NUMBER 13-11-00591-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

FELIX MOYA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 148th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION1

Before Justices Rodriguez, Garza, and Perkes 

Memorandum Opinion by Justice Rodriguez

Appellant Felix Moya challenges his conviction for continuous sexual assault of a 

child younger than fourteen, a first-degree felony. See TEX. PENAL CODE ANN. § 21.02

 

1

Because this is a memorandum opinion and the parties are familiar with the facts, we will not 

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for 

it. See TEX. R. APP. P. 47.4.
2

(West Supp. 2011). A jury found Moya guilty, and the trial court sentenced Moya to 

eighty years in the Texas Department of Criminal Justice. By one issue, Moya

complains that the trial court erred in allowing defense counsel only eighteen days to 

prepare for trial, thus, rendering counsel’s assistance ineffective. We affirm.

I. Background

On November 29, 2010, the trial court appointed counsel to represent Moya. On 

April 4, 2011, the trial court replaced Moya’s first counsel. Moya’s second counsel filed a 

motion for discovery, a motion for discovery of exculpatory and mitigating evidence, and a 

motion for a list of witnesses. In April and June 2011, the State provided notice of 

possible experts. It also filed notice of its intent to offer extraneous offenses, the outcry 

statement, and the child’s hearsay statement. On July 19, 2011, Moya’s second counsel 

filed a motion to withdraw, citing inability to communicate effectively and an irreconcilable 

conflict with Moya as the bases for his motion. Moya consented to the withdrawal. On 

July 21, 2011, the trial court granted the motion to withdraw and appointed Moya’s third 

counsel.

At an August 2011 pre-trial hearing, in response to the State’s motion to disclose 

expert witnesses, Moya’s counsel stated that she consulted with a medical expert who 

was helping her formulate questions. She also represented to the trial court that she had 

gone through the discovery motions filed by Moya’s earlier counsel and that she believed 

she had everything she needed from the State. Counsel indicated that the only pre-trial 

issue she was researching was whether certain pictures could be excluded. Counsel 

admitted that she was aware the case was set for trial on the following Monday.
3

On August 8, 2011, just before voir dire began, Moya’s counsel raised an issue 

concerning Moya’s request for an interpreter and put on the record that he had declined 

the State’s plea offer. Counsel did not file a motion for a continuance and did not indicate 

that she was unprepared to proceed.

On August 9, 2011, counsel announced ready. Moya pleaded “not guilty,” and 

the trial began. Again, counsel filed no motion for continuance and made no objection 

that she was unprepared. During her opening statement, counsel raised the primary 

defense that Moya was being accused in retaliation for his having obtained custody of his 

children from his ex-wife, whose sister was the mother of the complaining witness. She 

later presented numerous defense witnesses, including Moya’s daughter, a registered 

nurse, Moya’s son, a Sheriff’s deputy, Moya’s ex-girlfriend, and a jail inmate who had 

contact with Moya. Counsel called and questioned Moya himself. She later included 

Moya’s defense in her closing argument. The jury found Moya guilty. No motion for 

new trial was filed. This appeal ensued.

II. MOTION FOR CONTINUANCE

By his sole issue, Moya complains that the trial court erred in allowing defense 

counsel only eighteen days to prepare for trial, which he asserts denied his trial counsel 

adequate time to prepare. Moya asserts that this, in turn, rendered his counsel’s 

assistance ineffective.

The code of criminal procedure provides for a continuance only on written motion

of the State or of the defendant, with sufficient cause shown. TEX. CODE. CRIM. PROC.

ANN. art. 29.03 (West 2008). The court of criminal appeals has also held that the 
4

defendant’s failure to comply with the written-motion requirement waives his right to 

challenge the trial court’s denial of his unsworn oral motion for continuance. Anderson v. 

State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009).

In the present case, even had Moya’s counsel requested a continuance in 

chambers as noted in appellant’s brief, there is no record of any written motion, and 

counsel clearly indicated that she was ready to proceed at the time of trial. We cannot 

conclude that the trial court committed error when it allowed the trial to proceed or that the 

trial court denied counsel adequate time to prepare for trial. Moya waived his right to 

challenge the trial court’s action. We overrule this portion of Moya’s sole issue.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Having overruled Moya’s argument regarding trial court error, Moya must show 

that his attorney was ineffective for failing to ask for such a continuance and for allegedly 

proceeding to trial unprepared. Moya argues that trial counsel’s failure to file a written 

motion for continuance was “horribly damaging to [his] case because counsel did not 

have sufficient time to prepare for trial, consult with experts, or interview witnesses . . . .”

A. The Law

To establish ineffective assistance of counsel, Moya must show, by a 

preponderance of the evidence, that: (1) his attorney's representation fell below an 

objective standard of reasonableness; and (2) he was prejudiced because there is a 

reasonable probability that, but for his attorney's errors, the result of the proceeding would 

have been different. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Perez v. 

State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Jaynes v. State, 216 S.W.3d 839, 
5

851 (Tex. App.—Corpus Christi 2006, no pet). Failure to make the required showing of 

either element defeats the ineffectiveness claims. Strickland, 466 U.S. at 700; Perez, 

310 S.W.3d at 893.

We review the effectiveness of counsel in light of the totality of the representation 

and the circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. 

App. 1999). Usually, the trial record will not be sufficient to establish an ineffective 

assistance of counsel claim. Id. at 813–14.

B. Discussion

In this case, the trial record is undeveloped as a record to demonstrate exactly how 

Moya’s counsel was denied adequate time to prepare for trial and how Moya would have 

benefited had he been granted a continuance. For example, the only specific complaint 

Moya raises concerns counsel’s ineffectiveness because of her failure to urge pretrial 

motions, specifically a motion for continuance. However, in light of the totality of the 

representation, portions of the record establish that Moya’s trial counsel clearly 

represented that she obtained everything she needed from the State and that no other 

pre-trial issues remained, except for a legal question she was researching concerning 

whether she could exclude certain pictures. Moya has not shown what witnesses he 

could have obtained or what experts he could have retained with more preparation time. 

Moya offers no explanation of how the outcome of the trial would have been different had 

his counsel not failed to file a motion for continuance. Thus, Moya has not met his

burden of showing prejudice, the second Strickland element. Having failed to show the 

prejudice element, Moya’s ineffectiveness claim is defeated. See Strickland, 466 U.S. at 
6

687–96; Perez, 310 S.W.3d at 893; Thompson, 9 S.W.3d at 812–13. Accordingly, we 

overrule the remaining portion of Moya’s issue.

IV. CONCLUSION

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 

4th day of April, 2013.