### 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 ASSI STANT CRIMINAL DISTRICT ATTORNEY STATE BAR NO. 24046225

JACK ROADY CRIMINAL DISTRICT ATTORNEY

600 59 TH 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

CLERKii 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, Texasiii 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 witn esses 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 he ad injury that may’ve impacted his ability to do probation.

How was counsel deficient when she presented mitigating evidence? How was Ruiz prejudiced wh en 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 Co unsel Relevant Law 30

III. Trial Counsel Was Not Deficient 33

IV. Ruiz Was Not Prejudiced 37

V. Conclusion—Ruiz Is Not Enti tled To A New Punishment Hearing 42iv 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 ne w 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 woul d’ve changed her sentence. Argument and Authorities 43

I. Motion for New Trial Hear ing 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 50v 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. A pp.---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 [1 st 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. Ap p.---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 [14 th 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 [1 st Dist.] 2014, pet. ref’d).

....... .................................................................................................................. 40, 42, 47 Harrington v. Richter, 562 U.S. 86, 112 (2011). .............................................................. 33vi 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 [1 st Dist.] 2008, pet. ref’d) .. 32

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

.............................................................................................................................. . 41 Lopez v. State , 462 S.W.3d 180, 188 (Tex. App.---Houston [1 st 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. Ap p.---Austin 2000, pet. ref d) ..................... 44

Shanklin v. State , 190 S.W.3d 154, 165 (Tex. App.---Houston [1 st 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, 48vii 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. A pp.---Texarkana 1996, no pet.) ............... 34 Washington v. State , 417 S.W.3d 713, 728 (Tex. App.---H ouston [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

T EX

. P ENAL C ODE §12.33 ......................................................................................... 41

T EX

. P ENAL C ODE §22.011(f) .................................................................................... 41

RULES

T EX

. R. A PP

. P. 21.7 ................................................................................................... 44

T EX

. R. A PP

. P. 21.8(c) ............................................................................................... 30

T EX

. R. E VID

. 602 ............................................................................................... 38, 39

T EX

. R. E VID . 801(d) .......................................................................................... 38, 39

T EX

. R. E VID . 802 .............................................................................................. 38, 39NO. 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, Cr iminal District Attorney fo r Galveston County, Texas,

and files this brief for th e 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 ov er one year, the State moved to adjudicate Ruiz’s guilt and revoke his community superv ision. After hearing evidence that Ruiz essentially did nothing on probation, the tria l court found 12 probat ion violations true, adjudicated Ruiz’s guilt, and se ntenced him in 20 years confin ement. Ruiz raises 2 issues on appeal. In his first issue, Ruiz claims his trial counsel wa s ineffective for failing to investigate his case and present mitigation evidence. Ruiz claims counsel should’ve spoken to his mother and si ster. He claims the women we re available to testify and

would’ve told the court that Ruiz was sexua lly abused by his step -father and had a head injury. In his second issue, Ruiz claims the trial court ab used its discretion by not granting a hearing on hi s 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 info rmation 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 la w without a hearing, the cour t found the affidavits would not have impacted its punishment choice. Co nsequently, Ruiz’s firs t and second issues

should be overruled.3 STATEMENT OF FACTS Ruiz pled guilty and in exchange for 6 years deferred comm unity supervision for sexually assaulting his 8 year old sist er over an extended period of time. 1 Within 13 months of his plea, he be gan violating his probation. 2 The probation department filed a motion to adjudicate. 3 Over the next two years, they am ended it four ti mes, each time alleging more violations. 4 At the motion to adjudicate hearing, Ruiz pled true to not participating in community service and failing to comp ly 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, th at 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 ev ery 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 (j udgment and sentence); R.R.II: 39. 2 C.R. 33 (motion to adjudicate guilt-revoke co mmunity 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 comm it a new crime, but he did by failing to re gister as a

sex offender. 9

 Ruiz was supposed to register with th e Texas City Police Department as a sex offender and give notice to law enfo rcement and the prob ation department before changing his address. 10 He didn’t give notice when he moved. 11

