JESSE CHAVEZ v. THE STATE OF TEXAS (2024)

OPINION

Affirmed and Opinion filed December 31, 2024.

Appellant Jesse Chavez appeals his conviction for aggravated sexual assault of a child under fourteen years of age. In eight issues, he lodges five categories of complaints, arguing (1) the evidence is legally insufficient to support his conviction; (2) ineffective assistance of counsel during the guilt/innocence phase; (3) appellant's waiver of his constitutional right to a jury trial was uninformed and involuntary; (4) ineffective assistance of counsel during the punishment phase; and (5) the presiding judge of the trial court erred by failing to review the order of the associate judge denying appellant's motion for new trial following appellant's objections under Government Code section 54A.013. We affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jessica, who is the mother of the complainant, Jane, was in a relationship with appellant beginning in 2010 and ending in March 2016. Shortly after their relationship started, Jessica, along with Jane and Jessica's son, John,¹ moved into a home rented by appellant's family. In 2015, Jessica and her children moved out of the home rented by appellant's family and into an apartment. Although appellant did not have his possessions at Jessica's apartment, he spent about five days a week at the apartment with Jessica and her children, and appellant had a key to the apartment. Because appellant often worked at night, he sometimes took care of Jane and John during the day when they were not in school, while Jessica was at work. The main living room had two full-sized beds where Jane and John slept. Appellant and Jessica slept in the bed in the apartment's only bedroom.

After the relationship between appellant and Jessica ended in March 2016, Jessica and her children went to live at the home of Jessica's parents. Shortly thereafter, Jane told Jessica that she had been sexually abused by appellant. Jessica drove to appellant's house with Jane and John in her car to confront appellant regarding Jane's outcry. Jessica called appellant and told him that she urgently needed to talk to him. Appellant came out of the house where he was living and spoke to Jessica through the passenger-side window. According to Jessica, Jane looked at appellant and told him, “You hurt me,” and then started crying. Jessica stated that appellant said “No, no, no, that's not true,” that appellant was in tears at one point, and that she thinks he even got on his knees and was just shaking his head saying, “no, no, no.”

Jessica never reported the alleged abuse to either Children's Protective Services (“CPS”) or to law enforcement. Sometime in 2017, a teacher at Jane's school overheard Jane telling another student about the sexual abuse. The teacher reported the alleged sexual abuse to CPS, which began an investigation and also contacted the Houston Police Department (“HPD”). Officer Adrian Jones of the HPD investigated the report of abuse. Officer Jones reviewed records from the forensic interview and medical examination that Jane underwent at the Children's Assessment Center, as well the CPS investigation report. Jones also interviewed numerous people, including Jessica, Jane's teacher, and appellant. Appellant was cooperative and agreed to speak with Jones. Appellant denied sexually abusing Jane. According to Jones, appellant described Jane as “a pretty truthful child,” and said that he did not think Jane was necessarily lying but that maybe it was a bad dream. Appellant said he was willing to undergo a polygraph examination. No polygraph examination ever occurred.

Appellant was indicted for the first-degree felony offense of continuous sexual abuse of a young child. Appellant pleaded not guilty. After the case had been set for a jury trial several times, in October 2021 appellant waived his right to a jury trial. This case was tried to a visiting judge in August 2022. The trial court found appellant not guilty of continuous sexual abuse of a young child, but guilty of the lesser-included offense of aggravated sexual assault of a child under fourteen years of age. After the punishment hearing, the trial court assessed punishment at twenty years' confinement and sentenced appellant accordingly. Appellant timely perfected this appeal. Appellant filed a motion for new trial asserting ineffective assistance of counsel. An associate judge conducted an evidentiary hearing on the motion and signed an order recommending that the motion be denied. No action was taken on the associate judge's recommendation, and a few days later, the motion for new trial was overruled by operation of law.

II. ISSUES AND ANALYSIS

A. Does legally sufficient evidence support appellant's conviction?

In his first issue, appellant asserts that the trial evidence was legally insufficient to support his conviction for the offense of aggravated sexual assault of a child under fourteen years of age. In evaluating a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Torres v. State, 424 S.W.3d 245, 251 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). Rather, the verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact is the sole judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

A person commits the offense of aggravated sexual assault of a child under fourteen years of age if the person intentionally or knowingly does any of the following acts against a child under fourteen years of age: (1) causes the penetration of the anus or sexual organ of the child by any means; (2) causes the sexual organ of the child to contact the sexual organ of the actor; or (3) causes the anus of the child to contact the sexual organ of the actor. See Tex. Penal Code Ann. §§ 22.021(a)(1)(B), (a)(2)(B) (West, Westlaw through 2023 4th C.S.). Physical evidence is not necessary to affirm a sexual assault conviction. See Bautista v. State, 619 S.W.3d 374, 378 (Tex. App.—Houston [14th Dist.] 2021, no pet.). Instead, the uncorroborated testimony of the complainant may be sufficient to support a conviction for aggravated sexual assault of a child under fourteen years of age. See Tex. Code. Crim. Proc. art. 38.07 (West, Westlaw through 2023 4th C.S.); Bautista, 619 S.W.3d at 378.

Appellant argues that the evidence is legally insufficient to support a finding that appellant caused the penetration of Jane's anus or sexual organ or that appellant caused her sexual organ or anus to contact his sexual organ. Appellant asserts that (1) there was no evidence that appellant caused the penetration of Jane's anus or sexual organ; and (2) Jane did not unequivocally state that her sexual organ, anus, or mouth was caused to touch appellant's sexual organ. Under binding precedent, no such unequivocal statement is required for the evidence to be legally sufficient to support a conviction for aggravated sexual assault of a child under fourteen years of age. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).

Jane described the first time that appellant abused her while Jessica was asleep in the bedroom and Jane's brother John was asleep in his bed. Jane described subsequent incidents of abuse that occurred when appellant got into bed with Jane and laid down with her under the covers. Jane described two other incidents in which Jessica was not there, and appellant carried her into the bedroom and laid her down on the bed and abused her while John was asleep in the living room.

