Francisco Salazar v. State

• Court: Court of Appeals of Texas
• Decided: May 23, 2018
• Docket: 09-17-00114-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-17-00113-CR NO. 09-17-00114-CR NO. 09-17-00115-CR ____________________

FRANCISCO SALAZAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 11-05-05000-CR (Counts 1, 2 & 3)

MEMORANDUM OPINION

Appellant Francisco Salazar appeals his convictions for one count of

continuous sexual abuse of a child, one count of indecency with a child by sexual

contact, and one count of sexual assault of a child. See Tex. Penal Code Ann.

§§ 21.02(b), 21.11(a)(1), 22.011(a)(2)(B) (West Supp. 2017).1 A jury found Salazar

1 We cite to the current version of statutes, as subsequent amendments do not affect the disposition of this appeal. 1 guilty on all three counts and assessed punishment at forty years for continuous

sexual abuse of a child, ten years for indecency with a child by sexual contact, and

twenty years for sexual assault of a child, to be served concurrently. Salazar raises

four issues on appeal. We affirm.

Procedural Background

A grand jury originally indicted Salazar on February 23, 2010, and re-indicted

him on July 29, 2010. He was then indicted again on May 5, 2011. Salazar was tried

under the May 5th indictment for one count of continuous sexual abuse of a child,

one count of indecency with a child by sexual contact, and one count of sexual

assault of a child. The May 5th indictment2 alleged, in relevant part, the following:

Francisco Salazar, hereinafter styled Defendant, . . . during a period that was 30 or more days in duration, to-wit: from on or about November 14, 2007 through November 29, 2008, when the defendant was 17 years of age or older, commit two or more acts of sexual abuse against [E.G.], a child younger than 14 years of age, namely, Indecency with a Child, by having [E.G.] touch the sexual organ of the defendant[,] and Sexual Assault of a Child, by the defendant’s sexual organ to contact or penetrate the mouth of [E.G.].

. . . on or about July 1, 2007 in Montgomery County, Texas, Francisco Salazar, hereinafter styled Defendant, did then and there, with intent to

2 We use initials herein to refer to the alleged victim and relational nouns to refer to family members and juveniles. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”).

2 arouse and gratify the sexual desire of the Defendant, engage in sexual contact by touching the breast of [E.G.], a child younger than 17 years of age and not the spouse of the defendant,

. . . on or about December 13, 2009 in Montgomery County, Texas, Francisco Salazar, hereinafter styled Defendant, did then and there intentionally or knowingly cause the penetration of the mouth of [E.G.], a child, by the defendant’s sexual organ, or intentionally or knowingly cause the defendant[’]s sexual organ to contact or penetrate the mouth of [E.G.], a child[.]

Salazar pleaded not guilty to all counts. The case was tried to a jury in July of 2011.

The jury found Salazar guilty on all three counts.

On August 2, 2011, Salazar’s trial counsel filed a motion for new trial and

motion in arrest of judgment, a motion for a free reporter’s record on appeal, and a

motion to withdraw. In the motion for new trial, Salazar argued the verdict “was

contrary to the law and evidence[,]” and that he was entitled to a new trial “in the

interest of justice.” On October 12, 2012, the trial court granted the motion to

withdraw. On July 29, 2013, Salazar filed notices of appeal, which this Court

dismissed as untimely. See Salazar v. State, Nos. 09-13-00341-CR, 09-13-00342-

CR, & 09-13-00343-CR, 2013 Tex. App. LEXIS 12003 (Tex. App.—Beaumont

Sept. 25, 2013, no pet.) (mem. op., not designated for publication).

On May 25, 2016, Salazar filed an application for a writ of habeas corpus in

which he argued he had been denied the effective assistance of counsel because his

trial counsel had not filed a proper motion for new trial or appeal. On February 15, 3 2017, the trial court issued findings of fact and conclusions of law, recommending

that Salazar be permitted an out-of-time appeal but recommending that the relief be

denied as to filing an out-of-time motion for new trial. In the habeas proceeding, the

Court of Criminal Appeals found that Salazar was entitled to an out-of-time appeal

and ordered that “[a]ll time limits shall be calculated as if the sentence had been

imposed on the date on which the mandate of this Court issues.” Ex parte Salazar,

No. WR-86,489-01, 2017 Tex. Crim. App. Unpub. LEXIS 209, at *2 (Tex. Crim.

App. Mar. 22, 2017, orig. proceeding) (not designated for publication). On March

28, 2017, Salazar filed notices of appeal.

On May 16, 2017, Salazar filed another motion for new trial and therein he

requested an evidentiary hearing, complained of ineffective assistance of counsel,

the improper admission of certain evidence during the punishment phase, and he

sought a new trial “in the interest of justice.” On May 25, 2017, the trial court entered

an Order finding that the motion for new trial was “timely presented[]” to the trial

court. On that same date, the trial court also entered an Order denying the motion for

new trial, stating as follows:

On the 25th day of May, 2017, came on to be considered the Defendant’s Motion for New Trial. Having considered the motions, exhibits, evidence and/or arguments of counsel, the court is of the opinion that the motion should be: Denied.

4 The record reflects that on May 26, 2017, Salazar filed a “Motion for Court to Clarify

Basis for Denial of Motion for New Trial.” In the motion, Salazar alleged that, at a

hearing on May 25, 2017, the trial court explained it was denying the motion for new

trial not on its merits, but because Salazar did not have the right to file a motion for

new trial.3 In the motion, Salazar also indicated that the trial judge informed counsel

that he might also deny it on the merits, and further that the court would review the

motion and enter a ruling by the end of the day.

Evidence at Trial

Testimony of E.G.’s Sister, Mother, Aunt, and Grandmother

K.S., E.G.’s sister (“Sister” or “E.G.’s Sister”) testified that, in July of 2007,

she told her mother (“Mother” or “E.G.’s Mother”) that Salazar was touching E.G.

because E.G. had told the Sister it happened. E.G.’s Sister also testified that she did

not remember Salazar touching E.G. and that she did not believe Salazar did

anything wrong.

E.G.’s Mother testified that in July of 2007, when E.G. was twelve years old,

E.G. and K.S. approached the Mother one afternoon before Salazar got home.

According to the Mother, K.S. was worried and nervous, and E.G. was scared and

3 There is no reporter’s record for the hearing that Appellant contends occurred on May 25, 2017. We did not find anything in the record regarding whether the trial court ever ruled upon the motion to clarify. 5 upset. The Mother explained that E.G. told her that Salazar had touched her breasts.

And, she testified that, when Salazar got home, she confronted him about what E.G.

had reported, and Salazar said “it was a mistake[,]” that he was sorry, and that it

would never happen again.

According to E.G.’s Mother, she learned of another outcry from the Mother’s

sister, E.G.’s “Aunt.” The Aunt told E.G.’s Mother that E.G. made an outcry to the

Aunt on January 3, 2010, when E.G. was fifteen years old. The Aunt also testified

at the trial.

