NO. 14-15-00285-CR

IN THE FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

DAVID RUIZ, APPELLANT 

V. 

THE STATE OF TEXAS, APPELLEE

BRIEF FOR THE STATE OF TEXAS

CAUSE NUMBER 11CR1921

IN THE 212th JUDICIAL DISTRICT COURT 

OF GALVESTON COUNTY, TEXAS

ATTORNEYS FOR THE STATE OF TEXAS 

REBECCA KLAREN ASSISTANT CRIMINAL DISTRICT ATTORNEY 

 STATE BAR NO. 24046225 

JACK ROADY CRIMINAL DISTRICT ATTORNEY 

600 59TH STREET, SUITE 1001 

GALVESTON TX 77551 

(409) 770-6004, FAX (409) 621-7952 

rebecca.klaren@co.galveston.tx.us

ORAL ARGUMENT WAIVED

 

ACCEPTED

14-15-00285-CR

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

12/23/2015 10:46:03 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 12/23/2015 10:46:03 AM CHRISTOPHER A. PRINE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL 

Presiding Judge Honorable Patricia Grady 

Appellant David Ruiz 

Appellee The State of Texas 

Attorney for Appellant Chabli Hall 

 (Trial Only) Houston, Texas 

Attorney for Appellant Kyle Verret 

 (Appeal Only) Galveston, Texas 

Attorney for State T. Matthew Heermans & 

 Richard Hayes 

 (Trial Only) Galveston, Texas 

Attorney for State Rebecca Klaren 

 (Appeal Only) Galveston, Texas 
iii

TABLE OF CONTENTS

 

SECTION PAGE 

Identity of Parties and Counsel ii 

Table of Contents iii 

Index of Authorities v 

Summary of the Argument 2 

Statement of Facts 3 

First Issue 28 

Counsel showed the State’s witnesses knew Ruiz was an abuse 

victim. She also showed they were unaware of Ruiz’s head 

injury. Counsel presented evidence, through Ruiz, that he was 

sexually abused and suffered a head injury that may’ve impacted 

his ability to do probation. 

How was counsel deficient when she presented mitigating 

evidence? 

How was Ruiz prejudiced when the same judge set his 

punishment and would’ve known if cumulative mitigating 

evidence would’ve changed its sentence? 

 Argument and Authorities 28 

I. Motion for New Trial Standard of Review 29 

II. Ineffective Assistance of Counsel Relevant Law 30 

III. Trial Counsel Was Not Deficient 33 

IV. Ruiz Was Not Prejudiced 37 

V. Conclusion—Ruiz Is Not Entitled To A New Punishment 

Hearing 42 
iv

Second Issue 43 

A court must hold a hearing on a motion for new trial if the 

motion raises matters that aren’t determinable from the 

record and establishes reasonable grounds showing that the 

defendant could be entitled to relief. 

What’s the abuse of discretion in denying a new trial hearing 

when the record shows counsel wasn’t deficient and the judge 

who received the motion also set the punishment? The judge 

knew if the affidavits would’ve changed her sentence. 

 Argument and Authorities 43 

I. Motion for New Trial Hearing Relevant Law 44 

II. The Trial Court Did Not Abuse Its Discretion By Denying A 

Hearing On Ruiz’s Motion For New Trial 45 

 

Conclusion and Prayer 49 

Certificate of Service 50 

Certificate of Compliance 50 
v

INDEX OF AUTHORITIES 

CASES

Ansari v. State, 06-14-00220-CR, 2015 WL 7300073, at *2 (Tex. App.---Texarkana 

Nov. 13, 2015, no. pet. h. ....................................................................................... 34 

Arriaga v. State, 335 S.W.3d 331, 336-37 (Tex. App.---Houston [14th Dist.] 2010, pet. 

ref’d) .......................................................................................................... 40, 42, 47 

Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002). .................................. 32 

Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008) ......................... 30, 42 

Castaneda v. State, 01-14-00389-CR, 01-14-00390-CR, 2015 WL 6930466 *9 (Tex. 

App.---Houston [1st Dist.] Nov. 10, 2015, no pet. h.) .......................... 33, 40, 42, 47 

Coble v. Quarterman, 496 F.3d 430, 437 (5th Cir. 2007) ................................................ 39 

Eddie v. State, 100 S.W.3d 437, 442 (Tex. App.---Texarkana 2003, pet. ref’d) ............. 34 

Ex parte Martinez, 195 S.W.3d 713, 731 (Tex. Crim. App. 2006) ................................. 39 

Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). ................................. 32 

Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006) ............................. 40 

Frangias v. State, 450 S.W.3d 125 (Tex. Crim. App. 2013) .................................... 35, 36 

Gholson v. State, 5 S.W.3d 266, 273 (Tex. App.---Houston [14th Dist.] 1999, pet. ref’d).

 ............................................................................................................................... 31 

Glenn v. State, 01-13-00640-CR, 2015 WL 831995, at *4 (Tex. App.—Houston [1st 

Dist.] Feb. 26, 2015, pet. ref’d) .................................................................. 40, 42, 47 

Goody v. State, 433 S.W.3d 74, 81 (Tex. App.---Houston [1st Dist.] 2014, pet. ref’d). ....... 

 .................................................................................................................. 40, 42, 47 

Harrington v. Richter, 562 U.S. 86, 112 (2011). .............................................................. 33 
vi

Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009) ................................ 44, 48 

Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) ............................... 44, 48 

Holland v. State, 761 S.W.2d 307, 319 (Tex. Crim. App. 1988) .................................... 39 

Ketchum v. State, 199 S.W.3d 581, 597 (Tex. App.----Corpus Christi 2006, pet. ref’d) .. 39 

Lair v. State, 265 S.W.3d 580, 595 (Tex. App.---Houston [1st Dist.] 2008, pet. ref’d) .. 32 

Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.---Houston [14th Dist.] 2015, pet. ref’d)

 ............................................................................................................................... 41 

Lopez v. State, 462 S.W.3d 180, 188 (Tex. App.---Houston [1st Dist. 2015, no pet.) ........ 

 ............................................................................................................ 33, 35, 37, 47 

Lucero v. State, 246 S.W.3d 86, 94 (Tex. Crim. App. 2008). ......................................... 44 

Mallet v. State, 9 S.W.3d 856, 868 (Tex. App.---Fort Worth 2000, no pet.) ........... 30, 32 

Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010) ...................... 30, 32, 42 

Potts v. State, No. 14–10–01172–CR, 2012 WL 1380230, at *1 (Tex. App.---Houston 

[14th Dist.] Apr. 19, 2012, no pet.) ............................................................ 40, 42, 47 

Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) ........................................ 44 

Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). ........................... 29, 30, 42 

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) ............................ 30, 37 

Scaggs v. State, 18 S.W.3d 277, 281 (Tex. App.---Austin 2000, pet. ref d) ..................... 44 

Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.---Houston [1st Dist.] 2005, pet. 

dism’d) .................................................................................... 33, 35, 37, 40, 41, 47 

Smith v. State, 286 S.W.3d 333, 344-45 (Tex. Crim. App. 2009) ...................................... 

 .............................................................................. 33, 39, 40, 41, 42, 44, 45, 47, 48 
vii

State of Texas ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) .... 41 

Strickland v. Washington, 466 U.S. 668, 687 (1984) .............................. 30, 31, 32, 33, 42 

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). .............................. 31, 32 

Toupal v. State, 926 S.W.2d 606, 608 (Tex. App.---Texarkana 1996, no pet.) ............... 34 

Washington v. State, 417 S.W.3d 713, 728 (Tex. App.---Houston [14th Dist.] 2013, pet. 

ref’d) ....................................................................................................................... 39 

Wiggins v. Smith, 539 U.S. 510, 534, 536 (2003) ........................................................... 32 

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ...................... 30, 31, 37 

Wong v. Belmontes, 558 U.S. 15, 22-23 (2009) ............................................................... 39 

STATUTES

TEX. PENAL CODE §12.33 ......................................................................................... 41 

TEX. PENAL CODE §22.011(f) .................................................................................... 41 

RULES

TEX. R. APP. P. 21.7 ................................................................................................... 44 

TEX. R. APP. P. 21.8(c) ............................................................................................... 30 

TEX. R. EVID. 602 ............................................................................................... 38, 39 

TEX. R. EVID. 801(d) .......................................................................................... 38, 39 

TEX. R. EVID. 802 .............................................................................................. 38, 39 
NO. 14-15-00285-CR

 IN THE

 COURT OF APPEALS

 FOR THE

 FOURTEENTH DISTRICT OF TEXAS

 HOUSTON, TEXAS 

 

 DAVID RUIZ, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

Appealed from the 212th Judicial District 

Court of Galveston County, Texas

 Cause No. 11CR1921 

 

 BRIEF FOR THE STATE OF TEXAS 

 

TO THE HONORABLE COURT OF APPEALS:

 Now comes Jack Roady, Criminal District Attorney for Galveston County, Texas, 

and files this brief for the State of Texas. 

The one-volume Clerk’s Record is referred to in the State’s Brief as “C.R. page”. The Reporter’s 

Record is multiple volumes and is referred to as “R.R. volume number: page”. 
2

SUMMARY OF THE ARGUMENT 

 David Ruiz pled guilty to sexual abuse of a child and was placed on 6 years 

deferred community supervision. In just over one year, the State moved to adjudicate 

Ruiz’s guilt and revoke his community supervision. After hearing evidence that Ruiz 

essentially did nothing on probation, the trial court found 12 probation violations true, 

adjudicated Ruiz’s guilt, and sentenced him in 20 years confinement. Ruiz raises 2 issues 

on appeal. 

 In his first issue, Ruiz claims his trial counsel was ineffective for failing to 

investigate his case and present mitigation evidence. Ruiz claims counsel should’ve 

spoken to his mother and sister. He claims the women were available to testify and 

would’ve told the court that Ruiz was sexually abused by his step-father and had a head 

injury. In his second issue, Ruiz claims the trial court abused its discretion by not 

granting a hearing on his motion for new trial. 