In testifying regarding Jane's outcry, Jessica related that Jane said appellant put just the tip of his penis inside Jane's vagina and anus. During Jane's testimony she stated that when she refers to her “middle part,” she is referring to her vagina. When Jane was asked what part of appellant's body touched her middle part, she answered, “He would touch me with his hand and his — his penis.” Jane also testified that during the summer when Jessica had gone to work, appellant would lay next to Jane under the covers and he would “move his penis on [Jane's] butt.” Jane said appellant's penis felt hard and rough and that he would rub his penis on her “butt.” When asked whether by “butt” Jane meant her “butt cheeks ․or in the middle,” Jane responded “In the middle mainly, yeah.” Jane testified that appellant would rub his penis there for a few minutes. Jane testified that she was eight years old when these events took place. To the extent there was evidence that conflicted with the foregoing testimony, we presume the trier of fact discredited this conflicting evidence. See Turro, 867 S.W.2d at 47; Carr v. State, 477 S.W.3d 335, 339 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd).

Under the applicable standard of review, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly (1) caused Jane's sexual organ to contact appellant's sexual organ and (2) caused Jane's anus to contact appellant's sexual organ.² See Tex. Penal Code Ann. §§ 22.021(a)(1)(B), (a)(2)(B); Adams v. State, 502 S.W.3d 238, 244 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd); Mata v. State, 517 S.W.3d 257, 263–64 (Tex. App.—Corpus Christi 2017, pet. ref'd). Therefore, the trial evidence was legally sufficient to support appellant's conviction for the offense of aggravated sexual assault of a child under fourteen years of age, and we overrule the first issue.

B. Has appellant shown that the trial court abused its discretion in rejecting his complaints of ineffective assistance of counsel during the guilt/innocence phase?

In his second and third issues, appellant asserts that he was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution during the guilt/innocence phase, and that the trial court abused its discretion in denying his motion for new trial on this point. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I § 10; Tex. Code Crim. Proc. art. 1.051 (West, Westlaw through 2023 4th C.S.). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688–92. This test applies to claims arising under the state as well as the federal constitution. Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986). Appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). When the prejudice prong of the Strickland test is dispositive, we need address only that prong on appeal. See My Thi Tieu v. State, 299 S.W.3d 216, 225 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd).

We review a trial court's denial of a motion for new trial under an abuse-of-discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court's decision was unreasonable or arbitrary. Id. We view the evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Id. In determining a motion for new trial, the trial court alone determines the credibility of the witnesses. Id. Even if the testimony is not controverted or subject to cross-examination, the trial court has discretion to disbelieve that testimony. Id. A trial court abuses his discretion in denying a motion for new trial when no reasonable view of the record could support the ruling. Id.

1. Alleged failure to inform appellant of his constitutional right to a jury trial during the guilt/innocence phase

In his motion for new trial appellant complained that his attorney of record (“Counsel” or “Trial Counsel”) was ineffective because he failed to inform appellant of his constitutional right to a jury trial during the guilt/innocence phase. On appeal appellant notes that in both his declaration in support of the motion for new trial and in his testimony at the hearing on the motion, appellant asserted that Trial Counsel did not inform him that he had a constitutional right to a jury trial and that it was his right alone, not the attorney's, to decide whether to have a jury trial. At the hearing on appellant's motion for new trial, Trial Counsel testified that (1) he spent extensive amounts of time with appellant before trial; (2) he “explained [the jury trial system] to [appellant] quite a bit” and thus appellant was familiar with it; (3) appellant was aware that he had a right to a jury trial; (4) he explained to appellant over and over the difference between a bench trial and a jury trial; (5) he did not advise appellant to waive his right to a jury trial and to have a bench trial; (6) he counseled appellant as to his jury or bench trial options, and appellant made his decision; (7) he had multiple conversations with appellant regarding a bench trial versus a jury trial; and (8) he answered appellant's questions as to what he wanted and the pros and cons of each option and let appellant make the decision. Counsel's testimony supports a reasonable factual finding that Counsel informed appellant of his constitutional right to a jury trial during the guilt/innocence phase, and we presume that the trial court made this finding. See Colyer, 428 S.W.3d at 122. A reasonable view of the record supports the trial court's rejection of appellant's argument that his Trial Counsel failed to inform him of his constitutional right to a jury trial during the guilt/innocence phase, and the trial court did not abuse its discretion in rejecting this argument. See id.

2. Alleged failure to inform appellant of his right to testify and to prepare appellant to testify

In his motion for new trial appellant complained that Counsel was ineffective because he failed to inform him of his right to testify and failed to prepare him to testify. In his declaration appellant stated that his Trial Counsel did not inform him that it was appellant's right to testify and that appellant simply followed Counsel's advice not to testify. Appellant said that he always believed that testifying was in his best interest and that had he known it was his right to do so, he would have insisted on testifying. During the hearing on his motion for new trial, appellant stated that he wanted to testify during the guilt/innocence phase, but that Counsel advised him that he should not testify because he did not think appellant would be a good witness. At the hearing on appellant's motion for new trial, Trial Counsel testified that (1) he advised appellant that it was appellant's right to choose whether or not he was going to testify; (2) he advised appellant that the right to testify was solely up to him; (3) appellant did not want to testify; (4) he was never told that appellant wanted to testify; (5) appellant chose not to testify; and (6) he chose not to prepare appellant to testify because appellant said he was not going to testify. Trial Counsel's testimony supports a reasonable factual finding that he informed appellant of his right to testify during the guilt/innocence phase, and we presume that the trial court made this finding. See Colyer, 428 S.W.3d at 122. The trial court was free to believe Trial Counsel's testimony on this point and to disbelieve appellant's testimony to the contrary. See id.

If appellant was aware of his right to testify during the guilt/innocence phase and chose not to do so, there is no reasonable probability that the result of the proceeding would have been different but for Counsel's failure to prepare appellant to testify. See Toledo v. State, 519 S.W.3d 273, 289 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). A reasonable view of the record supports the trial court's rejection of appellant's ineffective-assistance complaints in the motion for new trial based on Counsel's alleged failure to inform appellant of his right to testify during the guilt/innocence phase and Counsel's failure to prepare appellant to testify, and the trial court did not abuse its discretion in rejecting these complaints. See Burch, 541 S.W.3d at 82.0–22; Toledo, 519 S.W.3d at 289; Colyer, 428 S.W.3d at 122.

