David Ruiz v. State
Opinion
ACCEPTED
14-15-00285-CR
FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS
12/23/2015 10:46:03 AM CHRISTOPHER PRINE
CLERK
NO. 14-15-00285-CR
IN THE FOURTEENTH COURT OF APPEALS FILED IN 14th COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS 12/23/2015 10:46:03 AM CHRISTOPHER A. PRINE
Clerk
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 ASSISTANT CRIMINAL DISTRICT ATTORNEY STATE BAR NO. 24046225
JACK ROADY CRIMINAL DISTRICT ATTORNEY
600 59TH STREET, SUITE 1001 GALVESTON TX 77551 (409) 770-6004, FAX (409) 621-7952 rebecca.klaren@co.galveston.tx.us
ORAL ARGUMENT WAIVED
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, Texas
ii
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 witnesses 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 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 28
I. Motion for New Trial Standard of Review 29
II. Ineffective Assistance of Counsel Relevant Law 30
III. Trial Counsel Was Not Deficient 33
IV. Ruiz Was Not Prejudiced 37
V. Conclusion—Ruiz Is Not Entitled To A New Punishment Hearing 42
iii
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 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 43
I. Motion for New Trial Hearing 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 50
iv
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. App.---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 [1st 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. App.---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 [14th 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 [1st Dist.] 2014, pet. ref’d). ....... .................................................................................................................. 40, 42, 47 Harrington v. Richter, 562 U.S. 86, 112 (2011)...............................................................33
v
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 [1st Dist.] 2008, pet. ref’d) ..32
Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.---Houston [14th Dist.] 2015, pet. ref’d)
...............................................................................................................................41
Lopez v. State, 462 S.W.3d 180, 188 (Tex. App.---Houston [1st 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. App.---Austin 2000, pet. ref d).....................44
Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.---Houston [1st 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, 48
vi
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. App.---Texarkana 1996, no pet.) ...............34
Washington v. State, 417 S.W.3d 713, 728 (Tex. App.---Houston [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
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ACCEPTED
14-15-00285-CR
FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS
12/23/2015 10:46:03 AM CHRISTOPHER PRINE
CLERK
NO. 14-15-00285-CR
IN THE FOURTEENTH COURT OF APPEALS FILED IN 14th COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS 12/23/2015 10:46:03 AM CHRISTOPHER A. PRINE
Clerk
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 ASSISTANT CRIMINAL DISTRICT ATTORNEY STATE BAR NO. 24046225
JACK ROADY CRIMINAL DISTRICT ATTORNEY
600 59TH STREET, SUITE 1001 GALVESTON TX 77551 (409) 770-6004, FAX (409) 621-7952 rebecca.klaren@co.galveston.tx.us
ORAL ARGUMENT WAIVED
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, Texas
ii
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 witnesses 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 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 28
I. Motion for New Trial Standard of Review 29
II. Ineffective Assistance of Counsel Relevant Law 30
III. Trial Counsel Was Not Deficient 33
IV. Ruiz Was Not Prejudiced 37
V. Conclusion—Ruiz Is Not Entitled To A New Punishment Hearing 42
iii
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 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 43
I. Motion for New Trial Hearing 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 50
iv
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. App.---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 [1st 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. App.---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 [14th 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 [1st Dist.] 2014, pet. ref’d). ....... .................................................................................................................. 40, 42, 47 Harrington v. Richter, 562 U.S. 86, 112 (2011)...............................................................33
v
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 [1st Dist.] 2008, pet. ref’d) ..32
Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.---Houston [14th Dist.] 2015, pet. ref’d)
...............................................................................................................................41
Lopez v. State, 462 S.W.3d 180, 188 (Tex. App.---Houston [1st 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. App.---Austin 2000, pet. ref d).....................44
Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.---Houston [1st 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, 48
vi
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. App.---Texarkana 1996, no pet.) ...............34
Washington v. State, 417 S.W.3d 713, 728 (Tex. App.---Houston [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
TEX. PENAL CODE §12.33 .........................................................................................41
TEX. PENAL CODE §22.011(f) ....................................................................................41
RULES
TEX. R. APP. P. 21.7 ...................................................................................................44
TEX. R. APP. P. 21.8(c)...............................................................................................30
TEX. R. EVID. 602............................................................................................... 38, 39
TEX. R. EVID. 801(d) .......................................................................................... 38, 39
TEX. R. EVID. 802 .............................................................................................. 38, 39
vii
NO. 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, Criminal District Attorney for Galveston County, Texas,
and files this brief for the 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”.