According to the Aunt, when she learned from E.G. what had happened to

E.G., E.G.’s grandmother (“Grandmother”) and Aunt decided to go to Houston to

get E.G. The Grandmother and Aunt testified that, upon arriving in Houston, they

informed E.G.’s Mother about what E.G. had told the Aunt, they picked up the

children, and called the police. After talking with police, they went to the house to

get clothes, and then drove back to Victoria, where the Aunt and Grandmother lived.

E.G.’s Mother also testified that, as they were leaving the family home, she

saw that E.G. had Salazar’s phone, and the Mother took the phone and kept it

because she knew they needed the phone. E.G.’s Sister also testified that she recalled

finding a phone lying on top of a car, and that she and E.G. tried to find a video that

may have been on the phone.

6 E.G.’s Testimony

E.G. testified that Salazar is her stepfather and that she was sixteen years of

age at the time of trial. E.G. explained that in July of 2007, she told her Sister that

Salazar had touched her inappropriately on the chest. According to E.G., at that time,

the touching had been going on for “a couple of months.” E.G. testified that Salazar

touched her inappropriately “[m]ore than 20[]” times before she told anyone about

it. E.G. recalled that when she told her Sister and Mother about the touching, they

were angry with Salazar, and Salazar put his hands over his face and cried.

According to E.G., a few months later, Salazar asked E.G. to masturbate him

while he was driving her home from a birthday party. E.G. explained that she knew

that Salazar had ejaculated because he had worn a condom, and when he took it off,

“there was stuff in the condom.” E.G. testified that Salazar asked her to masturbate

him another time when they were in his bedroom watching television. E.G. recalled

this incident occurred before her youngest sister was born in March of 2008.

E.G. also testified about two occurrences when Salazar asked E.G. to give him

oral sex. E.G. explained that on one such occasion, E.G. believed that Salazar was

recording her with his phone because he was holding his phone out during the

incident. According to E.G., she masturbated Salazar “[f]our to five times[]” and she

performed oral sex on him “[t]hree to four[]” times. E.G. explained that she had told

7 her Sister and a teenaged male friend (“Friend”) about the first incident of oral sex,

and her Sister and her Friend encouraged her to tell an adult. E.G. testified that she

made her second outcry to her Grandmother.

According to E.G., when Salazar and her Mother fought, Salazar “would get

real angry and he would start throwing stuff.” E.G. explained that she felt that she

had torn her family apart and she was sad because her relationship with her Sister

was not good. E.G. also testified that she does not like living in Victoria because her

friends are not there.

Other testimony

Detective Tom Gannucci with the Montgomery County Sheriff’s Office

testified that he arranged for E.G. to be interviewed at Safe Harbor. According to

Gannucci, following E.G.’s interview, he drove to Victoria to retrieve a cell phone

from the Mother, from which he was eventually able to recover some images.

Gannucci testified that he had spoken with Salazar during his investigation, but he

did not get a statement.

Special Agent Stephen Santini with the Department of Homeland Security

testified that he became involved in the case pursuant to a request to analyze a cell

phone. Santini explained that he is assigned to a division of Homeland Security that

is involved with computer forensics in child exploitation cases. Santini also

8 explained that when an image has been deleted from a cell phone, it is not

recoverable if the first part of the image’s file has been overwritten.

Dr. Lawrence Thompson, the director of therapy and psychological services

at the Harris County Children’s Assessment Center, testified that some children

delay making an outcry due to fear, embarrassment, shame, or mixed feelings about

the perpetrator. Dr. Thompson agreed that false allegations of sexual abuse of a child

do occur. But, he further testified that false allegations of child sexual abuse are rare.

Kari Prihoda, a forensic interviewer with Children’s Safe Harbor testified that during

her interview with E.G., E.G. appeared sad. Prihoda also testified that E.G. gave

“lots of detail[]” especially as to sensory details during her interview.

Two of E.G.’s teenaged male friends also testified that E.G. had told them

about her concerns about Salazar’s conduct toward her.

Issues on Appeal

Appellant raises four issues on appeal. Appellant’s first issue argues that the

trial court abused its discretion in denying his motion for new trial. In his second

issue, he argues he was prejudiced by his trial counsel’s ineffective assistance. In his

third issue, Appellant argues the trial court erred in admitting certain photographs or

images during the punishment phase of trial. And in his fourth issue, Appellant

9 argues that the trial court abused its discretion in refusing to grant his request for an

evidentiary hearing on the issues raised in the motion for new trial.

Ineffective Assistance of Counsel Claim

Appellant’s second issue argues that he was prejudiced by the ineffective

assistance of his trial counsel. Specifically, Appellant alleges the following:

1. “Trial counsel failed to object to the State’s bolstering of the complaining witness’s testimony.”

2. “Trial counsel failed to object to the detective testifying about the Appellant’s express invocation of his right to remain silent.”

3. “Trial counsel failed to introduce the fact that [the Appellant] did provide an exculpatory statement to Investigator C.D. Holditch, Jr. after the State put forth evidence that the [sic] he did not provide a statement to the detective.”

4. “Trial counsel failed to investigate and present testimony from [Appellant’s stepfather] to contradict the testimony of the complainant.”

5. “Trial counsel failed to impeach the complainant with her prior inconsistent statement about the amount of times she was forced to give a ‘hand job.’”

6. “Trial counsel failed to impeach the complainant with her prior inconsistent statement about the amount of times she was forced to give him a ‘blow job.’”

7. “Trial counsel failed to question the complainant about her letter to [Appellant] on June 21, 2009.”

8. “Trial counsel failed to object to the testimony of more than one outcry witness as hearsay.”

10 9. “Trial counsel denied [Appellant] his constitutional right to testify.”

10. “Trial counsel failed to prepare for the punishment phase of the trial and failed to subpoena material character witnesses to testify on Appellant’s behalf.”

To establish that he received ineffective assistance of counsel, Salazar must

demonstrate that (1) counsel’s performance fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel’s

error(s), the result of the proceeding would have been different. See Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984). The party alleging ineffective

assistance has the burden to develop facts and details necessary to support the claim.

See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting

an ineffective-assistance claim must overcome the “strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance.”

See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Strickland,

466 U.S. at 689). An appellant’s failure to make either of the required showings of

deficient performance or sufficient prejudice defeats the claim of ineffective

assistance. 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.”).

11 The right to effective assistance of counsel ensures the right to “reasonably

effective assistance[,]” and it does not require that counsel must be perfect or that

the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.

Crim. App. 1984). The appropriate context is the totality of the representation;

counsel is not to be judged on isolated portions of his representation. See Thompson,

9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). Isolated

failures to object to improper evidence or argument ordinarily do not constitute

ineffective assistance of counsel. See id.; Ewing v. State, 549 S.W.2d 392, 395 (Tex.

Crim. App. 1977). In order to meet his burden regarding his claim that his counsel

was ineffective for failing to object to evidence, Appellant must also establish that

the trial court would have committed error in overruling such objection had an

objection been made. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App.

1996).