3. Alleged failure to conduct an independent investigation of the facts

In his motion for new trial appellant complained that Trial Counsel was ineffective because he failed to conduct an independent investigation of the facts. Appellant complains that his lawyer did not interview a single State's witness before trial, or otherwise conduct an investigation independent of reviewing the State's file and interviewing appellant. Trial Counsel did not seek out and interview Jessica's brother, despite being on notice that her brother had slept in the same room with Jane and John for several months and had been told to move out of the apartment due to behavioral issues.³ Appellant also complains that Trial Counsel did not call any witnesses during the guilt/innocence phase.

We presume, without deciding, that Trial Counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, because: (1) he did not interview a single State's witness before trial or otherwise conduct an investigation independent of reviewing the State's file and interviewing appellant; (2) he did not seek out and interview Jessica's brother; and (3) he did not call any witnesses during the guilt/innocence phase. In this section II.B.3., we do not address Counsel's failure to call witnesses who allegedly would have shown that appellant's character was inconsistent with the charged offense, so that failure is not included in this presumption. We will address this point in section II.B.4.

We now address whether the trial court abused its discretion by impliedly determining that appellant did not show a reasonable probability that, but for these errors, the result of the guilt/innocence phase would have been different. See Strickland, 466 U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. It will not suffice for appellant to show “that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693; Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010). Rather, appellant must show that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695; Perez, 310 S.W.3d at 894. We review the totality of the evidence when evaluating appellant's ineffectiveness claim. Id.; Perez, 310 S.W.3d at 894.

Trial Counsel's failure to call witnesses to testify during the guilt/innocence phase is irrelevant absent a showing that such witnesses were available, that appellant would have benefitted from their testimony, and that there is a reasonable probability that the factfinder would have had a reasonable doubt as to appellant's guilt had the witness testified at trial. See Perez, 310 S.W.3d at 894. A claim for ineffective assistance based on trial counsel's general failure to investigate the facts of the case fails absent a showing of what the investigation would have revealed that reasonably could have changed the result of the case. See Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007). Likewise, a claim for ineffective assistance based on trial counsel's failure to interview a witness cannot succeed absent a showing of what the interview would have revealed that reasonably could have changed the result of the case. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994).

Although the State's witnesses were not interviewed before trial, appellant did not show what any of these interviews would have revealed that reasonably could have changed the result of the case. Trial Counsel did not seek out and interview Jessica's brother. Counsel stated that appellant told him that Jessica's brother was “a good guy,” “a really nice guy,” who was young and “partied too much.” According to Counsel, appellant did not tell him that Jessica's brother was implicated in the alleged abuse of Jane. Trial Counsel testified that he did not think that Jessica's brother had done anything wrong. In any event, appellant did not show what an interview of Jessica's brother would have revealed that reasonably could have changed the result of the case. Considering the totality of the evidence, the trial court did not abuse its discretion by impliedly determining that appellant failed to show that an interview of one of the State's witnesses or of Jessica's brother would have revealed something that reasonably could have changed the result of the case. See Jordan, 883 S.W.2d at 655 (although defense counsel inadequately prepared for trial by failing to interview potential alibi witnesses, counsel's deficient performance did not prejudice defendant because the record did not show that the result of the trial would have been different had the witnesses testified); Straight v. State, 515 S.W.3d 553, 568–69 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd); Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd).

Presuming that Trial Counsel did not conduct an investigation independent of reviewing the State's file and interviewing appellant, appellant did not show what such an investigation would have revealed that reasonably could have changed the result of the case. Considering the totality of the evidence, the trial court did not abuse its discretion by impliedly determining that appellant failed to show that an investigation independent of reviewing the State's file and interviewing appellant would have revealed something that reasonably could have changed the result of the case. See Jordan, 883 S.W.2d at 655; Fish v. State, 609 S.W.3d 170, 185 (Tex. App.—Houston [14th Dist.] 2020, pet. ref'd); Straight, 515 S.W.3d at 568–69; Stokes, 298 S.W.3d at 432.

Though Counsel did not call any witnesses during the guilt/innocence phase, appellant has not shown how he would have benefitted from the testimony of any witness or how that testimony reasonably could have changed the result of the case. Appellant testified that if he had been called as a witness during guilt/innocence, he would have (1) denied the charges against him, (2) testified regarding the whole history of his relationship with Jessica, (3) shown that the allegations could not have occurred as described, (4) stated that Jessica's brother slept in the same room as Jane and had access to her, and (5) testified regarding his statement to Officer Jones. According to Jane's testimony, there were no third party witnesses to appellant's sexual abuse of Jane, because the other occupants of the apartment were asleep at the time of the abuse. Appellant does not explain how he would have shown that the allegations could not have occurred as described, but he did not testify that he would have shown that no aggravated sexual assault of Jane by him could have occurred. So it appears appellant was saying that he would have shown the inaccuracy of one or more details in Jane's testimony regarding the aggravated sexual assault. The trial court could have discredited appellant's testimony and credited Trial Counsel's testimony that appellant told him that maybe Jane had a bad dream, that maybe Jane had watched some videos of him, and that she might have been aroused by appellant, thus indicating appellant would make a poor witness during the guilt/innocence phase. See Colyer, 428 S.W.3d at 122. Considering the totality of the evidence, as to the witnesses other than those discussed in the next subsection, the trial court did not abuse its discretion by impliedly determining that appellant failed to show that there is a reasonable probability that the factfinder would have had a reasonable doubt as to appellant's guilt had any such witness testified at trial. See Perez, 310 S.W.3d at 894.

4. Failure to interview and call witnesses to show that appellant's character was inconsistent with the charged offense

In his motion for new trial appellant complained that Trial Counsel was ineffective because he failed to interview and call the following witnesses to show that appellant's character was inconsistent with the charged offense: Ashley Gudino, Leonor Chavez, Roxanna Ramirez, Melissa Reyna, Braulio Chavez, Eliseo Chavez, and Joanna Chavez (collectively the “Character Witnesses”). In an affidavit admitted into evidence at the hearing on the motion for new trial Ashley Gudino testified: (1) Ashley is appellant's nineteen-year-old niece; (2) she was available and willing to testify during the guilt/innocence phase of appellant's trial; (3) Ashley lived in the same home as appellant from 2002 through 2019; (4) appellant treated her like a father, never mistreated her, and never sexually or physically abused her; (5) appellant never mistreated or abused Jane, John, or any of Ashley's cousins who would spend time in Ashley's home; (6) in Ashley's opinion appellant's character for being peaceful and law abiding is good; (7) Ashley has seen appellant around children, and in her opinion appellant's character for the moral and ethical treatment of children is good; and (8) if called to testify, she would have testified to appellant's good character to show he did not commit sexual abuse of a child.

