. Orum eventually invited M.D. to Orum’s apartment 

“to sober up” and watch a movie. Orum led M.D. into a bedroom where Appellant 

appeared to be asleep on the bed, wearing only his boxers. Orum pushed M.D. onto 

the bed at which time Orum began undressing M.D. while Appellant held M.D. 

down. M.D. testified that Appellant then had sexual intercourse with her, after which 

Orum performed oral sex on M.D. while Appellant stood in the corner of the room 

and watched.

Appellant did not testify at trial. However, in a recorded interview with the 

Odessa Police Department, Appellant stated that M.D. was the one that instigated 

having sex with him.

Appellant elected to go to the jury on punishment. The State first called 

Shawn Patrick Sweat as a punishment witness. In May 2018, Sweat was employed 

as a security officer for ION Security. While on duty at La Promesa Apartments in 

Odessa at 10:40 p.m. on May 28, 2018, Sweat observed a man punch a woman in 

the face with his fist. Sweat identified Appellant as the man that he observed that 
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evening. Sweat detained Appellant while waiting for the police to arrive, and he 

called an ambulance for the woman.

Officer Luis Villapando of the Odessa Police Department testified that he was 

called to La Promesa Apartments on May 28, 2018, for a disturbance involving 

Appellant and his wife, D.A.

1

 Officer Villapando stated that D.A. was pregnant at 

the time. Officer Villapando identified Appellant as the person arrested for the 

incident.

The State also offered seven exhibits into evidence, including one “pen 

packet.” The exhibits revealed that Appellant had prior convictions for burglary of 

a building, criminal mischief, violation of a protective order (two), and assault 

family violence (two).

The remaining topic addressed at the punishment hearing concerns the matter 

that gives rise to Appellant’s claim of ineffective assistance of counsel. Prior to the 

start of the punishment hearing, Appellant filed a “motion to strike” wherein he 

alleged that the State should be precluded from presenting evidence of “any prior 

sexual contact or sexual crimes” against any child, including any such crimes 

involving his wife while she was a minor. Appellant asserted in the motion that the 

State had failed to provide notice of its intent to use the extraneous offense at 

punishment.

Outside the presence of the jury, the attorneys and the trial court discussed a 

document forwarded to Appellant’s trial counsel through “Share File.” The notice 

of the offenses committed against Appellant’s wife while she was a minor was 

contained on the second page of this document. Appellant’s trial counsel called as 

a witness a person that works in his office that is “in charge of [his] computer 

discovery program.” She testified that she was only able to retrieve the first page of 

1Because there is an allegation of sexual assault committed against Appellant’s wife while she was 

a minor, we will refer to her by her initials.
4

the notice from the discovery that the State shared with trial counsel. The notice was 

prepared in 2013 at a time when Appellant was represented by other trial counsel. 

When asked if the notice was in the file obtained from previous counsel, trial 

counsel’s employee testified: “I’m not sure. I can’t say with certainty.” In response, 

the prosecutor stated that the entire notice was placed into Share File and that it was 

also filed with the trial court clerk. The trial court overruled Appellant’s motion to 

strike, citing the fact that trial counsel’s employee was uncertain if the document 

was in the file received from prior counsel.

The State then called D.A. as a witness. Prior to her testimony, Appellant’s 

trial counsel asked to approach the bench, at which point he advised the trial court 

that it “or somebody” should advise D.A. to claim spousal privilege. Trial counsel 

stated, “This woman has been barricaded in the DA’s office all day and I haven’t 

spoken to her about her privilege.” When D.A. later stated that she did not want to 

testify, Appellant’s trial counsel informed the trial court that D.A. was attempting to 

invoke spousal privilege. The trial court ruled that spousal privilege did not apply 

for the matters about which the State sought to question D.A.

D.A. testified that she first met Appellant when she was thirteen years old and 

that she had sexual intercourse with him when she was fourteen, prior to their 

marriage. In that regard, Appellant was nineteen years older than D.A. On crossexamination, D.A. testified that she and Appellant were in love when they had sex 

when she was fourteen. She also testified that Appellant was a good father to their 

four children. On redirect, D.A. testified that, when she first started seeing 

Appellant, he gave her money and that she continued to see him—even though he 

threatened her with physical violence—because he gave her money.

Appellant’s trial counsel called Appellant’s mother, Ruby Givens, as a 

witness on punishment. She testified that Appellant was a good father and a good 

provider.
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Analysis

In his sole issue on appeal, Appellant contends that he received ineffective 

assistance of counsel. He contends that trial counsel was deficient because (1) he 

failed to file a request for notice under Article 37.07 of the Texas Code of Criminal 

Procedure, (2) he failed to review the contents of the clerk’s file, and (3) he failed to 

interview D.A. to prepare for her “devastating” testimony. See TEX. CODE CRIM.

PROC. ANN. art. 37.07, § 3(g) (West Supp. 2020).