Ordinarily, on direct appeal, the record will not have been sufficiently

developed during the trial regarding trial counsel’s alleged errors to demonstrate in

the appeal that trial counsel provided ineffective assistance under the Strickland

standards. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012).

1. “Trial counsel failed to object to the State’s bolstering of the complaining witness’s testimony.”

12 Appellant complains that his trial counsel failed to object to certain testimony

by Dr. Lawrence Thompson on the basis that it impermissibly bolstered the

testimony of E.G. Appellant specifically notes the testimony of Dr. Thompson

wherein he testified that, based on his own experience as well as scientific literature,

between two and five percent of allegations of child sexual abuse are false and that

“those cases with false allegations could be ones that the prosecutor doesn’t bring to

court because they have a sense that there is a false allegation in the case.” According

to Appellant, Dr. Thompson’s testimony was inadmissible because it offered an

opinion that the class of persons to which the complainant belongs, namely children,

are typically truthful.

We review the trial court’s decision on the admission of evidence for abuse

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A

trial court abuses its discretion when its decision lies outside the zone of reasonable

disagreement. Id. We may not substitute our own decision for that of the trial court.

Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). “To show ineffective

assistance of counsel for the failure to object during trial, the applicant must show

that the trial judge would have committed error in overruling the objection.” Ex parte

White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (citing Vaughn v. State, 931

S.W.2d 564, 566 (Tex. Crim. App. 1996)).

13 “Bolstering” occurs when evidence is offered by a party to add credence or

weight to some earlier unimpeached piece of evidence offered by the same party.

Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993). Stated another way,

bolstering is

any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantively contributing “to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.”

Id. at 819-20 (emphasis in original) (quoting Tex. R. Evid. 401). A witness generally

may not testify directly as to the victim’s truthfulness, as it does not concern a subject

matter on which the testimony of an expert witness could assist the trier of fact and

invades the province of the jury to determine witness credibility. Wesbrook v. State,

29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (“The jury is the exclusive judge of the

credibility of witnesses and of the weight to be given testimony[.]”); Schutz v. State,

957 S.W.2d 52, 59 (Tex. Crim. App. 1997) (“Expert testimony does not assist the

jury if it constitutes ‘a direct opinion on the truthfulness’ of a child complainant’s

allegations.”); Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993) (citing

Duckett v. State, 797 S.W.2d 906, 914-15 (Tex. Crim. App. 1990)). “An expert who

testifies that a class of persons to which the victim belongs is truthful is essentially

14 telling the jury that they can believe the victim in the instant case[.]” Yount, 872

S.W.2d at 711.

Dr. Thompson testified that he does clinical, and not forensic, interviews.

According to Dr. Thompson, a clinical interview is not a “truth-finding mission[,]”

and the goal of a clinical interview is to understand a person’s issues in order to

provide psychological treatment. Based on our review of the record, we cannot say

that the sole purpose of Dr. Thompson’s testimony was to convince the jury of E.G.’s

credibility. See Cohn, 849 S.W.2d at 819-20. Dr. Thompson did not express an

opinion as to whether E.G.’s allegations had merit, whether she was a trustworthy

witness, or whether children as a class are truthful. On the record before us, Salazar

has not met his burden to show that the trial court would have committed error in

overruling such an objection had it been made. See Vaughn, 931 S.W.2d at 566. The

trial court’s decision to admit the complained-of evidence was within the zone of

reasonable disagreement and did not constitute an abuse of discretion. See Martinez,

327 S.W.3d at 736; see also Robles v. State, No. 10-12-00398-CR, 2013 Tex. App.

LEXIS 13790, at **6-7 (Tex. App.—Waco Nov. 7, 2013, pet. ref’d) (mem. op., not

designated for publication). Therefore, we cannot say the trial court would have

committed error in overruling a bolstering objection to Dr. Thompson’s testimony if

such objection had been made. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim.

15 App. 2004). Because Appellant has not shown deficient performance, we need not

consider whether prejudice resulted. See Williams, 301 S.W.3d at 687; Rylander,

101 S.W.3d at 110.

2. “Trial counsel failed to object to the detective testifying about the Appellant’s express invocation of his right to remain silent.”

Appellant argues that his trial counsel’s performance was deficient in that he

failed to object when Detective Gannucci testified that Salazar had not made any

kind of statement to him. The following exchange occurred when the State’s counsel

examined the Detective:

[State’s counsel]: Did you attempt to make contact with the suspect?

[Gannucci]: Yes.

[State’s counsel]: And did you get any kind of statement?

[Gannucci]: No.

[State’s counsel]: And did you actually speak with the suspect?

Attached to Salazar’s motion for new trial was a document Salazar characterized as

an excerpt from Detective Gannucci’s supplement to the offense report. The excerpt

includes the following: “On 01/13/10, I talked with the suspect via phone and asked

if [he] would come to the Magnolia Detective’s Office to give a statement. The

suspect said he hired an attorney and was told not to talk with me.” 16 Nothing on the face of this document expressly connects it to Detective

Gannucci. But even assuming the document could be authenticated and admitted,

we cannot say that it supports a conclusion that Salazar’s trial counsel’s performance

was deficient. Salazar does not argue that he was detained, in custody, or arrested at

the time he declined to give the statement to the Detective. See Miranda v. Arizona,

384 U.S. 436, 444-445 (1966) (explaining that Miranda rights apply to statements

made or silence invoked during custodial interrogation). As the Court of Criminal

Appeals has explained, “[i]n pre-arrest, pre-Miranda circumstances, a suspect’s

interaction with police officers is not compelled. Thus, the Fifth Amendment right

against compulsory self-incrimination is ‘simply irrelevant to a citizen’s decision to

remain silent when he is under no official compulsion to speak.’” Salinas v. State,

369 S.W.3d 176, 179 (Tex. Crim. App. 2012) (quoting Jenkins v. Anderson, 447

U.S. 231, 241 (1980) (Stevens, J., concurring). On the record before us, we find no

evidence that Salazar was subject to custodial interrogation at the time he declined

to give a statement to Detective Gannucci, and no Fifth Amendment protections

would have applied. See Salinas, 369 S.W.3d at 179. Therefore, the trial court would

not have erred in overruling a Fifth Amendment objection to Gannucci’s testimony

if such objection had been made, and we cannot conclude that Salazar’s trial counsel

failed to perform deficiently by failing to lodge such objection.

17 3. “Trial counsel failed to introduce the fact that Mr. Salazar did provide an exculpatory statement to Investigator C.D. Holditch, Jr. after the State put forth evidence that he did not provide a statement to the detective.” 10. “Trial counsel failed to prepare for the punishment phase of the trial and failed to subpoena material character witnesses to testify on Appellant’s behalf.”