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 over one year, the State moved to adjudicate
Ruiz’s guilt and revoke his community supervision. After hearing evidence that Ruiz
essentially did nothing on probation, the trial court found 12 probation violations true,
adjudicated Ruiz’s guilt, and sentenced him in 20 years confinement. Ruiz raises 2 issues
on appeal.
In his first issue, Ruiz claims his trial counsel was ineffective for failing to
investigate his case and present mitigation evidence. Ruiz claims counsel should’ve
spoken to his mother and sister. He claims the women were available to testify and
would’ve told the court that Ruiz was sexually abused by his step-father and had a head
injury. In his second issue, Ruiz claims the trial court abused its discretion by not
granting a hearing on his 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 information 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 law without a hearing, the court found the affidavits would
not have impacted its punishment choice. Consequently, Ruiz’s first and second issues
should be overruled.
STATEMENT OF FACTS
Ruiz pled guilty and in exchange for 6 years deferred community supervision for
sexually assaulting his 8 year old sister over an extended period of time.1 Within 13
months of his plea, he began violating his probation.2 The probation department filed a
motion to adjudicate.3 Over the next two years, they amended it four times, each time
alleging more violations.4
At the motion to adjudicate hearing, Ruiz pled true to not participating in
community service and failing to comply 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, that 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 every 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 (judgment and sentence); R.R.II: 39. 2 C.R. 33 (motion to adjudicate guilt-revoke community 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.
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 commit a new crime, but he did by failing to register as a
sex offender.9
Ruiz was supposed to register with the Texas City Police Department as a sex
offender and give notice to law enforcement and the probation department
before changing his address.10 He didn’t give notice when he moved.11
Ruiz was supposed to notify the probation department of any changes in address,
employment, and arrests within 48 hours.12 For more than a week, he didn’t
report the failure to register charge or that he was transient.13
Ruiz was supposed to report to the probation officer at least once a month as
directed by the officer.14 He didn’t report in December 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.
paid $260 of the $2,505 he owed as of the revocation hearing.17 The probation
officer talked to Ruiz several times 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 promised to make a payment towards his
fees. But, again, he did not.22
Ruiz was supposed to attend and participate in psychological counseling for sex
offenders.23 He didn’t.24 He had sporadic attendance and incurred no-show fees.25
He stopped going completely 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 unmonitored access to the internet.28 The
probation officer found a Facebook account 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.
Facebook post as hearsay and 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 identify any equipment that had access to the internet.36 He
violated this term by making Facebook posts from a mobile device.37
The probation officer testified she was aware of the basics of Ruiz’s underlying
case because she has to have access to his threat level, must use the information to
determine the level of supervision to provide him, and may need 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 told 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.
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 that she was aware Ruiz and
his sister were victims of sexual assault perpetrated by their step-father.45 She testified
she wasn’t Ruiz’s probation officer when he first began probation, 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 learned 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 borrow $10 from his mother 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 about 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.
daily.52 She told the court the defense attorney first informed her that Ruiz was having
mental issues in the jail.53
The Galveston County Sheriff’s sex offender registration compliance officer
explained that a person has 7 days to register with her office.54 She testified the
probation department did the initial 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 registration form Ruiz did with
the compliance officer.56 The compliance officer testified the form documents her first
interaction with Ruiz.57
The form shows Ruiz has a lifetime duty to register as a sex offender.58 He’s
supposed to register annually, 30 days 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 chance 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.
saying he understood the registration requirements.63 Ruiz initialed that he understood
he was required to register with the municipality or the county where he’s going to live
for more than 7 days.64 He initialed that he must verify 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 testified Ruiz was required to notify the sheriff’s
office and the probation department if he stays more than 48 hours at another address
three times in a month.68 The compliance officer testified 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 testified she underlined key words 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.
believed Ruiz understood her instructions.74
The compliance officer also testified that in May, she tried to contact Ruiz at the
address he provided to make sure he was living there.75 Ruiz wasn’t there, so the officer
left a hanger on the gate with a message 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 went 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 registration 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.
