Affirmed as Reformed and Memorandum Opinion filed December 20, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00926-CR

ALBERT PALOMINO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1228095

M E M O R A N D U M O P I N I O N

Appellant Albert Palomino appeals his conviction of aggravated assault with a 

deadly weapon under the law of parties, challenging the legal and factual sufficiency of 

the evidence to support the judgment, the trial court‘s denial of his motion for mistrial, 

the admissibility of testimony of a fingerprint expert, and claiming that he was denied 

effective assistance of counsel. Concluding that appellant‘s issues have no merit, but 

reforming the trial court‘s judgment as requested to reflect the enhancement paragraphs 

as alleged in the indictment, we affirm the judgment as reformed.
2

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged by indictment with the offense of aggravated assault with a 

deadly weapon to which he pleaded ―not guilty.‖ The indictment contained two 

enhancement paragraphs alleging two prior felony convictions, to which appellant 

pleaded ―not true.‖

Evidence at trial reflects that law enforcement officers were dispatched to the 

apartment of complainant Myron Johnson in response to a call for a cutting that already

had occurred. At the scene, one officer observed Johnson, who was being treated by 

medical emergency personnel. Investigating officers followed a trail of blood leading 

from Johnson‘s apartment to the nearby apartment of appellant, who was Johnson‘s good 

friend. At appellant‘s home, officers encountered appellant‘s son attempting to stop 

bleeding from a cut on his hand. The son claimed to have injured his hand while 

barbecuing. The son was taken into custody. Appellant was not at his home when the 

officers first arrived. 

At appellant‘s home, investigators observed signs of a struggle and blood on 

appellant‘s back patio. The patio floor was damp. The officers also saw blood on a 

fence. They recovered a steak knife, bloodied on the tip, on a porch swing along with 

bloodied clothing, which may have belonged to appellant‘s son. Investigating officers 

spoke with several witnesses and observed a trail of blood leading from appellant‘s 

residence to a nearby park. According to the officers, appellant, who arrived at the home 

during the investigation, had no noticeable cuts, wounds, or injuries or blood on his 

clothing. When appellant arrived at the home, officers handcuffed him and placed him 

under arrest.

According to the undisputed facts, Johnson had arrived at appellant‘s apartment

earlier in the afternoon, and the two men, along with appellant‘s adult son, consumed 

beer for five or six hours. Johnson and appellant‘s son left the home to purchase more 
3

beer, and returned to the home to find appellant‘s brother. The four men consumed more

beer outside of the home. 

The facts are disputed as to why or how the ensuing conflict developed. 

According to Johnson, when he attempted to leave, appellant instructed his brother and 

son to surround Johnson and block Johnson from going inside the home to retrieve beer 

from the refrigerator. Johnson testified that appellant pushed him into a corner of the 

back patio, where appellant, along with appellant‘s brother and son, stabbed Johnson with 

knives. Johnson described appellant and the son ―jugging‖1him in the stomach. 

According to Johnson, at some point, appellant‘s son and brother went inside the home 

and appellant, alone, began ―jugging‖ Johnson in the neck, threatening to kill him. As 

Johnson attempted to flee, appellant‘s son, at appellant‘s command, chased Johnson with 

a baseball bat, hitting Johnson on the head multiple times. Johnson escaped over a fence 

to his nearby home and called authorities. Johnson suffered twenty-two stab wounds in 

his stomach and neck. Johnson denied knowing what triggered the events of the evening.

Appellant testified that the men were on the front patio when Johnson made an 

obscene comment about appellant‘s minor daughter, who was in the home at the time. 

