NO. 07-01-0410 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A MAY 16, 2002

______________________________ JUAN HENRIQUEZ, APP ELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 248 TH DISTRICT COURT OF HARRIS COUNTY; NO. 858958; HON ORABLEW OODY DEASON, J UDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Presenting four issues for our review , Juan Henriquez challenges his conviction for sexual assault of a child and the jury-asse ssed punishment of 18 years confinem ent in the Institutional Division of the TexasDepartm ent of Crim inal Justice. W e affirm thejudgm ent of the trial court.2

His first two issues req uire us to determine whether he was denied effe ctive assistance of

counsel as guaranteed by thefederal and Texas con stitutions. His third and fourth issues assert he w as denied his right to com pulsory process in violation of the sixth amend ment

to t he f ede ral cons titu tion and Ar ticl e I, Section 10 of the Texas Constitution. Appella nt argues hi s first two issuestogether. W e likewise co nsider the m j ointl y. His first issue alleges he was deprived of the reasonabl y effective assistance of counsel to which he w

as entitled under

the sixth am endme nt to the federal constitution. His second issue alleges deprivation of the sam e right established by Article I, Section 10 of the Texas Constitution.
The standard by w hich we a re to review claim s of ineffectiveness of trial counsel is that set out in the sem inal case of Stric kland v. Washi

ngton , 466 U .S. 668, 1 04 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by our Court of

Criminal Appeals in Hernandez
v. State , 726 S.W.2d 53, 57 (Tex.Crim. App. 1986). In order to show t hat trial counsel was ineffective, a claimant must establish two elem en ts: 1) his counsel’s perform ance was deficient, and 2) the deficient perform ance prejudiced the defense. Stric kland , 466 U.S. at 687.
The first com ponent is m etby show ing that trial counsel m ade errors so significant thathe was not functioning as the counsel guaranteed by the sixth am end ment to the United States Cons titution. Id. The second com ponent ne c essitates a show ing that counsel’s errors were s o serious that they deprived the defendant of afair trial, i.e. , a trial3

whose res ult is reliabl e. Id. A claimant mu st show

a reasonable probability that, but for counsel’s errors, the res ult of the proceeding would have been different. Id. at 694. A reasonabl e probability is one sufficient to undermine confidence in the outcom e. Id. W hen reviewing a claim of inef f ective assistance, w

e indulge a strong presum ption that
coun sel’s conduct falls within the w ide range of reasonable professional assistance. Jacksonv. State , 877 S.W.2d 768, 77 1 (Tex.Crim.App. 1994). The defe ndant must
ov er co me the presum ption that, under the circum stances, the cha llenged action m ight be considered sound trial strategy. Id. The defendant asserting ineffecti ve assistance must presenta record with evidence of the reas ons that the al leged i neffective assi stance actions or om issions were not trial strategy. Thedefendant m ust pro ve that counse l's errors, judged by the totality of the representation, not by isolated instances of error or by only a portion of trial, denied him a fair trial. Stric kland, 466 U.S. at 6 95.
The err orson which app ellan t’s clai m is based are trial counsel’s failure to present his mo tion for

new tria l to thecou rt w ithin ten days of filin g aspro vide d in Texas Ru le of Appellate Procedure 21.6 and t he failure to attach an affidavit to the mo tion raising new facts. We initia lly n otetha t an aff idav itsupporting a m otion for n ew t rial is only nece ssary when the challenge to the verdict is based on m atters outside the record. Harmon v. State , 889 S.W.2d 521, 524 (Tex.App.--Hous ton [14 th Dist.] 1994, pet. ref’ d).
Like the case before us, Brink v. State , No. 14-00-14 39-CR (Tex.A pp.--Houston [14 th Dist.] Dec. 6, 2001, nopet. h.), also involved a claim of ineffe ctive as sistance for fa ilure4

to provide an affida vit or obtain a hearing to support a m otion for new trial alleging invol untarin ess of

a plea. The court found the allegation of error not determ inable from the record witho ut a su pporting a ffidavit. That failure, and thefailure to obtain a hearing, was deficient performance by counsel. Id.
We first consider trial counsel’s failure to attach an affida vit to the m otion. Appella nt’s mo tion for new trial all eged three grounds in s upp ort . Fir st, thecou rt e rre d in resting and closing the defense case over his objection; second, he wa s denied th e opportunityto present testim ony from a counselor who had evaluated defendant; and third, he wasdenied the opportunity to present rebuttal testim ony from a police officer. All the evidence relevant to the first and third grounds is contained in the record. They arose whe n the tr ial court dec lined a defen se reque st for arecessto sec ure the attendance of two officers who had testi fied but were excused subject to reca ll. A fter the j ury retired, appellant presented the officers’ testimony in a bill of exce ptions. T h e purpose of the testimony

was to show inconsistenc ies between the com plainant’s testimony and her statem entto the poli ce. No external evi denc e wa s ne ce ssa ry to eva lu at e t he se two grounds of a new

trial.
We initial ly note appellan t ha s fa ile d to citeto the record s how ing the trial court denied him the op portunity to present the counse lor’s testi mony. Tex . R. A pp. P. 38.1(h). He has also fai led to provi de any indi cation of what testi mony the counselor would have given. Howe ver, we h ave located the relevant portion of the record and revi ewed it. At5

