NO. ___________ IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS

_____________________________________________________________ RODOLFO CISNEROS , PETITIONER VS. THE STATE OF TEXAS, RESPONDENT

____________________________________________________ _________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

OF THE DECISION IN THE THIRD COURT OF APPEALS CAUSE NO S . 03
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_____________________________________________________________ LINDA ICENHA UER
- RAMIREZ ATTORNEY AT LAW 1103 NUECES AUSTIN, TEXAS 78701 TELEPHONE: 512
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- 7991 FACSIMILE: 512
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- 3580 LJIR@AOL.COM SBN: 10382944 ATTORNEY FOR PETITIONER
ORAL ARGUMENT IS RESPECTFULLY REQUESTED PD-0675&0676&0677&0678-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 6/3/2015 12:32:20 PM Accepted 6/4/2015 10:11:28 AM

ABEL ACOSTA CLERK2 TABLE OF CONTENTS INDEX OF AUTHORITIES

................................ ................................ .... 3 STA TE MENT REGARDING ORAL ARGUMENT

.............................. 6
IDENT ITY OF JUDGE, PARTIES AND COUNSEL

............................ 6 STATEMENT OF THE CASE

................................ ................................ 7 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

... 10 GROUND FOR REVIEW NUMBER ONE

................................ ............ 11 THE!COURT!OF!APPEALS!ERRED!WHEN! IT!SAID!THAT!THE! RECORD!DOES!NO T!REFLECT! THAT!TRIAL!COUNSEL!WERE GIVEN! AN! OPPORTUNITY! TO! EXPLAIN! IF! THEIR! ACTIONS! COULD!BE!ATTRIBUTED!TO!REASONABLE!TRIAL!STRATEGY. ARGUMENT

................................ ................................ ................. 11 GROUND FOR REVIEW NUMBER TWO

................................ ............ 16 THE! OPINION! OF! THE! COURT! OF! APPEALS! FAILED! TO! ADDRESS! TRIAL! COUNSEL S ’ ! 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! REQUI REMENTS!OF! PERFECTING! ERRORS!FOR!APPEAL. ARGUMENT

................................ ................................ ................. 163 GROUND FOR REVIEW NUMBER THREE

................................ ....... 24 THE! COURT! OF! APPEALS! FAILED! TO! PROPERLY! ANALYZE! THE!PREJUDICE!PRONG!OF! STRICKLAND!V.!WASHINGTON.
ARGUMENT

................................ ................................ ................................ .... 24 CONCLUSION AND PRAYER

................................ .............................. 26 CERTIFICATE OF COMPLIANCE

................................ ....................... 28 CERTIFICATE OF SERVICE

................................ ................................ 29 APPENDIX

................................ ................................ .............................. 30 Cisneros v. State , 2015 Tex.App.LEXIS 2330, No. 03

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- CR ( Tex.A pp. - Austin, delivered March 12, 2015)4 INDEX OF AUTHORITIES CASES PAGE S Andrews!v.!State ,!159!S.W.3d!98,!102!(Tex.Cr.App.!2005)

..................... 16 Barefoot!v.!State ,!596!S.W.2d! 87 5,!887

X 888!(Tex.Cr.App.!1980)

.......... 21 Cisneros v. State , 2015 Tex.App.LEXIS 2330, No s . 03

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- CR ( Te x.A pp. - Austin, delivered March12, 2015)

................................ ............ 10, 11
Davis!v.!State ,!413!S.W.3d!816,!828!(Tex.App.

X Austin!2013,!pet.!!!!!!!!!!! ref.)

................................ ................................ ............................... 16 ,!18,!23,!28 Ex!parte!Welborn ,!785!S.W .2 d!391,!396!(Tex.Cr.App.!1990)

................. 27 Fuller!v.!State ,!224!S.W.3d!823,!833!(Tex.App.

X Te xarkana!2007,!!!!!!!!!! no!pet.)

