Ex Parte Nolberto Blanco v. the State of Texas

Opinion issued March 31, 2025

In The

Court of Appeals

For The

First District of Texas

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NO. 01-24-00541-CR

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EX PARTE NOLBERTO BLANCO

On Appeal from County Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 2511636

MEMORANDUM OPINION

A jury convicted Appellant Nolberto Blanco of the offense of assault with

bodily injury, a Class A misdemeanor. The trial court sentenced him to three days’

confinement, ordered him to pay restitution and court costs, and suspended his

driver’s license. One year later, Blanco filed an application for writ of habeas corpus

arguing his trial counsel rendered ineffective assistance by filing an untimely motion

for new trial and failing to perfect Blanco’s notice of appeal. After a hearing, the

habeas court denied Blanco’s writ and this appeal ensued.

Blanco argues the habeas court erred in denying his writ because his trial

counsel rendered ineffective assistance of counsel. We affirm.

Background

On September 9, 2022, a jury convicted Blanco of assault with bodily injury.

On the same day, the trial court sentenced him to three days’ confinement in the

Harris County jail, ordered him to pay $3,500 in restitution, $270 in court costs, and

$40 in reimbursement fees, and suspended his driver’s license.1 Blanco was given

credit for two days’ time served.

Motion for New Trial

On October 11, 2022, Blanco’s trial counsel filed a motion for new trial and

motion in arrest of judgment. She asserted the motion was timely filed because

October 9, 2022—the day on which the motion was due—fell on a weekend and the

“following Monday, October 10, was a national holiday.” Relying on a purported

conversation she had with jurors following trial, Blanco’s counsel argued “the

verdict was contrary to the law and the evidence” because the jurors allegedly told

1

Under Texas Penal Code section 12.21, “[a]n individual adjudged guilty of a Class

A misdemeanor shall be punished by: (1) a fine not to exceed $4,000;

(2) confinement in jail for a term not to exceed one year; or (3) both such fine and

confinement.” TEX. PENAL CODE § 12.21.

2

her “they believed [Blanco had] acted in self-defense.”2 According to Blanco’s trial

counsel, the “jury admitted that they believed the complainant [had thrown] the first

punch and that [Blanco had] acted in self-defense.” In support of the motion, trial

counsel submitted her own affidavit relating her purported conversation with jurors.

Trial counsel did not secure a hearing for the motion for new trial within seventy-

five days of Blanco’s sentence date. As a result, the motion was overruled by

operation of law.

The Writ Application and Hearing

Over a year after his conviction, on December 21, 2023, Blanco filed an

application for writ of habeas corpus arguing his trial counsel rendered ineffective

assistance by filing an untimely motion for new trial and failing to perfect his notice

of appeal “in violation of the Fifth, Sixth, and Fourteenth Amendments, U.S.C.A.

and Art. 1 [Section] 10, Art. 1 [Section] 19 of the Texas Constitution.” Blanco

argued that his motion for new trial was due on Sunday, October 9, 2022, but was

untimely filed by his counsel on Tuesday, October 11, 2022. He also argued that his

trial counsel had not filed a notice of appeal.3 Blanco requested that the trial court

2

Blanco’s counsel characterized the incident underlying the assault charge as a “fist-

fight” that “lasted approximately 15 seconds” where “no weapons were used.” She

argued “[t]he amount of force used by [Blanco] was reasonable” because as the

evidence reflected, the “complainant threw the first punch.”

3

Presumably because he argued the motion for new trial was filed late, Blanco did

not base his ineffective assistance claim on his counsel’s failure to set the motion

for hearing within seventy-five days of his sentence date.

3

permit him to file an out of time notice of appeal or an out of time motion for new

trial. Blanco filed a first amended application for writ of habeas corpus seeking the

same relief and asserting that because his conviction involved restitution, he was

subject to “collateral criminal consequences.”