In an affidavit admitted into evidence at the hearing on the motion for new trial Leonor Chavez testified: (1) she is appellant's sister; (2) she met Jessica and her children after appellant began a relationship with her; (3) Jessica, Jane, and John eventually moved into the home where Leonor lived with her daughter, mother, appellant, and Braulio Chavez; (4) after four years Jessica and her children moved out; and (5) Leonor never saw appellant mistreat Jane or John.

In a declaration admitted into evidence at the hearing on the motion for new trial Roxanna Ramirez testified: (1) Roxanna is appellant's wife, and she met him in 2017 before the charges in this case were filed; (2) they have a wonderful relationship, and Roxanna is four months pregnant with appellant's child; (3) Roxanna was ready and willing to testify at trial; (4) Counsel told Roxanna that she looked too young to testify and that the trial court would think badly of appellant for having a wife that looked too young, although Roxanna is twenty-four years old; (5) Roxanna has seen appellant on many occasions with young children and has personal knowledge about “who he is as a human being”; (6) Roxanna believes her testimony would have been helpful for determining appellant's guilt; and (7) Roxanna is disappointed that she was never called to testify as to appellant's good character for the good, moral, and ethical treatment of children.

In a declaration admitted into evidence at the hearing on the motion for new trial Melisa Reyna testified: (1) she is appellant's cousin; (2) she has known appellant his entire life, and they grew up together; Melisa was aware of the charges and was willing to help appellant in any way she could; and (3) She could have testified as to appellant's good character for the good, moral, and ethical treatment of children.

In a declaration admitted into evidence at the hearing on the motion for new trial Braulio Chavez testified: (1) he is appellant's brother and has been very close with appellant Braulio's whole life; (2) Braulio was aware of the accusations against him from the day the case was filed and always believed in appellant's innocence; (3) Braulio has firsthand knowledge that appellant spent time with many children because they lived in the same home with Braulio's family; (4) Braulio observed appellant with Jessica's children frequently, and they always treated him with respect and kindness; and (5) Braulio could have testified as to appellant's good character for the good, moral, and ethical treatment of children.

In a declaration admitted into evidence at the hearing on the motion for new trial Eliseo Chavez testified: (1) he is appellant's uncle on his mother's side; (2) Eliseo has known appellant his entire life and has always treated him as a son; (3) appellant has spent a lot of time around young children, including Eliseo's grandchildren; (4) Eliseo was aware of the accusations against appellant from the day the case was filed and always believed in appellant's innocence; and (5) Eliseo could have testified as to appellant's good character for the good, moral, and ethical treatment of children.

In a declaration admitted into evidence at the hearing on the motion for new trial Joanna Chavez testified: (1) she is appellant's cousin on his mother's side; (2) she has known appellant his entire life, and they grew up together; (3) appellant has had frequent contact with Joanna's 7 year old daughter and has been left alone with her on several occasions; (4) Joanna was aware of the accusations against appellant from the day the case was filed and always believed in appellant's innocence; and (5) She could have testified as to appellant's good character for the good, moral, and ethical treatment of children.

Trial Counsel's decision not to call a witness is not insulated from review, but unless a defendant overcomes the presumption that counsel's actions were based in sound and reasonable trial strategy, counsel generally will not be found ineffective. Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012); Redmond v. State, 499 S.W.3d 32, 37 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). In his testimony at the hearing on the motion for new trial, Trial Counsel acknowledged that he did not call any character witnesses during the guilt/innocence phase, but stated that he did not do so because it would not further his trial strategy. He stated that “[m]y trial strategy did not include putting on his family members to say that he was a swell guy or a good guy in the guilt/innocence phase. That was just not my strategy. I didn't think the State could prove their case beyond a reasonable doubt.” He testified that he thought there were some problems in calling character witnesses during the guilt/innocence phase and that he did not think that the case necessitated any such witnesses. He testified that he did not think “it was a question of whether [appellant] was a good person or a bad person, as per se [Jessica] and [Jane] had already said positive things about him. He wasn't an abusive person․ [H]e bought gifts for the kids. I think he worked quite a bit. He had several jobs. She worked quite a bit. So, it was really nothing to really explore, in my strategy, for that.” When asked what his strategic reason was for not calling witnesses during the guilt/innocence phase to show appellant's good character for the treatment of children, Trial Counsel stated that he did not think that such testimony was needed and that he did not think he had any substantial evidence to put on in that regard because appellant was not a daycare worker or a kindergarten teacher, and he did not babysit the neighbor's kids or any family member's kids.

Although appellant did provide evidence as to what the Character Witnesses' testimony would have been if they had testified during the guilt/innocence phase, none of the Character Witnesses (1) had any personal knowledge concerning Jane's allegations, (2) could provide eyewitness accounts of what transpired between Jane and appellant in Jessica's apartment, (3) could provide appellant with an alibi or (4) had information that directly contradicted Jane's contentions. This supports Counsel's decision not to call the Character Witnesses during the guilt/innocence phase. See Hale v. State, 140 S.W.3d 381, 392–94 (Tex. App.—Fort Worth 2004, pet. ref'd) (concluding that appellant's trial lawyer's decision not to call any witnesses as to appellant's good character with children was based on sound trial strategy because none of the witnesses had personal information about the victims' sexual abuse allegations, could provide an alibi or eyewitness account of what transpired between the defendant and the victims, and, at best could offer testimony on their personal observations of appellant interacting with the victims on other occasions and statements to the effect that nothing inappropriate occurred while the witnesses were present).