 Ruiz was supposed to notify the probatio n department of any changes in address, employment, and arre sts within 48 hours. 12 For more than a week, he didn’t report the failure to register ch arge or that he was transient. 13

 Ruiz was supposed to repo rt to the probation office r at least once a month as directed by the officer. 14 He didn’t report in De cember 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 ow ed as of the revocation hearing. 17 The probation

officer talked to Ruiz several time s 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 pr omised to make a payment towards his fees. But, again, he did not. 22

 Ruiz was supposed to attend and partic ipate in psychologica l counseling for sex

offenders. 23 He didn’t. 24 He had sporadic attendance and incurred no-show fees. 25 He stopped going comple tely 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 un monitored access to the internet. 28 The probation officer found a Facebook accoun t 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 an d 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 iden tify any equipment that ha d access to the internet. 36 He violated this term by making Face book posts from a mobile device. 37 The probation officer testif ied she was aware of the basi cs of Ruiz’s underlying

case because she has to have access to his threat level, must us e the information to determine the level of supervis ion to provide him, and may ne ed 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 to ld 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 th at she was aw are Ruiz and

his sister were victims of sexual as sault perpetrated by their step-father. 45 She testified she wasn’t Ruiz’s probation officer when he first began proba tion, 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 le arned 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 borr ow $10 from his mo ther 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 ab out 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 fi rst informed her that Ruiz was having mental issues in the jail. 53 The Galveston County Sheriff’s sex of fender registration compliance officer explained that a person has 7 days to register with her office. 54 She testified the probation department did the in itial 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 regi stration form Ruiz did with the compliance officer. 56 The compliance officer testifie d the form documents her first

interaction with Ruiz. 57

The form shows Ruiz has a lifetime du ty to register as a sex offender. 58 He’s supposed to register annually, 30 da ys 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 ch ance 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 municipali ty or the county where he’s going to live for more than 7 days. 64 He initialed that he must veri fy 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 te stified Ruiz was required to notify the sheriff’s office and the probation departme nt if he stays more than 48 hours at another address

three times in a month. 68 The compliance officer testif ied 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 test ified she underlined key wo rds 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 underst ood her instructions. 74 The compliance officer also testified that in May, she tr ied to contact Ruiz at the address he provided to make sure he was living there. 75 Ruiz wasn’t ther e, so the officer left a hanger on the gate with a me ssage 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 we nt 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 registrati on 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 registrati on compliance officer testif ied 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 office r that he was not living there. 92 The compliance officer took a writte n statement from the resident. 93 Over trial counsel’s objection, the court ad mitted the statement. 94 The resident stated Ru iz hadn’t liv ed 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, Septembe r, or October to register. 96 The officer testified that when

she talked to Ruiz on Ha lloween, he asked her for an other chance to register. 97 She told

him no. 98 The officer testified Ruiz was supposed to give he r 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 of ficer testified she di dn’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 th at’s a requirement in the sex offe nder form that Ruiz initialed, signed, and had a copy of). 102 The officer testified she di d have paperwork that Ruiz reported to a Texas City Police sex offender compliance officer. 103 She agreed that it was possible that in Oc tober, Ruiz was liv ing in Texas City. 104 The officer test ified that Ruiz was required to give the sheriff’s office 7 days’ notice if he moved to Texas City. 105 On re-direct, the complianc e officer testified she filed against Ruiz for his failure to give 7 days’ noti ce 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 us ually 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 grandm other in Texas City on Halloween. 113 He claimed he told his probation officer and the Texas City police comp liance officer where he was living. 114 He claimed he c ontacted the Texas Ci ty officer within 7 days of moving

there. 115 He said the probation offi cer and the Texas City comp liance officer went to his grandmother’s house. 116 He told the court th at he believed the prob ation officer and the Texas City officer would co ntact 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 office r’s testimony, Ruiz told th e court that he did report to the probation officer in December 2012, Ja nuary 2013, Februa ry 2013, March 2013, April 2013, November 2013, Dece mber 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 specifi c amount of money he was supposed to pay the probation depa rtment each month. 123 He said he paid so mething, but getting a job was hard. 124 He said he had severa l jobs, but when they ra n 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 probat ion officer’s testimony to the contrary, said that th e therapist wasn’t going to allow him to ma ke 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 test ify 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 wi th his mother. 138 He told the court he wasn’t allowed to live there anymor e because of the pr obation 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 believe d he had family support. 142