Appellant claimed to have struck Johnson in the chest, causing Johnson to fall back in his 

chair. According to appellant, Johnson apologized and blamed his statement on 

narcotics, which he had attempted to sell to appellant and which apparently had affected 

Johnson‘s faculties. Appellant claimed that the men continued to consume alcohol, but 

appellant later asked Johnson to leave. Johnson asked to use appellant‘s restroom, but

appellant claimed to have seen Johnson instead attempting to open the door to appellant‘s 

daughter‘s bedroom. According to appellant, he struck Johnson and instructed his son to 

help Johnson leave the residence. Appellant, claiming to be very angry, left the residence 

and went for a half-mile walk within the apartment complex. Upon his arrival home, he 

saw law enforcement officers, who placed him in custody. Appellant denied stabbing 

 

1

Johnson described the action of ―jugging‖ as a forward motion. Later, on cross-examination, 

Johnson clarified that ―jugging‖ meant ―stabbing.‖
4

Johnson at all that evening and testified that his daughter, who told investigators that she 

saw the incident from her bedroom window, was mistaken when she claims to have seen 

him on the back patio with Johnson. Appellant also claimed to suffer from muscular 

dystrophy, which affects his ability to climb stairs and generally weakens his muscles.

Officers spoke with appellant‘s minor daughter and two of her friends, all of 

whom were inside the home at the time of the incident. According to the daughter‘s 

testimony at trial, she heard her father, uncle, and brother arguing with Johnson outside 

on the back patio. From her bedroom window that overlooks the back patio, the daughter

observed her father standing on the back patio and heard Johnson simultaneously plead, 

―Stop‖ and ―Don‘t kill me.‖ The daughter claimed next to have opened her bedroom 

door to let her dog inside her room; at this time she saw her brother, who instructed her to 

remain in her room.

Officers also spoke with appellant‘s neighbor, who lives above appellant in the 

apartment next door. At trial, the neighbor testified that she observed from her balcony 

appellant and another man on the back patio standing and a third man, who was in a chair 

that had flipped over on the ground. The neighbor learned from her daughter that a fight 

had broken out in which a person at appellant‘s home was being hit with a baseball bat 

and later dragged to the side of the building. The neighbor then observed from her 

balcony appellant, wearing a white shirt that was stained red, hosing down his patio. The 

neighbor admitted on cross-examination that she could not be sure whether she saw 

appellant or his son, as she previously had reported to investigators, hosing down the 

patio.

After the trial court instructed the jury of the charges against appellant as a 

principal and as a party, the jury found appellant guilty as charged. The trial court found

each of the two enhancement paragraphs to be true and made an affirmative finding of 

the use of a deadly weapon in the commission of the offense. The trial court sentenced 

appellant to forty years‘ confinement.
5

ANALYSIS

Is the evidence sufficient to support the trial court’s judgment?

In appellant‘s first issue, he challenges the legal and factual sufficiency of the 

evidence to support the jury‘s verdict that he committed the offense of aggravated assault 

with a deadly weapon or as a party to that offense. In evaluating a legal-sufficiency 

challenge, 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). 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). 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. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

A majority of the judges of the Texas Court of Criminal Appeals have determined 

that ―the Jackson v. Virginia legal-sufficiency standard is the only standard that a 

reviewing court should apply in determining whether the evidence is sufficient to support 

each element of a criminal offense that the State is required to prove beyond a reasonable 

doubt.‖ Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) 

(Hervey, J., joined by Keller, P.J., Keasler, and Cochran, J.J.); id. at 912–15 (Cochran, J., 

concurring, joined by Womack, J.) (same conclusion as plurality). Therefore, in this case 
6

we review the evidence under the Jackson v. Virginia standard. We do not separately 

refer to legal or factual sufficiency.

A person commits the offense of assault if that person intentionally, knowingly, or 

recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a) (1) (West 

2011). The offense becomes aggravated assault if the person committing the assault uses 

a deadly weapon during the commission of the offense. Id. § 22.02(a)(2) (West 2011). A 

deadly weapon is anything that in the manner of its use or intended use is capable of 

causing death or serious bodily injury. Id. § 1.07(a)(17) (West 2011).

Johnson testified multiple times that appellant, either alone or in concert with his 

brother and son, stabbed him. Appellant claims that the only evidence of his involvement 

came from Johnson, whose testimony appellant characterizes as wholly contradictory and 

inconclusive. Appellant refers to Johnson as being intoxicated on the night of the offense 

and, despite Johnson‘s denials, having taken narcotics that had affected his faculties.

