Opinion issued January 12, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00135-CR
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PETE RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1389063
MEMORANDUM OPINION
A jury found Pete Rodriguez guilty of the offense of indecency with a child
and the trial court assessed his punishment at 10 years’ confinement. Rodriguez
seeks reversal of his conviction, contending that his lawyer provided ineffective
assistance by incorrectly advising him that he was not eligible for community
supervision in lieu of confinement and that the trial court also erred in incorrectly
admonishing him that he was not eligible for community supervision. Because we
conclude that his lawyer and the trial court correctly informed Rodriguez that he was
not eligible for community supervision, we affirm.
Background
A grand jury indicted Rodriguez for one count of indecency with a child, his
daughter. The indictment stated that the offense occurred in November 2012. The
trial court admonished him that he would not be eligible for community supervision
if convicted, because the child was younger than 14 at the time of the alleged offense.
Rodriguez pleaded not guilty.
At trial, the uncontroverted evidence showed that the complainant was born
in May 1999. But proof of the date on which the offense allegedly occurred was less
precise. The complainant testified that Rodriguez repeatedly touched her in a sexual
manner over several years’ time. She said that the last incident, the one for which
Rodriguez was indicted, occurred during her final visit with him in November 2012.
However, other evidence at trial indicated that the complainant may have visited
Rodriguez in December 2012. In particular, the complainant’s medical records
reflect that the date of the suspected abuse was the weekend of December 1, 2012,
and the last possible occurrence was on December 2, 2012. Regardless of whether
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the child last visited Rodriguez in November or December of 2012, the undisputed
evidence at trial was that the complainant did not see Rodriguez again until the trial.
In closing, Rodriguez’s lawyer argued that the complainant’s uncertainty
about the date on which the offense allegedly took place and other inconsistencies
created reasonable doubt. But the defense did not contend that there was any
question as to the complainant’s age on the date of the alleged offense. Nor did the
defense request that the jury be instructed to make a finding as to whether she was
younger than 14 at the time.
In accord with the indictment, the jury instructions stated that the charged
offense allegedly occurred on or about a particular date in November 2012. But the
instructions went on to advise that the State was not bound by the date specified in
the indictment. After the jury rendered a verdict of guilty, Rodriguez elected to have
the court assess his punishment. The court assessed his punishment at 10 years’
confinement.
Rodriguez moved for a new trial. In relevant part, he asserted that his trial
counsel rendered ineffective assistance by incorrectly advising him that he was not
eligible for community supervision, failing to file a motion for community
supervision in lieu of confinement, and not requesting a jury finding on whether the
complainant was younger than 14 on the date of the offense. The trial court denied
the motion.
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Discussion
On appeal, Rodriguez contends that his lawyer provided ineffective assistance
by incorrectly advising him that he was not eligible for community supervision. He
likewise contends that the trial court committed reversible error by incorrectly
admonishing him that he was not eligible for community supervision. He maintains
he would have been eligible for community supervision if the jury believed the
complainant was not younger than 14 on the date of the offense, but elected to go to
the court—which could not place him on community supervision—for punishment
based on the mistaken information he received from the trial court and counsel.
The State disagrees. It maintains that the uncontroverted evidence at trial
established that the offense charged in the indictment took place before the
complainant’s fourteenth birthday. Therefore, the State contends, the evidence
conclusively establishes that Rodriguez was not eligible for community supervision.
A. Eligibility for Community Supervision
Indecency with a child younger than 17 years old is a felony. TEX. PENAL
CODE § 21.11 (West 2011). If the child is younger than 14 years old, a defendant
who is guilty of this offense is categorically ineligible for community supervision.
TEX. CODE CRIM. PRO. art. 42.12(3g)(a)(C), (4)(d)(5) (West Supp. 2015). If the child
is 14 years old or older, the defendant is eligible for community supervision. TEX.
CODE CRIM. PRO. art. 42.12(4)(d)(5) (West Supp. 2015). But a trial court can assess
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community supervision in lieu of confinement as punishment for this offense only
upon the recommendation of a jury. TEX. CODE CRIM. PRO. art. 42.12(3g)(a)(C), (4)
(West Supp. 2015). Thus, a defendant guilty of indecency with a child who may be
eligible for community supervision based on the age of the child must elect to have
a jury assess his punishment to pursue this possibility. See id.
B. Ineffective Assistance of Counsel
To prevail on an ineffective-assistance claim, a defendant must establish two
things. First, he must show that his lawyer’s performance was deficient by proving
by a preponderance of the evidence that it objectively fell below professional
standards. Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d) (citing Strickland v. Washington, 466 U.S. 687 (1984)). Second,
the defendant must show that in reasonable probability the result of the proceeding
would have differed but for this deficiency. Id.
When, as here, the defendant moved for new trial on the basis of ineffective
assistance of counsel and the trial court denied the motion, we analyze the
ineffective-assistance claim as a challenge to the denial of the motion for new trial.
Starz, 309 S.W.3d at 118. Thus, we review it for abuse of discretion, and reverse
only if the trial court’s decision is arbitrary or unreasonable when viewed in the light
most favorable to its ruling. Id.
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The success of Rodriguez’s ineffective-assistance claim depends on whether
the evidence at trial would have allowed the jury to rationally conclude that the
charged offense occurred on or after the complainant’s fourteenth birthday. If so,
then contrary to his counsel’s advice, the jury could have recommended that
confinement be suspended in favor of community supervision. See TEX. CODE CRIM.
PRO. art. 42.12(4)(d)(5) (West Supp. 2015). If not, then Rodriguez was not eligible
for community supervision. Id. And, if he was not in fact eligible for community
supervision, his counsel’s advice to this effect was not deficient.
At trial, the parties disputed the last date on which Rodriguez had contact with
the complainant. But this dispute concerned whether their last date of contact was
in November or December of 2012. Whichever may have been the case, it is
undisputed that they did not see one another again until trial. It likewise is
undisputed that the complainant was born in May 1999. Therefore, regardless of
whether the complainant last saw Rodriguez in November or December of 2012, any
alleged criminal conduct necessarily took place before her fourteenth birthday,
which was in May 2013.
Because the evidence the jury heard established without contradiction that
Rodriguez last saw the complainant when she was 13 years old and had no contact
with her afterward, the jury could not have concluded that the charged offense
occurred after the complainant’s fourteenth birthday. It therefore could not have
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recommended that Rodriguez be placed on community supervision in lieu of
confinement. Rodriguez’s counsel, therefore, was not deficient in failing to advise
Rodriguez of the possibility of community supervision. TEX. CODE CRIM. PRO. art.
42.12(4)(d)(5) (West Supp. 2015). Because Rodriguez failed to satisfy Strickland’s
first prong, the trial court did not abuse its discretion in denying Rodriguez’s motion
for new trial premised on ineffective assistance.
C. Trial Court’s Admonishment
Rodriguez’s second issue, in which he contends the trial court made a
structural error in incorrectly admonishing him that he was not eligible for
community supervision, rests on the same premises as his ineffective-assistance
claim. Our conclusion that the evidence at trial conclusively proved that the
complainant was less than fourteen years old years old at the time of the charged
offense establishes that the trial court’s admonishment was correct and, therefore,
disposes of Rodriguez’s second issue. See, e.g., Campbell v. State, 189 S.W.3d 822,
824 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (overruling point of error that
was based on mistaken premise).
Conclusion
We conclude that Rodriguez’s trial counsel and the trial court correctly
informed Rodriguez that he was not eligible for community supervision. We
therefore affirm the trial court’s judgment of conviction.
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Rebeca Huddle
Justice
Panel consists of Justices Higley, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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