 First, trial counsel did show the court that Ruiz had a head injury and was sexually 

abused by his step-father. His family’s information was cumulative. Applicable to both 

his first and second issue, the same trial judge that set Ruiz’s punishment also received 

the motion for new trial and the accompanying affidavits. By allowing the motion to be 

overruled by operation of law without a hearing, the court found the affidavits would 

not have impacted its punishment choice. Consequently, Ruiz’s first and second issues 

should be overruled. 
3

STATEMENT OF FACTS

 Ruiz pled guilty and in exchange for 6 years deferred community supervision for 

sexually assaulting his 8 year old sister over an extended period of time.1

 Within 13 

months of his plea, he began violating his probation.2

 The probation department filed a 

motion to adjudicate.3

 Over the next two years, they amended it four times, each time 

alleging more violations.4

 

 At the motion to adjudicate hearing, Ruiz pled true to not participating in 

community service and failing to comply with the polygraph requirement.5

 He told the 

trial court that he understood the range of punishment, that he wasn’t forced to plea 

true to the two allegations, that he pled true because he violated those conditions, and 

that he understood that the trial court would find the two allegations true based on his 

pleas.6

 The probation officer testified that the probation department explained the 

probation terms to Ruiz.7

 She told the trial court that every time Ruiz reported to the 

department (which was generally twice a month) he had an opportunity to ask questions 

 

1

 C.R. 8 (indictment); C.R. 20 (judgment and sentence); R.R.II: 39. 2

 C.R. 33 (motion to adjudicate guilt-revoke community supervision-sentence defendant alleging 

Ruiz committed failure to register in October 2012). 

3 Id. 4

 C.R. 87 (fourth amended motion adjudicate guilt-revoke community supervision-sentence 

defendant). 

5

 R.R.II: 10-11. 

6

 R.R.II: 12-13. 

7

 R.R.II: 18. 
4

about his probation.8 

 The probation officer also testified Ruiz violated his probation conditions in an 

number of additional ways. The probation officer testified: 

 Ruiz wasn’t supposed to commit a new crime, but he did by failing to register as a 

sex offender.9

 Ruiz was supposed to register with the Texas City Police Department as a sex 

offender and give notice to law enforcement and the probation department 

before changing his address.10 He didn’t give notice when he moved.11

 Ruiz was supposed to notify the probation department of any changes in address, 

employment, and arrests within 48 hours.12 For more than a week, he didn’t 

report the failure to register charge or that he was transient.13

 Ruiz was supposed to report to the probation officer at least once a month as 

directed by the officer.14 He didn’t report in December 2012, January 2013, 

February 2013, April 2013, November 2013, December 2013, or February 2014.15

 Ruiz was supposed to pay a number of different fees, but he didn’t.16 He only 

 

8

 R.R.II: 18-19. 

9

 R.R.II: 19. 

10 R.R.II: 29. 

11 R.R.II: 29. 

12 R.R.II: 20. 

13 R.R.II: 20-21. 

14 R.R.II: 19-20. 

15 R.R.II: 20-21. 

16 R.R.II: 22-23. 
5

paid $260 of the $2,505 he owed as of the revocation hearing.17 The probation 

officer talked to Ruiz several times about being behind in his fees.18 Each time he 

said he had a job and would make a payment.19 Eventually, the probation 

department did a financial study.20 Ruiz had an extra $330 a month he could’ve 

paid towards his fees, but he chose not to.21 Indeed, Ruiz received two lump 

payments of thousands of dollars and promised to make a payment towards his 

fees. But, again, he did not.22

 Ruiz was supposed to attend and participate in psychological counseling for sex 

offenders.23 He didn’t.24 He had sporadic attendance and incurred no-show fees.25

He stopped going completely after October 2013.26 The counselor even offered 

to lower the no-show fees, but Ruiz still didn’t pay.27

 Ruiz wasn’t supposed to have unmonitored access to the internet.28 The 

probation officer found a Facebook account with Ruiz’s name and image with a 

last post from October.29 Trial counsel objected to the admission of the 

 

17 R.R.II: 23. 

18 R.R.II: 23. 

19 R.R.II: 23. 

20 R.R.II: 25. 

21 R.R.II: 25. 

22 R.R.II: 25-26. 

23 R.R.II: 26. 

24 R.R.II: 28. 

25 R.R.II: 28. 

26 R.R.II: 28. 

27 R.R.II: 28-29. 

28 R.R.II: 30. 

29 R.R.II: 30-31. 
6

Facebook post as hearsay and as improperly authenticated.30 The trial court 

sustained the objections.31

 Ruiz wasn’t supposed to engage in any kind of electronic communication with 

anyone under 18.32 He violated this by having a conversation with a female whose 

Facebook identified her as underage.33 Trial counsel objected again.34 The trial 

court sustained the objection.35

 Ruiz was supposed to identify any equipment that had access to the internet.36 He 

violated this term by making Facebook posts from a mobile device.37

 The probation officer testified she was aware of the basics of Ruiz’s underlying 

case because she has to have access to his threat level, must use the information to 

determine the level of supervision to provide him, and may need it to discuss facts with 

the polygraphers and therapist.38 She said the offense report is also a part of the 

probation file.39 The probation officer told the trial court that Ruiz was on probation for 

sexually assaulting his sister over an extended period of time.40 She said they had actual 

 

30 R.R.II: 33. 

31 R.R.II: 36. 

32 R.R.II: 36. 

33 R.R.II: 37. 

34 R.R.II: 37. 

35 R.R.II: 37. 

36 R.R.II: 37. 

37 R.R.II: 37. 

38 R.R.II: 38. 

39 R.R.II: 38. 

40 R.R.II: 38. 
7

intercourse.41 The girl was 8 years old.42 She testified Ruiz told her he was innocent and 

he didn’t feel like he should be on probation for anything.43 The probation officer told 

the trial court that she recommended revocation.44

 On cross-examination, the probation officer testified that she was aware Ruiz and 

his sister were victims of sexual assault perpetrated by their step-father.45 She testified 

she wasn’t Ruiz’s probation officer when he first began probation, and she had no 

firsthand knowledge if Ruiz was aware of the probation terms when he first began 

probation.46 She testified she didn’t have any knowledge of Ruiz falling from a building 

and cracking his skull.47 She told the court she first learned about the injury from the 

defense attorney.48 She testified Ruiz told her that he had $110 of $120 to pay the sex 

offender therapist and that he was going to borrow $10 from his mother so that he 

could begin counseling.49 She said Ruiz told her when they first met that he suffers from 

anxiety, but no longer needed medication.50 He didn’t tell her about any other mental or 

physical conditions.51 She said it would surprise her to learn Ruiz took 5 medications 

 

41 R.R.II: 39. 

42 R.R.II: 39. 

43 R.R.II: 47. 

44 R.R.II: 39. 

45 R.R.II: 39. 

46 R.R.II: 39-40. 

47 R.R.II: 44. 

48 R.R.II: 48-49. 

49 R.R.II: 45. 

50 R.R.II: 45. 

51 R.R.II: 45. 
8

daily.52 She told the court the defense attorney first informed her that Ruiz was having 

mental issues in the jail.53

 The Galveston County Sheriff’s sex offender registration compliance officer 

explained that a person has 7 days to register with her office.54 She testified the 

probation department did the initial sex offender registration forms with Ruiz and she 

did additional forms with him, took his prints, and submitted his DNA to DPS.55 The 

trial court admitted a certified copy of the sex offender registration form Ruiz did with 

the compliance officer.56 The compliance officer testified the form documents her first 

interaction with Ruiz.57 

 The form shows Ruiz has a lifetime duty to register as a sex offender.58 He’s 

supposed to register annually, 30 days before or after his birthday.59 The sex offender 

compliance officer testified Ruiz was assigned a medium risk level.60 She told the court 

this meant there’s a 50/50 chance he’d offend again.61 

 The officer testified the form gives the registration requirements Ruiz must abide 

by.62 She testified she went through each requirement with Ruiz and Ruiz initialed each, 

 

52 R.R.II: 46. 

53 R.R.II: 48-49. 

54 R.R.II: 51. 

55 R.R.II: 52. 

56 R.R.II: 53-54; State’s Exhibit 2. 

57 R.R.II: 53-54. 

58 R.R.II: 54; State’s Exhibit 2. 

59 R.R.II: 54; State’s Exhibit 2. 

60 R.R.II: 54; State’s Exhibit 2. 

61 R.R.II: 55; State’s Exhibit 2. 

62 R.R.II: 55; State’s Exhibit 2. 
9

saying he understood the registration requirements.63 Ruiz initialed that he understood 

he was required to register with the municipality or the county where he’s going to live 

for more than 7 days.64 He initialed that he must verify his registration by appearing 

every year on his birthday.65 He initialed that he must give 7 days’ notice to the 

probation department and the sheriff’s office before he changes his address.66 The 

officer testified Ruiz initialed that he was required to notify the compliance officer if he 

was transient.67 The compliance officer testified Ruiz was required to notify the sheriff’s 

office and the probation department if he stays more than 48 hours at another address 

three times in a month.68 The compliance officer testified Ruiz was notified of the 

criminal penalties if he didn’t abide by the requirements.69 Ruiz told the compliance 

officer he was living at an address in Hitchcock.70 

 The compliance officer testified she underlined key words in the form to help 

make sure Ruiz understood the requirements.71 Ruiz signed the registration compliance 

form.72 The officer gave Ruiz a copy of the form he initialed.73 The officer testified she 

 

