Affirmed and Memorandum Opinion filed August 11, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00285-CR

DAVID RUIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 11-CR-1921

M E M O R A N D U M O P I N I O N

Appellant, David Ruiz, appeals the trial court’s adjudication of appellant’s 

guilt for sexual assault of a child. In two issues, appellant contends the trial court 

abused its discretion by: (1) failing to grant a motion for new trial based on 

ineffective assistance of counsel during the adjudication proceeding; and (2) failing 

to grant a hearing on the motion for new trial. We affirm.
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I. BACKGROUND

In 2011, Appellant, pleaded “guilty” to sexual assault of a child.

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The trial 

court placed appellant on six years’ deferred-adjudication community supervision. 

The State filed a motion to adjudicate guilt, with multiple amendments between 

2013 and 2015, on the grounds that appellant violated conditions of his community 

supervision and failed to pay several fines. The State eventually filed a sixth 

amended motion that resulted in the proceeding at issue. 

The trial court conducted a hearing on the State’s motion to adjudicate on 

March 19, 2015. At the hearing, appellant pleaded “true” to two paragraphs in the 

motion, admitting he “failed 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 “failed to comply with polygraph requirements.” 

The trial court heard evidence regarding thirteen other allegations to which 

appellant pleaded “not true.” The State called as its first witness Rochell Dickey, a 

community supervision officer for Galveston County, who testified as to 

appellant’s failure to meet various requirements of community supervision (or 

probation) as alleged in the motion to adjudicate. The State also called as a 

witness Paula Welch, a certified peace officer and former sex offender compliance 

officer for Galveston County Sheriff’s Office. Officer Welch testified regarding 

appellant’s failure to comply with certain sex offender registration requirements. 

Thereafter, the State rested.

As its first witness, defense counsel called appellant to testify to elicit 

testimony in rebuttal to the State’s allegations. Defense counsel attempted to call 

 

1 Appellant was on probation for sexually assaulting his sister over an extended period of 

time. She was 8 years old at the time. 
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appellant’s mother as a witness; however, she was unavailable.2The defense called 

appellant’s cousin, James Merritt, who provided character witness testimony.

3

After Merritt testified, the defense rested. The parties presented their closing 

arguments. 

The trial court found allegations regarding appellant having internet access 

through a mobile device based on certain Facebook posts were “not true.”4The 

trial court found sufficient evidence to support a finding of “true” for twelve 

allegations in the State’s motion to adjudicate guilt.

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For sentencing purposes, the trial court inquired if either party had any 

motions or requests. The State replied by moving to have all the evidence 

presented during the hearing to be considered during the punishment phase and 

recommending appellant be sentenced to twenty years.6 Defense counsel 

recommended that appellant be allowed to remain on probation – if not deferred, 

then straight probation. The trial court found appellant guilty of the initial offense 

 

2

The record reflects that defense counsel stepped out in the hall to get appellant’s 

mother, but returned to the courtroom and stated,“[h]is mother actually had to go to work.” 

3 Merritt testified that appellant is a hard worker and that if the trial court would allow 

appellant to remain on probation that Merritt allegedly knew of a place in Galveston that would 

hire appellant as a laborer in a shipyard. 

4 Defense counsel objected to the evidence as not properly authenticated, which the trial 

court sustained. Thereafter, the trial court found not true paragraphs 57, 62, and 63. 

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In addition to the two paragraphs to which appellant pleaded true (31 and 56), the trial 

court found true ten additional paragraphs (1d, 4, 9, 12, 13, 16, 16A, 17A, 36, and 40) of the 

motion to adjudicate. The paragraphs found to be true included, but were not limited to, 

allegations of failing to report to Galveston Sheriff’s Department for sex offender registration; 

failing to report to his community supervision officer as ordered for the months of December, 

2012, and January, February, March, April, November, and December, 2013, and February, 

2014; failing to report to his community supervision officer any change of address; failing to pay 

as ordered supervision fees, costs of court, compensation for appointed counsel, Crime Stopper 

Program, and Sexual Assault Program Fund; failing to attend counseling sessions for sex 

offenders; and failing to report to Texas City Police Department for sex offender registration.

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The State did not present a victim impact statement. 
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of sexual assault of a child and assessed appellant’s punishment as twenty years’ 

confinement. 

Represented by new counsel, appellant timely filed a motion for new trial. 