................................ ................................ ......................... 19,!20,!26,!27 Kjellerson!v.!State ,!1999!Tex.App.LEXIS!5344!(Tex. Ap p. X San! Antonio!1999,!no!pet.)

................................ ................................ ................ 23 Pyles!v.!State ,!755!S. W. 2d!98,!118!(Tex.Cr.App.!1988)

............................. 21 Sandoval!v.!State ,!409!S.W.3d!259,!289

X 290!(Tex.App.

X Austin!!!!!!!!!!! 2013,!no!pet.)

................................ ................................ .......................... 24,!26
Sessums!v.!State ,!129!S.W.3d!242!(Tex.App.

X Texarkana!2004,!!!!!!!!!! pet.!ref’d)

................................ ................................ ................................ .... 26,!27 Schutz!v.!State ,!957!S.W.2d!52,!76!(Tex.Cr.App.!1997)

...................... 19,!20 Strickland!v.!Washington ,!466!U.S.!668,!104!S.C t.!2052,!80!L.Ed.2d! 674!(1984 )

................................ ................................ ................................ ....... 24 Wall!v.!State ,!184!S.W.3d!730!(Tex.Cr.App.!2006)

................................ ...... 22
Yount!v.!State ,!872!S.W.2d!706,!708!(Tex.Cr.App.!1993)

......................... 205 CONSTITUTIONS Sixth!Amendment,!United!States!Constitution

................................ ..... 22 ,!2 6

COURT RULES
Te x.R.App.Proc.!66.3(a)

................................ ................................ .. 23,!24,!26,!27
Tex.R.A pp.Proc. !66.3(c)

................................ ................................ ........................ 26!!!! Tex.R.App.Proc. 66.3(f)

................................ ................................ .... 15, 24 Tex.R.Ev. 608

................................ ................................ .......................... 19 Tex.R.Ev. 608(a)

................................ ................................ ...................... 17
Tex.R.Ev.!613

................................ ................................ ................................ .............. 22 !Tex.R.Ev.!801(e)(1)(B)

................................ ................................ .......................... 2 26 STATEMENT REGARDING ORAL ARGUMENT Petitioner has raised important questions of first impression in this Court a nd believes that oral argument would help clarify the issues presented in his petition for discretionary review. Therefore he respectfully requests oral argument.

IDENTITY OF JUDGE, PARTIES AND COUNSEL Trial Judge: The Honorable William Henry, 428 th Ju dicial District Court of Hays County, Texas Parties and Counsel: !!!!!!!(a)!the!State!of!Texas!represented!by: Ms.!Cathy!Compton ,!Asst.!District!Attorney!

– !trial!attorney Ms.!Amy!Lockhart ,!Asst.!District!Attorney!

– !trial!attorney Ms.! Angie! D.! Roberts

X Huc kaby ,! Asst.! District! Attorney!

– appellate!attorney Hays !County !District!Attorney's!Office! Hays!County!Justice!Center 712!South!Stagecoach!Trail,!Suite!2057 San!Marcos,!Texas!78666!!! !!!!(b)!Mr.!Rodolfo!Cisneros ,!represented!by: Mr.!Mark!Morales

– !trial! attorney Mr.!Carson!Guy

– !trial!attorney 307!Rock!Street,!Building!2 Georgetown,!Texas!78626 Ms.!Linda!Icenhauer

X Ramirez!

