### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00303- CR

Om ar Ter rell Ne lson, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 676 15, TH E H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Omar Terr ell Nelson pled g uilty to ag g rava ted sexual assault o f a c h il d , and the tr i al judge assessed his punishment at five y ear s’ imprisonment. I n a single point of err or on
appea l, appellant complains that he rec eived ineffe ctive assistance of counsel at t h e p u n i s h m ent hear ing. We a ffirm the tria l court’s judg ment of convic tion.

DISCUSSIO N 1
I n an open pl ea t o the court, appellant judicially confe ssed and pled g uilty to the

o ff en se of ag g rava ted sexual assault of a child. See Tex. Penal Code § 22.021. The trial j u d ge withheld a finding of g uilt, order ed a prese ntence investiga tio n (PSI ), and rese t the case for

As this is a memorandum opinion and the parties are familiar with the fac ts and proce dural 1 history of the case , we will not rec ite them here except as nece ssary to advise the partie s of the Court’s decision and the basic re asons for it. See Tex. R. App. P . 47.1, 47.4.s entencing. At the punishment hear ing, both sides relied on the PSI repor t and declined t o o ff

er evidenc e. Citi ng appellant’ s im pecc able mil itary rec ord, hi s misunderstanding about t he victim ’s
ag e, and the consensua l nature of the offe nse, appellant’ s counsel arg ued that defe rre d-adjudica tion community supervision was an appropr iate punishment. The State simply indicated that it lef

t the punishment to the judge ’s discretion. The trial judge adjudicate d appellant g uilty and assessed his punishment at five y ear s’ confine ment in the Texas D epar tment of Criminal Justi ce, the minimum
sentenc e for the offe nse. See id. § 12.32. I n his sole point of err or on appea l, appellant asser ts that he was denied eff

ective assistance of counsel beca use his attorney failed to call witnesses to testify on his behalf a t the punishment hearing

.

To establish ineffe ctive assistance of couns el , an appellant must demonstrate by a preponde ranc e of the evidenc e both defic ient perf ormanc e by counsel and prejudice suffe red by the defe ndant. Strickland v. W ashington , 466 U.S. 668, 687 (1984); Mene field v. State , 363 S.W .3d 591, 592 (Tex. Crim. App. 2012). Fa ilure to make the require d showing of either defic ient perf ormanc e

or sufficie nt prejudice defe ats the ineffe ctiveness claim. Strickland , 466 U.S. at 700; Perez v. State , 310 S.W .3d 890, 893 (Tex. Crim. App. 2010). Appellate rev i ew o f co unsel’s repr esenta tion is highly defe rential; we must indulge a strong presumption that counsel’s repr esenta tion falls within the wide rang e of rea sonable profe ssional assistance —that is, we must presume that trial counsel’s actions or inaction and decisions wer e rea sonably profe ssional and motivated by sound trial strateg y . Strickland , 466 U.S. at 686; see Frangias v. Stat e , 392 S.W .3d 642, 653 (Tex. Crim. App. 2 0 1 3 ).
To rebut that presumption, a claim of ineffe ctive assistance must be “firmly founded in the rec ord” and “the rec ord must aff

irmatively demonstrate” the meritorious nature of the claim. See Mene field ,

2363 S

. W.3d at 592 (citing Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005));

Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999). “[U]nl ess there is a rec ord sufficie nt
to demonstrate that counsel’s conduct wa s n o t t h e product of an informed strateg ic or tactica l decision, a revie wing court should presume t h at trial counsel’s perf ormanc e was constitutionally adequate ‘unless the challeng ed conduct was so outrag eous that no competent attorney would have
engag ed in it.’” Frangias , 392 S.W .3d at 653 (quoting Goodspee d , 187 S.W .3d at 392) (i n t er n al quotation marks omitted).

The “fa ilure to call witnesses at the g uilt-innocence an d p u nishment stag es is ir r e le v a n t a bsent a showing that such witnesses wer e available and appellant would benef it from their testimony .” Perez , 310 S.W .3d at 894 (quoting King v. State , 649 S.W .2d 42, 44 (Tex. Crim. App. 1983)). Acc ording ly , a claim of ineffe ctive assistance of counsel based on counsel’s failure to call witnesses fails in the absenc e of a showing that such witnesses wer e available to testify and that the defe ndant would have benef itted from their test i m o n y . Ex parte W hite , 160 S.W .3d 46, 52 (Tex. Crim. App. 2004).

I n his brief, appellant asser ts that he was harme d by his trial counsel’s failure to call “ava ilable witnesses” to testify about (1) the family support he would h av e h ad in order to

succe ssfully co mplete defe rre d-adjudica tion community supervision if g rante d, (2) appellant’ s conduc t s i nce the incident forming the basis of his conviction, and (3) additional information (bey ond that provided in the P S I ) about his milit ary service

. Appellant does not identify these “ava ilable witnesses” but only ref ers g ene ra l l y t o “fa

mily members” and “witnesses who could testify [about his] milit ary duties and service .” Howeve r, it is appar ent that in making his arg ument

3appellant is r ely ing on testimony adduce d at a motion for new trial hear ing held 82 day s following

imposit ion of his sentenc e. The evidenc e from that hear ing is not proper ly in the rec ord befor e us.