make the notification.87
The sex offender registration compliance officer testified 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 officer that he was not living there.92 The
compliance officer took a written statement from the resident.93 Over trial counsel’s
objection, the court admitted the statement.94 The resident stated Ruiz hadn’t lived 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, September, or October to register.96 The officer testified that when
she talked to Ruiz on Halloween, he asked her for another chance to register.97 She told
him no.98 The officer testified Ruiz was supposed to give her 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.
employment.100
On cross-examination, the compliance officer testified she didn’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 that’s a requirement in the sex offender form that Ruiz initialed,
signed, and had a copy of).102 The officer testified she did have paperwork that Ruiz
reported to a Texas City Police sex offender compliance officer.103 She agreed that it was
possible that in October, Ruiz was living in Texas City.104 The officer testified that Ruiz
was required to give the sheriff’s office 7 days’ notice if he moved to Texas City.105
On re-direct, the compliance officer testified she filed against Ruiz for his failure
to give 7 days’ notice 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 usually 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.
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 grandmother in Texas City on Halloween.113 He claimed
he told his probation officer and the Texas City police compliance officer where he was
living.114 He claimed he contacted the Texas City officer within 7 days of moving
there.115 He said the probation officer and the Texas City compliance officer went to his
grandmother’s house.116 He told the court that he believed the probation officer and the
Texas City officer would contact 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 officer’s testimony, Ruiz told the court that he did report
to the probation officer in December 2012, January 2013, February 2013, March 2013,
April 2013, November 2013, December 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.
Ruiz claimed he was never told a specific amount of money he was supposed to
pay the probation department each month.123 He said he paid something, but getting a
job was hard.124 He said he had several jobs, but when they ran 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 probation officer’s testimony
to the contrary, said that the therapist wasn’t going to allow him to make 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 testify 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.
relevance.136 The trial court sustained the objection.137
Ruiz explained that before this, he was living with his mother.138 He told the court
he wasn’t allowed to live there anymore because of the probation 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 believed he had family support.142
Ruiz told the court that he’s gone over the probation 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 anxiety, 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.
that.”149 He told the court the in injury caused seizures.150
Ruiz asked the court 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 house to go to as well.156
On cross-examination, Ruiz said his accident happened a few years back.157 He
said he couldn’t remember how it happened, though he remembered 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 probation since being incarcerated because
he went to the law library and asked different officers to explain it to him.160
Ruiz claimed he didn’t understand that he committed another offense until he
went to the law library.161
Ruiz said he thought he’d be alright if he paid off all his 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.
probation.162 He told the court he didn’t know not paying would be a violation or that
paying a little amount would be a violation.163 He said he didn’t know 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 $4,000 he received on his 21st birthday went, Ruiz said he had to
pay the person he was living with.166 He admitted he paid nothing towards his probation
fees.167 He claimed when he got the money, he was still going to the sex offender
therapist and he spent it all before quitting therapy.168
Ruiz admitted he wasn’t discharged from the sex offender course.169 He repeated
he stopped going because he was supposed to start paying.170 Then he agreed that the
payments were no-show fees.171 Ruiz, contrary to the probation officer’s testimony, said
he didn’t tell the officer he had $110 of the $120 for 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.
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 girlfriend since “I was 18, 18
½.”176 He said they’ve been together “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 years, the girl would’ve been 14 when
they got together.180 Ruiz said that’s not his testimony.181
After showing Ruiz something not in evidence, the 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 together 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 since 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.
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 “astonishing” 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 probation when the photo was taken.192
The State showed Ruiz the sex offender registration requirements he signed,
initialed, and put his fingerprint on.193 Ruiz admitted the initials, fingerprint, and
signature were his.194 Ruiz said that despite his print, initials, and signature, he didn’t
know he was supposed to tell the 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, his 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.
counsel permission.200 Then there was a discussion off the record.201 Counsel said Ruiz’s
mother had to go to work.202
Trial counsel called Ruiz’s cousin as a character 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, that the witness might be better suited for that.205 If not, the State
said it would change its objection.206 The court asked the State if it was going to present
a victim impact statement or any evidence during punishment.207 The State said no.208
The court said, “Why don’t we allow him to begin to testify. 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 told the court
he’s assisting Ruiz in finding steady employment.212 He said he’s always known Ruiz to
be a hard worker.213 He told the court that Ruiz always 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.