Trial Counsel's testimony supports a reasonable factual finding that appellant failed to overcome the presumption that Counsel's decision not to call the Character Witnesses to testify during the guilt/innocence phase in an attempt to show that appellant's character was inconsistent with the charged offense was based in sound and reasonable trial strategy, and we presume that the trial court made this finding. See Colyer, 428 S.W.3d at 122; Hale, 140 S.W.3d at 392–94. Considering the totality of the evidence, the trial court did not abuse its discretion by impliedly rejecting appellant's argument that Trial Counsel rendered ineffective assistance of counsel because he failed to call the Character Witnesses in an attempt to show that appellant's character was inconsistent with the charged offense. See Ex parte Flores, 387 S.W.3d at 633; Redmond, 499 S.W.3d at 37; Hale, 140 S.W.3d at 392–94. Even presuming that Counsel's representation was deficient in this regard, considering the totality of the evidence, the trial court did not abuse its discretion by impliedly determining that appellant failed to show that there is a reasonable probability that the factfinder would have had a reasonable doubt as to appellant's guilt had any or all of the Character Witnesses testified during the guilt/innocence phase in an attempt to show that appellant's character was inconsistent with the charged offense. See Perez, 310 S.W.3d at 894.

5. Failure to effectively utilize an expert to assist with the preparation and presentation of a defense

In his motion for new trial appellant complained that Counsel was ineffective because he failed to effectively utilize an expert to assist with the preparation and presentation of a defense. Appellant argues that Counsel moved for the appointment of a psychologist to assist with the preparation and presentation of his defense and that even though the trial court granted this motion, Counsel proceeded to trial without presenting the testimony of an available expert and without effectively utilizing the assistance of an expert. At trial the State called an expert to testify regarding the protocols for Jane's forensic interview. Although appellant acknowledges that his lawyer utilized an expert, Dr. Thorne, to review Jane's forensic interview, appellant contends that Counsel rendered ineffective assistance by failing to call Dr. Thorne to testify at trial to bolster appellant's defense, or to counter the opinions of the State's expert, or to assist in the cross-examination of the State's expert. In support of this argument appellant relies on Wright v. State, 223 S.W.3d 36 (Tex. App.–Houston [1st Dist.] 2006, pet. ref'd).

During the hearing on the motion for new trial, Trial Counsel testified as follows:

• The trial court ordered that funds be provided for appellant to hire an expert.

• Counsel hired Dr. Stephen Thorne as an expert to review the forensic interview of Jane conducted by the Children's Assessment Center (“CAC Interview”), and Dr. Thorne reviewed the CAC Interview.

• Dr. Thorne emailed Counsel questions regarding the CAC Interview as well as fourteen pages of questions that Counsel could asked of Dr. Thorne if Dr. Thorne was called as an expert witness in this case regarding the CAC Interview.

• Counsel talked to Dr. Thorne on the phone “quite a bit.”

• Counsel has attended several seminars on cross-examining children's assessment supervisors.

• The State called Lisa Bourgoyne, who was a supervisor from the Children's Assessment Center, as a witness, and she explained the normal process for conducting a forensic interview of a child.4

• He used Dr. Thorne's expertise in drafting and conducting his cross-examination of Bourgoyne.

• He did not call Dr. Thorne as a witness at trial, nor did he call any other expert witness.

• He did not ask Dr. Thorne to attend the trial to assist in cross-examining Bourgoyne.

• When asked what his strategic reason was for not having Dr. Thorne appear at trial, he stated that he had studied Bourgoyne, knew what Dr. Thorne was saying about Bourgoyne, and was fully prepared by his 25 years of experience in numerous sexual assault trials to cross-examine Bourgoyne.

• He did not think that the State proved its case beyond a reasonable doubt.

• He “did not think strategically that [he] needed [Dr. Thorne] as a witness.”

We presume, without deciding, that Trial Counsel's failure to call Dr. Thorne to testify during the guilt/innocence phase fell below an objective standard of reasonableness, based on prevailing professional norms, and that Dr. Thorne was available to testify at trial. Even under this presumption the failure to call Dr. Thorne to testify during the guilt/innocence phase is irrelevant absent a showing of a reasonable probability that the factfinder would have had a reasonable doubt as to appellant's guilt had Dr. Thorne testified at trial. See Perez, 310 S.W.3d at 894. Dr. Thorne did not testify at the hearing on the motion for new trial, nor did another witness testify as to what type of testimony Dr. Thorne would have given. The only evidence in the record that arguably bears on what Dr. Thorne's testimony would have been is the fourteen pages of questions written by Dr. Thorne that were admitted into evidence (“Dr. Thorne's Questions”). Though these questions appear to be questions for Trial Counsel to ask Dr. Thorne while testifying at trial, no answers are provided for most of the questions, and this document is not sworn testimony. Though the answers that are provided suggest that Dr. Thorne might have testified that the CAC Interview should have been more through and objective, the absence of the answers to most of the questions makes it difficult to know what Dr. Thorne's testimony would have been.

Though appellant relies on Wright v. State, that case is materially different from today's case. In Wright the appellant's defensive theory was that the allegations of sexual abuse had been fabricated by his daughter, acting under the improper influence of his ex-wife, who was mad at him for refusing to cooperate with her desire to move out of the country with her children. See 223 S.W.3d at 42, 44. In Wright there was evidence supporting this defensive theory, including statements by the complainant in her CPS interview and in her therapist's notes, which appellant's trial counsel had trouble reading. See id. at 40–41. Significantly, in Wright, a licensed psychologist testified at the hearing on the motion for new trial and provided evidence of the type of expert testimony that trial counsel could have introduced during the guilt/innocence phase. See id. The expert testified that as to the complainant's therapy sessions, there was an “extreme variation from the standard protocol of working with a child victim; and the particular variances from that protocol suggested that there was a very high potential for significant adverse influences upon the child that might have created ․ a coercive environment in which she would be encouraged and pressured in various ways to make false allegations.” Id. at 41 (internal quotations omitted). The expert testified that the CPS interviewer ignored a potentially exculpatory statement by the complainant. See id. According to the expert the participation by appellant's ex-wife in the therapy sessions would not allow the complainant an opportunity to alter any dynamic occurring between the child and the mother that could encourage the child to make a false statement. See id. The expert also opined that “a significant violation of professional boundaries” had occurred when the therapist allowed the lead prosecutor in the case to participate in a therapy session. See id. In today's case there were no custody issues as to Jane or John, and there was no defensive theory or allegation of fabrication by Jane as a result of improper influence by Jessica. On the contrary, even after Jane made an outcry to Jessica of sexual abuse by appellant, Jessica did not report this outcry to CPS or law enforcement. In this case no expert testified at the hearing on the motion for new trial to show what Dr. Thorne's testimony could have been regarding the CAC interview. Considering the totality of the evidence the trial court did not abuse its discretion by impliedly determining that appellant failed to show a reasonable probability that the factfinder would have had a reasonable doubt as to appellant's guilt had Dr. Thorne testified at trial. See Perez, 310 S.W.3d at 894.