A motion for new trial must be filed no more than 30 day s afte r the date the trial court imposes sentenc e. Tex. R. App. P. 21.4(a)

. An amende d motion for new trial must be filed within 30 day s afte r the imposit ion of senten ce an d b efore the trial court overr ules any previously filed motion for new t rial. Tex. R. App. P

. 21.4(b). The trial court must rule on a motion for new trial withi n 7 5 d ay s afte r i mposing sentence. Tex. R. App. P

. 21.8(a)

. I f t he trial court fails to rule by

wr i t t en o rder within 75 day s of imposit ion of sentenc e, a motion for new trial is overr ul ed b y opera tion of law. Tex. R. App. P. 21.8(c)

. Once a motion for new trial is overr uled by opera tion of law, the trial court is without jurisdiction to rule on the motion. State v. Garza , 931 S.W .2d 560, 562 (Tex. Crim. App. 1996). A hear ing held afte r t h e t rial court has lost jurisdiction to rule on the motio n is not authorized, and there fore , will not be considere d on appea l. Parmer v. State , 38 S.W .3d 661, 667 (Tex. App.—Austin 2000, pet. ref ’d).
I n the instant case , the trial court imposed appellant’ s sentenc e on J anuar y 18, 2012. Appellant filed a motion for new trial on Fe bruar y 10, 20 1 2 , 2 3 d ay s following imposit ion of
sentenc e. There afte r, on April 5, 2012, 78 day s afte r imposit ion of sentenc e, appella n t fi l ed his amende d motion for new trial. This motion was untimely in two way s. First, it was not filed within 3 0 day s afte r appellant was sentenc ed. See Klapesky v. State , 256 S.W .3d 442, 454–55 (Te x . App.—Austin 2008, pet. ref ’d) (def endant may amend motion for new trial befor e it is acte d on as long as it is amende d within 30 da y s of sentenc ing date) (citing Tex. R. App. P. 21.4( b)). Second, it wa s filed afte r the motion for new trial had been overr uled by opera tion of law on April 3, 2012,

4t he 76th day afte r the date appellant’ s sentenc e was imposed. See Tex. R. App. P. 21.8 (c ); S t a t e

v. Moore , 225 S.W .3d 556, 568–69 (Tex. Crim. App. 2007). Thus, there was no pending motion to amend. Neve rtheless, the trial court held a hear ing on appellant’ s motion for new trial and amende d motion for new trial on April 9, 2012, 82 day s following imposit ion of sentenc e. Howeve r, beca use appellant’ s motion for new trial had alre ady been overr uled by opera tion of law, the trial court lacke d jurisdiction to hold a hear ing on appellant’ s motion for new trial or amende d motion for new tria l. Acc ording ly , we c annot consider the fa cts deve loped at that hea ring

. Be cause we may no t co n s i d er the evidenc e adduce d at the untimely hear ing, the

rec ord does not contain any evidenc e to support appellant’ s contention that his counsel failed to call witnesses that would have provided favor able testimony

. Fur ther, the rec ord lacks any explanation from trial counsel of why he did not prese nt witness testimony at the punishment he aring

. Absent evidenc e on these issues, appellant cannot meet his burden to show that counsel was ineffe ctive in failing to c all witnesses at the punishment he aring

. See Strickland , 466 U.S. at 690 (to succe ed on claim of ineffe ctive assistance of counsel appella n t must show both defic ient perf ormanc e and prejudice to defe nse); Mene field , 363 S.W .3d at 592 (inef fec tive-assistance claim must be “firmly founded in the rec ord” and “the rec ord must aff irmatively demonstrate” meritorious na tu r e of claim);

see also Perez , 310 S.W .3d at 894 (fa ilure to call witnesses at punishment phase is irrele vant absent

s h o wi n g such witnesses wer e available and appellant would benef it from their testimony ). Acc ording ly , we ove rrule a ppellant’s sole point of er ror.

5CLERICAL ERROR IN JUDG MENT Howeve r, we observe that the trial court’s judgme nt of conviction contains a cler ical

err or. The judgme nt ref

lects that appellant was convicted of “Ag g rava ted Sex ual Assault” when in fac t he was con v i ct ed o f “Agg rava ted Sex ual Assault of a Child.” This Court has authority to modify incorre ct judgme nts when the nece ssary information is available to do so. See Tex. R. App.
P. 46.2(b); Bigley v. State , 865 S.W .2d 26, 27–28 (Tex. Crim. App. 1993). Acc ording ly , we modify the judgme nt to include the omitted lang u age and ref lect that the “Of

fense for which Def

endant Convicted” is “Ag g rava ted Sexual Assault of a Child.”

CONCLUSION Having overr

uled appellant’ s sole point of err or, we modify the trial court’s judgme nt of convic tion as noted above and af firm the judg ment as modified.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Jones, J ustices Rose and Goodw in Modified and, a s Modified, Aff irmed Filed: June 18, 2014 Do Not Publish

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