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 remain on probation.220 He told the court that, in his opinion, Ruiz would
do well if he was allowed back on probation.221
On cross-examination, Ruiz’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 stipulations---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 witnesses, the trial court asked counsel for
closing arguments.226 The State argued Ruiz has done 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.
of head injury,” but heard nothing to justify a complete lack of effort on probation.228
The State pointed out that Ruiz changed his story about his 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, despite pleading guilty to forcefully having sex with his 8 year
old sister.230 The State’s attorney told the court he wasn’t the prosecutor at the time of
the plea, but there was a reason Ruiz was given a chance.231 The State argued since Ruiz
received his chance, he had a $6,500 windfall, but paid $260 out of $5,000 to
probation.232 He stopped therapy.233 He didn’t do any 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 your 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.
a gift for anybody.”240 Counsel reminded the court that Ruiz was also sexually abused
and was a child when these heinous acts first started.241 Counsel agreed that she, like the
current prosecutor, was not the lawyer 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.
evidence to support the allegations in the State’s motion 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 31st 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 212th 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.
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 currently $25.00 in arrears;
8. Said Defendant did fail to pay the Sexual Assault Program Fund fee as ordered and is currently$ 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 court asked if either side had any motions,
requests, or anything additional to present for punishment.252 The State replied that if
this is the punishment phase, it would move to interject all the evidence presented
during the hearing to be considered and then asked the court to sentence Ruiz to 20
251 R.R.II: 119; C.R. 91-92 (fourth amended motion to adjudicate, alleging Ruiz’s probation violations). 252 R.R.II: 119.
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 and presenting mitigating evidence.256 He argued (as he does on appeal)
that his mother and his sister (a sister he wasn’t convicted of sexually assaulting) were
available to testify.257 He attached affidavits from both.258 Ruiz’s mother and sister
claimed they would’ve testified and were available if counsel 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 looked for her in the
courthouse. Both women said his step-father sexually assaulted Ruiz.261 Both women
claimed Ruiz was forced by his step-father to have sex with his sister.262 Ruiz’s mother
said his innocence was stolen.263 Both said Ruiz fell, fractured skull, and had seizures.264
Ruiz’s sister said he has trouble understanding 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.
multiple times.265 Ruiz’s mother claimed he was depressed, told her he had nothing left,
and that he mentioned suicide.266
Ruiz presented the motion with the 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 TEX. R. APP. P. 21.8(c) (providing motion for new trial is deemed denied absent timely ruling by written order).
FIRST ISSUE
Counsel showed the State’s witnesses 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 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 trial counsel was ineffective for
not investigating and presenting mitigating evidence during the revocation hearing. He
contends his mother and his sister (one of the sisters he wasn’t convicted of sexually
assaulting) were available and willing to testify. According 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 sister’s and mother’s
affidavits were credible, Ruiz hasn’t shown counsel was deficient or that he was
prejudiced. He also hasn’t shown he would’ve received a lesser sentence. The trial court
set his punishment. The trial court heard the testimony of Ruiz’s probation officer and
the sex offender registration compliance officer. The trial court heard that Ruiz did very
little to comply with his probation. The trial court found he violated 12 conditions of his
probation---including failing to complete his sex offender therapy 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. Clearly the court did not
find the affidavits compelling.
The trial court didn’t abuse its discretion by denying Ruiz’s motion. Ruiz is not
entitled to new punishment 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, reversing only if the trial 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 review requires the appellate court to
view the evidence in the light most favorable to the trial court’s ruling.275 The reviewing
court may not substitute its own judgment for that of the trial court and must uphold
272 R.R.II: 119; C.R. 123 (judgment adjudicating guilt).
273 Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012).
274 Id.
275 Id.
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 permissible views of the evidence, the 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 ruling or overruled by
operation of law.279
II. Ineffective Assistance Of Counsel Relevant Law
To establish ineffective assistance of counsel, 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 defeats the claim of ineffective assistance.281
Strickland’s first prong requires the appellant to show that his counsel’s
276 Id.
277 Id.
278 Id.
279 See TEX. R. APP. 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 appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to consider the other prong.”).
performance fell below an objective standard of reasonableness.282 Strickland’s second
prong requires the appellant to demonstrate 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 the time of trial, not through hindsight.285 The fact
that Ruiz’s appellate attorney might have pursued a different course does not support a
finding of ineffectiveness.286 The issue is whether 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 counsel’s conduct fell
within the wide range of reasonable professional assistance, and, therefore, the appellant
must overcome the presumption that the challenged action constituted “sound trial
strategy.”288 The appellate review is highly deferential 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 (Tex. Crim. App. 1992); Gholson v. State, 5 S.W.3d 266, 273 (Tex. App.---Houston [14th 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.