X !appellate!attorney 1103!Nueces Austin,!Texas!787017 TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: NOW COMES Rodolfo Ci sneros , Petitioner in this cause by and through his attorney, Linda Icenhauer

- Ramirez, and, pursuant to the provisions of Tex.R.App.Proc. 66, et seq., moves this Court to grant discretionary review, and in support will show as follows:

STATEMENT OF THE C ASE In Third Court of Appeals Cause No. No. 03

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- CR, Petitioner was indicted the offense of aggravated se xual assault of a child under the age of six years by penetrating the child’s anus with his finger or fingers

. 1 (C.R. 8 ) On March 1, 2013 , af ter hearing the evidence and argument of both the State and the defense, the jury found Petitioner guilty of the offense of aggravated sexual assault of a child under the age of six years. (R.R. VI, pp. 85

- 86; C.R. 64

- 68) On March 1, 2013 , after hearing the punishment evidence and argument from both the State and the defense, the judge assessed Petitioner’s punishment at seventy (70 ) years imprisonment to be served concurrently with Petitioner’s other three sentences . Petitioner was!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 !This!case!was!joined!with!three!other!indictments!in!a!single!jury!trial.!!!Pet itioner! was! convicted! of! aggravated! sexual! assault! in! all! four! cases.! ! ! This! consolidated! petition!for!discretionary!review!is!being!filed!for!all!four!causes.8 sentenced that day. (R.R. VI, pp. 123

- 125 ; C.R. 70

- 71 ) Petitioner filed a

m otion for new trial on March 7, 2013. (C.R. 7 3 ) Notice of appeal was filed on March 25, 2013. (C.R. 78) The trial court’s certification of defendant’s right of appeal was filed on March 1, 2 013. (C.R. 69) In Third Court of Appeals Cause No. No. 03

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- CR, Petitioner was indicted for the offen se of aggravated sexual assault under the age of six years by penetrating or contacting the sexual organ of a child with his mouth

. (C.R. 4 ) O n March 1, 2013 , after hearing the evidence and argument of both the State and the defense, the jury found Petitioner guilty of the offense of aggravated sexual assault of a child under the age of six years. (R.R. VI, pp. 85

- 86; C.R. 30

- 35) On March 1, 2013 , after hearing the punishment evidence and argument from both the State and the defense, the judge assessed Petitioner’s punishment at seventy (70 ) years imprisonment to be served concurrently with Petitioner’s other three
sentences . Petitioner was s entenced that day. (R.R. VI, pp. 123

- 125; C.R. 36

- 37 ) Petitioner filed a m otion for new trial on March 7, 2013. (C.R. 40) Notice of appeal was filed on March 25, 2013. (C.R. 45) The trial court’s certification of defendant’s right of appeal was f iled on March 1, 2013. (C.R. 38) In Third Court of Appeals Cause No. 03

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- CR, Petitioner9 was indicted for the offense of aggravated sexual assault of a child under the age of six years by penetrating the sexual organ of the child with his finger or fingers

. (C.R. 4 ) On March 1, 2013 , after hearing the evidence and argument of both the State and the defense, the jury found Petitioner guilty of the offense of aggravated sexual assault of a child under the age of six years. (R.R. VI, pp. 85

- 86; C .R. 30

- 34) On March 1, 2013 , after hearing the punishment evidence and argument from both the State and the defense, the judge assessed Pet itioner’s punishment at seventy (70 ) years imprisonment to be served concurrently with Petitioner’s other three

sen tences . Petitioner was sentenced that day. (R.R. VI, pp. 123

- 125; C.R. 35

- 36 ) Petitioner filed a m otion for new trial on March 7, 2013. (C.R. 39) Notice of appeal was filed on March 25, 2013. (C.R. 44) The trial court’s certification of defendan t’s right of appeal was filed on March 1, 2013. (C.R. 37) In Third Court of Appeals Cause No. 03

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- CR, Petitioner was indicted for the offense of aggravated sexual assault of a child under the age of six years by penetrating the sexual organ of the child with his finger or fingers. (C.R. 4 ) On March 1, 2013 , after hearing the evidence and argument of both the State and the defense, the jury found Petitioner guilty of the offense of aggravated sexual assault of a child under the age of six10 years . (R.R. VI, pp. 85