The State filed a response arguing that Blanco’s writ application should be

denied “for failure to plead and prove facts which, if true, entitle[d] him to habeas

relief—including facts demonstrating that [his trial counsel’s] conduct prejudiced

him.” (Emphasis in original.) The State argued that trial counsel’s “unsworn

affidavit,” filed in support of Blanco’s writ, failed to address why trial counsel filed

a late motion for new trial, and that a “silent record” was insufficient to establish

prejudice. The State also argued that nothing, including trial counsel’s “bare-bones

affidavit,” suggested Blanco “ever desired to appeal his conviction or to file a motion

for new trial.”4 In any event, the State argued that Blanco had not “prove[n]

prejudice because he fail[ed] to prove that [his] motion for new trial had merit”

because it was solely “based on inadmissible juror hearsay.” As for the notice of

appeal, the State argued that Blanco had not established prejudice because nothing

4

The referenced “unsworn affidavit” from Blanco’s trial counsel, submitted in

support of Blanco’s first amended application for writ of habeas corpus, is not

included in the appellate record. As we note below, however, Blanco attached the

same affidavit to his second amended application, and that affidavit is included in

the clerk’s record.

4

in the record reflected his desire to appeal. And it argued that any statement by

Blanco on the issue following the State’s response would be suspect given he

“waited over a year after his conviction before filing his initial writ.” The State

argued that Blanco’s “delay in seeking to perfect his appeal directly and negatively

impact[ed] the credibility of any claim that he desired to appeal his conviction.”

After the State filed its response, Blanco filed a memorandum in support of

his first amended writ application reiterating that trial counsel had not filed a notice

of appeal and that she filed an untimely motion for new trial. Blanco argued that

“[a]ffidavits by trial counsel and [Blanco] strongly suggest[ed] that [Blanco]

communicated his desire to appeal his conviction.”5 He also asserted that trial

counsel’s action in moving for a new trial was an indication that Blanco

communicated to trial counsel his desire to appeal his conviction. Blanco also

argued that because trial counsel had not filed a notice of appeal despite Blanco’s

request, prejudice was presumed, and the State had not rebutted the presumption.

The State filed a response to Blanco’s memorandum6 distinguishing Blanco’s

cited authority, noting that unlike here, in all three cited cases, there was evidence

5

It is unclear what affidavits Blanco’s habeas counsel is referring to, as none are

attached to Blanco’s memorandum in support of the writ application included in the

clerk’s record.

6

The State explained that because Blanco’s memorandum did not address the State’s

arguments regarding his ineffective assistance claim based on the motion for new

trial, it was limiting its response to Blanco’s claim regarding the alleged failure of

his trial counsel to perfect his notice of appeal.

5

the defendant desired to appeal his case. The State also argued that “the holding in

[Ex parte] Axel explicitly stated that trial counsel had a duty to advise concerning

the right to an appeal, not to actually file a notice of appeal absent the [applicant’s]

desire to do so[,]” and further that “the decision to appeal belongs to the

[applicant].”7 (Emphasis in original) (internal quotations omitted).

The State argued that prejudice is presumed only if the applicant sufficiently

proves his desire to appeal his conviction, but Blanco had not proven his desire to

appeal his conviction. The State argued that Blanco’s trial counsel’s “undated

declaration d[id] not mention any conversations she had with [Blanco] [regarding]

his appellate rights or a notice of appeal.”8 And the State was “unaware of any sworn

statement or affidavit” from Blanco “explicitly stating he desired to appeal his

conviction.” The State argued that in any event, the trial court “should highly

scrutinize any evidence of prejudice” as Blanco waited more than a year to file a

habeas application seeking to appeal his conviction.

On May 17, 2024, over a month after the State filed its response, Blanco filed

a second amended application for writ of habeas corpus submitting for the first time

7

757 S.W.2d 369, 374 (Tex. Crim. App. 1988).

8

According to the State, trial counsel’s affidavit did not “explicitly mention an appeal

at all” and “focuse[d] primarily on her actions [regarding Blanco’s] untimely and

insufficient motion for new trial.”

6

an affidavit from Blanco dated May 2, 2024, where Blanco averred for the first time

that:

On September 9, 2022,9 I asked [trial counsel] that I desired to appeal

my case, and instructed [trial counsel] to proceed with the appeal and

file the Notice of Appeal with the court. [Trial counsel] assured me it

will be done in a few days. Therefore, I assumed it would be done after

my discussion with her.

