Armando Rubio v. State

  NUMBER 13-03-426-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

ARMANDO RUBIO,                                                           Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

___________________________________________________________________

On appeal from the 94th District Court

of Nueces County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

         Appellant, Armando Rubio, was indicted for one count of indecency with a child and five counts of aggravated sexual assault of a child. The first trial resulted in a hung jury. At a second trial, the jury found Rubio guilty of indecency with a child and of three of the five counts of aggravated sexual assault of another child, and assessed punishment at ten years confinement for indecency and thirty years for each count of aggravated sexual assault, plus a $2,500 fine for each count. Rubio filed a motion and then an amended motion for new trial. The hearing on Rubio's amended motion was held seventy-seven days after his sentence was imposed in open court, and two days after Rubio's motion was overruled as a matter of law. See Tex. R. App. P. 21.8(c).

         Rubio appeals from the trial court's judgment. The trial court has certified that this case "is not a plea bargain case, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). By a single point of error, Rubio complains of ineffective assistance of counsel. We affirm the trial court's judgment.

I. Facts

         Because all issues of law are settled, our memorandum opinion only advises the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Ineffective Assistance of Counsel

         Rubio complains that his trial attorneys were ineffective because they failed to: (1) meet with him prior to trial with sufficient time to prepare a defense; (2) interview potential witnesses; (3) properly cross-examine the victims; and (4) pursue a defense.

A. Standard of Review

         The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant’s right to counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.–Corpus Christi 2000, no pet.). To establish ineffective assistance of counsel, appellant must show: (1) his attorney’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Stone v. State, 17 S.W.3d 348, 349-50 (Tex. App.–Corpus Christi 2000, pet. ref’d).

         The defendant bears the burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). He must prove that counsel's errors, judged by the totality of the representation and not by isolated instances, denied him a fair trial. See Strickland, 466 U.S. at 688. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy; that counsel made all significant decisions in the exercise of reasonable professional judgment and sound trial strategy. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Stone, 17 S.W.3d at 350-51. Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).

B. Motion for New Trial

         In support of his arguments on appeal, Rubio refers this Court to evidence developed at a hearing on his amended motion for new trial. However, a trial court must rule on a motion for new trial within seventy-five days after the trial court imposed sentence in open court. Tex. R. App. P. 21.8(a). Once the seventy-five day period expires the motion is deemed denied; thus, the trial court has no authority to grant a new trial after that time. See id. at rule 21.8(c); Baker v. State, 956 S.W.2d 19, 25 (Tex. Crim. App. 1997).

         In this case, the trial court pronounced sentence in open court on June 27, 2003. Rubio filed a motion for new trial on July 22, 2003. He filed his amended motion for new trial on August 15, 2003. The hearing on Rubio's amended motion for new trial was held on September 12, 2003, seventy-seven days after the imposition of sentence in open court. Rubio did not object to the untimely hearing. See Baker, 956 S.W.2d at 25. At the time of the hearing, Rubio's amended motion for new trial had already been deemed denied. See Tex. R. App. P. 21.8(c). Because the trial court had no authority to rule on a motion for new trial or to hold the hearing after the seventy-fifth day, any testimony developed at the September 12 hearing must be disregarded. C. Analysis

1. Failure to Meet with Rubio with Sufficient Time to Prepare Defense

and to Interview Potential Witnesses

         Rubio contends his attorneys failed to timely communicate with him prior to trial and failed to investigate a possible defense by not interviewing prospective witnesses. These allegations are dependent on testimony developed at the hearing. Having determined evidence from the hearing may not be considered in this appeal, Rubio's contentions are not firmly founded in the record and cannot form the basis for his complaints on direct appeal. See Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14 (to defeat presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness").

2. Failure to Properly Cross-Examine the Victims

         Rubio also contends his trial attorneys were ineffective because they failed to ask either victim relevant questions about the allegations. "It has been said that 'often the decision to not cross-examine a witness is the result of wisdom acquired by experience in the combat of trial.'" Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1992) (quoting Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973)); Brown v. State, 871 S.W.2d 852, 856 (Tex. App.–Corpus Christi 1994, pet. ref'd) (indecency with child case). Likewise, brief cross-examination of a witness may also fall within the purview of trial strategy. See Bernal v. State, 930 S.W.2d 636, 641 (Tex. App.–Corpus Christi 1996, pet. ref'd).

         At the guilt/innocence phase of the present trial, counsel cross-examined the complaining witnesses, generally testing their memory and eliciting from them what their home life had been like and whether they had received counseling. However, counsel appeared to avoid any extensive cross-examination that could have been viewed by the jury as attacking the victims. Rubio has not rebutted the presumption he was adequately represented; that these actions were part of his trial attorneys' sound trial strategy. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.–Houston [1st Dist.] 1996, no pet.).

3. Failure to Pursue a Defense

         Finally, Rubio asserts trial counsel failed to provide any defense that the allegations were motivated by what an older sibling allegedly told them to say. The record sets out that Rubio's trial attorneys investigated and sought discovery prior to trial. At trial, they presented Dr. Marshall Dean Voris, a psychologist, who testified generally concerning the unreliability of child testimony and the tendency of children to fabricate stories. Specifically, Dr. Voris examined the interviews underlying the present charges and concluded that improper interview techniques tainted the victims' testimony. Dr. Voris also questioned the reliability of the medical records and the absence of any physical trauma that would suggest sexual assault. Additionally, during closing argument on guilt/innocence, counsel stressed the unreliability of the outcry testimony and the improper interview techniques, as well as the lack of medical evidence to support the charges. Furthermore, while Rubio's sister testified at the punishment phase of trial that there were hard feelings between the victims' older sibling and Rubio, she did not testify that the older sibling told the victims what to say.

         Accordingly, following the test for determining ineffective assistance of counsel as set forth in Strickland, we conclude, from a review of the totality of representation, Rubio has not shown how his attorneys' representation fell below an objective standard of reasonableness, or that there is a reasonable probability that, but for his attorneys' errors, if any, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Rubio's sole point of error is overruled.

III. Conclusion

         The judgment of the trial court is affirmed.                                                                                         

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 29th day of July, 2004.