does not speculate regarding counsel’s trial strategy.289 To prevail on an ineffective
assistance claim, the appellant must provide an appellate record that affirmatively
demonstrates that counsel’s performance was not based on sound strategy.290
Trial counsel is required to seek out and interview potential witnesses as a part of
his investigation of the 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 that the factfinder did not hear due to counsel’s failure to
investigate.293
When the ineffective assistance of counsel 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 demonstrate 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 [1st Dist.] 2008, pet. ref’d). 295 Strickland, 466 U.S. at 694.
the proceeding.”296 “The likelihood of a different result must be substantial, not just
conceivable.”297 When defense counsel presents “no evidence of mitigating factors . . .
to balance against the aggravating factors presented 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 reviewing 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 conceded 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 [1st Dist. 2015, no pet.) (quoting Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.---Houston [1st 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]efense counsel’s failure to interview or call a single witness, other than appellant, deprived him of the possibility 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 [1st Dist.] Nov. 10, 2015, no pet. h.) (finding that when a judge sentences a defendant 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).
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 injury and sexual abuse history. However, the
evidence during the revocation hearing shows counsel was aware of Ruiz’s history and
presented evidence of both during the hearing.
The record shows counsel cross-examined the probation officer and the sex
offender compliance officer about their ignorance of Ruiz’s head injury. Counsel
showed the probation officer wasn’t aware that Ruiz was on medication. Counsel also
asked whether the probation officer knew Ruiz was a sexual abuse victim. Counsel
questioned the probation officer and the sex offender registration compliance officer
regarding Ruiz’s understanding of the terms of his probation. Moreover, counsel
presented the head trauma and sexual abuse mitigation evidence through Ruiz. Ruiz
testified he was taking seizure and depression medicine. He told the court his step-father
sexually abused him. He said he had a traumatic fall that left him in the hospital for a
long time and caused seizures. Counsel used the mitigating evidence in closing
argument. She argued Ruiz was a victim, had head trauma, and should receive another 301 Notably, Ruiz pled true to 2 of the revocation 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 rendering 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.---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.”)).
chance to redeem himself. If counsel had not investigated Ruiz’s case, she wouldn’t have
been able to effectively cross-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 unaware of the defendant’s mental
health history and didn’t participate in collecting mitigating evidence302 or counsel in
Shanklin who admitted he didn’t conduct 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 because his mother left the revocation hearing without
testifying.305 According to Ruiz’s mother’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 not to seek a continuance when the only witness who could
corroborate the defendant’s version 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 below, 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 punishment 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.
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 because of the injury. Ruiz also testified he
was sexually abused by his step-father. Unlike Frangias, where the defendant was
deprived of evidence that could’ve proven his innocence,307 here there already was
mitigation evidence in front of the court and (as discussed below) the additional
evidence wouldn’t have impacted the trial court’s punishment choice.
Importantly, there is some evidence in the 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 later canceled motion for new
trial hearing. Neither woman accepted the subpoenas, despite multiple attempts to serve
them and notes left at their homes.308 In fact, the serving officer 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 deficient. 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 locate); 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.
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 deficient, 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 the content in their affidavits. An ineffective assistance of
counsel claim fails if prejudice isn’t proven.313
Unlike the defendants in Lopez314 and Shanklin315 who were denied the effective
assistance of counsel because their lawyers utterly failed to present any mitigating
evidence, Ruiz’s trial counsel did offer mitigating evidence. While Ruiz attempts to
downplay his testimony, he did testify at the revocation hearing about his fractured skull,
that it affected his ability to do probation, and that he only recently understood the
terms of his probation after discussing the 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 mother 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 deficient performance.”) (emphasis added).
that Ruiz fell from an elevated porch and suffered 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-husband. She described her “understanding” of the charges
against her ex-husband. Ruiz’s mother did not say she had personal knowledge of the
abuse. Her “understanding” was based on what Ruiz told her. This portion of her
testimony wouldn’t have been admissible at a hearing or during a trial.316 She said Ruiz
lost his innocence and that “I think” he stopped eating 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 admissible at a hearing.317
Ruiz’s sister said in her affidavit that Ruiz fell and fractured his skull. She said he has a
hard time understanding instructions and is very slow. She said 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 TEX. R. EVID. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal 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 . . . .”); TEX. R. EVID. 802 (stating hearsay is not admissible); TEX. R. EVID. 801(d) (defining “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). 317 See TEX. R. EVID. 602; TEX. R. EVID. 801(d); TEX. R. EVID. 802.
