NUMBER 13-11-00766-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ADIEL FUENTES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion Justice Longoria
By two issues, appellant Adiel Fuentes appeals his conviction for continuous
sexual abuse of a young child and sexual assault of a child. See TEX. PENAL CODE ANN.
§ 21.02(b) (West Supp. 2011), § 22.011 (West 2011). We affirm.
I. BACKGROUND1
Appellant met C.E., the mother of the three child complainants in this case, at a
church they both attended in Corpus Christi. Appellant began a romantic relationship
with C.E. around the time she divorced her previous husband. One of C.E.’s children,
A.E., made an outcry alleging sexual abuse by appellant. Her two sisters later made
similar allegations.
A grand jury indicted appellant for continuous sexual abuse of a young child
(Count I), aggravated sexual assault of a child (Count II), and sexual assault of a child
(Count III). See id. §§ 21.02(b), 22.021 (West Supp. 2011), § 22.011. Appellant
pleaded not guilty, and the case was tried to a jury. The jury returned a verdict of guilty
on Count I and Count III and not guilty on Count II. Appellant elected for the trial court
to assess his punishment. The trial court assessed imprisonment for twenty-five years
on Count I and imprisonment for five years on Count III. The court ordered the
sentences to run concurrently. This appeal followed.2
II. ANALYSIS
A. Exclusion of Witnesses
By his first issue, appellant argues that the trial court erred by refusing to allow
character witnesses who only knew appellant from his church to testify. Appellant’s
argument is based on the following exchange at trial:
[Counsel]: Is the Court going to exclude testimony from
people [appellant’s] just known from church?
1
Because this is a memorandum opinion, and the parties are familiar with the facts, we will only
recite the facts and law as necessary to apprise the parties of the Court’s decision and the reasons for it.
See TEX. R. APP. P. 47.4.
2
We twice abated this case: first for appointment of new counsel after appellant’s original
appointed counsel requested to withdraw, and again when appellant’s new counsel failed to file a brief.
2
[Judge]: Yes. They have to — I read through and it can’t be
just based on personal knowledge, it has to be —
[Counsel]: No, reputation.
[Judge]: No, I’m not going to exclude it.
[Counsel]: No, okay.
[Prosecutor]: Well, at some point it might be cumulative.
[Judge]: Yeah, but go ahead.
[Counsel]: I don’t have that many witnesses and it’s not
going to take—
[Judge]: Okay.
[Counsel]: — that long
[Judge]: Okay. That’s why we’ll go through it.
It appears that the trial court did not exclude any of appellant’s witnesses. After
this exchange, the trial court permitted six further witnesses to testify. Even assuming
that the trial court did exclude one or more of appellant’s witnesses from testifying, a
defendant may not complain of a ruling excluding evidence “unless a substantial right of
a party is affected and the substance of the evidence was made known to the court by
offer of proof.” Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998); see TEX. R.
EVID. 103(a)(2). Appellant nowhere made an offer of proof of the substance of the
testimony that the excluded witnesses planned to offer. See Warner, 969 S.W.2d at 2.
Accordingly, this issue was not preserved for our review.
We overrule appellant’s first issue.
3
B. Ineffective Assistance of Counsel
By his second issue, appellant contends that he received ineffective assistance
of counsel at trial.
1. Standard of Review and Applicable Law
We evaluate claims of ineffective assistance under the standards set forth by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).
See Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.).
Under the Strickland standard, appellant must show by a preponderance of evidence
that: (1) trial counsel’s representation fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that the result of the
proceeding would have been different but for the attorney’s deficient performance.
Strickland, 466 U.S. at 687; Jaynes, 216 S.W.3d at 851. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Ex parte Ellis, 233
S.W.3d 324, 330–31 (Tex. Crim. App. 2007). If an appellant fails to prove one prong of
the test, we do not need to address the other prong. See Strickland, 466 U.S. at 697;
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
When evaluating the quality of trial counsel’s representation, we look to “the
totality of the representation and the particular circumstances of each case in evaluating
the effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). “[A] single egregious error of omission or commission” can constitute ineffective
assistance, but the Texas Court of Criminal Appeals has been hesitant to designate any
particular error as per se ineffective assistance. Id. We apply “a strong presumption
that counsel's conduct fell within the wide range of reasonable professional assistance.”
4
Id. Allegations of ineffectiveness must therefore be “firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness.” Id. (citing
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Direct appeal is
usually inadequate to make an ineffectiveness claim because the record is frequently
undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). This
is especially true where the claimed error is one of omission and “counsel's reasons for
failing to do something do not appear in the record.” Id. The Texas Court of Criminal
Appeals has explained that “trial counsel should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective.” Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003) (citing Bone v. State, 77 S.W.3d 828, 836
(Tex. Crim. App. 2002)). Unless counsel had an opportunity to explain his trial strategy,
Texas appellate courts should “not find deficient performance unless the challenged
conduct was ‘so outrageous that no competent attorney would have engaged in it.’”
Goodspeed, 187 S.W.3d at 392 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.
App. 2001)).
2. Discussion
Appellant argues that his trial counsel performed deficiently by failing to request a
jury instruction on Count I for the lesser-included offense of sexual assault of a child.
See TEX. PENAL CODE ANN. § 22.011(a)(2). However, “[d]efense counsel does not act
deficiently in failing to request a lesser-included offense if he was pursuing an all-or-
nothing trial strategy.” Shanklin v. State, 190 S.W.3d 154, 161 (Tex. App.—Houston
[1st Dist.] 2005, pet. dism’d) (citing Ex parte White, 160 S.W.3d 45, 55 (Tex. Crim. App.
2004)). Trial counsel’s reasons for not requesting an instruction on a lesser-included
5
offense do not appear in the record.3 See Rylander, 101 S.W.3d at 111. Because trial
counsel could have been pursuing an all-or-nothing trial strategy in not asking for an
instruction on a lesser-included offense for Count III, we conclude that appellant has
failed to show that trial counsel performed deficiently. See Garcia, 57 S.W.3d at 440
(observing that appellate courts “will commonly assume a strategic motivation if any can
possibly be imagined” when reviewing an attorney’s failure to do something). Because
appellant is unable to show that his trial counsel performed deficiently, we need not
consider the second prong of the Strickland test. See id.
We overrule appellant’s second issue.
III. CONCLUSION
We affirm the judgment of the trial court.
_/s/Nora L. Longoria____
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of August, 2013.
3
Appellant filed a motion for new trial alleging ineffective assistance of counsel, but the motion
only makes a bald claim that counsel was ineffective for not requesting an instruction on the lesser-
included offense. The motion does not describe counsel’s trial strategy, and there was no hearing on the
motion where counsel could have described his intentions.
6