Ruiz told the court that he’s gone over the probatio n 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 anxiet y, 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 cour t 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 ho use to go to as well. 156 On cross-examination, Ruiz said hi s accident happened a few years back. 157 He

said he couldn’t remember how it happened, though he re membered 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 probati on since being incarcerated because he went to the law library and asked di fferent officers to explain it to him. 160

Ruiz claimed he didn’t un derstand that he committe d another offense until he went to the law library. 161 Ruiz said he thought he’d be alright if he paid off all hi s 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 di dn’t know not paying woul d be a violation or that paying a little amount would be a violation. 163 He said he didn’t k now 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 $4,0 00 he received on his 21 st birthday went, Ruiz said he had to pay the person he was living with. 166 He admitted he paid no thing towards his probation

fees. 167 He claimed when he got the money, he was still go ing to the sex offender therapist and he spent it all before quitting therapy. 168 Ruiz admitted he wasn’t discharg ed from the sex offender course. 169 He repeated he stopped going beca use he was supposed to start paying. 170 Then he agreed that the payments were no-show fees. 171 Ruiz, contrary to the probati on officer’s testimony, said

he didn’t tell the officer he had $110 of the $120 fo r 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 girl friend since “I was 18, 18

1⁄2.” 176 He said they’ve been to gether “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 ye ars, the girl would’ ve been 14 when they got together. 180 Ruiz said that’s not his testimony. 181 After showing Ruiz some thing not in evidence, th e 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 to gether 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 sin ce 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 “a stonishing” 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 pr obation when the photo was taken. 192

The State showed Ruiz th e sex offender registration requirements he signed, initialed, and put his fingerprint on. 193 Ruiz admitted the init ials, fingerprint, and signature were his. 194 Ruiz said that despite his print, initials, and signature, he didn’t know he was supposed to tell th e 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, hi s 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 disc ussion off the record. 201 Counsel said Ruiz’s mother had to go to work. 202

Trial counsel called Ruiz’s cousin as a ch aracter 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, th at the witness might be better suited for that. 205 If not, the State said it would change its objection. 206 The court asked th e State if it was going to present a victim impact statement or an y evidence during punishment. 207 The State said no. 208 The court said, “Why do n’t we allow him to begin to te stify. 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 to ld the court he’s assisting Ruiz in fi nding steady employment. 212 He said he’s always known Ruiz to

be a hard worker. 213 He told the court that Ruiz al ways 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 rema in on probation. 220 He told the court that, in his opinion, Ruiz would

do well if he was allo wed back on probation. 221 On cross-examination, Ru iz’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 stipul ations---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 witn esses, the trial court asked counsel for closing arguments. 226 The State argued Ruiz has d one 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 no thing to justify a co mplete lack of effort on probation. 228 The State pointed out th at Ruiz changed his story about hi s 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, desp ite pleading guilty to forceful ly having sex with his 8 year

old sister. 230 The State’s attorney told the court he wasn’t the prosecuto r at the time of the plea, but there was a reas on Ruiz was given a chance. 231 The State argued since Ruiz received his chance, he ha d a $6,500 windfall, but paid $260 out of $5,000 to probation. 232 He stopped therapy. 233 He didn’t do an y 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 yo ur 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 ac ts first started. 241 Counsel agreed that she, like the current prosecutor, was not the lawy er 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 alle gations in the State’s mo tion 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 31 st 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 212 th 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 cu rrently $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 co urt asked if either si de had any motions, requests, or anything additiona l to present for punishment. 252 The State replied that if this is the punishment phase, it would move to interjec t all the evidence presented during the hearing to be considered and th en asked the court to sentence Ruiz to 20

