TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00303-CR
Omar Terrell Nelson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 67615, THE HONORABLE JOE CARROLL, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Omar Terrell Nelson pled guilty to aggravated sexual assault of a child, and
the trial judge assessed his punishment at five years’ imprisonment. In a single point of error on
appeal, appellant complains that he received ineffective assistance of counsel at the punishment
hearing. We affirm the trial court’s judgment of conviction.
DISCUSSION1
In an open plea to the court, appellant judicially confessed and pled guilty to the
offense of aggravated sexual assault of a child. See Tex. Penal Code § 22.021. The trial judge
withheld a finding of guilt, ordered a presentence investigation (PSI), and reset the case for
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As this is a memorandum opinion and the parties are familiar with the facts and procedural
history of the case, we will not recite them here except as necessary to advise the parties of the
Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
sentencing. At the punishment hearing, both sides relied on the PSI report and declined to offer
evidence. Citing appellant’s impeccable military record, his misunderstanding about the victim’s
age, and the consensual nature of the offense, appellant’s counsel argued that deferred-adjudication
community supervision was an appropriate punishment. The State simply indicated that it left the
punishment to the judge’s discretion. The trial judge adjudicated appellant guilty and assessed his
punishment at five years’ confinement in the Texas Department of Criminal Justice, the minimum
sentence for the offense. See id. § 12.32. In his sole point of error on appeal, appellant asserts that
he was denied effective assistance of counsel because his attorney failed to call witnesses to testify
on his behalf at the punishment hearing.
To establish ineffective assistance of counsel, an appellant must demonstrate by a
preponderance of the evidence both deficient performance by counsel and prejudice suffered by the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Menefield v. State, 363 S.W.3d 591,
592 (Tex. Crim. App. 2012). Failure to make the required showing of either deficient performance
or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; Perez v. State,
310 S.W.3d 890, 893 (Tex. Crim. App. 2010). Appellate review of counsel’s representation is
highly deferential; we must indulge a strong presumption that counsel’s representation falls within
the wide range of reasonable professional assistance—that is, we must presume that trial counsel’s
actions or inaction and decisions were reasonably professional and motivated by sound trial strategy.
Strickland, 466 U.S. at 686; see Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim. App. 2013).
To rebut that presumption, a claim of ineffective assistance must be “firmly founded in the record”
and “the record must affirmatively demonstrate” the meritorious nature of the claim. See Menefield,
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363 S.W.3d at 592 (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005));
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). “[U]nless there is a record sufficient
to demonstrate that counsel’s conduct was not the product of an informed strategic or tactical
decision, a reviewing court should presume that trial counsel’s performance was constitutionally
adequate ‘unless the challenged conduct was so outrageous that no competent attorney would have
engaged in it.’” Frangias, 392 S.W.3d at 653 (quoting Goodspeed, 187 S.W.3d at 392) (internal
quotation marks omitted).
The “failure to call witnesses at the guilt-innocence and punishment stages is
irrelevant absent a showing that such witnesses were available and appellant would benefit from their
testimony.” Perez, 310 S.W.3d at 894 (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App.
1983)). Accordingly, a claim of ineffective assistance of counsel based on counsel’s failure to call
witnesses fails in the absence of a showing that such witnesses were available to testify and that the
defendant would have benefitted from their testimony. Ex parte White, 160 S.W.3d 46, 52 (Tex.
Crim. App. 2004).
In his brief, appellant asserts that he was harmed by his trial counsel’s failure to call
“available witnesses” to testify about (1) the family support he would have had in order to
successfully complete deferred-adjudication community supervision if granted, (2) appellant’s
conduct since the incident forming the basis of his conviction, and (3) additional information
(beyond that provided in the PSI) about his military service. Appellant does not identify these
“available witnesses” but only refers generally to “family members” and “witnesses who could
testify [about his] military duties and service.” However, it is apparent that in making his argument
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appellant is relying on testimony adduced at a motion for new trial hearing held 82 days following
imposition of his sentence. The evidence from that hearing is not properly in the record before us.