2

 

Although Johnson admitted to being intoxicated at the time of the incident, the record 

does not reflect that Johnson was unable to identify his friend as one of the people who 

stabbed him. The jury was free to believe Johnson‘s testimony and to disbelieve 

appellant‘s testimony, and similarly, the jury was free to accept portions of witnesses‘ 

testimony and to reject other portions. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. 

Crim. App. 1982). Evidence can be sufficient when it is based on the testimony of a 

single eyewitness. Id.

But, appellant‘s daughter and neighbor also offered eyewitness-testimony of the 

events, which served to corroborate Johnson‘s testimony. Appellant‘s daughter testified 

that she observed appellant on the patio with Johnson as Johnson pleaded for his life,

despite appellant‘s claims of not having been present when Johnson was stabbed. The 

 

2 Appellant claims in his appellate brief that Johnson‘s medical records reflect that Johnson had 

opiates in his blood stream. Appellant has not cited to any one place in over 150 pages of Johnson‘s 

medical records in support of this claim. An appellate brief must contain clear and concise argument with 

appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(i). Appellant has not met this 

statement in briefing this point.
7

daughter also corroborated Johnson‘s testimony that appellant was alone on the back 

patio with Johnson. (The daughter testified to seeing her brother inside the home when 

the brother instructed her to stay in her room.) The record does not reflect that 

appellant‘s daughter had any difficulty identifying appellant on the patio, despite 

appellant‘s testimony that she was mistaken in her identification of him. The neighbor‘s 

testimony similarly corroborates Johnson‘s account, noting that she observed appellant 

and another man on the back patio along with a man who had fallen back in his chair and 

that she learned of a man at appellant‘s home being beaten with a baseball bat. 

Appellant points to the following evidence that he claims supports his sufficiency 

challenge: 

No blood was found inside the home even though Johnson testified to 

entering the home after being stabbed. 

The knife recovered from the scene was never traced to appellant through 

forensic testing or fingerprints or proven to be associated with the events in 

question.

Investigators did not compare DNA or swab the blood found at the scene.

One responding officer did not speak with witnesses and another officer 

saw appellant arrive at the residence after the offense had occurred. 

The bloody clothing was not traced to appellant. 

Appellant appeared to have no wounds or injuries. 

Appellant was arrested based on eyewitness testimony without speaking to 

the complainant. 

No officers ruled out a barbequing accident when appellant‘s son claimed 

to have injured himself while using the barbeque grill.

None of the evidence above, on which appellant relies for his argument, addresses 

the elements of the charged offense; rather, based on the above evidence, appellant seeks 

to have this court reweigh credibility determinations of the jury, which this court cannot 

do. See Fuentes, 991 S.W.2d at 271 (referring to the trier-of-fact as ―the sole judge of the 

credibility of the witnesses and of the strength of the evidence‖). In viewing the evidence 

in a light most favorable to the verdict, a rational trier of fact could have found the 

essential elements of the charged offense beyond a reasonable doubt. See Tex. Penal 
8

Code Ann. § 22.02(a)(2). The evidence is sufficient to support the trial court‘s 

judgment.3 We therefore overrule appellant‘s first issue.

Did the trial court err in overruling appellant’s motion for mistrial?

In his second issue, appellant asserts the trial court improperly overruled his 

motion for mistrial during the guilt/innocence phase when the State attempted to elicit 

testimony from appellant‘s daughter in the following exchange:

Q: [Prosecutor] Later that evening when the police came to your house, do 

you remember somebody who looked like Myron Johnson‘s grandmother? 

Do you remember her coming to the house?

A: [Appellant‘s daughter] Yes, I do.

Q: Do you remember talking to her?

A: No.

Q: Okay. So, at no point did you tell her about what you had seen that 

evening?

A: No.

Q: Never told her about your father or brother admitting to stabbing—

Defense Counsel: Objection, your Honor.

Trial Court: Sustained.