We address these two complaints together as they both pertain to trial

counsel’s alleged failure to introduce certain evidence at trial. Appellant argues that

his trial counsel performed deficiently by failing to introduce evidence of an

“exculpatory” statement Salazar made to Investigator C.D. Holditch Jr. Attached to

Salazar’s motion for new trial is a document that includes a document labeled as

“Contact Narrative” by Investigator Holditch. The document’s footer reflects that it

was printed on July 18, 2011, at the Texas Department of Family and Protective

Services. The document also includes the following: “He denied any inappropriate

touching. He said years ago he and his children would wrestle on the floor but once

he noticed she was developing [] he stopped touching her at all.” Appellant also

argues that his trial counsel was deficient for failing to subpoena certain persons who

would have testified “to issues including, but not limited to, [] Salazar’s care and

love for his family and friends, his hard working character, and their opinion that he

is a good person.” Attached to his motion for new trial are unsworn declarations by

four persons, in which they state they would have been available to testify at

Salazar’s trial and would have testified that he was a good person and it would have

18 been out of character for Salazar to have committed the crimes for which he was

charged.

As to the Holditch document, we note that Salazar has not shown that the

document could have been properly authenticated and admitted. See DeLeon v. State,

322 S.W.3d 375, 382 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (“Appellant

offers no argument as to whether this evidence would have been properly

admitted. . . . Accordingly, he has not met his burden to show that counsel’s

performance was deficient under the first prong of Strickland.”). Furthermore,

E.G.’s Sister testified that after Salazar had touched E.G. accidentally when they

were wrestling, he apologized to E.G., and E.G. testified that, when she described to

her Sister that Salazar was touching E.G., E.G. was not talking about anything that

occurred while wrestling. Additionally, the trial court could have reasonably

concluded that any denial Salazar made to Investigator Holditch as noted in the

report would have been cumulative of his not-guilty plea. See King v. State, 9 Tex.

Ct. App. 515, 544 (1880) (a plea of “not guilty” is the same as if the defendant had

denied every element of the crime charged).

As to the additional witnesses Salazar claims would have testified to Salazar’s

good character, such testimony would have been merely cumulative of the testimony

of others who did testify on behalf of Salazar. E.G.’s Sister, who was Salazar’s

19 biological daughter, testified during the guilt phase that she did not believe Salazar

committed the crimes charged because “he’s just too much of a good person to do

something like that.” During the punishment phase, Salazar’s mother testified that

Salazar is a “great dad[,]” has good relationships with his children, and “[t]he kids

all love him. He’s a good provider and good, hard worker.”

“Weighing the advantages and disadvantages of calling a particular witness to

testify is a matter usually left within the province of trial counsel’s discretion.” Ex

parte Ruiz, Nos. WR-27,328-03 & WR-27,328-04, 2016 Tex. Crim. App. LEXIS

1341, at *43 (Tex. Crim. App. Nov. 9, 2016) (citing Ruiz v. Thaler, 783 F.Supp.2d

905, 949 (W.D. Tex. 2011)). When unadmitted mitigating evidence is similar to

admitted evidence, an appellant is unlikely to be able to show that the unadmitted

evidence would have “tipped the scale” in his favor. See Ex parte Martinez, 195

S.W.3d 713, 731 (Tex. Crim. App. 2006). We cannot conclude that trial counsel’s

failure to introduce additional mitigation evidence that would have been cumulative

of other mitigation evidence that was admitted at trial constitutes proof of deficient

performance or prejudice under Strickland. See Wong v. Belmontes, 558 U.S. 15, 22-

23 (2009) (failure to introduce additional mitigating evidence that would have been

cumulative did not establish Strickland prejudice); Sincere v. State, No. 11-11-

00056-CR, 2013 Tex. App. LEXIS 2341, at *8 (Tex. App.—Eastland, no pet.)

20 (mem. op., not designated for publication) (appellant did not establish that trial

counsel was deficient for failing to present cumulative alibi testimony). Accordingly,

Appellant has failed to show either deficient performance or prejudice as to these

two alleged failures by his trial counsel.

4. “Trial counsel failed to investigate and present testimony from [Appellant’s stepfather] to contradict the testimony of the complainant.” 5. “Trial counsel failed to impeach the complainant with her prior inconsistent statement about the amount of times she was forced to give a ‘hand job.’” 6. “Trial counsel failed to impeach the complainant with her prior inconsistent statement about the amount of times she was forced to give him a ‘blow job.’” 7. “Trial counsel failed to question the complainant about her letter to [Appellant] on June 21, 2009.”

We consider these issues together as they all pertain to impeachment of E.G.’s

testimony. Generally, a party may impeach a witness with evidence of a prior

inconsistent statement. Tex. R. Evid. 613(a); Lopez v. State, 86 S.W.3d 228, 230

(Tex. Crim. App. 2002). And, a witness’s credibility may be attacked or supported

by testimony about the witness’s reputation for having a character for truthfulness

or untruthfulness or by testimony in the form of an opinion about that character. Tex.

R. Evid. 608(a). Nevertheless, “[c]ross-examination is inherently risky, and a

decision not to cross-examine a witness is often the result of wisdom acquired by

experience in the combat of trial.” Ex parte McFarland, 163 S.W.3d 743, 756 (Tex.

Crim. App. 2005). A decision to limit cross-examination or even not to cross-

examine a witness can frequently be considered sound trial strategy. See Miniel v. 21 State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1992) (quoting Coble v. State, 501

S.W.2d 344, 346 (Tex. Crim. App. 1973)); see also McFarland, 163 S.W.3d at 756

(“It is frequently a sound trial strategy not to attack a sympathetic eyewitness without

very strong impeachment.”); Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.—

Houston [14th Dist.] 1996, pet. ref’d) (explaining that cross-examining a

sympathetic witness can offend jurors). As a general rule, a party is not entitled to

impeach a witness on a collateral or immaterial matter. Ramirez v. State, 802 S.W.2d

674, 675 (Tex. Crim. App. 1990). A collateral matter is one that seeks only to test a

witness’s general credibility or relates to facts irrelevant to issues at trial. Keller v.

State, 662 S.W.2d 362, 365 (Tex. Crim. App. 1984). As we have previously

explained, the decision whether to call a witness is within the province of trial

counsel’s discretion. Ruiz, 2016 Tex. Crim. App. LEXIS 1341, at *43. Trial

counsel’s failure to call witnesses is “irrelevant absent a showing that such witnesses

were available and appellant would benefit from their testimony.” King v. State, 649

S.W.2d 42, 44 (Tex. Crim. App. 1983).