A month after my conviction, I received a phone call from [trial

counsel] stating that she was sorry that the notice of appeal was never

filed with the court because she had missed the deadline to file my

notice of appeal.

Blanco also filed an affidavit from his trial counsel in support of his second amended

application for writ of habeas corpus. The affidavit from his trial counsel does not

discuss any communications with Blanco concerning an appeal. In her affidavit,

trial counsel discusses only the filing of Blanco’s motion for new trial and her

purported conversation with the jury after the verdict was rendered.

The trial court issued a writ of habeas corpus directing Blanco to appear for a

hearing on his application on June 20, 2024. During the writ hearing, Blanco

testified that on the day he was convicted, he told his trial counsel he wanted to

“continue the case all the way” by filing another trial. Asked by habeas counsel

whether that meant filing an appeal, he responded, “An appeal, yes, sir.” According

to Blanco, his trial counsel told him “she would do it.” Blanco testified that he

9

Blanco was convicted and sentenced on September 9, 2022.

7

“specifically told [his trial counsel he] wanted the appeal filed,” and she “specifically

told [him] she was going to file a notice of appeal.”

Blanco testified that he still paid the restitution and all costs because he

thought he was “gonna get that money back because . . . [he] was 100 percent [he]

was acting in self-defense.” He testified that his trial counsel informed him she had

missed the deadline with respect to his motion for new trial,10 but he “didn’t

understand” whether she was referring to a motion for new trial or the notice of

appeal. According to Blanco, he told his trial counsel he wanted to appeal, but she

told him “she couldn’t do anything about it.” Later, when Blanco testified his trial

counsel told him “it was too late,” he testified he did not know whether she was

“talking about a motion for new trial or appeal,” but he “wanted another trial.”

Blanco’s trial counsel also testified at the hearing. She stated she represented

Blanco in the underlying matter involving a charge of assault, and that at first,

Blanco was offered “pretrial intervention, class and dismiss,” but Blanco “rejected

that offer and stated he wanted to go to trial.” She denied that Blanco requested she

appeal his conviction:

Habeas Counsel: When he was found guilty, at any time did Mr. Blanco

request that you file a notice of appeal?

10

Trial counsel told Blanco she couldn’t file the motion for new trial on Columbus

Day, a legal holiday, and she thought she could file it the next day, but “it was

already too late.”

8

Trial Counsel: No.

Habeas Counsel: Did you ever tell him you were going to do it sua sponte?

Trial Counsel: No.

When asked whether she had ever discussed his right to appeal or “anything else

about post-conviction litigation,” trial counsel testified she “notified [Blanco] of his

right to appeal” and “there was no other questions or no further discussions after

that.” She testified she told Blanco he had thirty days to appeal his conviction:

Habeas Counsel: Did he ever tell you he did not want to appeal the case?

Trial Counsel: . . . We did talk about the sentence that he received which

was a time-served sentence. We did discuss that, the actual

outcome, you know, could be different. And he decided

to pay restitution and go on.

...

Habeas Counsel: After talking to the jury, did you inform [Blanco] of the

conversation . . . you had with any jury member? Did you

inform Mr. Blanco?

Trial Counsel: Yes, we did discuss that.

Habeas Counsel Did he then indicate he wanted post-conviction litigation

in the case?

Trial Counsel: No, he did not.

Trial counsel testified that following Blanco’s conviction on September 9,

2022, based only on her conversation with the jury, she discussed with Blanco that

she “could file a motion for new trial” and while he “did not understand what that

9

meant,” they discussed it and “he agreed to that.”11 They did not discuss “whether

or not a motion for new trial would toll the deadlines or extend the deadline for filing

a [notice of appeal].” Trial counsel stated that “[a]fter speaking with [Blanco] about

his options after verdict, he decided that he would pay the restitution and also take

the time-served.” Trial counsel interpreted “[Blanco’s] decision to just pay the

restitution and take the time-served . . . to mean that he did not want to appeal his

case.” She “advised [Blanco] that if he were thought to be found guilty again that,

you know, the full range of punishment was open” and they discussed that. She

testified “it was not [her] decision on the appeal” and that “[i]t was . . . Mr. Blanco’s

decision.”