251 R.R.II: 119; C.R. 91-92 (fourth amended moti on 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 an d presenting mitigating evidence. 256 He argued (as he does on appeal) that his mother and his sister (a sister he wasn’t convicted of sexu ally assaulting) were available to testify. 257 He attached affidavits from both. 258 Ruiz’s mother and sister claimed they would’ve testifie d and were available if coun sel 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 lo oked for her in the

courthouse. Both women said his step-father sexually assaulted Ruiz. 261 Both women claimed Ruiz was forced by his step-f ather to have sex with his sister. 262 Ruiz’s mother

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

Ruiz’s sister said he has trouble understa nding 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 depre ssed, told her he had nothing left,

and that he mentioned suicide. 266 Ruiz presented the motion with th e 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 T EX

. R. A PP

. 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 witn esses knew Ruiz was an abuse victim. She also showed they were unaware of Ruiz’s head injury. Counsel presented evid ence, through Ruiz, th at 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 tr ial counsel was ineffective for not investigating and presenting mitigating evidence during the revocation hearing. He

contends his mother and his si ster (one of the sisters he wasn’t convicte d of sexually assaulting) were available an d willing to testify. Accord ing 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 si ster’s and mother’s affidavits were credible, Ru iz hasn’t shown counsel was deficient or that he was prejudiced. He also hasn’t shown he would’ve received a lesser sent ence. The trial court29 set his punishment. The trial court heard the testimony of Ruiz’s probation officer and the sex offender registration co mpliance officer. The trial co urt heard that Ruiz did very little to comply with his probat ion. The trial court found he vi olated 12 conditions of his probation---including failing to complete his sex offender ther apy 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. Cl early the court did not

find the affidavi ts compelling.

The trial court didn’t abus e its discretion by denying Ruiz’s motion. Ruiz is not entitled to new pu nishment 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, re versing only if the tria l 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 re view requires the appellate court to view the evidence in the light most favorable to the tr ial court’s ruling. 275 The reviewing court may not substitute its own judgment fo r that of the trial co urt and must uphold

272 R.R.II: 119; C.R. 123 (jud gment 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 permissi ble views of the evidence, th e 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 ruli ng or overruled by operation of law. 279



### II. Ineffective Assistance Of Counsel Relevant Law

To establish ineffective assistance of co unsel, 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 de feats the claim of in effective assistance. 281

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

276 Id. 277 Id. 278 Id. 279 See T EX

. R. A PP

. 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 appella nt’s failure to satisfy one prong of the Strickland test negates a court’s need to c onsider the other prong.”).31 performance fell below an objective standard of reasonableness. 282 Strickland’s second prong requires the appellant to demonstrat e 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 th e time of trial, not through hindsight. 285 The fact that Ruiz’s appellate attorney might have pu rsued a different course does not support a finding of ineffectiveness. 286 The issue is whethe r 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 co unsel’s conduct fell within the wide range of reas onable professional assistance, and, therefore, the appellant must overcome the pr esumption that the challenged action constituted “sound trial strategy.” 288 The appellate review is highly deferent ial 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 (T ex. Crim. App. 1992); Gholson v. State , 5 S.W.3d 266, 273 (Tex. App.---Houston [14 th 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 appella nt must provide an appellat e record that affirmatively

demonstrates that counse l’s performance was not based on sound strategy. 290 Trial counsel is required to seek out and interview potential witn esses as a part of his investigation of th e 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 th at the factfinder did not hear due to counsel’s failure to investigate. 293

