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 NOS. 03-13-00206-CR, 03-13-00207-CR, 03-13-00208-CR and 

03-13-00209

_____________________________________________________________

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

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

CLERK
2

TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................... 3

STATEMENT REGARDING ORAL ARGUMENT.............................. 6

IDENTITY 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!NOT!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! COUNSELS’! 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! REQUIREMENTS!OF! PERFECTING!

ERRORS!FOR!APPEAL.

ARGUMENT................................................................................. 16
3

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. 03-13-00206-

CR, No. 03-13-00207-CR, No. 03-13-00208-CR, No. 03-13-

00209-CR (Tex.App.-Austin, delivered March 12, 2015)
4

INDEX OF AUTHORITIES

CASES PAGES

Andrews!v.!State,!159!S.W.3d!98,!102!(Tex.Cr.App.!2005) ..................... 16

Barefoot!v.!State,!596!S.W.2d!875,!887X888!(Tex.Cr.App.!1980).......... 21

Cisneros v. State, 2015 Tex.App.LEXIS 2330, Nos. 03-13-00206-CR,

 03-13-00207-CR, 03-13-00208-CR, 03-13-00209-CR (Tex.App.-

Austin, delivered March12, 2015)............................................10, 11

Davis!v.!State,!413!S.W.3d!816,!828!(Tex.App.XAustin!2013,!pet.

!!!!!!!!!!!ref.)...............................................................................................16,!18,!23,!28

Ex!parte!Welborn,!785!S.W.2d!391,!396!(Tex.Cr.App.!1990)................. 27

Fuller!v.!State,!224!S.W.3d!823,!833!(Tex.App.XTexarkana!2007,

!!!!!!!!!!no!pet.).........................................................................................19,!20,!26,!27

Kjellerson!v.!State,!1999!Tex.App.LEXIS!5344!(Tex.App.XSan!

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,!289X290!(Tex.App.XAustin

!!!!!!!!!!!2013,!no!pet.).......................................................................................... 24,!26

Sessums!v.!State,!129!S.W.3d!242!(Tex.App.XTexarkana!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.Ct.!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)......................... 20
5

CONSTITUTIONS

Sixth!Amendment,!United!States!Constitution .....................................22,!26

COURT RULES

Tex.R.App.Proc.!66.3(a)..................................................................23,!24,!26,!27

Tex.R.App.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).......................................................................................... 22
6

STATEMENT REGARDING ORAL ARGUMENT

Petitioner has raised important questions of first impression in this 

Court and 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, 428th Judicial 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.! RobertsXHuckaby,! 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!IcenhauerXRamirez!X!appellate!attorney

1103!Nueces

Austin,!Texas!78701
7

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL 

APPEALS:

NOW COMES Rodolfo Cisneros, 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 CASE

In Third Court of Appeals Cause No. No. 03-13-00206-CR, Petitioner 

was indicted the offense of aggravated sexual 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, 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. 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.!!!Petitioner!

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 

motion for new trial on March 7, 2013. (C.R. 73) 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, 2013. (C.R. 69)

In Third Court of Appeals Cause No. No. 03-13-00207-CR, Petitioner 

was indicted for the offense 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) 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. 30-35) 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 sentenced that day. (R.R. VI, pp. 123-125; C.R. 

36-37) Petitioner filed a motion 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 filed on March 1, 2013. 

(C.R. 38)

In Third Court of Appeals Cause No. 03-13-00208-CR, Petitioner 
9

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 Petitioner’s punishment at seventy (70) years 

imprisonment to be served concurrently with Petitioner’s other three 

sentences. Petitioner was sentenced that day. (R.R. VI, pp. 123-125; C.R. 

35-36) Petitioner filed a motion 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)

In Third Court of Appeals Cause No. 03-13-00209-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 six 
10

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 Petitioner’s other three 

sentences. Petitioner was sentenced that day. (R.R. VI, pp. 123-125; C.R. 

35-36) Petitioner filed a motion 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 Appeals handed down an 

opinion in these cases. Cisneros v. State, 2015 Tex.App. LEXIS 2330, Nos. 

03-13-00206-CR, 03-13-00207-CR, 03-13-00208-CR, 03-13-00209-CR

(Tex.App.-Austin, delivered March 12, 2015). A motion for rehearing was 

filed in each cause. On May 4, 2015, the Third Court of denied Petitioner’s 

motions for rehearing. The petition 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! COULD! BE!