Trial counsel was shown Blanco’s affidavit filed in support of his second

application for writ of habeas corpus where he stated he told his trial counsel he

“desired to appeal [his] case.” Trial counsel denied that conversation had ever taken

place:

Habeas counsel: Did . . . [Blanco] instruct you to proceed with filing a

notice of appeal?

Trial counsel: No.

Habeas counsel: Did you assure him that you would file a notice of appeal

within a few days of September 9th?

11

On cross-examination, trial counsel acknowledged that other than her conversations

with the jury, “[t]here was no other evidence coming from any other source that

gave [her] the belief that [she] had the grounds to file a motion for new trial[.]”

10

Trial Counsel: No.

With respect to the motion for new trial, trial counsel conceded she failed to

secure a hearing for the motion within seventy-five days of Blanco’s sentencing date,

and that consequently, the motion was overruled by operation of law.12 She

explained she came into court several times to request a hearing date, and when she

finally obtained a date from the trial court coordinator, she “did not realize that that

hearing date was outside of the 75-day period.”13 She called Blanco sometime in

December 2022 to let him know she had “missed the actual time to have the

hearing.” The next time she heard from Blanco was in September 2023, when he

called her to “hire [her] again” to represent him in a civil lawsuit filed against him

by the same complainant. During her discussions with Blanco about the civil case,

Blanco did not ask about an appeal or motion for new trial in the criminal matter.

After hearing argument from counsel, the trial court told the parties she would

take the matter under advisement. On June 25, 2024, the habeas court issued a

written order denying Blanco’s application for writ of habeas corpus. Blanco filed

a request for findings of fact and conclusions of law. The State filed proposed

12

Trial counsel notified Blanco by email that she had filed the motion for new trial

and explained that she had filed it on a Tuesday because Monday was a holiday.

13

Trial counsel testified that the hearing on the motion for new trial was set for

December 12, 2024, but the trial court’s plenary power expired on November 23,

2024. Trial counsel said she was informed by the trial court coordinator that

December 12, 2024 was the first available date for hearing.

11

findings of fact and conclusions of law, attaching a sworn supplemental affidavit

from trial counsel dated June 10, 2024, where, among other things, trial counsel

stated that:

After speaking with the jurors, I went back to speak with Mr. Blanco

regarding the trial outcome and his options after the verdict. I explained

to him his right to appeal and that he had 30 days from the date of the

verdict to appeal his conviction. In addition, I explained that he would

still be subject to the full punishment range if he were tried again. Mr.

Blanco made the decision to take the time served offer and pay the

restitution. He did not at this time or any other time request that I file

an appeal or Notice of Appeal after this consultation.

I also let Mr. Blanco know that the jury had informed me that they

believed that I had proven self-defense and that I would like to file a

Motion for New Trial on his behalf. He agreed to me filing the Motion

for New Trial. I let him know that I would try to locate members of the

jury. I soon after began my research in trying to locate jurors. I found

possible contact information for jurors #3, #6 and #8 but was unable to

make contact with any of these individuals with the information that I

obtained. I searched diligently prior to filing the Motion for New Trial.

I notified Mr. Blanco by email after filing the Motion for New Trial.14

On July 29, 2024, the trial court signed an order adopting the State’s proposed

findings of fact and conclusions of law stating, among other things, that:

36. This Court finds credible [trial counsel’s] supplemental affidavit

[dated June 10, 2024] and supporting post-conviction testimony

that after admonishing [Blanco] of his appellate rights, [he] opted

not to pursue a direct appeal of his conviction in the primary case.

40. This Court finds [trial counsel’s] motion for new trial was

entirely based on inadmissible juror hearsay.

14

Trial counsel also stated she had not secured a hearing date for the motion for new

trial within seventy-five days of Blanco’s sentencing.

12

41. This Court finds that even if [trial counsel] had timely filed her

motion for new trial, [she] would have been unable to prove the

allegations in the motion for new trial because they are entirely

based on inadmissible juror hearsay.

43. [Blanco] fail[ed] to prove he was prejudiced when [his trial

counsel] filed an untimely motion for new trial because [he]

fail[ed] to show [the] motion for new trial had merit and because

[he] fail[ed] to credibly show he notified [trial counsel] of his

desire to appeal his conviction.