When the ineffective assistance of coun sel 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 de monstrate 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 [1 st Dist.] 2008, pet. ref’d). 295 Strickland, 466 U.S. at 694.33 the proceeding.” 296 “The likelihood of a different resu lt must be substantial, not just

conceivable.” 297 When defense counsel presents “no evidence of mitigating factors . . . to balance against the aggravating factors pr esented 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 reviewin g 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 conced ed 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 [1 st Dist. 2015, no pet.) (quoting Shanklin v. State , 190 S.W.3d 154, 165 (Tex. App.---Houston [1 st 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]efens e counsel’s failure to interview or call a single witness, other than appellant, deprived him of the po ssibility 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 [1 st Dist.] Nov. 10, 2015, no pet. h.) (finding that when a judge sentences a defendan t 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 inju ry and sexual abuse hi story. However, the evidence during the revocation hearing show s counsel was aware of Ruiz’s history and presented evidence of both during the hearing.

The record shows counsel cross-examin ed the probation officer and the sex offender compliance o fficer about their igno rance of Ruiz’s head injury. Counsel showed the probation officer wasn’t aware th at Ruiz was on medication. Counsel also asked whether the probation officer knew Ruiz was a se xual abuse victim. Counsel questioned the probation officer and the se x offender registration compliance officer regarding Ruiz’s unde rstanding of the terms of his probation. Moreover, counsel presented the head trauma and sexual abus e mitigation evidence through Ruiz. Ruiz testified he was taking seizure and depression medicine. He told th e court his step-father sexually abused him. He said he had a trauma tic fall that left him in the hospital for a long time and caused seizures. Counsel us ed the mitigating evidence in closing argument. She argued Ruiz was a victim, had head trau ma, and should receive another

301 Notably, Ruiz pled true to 2 of the revoca tion 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 re ndering 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.---Texar kana 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 cros s-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 unawar e of the defendant’s mental health history and didn’t participat e in collecting mitigating evidence 302 or counsel in

Shanklin who admitted he didn’t conduc t 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 b ecause his mother left the revocation hearing without testifying. 305 According to Ruiz’s mo ther’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 no t to seek a continuance when the only witness who could

corroborate the defendant’s ve rsion 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 be low, 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 puni shment 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 beca use of the injury. Ruiz also testified he was sexually abused by his step-father. Unlike Frangias , where the defendant was deprived of evidence that co uld’ve proven his innocence, 307 here there already was mitigation evidence in front of the cour t and (as discussed be low) the additional evidence wouldn’t have impacted th e trial court’s punishment choice. Importantly, there is some evidence in th e 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 la ter canceled motion for new trial hearing. Neither woman ac cepted the subpoenas, despite multiple attempts to serve

them and notes left at their homes. 308 In fact, the serving offi cer 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 defici ent. 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 loca te); 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 defici ent, 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 th e content in their affidavits. An ineffective assistance of counsel claim fails if prejudice isn’t proven. 313

Unlike the defendants in Lopez 314 and Shanklin 315 who were denied the effective

assistance of counsel because thei r lawyers utterly failed to present any mitigating evidence, Ruiz’s trial counsel did offer miti gating evidence. While Ruiz attempts to downplay his testimony, he di d testify at the revocation hearing about his fractured skull, that it affected his ability to do probatio n, and that he only re cently understood the terms of his probation after discussing th e 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 mo ther 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 defici ent performance.”) (emphasis added).38 that Ruiz fell from an elev ated porch and suffere d 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-hus band. She described her “und erstanding” of the charges against her ex-husband. Ruiz’s mother did not say she ha d personal knowledge of the abuse. Her “understanding” was based on wh at Ruiz told her. This portion of her testimony wouldn’t have been admissible at a hear ing or during a trial. 316 She said Ruiz

lost his innocence and that “I think” he stopped ea ting 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 admi ssible at a hearing. 317

Ruiz’s sister said in her affidavit that Ruiz fell and fracture d his skull. She said he has a hard time understanding instruct ions and is very slow. She sa id 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 T EX

. R. E VID

. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has person al 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 . . . .”); T EX

. R. E VID . 802 (stating hearsay is not admissible); T EX

. R. E VID . 801(d) (defining “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evid ence to prove the truth of the matter asserted”). 317 See T EX