Appellant complains that his trial counsel failed to present the testimony of

his stepfather. Appellant argues that his stepfather’s testimony would have

contradicted certain testimony by E.G., specifically, her testimony that when Salazar

was working on an electrical outlet in her room with his stepfather, she heard Salazar

22 say “[y]ou need to find my bag of nuts, but when you find them be gentle with

them[.]” Salazar attached an affidavit of his stepfather to his motion for new trial, in

which his stepfather attested that he remembered working with Salazar on an

electrical issue in E.G.’s room, but he did not recall hearing this statement “or any

wording similar to that.” The trial court could have reasonably concluded from the

affidavit that the stepfather’s testimony pertained to a collateral matter that pertained

to a witness’s general credibility or relates to facts that were not relevant to the

crimes charged. See Keller, 662 S.W.2d at 365. Therefore, the trial court could have

concluded that Salazar had no right to impeach E.G. concerning her testimony

regarding the “bag of nuts” statement. See Ramirez, 802 S.W.2d at 675. As a

consequence, the trial court could have reasonably concluded that Salazar’s trial

counsel’s performance would not have been deficient for failing to elicit testimony

by Salazar’s stepfather. See Rylander, 101 S.W.3d at 110 (an appellant’s failure to

show deficient performance defeats a claim of ineffective assistance). In addition,

on appeal, Appellant fails to explain how his defense was prejudiced as a result, or

how the result of his trial would have been different had his stepfather testified that

he did not remember hearing this comment. See Strickland, 466 U.S. at 687-88, 694;

Delamora v. State, 128 S.W.3d 344, 363, 367 (Tex. App.—Austin 2004, pet. ref’d)

23 (no error to deny admission of evidence that was of “minimal relevance” and merely

collateral or impeaching, and any error from its exclusion was harmless).

Next, Appellant complains that his trial counsel failed to impeach E.G.

regarding the number of times she was forced to masturbate Salazar and to give him

oral sex. At trial, E.G. testified that Salazar forced her to masturbate him “[f]our to

five times[]” and he forced her to give him oral sex “[t]hree to four[]” times. With

his motion for new trial, Salazar submitted documents he characterized as

“supplemental reports” of the Montgomery County Sheriff’s Office. The documents

Salazar provided stated that, in her forensic interview, E.G. had reported she

masturbated Salazar twice and gave him oral sex “4 or 5 times.” According to

Salazar, impeaching E.G. regarding these inconsistencies “was important to counter

the State’s argument that she was being consistent.”

According to Appellant, the “supplemental report[s]” purport to convey the

substance of E.G.’s forensic interview with Kari Prihoda. We note that during

Prihoda’s testimony at trial, both parties acknowledged that Prihoda could not testify

as to what E.G. had told her. Appellant also offered no argument as to whether this

evidence could be properly authenticated and admitted. We conclude that Appellant

failed to meet his burden to show that counsel’s performance was deficient under

the first prong of Strickland. See DeLeon, 322 S.W.3d at 382.

24 A witness’s prior inconsistent statement may be admissible as non-hearsay if

it was made “under penalty of perjury at a trial, hearing, or other proceeding . . . or

in a deposition[.]” Tex. R. Evid. 801(e)(1)(A)(ii). The appellate record does not

reflect that the statements E.G. allegedly made in her forensic interview were made

under oath in a qualifying proceeding, nor does Salazar argue that the statements

qualify as prior inconsistent statements under Rule 801. In addition, to the extent

that E.G. reported a different number of instances of criminal conduct by Salazar in

her forensic interview, the trial court could have concluded that any inconsistency

between E.G.’s trial testimony and her forensic interview would not be exculpatory,

and would only relate to her credibility. See Ramirez, 802 S.W.2d at 675 (a party is

generally not entitled to impeach a witness on a collateral or immaterial matter). We

note that at trial, E.G.’s Mother testified that E.G. was not always truthful, and the

Sister testified that E.G. was known in the family for making up lies and telling

stories. Considering the record as a whole, we further conclude that Salazar has

failed to show a reasonable probability that the result of the proceeding would have

been different had the forensic interview evidence been admitted to impeach E.G.

See Strickland, 466 U.S. at 694; Holland v. State, 761 S.W.2d 307, 319 (Tex. Crim.

App. 1988) (“Absent a showing by appellant that he would have benefitted from the

25 testimony, the decision not to call witnesses at either stage of trial does not raise the

spectre of ineffective assistance.”) (citing King, 649 S.W.2d 42).

Appellant also argues that his trial counsel’s performance was deficient

because he failed to question E.G. concerning a June 21, 2009 letter to Salazar.

Attached to his motion for new trial was a letter purportedly written by E.G. that

expressed affection and appreciation and stated in part “I love you Daddy[.]”

Appellant argues that, according to the chronology of events E.G. related at trial, the

letter would have been written after Salazar had forced her to masturbate him and

when she was scared of him.

Even assuming the document could be authenticated and admitted, Salazar

did not meet his burden to show that counsel’s failure to offer this letter into evidence

constituted a deficient performance, nor did he show a reasonable probability that

the result of the proceeding would have been different had the letter been offered

into evidence. See Strickland, 466 U.S. at 687-88, 694. Accordingly, we conclude

that the trial court could have reasonably concluded that Appellant failed to show

that there is a reasonable probability that the result of the proceeding would have

been different. See id. at 694.

8. “Trial counsel failed to object to the testimony of more than one outcry witness as hearsay.”

26 According to Appellant, his trial counsel was deficient for failing to object to

the testimony of E.G.’s Sister and Friend because their testimony was inadmissible

hearsay. Appellant also argues that trial counsel failed to object to the trial court’s

failure to hold a hearing on the Sister’s and the Friend’s “outcry testimony” pursuant

to section 38.072 of the Texas Code of Criminal Procedure.

Section 38.072 of the Texas Code of Criminal Procedure provides a statutory

exception to the rule against hearsay, and section 38.072 allows the first person to

whom the child described the offense in some discernible manner to testify about

the statements the child made. Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp.

2017); Garcia v. State, 792 S.W.2d 88, 90-91 (Tex. Crim. App. 1990). Article

38.072 provides that in sexual offense cases committed against a child fourteen years

of age or younger, statements by the child about the alleged offense to the first person

eighteen years of age or older, other than the defendant, about the offense will not

be inadmissible because of the hearsay rule. Tex. Code Crim. Proc. Ann. art. 38.072.

The trial court has broad discretion to determine whether the child’s statement falls

within this hearsay exception. See Garcia, 792 S.W.2d at 92. Outcry testimony is

admissible from more than one witness if the witnesses testify about different events,

but there may be only one outcry witness per event. Lopez v. State, 343 S.W.3d 137,

140 (Tex. Crim. App. 2011).

27 “Though the terms do not appear in the statute, the victim’s out-of-court

statement is commonly known as an ‘outcry,’ and an adult who testifies about the

outcry is commonly known as an ‘outcry witness.’” Sanchez v. State, 354 S.W.3d

476, 484 (Tex. Crim. App. 2011). In this case, E.G.’s Sister was thirteen years of

age at the time of trial, and the Friend was fifteen years of age. Because neither the

Sister nor the Friend was an adult, neither could be an outcry witness under article

38.072. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(3) (defining outcry

witness as “the first person, 18 years of age or older, other than the defendant, to

whom the child . . . made a statement about the offense[]”).

Our inquiry does not end here. “The appropriate question to ask next, of

course, is whether the substance of the out of court declaration—‘what was said’—

has any relevance at all apart from the truth of the matter asserted.” See Dinkins v.

State, 894 S.W.2d 330, 364 (Tex. Crim. App. 1995). A statement not offered to prove

the truth of the matter asserted is not hearsay. Id. at 347-48; see also Tex. R. Evid.

