Luis Ruiz v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 16, 2021
• Docket: 01-20-00149-CR
• Status: Published

Opinion

Opinion issued November 16, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00149-CR ——————————— LUIS RUIZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1631742

MEMORANDUM OPINION

Appellant Luis Ruiz pleaded guilty to the second-degree felony offense of

sexual assault of a child between fourteen and seventeen years of age. The trial court

sentenced Ruiz to nine years’ imprisonment. See TEX. PENAL CODE §§ 22.011(a)(2)(A), (f), 12.33(a). On appeal, Ruiz argues that his trial counsel was

ineffective for failing to object to a victim-allocution statement that was read into

the record before the court pronounced his sentence in violation of Code of Criminal

Procedure article 42.03. We affirm.

Background

A grand jury indicted Ruiz for sexually assaulting his stepdaughter, A.C.

(“Anna”), when she was fourteen years old.1 Ruiz pleaded guilty to the offense

without an agreed punishment recommendation.

At Ruiz’s sentencing hearing, the court admitted a presentence investigation

(“PSI”) report. The report stated that Ruiz is married to B.C. (“Brenda”), Anna’s

biological mother. Ruiz and Brenda have three other biological children together.

Anna made an outcry to her mother that Ruiz had touched her multiple times and

had engaged in sexual intercourse with her. Anna also told her mother that Ruiz had

told her not to tell anyone about the sexual intercourse.

In an interview with law enforcement officers, Ruiz confessed to the

allegations of sexual assault against Anna. Brenda reported that Anna was in therapy,

which helped her to cope with the sexual assault. Brenda also reported that neither

she nor Anna wanted Ruiz to go to prison. Instead, they wanted him sentenced to

1 In this opinion, we refer to the child complainant and her mother by pseudonyms to protect their privacy.

2 community supervision with an order prohibiting contact with Anna. Ruiz had no

prior criminal history.

The State called Brenda as a witness during the sentencing hearing. Brenda

testified about her relationship with Ruiz and Anna, Anna’s outcry to her about

Ruiz’s sexual assault, and the effect of Ruiz’s sexual assault on Anna. Anna did not

attend the hearing because she was in school, so the State asked Brenda to read a

letter that Anna had written. The court reporter transcribed Brenda’s reading of the

letter, and the transcript appears in the record on appeal.2 Defense counsel did not

object to the reading of the letter in open court or to the court reporter’s transcribing

of the letter.

In her letter, Anna stated that when she hears Ruiz’s name, she has “many

mixed up feelings,” that the “universe hates [her],” and that she “can’t seem to see

how [her] existence matters at all.” Nevertheless, she stated that she did not want

Ruiz to go to jail, explaining, “And don’t think it’s because of me. And I forgave

you already. It’s because I’m doing it for your children. You can grow a strong bond

with them and start all over again.” Her letter also included an allegation that Ruiz

had spoken to her about purchasing a sexual device for her.

2 A physical copy of Anna’s letter is not included in the record on appeal. Only the reporter’s transcription of Anna’s letter appears in the record.

3 During its closing statement, the State repeatedly referred to Anna’s letter. For

example, the State argued that “what [Ruiz] did was so disgusting and such a betrayal

that [Anna] said that she does not understand why the universe hates her” and that

Anna’s letter only “suggest[ed] a probation because of the other children so they can

start all over again.” The State also argued, “And today we found out from [Anna]

that Mr. Ruiz was trying to buy her a dildo.” The State asked the trial court to

sentence Ruiz to ten years’ imprisonment.

Ruiz requested community supervision. The defense submitted a mitigation

packet that contained seven letters, notes from Brenda’s report to law enforcement

showing that neither Brenda nor Anna wanted Ruiz to be incarcerated, and additional

documentation showing that Ruiz was financially supporting his family.