Appellant argued that his trial counsel was ineffective for not investigating and 

presenting mitigating evidence. Appellant attached affidavits from both his mother 

(Gloria Lopez) and his sister (Yesenia Lopez),7claiming they would have testified 

and were available if counsel had contacted them and informed them they could 

testify. In both affidavits, they allege appellant’s step-father sexually assaulted 

appellant and that appellant was forced by his step-father to have sex with his 

younger sister. Both affidavits further allege that appellant fell, fractured his skull, 

and had seizures. Yesenia alleged that appellant has trouble understanding 

instructions and has to hear them multiple times. Appellant’s mother claimed 

appellant is depressed and that he has mentioned suicide.

Appellant’s motion for new trial, with the accompanying affidavits, was 

presented to the same district judge who conducted the hearing on the motion to 

adjudicate guilt. The trial court initially scheduled a hearing on the motion, issuing 

a subpoena to Galveston County jail for any medical records of appellant as well as 

subpoenas to appellant’s mother and sister. Although multiple attempts were made 

to serve appellant’s mother and sister with the subpoenas, they were unsuccessful 

and unable to serve either individual. Thereafter, the trial court denied appellant’s 

request for a hearing. The trial court allowed the motion for new trial to be 

overruled by operation of law.8 This appeal timely followed. 

 

7 Yesenia Lopez was not the complainant in the offense in the case at bar.

8 A motion for new trial is deemed denied absent a timely ruling by written order. See 

Tex. R. App. P. 21.8(c).
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II. ANALYSIS

A. Motion for new trial based on ineffective assistance of counsel

In his first issue, appellant argues that the trial court abused its discretion by 

denying his motion for new trial because he claims he established that his trial 

counsel was ineffective for not investigating and presenting mitigating evidence 

during his revocation hearing. Appellant argues that knowing that the trial court 

could sentence Appellant to the full range of punishment based on his plea of true, 

trial counsel’s failure to investigate and present mitigating evidence was deficient. 

1. Standard of review

We review a trial court’s ruling on a motion for new trial under an abuse of 

discretion standard, reversing only if the trial judge’s opinion was clearly 

erroneous and arbitrary.

9

Riley v. State, 378 S.W.3d 453, 457 & n.9 (Tex. Crim. 

App. 2012) (citations omitted); Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d). “A trial court abuses its discretion if no 

reasonable view of the record could support the trial court’s ruling.” Id., at 457 & 

n.10 (citing Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Charles 

v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004)). This deferential review 

requires us to view the evidence in the light most favorable to the trial court’s 

ruling. Id., at 457 & n.11. We must not substitute our own judgment for that of 

the trial court and must uphold the trial court’s ruling if it is within the zone of 

reasonable disagreement. See id. (citations omitted). “Where there are two 

permissible views of the evidence, the factfinder’s choice between them cannot be 

clearly erroneous.” Id. (citations omitted). “This same deferential review must be 

 

9

“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.” Mallet v. State, 9 S.W.3d 

856, 868 (Tex. App.—Fort Worth 2000, no pet.).
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given to a trial court's determination of historical facts when it is based solely on 

affidavits, regardless of whether the affidavits are controverted.” Id. (citations 

omitted).

2. Ineffective assistance of counsel

Ineffective assistance of counsel may be raised in a motion for new trial. 

Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). An appellant 

seeking to challenge trial counsel’s representation must establish that his counsel’s 

performance (1) was deficient and (2) prejudiced his defense. Strickland v. 

Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 

(Tex. Crim. App. 1999). To show deficient performance “the appellant must prove 

by a preponderance of the evidence that his counsel’s representation objectively 

fell below the standard of professional norms.” Smith, 286 S.W.3d at 340 n.26 

(quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)). To show 

prejudice, the appellant “must show there is a reasonable probability that, but for 

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

different. Smith, 286 S.W.3d at 340 n.27 (quoting Strickland, 466 U.S. at 694).

In considering an ineffective-assistance claim, we indulge a strong

presumption that counsel’s actions fell within the wide range of reasonable 

professional behavior and were motivated by sound trial strategy. Strickland, 466 

U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 

(Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective 

assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. 

In most cases, direct appeal is an inadequate vehicle for raising such a claim 

because the record is generally undeveloped and cannot adequately reflect the 

motives behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 

(Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. When the record is silent 
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regarding trial counsel’s strategy, we will not find deficient performance unless the 

challenged conduct was “so outrageous that no competent attorney would have 

engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

3. Application of Strickland

a. Trial counsel’s performance was effective 

Appellant alleges that his mother and sister were available and willing to 

testify and that trial counsel was defective for not investigating and presenting the 

mitigating evidence they had to offer through their testimony. According to their 

affidavits, they would have testified that appellant was a sexual abuse victim and 

that he had fallen from a balcony and had a head injury. Appellant contends that 

their testimony would have resulted in the trial court sentencing him to less than 

the maximum punishment. We disagree.