801(d) (limiting hearsay to evidence offered to prove the truth of the matter

asserted). We uphold a trial court’s evidentiary ruling if it is correct on any theory

of law applicable to that ruling. See De La Paz v. State, 279 S.W.3d 336, 344 (Tex.

Crim. App. 2009).

During the Friend’s testimony, the following exchange occurred:

28 [State’s counsel]: Do you recall a time where she called and talked to you about something that was going on in Magnolia that was causing her concern?

[Friend]: Yes. The night that she cried out to me we were just talking and she sounded really stressed out and scared. So I asked her what was wrong and she opened up and told me everything.

[State’s counsel]: And you can’t talk about what she told you --

[Friend]: Okay.

[State’s counsel]: -- but did it involve something to do with her step dad?

[Friend]: Yes.

....

[State’s counsel]: What did you tell [E.G.]?

[Friend]: I said if it’s really going on, she should tell parents and if she didn’t, I was going to have to tell my mom to talk to her grandmother.

[State’s counsel]. How did she sound?

[Friend]: She was really scared and kept telling me not to and then she told me to hold on and she would call me back and she called me back and said she had told her grandmother.

[Defense counsel]: Objection; hearsay.

THE COURT: Don’t repeat what she said, please. I heard you say she called you back. So anything after that I think would be hearsay and I sustain the objection.

29 According to Appellant, the Friend’s testimony that E.G. “cried out” to him

and told him everything constituted hearsay. We disagree. The trial court could have

reasonably concluded that the Friend’s testimony was not offered for the truth of any

statement made by E.G. but for the fact that E.G. had talked to the Friend and that

the Friend understood that E.G. was scared and upset. See, e.g., Guidry v. State, 9

S.W.3d 133, 152 (Tex. Crim. App. 1999); Dinkins, 894 S.W.2d at 347; see also Tex.

R. Evid. 803(3) (providing an exception to hearsay for a statement of the declarant’s

then-existing state of mind).

Appellant argues that certain portions of the Sister’s testimony contained

inadmissible hearsay, namely that E.G. told the Sister that Salazar was touching E.G.

inappropriately. Appellant’s brief acknowledges that E.G.’s Mother was the outcry

witness as to E.G.’s first outcry that Salazar was touching E.G.’s breasts. We also

note that E.G. testified at trial that Salazar had touched her breasts. Accordingly, the

complained-of portion of the Sister’s testimony would have been cumulative of

admissible evidence and, as such, we are unable to conclude that, had trial counsel

objected, the outcome of the trial would have been different. See Anderson v. State,

717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (“If the fact to which the hearsay

relates is sufficiently proved by other competent and unobjected to evidence, . . . the

admission of the hearsay is properly deemed harmless and does not constitute

30 reversible error.”); In re AWT, 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no

pet.). We cannot say the trial court abused its discretion in admitting the complained-

of statements by the Sister and the Friend, and, therefore, trial counsel’s performance

would not have been deficient for a failure to make hearsay objections.

9. “Trial counsel denied [Appellant] his constitutional right to testify.”

Appellant argues he told his attorney he wanted to testify and his attorney told

him he was not going to put him on the stand. Salazar’s unsworn declaration attached

to his motion for new trial includes the following statement:

I told my attorney that I wanted to testify. My attorney told me he was not going to put me on the stand. I was not aware that I had the final authority to make the decision on whether to testify and my attorney failed to inform me of this. If I had known that I could testify against my attorney’s wishes, I would have done so. I would have testified that I never intentionally touched [E.G.] inappropriately. I would have testified that [E.G.] did not like when I was strict with the rules and I would not let her talk to boys late at night on the phone and do everything she wanted to do. She would become very upset with me about not letting her do what she wanted to do.

According to Salazar, if he had known he could testify and had done so, “the jury

would have been able to evaluate his credibility and there is a reasonable probability

that they would have decided to find him not guilty.”

While the right to testify is fundamental, an appellant alleging ineffective

assistance of counsel because he was deprived of this right to testify must still show

prejudice under Strickland. See Johnson v. State, 169 S.W.3d 223, 228-39 (Tex. 31 Crim. App. 2005). Appellant’s assertion that he would have benefitted from his own

testimony is mere speculation. To the extent Appellant has suggested he would have

testified that he “never intentionally touched [E.G.] inappropriately[,]” such

testimony would have been redundant of his not-guilty plea. See King, 9 Tex. Ct.

App. at 544. The only additional evidence Appellant’s proffered testimony would

have contributed would have been that E.G. disliked Appellant’s rules and parenting,

possibly implying a motive for her to be untruthful. However, the Sister testified that

E.G. would get sad or mad because her Mother and Salazar had taken away E.G.’s

phone due to an issue with her grades. The Sister also testified that she thought E.G.

liked living with the Grandmother in Victoria “[f]or freedom[,]” because she gets to

bring friends to the house and would sometimes “sneak to a boy’s house.”

Appellant’s motion and supporting affidavits fail to establish that, had he testified in

his own behalf, there is a reasonable probability that the results of the proceeding

would be different. See Strickland, 466 U.S. at 694.

In sum, examining all the errors alleged by Appellant in light of counsel’s

representation as a whole, we cannot say that Appellant has satisfied his burden to

show that, but for the alleged errors, the outcome of the proceeding would have been

different. See Thompson, 9 S.W.3d at 813; Ex parte Zepeda, 819 S.W.2d 874, 876

(Tex. Crim. App. 1991). On this record, Appellant has not made the required

32 showings of deficient performance and prejudice as required by Strickland. See

Strickland, 466 U.S. at 687-88, 694. We overrule Appellant’s second issue.

Admission of Evidence

In his third issue, Salazar challenges the admission of certain evidence during

the punishment phase of trial. Specifically, he argues that the admission of “adult

pornographic images” and a photograph of human feces in a toilet was in error

because such evidence was not relevant to sentencing and was highly prejudicial.

We review a trial court’s decision to admit punishment evidence under an

abuse-of-discretion standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App.

2010); Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We may not

disturb a trial court’s evidentiary ruling absent an abuse of discretion. McGee v.

State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007). The trial court abuses its

discretion only when its decision lies “outside the zone of reasonable disagreement.”

Davis, 329 S.W.3d at 803; Walters, 247 S.W.3d at 217. If the trial court’s evidentiary

ruling is correct on any theory of law applicable to that ruling, we will uphold that

decision. De La Paz, 279 S.W.3d at 344.

The erroneous admission of evidence is non-constitutional error that is subject

to a harm analysis under rule 44.2(b) of the Texas Rules of Appellate Procedure. See

Tex. R. App. P. 44.2(b); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston

33 [1st Dist.] 2002, pet. ref’d). We must disregard non-constitutional error unless it

affects the substantial rights of the defendant. Tex. R. App. P. 44.2(b). During the

punishment phase of a non-capital criminal trial, “evidence may be offered by the

state and the defendant as to any matter the court deems relevant to sentencing[.]”