- 86; C.R. 30

- 34) On March 1, 2013 , after hearing the punishment evidence and argument from both the State and the defense, the judge assessed Petitioner’s punishment at seventy (70 ) years imprisonment to be served concurrently with Pet itioner’s other three
sentences . Petitioner was sentenced that day. (R.R. VI, pp. 123

- 125; C.R. 35

- 36 ) Petitioner filed a m otion for new trial on March 7, 2013. (C.R. 39) Notice of appeal was filed on March 25, 2013. (C.R. 44) The trial court’s certification of defendant’s right of appeal was filed on March 1, 2013. (C.R. 37)

STATEMENT OF THE PROCEDURAL HISTORY On March 12, 2015 , the Third Court of Appea ls handed down an opinion in the s e case s . Cisneros v. State , 2015 Tex. App. LEXIS 233 0 , No s . 03

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- CR ( Tex.App.

- Austin, delivered March 12, 2015 ). A motion for re hearing was filed in each cause . On May 4, 2015 , the Third Court of denied Petitioner’s motion s for rehearing. The peti tion for discretionary review is due to be filed on or before June 3, 2015

.11 GROUND FOR REVIEW NUMBER ONE THE!COURT!OF!APPEALS!ERRED!WHEN!IT!SAID!THAT!THE!RECORD! DOES! NOT! REFLECT! THAT! TRIAL! COUNSEL! WERE ! GIVEN! AN! OPPORTUNITY! TO! EXPLAIN! IF! THEIR! ACTIONS! CO ULD! BE! ATTRIBUTED!TO!REASONABLE!TRIAL!STRATEGY. In!its!opinion!the!panel!of!the!Third!Court!of!Appeal s!makes!short! shrift! of! Petitioner ’s! claim! of! ineffective! assistance! of! counsel! by! asserting!“the!record!is!silent!as!to!whether!there!was !a!strategic!rea son! for!counsel s ’ !conduct!or!what! the!particular!strategy!was.”!! Cisneros v. State , 2015 Tex.App.LEXIS 2330 *5 , No. 03

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- CR ( Tex.A pp. - Austin, delivered March 12, 2015). The! Court! then! wri te s ! that! the! assertions! by! appellate! counsel! that! there! was! no! reasonable! trial! str ategy! for! trial! counsel s ’ actions! are! “mere! spe culation.”! ! Cisneros v. State , 2015 Tex.App.LEXIS
2330 *5 , No. 03

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- CR ( Tex.A pp. - Aus tin, delivered March 12, 2015). The! Court’s! opinion! goes! on! to! say! that! because! the! record! does! not! contain! an! explanation! of! trial! counsel’s! conduct,! the! court! will! presume! they! exercised! reasonable! professional! judgment.! ! The! Court! of! Appeals’!
assertion ! that! trial! counsel! was! never! able! to! explain! whether! their conduct!amounted!to!reasonable!trial!strategy!is!incorrect.!!!The!record!12 in!this!case!is!unusual!in!that!it!reflects!that!trial!counsel’s!performance! was!so!questionable!that!on!several!occasions! even!the!State!questioned! trial! counsel! outside! the! presence! of! the! jury! as! to! whether! trial! counsel’s!actions!could!be!chalked!up!as! “trial!strategy.”!!Two!of! these! instances!are!set!out!below:

1. When!trial!counsel!unwittingly!opened!the!door!so!that!the! S tate! could! ask! the! lead! d etective! if! he! thought! Petitioner was!guilty. !!!!!During! cross

X examination! of! the! lead! detective,! Petitioner ’s! trial! counsel! began!asking! the!lead! detective!if! he! thought! he! had! pro bable! 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! qu estion! 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

X stepped!the!13 question!in!his!answer.!!! (R.R.! III,!p.!127

X 131)!!A! few!minutes!later! on! redirect,!the!prosecutor!asked!the!de tective!if!he!had!formed!an!opinion! as!to!whether!the!defendant!was!guilty!and!the!detective!re plied!that!he! believed!Petitioner !was!guilty.!!!(R.R.!III,!pp.!174