58. This Court does find[] [Blanco’s] post-conviction affidavit and

accompanying testimony not credible and unpersuasive.

59. This Court finds credible [trial counsel’s] post-conviction

assertion and accompanying testimony that [Blanco] did not

indicate to her that he wanted to file a direct appeal.

60. [Trial counsel’s] failure to file a notice of appeal was not

deficient or otherwise unreasonable given that, after [trial

counsel’s] admonishment of [Blanco’s] appellate rights, [he] did

not ask her to file a notice of appeal or otherwise inform her that

he desired to pursue a direct appeal.

Blanco argues the habeas court erred in denying his writ because his trial

counsel rendered ineffective assistance of counsel. Blanco contends he was deprived

of effective assistance of counsel because his trial counsel filed an untimely motion

for new trial and failed to file a notice of appeal.

Standard of Review

A defendant may attack the validity of his conviction for a misdemeanor

offense via an application for writ of habeas corpus if he is (1) confined or restrained

due to the conviction, or (2) no longer confined, but subject to collateral legal

13

consequences resulting from the conviction. See State v. Collazo, 264 S.W.3d 121,

125-26 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing TEX. CODE CRIM.

PROC. art. 11.09, 11.21, 11.22); see also Tatum v. State, 846 S.W.2d 324, 327 (Tex.

Crim. App. 1993). An applicant for post-conviction writ of habeas corpus must

prove his claim by a preponderance of the evidence. Ex parte Nugent, 593 S.W.3d

416, 423 (Tex. App.—Houston [1st Dist.] 2019, no pet.); Collazo, 264 S.W.3d at

126.

In reviewing a court’s ruling on an application for writ of habeas corpus, we

“must view the evidence in the record in the light most favorable to the judge’s ruling

and must uphold that ruling absent an abuse of discretion.” Diamond v. State, 613

S.W.3d 536, 544 (Tex. Crim. App. 2020). Further, “[w]e will uphold the habeas

court’s judgment as long as it is correct on any theory of law applicable to the case.”

Ex parte Besada-Peru, No. 14-17-00193-CR, 2018 WL 542238, at *3 (Tex. App.—

Houston [14th Dist.] Jan. 25, 2018, pet. ref’d) (mem. op., not designated for

publication) (citing Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001)).

We give “almost total deference” to the factual findings of the habeas court if

“supported by the record, especially when those findings are based on credibility and

demeanor.” Diamond, 613 S.W.3d at 544.

14

Ineffective Assistance of Counsel

The United States Constitution and the Texas Constitution guarantee

individuals the right to assistance of counsel in a criminal prosecution. U.S. CONST.

amend. VI; TEX. CONST. art. 1, § 10. This right to counsel is more than the mere

presence of a lawyer; it is a right to effective assistance. Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011); see also Ex parte Flores, 387 S.W.3d 626, 633

(Tex. Crim. App. 2012) (observing that “right to counsel preserves the fairness,

consistency, and reliability of criminal proceedings by ensuring that the process is

an adversarial one”). Effective assistance is not “errorless counsel,” but rather

“objectively reasonable representation.” Id.

We evaluate claims that counsel was constitutionally ineffective under the

standard set out in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under

Strickland, an appellant must show that (1) counsel’s performance fell below an

objective standard of reasonableness, and (2) there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceedings would have

been different. Id. at 687–94; Lopez, 343 S.W.3d at 142. “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694. The appellant must establish both Strickland prongs by a preponderance

of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

15

Failure to make a showing under either prong defeats an ineffective assistance claim.

See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

The determination of whether an appellant received effective assistance of

counsel turns on the facts of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). When conducting a Strickland analysis, we look to the totality

of the representation and particular circumstance of each case to determine counsel’s

effectiveness. Id. (citing Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App.

1991)). “There is a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance.” Id. (citing Strickland, 466 U.S. at

689).

To establish he has a right to post-conviction habeas relief on the basis of

ineffective assistance of counsel, Blanco must establish that (1) his counsel’s

performance was deficient, in that it fell below an objective standard of

reasonableness, and (2) he was prejudiced as a result of his counsel’s errors.