63 RR.II: 55; State’s Exhibit 2. 

64 R.R.II: 55; State’s Exhibit 2. 

65 R.R.II: 56; State’s Exhibit 2. 

66 R.R.II: 56-57; State’s Exhibit 2. 

67 R.R.II: 57; State’s Exhibit 2. 

68 R.R.II: 57; State’s Exhibit 2. 

69 R.R.II: 57-58; State’s Exhibit 2. 

70 R.R.II: 55; State’s Exhibit 2. 

71 R.R.II: 57; State’s Exhibit 2 shows the underlined words. 

72 R.R.II: 58; State’s Exhibit 2. 

73 R.R.II: 56. 
10

believed Ruiz understood her instructions.74

 The compliance officer also testified that in May, she tried to contact Ruiz at the 

address he provided to make sure he was living there.75 Ruiz wasn’t there, so the officer 

left a hanger on the gate with a message to call her within 24 hours.76 The officer 

testified the people who lived at the address called her.77 They asked why she left a 

hanger because there were no sex offenders living at the address.78 The officer informed 

them that Ruiz is a sex offender.79 The residents said Ruiz couldn’t live with them 

anymore.80 The officer called Ruiz.81 Ruiz told her he’d work it out and that he’d be 

staying at the same address.82 

 In August, the officer went to the address again.83 Nobody was home.84 She left 

another notice.85 

 In October, the compliance officer received an email from the probation officer 

to update Ruiz’s registration because he got a new job.86 The compliance officer called 

the probation officer and told her that Ruiz’s sex offender requirements require Ruiz to 

 

74 R.R.II: 58. 

75 R.R.II: 58-59. 

76 R.R.II: 59. 

77 R.R.II: 59. 

78 R.R.II: 59. 

79 R.R.II: 59. 

80 R.R.II: 59-60. 

81 R.R.II: 60. 

82 R.R.II: 60. 

83 R.R.II: 60. 

84 R.R.II: 60. 

85 R.R.II: 60. 

86 R.R.II: 61. 
11

make the notification.87

 The sex offender registration compliance officer testified she planned to go out 

on Halloween for compliance checks.88 She went to Ruiz’s registered address.89 A 

person living at the house said Ruiz had not been living there.90 The officer called Ruiz 

on speaker phone.91 Ruiz admitted to the officer that he was not living there.92 The 

compliance officer took a written statement from the resident.93 Over trial counsel’s 

objection, the court admitted the statement.94 The resident stated Ruiz hadn’t lived at the 

address since May.95

 The compliance officer told the court that Ruiz did not contact the sheriff’s office 

in June, July, August, September, or October to register.96 The officer testified that when 

she talked to Ruiz on Halloween, he asked her for another chance to register.97 She told 

him no.98 The officer testified Ruiz was supposed to give her notice 7 days before 

moving and he didn’t.99 The officer testified Ruiz failed to give notice of his change in 

 

87 R.R.II: 61. 

88 R.R.II: 61. 

89 R.R.II: 61. 

90 R.R.II: 61-62. 

91 R.R.II: 62. 

92 R.R.II: 62. 

93 R.R.II: 62-63; State’s Exhibit 3. 

94 R.R.II: 64. 

95 R.R.II: 64; State’s Exhibit 3. 

96 R.R.II: 65. 

97 R.R.II: 66. 

98 R.R.II: 66. 

99 R.R.II: 66. 
12

employment.100

 On cross-examination, the compliance officer testified she didn’t know if Ruiz 

saw her message hangers in May or in August.101 The officer testified she didn’t know if 

the probation department told Ruiz he had to notify the sheriff’s office of a change in 

employment (although that’s a requirement in the sex offender form that Ruiz initialed, 

signed, and had a copy of).102 The officer testified she did have paperwork that Ruiz 

reported to a Texas City Police sex offender compliance officer.103 She agreed that it was 

possible that in October, Ruiz was living in Texas City.104 The officer testified that Ruiz 

was required to give the sheriff’s office 7 days’ notice if he moved to Texas City.105

 On re-direct, the compliance officer testified she filed against Ruiz for his failure 

to give 7 days’ notice before moving.106 She told the court that she was confident Ruiz 

understood the 7 day requirement.107

 On re-cross, the officer testified that she had no firsthand knowledge of Ruiz’s 

mental or physical incapacities.108 The officer repeated that she underlined the 

requirements that are usually violated to make sure Ruiz understood.109 She repeated that 

 

100 R.R.II: 67. 

101 R.R.II: 67-68. 

102 R.R.II: 69; State’s Exhibit 2. 

103 R.R.II: 69-70. 

104 R.R.II: 70. 

105 R.R.II: 71. 

106 R.R.II: 71. 

107 R.R.II: 72 

108 R.R.II: 72. 

109 R.R.II: 73. 
13

Ruiz understood.110

 Ruiz also testified.111 He said he understood why they were in court.112 He said he 

believed he was living with his grandmother in Texas City on Halloween.113 He claimed 

he told his probation officer and the Texas City police compliance officer where he was 

living.114 He claimed he contacted the Texas City officer within 7 days of moving 

there.115 He said the probation officer and the Texas City compliance officer went to his 

grandmother’s house.116 He told the court that he believed the probation officer and the 

Texas City officer would contact the sheriff’s office.117 He said his grandmother let him 

live there.118 She was having a hard time because his grandfather died.119 He said she had 

no other family around her, but him.120 He told the court that he believed he was in 

compliance with his registration requirements.121

 Despite the probation officer’s testimony, Ruiz told the court that he did report 

to the probation officer in December 2012, January 2013, February 2013, March 2013, 

April 2013, November 2013, December 2013, and February 2014.122

 

110 R.R.II: 73. 111 R.R.II: 74. 112 R.R.II: 74. 

113 R.R.II: 75. 

114 R.R.II: 75. 

115 R.R.II: 78. 

116 R.R.II: 75. 

117 R.R.II: 78. 

118 R.R.II: 75. 

119 R.R.II: 76. 

120 R.R.II: 76. 121 R.R.II: 76. 122 R.R.II: 77. 
14

 Ruiz claimed he was never told a specific amount of money he was supposed to 

pay the probation department each month.123 He said he paid something, but getting a 

job was hard.124 He said he had several jobs, but when they ran his background, they’d 

let him go.125 He said he had to pay for the house, food, and clothes.126 He claimed he 

always kept some money aside to pay probation.127 He said it was a big issue not to be 

able to keep a job.128

 Ruiz testified that he did see his sex offender therapist.129 He admitted he couldn’t 

say when he stopped seeing the therapist.130 But said he stopped seeing him because he 

was going to have to start paying fees.131 Ruiz, despite the probation officer’s testimony 

to the contrary, said that the therapist wasn’t going to allow him to make payments.132

He said he didn’t have $120 upfront.133

 Ruiz told the court that he was available to the prosecution.134 He said the 

prosecution called him to testify against his step-father.135 The State objected to 

 

123 R.R.II: 77. 

124 R.R.II: 77. 

125 R.R.II: 77. 

126 R.R.II: 78. 

127 R.R.II: 78. 

128 R.R.II: 83-84. 

129 R.R.II: 82-83. 

130 R.R.II: 83. 

131 R.R.II: 83. 

132 R.R.II: 83. 

133 R.R.II: 83. 

134 R.R.II: 78. 

135 R.R.II: 79. 
15

relevance.136 The trial court sustained the objection.137

 Ruiz explained that before this, he was living with his mother.138 He told the court 

he wasn’t allowed to live there anymore because of the probation conditions.139 He said 

his mother was supportive and active in his life.140 He said his mother was outside the 

courtroom.141 He also said he believed he had family support.142

 Ruiz told the court that he’s gone over the probation conditions ten times with 

trial counsel and now he better understands them.143 He explained he may understand 

the terms better now that he’s on medication.144 He said he takes Risperdal for 

depression, Paxil for anxiety, Hydrozyine for blood, Dillantin for seizures, and 

Effexor.145

 Ruiz said he wasn’t in a car accident.146 He told the court, “I fell off . . . 16 foot 

balcony and cracked my skull.”147 He said it was “kind of traumatic” for him.148 He told 

the court, “after that, I just – that’s when, I guess, it kind of went downhill for me after 

 

136 R.R.II: 79. 

137 R.R.II: 79. 

138 R.R.II: 80. 

139 R.R.II: 80. 

140 R.R.II: 80. 

141 R.R.II: 80-81. 

142 R.R.II: 81. 

143 R.R.II: 81. 

144 R.R.II: 81. 

145 R.R.II: 81-82. 

146 R.R.II: 82. 

147 R.R.II: 82. 

148 R.R.II: 82. 
16

that.”149 He told the court the in injury caused seizures.150

 Ruiz asked the court for another chance.151 He said he can do it and that he’s not 

giving up.152 He told the court he’s not a bad person.153 He asked the court to let him 

stay on probation.154 He told the court that his cousin had a job lined up for him when 

he got out.155 He said he had a house to go to as well.156

 On cross-examination, Ruiz said his accident happened a few years back.157 He 

said he couldn’t remember how it happened, though he remembered falling and being in 

the hospital for a while.158 He repeated that the injury affected his ability to do 

probation.159 He claimed he understood his probation since being incarcerated because 

he went to the law library and asked different officers to explain it to him.160

 Ruiz claimed he didn’t understand that he committed another offense until he 

went to the law library.161

 Ruiz said he thought he’d be alright if he paid off all his fees before the end of his 

 

149 R.R.II: 82. 

150 R.R.II: 82. 

151 R.R.II: 78. 

152 R.R.II: 78. 

153 R.R.II: 78. 

154 R.R.II: 78-79. 

155 R.R.II: 80. 

156 R.R.II: 80. 

157 R.R.II: 85. 

158 R.R.II: 85. 

159 R.R.II: 86. 

160 R.R.II: 86, 89. 

161 R.R.II: 88. 
17

probation.162 He told the court he didn’t know not paying would be a violation or that 

paying a little amount would be a violation.163 He said he didn’t know paying $260 out of 

$4,800 over 4 years was a violation.164 When asked where the $360 extra a month the 

probation department’s financial study found, Ruiz said “to a little bit of everything.”165

When asked where the $4,000 he received on his 21st birthday went, Ruiz said he had to 

pay the person he was living with.166 He admitted he paid nothing towards his probation 

fees.167 He claimed when he got the money, he was still going to the sex offender 

therapist and he spent it all before quitting therapy.168 

 Ruiz admitted he wasn’t discharged from the sex offender course.169 He repeated 

he stopped going because he was supposed to start paying.170 Then he agreed that the 

payments were no-show fees.171 Ruiz, contrary to the probation officer’s testimony, said 

he didn’t tell the officer he had $110 of the $120 for the therapy no-show fees.172