. R. E VID

. 602; T EX

. R. E VID . 801(d); T EX

. R. E VID . 802. 318 See T EX

. R. E VID

. 602; T EX

. R. E VID . 801(d); T EX

. R. E VID . 802.39 To raise the specter of in effective assistance of coun sel, the proffered witness

evidence must be more than cu mulative of other evidence. 319 His mother’s and sister’s evidence was cumulative of his own testimony. Ruiz hasn’t shown in effective assistance

of counsel. Furthermore, Ruiz hasn’t shown that the allegedly new evid ence substantially

differed from the evidence actua lly presented to the trial court. 320 The trial court already knew Ruiz fell years before and had he ad trauma. The court knew Ruiz was on

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

Because the trial court was aware of this evid ence when it sentence d Ruiz, Ruiz wasn’t prejudiced by his counsel’s alleged failure to investigat e and present th e additional mitigating evidence. 321 Moreover, as in Smith and Goody 322 and unlike in Shanklin , 323 the trial court here presided over both the revocation hearing an d 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 miti gation 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. A pp. 2006) and holding that appellant didn’t show that the new mitigating evidence “diffe r[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 applic ant suffered during his childhood, there is not a reasonable probability that the unadmitted alleged mi tigating evidence would have tipped the scale in applicant’s favor,” despite the omitted mitiga ting 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 [1 st 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 ju dge did not find the affidavits persuasive enough to alter her punishment decision. 325 The reviewing court shou ld 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 influen ced 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 faile d 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 es tablish prejudice where same judge who sentenced defendant also considered motion for new trial an d determined additional testimony would not have influenced punishment assessment); Arriaga v. State, 335 S.W.3d 331, 336-3 7 (Tex. App.---Houston [14th Dist.] 2010, pet. ref’d) (in part holding th at “In the absence of a hearing on the appellant’s motion for new trial, we presume that (1) the tria l court knew from the motion for new trial and the affidavit what Carlos’s testimony at a hearing wo uld be; and (2) even assuming any such testimony to be accurate and reliable, the trial court knew th e facts alleged in the motion would not have influenced its ‘ultimate normative judgment’ in asse ssing punishment within the statutory range. . . . Thus, the trial court could have concluded withou t the necessity of a hearing that the appellant suffered no prejudice from any alleged defici ency 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 reques t, 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 trus ted to know what would influence their punishment sentences. Lastly, the trial court’s decision to pu nish Ruiz with the maximum sentence for

sexual assault of a child 331 was justified by the evidence. Ruiz pled true to 2 probation

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

sex offender treatment. He wa sn’t reporting to his probation officer. He didn’t do his community service or his poly graph. He was also seeing an underage girl. And he

committed a new criminal offens e 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 Enti tled To A New Punishment

330 See Lewis v. State , 448 S.W.3d 138, 146 (Tex. App.---Houston [14 th 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 matter s. This being so, no other court of this state has authority to overrule or circumvent its deci sions, or disobey its mandates.”). 331 T EX

. P ENAL C ODE §22.011(f) (sexual assault of a child is a 2 nd degree felony); T EX

. P ENAL C ODE §12.33 (2 nd 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 pr esented no other mitigating evidence).42 

### Hearing

It was Ruiz’s burden to establish his tria l counsel was deficient and the deficiency prejudiced him. 333 Even if the trial court or this Co urt 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 re quire this Court to as sume 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 mo ther’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 rebu ttal 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 hear ing on a motion for ne w trial if the motion raises matters that aren’t dete rminable from the record and establishes reasonable grounds show ing 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 ab used its discretion by not granting a hearing on his motion for new trial because he raised matters not

determinable from the re cord that could entitle him to relie f. Ruiz relies on his claim that he raised and proved ineffect ive assistance of counsel fo r failing to investigate and present his mother’s and sister ’s testimonies. He contends he rebutt ed the presumption that trial counsel was effective and, conseq uently, there should’v e been a hearing to allow counsel to explai n her trial strategy.