Appellant contends that considering the cumulative effect of the multiple instances where Counsel's representation during the guilt/innocence phase fell below an objective standard of reasonableness, there is a reasonable probability that the result would have been different but for Counsel's deficient performance. Even considering the cumulative effect of the deficient performance of Counsel presumed in section II.B.3., section II.B.4., and section II.B.5., and considering the totality of the evidence, the trial court did not abuse its discretion by impliedly determining that appellant failed to show that there is a reasonable probability that the factfinder would have had a reasonable doubt as to appellant's guilt if Counsel's representation was not deficient in any of these respects. See id.

Having found no merit in all of appellant's arguments under his second and third issues, we overrule these issues.

C. Was the denial of appellant's motion for new trial an abuse of discretion based on the alleged denial of appellant's right to a jury trial?

In his fourth issue appellant asserts that his waiver of the constitutional right to a jury trial was uninformed and involuntary. In his fifth issue appellant asserts that the trial court abused its discretion by denying appellant's argument in the motion for new trial that he was denied his fundamental right to a jury trial. We presume for the sake of argument that these issues were preserved in the trial court.

“A defendant has an absolute right to a jury trial.” Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009); see U.S. Const. amend. VI; Tex. Const. art. I, § 15. However, except in a capital felony case in which the State is seeking the death penalty, a defendant may waive the right to a jury trial and, instead, have a bench trial. See Hobbs, 298 S.W.3d at 197; Tex. Code Crim. Proc. Ann. art. 1.13(a) (West, Westlaw through 2023 4th C.S.). For a waiver of a defendant's right to a jury trial to be valid, the record must show that it was voluntarily and knowingly made. Hobbs, 298 S.W.3d at 203 n.42. When a defendant challenges the voluntariness of his jury-trial waiver, the State must establish through the record that the defendant expressly, knowingly, and intelligently waived his right to a jury trial. Hobbs, 298 S.W.3d at 197; Martinez v. State, 449 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).

In this case, appellant signed a “Waiver of Trial by Jury in Offense Less than Capital” which explicitly stated that appellant, “having been informed of [appellant's] right to a trial by jury, waives the right to trial by jury, and chooses to have the issue of guilt determined by the judge.” In addition to expressing on the jury-trial-waiver form that appellant understood his right to a jury trial, but was opting to waive that right and proceed with a bench trial, the trial court, appellant, and Trial Counsel also had the following exchange concerning appellant's jury-trial waiver:

[Trial Court]: Mr. Chavez, you filed in your case a waiver of trial by jury in a[n] offense less than capital; is that correct, sir?

[Appellant]: Correct.

[Trial Court]: You understand you're charged with the offense of continuous sexual abuse of a child?

[Appellant]: Correct.

[Trial Court]: You understand you have a right to a trial by jury?

[Appellant]: Yes.

[Trial Court]: You understand what a jury trial is?

[Appellant]: Yes.

[Trial Court]: You have filed in this case a waiver of trial by jury; is that correct?

[Appellant]: Correct.

[Trial Court]: And you've signed your name to a document that's titled “Waiver of Trial by Jury in an Offense Less than Capital”; is that correct?

[Appellant]: Yes.

[Trial Court]: Did you sign that document freely and voluntarily?

[Appellant]: Yes.

[Trial Court]: Has anyone promised you anything, threatened you in any way, to get you to sign this document?

[Appellant]: No.

[Trial Court]: You understand by signing this document, you are giving up your right to a trial by jury?

[Appellant]: Correct.

[Trial Court]: Do you understand that, sir?

[Appellant]: I do now, yes.

[Trial Court]: You do now. Did you at the time you signed the document?

[Appellant]: Yeah, I did. I did.

[Trial Court]: Is it your desire to waive your right to trial by jury and proceed to trial in this case before a Judge?

[Appellant]: Yes.

[Trial Court]: And, [Counsel], have you counseled Mr. Chavez relative to his right to a trial by jury?

[Counsel]: Yes, Your Honor, I have. We have discussed this issue at length, some pros and cons on both sides; and that was his decision to make. Yes, Judge, I have.

[Trial Court]: And is it your belief that he has signed this document freely and voluntarily?

[Counsel]: That is my belief, Judge.

[Trial Court]: And, Mr. Chavez, has anyone promised you anything or threatened you in any way to get you to sign this document?

[Appellant]: No.

[Trial Court]: You all understand that if the Judge finds beyond a reasonable doubt that you're guilty, you understand the range of punishment in this case?

[Appellant]: Correct.

[Trial Court]: And you understand that to be a minimum of 25 years, up to life in prison, and a fine up to $10,000; do you understand that?

[Appellant]: Yes.

[Trial Court]: Is it still your desire to proceed without a jury and have the Court to determine the issues of — of whether or not the State can prove their case beyond a reasonable doubt?

[Appellant]: Yes.

[Trial Court]: The Court finds that Mr. Chavez has been advised of his right to trial by jury, has executed a waiver of trial by jury and affixed his name to that written waiver of trial by jury.

The Court, based on the answers provided by Mr. Chavez, believes that he has done so freely and voluntarily. So the Court accepts and will approve the waiver of trial by jury in this case.