ATTRIBUTED!TO!REASONABLE!TRIAL!STRATEGY.

In!its!opinion!the!panel!of!the!Third!Court!of!Appeals!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!reason!

for!counsels’!conduct!or!what! the!particular!strategy!was.”!!Cisneros v. 

State, 2015 Tex.App.LEXIS 2330 *5, No. 03-13-00206-CR, 03-13-00207-

CR, 03-13-00208-CR, 03-13-00209-CR (Tex.App.-Austin, delivered March

12, 2015). The! Court! then! writes! that! the! assertions! by! appellate!

counsel! that! there! was! no! reasonable! trial! strategy! for! trial! counsels’

actions! are! “mere! speculation.”! !Cisneros v. State, 2015 Tex.App.LEXIS 

2330 *5, No. 03-13-00206-CR, 03-13-00207-CR, 03-13-00208-CR, 03-13-

00209-CR (Tex.App.-Austin, 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!

State! could! ask! the! lead! detective! if! he! thought! Petitioner

was!guilty.

!!!!!During! crossXexamination! of! the! lead! detective,! Petitioner’s! trial!

counsel! began!asking! the!lead! detective!if! he! thought! he! had! probable!

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! question! 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,!sideXstepped!the!
13

question!in!his!answer.!!! (R.R.! III,!p.!127X131)!!A! few!minutes!later! on!

redirect,!the!prosecutor!asked!the!detective!if!he!had!formed!an!opinion!

as!to!whether!the!defendant!was!guilty!and!the!detective!replied!that!he!

believed!Petitioner!was!guilty.!!!(R.R.!III,!pp.!174X175)

In! its! opinion! in! footnote! 3,! the! Court! of! Appeals! attributes! this!

line! of! questioning! to! 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!what!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!rationalizes! 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!defendant!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! witness! was!
14

allowed! to! testify! that! he! believed! Petitioner! was! guilty.! ! (R.R.! III,! pp.!

174X175)! ! 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! trial! counsel! began! questioning! the! lead! detective

about!the!inadmissible!topic!of!polygraphs.

During! his! crossXexamination! of! the! lead! detective,! Petitioner’s!

trial! counsel! began! asking! the! detective! if! it! was! common! for! law!

enforcement! to! ask! defendants! to! 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!whether!he!was!trying!to!provoke!a!mistrial,!says:

“Are! you! kidding! me?! ! ! I! think! we! are! doing! great.”!!

(R.R.!III,!pp.!154X155)!

A!discussion! then!ensued!which!showed! that! trial!counsel!had!no!idea!

that! the! topic!of!polygraph!examinations!is!inadmissible.!!! (R.R.! III,!pp.!

155X157)!!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!said! that!

Petitioner’s! trial! counsel!was!given! no! opportunity! to!explain!whether!
15

his!actions!were!reasonable!trial!strategy.!!!As!shown!above,!at!least!in!

two! instances! 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! strategy.! ! In! both! of! those!

instances,!Petitioner’s!“trial!strategy”!was!not!reasonable,!was!improper!

and!resulted!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 claim 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 granted.
16

GROUND FOR REVIEW NUMBER TWO

THE! OPINION! OF! THE! COURT! OF! APPEALS! FAILED! TO! ADDRESS!

TRIAL! COUNSELS’! 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!

REQUIREMENTS!OF!PERFECTING!ERRORS!FOR!APPEAL.

The! opinion! of! the! Court! of! Appeals! also! fails! to! discuss! those!

errors! that! are! so! egregious! that! there! could! be! no! reasonable! trial!

strategy!that!would!justify!trial!counsels’!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.! State,! 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!following:

1. Trial! Counsel! Eliciting! Evidence! of! Petitioner’s! Own!

Extraneous!Offenses

During! crossXexamination! of! Petitioner’s! wife,! Petitioner’s! trial!

counsel! asked! her! if! Petitioner! had! ever! shown! “any! proclivities!

towards! any! sexually! deviant! behavior.”! ! The! State! 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.!114X

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! other!

instances!she!saw!where!she!believed!that!Petitioner!was!having!sexual!

contact!with!the!child.!!!(R.R.!IV,!pp.!120X121,!129X130,!134X135)
18

The!opinion!of!the!Court!of!Appeals!did!not!address!this!lapse!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.! ! ! There! was! no! need! to! have! Petitioner’s! trial!

attorneys!attempt!to!explain!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!admissible!

during!the!guiltXinnocence!phase!of!the!trial.!!!Davis!v.!State,!supra.