To establish that trial counsel rendered ineffective assistance at trial, 

Appellant must show that counsel’s representation fell below an objective standard 

of reasonableness and that there is a reasonable probability that the result would have 

been different but for counsel’s errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex. 

Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). 

A reasonable probability is a probability sufficient to undermine confidence in the 

outcome of the trial. Strickland, 466 U.S. at 694. There is a strong presumption that 

counsel’s conduct fell within the wide range of reasonable professional assistance, 

and the defendant must overcome the presumption that the challenged action could 

be considered sound trial strategy. Id. at 689.

A claim of ineffective assistance of counsel “must be firmly founded in the 

record, and the record must affirmatively demonstrate the alleged ineffectiveness.”

Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. 

Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a 

claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d 

390, 392 (Tex. Crim. App. 2005). Direct appeal is especially inadequate when 

counsel’s strategy does not appear in the record. Id. Trial counsel should ordinarily 

have an opportunity to explain his actions before an appellate court denounces 

counsel’s actions as ineffective. Id. Without this opportunity, an appellate court 

should not find deficient performance unless the challenged conduct was “so 
6

outrageous that no competent attorney would have engaged in it.” Id. (quoting 

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim App. 2001)).

We note at the outset that Appellant did not file a motion for new trial. Thus, 

trial counsel has not had an opportunity to explain or defend his trial strategy in 

response to the matters that Appellant contends were deficient. Furthermore, trial 

counsel has not had an opportunity to explain what effect, if any, his alleged deficient 

conduct had on the manner in which he represented Appellant at the punishment 

hearing. Appellant essentially contends that such an inquiry is unnecessary because 

there was no conceivable trial strategy for trial counsel to not be prepared for the 

State’s punishment evidence.

Appellant initially contends that trial counsel was deficient because he did not 

file a motion specifically requesting notice under Article 37.07. Based upon this 

contention, Appellant asserts that trial counsel was not entitled to the notice that he 

asserted at trial that he did not receive. We disagree with Appellant’s contention. 

As noted previously, this is not a case where the State did not provide any notice of 

the extraneous offense that it sought to offer at punishment. To the contrary, the 

State provided notice of the extraneous offense in a document that specifically 

referenced Article 37.07. Accordingly, the filing of a request for notice under 

Article 37.07 is not relevant to our inquiry because the State provided notice of the 

extraneous offense without a request being filed.

Moreover, the failure to file a request for notice under Article 37.07 is not so 

egregious, by itself, to constitute ineffective assistance of counsel. See Rodriguez v. 

State, 981 S.W.2d 357, 359 (Tex. App.—San Antonio 1998, no pet.) (noting that a 

rule finding counsel’s failure to request notice of extraneous offense evidence 

ineffective per se “would effectively block any attempt by the state to introduce 

evidence of this type, because in the case of an unfavorable result a defendant would 

be able to claim ineffective assistance as a matter of right”); see also Brown v. State, 
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No. 01-10-00791-CR, 2012 WL 1649852, at *8 (Tex. App.—Houston [1st Dist.] 

May 10, 2012, no pet.) (mem. op., not designated for publication); Huddleston v. 

State, No. 01-00-01174-CR, 2001 WL 1243962, at *3 (Tex. App.—Houston [1st 

Dist.] Oct. 18, 2001, pet. ref’d) (not designated for publication) (“[T]rial counsel’s 

failure to request notice of intent to introduce extraneous offenses at punishment 

does not per se constitute ineffective assistance of counsel.”).

Appellant also asserts that trial counsel failed to interview D.A. to determine 

what her testimony would be at punishment. Appellant bases this complaint on the 

comment by trial counsel that “[t]his woman has been barricaded in the DA’s office 

all day and I haven’t spoken to her about her privilege.” We disagree with 

Appellant’s contention that this comment by trial counsel indicated that he never 

interviewed D.A. about the matter to which she testified. To the contrary, trial

counsel’s comment only addressed that he had not been able to advise her about her 

spousal privilege.2 Accordingly, the record does not support Appellant’s contention 

that trial counsel never interviewed D.A. prior to her testimony.

Appellant additionally contends that trial counsel was deficient for failing to 

review the contents of the clerk’s file to discover the notice provided by the State. 

We will assume for the purpose of our analysis that this conduct fell below an 

objective standard of reasonableness. See Ex parte Welborn, 785 S.W.2d 391, 393 

(Tex. Crim. App. 1990) (“It is evident that a criminal defense lawyer must have a 

firm command of the facts of the case as well as governing law before he can render 

reasonably effective assistance of counsel.”). However, this does not end our 

inquiry.

