Opinion issued November 16, 2021
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00149-CR
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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
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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.”).
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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
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(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).
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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.
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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
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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.
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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).
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