The trial court didn’t abuse its discre tion 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 gr ounds showing he could potentia lly be entitled to relief.



### I. Motion For New Trial Hearing Relevant Law44 An appellate court reviews the trial court’s decision on whether to hold a hearing

on a defendant’s motion for new trial for ab use of discretion. 336 A trial court abuses its discretion only when its decision lies outs ide the zone of reas onable disagreement. 337 A trial court “abuses [its] di scretion in failing to hold a hearing if the motion and accompanying affidavits: (1) raise matters wh ich are not determinab le 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 moti on 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 ne w trial unless he establishes the existence of reasonable gr ounds showing that the defend ant could be entitled to

relief.” 342

In the context of a motion for new tria l 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 T EX

. R. A PP

. P. 21.7 (“The court may re ceive 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 a lleges 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 infl uenced 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 re spect to the punishment. 346



### II. The Trial Court Did Not Abuse Its Discretion By Denying A Hearing On Ruiz’s Mo tion For New Trial Here, the trial judge that revoked Ruiz’s deferred community supervision and sentenced Ruiz, also signed Ruiz’s certificat ion of presentment of motion for new trial.

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

on the motion and then denied the hearing. The same judg e 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 al ready had the opportunit y to evaluate Ruiz and his trial counsel during the revocation he aring. The judge was familiar with the facts of the case. And the judge was familiar with the issues rais ed in the motion---ineffective assistance of counsel, investigation, and pres entation of punishment mitigation evidence. The trial court could’ve reasonably concluded, based on the record and witnessing counsel’s performance during th e revocation hearing, that counsel was not

deficient.

The record reflects that trial counse l made proper object ions. Indeed, she successfully kept out potentia lly harmful Facebook posts. Sh e cross-examined the State’s witnesses. She got both the pr obation officer and the sex of fender compliance officer to admit they were not familiar wi th Ruiz’s head in jury. Counsel’s imp lication being the

witnesses didn’t know what defi cits Ruiz may have in regard s 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 di dn’t know Ruiz was on or

needed medication. Additionally, counsel call ed both Ruiz and his cous in for the defense. As discussed in response to Issue 1, unlike the defendants in Lopez or Shanklin who were totally deprived of the presen tation of any mitigating evidence, Ruiz’s trial counsel did present mitigation. 347 Counsel elicited test imony 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 wa s taking a cocktail of medications to help with seizures and depression. Moreover, in closing argume nts, counsel stressed Ruiz wa s 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, desp ite 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 Smith 348 and a line of similar cases cited in response to Ruiz’s first issue, the tr ial judge could’ve reasonably concluded without conducting a hearing that the affidavits didn’t establish the existence of reason able grounds showing

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

trial counsel’s a lleged deficiency would not have a ffected her punishment decision. 350

Ruiz failed to raise matt ers which were not determin able from the record and failed to establish reasonable grounds show ing 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, 01-14-00 390-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 a ffirmed in all respects. Respectfully submitted, JACK ROADY CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY, TEXAS

/s/ Rebecca Klaren REBECCA KLAREN Assistant Crim inal District Attorney State Bar Number 24046225 600 59 th Street, Suite 1001 Galveston, Texas 77551 Tel (409)770 -6004/Fax (409)621-7952 rebecca.klaren@co.galveston.tx.us50 CERTIFICATE OF SERVICE The undersigned Attorney fo r the State certifies a copy of the forego ing brief was sent via email, eFile service, or certified mail, re turn receipt requested, to Kyle Verret, attorney for David Ruiz, at kyle@verretlaw.c om or 2029 Strand Suite 3, Galveston, Tx 77550, on December 23, 2015.

/s/ Rebecca Klaren REBECCA KLAREN Assistant Crim inal District Attorney Galveston County, Texas

CERTIFICATE OF COMPLIANCE The undersigned Attorney fo r the State certifies this br ief is computer generated, and consists of 11,391 words.

/s/ Rebecca Klaren REBECCA KLAREN Assistant Crim inal District Attorney Galveston County, Texas