The foregoing exchange and appellant's execution of the jury-trial waiver form show that (1) appellant was informed of his right to a jury trial and understood that right, and (2) appellant expressly, knowingly, voluntarily, and intelligently chose to waive his right to a jury trial and proceed instead with a bench trial. The trial court was free to disbelieve appellant's testimony to the contrary. See Colyer, 428 S.W.3d at 122. Trial Counsel also testified that he explained to appellant that once appellant waived his right to a jury trial, if appellant did not like the judge that ended up presiding over his bench trial, appellant could not withdraw his waiver of jury trial. Counsel stated that appellant chose a bench trial, not knowing which judge would preside over the bench trial. The trial court was free to believe Counsel's testimony and disbelieve any evidence to the contrary. See id. Accordingly, the record supports the trial court's implied determinations that appellant's jury-trial waiver was fully informed and voluntary, that appellant validly waived his right to a jury trial, and that appellant was not entitled to a new trial based on the denial of his right to a jury trial. See Martinez, 449 S.W.3d at 199–201; Smith v. State, 363 S.W.3d 761, 767–68 (Tex. App.—Austin 2012, pet. ref'd); Hoang v. State, 825 S.W.2d 729, 731–32 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd). Considering the totality of the evidence, the trial court did not abuse its discretion by impliedly rejecting appellant's arguments that his waiver of his right to a jury trial was uninformed and involuntary and that he was denied his constitutional right to a jury trial. See Martinez, 449 S.W.3d at 199–201; Smith v. State, 363 S.W.3d at 767–68; Hoang, 825 S.W.2d at 731–32. Therefore, we overrule the fourth and fifth issues.

D. Has appellant shown that the trial court abused its discretion in rejecting his complaints of ineffective assistance of counsel during the punishment phase?

In his sixth issue appellant asserts that he was denied effective assistance of counsel at the punishment phase as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. In his seventh issue appellant contends that the trial court abused its discretion by denying the arguments in his motion for new trial that he was denied effective assistance of counsel during the punishment phase. In his motion for new trial appellant complained that Trial Counsel was ineffective because he failed to call various witnesses to testify during the punishment phase. On appeal appellant asserts that Counsel rendered ineffective assistance during the punishment phase by failing to interview or call Ashley Gudino, Roxanna Ramirez, Melisa Reyna, and Eliseo Chavez (collectively the “Punishment Witnesses”) during the punishment phase. Appellant also contends that Counsel rendered ineffective assistance by failing to prepare appellant, Adrian Reyna, Leonor Chavez, and Braulio Chavez to testify during the punishment phase. The testimony of Gudino, Melisa Reyna, and Eliseo Chavez in their affidavit or declaration was described in section II.B.4 above, but none of them stated therein what their testimony would have been had they been called as a witness during the punishment phase. Ramirez's testimony was described in section II.B.4 above. She did not state in her declaration or in her testimony at the hearing what her testimony would have been had she been called as a witness during the punishment phase. The testimony of Leonor Chavez and Braulio Chavez in their affidavit or declaration was described in section II.B.4 above, but there was no evidence as to how their punishment phase testimony would have been different if Counsel had better prepared them to testify. No testimony of Adrian Reyna was submitted at the hearing on the motion for new trial. The evidence does not show how the testimony of appellant or Adrian Reyna during the punishment phase would have been different if Counsel had better prepared them to testify.

Trial Counsel testified that in the punishment phase of trial, “[his] job was to show mitigation punishment that [he] thought was helpful and that [he] thought wasn't overly redundant, but very helpful to [appellant].” He stated that, in furtherance of that goal, he asked appellant to provide a list of witnesses who could testify on appellant's behalf. Counsel stated that appellant complied and provided a list that named “about five or six people.” In addition to appellant, appellant's sister, brother, and cousin testified during the punishment phase, and Counsel testified that he prepared these three family members to testify when they were at his office two times and also during the break before the punishment phase started. Counsel discussed with them “how the punishment phase would go, the type of questions that I would be asking, the type of questions that would probably be asked to them.” Counsel decided to call appellant, appellant's cousin (Adrian Reyna), appellant's sister (Leonor Chavez), and appellant's brother (Braulio Chavez) as punishment witnesses and indicated that he called these people to testify because he knew they would be the strongest witnesses. Counsel testified that he made a strategic decision to not call appellant's wife, Roxanna, to testify because he did not believe that she would be a good witness because she looked and acted very young, she “mostly kind of laughed and giggled” when he spoke with her, she spoke little English, and he “never could get any — not a word out of her in terms of anything that she could say positive or negative because she just always kind of sat there.” Trial Counsel also recalled that he spoke to one of appellant's nieces before trial but “didn't think that [it] was going to be advantageous” to call her to testify because she “had her own issues in regards to she'd [sic] been touched by a family member” and “[s]he was very emotional” about it.

Trial Counsel testified that some other people showed up at trial, but he did not call them to testify because he did not know who they were, he had never met them previously, they were not on the witness list that appellant had provided, and appellant had never mentioned them. He decided to call only “the ones that [he] had already spoken with and prepped” and “[he] did not focus on the people other than what we had already talked about.” Furthermore, he explained that his priority when evaluating and selecting witnesses was quality, not quantity:

I just don't grab numbers. You have some people that are very good character witnesses, and you have some people that are not very good character witness[es], and you have some people that might go in[to] some things that you did not need them to go into. So, you still have to evaluate their temperament, who they are to him, what they observed, what they might say, what they may—you know, what they may be stuck on saying. And so you decide from there.

Regarding his efforts to prepare the punishment witnesses he had selected, Counsel explained that, in addition to meeting with the witnesses in his office on at least two occasions before trial, he also spoke to the witnesses over the break between the guilt/innocence phase and the punishment phase of trial, “to try to recap what we had already talked about” during counsel's meetings with the family members in counsel's office. This preparation apparently paid off because the trial court appeared to have been swayed by the favorable punishment testimony of appellant's family members when assessing appellant's punishment:

[Trial Court]: Will you stand, please, Mr. Chavez. Well, I have to say that the prosecutor has made some valid points. On the other hand, I heard from your family; and I believe that it's true that, except for these incidents with the complainant, you probably have been a good person and I think have the potential at least to be a good person in the future.

The evidence supports reasonable factual findings that Trial Counsel's decisions to call some of appellant's family members as punishment witnesses, while declining to call others, were based on reasonable trial strategy and that he sufficiently prepared the three punishment witnesses he called, whose testimony he deemed to be the most advantageous to appellant. The trial court was free to believe Counsel's testimony regarding the preparation and presentation of punishment phase witnesses and to disbelieve contrary testimony from appellant and his family members. See Colyer, 428 S.W.3d at 122. The record supports the trial court's implied determination that in deciding not to call the Punishment Witnesses to testify and in preparing appellant, Adrian Reyna, Leonor, and Braulio to testify, appellant's representation did not fall below an objective standard of reasonableness, based on prevailing professional norms. See Carter v. State, 506 S.W.3d 529, 540–41 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (stating that “[h]ere, defense counsel made a reasoned, strategic choice to limit the character witnesses to the two that he thought would be more persuasive to the judge, and to avoid having several witnesses testifying to essentially the same information”).