 Ruiz repeated he had family support.173 He said that he didn’t always have their 

support, but they’re standing by him now.174

 

162 R.R.II: 87. 

163 R.R.II: 90. 

164 R.R.II: 90. 

165 R.R.II: 92. 

166 R.R.II: 92. 

167 R.R.II: 92. 

168 R.R.II: 93. 

169 R.R.II: 84. 

170 R.R.II: 94-95. 

171 R.R.II: 95. 

172 R.R.II: 95. 

173 R.R.II: 93-94. 

174 R.R.II: 93-94. 
18

 Ruiz told the court he wouldn’t say he did nothing for 4 years of probation.175

 Ruiz admitted that he’s “been together” with his girlfriend since “I was 18, 18 

1⁄2.”176 He said they’ve been together “almost” 5 years.177 He told the court he was 

positive they’re the same age and that she’s not 19.178 He said it would be inaccurate if 

his girlfriend’s Facebook said that she just turned 19.179 The State pointed out that if his 

girlfriend was 19 now and they’d been together 5 years, the girl would’ve been 14 when 

they got together.180 Ruiz said that’s not his testimony.181 

 After showing Ruiz something not in evidence, the State asked Ruiz his 

girlfriend’s age.182 Ruiz admitted she’s 19.183 The State asked, “You testified earlier, a 

minute ago you had been together 5 years, correct?”184 Ruiz replied, “No, I didn’t say 5 

years.”185 The State asked if he said he was 18.186 Ruiz repeated he didn’t say 5 years.187

He claimed, “I said we knew each other since we were 18.”188 The State asked: 

I believe you did tell me just a few minutes ago that you 

were with your girlfriend since you were 18 and now you're 

23. And you just told me your girlfriend’s 19. So that means 

 

175 R.R.II: 94. 

176 R.R.II: 95. 

177 R.R.II: 96. 

178 R.R.II: 96. 

179 R.R.II: 96. 

180 R.R.II: 96-97. 

181 R.R.II: 97. 

182 R.R.II: 99. 

183 R.R.II: 99. 

184 R.R.II: 99. 

185 R.R.II: 99. 

186 R.R.II: 99. 

187 R.R.II: 99. 

188 R.R.II: 99. 
19

you have been with your girlfriend since she was 14. And 

that also means that you’ve been hanging out with 

someone during your probation period who is younger 

than 18, isn’t that a fact?189

Ruiz replied by saying “No, that’s not a fact.”190

 Ruiz said it would be “astonishing” if there’s a picture of him bowling with 

children.191 When asked what his explanation would be for him holding a beer at a bbq, 

he said he’d ask if he was on probation when the photo was taken.192 

 The State showed Ruiz the sex offender registration requirements he signed, 

initialed, and put his fingerprint on.193 Ruiz admitted the initials, fingerprint, and 

signature were his.194 Ruiz said that despite his print, initials, and signature, he didn’t 

know he was supposed to tell the sheriff’s office he was moving.195

 On re-direct, Ruiz said that he’s got one payment from his settlement left.196 He 

claimed it’s enough to cover all the fees left on his probation.197

 After Ruiz testified, the trial court asked if he had any other witnesses.198 Trial 

counsel said, “Yes, Your Honor, his mother – if I could step out.”199 The court granted 

 

189 R.R.II: 99. 

190 R.R.II: 99. 

191 R.R.II: 98. 

192 R.R.II: 98. 

193 R.R.II: 100-01. 

194 R.R.II: 100-01. 

195 R.R.II: 101. 

196 R.R.II: 105. 

197 R.R.II: 105. 

198 R.R.II: 106. 

199 R.R.II: 106. 
20

counsel permission.200 Then there was a discussion off the record.201 Counsel said Ruiz’s 

mother had to go to work.202

 Trial counsel called Ruiz’s cousin as a character witness.203 The State objected if 

he was strictly a character witness.204 The State said if they’re going to have a punishment 

phase of the hearing, that the witness might be better suited for that.205 If not, the State 

said it would change its objection.206 The court asked the State if it was going to present 

a victim impact statement or any evidence during punishment.207 The State said no.208

The court said, “Why don’t we allow him to begin to testify. When you hear a question 

that you object to, we’ll take it from there.”209 The State agreed.210

 Ruiz’s trial counsel began questioning Ruiz’s cousin.211 The cousin told the court 

he’s assisting Ruiz in finding steady employment.212 He said he’s always known Ruiz to 

be a hard worker.213 He told the court that Ruiz always attempted to get employment, 

even if it was only temporary.214 He said he’s spoken to his supervisor and was told Ruiz 

 

200 R.R.II: 106. 

201 R.R.II: 106. 

202 R.R.II: 106. 

203 R.R.II: 106. 

204 R.R.II: 106. 

205 R.R.II: 106. 

206 R.R.II: 106. 

207 R.R.II: 106-07. 

208 R.R.II: 107. 

209 R.R.II: 107. 

210 R.R.II: 107. 211 R.R.II: 107. 212 R.R.II: 107. 

213 R.R.II: 109. 

214 R.R.II: 109. 
21

had a job as soon as he got out.215 The supervisor knows about Ruiz’s criminal history.216

 Ruiz’s cousin said he’s been close to Ruiz all of his life.217 He said Ruiz has been 

trying to get stable housing.218 He said all of their family is behind Ruiz and are trying to 

get him on his feet.219 He said they’d follow whatever the trial court puts in place if Ruiz 

is allowed to remain on probation.220 He told the court that, in his opinion, Ruiz would 

do well if he was allowed back on probation.221

 On cross-examination, Ruiz’s cousin admitted he’s never overseen Ruiz’s 

probation.222 He agreed he knew nothing about Ruiz’s probation fees.223 He said he 

knew about some of the stipulations---like not being around children, not drinking, and 

not having Facebook.224 He agreed it wasn’t his job to follow Ruiz around to make sure 

he kept up with his probation.225

 After asking if there was any more witnesses, the trial court asked counsel for 

closing arguments.226 The State argued Ruiz has done nothing during 4 years of 

probation.227 The State noted the court heard excuses and “vague allusions to some kind 

 

215 R.R.II: 107-08. 

216 R.R.II: 107-08. 

217 R.R.II: 108. 

218 R.R.II: 108. 

219 R.R.II: 108. 

220 R.R.II: 108. 221 R.R.II: 110. 222 R.R.II: 110. 

223 R.R.II: 110-11. 

224 R.R.II: 110-11. 

225 R.R.II: 111. 

226 R.R.II: 111. 

227 R.R.II: 112. 
22

of head injury,” but heard nothing to justify a complete lack of effort on probation.228

The State pointed out that Ruiz changed his story about his girlfriend, her age, and when 

they got together.229 The State argued that Ruiz was given a gift of 6 years deferred for 

sexual assault of a child, despite pleading guilty to forcefully having sex with his 8 year 

old sister.230 The State’s attorney told the court he wasn’t the prosecutor at the time of 

the plea, but there was a reason Ruiz was given a chance.231 The State argued since Ruiz 

received his chance, he had a $6,500 windfall, but paid $260 out of $5,000 to 

probation.232 He stopped therapy.233 He didn’t do any community service.234 And he 

didn’t take his polygraph.235 The State argued this is not a typical second degree felony.236

The State argued Ruiz was given a gift that he threw in the trash by making no effort.237

The State concluded by arguing this is a max type offense.238 The State told the court it 

was asking for the max.239

 Ruiz’s trial counsel began by telling the trial court, “I beg to differ that being 

forced by your step-father to have sex with your younger sister, I beg to differ that that’s 

 

228 R.R.II: 112. 

229 R.R.II: 113. 

230 R.R.II: 113. 

231 R.R.II: 113. 

232 R.R.II: 113-14. 

233 R.R.II: 114. 

234 R.R.II: 114. 

235 R.R.II: 114. 

236 R.R.II: 114. 

237 R.R.II: 114. 

238 R.R.II: 114-15. 

239 R.R.II: 115. 
23

a gift for anybody.”240 Counsel reminded the court that Ruiz was also sexually abused 

and was a child when these heinous acts first started.241 Counsel agreed that she, like the 

current prosecutor, was not the lawyer that put Ruiz on probation.242 She argued: 

I do not have the underlying facts of this probation, besides 

what was given to me in the motion to revoke and in the 

underlying file. I don't know why he pled to what he pled, 

but the reality is that he did. But he is not -- he is not the 

heinous person that the prosecution is attempting to make 

him out to be. He is a victim, in fact, too. In fact, he 

testified in this very court on -- against his step-father, who 

still charged at him while he was on the stand. He is not a 

heinous criminal.243

She noted Ruiz suffers from some physical and mental incapacities and is on 5 

medications.244 She argued Ruiz did his best, even though he couldn’t live with his 

mother and didn’t have a college degree.245 She argued it was hard for Ruiz to get a job, 

but he did his best to find work.246 Trial counsel asked the court to give Ruiz an 

opportunity to redeem himself.247 She claimed Ruiz understood the terms now and was 

willing to stay on probation.248

 After a discussion off the record, the trial court found there was sufficient 

 

240 R.R.II: 115. 

241 R.R.II: 115. 

242 R.R.II: 115. 

243 R.R.II: 115-16. 

244 R.R.II: 116. 

245 R.R.II: 116. 

246 R.R.II: 116-17. 

247 R.R.II: 118. 

248 R.R.II: 118. 
24

evidence to support the allegations in the State’s motion to adjudicate guilt.249 The court 

found Ruiz violated his probation in 12 ways.250 Specifically, the trial court found: 

1. On or about the 31st day of October, 2012, in Galveston 

County, Texas, said Defendant, David Ruiz, did then and 

there, while being a person required to register with the 

local law enforcement authority in the municipality and/ or 

county where the defendant resided or intended to reside 

for more than seven days, to-wit: Galveston County, 

because of a reportable conviction for sexual assault of a 

child on the 8th day of September, 2011 in cause number 

11CR1921, in the 212th District Court of Galveston 

County, Texas intentionally and knowingly, fail to report 

the anticipated move date and new address to the 

Galveston County Sheriff’s Office, the local law 

enforcement authority designated as the said defendant s 

primary registration authority, not later than the 7th day 

before the intended change; and 

2. Said Defendant did fail to report to his adult Community 

Supervision Officer as ordered for the month(s) of 

December, 2012 and January, February, March, April, 

November, and December 2013, and February 6, 2014; and 

3. Said Defendant did fail to report within forty-eight hours 

to his Community Supervision Officer of any change of 

address; and 

4. Said Defendant did fail to pay Supervision fees as ordered, 

and is currently $1,275.00 in arrears; 