2.!Trial!Counsel!Failing!to!Object!to!the!Admission!of!Extraneous!

Offenses

During! the! State’s! caseXinXchief,! Petitioner’s! wife! testified!

nonresponsively! that! Petitioner! had! a! habit! 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)!also!asked!the!judge!to!give!the!jury!a!limiting!

instruction.! ! (R.R.! IV,! pp.! 78X79)! ! ! How! can! Petitioner’s! trial! counsels’!
19

failure! to! object! and! protect! their! client! be! reasonable! trial! strategy?!!!

The!opinion!of!the!Court!of!Appeals!did!not!discuss!this!lapse!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! the! 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.XTexarkana!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! fabricating! the! allegations! against!

Petitioner.! ! ! ! (R.R.! V,! pp.! 77X80,! 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!stood!quietly!by!and!allowed!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);! Fuller! 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,! Petitioner

asked! the! Court! of! Appeals! to! address! the!instance! where! Petitioner’s!

trial! counsel! began! crossXexamining! 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! relying! 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! therefore!were! biased.! ! ! Petitioner

would! assert! that! there! was! no! such! reasonable! strategy! behind! 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!complainant!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! nonXexpert!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,! 887X888! (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!clients.

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!evidence! on! the! basis! of! Petitioner’s!Sixth!Amendment!

right! to! confrontation! and! cited! the! case! of!Wall! v.! State,! a! 2007! case!

from! the! Court! of! Criminal! Appeals.! ! ! (R.R.! IV,! pp.! 127X128)! ! His!

objection! was! overruled.! ! ! Trial! counsel’s! objection! was! not! correct!

because! there! was! no! denial! of! crossXexamination! and! confrontation.!!!

Petitioner’s! wife! was! on! the! stand! and! trial! counsel! had! just! finished!

crossXexamining! 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!objection!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! holds! 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.XSan! 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! when! it! failed! to! address! 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! with! another! opinion! of! the! Third! Court! of! Appeals,!Davis! v.!

State,! 413! S.W.3d! 816,! 828! (Tex.App.XAustin! 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! 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 granted.

GROUND FOR REVIEW NUMBER THREE

THE! COURT! OF! APPEALS! FAILED! TO! PROPERLY! ANALYZE! THE!

PREJUDICE!PRONG!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! the! 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,!289X

290! (Tex.App.XAustin! 2013,! no! pet.),! the! Third! Court! 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! same! 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!was!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!the!State!to!

elicit! from! the! lead! detective! 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! elicited! 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! crossX

examination.!!This!prejudice!was!compounded!by!trial!counsel!actually!

eliciting! from! 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!urges!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! attorneys’! performance.! ! ! 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,!289X290!(Tex.App.XAustin!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! effective! 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!against!

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!process.!!!

This!ground!for!review!should!be!granted.

CONCLUSION!AND!PRAYER

In!his!brief!on!original!appeal,!Petitioner!argued!that!his!case!was!

eerily!similar!to!the!cases!of!Fuller!v.!State,!supra!and!Sessums!v.!State,!
27

129! S.W.3d! 242! (Tex.App.XTexarkana! 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! ineffective!

assistance!of!counsel!where!counsel,!like!Petitioner’s!trial!counsel,!failed!

to! object! to! evidence! of! the! complainant’s! truthfulness! and! where!

counsel,! like! Petitioner’s! trial! counsel,! elicited! harmful! extraneous!

offense! evidence! against! their! own! clients.! ! ! The! appellate! courts! in!

those!cases!found!that!there!was!no!reasonable!trial!strategy!that!would!

have!justified!such! testimony!being!admitted!into!evidence!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! conflicts! 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.! ! Petitioner! 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.

Respectfully 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, statement 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 discretionary review contains 3,679 words, as calculated by the word 

count function on my computer and is prepared in Times New Roman 14

point font.

/s/ Linda Icenhauer-Ramirez 

LINDA ICENHAUER-RAMIREZ
29

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Petition for 

Discretionary Review was e-served to the office of the State Prosecuting 

Attorney and to the Hays County District Attorney’s Office on this 3rd day 

of June, 2015.

/s/ Linda Icenhauer-Ramirez 

LINDA ICENHAUER-RAMIREZ
30

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.App.-Austin, delivered 

March 12, 2015)
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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's
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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.
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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

OPINION
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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 record
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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 gained
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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.
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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

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