Steve Sanchez v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00136-CR

STEVE SANCHEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 483rd Judicial District Court
Hays County, Texas
Trial Court No. CR-23-1382-F, Honorable Tanner Neidhardt, Presiding

December 19, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Following plea of not guilty, Appellant, Steve Sanchez, was found guilty by a jury

of two counts of indecency with a child by sexual contact.1 By his two issues he contends:

(1) the trial court erred by denying his motion for continuance a week before trial; and (2)

1 TEX. PENAL CODE ANN. § 21.11(d).
his Sixth Amendment rights were violated because of the ineffective assistance of his

counsel. We affirm.2

BACKGROUND

The complainant was fifteen years old at the time of the offense. Appellant was in

a relationship with the complainant’s mother for ten years, and the couple married in

December 2020. Two months later, the couple had marital difficulties and separated with

mother moving out of the house in 2022. Because they had a young son together, and

because of his relationship with mother’s other children as a father figure, the couple’s

son and the complainant visited Appellant on the weekends during the separation. The

complainant would also spend nights with her older sister on some weekends. In 2023,

complainant ran away from her older sister’s home, and after her sister found her in a

nearby park, she made an outcry to her sister that Appellant had been touching her

inappropriately. The older sister called her mother, and complainant made a second

outcry to her mother. Mother called Appellant to confront him, and he denied doing

anything inappropriate with his stepdaughter. Mother took complainant to the nearest

child advocacy center where she was interviewed by Child Protective Services (“CPS”).

Following an investigation by law enforcement, Appellant was arrested and tried for two

counts of indecency with a child.

2 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should
a conflict exist between precedent of the Third Court of Appeals and this Court, this appeal will be decided
in accordance with the precedent of the Third Court of Appeals. TEX. R. APP. P. 41.3; Mitschke v. Borromeo,
645 S.W.3d 251 (Tex. 2022).
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One week before trial, Appellant’s counsel moved for a continuance on the basis

he had another trial to prepare for and also because the State inadvertently failed to turn

over video evidence. The trial court denied the motion and the case proceeded to trial.

The jury returned a verdict of guilty on both counts and sentenced Appellant to ten years’

imprisonment.

STANDARD OF REVIEW

We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. Acosta v. State, No. AP-77,092, 2024 Tex. Crim. App. Unpub. LEXIS 225, at

*14 (Tex. Crim. App. June 5, 2024) (citing Gallo v. State, 239 S.W.3d 757, 764–65 (Tex.

Crim. App. 2007)). To show reversible error predicated on the denial of a pretrial motion

for continuance, a defendant must demonstrate both that the trial court erred in denying

the motion and that the lack of a continuance caused harm. Id. (citing Gonzales v. State,

304 S.W.3d 838, 843 (Tex. Crim. App. 2010)).

To prevail on a claim of ineffective assistance of counsel, appellant must show

both deficient performance and prejudice. Williams v. State, 301 S.W.3d 675, 687 (Tex.

Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984)). In assessing a claim of ineffective assistance, an appellate

court “must indulge a strong presumption that counsel’s conduct [fell] within the wide

range of reasonable professional assistance; that is, the [appellant] must overcome the

presumption that, under the circumstances, the challenged action might be considered

sound trial strategy.” Williams, 301 S.W.3d at 687 (citing Garcia v. State, 57 S.W.3d 436,

440 (Tex. Crim. App. 2001)). An appellant’s failure to satisfy one prong of the Strickland

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test negates a court’s need to consider the other prong. Id. While the ultimate question

of prejudice under Strickland is reviewed de novo, the trial court is afforded deference on

any underlying historical fact determinations. Johnson v. State, 169 S.W.3d 223, 239

(Tex. Crim. App. 2005).3

ANALYSIS

ISSUE ONE—DENIAL OF MOTION FOR CONTINUANCE

Appellant’s first issue claims the trial court abused its discretion by denying his

motion for continuance. He argues the trial court violated his Sixth Amendment rights

because his counsel was prevented from adequately preparing for trial. Particularly, he

complains the State’s inadvertent late production of some evidence did not permit his

counsel adequate time to review the evidence before trial.

The trial was delayed repeatedly since its first setting for various reasons, including

a lack of representation, conflicting trial schedules, and Appellant’s attorney having family

medical issues. By the time the complained of motion for continuance was heard, the

trial court had already granted a total of seven continuances. A week before trial,

3 The Texas Court of Criminal Appeals recently gave a more detailed explanation of this mixed

standard and its application to ineffective assistance claims in State v. Hradek, __ S.W.3d__, 2024 Tex.
Crim. App. LEXIS 1012, (Tex. Crim. App. 2024). Ineffective assistance of counsel prejudice is a mixed
question of law and fact, and some questions of fact may turn on the credibility and demeanor of the
witnesses who testify in the new trial hearing. Id. at *19–20 (citations omitted). Appellate courts should
afford almost total deference to a trial court’s determinations of those questions. Id. Mixed questions of
law and fact that do not depend on an evaluation of credibility and demeanor may be reviewed de novo.
Id. Unless the trial court is in an appreciably better position than the appellate court to decide the issue,
the appellate court may independently determine the issue while affording deference to the trial court’s
findings on subsidiary factual questions. Id. (internal quotations omitted). Reviewing courts must defer to
the trial court’s role as factfinder due to its role as the judge of witness credibility, but they apply a de novo
review in those situations in which we can isolate a pure question of law. Id. at *29 (Newell, J, concurring).
Given this understanding, appellate courts must afford “almost total deference” to the trial court’s
determination of the historical facts and to mixed questions of law and fact that turn on an evaluation of
credibility and demeanor, but purely legal questions can be reviewed de novo. Id. at *30–31.
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Appellant’s counsel filed yet another motion for continuance. The written motion for