As an initial matter, the record evidence contradicts some of the claims 

asserted in the affidavits of appellant’s mother and sister. Specifically, appellant’s 

mother and sister both claim they would have been available and would have 

testified on his behalf. As set forth above, appellate counsel attempted to have 

subpoenas served on both women for the initially scheduled motion for new trial 

hearing; neither woman, however, accepted service, despite multiple attempts to 

serve them and notes left at their homes. Their avoidance of service of the 

subpoenas undercuts their affidavit testimony that they would have been available 

and willing to testify on appellant’s behalf.

Appellant acknowledges in his brief that he pled true to two allegations in 

the motion to adjudicate guilt and, consequently, the full range of punishment was 

open to the trial court. He further admits that his trial counsel conducted “some 

investigation” into the existence of mitigating evidence. He concedes that 
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mitigation evidence was presented on his behalf at the hearing; however, he 

characterizes such evidence as “meager.” Where a defendant pleads “true” to 

allegations in a revocation proceeding, “failure to conduct a full-fledged 

independent investigation of the facts does not necessarily result in counsel 

rendering constitutionally ineffective assistance.” Eddie v. State, 100 S.W.3d 437, 

442 (Tex. App.—Texarkana 2003, pet. ref’d); see also Toupal v. State, 926 S.W.2d 

606, 608 (Tex. App.—Texarkana 1996, no pet.) (“We do not agree that the 

magnitude of independent factual investigation for a contested proceeding is 

necessary to protect a defendant’s rights when the defendant knowingly and 

voluntarily pleads guilty to the alleged offense.”).

The record demonstrates that his counsel cross-examined Officer Dickey 

(probation officer) and Officer Welch (sex offender compliance officer) about their

knowledge, or lack thereof, of appellant’s head injury and any mental incapacity. 

Additionally, under cross examination, trial counsel elicited testimony that Officer 

Dickey was surprised to learn appellant took five medications for physical and 

mental issues, and Officer Welch was unaware that appellant was on medication. 

She further questioned whether Officer Dickey knew appellant was a sexual abuse 

victim. Trial counsel asked both Officer Dickey and Officer Welch regarding 

appellant’s understanding of the terms of his probation. Moreover, through direct 

questioning of appellant, trial counsel presented the head trauma and sexual abuse 

mitigation evidence. Appellant testified he was taking seizure and depression 

medicine. He told the court that the prosecution called him to testify against his 

step-father. Appellant testified that he had a traumatic fall that left him in the 

hospital for a long time and caused seizures. Finally, trial counsel discussed the 

mitigating evidence in closing argument. She argued appellant was a sexual abuse 

victim, had suffered head trauma, suffers from some mental incapacities and takes 
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five different medications, and should receive another chance to redeem himself. 

Thus, trial counsel presented and argued mitigating evidence during the hearing. 

Lastly, there is no indication that a further investigation by trial counsel 

revealing additional, cumulative mitigating evidence espoused by appellant’s 

mother and sister would have changed the result of the case.10 “Evidence that is

merely cumulative will rarely be judged by trial or appellate courts to bring about a 

different result.” Meek v. State, No. 14-02-01024-CR, 2003 WL 22232670, at *2 

(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (citing Cf. Kennerson v. State, 

984 S.W.2d 705, 708 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)). “Simply, 

an attorney is not ineffective for failing to present cumulative testimony.” See id. 

(citing Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.—Tyler 1996, pet. ref’d)).

Under these circumstances, appellant has not shown that his trial counsel’s 

representation fell below an objective standard of reasonableness. As such, 

appellant has failed to prove Strickland’s first prong.

b. No prejudice by counsel’s failure to investigate or present 

mitigating evidence by calling appellant’s mother and sister 

as witnesses11

Even if appellant could demonstrate deficient performance by his trial 

counsel, he cannot show that he was prejudiced by her errors–i.e., but for her

deficient performance the result would have been different. Here, as set forth 

 

10 Even if the affidavits were not cumulative of other mitigating evidence, we still would 

not necessarily conclude that trial counsel’s failure to investigate and present appellant’s mother 

and sister during the revocation hearing could support a claim for ineffective assistance of 

counsel. Where a valid trial strategy, or a feasible trial strategy in the absence of record 

evidence, is the basis for such inaction by defense counsel, an appellant has not demonstrated 

ineffective assistance of counsel. See Wallace v. State, 75 S.W.3d 576, 590 (Tex. App.—

Texarkana 2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003). 