The trial court ultimately sentenced Ruiz to nine years’ imprisonment. In

doing so, the court told Ruiz,

You raised a one-year-old girl as your daughter and you sexually assaulted her at least two times and then you wanted to use some kind of sex toy on her. . . . I don’t think probation is appropriate in this case. You took something away from someone that she can’t get back. She’s harmed. You destroyed her family. You destroyed your family. That’s on you. It’s not on me. It’s not on her. However, she has that guilt.

Ruiz did not file a motion for new trial. This appeal followed.

Ineffective Assistance of Counsel

In his sole issue on appeal, Ruiz argues that his trial counsel provided

ineffective assistance by failing to object to the reading of Anna’s letter, which

4 constituted a victim-allocution statement, on the record in open court prior to

sentencing in violation of Code of Criminal Procedure article 42.03.

A. Standard of Review and Governing Law

The Sixth Amendment of the United States Constitution and the Texas

Constitution guarantee a criminal defendant the right to reasonably effective

assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see Lopez v.

State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The right to effective assistance

of counsel requires objectively reasonable representation, not errorless counsel.

Lopez, 343 S.W.3d at 142 (citing Strickland v. Washington, 466 U.S. 668, 686

(1984), and Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)).

To establish that trial counsel provided ineffective assistance, an appellant

bears the burden to demonstrate by a preponderance of the evidence that

(1) counsel’s performance was deficient; and (2) the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142. An

appellant must establish both prongs before an appellate court will find counsel’s

representation to be ineffective. Lopez, 343 S.W.3d at 142 (citing Strickland, 466

U.S. at 687); see 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.”).

5 To satisfy the first prong, an appellant must show that his trial counsel’s

performance fell below an objective standard of reasonableness under the prevailing

professional norms. Strickland, 466 U.S. at 687–88; Lopez, 343 S.W.3d at 142.

Under the second prong, an appellant must demonstrate prejudice, or “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694; see Lopez, 343 S.W.3d at

142. A reasonable probability is one sufficient to undermine confidence in the

outcome. Lopez, 343 S.W.3d at 142.

Courts must “indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance,” and “the defendant must

overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting

Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see Lopez, 343 S.W.3d at 142. Our

review of trial counsel’s performance is highly deferential. Strickland, 466 U.S. at

689; Robertson, 187 S.W.3d at 483.

For an appellate court to find that counsel was ineffective, “counsel’s

deficiency must be affirmatively demonstrated in the trial record; the court must not

engage in retrospective speculation.” Lopez, 343 S.W.3d at 142. “It is not sufficient

that appellant show, with the benefit of hindsight, that his counsel’s actions or

omissions during trial were merely of questionable competence.” Id. at 142–43

6 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)). Furthermore,

a claim of ineffective assistance of counsel also requires proof of prejudice. Bone v.

State, 77 S.W.3d 828, 836–37 (Tex. Crim. App. 2002).

In most cases, the record on direct appeal is undeveloped and thus inadequate

to prove a claim of ineffective assistance.3 Menefield v. State, 363 S.W.3d 591, 592–

93 (Tex. Crim. App. 2012); see Lopez, 343 S.W.3d at 143; Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999) (“A substantial risk of failure accompanies

an appellant’s claim of ineffective assistance of counsel on direct appeal.”). The

Court of Criminal Appeals has repeatedly stated that trial counsel “should ordinarily

be afforded an opportunity to explain his actions before being denounced as

ineffective.” Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005)). When trial counsel is not provided an opportunity

to explain his actions, we will not find that counsel’s performance was deficient

unless the challenged conduct was “so outrageous that no competent attorney would

have engaged in it.” Id. (quoting Goodspeed, 187 S.W.3d at 392).

3 Claims of ineffective assistance of counsel rejected on direct appeal “due to lack of adequate information may be reconsidered on an application for a writ of habeas corpus.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).