X 175) In! its! opinion! in! footnote! 3,! the! Court! of! Appeals! attributes! this! line! of! questioning! t o! 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!wh at !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!ra tionalizes! 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!d efendant!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! wi tness! was!14 allowed! to! te stify! that! he! believed! Petitioner ! was! guilty.! ! (R.R.! III,! pp.!
174

X 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! tr ial! counsel! began! questioning! the! lead! detective about!the!inadmissible!topic!of!polygraphs

. During! his! cross

X examination! of! the! lead! detective,! Petitioner ’s! trial! counsel! began! asking! the! detective! if! it! was! common! for! law! enforcement! to! ask! defendants! t o! 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!w hether!he!was!trying!to!provoke!a!mistrial,!says: “Are! you! kidding! me?! ! ! I! think! we! are! doing! great.”!! (R.R.!III,!pp.!154

X 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

X 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!s aid! that!
Petitioner ’s! trial! counsel!was!given! no! opportunity! to!explain!whether!15 his!ac tions!were!reasonable!trial!strategy.!!!As!shown!above,!at!least!in!
two! insta nces! 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! strate gy.! ! In! both! of! those! instances,!Petitioner ’s!“trial!strategy”!was!not!reasonable,!was!improper! and!result ed!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 cl aim 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 grant ed.16 GROUND FOR REVIEW NUMBER TWO THE! OPINION! OF! THE! COURT! OF! APPEALS! FAILED! TO! ADDRESS! TRIAL! COUNSEL S ’ ! ERRORS! FOR! WHICH! THERE! COULD! BE! NO! REASONABLE!TRIAL! STRATEGY,! SUCH!AS!ELICITING!EVIDENCE!OF! EXTRANEOUS! SEXUAL! OFFENSES! ALLEGEDLY! COMMITTED! BY! PETITION ER! 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!COMPLAINAN T!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! egregio us! that! there! could! be! no! reasonable! trial! strategy!t hat!would!justify!trial!counsel s ’ !actions.!!As!the!Third!Court!of! Appeal!recently!wrote!in! Davis!v.!State ,!413!S.W.3d!816,!828!(Tex.App.

X 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.! St ate ,! 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!17 failed! to! address! them! on! Petitioner’s! direct! appeal.! ! ! These! errors! include!the!follow ing:
1. Trial ! Counsel! Eliciting! Evidence! of! Petitioner’s! O wn! Extraneous!Offenses
Durin g! cross X examination! of! Petitioner’s! wife,! Petitioner ’s! tria l! counsel! asked! her! if! Petitioner ! had! ever! shown! “any! proclivities! towards! any! sexually! deviant! behavior.”! ! The! S tate! 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

X 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! ot her! instances!sh e!saw!where!she!believed!that!Petitioner !was!having!sexual! contact!with!the!child.!!!(R.R.!IV,!pp.!120

X 121,!129

X 130,!134

X 135)18 The!opinion!of!the!Court!of!Appeals!did!not!address!this!lap se!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.! ! ! The re! was! no! need! to! have! Petitioner ’s! trial! attorneys!attempt!to!ex plain!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!admissi ble! during!the!guilt

X 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

X in

X chief,! Petitioner ’s! wife! testifie d! nonresponsively! that! Petitioner ! had! a! habi t! 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)!als o!asked!the!judge!to!give!the!jury!a!limiting! instruction.! ! (R.R.! IV ,! pp.! 78