5. Said Defendant did fail to pay Cost of Court to the 

G.C.C.S.C.D as ordered, and is currently $350.00 in arrears; 

 

249 R.R.II: 119. 

250 R.R.II: 119. 
25

6. Said Defendant did fail to reimburse Galveston County for 

compensation of appointed counsel as ordered, and is 

currently $350.00 in arrears; 

7. Said Defendant did fail to pay Crime Stoppers Program 

payment as ordered, and is currently $25.00 in arrears; 

8. Said Defendant did fail to pay the Sexual Assault Program 

Fund fee as ordered and is currently$ 175.00 in arrears; and 

9. Said Defendant failed to participate in Community Service 

work as approved by the Court at a rate of no less than 

sixteen (16) hours per month until completed; and 

10. Said Defendant has failed to attend counseling sessions for 

sex offenders; and 

11. Said defendant failed to report to Texas City Police 

Department within (7) days for sex offender registration as 

ordered; and 

On February 27, 2014, said defendant, David Ruiz, was 

arrested for Sex Offenders Failure to Comply by Galveston 

Police Department; and 

12. Said Defendant has failed to comply with polygraph 

requirements.251

 After adjudicating Ruiz’s guilt, the trial court asked if either side had any motions, 

requests, or anything additional to present for punishment.252 The State replied that if 

this is the punishment phase, it would move to interject all the evidence presented 

during the hearing to be considered and then asked the court to sentence Ruiz to 20 

 

251 R.R.II: 119; C.R. 91-92 (fourth amended motion to adjudicate, alleging Ruiz’s probation 

violations). 

252 R.R.II: 119. 
26

years.253 Ruiz asked to remain on probation and if not deferred, receive straight 

probation.254 The trial court found Ruiz guilty of sexual assault of a child and sentenced 

him to 20 years confinement.255 

 Ruiz filed a motion for new trial, arguing that his trial counsel was ineffective for 

not investigating and presenting mitigating evidence.256 He argued (as he does on appeal) 

that his mother and his sister (a sister he wasn’t convicted of sexually assaulting) were 

available to testify.257 He attached affidavits from both.258 Ruiz’s mother and sister 

claimed they would’ve testified and were available if counsel had contacted them and 

informed them they could testify.259 Ruiz’s mother said she was at the adjudication 

hearing and would’ve asked to testify if she knew she could.260 She did not explain where 

she was when trial counsel tried to call her to testify and looked for her in the 

courthouse. Both women said his step-father sexually assaulted Ruiz.261 Both women 

claimed Ruiz was forced by his step-father to have sex with his sister.262 Ruiz’s mother 

said his innocence was stolen.263 Both said Ruiz fell, fractured skull, and had seizures.264

Ruiz’s sister said he has trouble understanding instructions and has to hear them 

 

253 R.R.II: 119-20. 

254 R.R.II: 120. 

255 R.R.II: 120. 

256 C.R. 154-60. 

257 C.R. 155-58. 

258 C.R. 162-66. 

259 C.R. 162, 165. 

260 C.R. 162. 

261 C.R. 162-63, 165. 

262 C.R. 163, 165. 

263 C.R. 163. 

264 C.R. 162, 165. 
27

multiple times.265 Ruiz’s mother claimed he was depressed, told her he had nothing left, 

and that he mentioned suicide.266

 Ruiz presented the motion with the affidavits to the trial court.267 The trial judge 

signed Ruiz’s certification of presentment.268 The court scheduled hearing on the 

motion,269 but then denied the hearing.270 The trial court allowed the motion to be 

overruled by operation of law.271 This appeal followed. 

 

265 C.R. 165. 

266 C.R. 163. 

267 C.R. 175. 

268 C.R. 175. 

269 C.R. 182-84. 

270 C.R. 196. 

271 TEX. R. APP. P. 21.8(c) (providing motion for new trial is deemed denied absent timely ruling by 

written order). 
28

FIRST ISSUE

Counsel showed the State’s witnesses knew Ruiz was an abuse 

victim. She also showed they were unaware of Ruiz’s head injury. 

Counsel presented evidence, through Ruiz, that he was sexually 

abused and suffered a head injury that may’ve impacted his ability 

to do probation. 

How was counsel deficient when she presented mitigating 

evidence? 

How was Ruiz prejudiced when the same judge set his punishment 

and would’ve known if cumulative mitigating evidence would’ve 

changed its sentence? 

ARGUMENT AND AUTHORITIES

 In his first issue, Ruiz argues the trial court abused its discretion by denying his 

motion for new trial because he claims he established his trial counsel was ineffective for 

not investigating and presenting mitigating evidence during the revocation hearing. He 

contends his mother and his sister (one of the sisters he wasn’t convicted of sexually 

assaulting) were available and willing to testify. According to their affidavits, they 

would’ve testified Ruiz fell from a balcony and was a sexual abuse victim. He argues that 

their live testimony would’ve led the trial court to give him a lesser punishment. 

 Even if this Court and the trial court were to assume Ruiz’s sister’s and mother’s 

affidavits were credible, Ruiz hasn’t shown counsel was deficient or that he was 

prejudiced. He also hasn’t shown he would’ve received a lesser sentence. The trial court 
29

set his punishment. The trial court heard the testimony of Ruiz’s probation officer and 

the sex offender registration compliance officer. The trial court heard that Ruiz did very 

little to comply with his probation. The trial court found he violated 12 conditions of his 

probation---including failing to complete his sex offender therapy and failing to register 

as a sex offender.272 Only the trial court, as Ruiz’s punisher, would know if the affidavits 

would impact its sentence. The affidavits were before the trial court when it allowed 

Ruiz’s motion for new trial to be overruled by operation of law. Clearly the court did not 

find the affidavits compelling. 

 The trial court didn’t abuse its discretion by denying Ruiz’s motion. Ruiz is not 

entitled to new punishment hearing. 

I. Motion For New Trial Standard Of Review

 The appellate court reviews a trial court’s denial of a motion for new trial for an 

abuse of discretion, reversing only if the trial court’s opinion was clearly erroneous and 

arbitrary.273 “A trial court abuses its discretion if no reasonable view of the record could 

support the trial court’s ruling.”274 This deferential review requires the appellate court to 

view the evidence in the light most favorable to the trial court’s ruling.275 The reviewing 

court may not substitute its own judgment for that of the trial court and must uphold 

 

272 R.R.II: 119; C.R. 123 (judgment adjudicating guilt). 

273 Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). 

274 Id.

275 Id.
30

the trial court’s ruling if it’s within the zone of reasonable disagreement.276 “This same 

deferential review must be given to a trial court’s determination of historical facts when 

it is based solely on affidavits, regardless of whether the affidavits are controverted.”277

“Where there are two permissible views of the evidence, the factfinder’s choice between 

them cannot be clearly erroneous.”278 The same standard of review applies regardless of 

whether the motion for new trial is denied by an express ruling or overruled by 

operation of law.279 

II. Ineffective Assistance Of Counsel Relevant Law

 To establish ineffective assistance of counsel, the appellant must demonstrate, 

by a preponderance of the evidence, that (1) his counsel’s performance was deficient, 

and (2) there is a reasonable probability that the result of the proceeding would have 

been different but for his counsel’s deficient performance.280 An appellant’s failure to 

make either of the required showings defeats the claim of ineffective assistance.281 

Strickland’s first prong requires the appellant to show that his counsel’s 

 

276 Id.

277 Id.

278 Id. 279 See TEX. R. APP. P. 21.8(c); Mallet v. State, 9 S.W.3d 856, 868 (Tex. App.---Fort Worth 2000, no 

pet.) (“A trial court’s decision to deny a motion for new trial or allow it to be overruled by operation 

of law is also reviewed on an abuse of discretion standard.”). 

280 Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. 

Crim. App. 2010); Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008). 

281 Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 

675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the Strickland test 

negates a court’s need to consider the other prong.”). 
31

performance fell below an objective standard of reasonableness.282 Strickland’s second 

prong requires the appellant to demonstrate prejudice—“a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.”283 

 The appellate court looks to the totality of the representation and the particular 

circumstances of each case, not to isolated errors.284 The reviewing court considers the 

adequacy of assistance as viewed at the time of trial, not through hindsight.285 The fact 

that Ruiz’s appellate attorney might have pursued a different course does not support a 

finding of ineffectiveness.286 The issue is whether counsel’s assistance was reasonable 

under all the circumstances and prevailing professional norms at the time of the alleged 

error.287 

 The reviewing court indulges a strong presumption that counsel’s conduct fell 

within the wide range of reasonable professional assistance, and, therefore, the appellant 

must overcome the presumption that the challenged action constituted “sound trial 

strategy.”288 The appellate review is highly deferential to counsel, and the appellate court 

 

282 Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 

812 (Tex. Crim. App. 1999). 

283 Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. 

284 Robertson, 187 S.W.3d at 483-84 Thompson, 9 S.W.3d at 813. 

285 Robertson, 187 S.W.3d at 482. 

286 Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992); Gholson v. State, 5 S.W.3d 266, 273 

(Tex. App.---Houston [14th Dist.] 1999, pet. ref’d). 