tria l, appellant sought to introduce the testim ony of Marc ia Hubbard , a license d couns elor. The sub stance of her testi mony w ould have be en that appel lant di d not have any of a series of characteristics of people likely to sexually abuse children.
Both counsel and the trial court exam ined Hubbard out of the presenceof the jury. The court’s questions foc used on the standards set out in Daubert v. Merrel Dow Pharmace uticals, Inc. , 509 U.S. 57 9, 113 S.Ct. 2786, 125 L.Ed.2d 4 69 (1993), an d adopted by our Court of C riminal Appeals in Kelly v. State , 8 24 S. W .2 d 5 68 (T ex .C ri m. App. 1992). They

included the degree to which the theory was accepted by the relevant sci ent ific com munity, t he validity of t he tech nique applying the theory, and whet her the technique was prope rly applied.
Hubbard was not

able to articulate a specific scientific comm unity which adopted the theory on which her opinion was based a nd conceded theresulting conclusionswer e subjective and not subj ect to em pirical verifi cation. The trial court found the t e stimony inadmiss ible. The v oir dire of H ubbard a nd discus sion betw een cou nsel and t he court
co ns ume 49 pages of the reporter’ s record. Appellant has failed to explain what additional evidence w ould have be en n ece ssa ry to bepre sen ted by aff idav itto support the m otion for new trial. We find the fail ure to support the m otion with an affidavit was not deficient performan ce by counsel.
We next co nsider whet her tri al counsel’s failure to present the m otion to the trial court w as d efic ient

per for m ance. A

s dis cus sed in mo r e detail below, the eviden ce6

appellant sought to introduce of inconsistencies in the com plainant’s statem ents did not clea rly underm ine her credibili ty. Even as sum ing arguendo that the failure to present the mot ion for new t rial was deficient perform ance, thegro und s as ser ted in the m otion and the record cannot support a finding of a reasonable probability that, but for trial cou nsel ’s deficient perform ance, the outcom e would have been different. Having failed to me et the second prong of

the test set out

in Stric kland , appellant has failed to show he was deprived of reasonabl y effective assi stance of counsel . W e overrul e his fir st two issues. Appella nt’s third and fourth is sues allegethe den ial of his right of com pulsory process under the Texas and federal constitutions. The sixth a mendm ent right to
com pulsory

process "is in plain terms the right to present a defense, the right to present the defendant's version of the fac ts as well as the prosecution's to the jury so it m ay decide whe re the truth lies." W ashington v. Texas , 388 U.S. 14 , 19, 87 S.Ct . 1920, 1923, 18 L.Ed.2d 1019 (1967). To exercise the federal constitutional com pulsory process right, the defendant

mu st m ake a plausible showing to the trial court, by sw orn evidence or

agreed facts, that the witness' test imony would be both m aterial and favorable to the defense. Ex parte Scarbrough , 604 S.W.2d 170, 173-74 (Tex.Crim .App. 1980).
The fac tua l bas is of

this clai m w as d isc uss ed b riefly ab ove . O fficersTon y Lew is and James Sm ejkal investi gated the offense and testified during the State’s case-in-chief. Theytestified after the initial testimony of the compla inan t. At the conclusi on of defense
cross-exam ination of each officer, defense counsel passed the w itness with the com ment7

that the officer needed to “stay a rou nd. ” Th e co urt inst ruc ted theoff

icer to “ be a vaila ble if needed.” On conclusion of direct ex amination of Officer Sm ejkal, defense counsel stated ithad no questions, but w ould like to reserve cross-exam ination

. Thetria l cou rt a gain instructed the w itness t hat he w as excused “ subj ect to recall.”
W hen th e d ef en se sou gh t to re ca ll th e o ff ic er s fo r t he pu rp os e o f sh owi n g inconsistencies in the com plainant’s testimony, the officers were notavailable and the trial court decli ned appel lant’s requ est for a recess to secure their attendance, stating it was
a party’s responsibility to ensure the presen ce of witnessesand that the testim ony he soughtto introdu ce was collateral to the issues in the case. After the j ury was charged and retired to deliberate, theoff icer s ar rive d. A ppe llant

pre sen ted the ir

testimon y in a bill of exceptions.
Off icer Lew is inte rview ed t he com plain ant . Acco rdin g tohis testimon y, based on his written report, the victim stated appellant gave her cocaine in the kitchen. Trial counsel asserts this was in conflict w ith the com plainant’s testimony tha t hegave he r co cain e in the bedroom . Officer Sm ejkal did not interview thecom plainant.
The tes tim ony

pre sen ted in thebill of exceptions fall s short of meeting appel lant’s burden to show that the testimony he wa s prevented frompresenting was m aterial and favora ble to the defense. See Coleman v. S tate , 966 S.W.2d 525, 528 (Tex.Crim .App. 1998). We overrul e appellant’s third and fourth issues.8

Fi nd i ng no re ve rs i bl e e rr or i n t he jud gme nt of th e t ri al co ur t, we a ff i rm. John T. Boyd Chief Justi ce Do not publish.