See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2017); McGee,

233 S.W.3d at 318. Admissibility of evidence at the punishment phase of a trial of a

non-capital felony offense is a function of policy rather than relevancy, and the

definition of “relevant” in Texas Rule of Evidence 401 “is of little avail because the

factfinder’s role during the guilt phase is different from its role during the

punishment phase.” Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009);

Come v. State, 82 S.W.3d 486, 491 (Tex. App.—Austin 2002, no pet.). Evidence is

relevant if it helps the factfinder decide what sentence is appropriate for a particular

defendant given the facts of the case. Hayden, 296 S.W.3d at 552 (citing Rogers v.

State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999)); Rodriguez v. State, 203 S.W.3d

837, 842 (Tex. Crim. App. 2006).

During the punishment phase of Salazar’s trial, outside the presence of the

jury, the State sought to pre-admit four photos and one image that were recovered

from the Appellant’s phone. Defense counsel objected that the pictures were more

prejudicial than probative and that “none of those pictures are indicative of any

34 children or anything like that.” The State responded that the images were obtained

from Salazar’s phone, and that testimony would show that Defendant sometimes

showed one of the images, “little cartoon pictures from his phone relating to doing

sexual acts[,]” to E.G. The trial court admitted the images “for purposes of aiding

the jury in perhaps deciding the state of mind of [Salazar]” and the images were

published to the jury.

At trial, E.G.’s Sister testified that she found Salazar’s cell phone and that she

and E.G. had attempted to find a video on the cell phone. E.G. also testified that she

believed that Salazar had used his phone to make a recording of her giving him oral

sex. In addition, E.G. testified that Salazar had not shown her pornographic images,

but that she had seen cartoons related to sexual acts on Salazar’s phone.

Detective Gannucci testified that he had retrieved Salazar’s cell phone from

E.G.’s Mother after she and the children had gone to Victoria. Special Agent Santini,

an analyst with the Department of Homeland Security assigned to computer crimes

and child exploitation, explained that he recovered the images in State’s Exhibits 18

through 23 from a cell phone a detective had given to him. Santini testified that

“there were also pictures that were recovered from the deleted section which led me

to believe that they had to do with some child exploitation pictures[.]” Santini

described one of the images as a cartoon that depicted a “snowman and snow woman

35 in various sexual positions.” According to Santini, in child exploitation cases, he

looks for cartoons depicting sexual acts that could be used to make a child feel at

ease and more comfortable regarding sexual acts. He described the other images as

depicting male genitalia, what “looks like human feces in a toilet bowl[,]”, and an

image that “looks like some type of person -- looks like a person tied up in the back

and someone suspended from a bar or some type -- it looks like they are naked.”

At trial, Appellant objected to the admission of these images as more

prejudicial than probative. However on appeal, his appellate brief does not include

an analysis of the rule 403 balancing factors. See Tex. R. App. P. 38.1(i); see also

Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012) (discussing rule

403 balancing factors). Appellant argues that “some nex[u]s must exist to make

evidence of the defendant’s use of adult pornography relevant in cases involving

sexual offenses against children.” See Akin v. State, No. 06-14-00178-CR, 2015 Tex.

App. LEXIS 9687, at **15-16 (Tex. App.—Texarkana 2015, pet. ref’d) (mem. op.,

not designated for publication); Cox v. State, Nos. 13-00-184-CR & 13-00-185-CR,

2001 Tex. App. LEXIS 5485, at **12-13 (Tex. App.—Corpus Christi 2001, no pet.)

(not designated for publication). Akin and Cox, to which Appellant cites, pertain to

the admission of evidence during the guilt-innocence phase of trial and are

36 distinguishable on that basis. Moreover, there was no testimony at Salazar’s trial

characterizing the images as “adult.”

On this record, we cannot say that the images were irrelevant in light of

Special Agent Santini’s testimony, and we cannot say the trial court abused its

discretion in admitting the images. Considering all of the evidence discussed and the

entire record, we have fair assurance that, even if the trial court erred in admitting

these exhibits, the evidence did not influence the jury, or had but a very slight effect

on the jury, in determining Appellant’s punishment. See Tex. R. App. P. 44.2(b);

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). We overrule

Appellant’s third issue.

Motion for New Trial

In his first issue, Salazar argues that the trial court erred in denying his motion

for new trial. And in his fourth issue, Salazar argues that the trial court erred in

refusing to grant Salazar’s request for an evidentiary hearing on the issues raised in

his motion for new trial. We will address these issues together as both issues pertain

to the motion for new trial.

We review a trial court’s grant or denial of a motion for new trial for an abuse

of discretion. State v. Gutierrez, No. PD-0197-16, 2017 Tex. Crim. App. LEXIS

1003, at *10 (Tex. Crim. App. Oct. 18, 2017) (citing State v. Herndon, 215 S.W.3d

37 901, 906-07 (Tex. Crim. App. 2007)). We also review a trial court’s denial of a

defendant’s request for a hearing on a motion for new trial using an abuse-of-

discretion standard. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). A

trial court abuses its discretion only if its ruling is clearly erroneous and arbitrary

and is not supported by any reasonable view of the record. Id.; Riley v. State, 378

S.W.3d 453, 457 (Tex. Crim. App. 2012). When deciding whether a trial court erred

in ruling on a motion for new trial, we view the evidence in the light most favorable

to the court’s ruling and give almost total deference to the court’s findings of

historical fact. See Riley, 378 S.W.3d at 457-58. In order for a defendant to be

entitled to a new trial on the basis of newly discovered evidence, the defendant must

meet a four-pronged test, which includes in part establishing that the evidence is

admissible and not “merely cumulative, corroborative, collateral, or impeaching[.]”

See Carsner v. State, 444 S.W.3d 1, 2 (Tex. Crim. App. 2014) (citing Wallace v.

State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); Keeter v. State, 74 S.W.3d 31,

36-37 (Tex. Crim. App. 2002)).

A defendant does not have an absolute right to a hearing on a motion for new

trial. Smith, 286 S.W.3d at 338. The purposes of a hearing on a motion for new trial

are to decide whether the case should be retried and to “prepare a record for

presenting issues on appeal in the event the motion is denied.” Id. A hearing is only

38 required when the motion raises matters which cannot be determined from the

record. Id. And, even when a defendant raises matters not determinable from the

record, he is not entitled to a hearing on his motion for new trial unless he also

“establishes the existence of ‘reasonable grounds’ showing that the defendant ‘could

be entitled to relief.’” Id. at 339 (noting this requirement is imposed to avoid fishing

expeditions at a motion for new trial hearing). Therefore, the motion for new trial

must be supported by an affidavit from the defendant or another person specifically

setting out the factual basis for the claim to be entitled to a hearing. Id. The affidavit

need not establish a prima facie case, or even “‘reflect every component legally

required to establish’ relief.” Id. (quoting Reyes v. State, 849 S.W.2d 812, 816 (Tex.

