Opinion issued January 12, 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 15
- 00135
- CR

——————————— PETE RODRIGUE Z , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 182nd District Court

Harris County, Texas Trial Court Ca se No. 1389063

MEMORANDUM OPINION A jury found Pete Rodriguez guilty of the offense of indecency with a child
and the trial court assessed his punishment at 10 years’ confinement. Rodriguez seeks reversal of his conviction , contending that his lawyer provided ineffective assistance by incorrectly advising him that he was not eligible for community2

supervision in lieu of confinement and that the trial court also erred in incorrectly admonish ing him that he was not eligible f or community supervision

. Because we conclude that his lawyer and the trial court correctly informed Rodriguez that he was not eligible for community sup ervision, we affirm

. Background A grand jury indicted Rodriguez for one count of indecency with a chil d, his daughter

. The indictment stated that the offense o ccurred in November 2012. T he
trial court admonished him that he would not be eligible for com munity supervision if convicted , because the child was younger than 14 at the time of the alleged offen se. Rodrig uez ple ade d not guilty. At trial, the uncontroverted evidence showed that t he complainant was born in May 1999. But proof of t he date on which the offense allegedly occurred was less precise

. The complainant testified that Rodriguez repeatedly touched her in a sexual manner over several years ’ time

. S he said that the last incident, the one for which Rodriguez was indicted, occurred during her final visit with him in November 2012. However, o ther evidence at trial indicated that the complainant may have visited Rodriguez in December 2012. In particular, the complainant’s medical records reflect that the date of the suspected abuse was the weekend of December 1, 2012, and the last possible occurrence was on December 2, 2012. R egardless of wheth er3

the child last visited Rodriguez in November or December of 2012, the undisputed evidence at trial was that the complainant did not see Rodriguez again until the trial. In closing, Rodriguez’s lawyer argued that the c omplainant’s uncertainty about the date on which the offense allegedly took place and other inconsistencies created reasonable doubt. But the defense did not contend that there was any question as to the complainant ’s age on the date of the alleged offens e . Nor did the defense request that the jury be instructed to make a finding as to whether she was younger than 14 at the time

. In accord with the indictment, the jury instructions stated that the charged offense allegedly occurred on or about a particular da te i n November 2012. But the instructions went on to advise that the State was not bound by the date specified in the indictment

. After t he jury rendered a verdict of guilty, Rodriguez elected to have
the court assess his punishment

. The court assessed his punishment at 10 yea rs’ confinement. Rodriguez mo ved for a new trial. In relevant part, he asserted that his trial counsel rendered ineffective assistance by incorrectly advising him that he was not eligible for community supervision, failing to file a motion for community supervision in lieu of confinement, and n ot requesting a jury finding on whether the complainant was younger than 14 on t he date of the offense. The trial court denied the motion.4 Discussion On appeal, Rodriguez contends that his la wyer provided ineffective assistance by incorrectly advising him that he was not eligible for community supervision. H e likewise contends that the trial court committed reversible error by incorrectly admonishing him that he was not eligible for community supervision. He maintains he would have been eligible for community supervision if the jury believed the complainant was not yo unger than 14 on the date of the offense, but elected to go to the court

— which could not place him on community supervision

— for punishment based on the mistaken information he received from the trial court and counsel.
The State disagrees. It maintains th at the uncontroverted evidence at trial established that the offense charged in the indictment took place before the complainant ’s fourteenth birthday. Therefore, the State contends, the evidence conclusively establishes that Rodriguez was not eligible fo r community supervision. A. Eligibility for Community Supervision Indecency wit h a child younger than 17 years old is a felony. T EX
. P ENAL C ODE § 21.11 (West 2011)

. If the child is younger than 14 years old, a defendant who is guilty of this offense is c ategorically ineligible for community supervision.
T EX
. C ODE C RIM
. P RO
. art. 42.12(3g)(a)(C), (4)(d)(5) (West Supp. 2015)

. If the child is 14 years old or older, the defendant is eligible for community supervision. T EX
. C ODE C RIM
. P RO . art. 42.12(4)(d)( 5) (West Supp. 2015)