The evidence does not show what the Punishment Witnesses' testimony would have been in the punishment phase or show how their testimony would have benefitted appellant's case regarding topics not already covered by the punishment witnesses who did testify. Likewise, the evidence does not show how the testimony of appellant, Adrian Reyna, Leonor, or Braulio would have been different absent Counsel's alleged ineffectiveness in failing to properly prepare them to testify. The State asked the trial court to assess punishment of at least thirty years' confinement, and the trial court assessed punishment at twenty years' confinement after stating that based on the testimony of appellant's family members, the trial court believed that, except for these incidents with Jane, appellant probably has been a good person and has the potential to be a good person in the future. In the alternative, considering the totality of the evidence, the trial court did not abuse its discretion by impliedly determining that appellant failed to show that there is a reasonable probability that the result of the punishment hearing would have been different if the Punishment Witnesses had been called to testify during the punishment phase or if Counsel had not allegedly been ineffective in failing to properly prepare appellant, Adrian Reyna, Leonor, and Braulio to testify. See Perez, 310 S.W.3d at 894 (relying on statement from prior Court of Criminal Appeals opinion that a trial lawyer's failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that appellant would benefit from their testimony); Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App. 2005) (finding no prejudice in the failure to call additional punishment witnesses when the defendant failed to show that the additional witnesses' testimony would have been beneficial); Robinson v. State, 514 S.W.3d 816, 824 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (finding no prejudice in the failure to call punishment witnesses when the defendant failed to show what the substance of these witnesses' testimony would have been had they been called to testify). Therefore, we overrule the sixth and seventh issues.

E. Did the trial court err in failing to review the order of the associate judge following objections by appellant to the order?

In his eighth issue appellant asserts that the trial court erred in failing to review the order of the associate judge denying the motion for new trial following objections by appellant under Government Code section 54A.013. See Tex. Gov't Code Ann. 54A.013 (West, Westlaw through 2023 4th C.S.). The trial court imposed sentence on appellant in open court on August 10, 2022. If the trial court wanted to rule on the motion for new trial, the court was required to do so within seventy-five days after imposing sentence in open court. Tex. R. App. P. 21.8(a); Flores v. State, 679 S.W.3d 695, 696–97 (Tex. Crim. App. 2023). A motion for new trial not timely ruled on by written order will be overruled by operation of law when the seventy-five-day period expires. Tex. R. App. P. 21.8(c); Flores, 679 S.W.3d at 697. Once a motion for new trial is overruled by operation of law, the trial court loses jurisdiction to rule on it. Flores, 679 S.W.3d at 697.

Appellant timely filed and presented his motion for new trial. An associate judge held a hearing on the motion for new trial. On October 21, 2022, the associate judge signed an order stating as follows:

On the 21st day of October, 2022, came on to be considered the Defendant's Motion for New Trial. Having considered the motions, exhibits, evidence and/or arguments of counsel, the court is of the opinion that the motion should be: ․ DENIED.”

Though the associate judge expressed the opinion that the motion for new trial should be denied, the associate judge did not include any decretal language in the order stating that the motion was denied. In this order the associate judge does not deny the motion for new trial; instead, the associate judge recommends that the motion be denied. See Ex parte Sinclair, 693 S.W.3d 346, 355 n.11 (Tex. Crim. App. 2024) (plurality op.); In re Wilmington Trust, Nat'l Ass'n, 524 S.W.3d 790, 793 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding).

At 10:36 p.m. on October 24, 2022, the seventy-fifth day after the trial court imposed sentence on appellant, appellant filed objections to the associate judge's order and asked the trial court to reverse the order under Government Code section 54A.013(a). See Tex. Gov't Code Ann. 54A.013. Eighty-four minutes later the motion for new trial was overruled by operation of law, and the trial court lost jurisdiction to rule on it. See Tex. R. App. P. 21.8(c); Flores, 679 S.W.3d at 697. Appellant complains that the trial court erred by failing to review the associate judge's order after he filed these objections and by failing to rule on the objections. The record reflects that after the associate judge recommended that the motion for new trial be denied, the trial court allowed the motion to be overruled by operation of law. Less than two hours before the motion was overruled by operation of law and the trial court lost jurisdiction over the motion, appellant filed objections to the associate judge's order, but appellant has cited no legal authority supporting the proposition that the trial court was required to take any action after he filed his objections. We conclude that appellant has not shown that the trial court erred by failing to review the associate judge's order after he filed objections to it or by failing to rule on these objections. Therefore, we overrule the eighth issue.

III. CONCLUSION

The trial evidence was legally sufficient to support appellant's conviction for the offense of aggravated sexual assault of a child under fourteen years of age. Appellant has not shown that the trial court abused its discretion in rejecting his complaints of ineffective assistance of counsel. Appellant's waiver of his right to a jury trial was not uninformed or involuntary, and the trial court did not abuse its discretion by impliedly rejecting appellant's argument that he was denied his constitutional right to a jury trial. Appellant has not shown that the trial court erred by failing to review the associate judge's order after he filed objections to it or by failing to rule on these objections. Accordingly, we affirm the trial court's judgment.

FOOTNOTES

1.   We use a pseudonym for the complainant and her brother and mother to help protect the family's privacy. See Tex. R. App. P. 9.10(a)(3).

2.   We need not and do not address whether the evidence is legally sufficient to support a finding that appellant intentionally or knowingly caused the penetration of Jane's anus or sexual organ by any means.

3.   Trial Counsel testified at the hearing on the motion for new trial that Jessica's brother had stayed the night at Jessica's apartment but that he was thrown out because he was violating the rules by staying out late. Appellant testified that Jessica's brother lived at Jessica's apartment for four to six months and that he slept on one of the beds in the living room of Jessica's apartment, while Jane and John slept on the other bed.

4.   Counsel initially said that this witness was Claudia Gonzalez but later correctly stated that the witness was Lisa Bourgoyne.

Randy Wilson Chief Justice