X 79)! ! ! How! can! Petitioner ’s! trial! counsels’!19 failure! to! object! and! protect! their! client! be! reasonable! trial! strategy?!!! The!opin ion!of!the!Court!of!Appeals!did !not!discuss!this!laps e!at!all.!!!
3. Trial!Counsel!Failing!to!Object!When!the!State!Asked!Several! of! its! Witnesses! if! They! Believed! the! Alleged! Victim! was! Telling!the!Truth!in!Violation!of!Tex.R.Ev.!608. The!opinion!of!the!Court!of!Appeals!failed!to!address!the!instances! raised in! Petitioner’s! brief! when! Petitioner ’s! trial! counsel! failed! to! object!to!the!State’s!repeated!violation!of!Tex.R.Ev.!608.!!!This!occurred! when! the! State! asked! the! child’s! mother! if! she! believed! the! child! was! telling! the! truth! (R.R.! IV,! p.! 180)! and!when! t he! State! asked! the! child’s! father!if!he!believed!the!child!was!telling!the!truth!(R.R.!IV,!p.!186).!!!The! law! is! clear! that! a! lay! witness! may! not! testify! to! the! complainant’s! truthfulness.! ! ! Schutz! v.! State ,! 957! S.W.2d! 52,! 76! (Tex.Cr.App.! 1997);! Fuller!v.! State ,!224!S.W.3d!823,!833!(Tex.App.

X Texarkana!2007,!no!pet.);! Tex.R.Ev.!608(a).! !!!Trial! counsel! also! failed! to! object! when! the! State! asked! the! complainant’s! counselor! Stephanie!Watts!if! she! saw! any! red! flags! that! indicated! that! the! complainant! was! fabri cating! t he! allegations! against!
Petitioner .! ! ! ! (R.R.! V,! pp.! 77

X 80,! 85)! ! ! Once! again! this! was! not! a! reasonable ! trial! strategy.! ! ! Had! Petitioner’s! trial! counsel ! wanted! this! information! before! the! jury,! he! would! have! asked! it! of! the! witness.!!!20 Instead,!he!stoo d!quietly!by!and!all owed! Watts!to!testify!in!response!to! at!least!four!different!questions,!that!she!believed!the!complainant!was! telling! the! truth.!!!This!was!in!clear! violation!of! the!law.!!!See! Yount!v.!
State ,! 872! S.W.2d! 706,! 708! (Tex.Cr.App.! 1993);! Ful ler! v.! State ,! supra;! Schutz!v.!State ,!supra.!!!!Certainly! there!can!be!no!reasonable!strategic! reason! to! allow! the! State! to! violate! this! clear! rule! and! introduce! such! damaging,!improper!evidence.!
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,! Petiti oner asked! the! Court! of! Appeals! to! addr ess! the!instance! where! Petitioner ’s! trial! counsel! began! cross

X 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! relyin g! 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! th erefore!were! biased.! ! ! Petitioner would! assert! that! there! was! no! such! reasonable! strategy! behi nd! trial! counsel’s! actions.! ! ! If! that! was! the! strategy,! trial! counsel! would! have!21 asked!the!State’s!expert!witness!the!ultimate!question!

– X !did!she!believe! that!the!complaina nt!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

X 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

X 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!c lients.
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!22 attorney! was! not! applicable! to! the! situation! at! hand.! ! ! Trial! counsel! objected! to! the!ev idence! on! the! basis! of! Petitioner ’s!Sixth!Amendment! right! to! confronta tion! and! cited! the! case! of! Wall! v.! State ,! a! 2007! case! from! the! Court! of! Criminal! Appeals.! ! ! (R.R.! IV,! pp.! 127

X 128)! ! His! objection! was! overruled.! ! ! Trial! counsel’s! objection! was! not! correct! because! there! was! no! denial! of! cross

X examinatio n! and! confrontation.!!! Petitioner ’s! wife! was! on! the! stand! and! trial! counsel! had! just! finished!

cross X 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!objec tion!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,!23 there! can! be! no! reasonable! trial! strategy! for!a! defense!attorney! not! to! preserve! error! for! appeal.! ! ! And! case! law! hold s! 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.