287 See Strickland, 466 U.S. at 688-89. 

288 Strickland, 466 U.S. at 689; Williams, 301 S.W.3d at 687. 
32

does not speculate regarding counsel’s trial strategy.289 To prevail on an ineffective 

assistance claim, the appellant must provide an appellate record that affirmatively 

demonstrates that counsel’s performance was not based on sound strategy.290

 Trial counsel is required to seek out and interview potential witnesses as a part of 

his investigation of the facts of the case.291 However, the failure to call witnesses is 

irrelevant absent a showing that the witnesses were available and their testimony would 

have changed the result of the proceeding.292 In evaluating the effect of potential 

punishment-phase witnesses, the reviewing court compares the evidence presented by 

the State with the evidence that the factfinder did not hear due to counsel’s failure to 

investigate.293 

 When the ineffective assistance of counsel claim is focused on the appellant’s 

punishment, the appellate court’s prejudice inquiry is whether there’s a reasonable 

probability that the assessment of punishment would’ve been less severe in the 

absence of defense counsel’s deficient performance.294 A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.295 It’s not enough for 

the appellant to show “that the errors had some conceivable effect on the outcome of 

 

289 See Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002). 

290 Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001); see Thompson, 9 S.W.3d at 813 (holding 

that record must affirmatively demonstrate alleged ineffectiveness). 

291 Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). 

292 See Perez, 310 S.W.3d at 894. 

293 See id. at 896. 

294 See Wiggins v. Smith, 539 U.S. 510, 534, 536 (2003); Lair v. State, 265 S.W.3d 580, 595 (Tex. App.---

Houston [1st Dist.] 2008, pet. ref’d). 

295 Strickland, 466 U.S. at 694. 
33

the proceeding.”296 “The likelihood of a different result must be substantial, not just 

conceivable.”297 When defense counsel presents “no evidence of mitigating factors . . . 

to balance against the aggravating factors presented by the State” and fails to do so 

because he did not investigate mitigating factors or contact potential mitigation 

witnesses, there’s prejudice.298 There’s prejudice because there’s no possibility that the 

factfinder considering mitigating evidence.299 

 Notably, when the trial judge presiding over a motion for new trial also 

presided over the trial itself, the reviewing court presumes that the judge knew how 

the evidence included with the motion for new trial would have affected his ruling on 

punishment.300

III. Trial Counsel Was Not Deficient

 This is not a case where trial counsel conceded she did nothing to investigate or 

present mitigating evidence. Instead, this is a case where there’s conflicting evidence 

 

296 Id. at 693. 

297 Harrington v. Richter, 562 U.S. 86, 112 (2011). 

298 Lopez v. State, 462 S.W.3d 180, 188 (Tex. App.---Houston [1st Dist. 2015, no pet.) (quoting 

Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.---Houston [1st Dist.] 2005, pet. dism’d)). 

299 See id. at 188-89 (quoting Shanklin, 190 S.W.3d at 165-66 (“We conclude that appellant has 

demonstrated prejudice in this case. . . . [D]efense counsel’s failure to interview or call a single 

witness, other than appellant, deprived him of the possibility of bringing out even a single mitigating 

factor.”)). 

300 See Smith v. State, 286 S.W.3d 333, 344-45 (Tex. Crim. App. 2009); Castaneda v. State, 01-14-00389-

CR, 01-14-00390-CR, 2015 WL 6930466 *9 (Tex. App.---Houston [1st Dist.] Nov. 10, 2015, no pet. 

h.) (finding that when a judge sentences a defendant also denies a hearing on a motion for new trial, 

reviewing court presumes that the trial judge knew whether additional testimony produced in 

affidavits would’ve influenced his normative sentencing judgment). 
34

regarding the extent of trial counsel’s investigation.301 Ruiz’s mother’s and sister’s 

affidavits claim trial counsel didn’t contact them and, consequently, didn’t uncover the 

mitigating evidence regarding Ruiz’s head injury and sexual abuse history. However, the 

evidence during the revocation hearing shows counsel was aware of Ruiz’s history and 

presented evidence of both during the hearing. 

 The record shows counsel cross-examined the probation officer and the sex 

offender compliance officer about their ignorance of Ruiz’s head injury. Counsel 

showed the probation officer wasn’t aware that Ruiz was on medication. Counsel also 

asked whether the probation officer knew Ruiz was a sexual abuse victim. Counsel 

questioned the probation officer and the sex offender registration compliance officer 

regarding Ruiz’s understanding of the terms of his probation. Moreover, counsel 

presented the head trauma and sexual abuse mitigation evidence through Ruiz. Ruiz 

testified he was taking seizure and depression medicine. He told the court his step-father 

sexually abused him. He said he had a traumatic fall that left him in the hospital for a 

long time and caused seizures. Counsel used the mitigating evidence in closing 

argument. She argued Ruiz was a victim, had head trauma, and should receive another 

301 Notably, Ruiz pled true to 2 of the revocation allegations. There’s no allegation the pleas were 

unknowing or involuntary. A sister appellate court held that “Where a defendant pleads true to 

allegations in a revocation proceeding, ‘failure to conduct a full-fledged independent investigation of 

the facts does not necessarily result in counsel rendering constitutionally ineffective assistance.’” 

Ansari v. State, 06-14-00220-CR, 2015 WL 7300073, at *2 (Tex. App.---Texarkana Nov. 13, 2015, no. 

pet. h. (quoting Eddie v. State, 100 S.W.3d 437, 442 (Tex. App.---Texarkana 2003, pet. ref’d) and 

citing Toupal v. State, 926 S.W.2d 606, 608 (Tex. App.---Texarkana 1996, no pet.) (“We do not agree 

that the magnitude of independent factual investigation for a contested proceeding is necessary to 

protect a defendant’s rights when the defendant knowingly and voluntarily pleads guilty to the 

alleged offense.”)).
35

chance to redeem himself. If counsel had not investigated Ruiz’s case, she wouldn’t have 

been able to effectively cross-examine the State’s witnesses and wouldn’t have been able 

to elicit mitigating evidence from Ruiz. 

 Unlike counsel in Lopez who admitted he was unaware of the defendant’s mental 

health history and didn’t participate in collecting mitigating evidence302 or counsel in 

Shanklin who admitted he didn’t conduct any punishment investigation,303 here the 

evidence shows trial counsel was aware of Ruiz’s head injury and that he was a sexual 

abuse victim and presented evidence of both. 

 Relying on Frangias v. State,

304 Ruiz claims counsel was also deficient for not 

requesting a continuance because his mother left the revocation hearing without 

testifying.305 According to Ruiz’s mother’s affidavit, had she known she could’ve 

testified, she would’ve stayed for the hearing. Frangias is distinguishable. In Frangias, trial 

counsel intentionally chose not to seek a continuance when the only witness who could 

corroborate the defendant’s version of events and provide him a defense to the crime 

was unable to come to court due to medical treatment in a distant city.306 Here, as 

discussed more thoroughly below, Ruiz’s mother’s testimony would’ve been, at most, 

 

302 Lopez, 462 S.W.3d at 186 (trial counsel admitted in affidavit that he was unaware of defendant’s 

mental health issues or history). 

303 Shanklin, 190 S.W.3d at 164 (trial counsel admitted in affidavit that he “did not conduct any 

meaningful investigation as regards [to] the punishment stage of [appellant’s] case” and that his 

failure to interview or call witnesses wasn’t the result of reasoned trial strategy). 

304 See Frangias v. State, 450 S.W.3d 125 (Tex. Crim. App. 2013). 

305 Ruiz’s brief 29. 

306 See Frangias, 450 S.W.3d at 137, 143. 
36

additional mitigation evidence. She would’ve testified about Ruiz’s head injury and his 

sexual abuse history. Ruiz already testified that he fractured his skull after a fall, had 

seizures, and had a hard time on probation because of the injury. Ruiz also testified he 

was sexually abused by his step-father. Unlike Frangias, where the defendant was 

deprived of evidence that could’ve proven his innocence,307 here there already was 

mitigation evidence in front of the court and (as discussed below) the additional 

evidence wouldn’t have impacted the trial court’s punishment choice. 

 Importantly, there is some evidence in the record that contradicts Ruiz’s mother’s 

and sister’s claim that they would’ve been available and would’ve testified on his behalf. 

Appellate counsel attempted to have both served for the later canceled motion for new 

trial hearing. Neither woman accepted the subpoenas, despite multiple attempts to serve 

them and notes left at their homes.308 In fact, the serving officer received a voicemail 

from Ruiz’s sister.309 After returning her call and leaving her a voicemail, she texted the 

officer and said she was busy.310 The officer went to her home.311 A vehicle was in the 

driveway, but nobody answered the door.312

 Ruiz hasn’t established that his trial counsel was deficient. Unlike defense counsel 

in Lopez, Shanklin, and Frangias, the record shows Ruiz’s trial counsel was familiar with 

 

307 See id. at 137. 

308 C.R. 189-91 (return of summons for Ruiz’s mother after 3 attempts to locate); C.R. 193-95 (return 

of summons for Ruiz’s sister after 3 attempts to locate). 

309 C.R. 195. 

310 Id. 311 Id. 312 Id. 
37

the mitigating evidence and presented it to the trial court. Ruiz failed to prove Strickland’s

first prong. Ruiz also failed to prove Strickland’s second prong. 

IV. Ruiz Was Not Prejudiced

 Even if counsel was deficient, Ruiz cannot show he suffered any prejudice. 

There’s no evidence the trial court would’ve changed its punishment had it heard Ruiz’s 

mother or sister testify to the content in their affidavits. An ineffective assistance of 

counsel claim fails if prejudice isn’t proven.313 

 Unlike the defendants in Lopez314 and Shanklin315 who were denied the effective 

assistance of counsel because their lawyers utterly failed to present any mitigating 

evidence, Ruiz’s trial counsel did offer mitigating evidence. While Ruiz attempts to 

downplay his testimony, he did testify at the revocation hearing about his fractured skull, 

that it affected his ability to do probation, and that he only recently understood the 

terms of his probation after discussing the terms repeatedly. He testified he’s on 

medication for depression, anxiety, and seizures. He also testified he was sexually abused 

by his step-father. 

 Additionally, the admissible portions of Ruiz’s mother and sister’s testimonies 

would’ve been cumulative of Ruiz’s own testimony. Ruiz’s mother said in her affidavit 

 

313 See Rylander, 101 S.W.3d at 110; Williams, 301 S.W.3d at 687. 

314 Lopez, 462 S.W.3d at 189-90 (reversing trial court’s denial of motion for new trial because trial 

counsel was ineffective during punishment for failing to investigate and present any mitigating 

evidence) (emphasis added). 