7 B. Analysis

Ruiz contends that his trial counsel was ineffective for failing to object to

Anna’s letter that was admitted prior to sentencing and that was read into the record

in violation of Code of Criminal Procedure article 42.03. Ruiz argues that the letter

was not sworn testimony and that Anna was not present at the hearing to provide

sworn testimony and to be subject to cross-examination. Ruiz further argues that he

was harmed by the admission of Anna’s letter because it violated article 42.03, it

was not produced in discovery, and it was not included in the PSI report or otherwise

admitted as evidence at the hearing. Ruiz also argues that he was harmed because

new allegations were presented regarding Ruiz’s alleged purchasing of a sex device

for Anna, and both the State in its closing argument and the trial court in pronouncing

his sentence referenced the sex device mentioned in Anna’s letter.

The State responds that Ruiz did not meet his burden to establish that trial

counsel was ineffective because the record is silent concerning counsel’s reasons for

not objecting under article 42.03 and because valid reasons exist for counsel’s not

objecting to the letter. The State further argues that the trial court was aware Ruiz

had sexually assaulted Anna multiple times, and that “it is unlikely that [the court’s]

opinion on [Ruiz’s] sentence was changed” by learning the additional details

described in Anna’s letter.

8 Article 42.03 permits a victim, close relative of a deceased victim, or a

victim’s guardian “to appear in person to present to the court and to the defendant a

statement of the person’s views about the offense, the defendant, and the effect of

the offense on the victim.” TEX. CODE CRIM. PROC. art. 42.03(b). “The court reporter

may not transcribe the statement,” and the statement must be made “(1) after

punishment has been assessed and the court has determined whether or not to grant

community supervision in the case; (2) after the court has announced the terms and

conditions of the sentence; and (3) after sentence is pronounced.” Id.

Assuming without deciding that counsel’s failure to object to the reading of

Anna’s victim-allocution letter fell below an objective standard of reasonableness

under the prevailing norms, we cannot conclude on this record that such a deficient

performance prejudiced Ruiz’s defense. Lopez, 343 S.W.3d at 142 (stating that

appellant must establish both prongs to prove counsel’s representation was

ineffective); see also Williams, 301 S.W.3d at 687 (stating that failure to satisfy one

prong negates court’s need to consider other prong). Ruiz has not shown a reasonable

probability that the result of the proceeding would have been different if the new

allegations in Anna’s letter had not been presented at trial. See Strickland, 466 U.S.

at 694; Lopez, 343 S.W.3d at 142.

Ruiz confessed and pleaded guilty to sexually assaulting Anna, his

stepdaughter, multiple times. While Anna’s letter mentioned the sex device for the

9 first time, we agree with the State that the trial court was already aware that Ruiz

had sexually abused Anna multiple times and, therefore, that it is unlikely the new

allegation swayed the trial court’s sentencing of Ruiz. The court sentenced Ruiz to

nine years’ imprisonment. That term is shorter than the State’s request for a ten-year

sentence, and it falls within the sentencing guidelines of two to twenty years’

imprisonment for the second-degree felony offense of sexual assault of a child with

which Ruiz was charged and convicted. See TEX. PENAL CODE §§ 22.011(a)(2)(A),

(f), 12.33(a); Genovesi v. State, No. 04-09-00508-CR, 2010 WL 2772482, at *3

(Tex. App.—San Antonio July 14, 2010, pet. ref’d) (mem. op., not designated for

publication) (finding that counsel’s deficient performance did not prejudice defense

in part because punishment assessed was within punishment range for offense).

While the sentence is harsher than the community supervision Ruiz had

requested, the offense was a serious one. Nothing in the record on appeal indicates

that Ruiz would have received a lesser punishment had Brenda not read Anna’s letter

into the record, and therefore our confidence in the outcome of the proceeding is not

undermined. See Bone, 77 S.W.3d at 836–37. We therefore hold that, on the record

before us, Ruiz has not established that his trial counsel’s performance prejudiced

his defense. See Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142.

Accordingly, we overrule Ruiz’s sole issue on appeal.

10 Conclusion

We affirm the judgment of the trial court.

April L. Farris Justice

Panel consists of Justices Kelly, Guerra, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).