. But a trial court can assess5

community supervision in lieu of confinement as punishment for this offense only upon the recommendation of a jury. T EX
. C ODE C RIM
. P RO
. art. 42.12(3g)(a)(C), (4) (West Supp. 2015)

. Thus, a defendant guilty of indecency with a child who may be eligible for community supervision based on the age of the child must elect to have a jury assess his punishment to pursue t his possibility. See id.
B. Ineffective Assistance of Counsel To prevail on an ineffective

- assistance claim , a defendant must establish two things. First, he must show that his lawyer’s performance was deficient by proving by a preponderance of the evidence that it objectively fell below professional standards. Starz v. State , 309 S.W.3d 110, 118 (Tex. App.

— Houston [1st Dist.] 2009, pet. ref’d) (citing Strickland v. Washington , 466 U.S. 687 (1984))

. Second, the defendant must show that in reasonable probability the result of the proceeding would have differed but for this deficienc y. Id.
W hen, as here, the defendant moved for new trial on the basis of ineffectiv e assistance of counsel and the trial court denied the motion , we analyze the ineffective

- assistance claim as a challenge to the denial of the motion for new trial. Starz , 309 S.W.3d at 118. Thus, we review it for abuse of discretion, and reverse only if the trial court’s decision is arbitrary or unreasonable when viewed in the light most favorable to its ruling. Id.6

The success of Rodriguez’s ineffective

- assistance claim depends on whether the evidence at trial would have allowed the jury to rationally conclude that the charged offense occurred on or after the complainant ’s fo urteenth birthday. If so, then contrary to his counsel’s advice, the jury could have recommended that confinement be suspended in favor of community supervision. See T EX
. C ODE C RIM
. P RO
. art. 42.12(4)(d)(5) (West Supp. 2015)

. If not, then Rodriguez was not eligible for community supervision

. Id. And , if he was not in fact eligible for community

su pervision , his counsel’s advi ce to this effect was not deficient

. At trial, the parties disputed the last date on which Rodriguez had contact with
the complainant

. But this dispute concerned whether the ir last date of contac t was in November or December of 2012. Whichever may have been the case, it is undisputed that they did not see one another again until trial. I t likewise is undisputed that the complainant was born in May 1999. Therefore, regardless of whether the complainant last saw Rodriguez in November or December of 2012, any alleged criminal conduct necessarily took place before her fourteenth birthday, which was in May 2013. Because the evidence the jury heard established without contradiction that Rodriguez last saw the c omplainant when she was 13 years old and had no contact with her afterward, the jury could not have concluded that the charged offense occurred after the complainant’ s fourteenth birthday. It therefore could not have7

recommended that Rodriguez be placed on community supervisi on in lieu of confinement

. Rodriguez’s counsel , therefore, was not deficient in failing to advise Rodriguez of the possibility of community supervision

. T EX
. C ODE C RIM
. P RO
. art. 42.12(4)(d)(5) (West Supp. 2015)

. Because Rodriguez failed to satisfy Strickland ’s first prong , the trial court did not abuse its discretion in denying Rodriguez’s motion for new trial premised on ineffective assistance. C. Trial Court’s Admonishment Rodriguez ’s second issue, in which he contends the trial court made a

struc tural error in incorrectly admonishing him that he was not eligibl e for community supervision, rests on the same premises as his ineffective

- assistance claim. Our conclusion that the evidence at trial conclusively proved that the

c omplainant was less than fourteen years old years old at the time of the charged offense establishes that the trial court’s admonishment was correct and, therefore, disposes of Rodriguez’s second issue

. See, e.g. , Campbell v. State , 189 S.W.3d 822, 824 (Tex. App.

— Houston [1st Di st.] 2006, no pet. ) (overruling point of error that was based on mistaken premise). Conclusion We conclude that Rodriguez’s trial counsel and the tri al court correctly
informed Rodriguez that he was not eligible for community s upervision

. We therefore a ffirm the trial court’s judgment of conviction

.8 Rebeca Huddle Justice Panel consists of Justices Higley, Huddle, and Lloyd. Do not publish. T EX
. R. A PP
. P

. 47.2(b).