Strickland, 466 U.S. at 687-88, 693. The purpose of the Strickland two-pronged test

is to assess whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be said to have produced a reliable result.

See id. at 686. Blanco bears the burden to establish both prongs. See Lopez, 343

S.W.3d at 142 (“Unless appellant can prove both prongs, an appellate court must not

find counsel’s representation to be ineffective.”); Thompson, 9 S.W.3d at 813.

16

Motion for New Trial

Blanco first complains his trial counsel was ineffective because counsel filed

an untimely motion for new trial. The judgment of conviction reflects that Blanco

was sentenced on September 9, 2022. Trial counsel thus had until October 10,

202215 to file a motion for new trial. See TEX. R. APP. P. 4.1, 21.4(a); see also Brown

v. State, No. 05-03-00129-CR, 2003 WL 21674743, at *1 (Tex. App.—Dallas July

18, 2003) (mem. op., not designated for publication) (explaining operative date is

not date judgment was signed, but date sentence imposed or suspended in open

court). Trial counsel did not file the motion for new trial until October 11, 2022. In

the motion for new trial, trial counsel stated the motion was timely because October

10, 2022—the due date for the motion—fell on Columbus Day, a “national holiday.”

During the hearing on Blanco’s application for writ of habeas corpus, trial counsel

also acknowledged she failed to secure a hearing on the motion within seventy-five

days of Blanco’s sentencing date.

We assume for purpose of our analysis that trial counsel was deficient both in

failing to file a timely motion for new trial and in failing to set the motion for hearing

within seventy-five days of Blanco’s sentencing. See TEX. R. APP. P. 21.4(a) (stating

15

Blanco’s motion for new trial was due thirty days from the date his sentence was

imposed on September 9, 2022. See TEX. R. APP. P. 21.4(a). Thirty days from

September 9, 2022, was October 9, 2022, a Sunday. Blanco’s motion was due on

the next day that was not a weekend “or legal holiday.” See TEX. R. APP. P. 4.1.

17

defendant may file motion for new trial within thirty days of date sentence imposed

in open court); TEX. R. APP. P. 21.8(a) (“The court must rule on a motion for new

trial within 75 days after imposing or suspending sentence in open court.”); Jackson

v. State, 550 S.W.3d 238, 243 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (first

prong of Strickland presumed where counsel “acknowledged she had made a

mistake calculating the dates” to have motion for new trial heard within trial court’s

plenary power); Bacey v. State, 990 S.W.2d 319, 333-34 (Tex. App.—Texarkana

1999, pet. ref’d) (noting that although counsel had duty to assure motion for new

trial was timely heard, appellant failed to establish prejudice).

We must now consider whether Blanco suffered prejudice as a result. To

establish prejudice, Blanco must prove there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. Strickland

at 693; Lopez at 142. In other words, to satisfy the second prong of Strickland,

Blanco must establish that had it been timely filed or heard on the merits, his motion

for new trial would have been granted and a new trial ordered. Jackson, 550 S.W.3d

at 244 (holding that “concerning a failure of counsel to timely file or obtain a hearing

or ruling on a motion for new trial, [appellate courts] have consistently required a

showing of actual prejudice, meaning that but for counsel’s deficient performance,

the trial court would have granted the defendant a new trial.”); Jimenez v. State, 240

S.W.3d 384, 416 (Tex. App.—Austin 2007, pet. ref’d) (holding there was no

18

reasonable probability that evidence cited by appellant would have resulted in new

trial); Bacey, 990 S.W.2d at 333-34 (holding no prejudice shown from counsel’s

failure to timely obtain hearing on motion for new trial); Bryant v. State, 974 S.W.2d

395, 400 (Tex. App.—San Antonio 1998, pet. ref’d) (holding no prejudice shown

from counsel’s failure to file motion for new trial).

Blanco failed to demonstrate prejudice. The only ground raised in his motion

for new trial was his trial counsel’s purported conversation with jurors following the

trial, who allegedly told her “they believed that [Blanco] acted in self-defense.” In

support of the motion, trial counsel submitted her affidavit stating:

During the trial of Nolberto Blanco, there were no conflicting facts that

suggested that [he] was the first to strike. The evidence was clear that

complainant threw the first punch. The jury admitted that they believed

that complainant threw the first punch and that [Blanco] acted in self-

defense. Thus, the jury’s verdict did not support the evidence presented

during trial: the verdict was contrary to the evidence and contrary to the

juror[]s[’] own admission that they believed that [Blanco] acted in self-

defense when striking complainant.