315 Shanklin, 190 S.W.3d at 164 (holding “Defense counsel’s failure to investigate and call any

punishment witnesses amounts to deficient performance.”) (emphasis added). 
38

that Ruiz fell from an elevated porch and suffered skull fractures. She said it caused 

memory loss and that he had a seizure at school. She said Ruiz and her other children 

were victims of her ex-husband. She described her “understanding” of the charges 

against her ex-husband. Ruiz’s mother did not say she had personal knowledge of the 

abuse. Her “understanding” was based on what Ruiz told her. This portion of her 

testimony wouldn’t have been admissible at a hearing or during a trial.316 She said Ruiz 

lost his innocence and that “I think” he stopped eating and is depressed. She also said 

Ruiz told her there’s nothing left for him and that he mentioned suicide. 

 What Ruiz told his mother is hearsay and would not be admissible at a hearing.317

Ruiz’s sister said in her affidavit that Ruiz fell and fractured his skull. She said he has a 

hard time understanding instructions and is very slow. She said he must be told to do 

something over and over and has a bad memory. She said she thinks his hard time on 

probation was because of his head injury. She said Ruiz told “told me” he’s had seizures 

within the past year. She then said Ruiz “told me” about the sexual abuse he suffered 

from their step-father. What Ruiz told his sister is hearsay and wouldn’t be admissible at 

a hearing.318 

 

316 See TEX. R. EVID. 602 (“A witness may testify to a matter only if evidence is introduced sufficient 

to support a finding that the witness has personal knowledge of the matter. Evidence to prove 

personal knowledge may consist of the witness’s own testimony. This rule does not apply to a 

witness’s expert testimony . . . .”); TEX. R. EVID. 802 (stating hearsay is not admissible); TEX. R.

EVID. 801(d) (defining “hearsay” as “a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). 

317 See TEX. R. EVID. 602; TEX. R. EVID. 801(d); TEX. R. EVID. 802. 

318 See TEX. R. EVID. 602; TEX. R. EVID. 801(d); TEX. R. EVID. 802. 
39

 To raise the specter of ineffective assistance of counsel, the proffered witness 

evidence must be more than cumulative of other evidence.319 His mother’s and sister’s 

evidence was cumulative of his own testimony. Ruiz hasn’t shown ineffective assistance 

of counsel. 

 Furthermore, Ruiz hasn’t shown that the allegedly new evidence substantially 

differed from the evidence actually presented to the trial court.320 The trial court already 

knew Ruiz fell years before and had head trauma. The court knew Ruiz was on 

medication for seizures and depression. The court knew Ruiz was a sexual abuse victim. 

Because the trial court was aware of this evidence when it sentenced Ruiz, Ruiz wasn’t 

prejudiced by his counsel’s alleged failure to investigate and present the additional 

mitigating evidence.321 

 Moreover, as in Smith and Goody322 and unlike in Shanklin,

323 the trial court here 

presided over both the revocation hearing and the motion for new trial. The trial judge 

 

319 See Holland v. State, 761 S.W.2d 307, 319 (Tex. Crim. App. 1988); Ketchum v. State, 199 S.W.3d 581, 

597 (Tex. App.----Corpus Christi 2006, pet. ref’d); see also Wong v. Belmontes, 558 U.S. 15, 22-23 (2009) 

(holding that cumulative mitigation evidence is unnecessary); Coble v. Quarterman, 496 F.3d 430, 437 

(5th Cir. 2007) (refusing to find Strickland error when counsel presented similar mitigating evidence 

at trial, even if only in outline form). 

320 See Washington v. State, 417 S.W.3d 713, 728 (Tex. App.---Houston [14th Dist.] 2013, pet. ref’d) 

(quoting Ex parte Martinez, 195 S.W.3d 713, 731 (Tex. Crim. App. 2006) and holding that appellant 

didn’t show that the new mitigating evidence “differ[s] in a substantial way –in strength and subject 

matter]] from the evidence actually presented at sentencing.”). 

321 See Washington, 417 S.W.3d at 728 (citing Ex parte Martinez, 195 S.W.3d at 731 (“[S]ince the jury 

was privy to some of the severe abuse applicant suffered during his childhood, there is not a 

reasonable probability that the unadmitted alleged mitigating evidence would have tipped the scale in 

applicant’s favor,” despite the omitted mitigating evidence about his abuse being “strong.”)). 322 See Smith, 286 S.W.3d at 344-45; Goody v. State, 433 S.W.3d 74, 81 (Tex. App.---Houston [1st Dist.] 

2014, pet. ref’d). 

323 See Shanklin, 190 S.W.3d at 157 (noting defendant convicted and sentenced by jury). 
40

had the witness affidavits before her when she allowed the motion to be overruled.324 As 

evidenced by the trial court’s denial, the judge did not find the affidavits persuasive 

enough to alter her punishment decision.325 The reviewing court should defer to the trial 

court’s implied factual determination that trial counsel conducted a sufficient 

investigation.326 This Court must also presume from the trial court’s denial of Ruiz’s 

motion, that the witnesses’ testimony wouldn’t have affected its sentencing decision.327

 Notably, Ruiz asks this Court to abandon Smith in a revocation context.328 Smith 

was decided by the Court of Criminal Appeals.329 This Court cannot jettison binding 

 

324 C.R. 175 (the trial judge, Hon. Patricia Grady, signed Ruiz’s certificate of presentment of his 

motion for new trial). 

325 See Smith, 286 S.W.3d at 345 (“[W]e presume that [the trial court] knew . . . what the appellant’s 

testimony . . . would be, and that, even assuming any such testimony to be accurate and reliable, 

knew that it would not have influenced his” punishment determination); Glenn v. State, 01-13-00640-

CR, 2015 WL 831995, at *4 (Tex. App.—Houston [1st Dist.] Feb. 26, 2015, pet. ref’d) (finding 

defendant didn’t prove prejudice when counsel failed to discover and present medical records during 

adjudication hearings because same judge heard the motion for new trial); Goody, 433 S.W.3d at 81; 

Potts v. State, No. 14–10–01172–CR, 2012 WL 1380230, at *1 (Tex. App.---Houston [14th Dist.] Apr. 

19, 2012, no pet.) (holding defendant didn’t establish prejudice where same judge who sentenced 

defendant also considered motion for new trial and determined additional testimony would not have 

influenced punishment assessment); Arriaga v. State, 335 S.W.3d 331, 336-37 (Tex. App.---Houston 

[14th Dist.] 2010, pet. ref’d) (in part holding that “In the absence of a hearing on the appellant’s 

motion for new trial, we presume that (1) the trial court knew from the motion for new trial and the 

affidavit what Carlos’s testimony at a hearing would be; and (2) even assuming any such testimony to 

be accurate and reliable, the trial court knew the facts alleged in the motion would not have 

influenced its ‘ultimate normative judgment’ in assessing punishment within the statutory range. . . . 

Thus, the trial court could have concluded without the necessity of a hearing that the appellant 

suffered no prejudice from any alleged deficiency on appellant’s trial counsel’s part.”).

326 See Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006). 

327 See Smith, 286 S.W.3d at 344-45; Castaneda, 01-14-00389-CR, 01-14-00390-CR, 2015 WL 6930466 

*9; Glenn, 01-13-00640-CR, 2015 WL 831995, at *4; Goody, 433 S.W.3d at 81; Potts, No. 14–10–

01172–CR, 2012 WL 1380230, at *1; Arriaga, 335 S.W.3d at 336-37. 

328 Ruiz brief p. 37-39. 

329 See Smith, 286 S.W.3d at 333. 
41

precedent.330 Additionally, under Ruiz’s request, prejudice would be presumed. A 

reviewing court would have to presume the appellant’s punishment would be lesser, 

regardless of the fact that only the trial court (who set the sentence) would know what 

evidence would’ve impacted its punishment decision. It would mean trial courts that set 

a defendant’s punishment couldn’t be trusted to know what would influence their 

punishment sentences. 

 Lastly, the trial court’s decision to punish Ruiz with the maximum sentence for 

sexual assault of a child331 was justified by the evidence. Ruiz pled true to 2 probation 

violations. The trial court found he violated 10 more. He didn’t continue participating in 

sex offender treatment. He wasn’t reporting to his probation officer. He didn’t do his 

community service or his polygraph. He was also seeing an underage girl. And he 

committed a new criminal offense by failing to register as a sex offender. Plus, unlike 

Shanklin, Ruiz did not express remorse.332 He did not apologize to his sister for sexually 

assaulting her. 

V. Conclusion—Ruiz Is Not Entitled To A New Punishment 

 

330 See Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.---Houston [14th Dist.] 2015, pet. ref’d); see also

State of Texas ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) (“The Court of 

Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other 

court of this state has authority to overrule or circumvent its decisions, or disobey its mandates.”). 

331 TEX. PENAL CODE §22.011(f) (sexual assault of a child is a 2nd degree felony); TEX. PENAL CODE

§12.33 (2nd degree felonies are punishable from 2 years to 20 years confinement). 

332 Shanklin, 190 S.W.3d at 165-66 (holding appellant proved prejudice when jury heard him 

apologize to his victim’s family, but presented no other mitigating evidence). 
42

Hearing

It was Ruiz’s burden to establish his trial counsel was deficient and the deficiency 

prejudiced him.333 Even if the trial court or this Court were to accept Ruiz’s mother’s 

and sister’s affidavits in their entirety,334 Ruiz hasn’t met either Strickland prong. He 

hasn’t shown his trial counsel was deficient. He hasn’t shown his punishment would’ve 

been less severe. To find otherwise would require this Court to assume the trial court’s 

role and substitute its decision for that of the lower court---an action this Court is 

forbidden from doing.335

 Ruiz’s first issue should be overruled. 