Defense Counsel: Your Honor, as to strike. And actually at this 

point, move for mistrial.

Trial Court: The jury will be instructed to disregard the last 

comments made by—the last start of a question made by the prosecutor. 

What the lawyers ask is not evidence. So, you‘re instructed to disregard 

that. Your motion for mistrial will be overruled. 

Following this exchange, the daughter testified that she had not spoken with Johnson‘s 

grandmother and had not ever spoken with appellant or her brother about the event.

 

3 Because the evidence is sufficient to support appellant‘s conviction as a principal actor, we need

not consider the sufficiency of the evidence to support his conviction as a party to the offense. See 

Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992).
9

We review a trial court‘s ruling to grant or deny a motion for mistrial under an 

abuse-of-discretion standard. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 

2007). Under this standard, we view the evidence in the light most favorable to the trial 

court‘s ruling and uphold the ruling if it falls within the zone of reasonable disagreement. 

Id. A reviewing court cannot substitute its judgment for that of the trial court. Id. 

Rather, a reviewing court decides whether the trial court‘s decision was arbitrary or 

unreasonable. Id. Under this standard, a trial court abuses its discretion if no reasonable 

view of the record could support the trial court‘s ruling. See id.

A reviewing court balances the following three factors in determining whether a 

mistrial was warranted: (1) the severity of the misconduct, (2) the measures adopted to 

cure the conduct, and (3) the certainty of conviction absent the misconduct. See Ramon 

v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004) (applying factors articulated in 

Moseley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)). 

The prosecutor attempted to elicit evidence that appellant had admitted to stabbing

Johnson; but, the trial court instructed the jury to disregard the prosecutor‘s improper 

question, and explained to the jury that questions posed by the lawyers are not evidence. 

Asking an improper question seldom calls for a mistrial because, in most cases, any harm 

can be cured by an instruction to disregard. See Wood v. State, 18 S.W.3d 642, 648 (Tex. 

Crim. App. 2000); Patterson v. State, 138 S.W.3d 643, 651 (Tex. App.—Dallas 2004, no 

pet.). In the absence of evidence to the contrary, we presume that the jury complied with 

the trial court‘s instruction to disregard the question. See Thrift v. State, 176 S.W.3d 221, 

224 (Tex. Crim. App. 2005); Kack v. State, 287 S.W.3d 497, 509 (Tex. App.—Houston 

[14th Dist.] 2009, no pet.). Additionally, in this case, the prosecutor‘s question went 

unanswered by the witness. See Patterson, 138 S.W.3d at 651. Based on this appellate 

record, the trial court did not abuse its discretion in denying appellant‘s motion for 

mistrial. See id. We overrule appellant‘s second issue.
10

Did the trial court err in admitting the testimony of a fingerprint expert 

whose identity had not been disclosed to the defense prior to trial?

In appellant‘s third issue, he claims that the trial court erred in admitting the 

testimony of the State‘s fingerprint expert whose identity had not been disclosed by the 

State before trial. During the punishment phase of trial, the State called a fingerprint 

expert to testify. Over appellant‘s objection, the expert testified that the fingerprints 

contained in two pen packets, which were associated with appellant‘s prior felonies and 

used for enhancement, belonged to appellant. The decision to allow a witness who was 

not listed on the State‘s witness list to testify is a matter within the trial court‘s discretion. 

See Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993).

Article 39.14(b) of the Code of Criminal Procedure, entitled, ―Discovery,‖ 

provides in relevant part,

On motion of a party and on notice to the other parties, the court in which 

an action is pending may order one or more of the other parties to disclose 

to the party making the motion the name and address of each person the 

other party may use at trial to present evidence under Rules 702, 703, and 

705, Texas Rules of Evidence. The court shall specify in the order the time 

and manner in which the other party must make the disclosure to the 

moving party, but in specifying the time in which the other party shall make 

disclosure the court shall require the other party to make the disclosure not 

later than the 20th day before the date trial begins.

Tex. Code Crim. Proc. Ann. art. 39.14(b) (West Supp. 2011).