Even assuming these allegations were true, Texas Rule of Evidence 606

prohibits a juror from “testify[ing] about any statement made or incident that

occurred during the jury’s deliberations; the effect of anything on that juror’s or

another juror’s vote; or any juror’s mental processes concerning the verdict or

19

indictment.”16 TEX. R. EVID. 606(b)(1). And “[t]he court may not receive a juror’s

affidavit or evidence of a juror’s statement on these matters.” Id. Blanco thus did

not demonstrate that but for his trial counsel’s ineffective assistance, his motion for

new trial would have been granted. See Casiano v. State, 462 S.W.3d 174, 179 (Tex.

App.—Houston [1st Dist.] 2015, no pet.) (rejecting ineffective assistance argument

because juror would not have been allowed to testify at the motion for new trial

hearing under Rule 606(b)); Redmond v. State, 30 S.W.3d 692, 699 (Tex. App.—

Beaumont 2000, pet. ref’d) (holding that defendant “failed to establish prejudice by

demonstrating that the motion for new trial would have been granted had the trial

court conducted the evidentiary hearing”); see also Thompson v. State, No. 04-98-

00317-CR, 1999 WL 323290, at *2 (Tex. App.—San Antonio May 19, 1999, pet.

ref’d) (not designated for publication) (“Because it was clear from the face of

[appellant’s] motion for new trial that it was without merit, the trial court did not

abuse its discretion by failing to conduct a hearing on the motion.”).

Notice of Appeal

Blanco also claims his trial counsel was ineffective because she failed to file

a notice of appeal. In his affidavit dated May 2, 2024 submitted in support of his

16

Exceptions stating that “[a] juror may testify: about whether an outside influence

was improperly brought to bear on any juror; or to rebut a claim that the juror was

not qualified to serve[,]” are not applicable here. TEX. R. EVID. 606(b)(2).

20

second amended habeas application, Blanco alleged that on the date of his conviction

and sentence, he told his trial counsel he “desired to appeal [his] case, and instructed

[her] to proceed with the appeal and file [a] [n]otice of [a]ppeal with the court.”

According to Blanco, his trial counsel “assured [him] it w[ould] be done in a few

days.” Blanco further stated that “[a] month after [his] conviction, [he] received a

phone call from [his trial counsel] stating that she was sorry that the notice of appeal

was never filed with the court because she had missed the deadline to file [a] notice

of appeal.” During the writ hearing, Blanco similarly testified that trial counsel told

him “she missed the deadline,” but he admitted on cross-examination he “didn’t

understand” whether trial counsel was referring to a motion for new trial or a notice

of appeal because he did not appreciate the difference between the two, and it was

possible trial counsel called him to tell him that she missed the filing deadline for a

motion for new trial.

During the hearing, Blanco’s trial counsel testified that on the date of the

verdict, she discussed with Blanco “his options of appeal” and she told him he had

thirty days from the date of sentencing to appeal his conviction. Contrary to

Blanco’s allegations, she testified that Blanco did not ask her to appeal his

conviction, and instead decided “he would pay restitution and also take the time

served.” She advised Blanco “that if he were thought to be found guilty again that,

you know, the full range of punishment was open” and they discussed that. She

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testified “it was not [her] decision on the appeal,” it “was Mr. Blanco’s decision.”

She testified she interpreted “[Blanco’s] decision to just pay the restitution and take

the time-served . . . to mean that he did not want to appeal his case[,]” and Blanco

never told her he had changed his mind. Trial counsel testified that she also

“notified” Blanco on a separate occasion “of his right to appeal[,]” but at no time did

he request that she file a notice of appeal nor did she tell him she would file it within

a few days of the verdict.17 When asked if Blanco’s statement in his affidavit that

he communicated to her his desire to appeal his conviction was accurate, trial

counsel answered, “No, it is not.” Trial counsel reiterated that Blanco had not

instructed her to file a notice of appeal.