Crim. App. 1993)). An affidavit is sufficient “if a fair reading of it gives rise to

reasonable grounds in support of the claim.” Id. An affidavit that is conclusory or

that is unsupported by facts, or that fails to explain how the counsel’s alleged

deficiency would have changed the verdict is not sufficient and does not warrant a

hearing on the motion for new trial. Id.4

4 In Smith, the appellant was indicted for sexual assault, he later pleaded guilty pursuant to a plea agreement, and the trial court placed him on ten years’ deferred adjudication community supervision. Smith v. State, 286 S.W.3d 333, 335-36 (Tex. Crim. App. 2009). Eight years later the State filed a motion to adjudicate for violations of the community supervision. Id. at 336. A hearing was held on the motion to adjudicate and evidence was presented by the State. Smith did not testify 39 at the hearing. Id. The trial court found one or more allegations true and adjudicated appellant guilty and sentenced him to twenty years in prison. Id. Smith filed a motion for new trial and a request for a hearing, alleging his trial counsel was ineffective for failing to submit certain medical evidence and failing to inform Smith of his right to testify. Id. Smith further alleged in his supporting affidavit that he would have testified and rebutted certain statements from the victim and the probation officer, and that the medical records would have shown he did not abuse prescription medications and explained his surgery. Id. According to Smith, the information “may well have resulted in a different outcome.” Id. The motion for new trial was denied without any hearing. Id. at 336-37. The Court of Appeals reversed concluding that Smith was entitled to a hearing on the motion for new trial. Id. at 337. The Court of Criminal Appeals reversed and remanded the case back to the Court of Appeals, concluding as follows:

The appellant’s motion for new trial and supporting affidavit raised a matter not determinable from the record, namely, that trial counsel was ineffective for failing to inform him of his right to testify on his own behalf and to enter certain medical records into evidence. However, despite having raised a matter not determinable from the record, the appellant failed to establish reasonable grounds to believe that he could, under Strickland, prevail on his claim of ineffective assistance of counsel, entitling him to a new adjudication proceeding. Specifically, by failing to explain how counsel’s allegedly unprofessional errors would have changed the trial court’s finding of true on all three violations in the State’s motion to adjudicate, the appellant failed to show that but for counsel’s deficiency the result of the hearing to adjudicate guilt would have been different. Consequently, appellant did not present facts adequate to demonstrate reasonable grounds exist to believe he could prove ineffective assistance of counsel at an evidentiary hearing. Under these circumstances, the trial court did not abuse its discretion in failing to hold to a hearing on the appellant’s motion for new trial.

Id. at 345.

40 Texas Rule of Appellate Procedure 21.7 provides that the “court may receive

evidence by affidavit or otherwise[]” at the hearing. Tex. R. App. P. 21.7.

Accordingly, a trial court does not have to receive live testimony at the hearing.

Holden v. State, 201 S.W.3d 761, 763-64 (Tex. Crim. App. 2006) (discussing rule

21.7).

Accordingly, it is clear that when a motion for new trial relies on a claim of

ineffective assistance of counsel, as does Salazar’s, the defendant’s motion “must

allege sufficient facts from which a trial court could reasonably conclude both that

counsel failed to act as a reasonably competent attorney and that, but for counsel’s

failure, there is a reasonable likelihood that the outcome of his trial would have been

different.” Smith, 286 S.W.3d at 341; see also Strickland, 466 U.S. at 694.

The motion must be supported by affidavit(s), specifically showing the truth

of the grounds of attack. King, 29 S.W.3d at 569; Edwards v. State, 37 S.W.3d 511,

514 (Tex. App.—Texarkana 2001, pet. ref’d). However, if the affidavits do not

supply reasonable grounds that would entitle the accused to the relief sought, the

trial court does not abuse its discretion in refusing to hold a hearing. King, 29 S.W.3d

at 569; Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). While the

affidavits are not required to reflect every argument legally required to establish

41 relief, the motion or affidavits must reflect that reasonable grounds exist for holding

that such relief could be granted. Edwards, 37 S.W.3d at 514.

We note that Appellant contends on appeal that the trial court failed to hold a

hearing on the motion for new trial. However, according to the motion to clarify that

was filed by the defense counsel after the trial court denied the motion for new trial,

defense counsel attended a “hearing” on May 25, 2017, wherein the parties presented

arguments to the trial court on the motion for new trial and the trial court made

certain statements regarding the motion for new trial and took it under advisement.

Therefore, it appears that the trial court may have actually held a “hearing” of some

type, although a reporter’s record does not appear in our appellate record. The rules

of appellate procedure do not require a trial court to receive live testimony and it can

consider evidence presented by affidavit. Tex. R. App. P. 21.7.

Nevertheless, assuming without deciding that there was no “hearing” held by

the trial court on the motion for new trial, as noted above in our discussion of the

other issues, Salazar failed to present facts that were adequate to demonstrate

reasonable grounds existed to believe he could establish a basis for an ineffective

assistance claim, or a basis for the admission of or materiality of the additional

witnesses or evidence he references, or grounds for establishing improper admission

of evidence during the punishment phase. Accordingly, we conclude that the trial

42 court’s ruling denying the motion for new trial and the decision to rule on the motion

for new trial without holding a hearing to obtain further evidence was within the

zone of reasonable disagreement. See Smith, 286 S.W.3d at 339; King, 29 S.W.3d at

569; Jordan, 883 S.W.2d at 664.

Nor can we conclude on the record before us that the trial court’s denial of

Salazar’s motion for new trial was clearly erroneous and arbitrary or not supported

by a reasonable view of the record. See Gutierrez, 2017 Tex. Crim. App. LEXIS

1003 at *10. The trial court could have reasonably concluded that the matters raised

in the motion for new trial and the attached declarations were either inadmissible,

cumulative, or did not establish, even if true, that the result of the trial would have

been different. The trial court was aware of the evidence presented at trial both

during the guilt and sentencing phases of trial, and the trial court was familiar with

the overall performance of trial counsel, as well as the testimony of the witnesses.

The trial court could have reasonably concluded that the strength of the State’s case

was such that the affidavits offered by Salazar, even if true, were not compelling

enough to probably bring about a different result in a new trial and, therefore, that

Appellant’s motion and accompanying affidavits did not show that he was entitled

to relief. See Wallace, 106 S.W.3d at 108. Appellant has not demonstrated that any

of his counsel’s complained-of errors affected his substantial rights. See State v.

43 Thomas, 426 S.W.3d 233, 239 (Tex. App.—Houston [1st Dist.] 2012), affirmed by

428 S.W.3d 99 (Tex. Crim. App. 2014) (citing Herndon, 215 S.W.3d at 908).

Therefore, we conclude that the trial court did not abuse its discretion in denying

Salazar’s motion for new trial or in failing to hold a hearing. Id.; Keeter, 74 S.W.3d

at 36-37. We overrule Salazar’s first and fourth issues.

Having overruled all of Appellant’s issues, we affirm the judgments of

conviction.

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on February 21, 2018 Opinion Delivered May 23, 2018 Do Not Publish

Before Kreger, Horton, and Johnson, JJ.