 

 

333 See Strickland, 466 U.S. at 687; Perez, 310 S.W.3d at 892-93; Cannon, 252 S.W.3d at 348-49.

334 Ruiz argues the trial court should’ve heard his mother’s and sister’s live testimony. He argues the 

trial court shouldn’t rely on affidavits because live testimony allows the court to weigh the witness’s 

credibility better. Ruiz brief p. 39. This is another attempt to have the reviewing court substitute its 

judgment for that of the lower court. The same rebuttal argument applies. The trial court, as the fact 

finder who sentenced Ruiz, would know whether the proffered testimony (in whatever form) would 

impact its punishment decision. See Smith, 286 S.W.3d at 345; Castaneda, 01-14-00389-CR, 01-14-

00390-CR, 2015 WL 6930466 *9; Glenn, 01-13-00640-CR, 2015 WL 831995, at *4; Goody, 433 

S.W.3d at 81; Potts, No. 14–10–01172–CR, 2012 WL 1380230, at *1; Arriaga, 335 S.W.3d at 336-37. 

335 See Riley, 378 S.W.3d at 457.
43

SECOND ISSUE

A court must hold a hearing on a motion for new trial if the motion 

raises matters that aren’t determinable from the record and 

establishes reasonable grounds showing that the defendant could be 

entitled to relief. 

What’s the abuse of discretion in denying a new trial hearing when 

the record shows counsel wasn’t deficient and the judge who 

received the motion also set the punishment? The judge knew if the 

affidavits would’ve changed her sentence. 

ARGUMENT AND AUTHORITIES

 In his second issue, Ruiz argues the trial court abused its discretion by not 

granting a hearing on his motion for new trial because he raised matters not 

determinable from the record that could entitle him to relief. Ruiz relies on his claim that 

he raised and proved ineffective assistance of counsel for failing to investigate and 

present his mother’s and sister’s testimonies. He contends he rebutted the presumption 

that trial counsel was effective and, consequently, there should’ve been a hearing to 

allow counsel to explain her trial strategy. 

 The trial court didn’t abuse its discretion because Ruiz wasn’t entitled to a 

hearing. Ruiz failed to raise matters that weren’t determinable from the record and he 

failed to establish reasonable grounds showing he could potentially be entitled to relief. 

I. Motion For New Trial Hearing Relevant Law
44

 An appellate court reviews the trial court’s decision on whether to hold a hearing 

on a defendant’s motion for new trial for abuse of discretion.336 A trial court abuses its 

discretion only when its decision lies outside the zone of reasonable disagreement.337 A 

trial court “abuses [its] discretion in failing to hold a hearing if the motion and 

accompanying affidavits: (1) raise matters which are not determinable from the record 

and (2) establish reasonable grounds showing that the defendant could potentially be 

entitled to relief.”338 A trial court may base its motion for new trial ruling on sworn 

affidavits without live testimony.339 “[A] hearing is not required when the matters raised 

in the motion for new trial are subject to being determined from the record.”340 The trial 

judge only abuses her discretion if the defendant meets both criteria.341 In other words, a 

defendant is “not entitled to a hearing on his motion for new trial unless he establishes 

the existence of reasonable grounds showing that the defendant could be entitled to 

relief.”342

In the context of a motion for new trial based on ineffective assistance of 

counsel and ineffective assistance during a punishment proceeding, a defendant is 

 

336 Lucero v. State, 246 S.W.3d 86, 94 (Tex. Crim. App. 2008). 

337 Smith, 286 S.W.3d at 339. 

338 Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009) (citing Smith, 286 S.W.3d at 338). 

339 See TEX. R. APP. P. 21.7 (“The court may receive evidence by affidavit or otherwise.”); Holden v. 

State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); see also Scaggs v. State, 18 S.W.3d 277, 281 (Tex. 

App.---Austin 2000, pet. ref d) (“It has long been held that a trial court may decide a motion for new 

trial based on sworn pleadings and affidavits admitted in evidence without hearing oral testimony.”). 

340 Smith, 286 S.W.3d at 338 (emphasis omitted) (quoting Reyes v. State, 849 S.W.2d 812, 816 (Tex. 

Crim. App. 1993)). 

341 Id.

342 Id. at 339. 
45

entitled to a hearing on the motion if he alleges sufficient facts from which the trial 

court could reasonably conclude that (1) counsel failed to act as a reasonably 

competent attorney; and (2) there’s a reasonable likelihood the outcome of the trial 

would have been different without counsel’s error.343 When the judge who sentences 

the defendant also denies the defendant’s hearing on a motion for new trial, the 

appellate court presumes that the trial judge knew whether additional testimony 

produced in the affidavits would’ve influenced her normative sentencing judgment.344

Only the trial judge could have known what factors she took into consideration when 

she assessed the defendant’s punishment, and only she would know how additional 

testimony might’ve impacted her assessment.345 The trial judge may conclude, without 

conducting a hearing, that the appellant suffered no prejudice from any deficiency of 

the trial counsel with respect to the punishment.346 

II. The Trial Court Did Not Abuse Its Discretion By Denying A 

Hearing On Ruiz’s Motion For New Trial

 Here, the trial judge that revoked Ruiz’s deferred community supervision and 

sentenced Ruiz, also signed Ruiz’s certification of presentment of motion for new trial. 

The motion included Ruiz’s mother’s and sister’s affidavits. The same judge set a hearing 

on the motion and then denied the hearing. The same judge allowed the motion to be 

 

343 Id. at 340-41. 

344 Id. at 344-45. 

345 Id. at 344. 

346 Id. at 345. 
46

overruled by operation of law. The judge already had the opportunity to evaluate Ruiz 

and his trial counsel during the revocation hearing. The judge was familiar with the facts 

of the case. And the judge was familiar with the issues raised in the motion---ineffective 

assistance of counsel, investigation, and presentation of punishment mitigation evidence. 

 The trial court could’ve reasonably concluded, based on the record and 

witnessing counsel’s performance during the revocation hearing, that counsel was not 

deficient. 

 The record reflects that trial counsel made proper objections. Indeed, she 

successfully kept out potentially harmful Facebook posts. She cross-examined the State’s 

witnesses. She got both the probation officer and the sex offender compliance officer to 

admit they were not familiar with Ruiz’s head injury. Counsel’s implication being the 

witnesses didn’t know what deficits Ruiz may have in regards to his understanding of the 

probation conditions. She also got the probation officer to testify Ruiz was a sexual 

abuse victim. And she showed that the State’s witnesses didn’t know Ruiz was on or 

needed medication. 

 Additionally, counsel called both Ruiz and his cousin for the defense. As 

discussed in response to Issue 1, unlike the defendants in Lopez or Shanklin who were 

totally deprived of the presentation of any mitigating evidence, Ruiz’s trial counsel did 

present mitigation.347 Counsel elicited testimony from Ruiz that he suffered a head 

 

347 See Lopez, 462 S.W.3d at 189-90; Shanklin, 190 S.W.3d at 164. 
47

injury, was a victim of sexual assault, and was taking a cocktail of medications to help 

with seizures and depression. 

 Moreover, in closing arguments, counsel stressed Ruiz was sexually abused by his 

step-father. She argued Ruiz was forced to have sex with his sister. She reminded the 

court that Ruiz has mental and physical incapacities and is taking five different 

medications. She argued Ruiz did his best, despite not being able to live with his mother 

at a young age. She argued Ruiz consistently tried to find a job. She asked the trial court 

to give Ruiz an opportunity to redeem himself. 

 Furthermore, consistent with Smith348 and a line of similar cases cited in response 

to Ruiz’s first issue, the trial judge could’ve reasonably concluded without conducting a 

hearing that the affidavits didn’t establish the existence of reasonable grounds showing 

that he could be entitled to relief.349 The trial court could’ve reasonably concluded that 

trial counsel’s alleged deficiency would not have affected her punishment decision.350

 Ruiz failed to raise matters which were not determinable from the record and 

failed to establish reasonable grounds showing he could potentially be entitled to 

relief.351 The trial court’s decision is entitled to deference.352 Based on the information 

 

348 The State argued in Issue 1 that this Court cannot ignore binding precedent. The State will not 

repeat the argument here. 

349 See Smith, 286 S.W.3d at 345; Castaneda, 01-14-00389-CR, 01-14-00390-CR, 2015 WL 6930466 *9; 

Glenn, 01-13-00640-CR, 2015 WL 831995, at *4; Goody, 433 S.W.3d at 81; Potts, No. 14–10–01172–

CR, 2012 WL 1380230, at *1; Arriaga, 335 S.W.3d at 336-37. 

350 See id. 351 See Hobbs, 298 S.W.3d at 199; Smith, 286 S.W.3d at 338. 

352 See Holden, 201 S.W.3d at 764. 
48

before the trial judge, including her prior knowledge of the parties and the case, the 

judge did not abuse her discretion by allowing Ruiz’s motion to be overruled without a 

hearing.353

 

353 See id. 
49

CONCLUSION AND PRAYER

 WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment 

of the trial court be affirmed in all respects. 

 Respectfully submitted, 

 JACK ROADY 

 CRIMINAL DISTRICT ATTORNEY 

 GALVESTON COUNTY, TEXAS

 /s/ Rebecca Klaren 

 REBECCA KLAREN 

 Assistant Criminal District Attorney 

 State Bar Number 24046225 

 600 59th Street, Suite 1001 

 Galveston, Texas 77551 

 Tel (409)770-6004/Fax (409)621-7952 

 rebecca.klaren@co.galveston.tx.us
50

CERTIFICATE OF SERVICE

 The undersigned Attorney for the State certifies a copy of the foregoing brief was 

sent via email, eFile service, or certified mail, return receipt requested, to Kyle Verret, 

attorney for David Ruiz, at kyle@verretlaw.com or 2029 Strand Suite 3, Galveston, Tx 

77550, on December 23, 2015. 

 /s/ Rebecca Klaren 

 REBECCA KLAREN 

 Assistant Criminal District Attorney 

 Galveston County, Texas 

CERTIFICATE OF COMPLIANCE

 The undersigned Attorney for the State certifies this brief is computer generated, 

and consists of 11,391 words. 

 /s/ Rebecca Klaren 

 REBECCA KLAREN 

 Assistant Criminal District Attorney 

 Galveston County, Texas