The trial court decides, in the first instance, whether a defendant carried his

burden as to the elements of his ineffective assistance claim. See Odelugo v. State,

443 S.W.3d 131, 137 (Tex. Crim. App. 2014). The trial court may accept or reject

any part of a witness’s testimony. Id. Indeed, as the factfinder and judge of the

credibility and weight of the evidence, the trial court may disbelieve any of the

assertions on which the ineffective assistance claim rests, “so long as the basis for

that disbelief is supported by at least one reasonable view of the record.” Id.

(internal quotations omitted).

17

Trial counsel averred the same in her affidavit dated June 10, 2024.

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On July 29, 2024, the trial court signed an order adopting the State’s proposed

findings of fact and conclusions of law, stating the court found “[Blanco’s] post-

conviction affidavit and accompanying testimony not credible and unpersuasive,”

and stating it found “credible [trial counsel’s] post-conviction assertion and

accompanying testimony that the applicant did not indicate to her that he wanted to

file a direct appeal.” The findings of fact and conclusions of law also note that trial

counsel’s “failure to file a notice of appeal was not deficient or otherwise

unreasonable given that, after [trial counsel’s] admonishment of his appellate rights,

the applicant did not ask her to file a notice of appeal or otherwise inform her that

he desired to pursue a direct appeal.” See Ex parte Axel, 757 S.W.2d 369, 373-74

(Tex. Crim. App. 1988) (holding “decision to appeal belongs to the [appellant]” and

explaining trial counsel has duty to advise concerning right to appeal, not to file

notice of appeal absent client’s desire to do so); see also Ex parte Castillo, 664

S.W.3d 833, 835 (Tex. Crim. App. 2022) (holding “attorney has a duty to file a

notice of appeal if the defendant so requests, and there is a presumption of prejudice

if the notice is not filed”) (emphasis added).

We afford almost total deference to the trial court’s determination of historical

facts supported by the record, especially when the fact findings are based on

credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). And we afford the same deference to the trial judge’s rulings on applications

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of law to fact questions if resolving those ultimate questions turns on evaluating

credibility and demeanor. See Sandifer v. State, 233 S.W.3d 1, 2 (Tex. App.—

Houston [1st Dist.] 2007, no pet.) (citing Guzman, 955 S.W.2d at 89). Because

ineffective assistance claims involve “mixed questions of law and fact” that often

involve subsidiary questions of historical fact, some of which may turn upon the

credibility and demeanor of witnesses, an appellate court should not reverse the trial

court’s ruling unless it was clearly erroneous and arbitrary, such as when no

reasonable view of the record supports it. See Guzman, 955 S.W.2d at 89, 93.

“[C]ounsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.”

Strickland, 466 U.S. at 690. The scrutiny of counsel’s performance must be “highly

deferential” to the lower court, and “every effort must be made to eliminate the

distorting effects of hindsight.” Ex parte Okere, 56 S.W.3d 846, 855 (Tex. App.—

Fort Worth 2001, pet. ref’d). Because the trial court’s findings turn on an evaluation

of credibility and are supported by trial counsel’s testimony and affidavit, we defer

to those findings. See Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App.

2010); Manzi v. State, 88 S.W.3d 240, 242–44 (Tex. Crim. App. 2002); Ex parte

Roldan, 418 S.W.3d 143, 148 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

We thus defer to the trial court’s decision to believe trial counsel’s testimony

and disbelieve Blanco’s testimony regarding whether he desired to appeal, and we

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conclude that Blanco did not establish his trial counsel rendered ineffective

assistance of counsel based on the alleged failure to file a notice of appeal.

Blanco’s failure to satisfy Strickland’s first prong negates our need to consider

the second prong concerning prejudice. See Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009) (holding that “failure to satisfy one prong of the Strickland

test negates a court’s need to consider the other prong”).

Conclusion

We hold Blanco failed to satisfy his requisite burden of proving by a

preponderance of the evidence facts that would entitle him to relief. We thus affirm

the trial court’s order denying Blanco’s application for writ of habeas corpus.

Veronica Rivas-Molloy

Justice

Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.

Do not publish. TEX. R. APP. P. 47.2(b).

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