11 “An appellant’s failure to satisfy one prong of the Strickland test negates a court’s 

need to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 

2009).
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above, information regarding appellant’s head injury and appellant being a sexual 

abuse victim was elicited during trial counsel’s cross examination of State’s 

witnesses. As such, the additional testimony of his mother and sister would have 

been cumulative. Given that the trial judge had this mitigating evidence before 

her, that appellant pled true to two violations of conditions of his probation, and 

that the trial judge found appellant violated in total twelve conditions of his 

probation, appellant has not demonstrated a reasonable probability that the result of 

the proceedings would have been different had appellant’s trial counsel called his 

mother and sister to the stand to testify. 

Viewing the evidence in the light most favorable to the trial court’s ruling, 

we find that appellant has not shown either deficient performance by trial counsel 

or there is a reasonable probability that such investigation or mitigating evidence 

would have produced a different result. As such, appellant has failed to meet his 

burden under both prongs of Strickland, and the trial court properly denied 

appellant’s motion for new trial that was based on his claim of ineffective 

assistance. We overrule appellant’s first issue.

B. Evidentiary hearing on motion for new trial

In appellant’s second issue, he contends the trial court abused its discretion 

in denying him a hearing on his motion for new trial. 

1. Standard of review

We review a trial court’s denial of a hearing on a motion for new trial for an 

abuse of discretion. Smith, 286 S.W.3d at 339. A defendant’s right to an 

evidentiary hearing is not absolute, i.e., a trial court is not required to hold a 

hearing when the matters raised in the motion are subject to being determined from 

the record. See id., at 338. To be entitled to a hearing on a motion for new trial, 
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the movant must raise one or more matters not determinable from the record and 

establish the existence of reasonable grounds showing that he could be entitled to 

relief. See id., at 339. 

Thus, as a prerequisite to a hearing when the grounds in the motion are 

based on matters not already in the record, the motion must be supported by an 

affidavit, either of the defendant or someone else, specifically setting out the 

factual basis for the claim. See Smith, 286 S.W.3d at 339. “[A]ffidavits that are 

conclusory in nature and unsupported by facts do not provide the requisite notice

of the basis for the relief claimed; thus, no hearing is required.” Id. The motion 

and affidavits need not present a prima facie case for a new trial, but the movant 

“must at least allege facts that show reasonable grounds to believe that he could

prevail under both prongs of the test for ineffective assistance of counsel under 

Strickland.” Id. at 338 (emphasis in original); see also Wallace v. State, 106 

S.W.3d 103, 108 (Tex. Crim. App. 2003).

2. Whether matters are determinable from the record and whether 

reasonable grounds exist that show appellant could be entitled to 

relief 

When a judge who sentences a defendant also denies the defendant’s hearing 

on a motion for new trial, we presume that the judge knew whether additional

testimony produced in affidavits would have influenced his normative sentencing 

judgment. Smith, 286 S.W.3d at 344–45. Only the trial judge could have known 

what factors he took into consideration when he assessed the punishment, and only 

he would know how additional testimony might have affected his assessment. Id. 

at 344. The trial judge may conclude, without conducting a hearing, that the 

appellant suffered no prejudice from any deficiency of the trial counsel with 

respect to the punishment phase. Id. at 345.
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Here, the judge who sentenced appellant is the same judge who initially set 

the motion for new trial for a hearing, subsequently denied the hearing, and 

thereafter denied the motion for new trial by operation of law. Consistent with 

Smith, the trial judge could have determined without a hearing that the alleged 

deficiencies of trial counsel by failing to provide this evidence at the punishment 

phase would not have affected his sentencing decision. See Smith, 286 S.W.3d. at 

344–45. 

Moreover, as discussed above, the evidence provided in the motion for a 

new trial included affidavits from appellant’s mother and sister that offered 

evidence cumulative to that already in the record. “[A] trial court is not required to 

conduct a hearing on a motion for new trial to hear complaints about counsel’s 

failure to present cumulative evidence.” Meek, 2003 WL 22232670, at *3.

Because we find that appellant’s motion for new trial raised matters that 

were determinable from the record and did not raise grounds that would reasonably 

entitle him to relief, we hold that the trial court did not err in denying an

evidentiary hearing on appellant’s motion for new trial. See Smith, 286 S.W.3d at 

339. We overrule appellant’s second issue.

III. CONCLUSION

We affirm the trial court’s judgment.

/s/ John Donovan

Justice

Panel consists of Justices Jamison, Brown, and Donovan.

Do Not Publish — TEX. R. APP. P. 47.2(b).