2We note that Appellant’s trial counsel was able to convey information to D.A. about invoking her 

spousal privilege based upon trial counsel’s comments in the trial court. Appellant does not challenge the 

trial court’s ruling that overruled her claim of spousal privilege. In that regard, the spousal privilege to not 

testify in a criminal case does not apply in cases in which the other spouse is being tried for a crime against 

any minor child or for matters that occurred before marriage. See TEX. R. EVID. 504(b)(4)(A)(i), (B).
8

Appellant is essentially asserting that trial counsel should have had notice that 

the State was going to present evidence that he had had sex with D.A. when she was 

a minor. However, Appellant has not established what he would have done 

differently had trial counsel discovered the notice sooner. As noted in Brown, 

“[courts] have denied a defendant’s ineffective-assistance claim when the defendant 

failed to develop a record explaining the steps [that he] would have taken had trial 

counsel received notice of the extraneous offense evidence or establishing that the 

extraneous offense evidence was inadmissible in the first instance.” 2012 WL 

1649852, at *8. Furthermore, Appellant has not addressed in his brief the second 

Strickland prong with respect to prejudice. See 466 U.S. at 694. The failure to brief 

both prongs has been deemed to be a waiver of a claim of ineffective assistance of 

counsel. See Bessey v. State, 199 S.W.3d 546, 555 (Tex. App.—Texarkana 2006), 

aff’d, 239 S.W.3d 809 (Tex. Crim. App. 2007) (finding inadequate briefing where 

the appellant made no effort to show how record demonstrated prejudice under 

Strickland’s second prong); Peake v. State, 133 S.W.3d 332, 334 (Tex. App.—

Amarillo 2004, pet. ref’d) (overruling the appellant’s claim of ineffective assistance 

of counsel because issue was inadequately briefed and noting that the appellate court 

has “no duty to unilaterally fill the void appellant left” by his briefing).

As was the case in Brown, the record is not sufficiently developed in this case 

to establish ineffective assistance of counsel. See 2012 WL 1649852, at *8. 

Appellant has not identified any particular witness or other evidence that his trial 

counsel could have presented to rebut D.A.’s testimony. See id. Additionally, 

Appellant has not asserted that his strategy of going to the jury for punishment would 

have been different had trial counsel had prior knowledge of the State’s intent at 

punishment. Furthermore, Appellant has not asserted that a continuance or 

postponement would have been of benefit to him or that trial counsel should have 

requested one. In this regard, the purpose of the notice requirement under 
9

Article 37.07 is to prevent a surprise to the defendant. See Green v. State, 589 

S.W.3d 250, 266 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d). Thus, “a 

defendant’s ‘failure to request a postponement or seek a continuance waives any 

error urged in an appeal on the basis of surprise.’” Id. n.4 (quoting Lindley v. State, 

635 S.W.2d 541, 544 (Tex. Crim. App. [Panel Op.] 1982)); see also Francis v. State, 

445 S.W.3d 307, 319 (Tex. App.—Houston [1st Dist.] 2013), aff’d, 428 S.W.3d 850 

(Tex. Crim. App. 2014) (holding that, if evidence is “a legitimate surprise,” a party 

can request a continuance and the failure to do so precludes a finding of harm).

Finally, there is no argument or showing that the extraneous offense evidence 

was inadmissible. See Brown, 2012 WL 1649852, at *8. Article 37.07,

section 3(a)(1) provides as follows:

Regardless of the plea and whether the punishment be assessed by the 

judge or the jury, evidence may be offered by the state and the 

defendant as to any matter the court deems relevant to sentencing, 

including but not limited to the prior criminal record of the defendant, 

his general reputation, his character, an opinion regarding his character, 

the circumstances of the offense for which he is being tried, and, 

notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other 

evidence of an extraneous crime or bad act that is shown beyond a 

reasonable doubt by evidence to have been committed by the defendant 

or for which he could be held criminally responsible, regardless of 

whether he has previously been charged with or finally convicted of the 

crime or act. A court may consider as a factor in mitigating punishment 

the conduct of a defendant while participating in a program under 

Chapter 17 as a condition of release on bail. . . .

CRIM. PROC. art. 37.07, § 3(a)(1) (emphasis added).

A trial court has broad discretion in determining the admissibility of evidence 

presented at the punishment phase of trial. See Henderson v. State, 29 S.W.3d 616, 

626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). “[T]he admissibility of 

evidence during ‘the punishment phase of a non-capital trial is a function of policy 

rather than a question of logical relevance.’” Ellison v. State, 201 S.W.3d 714, 719 
10

(Tex. Crim. App. 2006) (quoting Sunbury v. State, 88 S.W.3d 229, 233 (Tex. Crim. 

App. 2002)). At the punishment hearing, relevant evidence is that which assists the 

factfinder in determining the appropriate sentence given the particular defendant in 

the circumstances presented. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 

1999). This language grants wide latitude in the admission of evidence deemed 

relevant, including evidence arising after the offense. Contreras v. State, 59 S.W.3d 

362, 365 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

Appellant has not established ineffective assistance of counsel under either 

Strickland prong. Accordingly, we overrule Appellant’s sole issue on appeal.

This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY

CHIEF JUSTICE

June 17, 2021

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.