318 See TEX. R. EVID. 602; TEX. R. EVID. 801(d); TEX. R. EVID. 802.
To raise the specter of ineffective assistance of counsel, the proffered witness
evidence must be more than cumulative of other evidence.319 His mother’s and sister’s
evidence was cumulative of his own testimony. Ruiz hasn’t shown ineffective assistance
of counsel.
Furthermore, Ruiz hasn’t shown that the allegedly new evidence substantially
differed from the evidence actually presented to the trial court.320 The trial court already
knew Ruiz fell years before and had head trauma. The court knew Ruiz was on
medication for seizures and depression. The court knew Ruiz was a sexual abuse victim.
Because the trial court was aware of this evidence when it sentenced Ruiz, Ruiz wasn’t
prejudiced by his counsel’s alleged failure to investigate and present the additional
mitigating evidence.321
Moreover, as in Smith and Goody322 and unlike in Shanklin,323 the trial court here
presided over both the revocation hearing and 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 mitigation 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. App. 2006) and holding that appellant didn’t show that the new mitigating evidence “differ[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 applicant suffered during his childhood, there is not a reasonable probability that the unadmitted alleged mitigating evidence would have tipped the scale in applicant’s favor,” despite the omitted mitigating 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 [1st Dist.]
2014, pet. ref’d). 323 See Shanklin, 190 S.W.3d at 157 (noting defendant convicted and sentenced by jury).
had the witness affidavits before her when she allowed the motion to be overruled.324 As
evidenced by the trial court’s denial, the judge did not find the affidavits persuasive
enough to alter her punishment decision.325 The reviewing court should 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 influenced 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 failed 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 establish prejudice where same judge who sentenced defendant also considered motion for new trial and determined additional testimony would not have influenced punishment assessment); Arriaga v. State, 335 S.W.3d 331, 336-37 (Tex. App.---Houston [14th Dist.] 2010, pet. ref’d) (in part holding that “In the absence of a hearing on the appellant’s motion for new trial, we presume that (1) the trial court knew from the motion for new trial and the affidavit what Carlos’s testimony at a hearing would be; and (2) even assuming any such testimony to be accurate and reliable, the trial court knew the facts alleged in the motion would not have influenced its ‘ultimate normative judgment’ in assessing punishment within the statutory range. . . . Thus, the trial court could have concluded without the necessity of a hearing that the appellant suffered no prejudice from any alleged deficiency 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.
precedent.330 Additionally, under Ruiz’s request, 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 trusted to know what would influence their
punishment sentences.
Lastly, the trial court’s decision to punish Ruiz with the maximum sentence for
sexual assault of a child331 was justified by the evidence. Ruiz pled true to 2 probation
violations. The trial court found he violated 10 more. He didn’t continue participating in
sex offender treatment. He wasn’t reporting to his probation officer. He didn’t do his
community service or his polygraph. He was also seeing an underage girl. And he
committed a new criminal offense 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 Entitled To A New Punishment
330 See Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.---Houston [14th 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 matters. This being so, no other court of this state has authority to overrule or circumvent its decisions, or disobey its mandates.”). 331 TEX. PENAL CODE §22.011(f) (sexual assault of a child is a 2nd degree felony); TEX. PENAL CODE §12.33 (2nd 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 presented no other mitigating evidence).
Hearing
It was Ruiz’s burden to establish his trial counsel was deficient and the deficiency
prejudiced him.333 Even if the trial court or this Court 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 require this Court to assume 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 mother’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 rebuttal 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.
SECOND ISSUE
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 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 abused its discretion by not
granting a hearing on his motion for new trial because he raised matters not
determinable from the record that could entitle him to relief. Ruiz relies on his claim that
he raised and proved ineffective assistance of counsel for failing to investigate and
present his mother’s and sister’s testimonies. He contends he rebutted the presumption
that trial counsel was effective and, consequently, there should’ve been a hearing to
allow counsel to explain her trial strategy.
The trial court didn’t abuse its discretion 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 grounds showing he could potentially be entitled to relief.