continuance does not contain an affidavit “sworn to by a person having personal

knowledge of the facts relied on for the continuance,” as required by statute. To preserve

error regarding the denial of a motion for a continuance, the motion must be in writing and

sworn. TEX. CODE CRIM. PROC. ANN. art. 29.08; Dewberry v. State, 4 S.W.3d 735, 755–

56 (Tex. Crim. App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App.

1995).

In addition, the written motion only states Appellant’s counsel had a trial conflict

with another criminal case set for the same date in Williamson County. At the hearing on

the motion, Appellant’s counsel orally raised the issue of delayed production of discovery

by the State. However, this specific reason was not part of the written motion, and

Appellant’s counsel did not supplement or amend his motion to include this reason for his

request for continuance. TEX. CODE CRIM. PROC. ANN. art. 29.03 (“A criminal action may

be continued on [a] written motion . . . upon sufficient cause . . . fully set forth in the

motion.”). Because Appellant’s counsel failed to adhere to the statutory requirements to

make a sworn motion for continuance in writing, he failed to preserve the issue for review.

TEX. R. APP. P. 33.1.

We overrule Appellant’s first issue.

ISSUE TWO—INEFFECTIVE ASSISTANCE OF COUNSEL

For his second issue, Appellant complains he received ineffective assistance of

counsel. Because his counsel failed to object to hearsay testimony which violated Rule

404(b) of the Rules of Evidence, he argues, the jury’s impression of him was

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impermissibly tainted by knowledge of his prior incarceration. He concludes, but for the

admission of his prior prison time, the jury would have acquitted him because the

allegations against him occurred only after the complainant was caught running away

from home and engaging in bad behaviors.

The right to reasonably effective assistance of counsel in a criminal prosecution is

guaranteed by the Sixth Amendment to the United States Constitution and Article 1,

Section 10 of the Texas Constitution. U.S. CONST. amend VI; TEX. CONST. art. 1, § 10.

To establish a claim based on ineffective assistance, an appellant must show (1) his

counsel’s representation fell below the objective standard of reasonableness and (2)

there is a reasonable probability that but for counsel’s deficiency the result of the

proceeding would have been different. Strickland, 466 U.S. at 687. In other words, an

appellant must show his trial counsel’s performance was deficient and he was prejudiced

by the deficiency. State v. Gutierrez, 541 S.W.3d 91, 98 (Tex. Crim. App. 2017)

(emphasis added).

A claim of ineffective assistance of counsel must be firmly demonstrated in the

record. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Thompson

v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). “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.” Mata v. State, 226 S.W.3d 425, 430 (Tex.

Crim. App. 2007). We must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance. Frangias v. State, 450

S.W.3d 125, 136 (Tex. Crim. App. 2013). Furthermore, when the record fails to show the

reason for counsel’s acts or failure to act, we may not generally find that counsel has
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been ineffective. Hicks v. State, 419 S.W.3d 555, 561 (Tex. App.—Amarillo 2013, pet.

ref’d) (citing Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012)). If

counsel’s rationale is not in the record, then the appellate court should not find deficient

performance unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Menefield, 363 S.W.3d at 593.

The only reference to Appellant’s prior prison sentence during the guilt/innocence

phase of the trial was made by mother. On direct examination she recounted Appellant

telling her: “You know what’s going to happen to me? I’m going to go back to prison.”

This recitation was made during a long direct examination of mother and was one small

portion of her testimony. Her testimony was also followed by testimony from:

• the older sister of the complainant;

• the complainant;

• the law enforcement officer who initially investigated the complainant’s
allegations;

• the forensic interviewer from the child advocacy center where
complainant was initially interviewed after her outcry;

• the program director of a child advocacy center who testified as an
expert on child sexual abuse; and

• the detective who conducted the investigation into the allegations
against Appellant.

Before mother took the stand, the jury also heard from the CPS investigator who

investigated the outcry. None of the other witnesses mentioned Appellant’s prior prison

time. The State also introduced evidentiary documents, including: diagrams the

complainant filled out during her CPS interview to show where Appellant touched her;

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pictures of the complainant; and various maps and pictures of Appellant’s home where

the offenses took place.

Given the volume of testimony and evidence presented to the jury, the majority of

which followed the arguably inadmissible prison reference, it is not reasonable to

conclude the single reference to Appellant’s past incarceration was the predominant

factor contributing to his conviction. We therefore cannot say with reasonable probability,

but for Appellant’s counsel’s failure to object to the mention of his prior prison time, the

result of the proceeding would have been different. Appellant’s second issue is overruled.

CONCLUSION

The judgment of the trial court is affirmed.

Alex Yarbrough
Justice

Do not publish.

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