A motion for new trial must be filed no more than 30 days after the date the trial court
imposes sentence. Tex. R. App. P. 21.4(a). An amended motion for new trial must be filed within
30 days after the imposition of sentence and before the trial court overrules any previously filed
motion for new trial. Tex. R. App. P. 21.4(b). The trial court must rule on a motion for new trial
within 75 days after imposing sentence. Tex. R. App. P. 21.8(a). If the trial court fails to rule by
written order within 75 days of imposition of sentence, a motion for new trial is overruled by
operation of law. Tex. R. App. P. 21.8(c). Once a motion for new trial is overruled by operation of
law, the trial court is without jurisdiction to rule on the motion. State v. Garza, 931 S.W.2d 560, 562
(Tex. Crim. App. 1996). A hearing held after the trial court has lost jurisdiction to rule on
the motion is not authorized, and therefore, will not be considered on appeal. Parmer v. State,
38 S.W.3d 661, 667 (Tex. App.—Austin 2000, pet. ref’d).
In the instant case, the trial court imposed appellant’s sentence on January 18, 2012.
Appellant filed a motion for new trial on February 10, 2012, 23 days following imposition of
sentence. Thereafter, on April 5, 2012, 78 days after imposition of sentence, appellant filed his
amended motion for new trial. This motion was untimely in two ways. First, it was not filed within
30 days after appellant was sentenced. See Klapesky v. State, 256 S.W.3d 442, 454–55 (Tex.
App.—Austin 2008, pet. ref’d) (defendant may amend motion for new trial before it is acted on as
long as it is amended within 30 days of sentencing date) (citing Tex. R. App. P. 21.4(b)). Second,
it was filed after the motion for new trial had been overruled by operation of law on April 3, 2012,
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the 76th day after the date appellant’s sentence was imposed. See Tex. R. App. P. 21.8(c); State
v. Moore, 225 S.W.3d 556, 568–69 (Tex. Crim. App. 2007). Thus, there was no pending motion to
amend. Nevertheless, the trial court held a hearing on appellant’s motion for new trial and amended
motion for new trial on April 9, 2012, 82 days following imposition of sentence. However, because
appellant’s motion for new trial had already been overruled by operation of law, the trial court lacked
jurisdiction to hold a hearing on appellant’s motion for new trial or amended motion for new trial.
Accordingly, we cannot consider the facts developed at that hearing.
Because we may not consider the evidence adduced at the untimely hearing, the
record does not contain any evidence to support appellant’s contention that his counsel failed to call
witnesses that would have provided favorable testimony. Further, the record lacks any explanation
from trial counsel of why he did not present witness testimony at the punishment hearing. Absent
evidence on these issues, appellant cannot meet his burden to show that counsel was ineffective in
failing to call witnesses at the punishment hearing. See Strickland, 466 U.S. at 690 (to succeed on
claim of ineffective assistance of counsel appellant must show both deficient performance and
prejudice to defense); Menefield, 363 S.W.3d at 592 (ineffective-assistance claim must be “firmly
founded in the record” and “the record must affirmatively demonstrate” meritorious nature of claim);
see also Perez, 310 S.W.3d at 894 (failure to call witnesses at punishment phase is irrelevant absent
showing such witnesses were available and appellant would benefit from their testimony).
Accordingly, we overrule appellant’s sole point of error.
5
CLERICAL ERROR IN JUDGMENT
However, we observe that the trial court’s judgment of conviction contains a clerical
error. The judgment reflects that appellant was convicted of “Aggravated Sexual Assault” when in
fact he was convicted of “Aggravated Sexual Assault of a Child.” This Court has authority to
modify incorrect judgments when the necessary information is available to do so. See Tex. R. App.
P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we modify
the judgment to include the omitted language and reflect that the “Offense for which Defendant
Convicted” is “Aggravated Sexual Assault of a Child.”
CONCLUSION
Having overruled appellant’s sole point of error, we modify the trial court’s judgment
of conviction as noted above and affirm the judgment as modified.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Modified and, as Modified, Affirmed
Filed: June 18, 2014
Do Not Publish
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