X 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! whe n! it! failed! to! ad dress! 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! w ith! another! opinion! of! the! Third! Court! of! Appeals,! Davis! v.!
State ,! 413! S.W.3d! 816,! 828! (Tex.App.

X 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!24 usual! course! of! judicial! proce edings! 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!PR ONG!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! t he! 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

X 290! (Tex.App.

X Austin! 2013,! no! pet.),! the! Third! Co urt! 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! sam e! 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).25 case !was! the! complainant’s! account!in! her! testimony.! ! ! Thus! the!main! issue!in!the!case!wa s!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!t he!State!to! elicit! from! the! lead! det ective! 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! elic ited! 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

X examination.!!This!prejudice!was!compounded!by!trial!counsel!actually! eliciting! f rom! 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 !urg es!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!26 his! attorn eys’! pe rformance.! ! ! 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

X 290!(Tex.App.

X 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! effec tive! 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!aga inst! 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!pr ocess.!!! This!ground!for!review !should!be!granted

. CONCLUSION!AND!PRAYER In!his!brief!on!original!appeal,!Petitioner!argued!that!his!case!was! eerily!simi lar!to!the!cases!of! Fuller!v.!State ,!supra!and! Sessums!v.!State ,!27 129! S.W.3d! 242! (Tex.App.

X 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! in effective! assistance!of!counsel!where!counsel,!like!Petitioner’s!trial!counsel,!failed! to! object! to! evidence! of! the! complainant’s! truthfulness! and! where!

counse l,! like! Petitioner ’s! trial! counsel,! elicited! harmful! extraneous! offense! evidence! against! their! ow n! clients.! ! ! The! appellate! courts! in! those!cases!found!that!there!was!no!reasonable!trial!strategy!that!would! have!justified!such! testimony!being!admitted!into!evid ence!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! confl icts! 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!28 (Tex.Cr.App.!1990);! Davis!v.!State ,!supra.!! Petitioner !asserts!that!his!case is! just! such! a! case.! ! Petitio ner ! 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.
Res pectfully submitted, /s/ Linda Icenhauer

- Ramirez LINDA ICENHAUER

- RAMIREZ ATTORNEY AT LAW 1103 NUECES AUSTIN, TEXAS 78701 TELEPHONE: 512

- 477

- 7991 FACSIMILE: 512

- 477

- 3580 ljir@aol.com 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, statemen t 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 disc retionary review contains 3,679 words, as calculated by the word count function on my computer and i s prepared in Times New Roman 14 point font. /s/ Linda Icenhauer

- Ramirez LINDA ICENHAUER

- RAMIREZ29 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Petitio n for Discretionary Rev iew was e

- served to the office of the State Prosecut ing Attorney and to the Hays County District Attorney’s Office on this 3rd day of June, 2015

. /s/ Linda Icenhauer

- Ramirez LINDA ICENHAUER

- RAMIREZ30 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.A pp. - Austin, delivered March 12, 2015)6/1/15 3:46 PM Get a Document - by Citation - 2015 Tex. App. LEXIS 2330

Page 1 of 7 https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc...doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 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's6/1/15 3:46 PM Get a Document - by Citation - 2015 Tex. App. LEXIS 2330

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

Page 3 of 7 https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc...doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 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

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 OPINION6/1/15 3:46 PM Get a Document - by Citation - 2015 Tex. App. LEXIS 2330

Page 4 of 7 https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc...doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 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 record6/1/15 3:46 PM Get a Document - by Citation - 2015 Tex. App. LEXIS 2330

Page 5 of 7 https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc...doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 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

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 gained6/1/15 3:46 PM Get a Document - by Citation - 2015 Tex. App. LEXIS 2330

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

Page 7 of 7 https://www.lexis.com/research/retrieve?_m=96de1ee3c2ecbb6eddc...doc=1&wchp=dGLzVzt-zSkAA&_md5=5ed6e90a682d0a49159cb93eda8c3973 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

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