I. Motion For New Trial Hearing Relevant Law
An appellate court reviews the trial court’s decision on whether to hold a hearing
on a defendant’s motion for new trial for abuse of discretion.336 A trial court abuses its
discretion only when its decision lies outside the zone of reasonable disagreement.337 A
trial court “abuses [its] discretion in failing to hold a hearing if the motion and
accompanying affidavits: (1) raise matters which are not determinable 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 motion 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 new trial unless he establishes
the existence of reasonable grounds showing that the defendant could be entitled to
relief.”342
In the context of a motion for new trial 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 TEX. R. APP. P. 21.7 (“The court may receive 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.
entitled to a hearing on the motion if he alleges 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 influenced 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 respect to the punishment.346
II. The Trial Court Did Not Abuse Its Discretion By Denying A
Hearing On Ruiz’s Motion For New Trial
Here, the trial judge that revoked Ruiz’s deferred community supervision and
sentenced Ruiz, also signed Ruiz’s certification of presentment of motion for new trial.
The motion included Ruiz’s mother’s and sister’s affidavits. The same judge set a hearing
on the motion and then denied the hearing. The same judge allowed the motion to be
343 Id. at 340-41.
344 Id. at 344-45.
345 Id. at 344.
346 Id. at 345.
overruled by operation of law. The judge already had the opportunity to evaluate Ruiz
and his trial counsel during the revocation hearing. The judge was familiar with the facts
of the case. And the judge was familiar with the issues raised in the motion---ineffective
assistance of counsel, investigation, and presentation of punishment mitigation evidence.
The trial court could’ve reasonably concluded, based on the record and
witnessing counsel’s performance during the revocation hearing, that counsel was not
deficient.
The record reflects that trial counsel made proper objections. Indeed, she
successfully kept out potentially harmful Facebook posts. She cross-examined the State’s
witnesses. She got both the probation officer and the sex offender compliance officer to
admit they were not familiar with Ruiz’s head injury. Counsel’s implication being the
witnesses didn’t know what deficits Ruiz may have in regards 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 didn’t know Ruiz was on or
needed medication.
Additionally, counsel called both Ruiz and his cousin for the defense. As
discussed in response to Issue 1, unlike the defendants in Lopez or Shanklin who were
totally deprived of the presentation of any mitigating evidence, Ruiz’s trial counsel did
present mitigation.347 Counsel elicited testimony from Ruiz that he suffered a head
347 See Lopez, 462 S.W.3d at 189-90; Shanklin, 190 S.W.3d at 164.
injury, was a victim of sexual assault, and was taking a cocktail of medications to help
with seizures and depression.
Moreover, in closing arguments, counsel stressed Ruiz was 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, despite 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 Smith348 and a line of similar cases cited in response
to Ruiz’s first issue, the trial judge could’ve reasonably concluded without conducting a
hearing that the affidavits didn’t establish the existence of reasonable grounds showing
that he could be entitled to relief.349 The trial court could’ve reasonably concluded that
trial counsel’s alleged deficiency would not have affected her punishment decision.350
Ruiz failed to raise matters which were not determinable from the record and
failed to establish reasonable grounds showing 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, 01-14-00390-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. 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.
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.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment
of the trial court be affirmed in all respects.
Respectfully submitted,
JACK ROADY CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY, TEXAS
/s/ Rebecca Klaren
REBECCA KLAREN Assistant Criminal District Attorney State Bar Number 24046225 600 59th Street, Suite 1001 Galveston, Texas 77551 Tel (409)770-6004/Fax (409)621-7952 rebecca.klaren@co.galveston.tx.us
CERTIFICATE OF SERVICE
The undersigned Attorney for the State certifies a copy of the foregoing brief was
sent via email, eFile service, or certified mail, return receipt requested, to Kyle Verret,
attorney for David Ruiz, at kyle@verretlaw.com or 2029 Strand Suite 3, Galveston, Tx
77550, on December 23, 2015.
/s/ Rebecca Klaren
REBECCA KLAREN Assistant Criminal District Attorney Galveston County, Texas
CERTIFICATE OF COMPLIANCE
The undersigned Attorney for the State certifies this brief is computer generated,
and consists of 11,391 words.
/s/ Rebecca Klaren
REBECCA KLAREN Assistant Criminal District Attorney Galveston County, Texas
David Ruiz v. State (David Ruiz v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.