According to the record, on April 30, 2010, the State voluntarily disclosed in a 

filed document that ―no experts‖ would be called. About six weeks later, on June 14, 

2010, appellant‘s trial counsel filed a motion to compel the State to disclose expert 

witnesses. A trial court has discretion to order the disclosure of the names of experts on 

the motion of a party. See id.; Quinones v. State, 592 S.W.2d 933, 940 (Tex. Crim. App. 

1980) (providing that the trial court has discretion to order discovery pursuant to article 

39.14). The trial court did not rule on appellant‘s motion to compel. A party must 

procure a ruling from the trial court on a motion to disclose expert witnesses in order to 
11

preserve error. See Harris v. State, 287 S.W.3d 785, 792 (Tex. App.—Houston [1st 

Dist.], 2009 no pet.), abrogated on other grounds by, Barrios v. State, 283 S.W.3d 348 

(Tex. Crim. App. 2009). Appellant has not preserved error because he did not obtain a 

ruling or a refusal to rule from the trial court on his motion to disclose witnesses. See id. 

Appellant argues that Harris v. State is factually dissimilar because in the case under 

review, unlike the Harris case, the State voluntarily disclosed that no experts would 

testify. See Harris, 287 S.W.3d at 792 (providing that the State notified the accused of 

two experts, but not a third expert who testified). These dissimilarities are of no moment

given that (1) in both cases, the State failed to disclose the complained-of expert witness, 

and (2) in both cases, the accused parties did not preserve error by procuring a ruling or 

refusal to rule from the trial court on any motion to disclose experts. See Harris, 287 

S.W.3d at 792. But, even if appellant had not waived this point by failing to preserve

error, we would find no merit in it.

The decision to allow a witness that was not on the State‘s witness list to testify is 

a matter within the trial court‘s discretion. See Martinez v. State, 867 S.W.2d 30, 39 

(Tex. Crim. App. 1993). A reviewing court considers whether the State acted in bad faith 

and whether the accused could have anticipated the witness‘s testimony in determining 

whether the trial court erred in allowing testimony from a witness not identified on the 

State‘s witness list. See id. The record does not suggest that the prosecutor acted in bad 

faith. See Irvine v. State, 857 S.W.2d 920, 927 (Tex. App.—Houston [1st Dist.] 1993, 

pet. ref‘d). The record reflects that the State effected the issuance of two different 

subpoenas, filed respectively on June 3, 2010, and August 25, 2010, each of which listed

―HCSO Fingerprint Expert‖ as a witness the State intended to call for the September 21, 

2010 trial. Appellant did not dispute at trial that his trial counsel received a copy of the 

subpoenas, and appellant does not dispute this claim on appeal. Moreover, the 

allegations in the two enhancement paragraphs were set forth clearly in the indictment, 

and appellant should have anticipated the possibility that a fingerprint expert would 

testify in order to prove up the enhancements. See id. Therefore, appellant should have 
12

anticipated that the State would call this expert witness to prove up the prior convictions 

for enhancement purposes. See id. To the extent appellant claims that he should have 

been able to rely on the State‘s voluntary disclosure of ―no experts‖ that was filed in 

April 2010, appellant‘s argument is belied by his trial counsel‘s conduct in filing the 

motion to disclose experts two months later, upon which appellant did not procure a 

ruling from the trial court. Likewise, the State‘s notice of ―no experts‖ was not in 

response to appellant‘s request for notice. See Harris, 287 S.W.3d at 793 (distinguishing 

Depena v. State, 148 S.W.3d 461 (Tex. App.—Corpus Christi 2004, no pet.) on similar

basis). The trial court did not abuse its discretion in allowing the expert‘s testimony. See 

Irvine, 857 S.W.2d at 927. We overrule appellant‘s third issue.

Did appellant receive ineffective assistance of counsel?

In his fourth issue, appellant claims to have received ineffective assistance of 

counsel, based on counsel‘s (1) failure to conduct voir dire on the law of parties, (2) 

failure to secure the trial court‘s order for the disclosure of the State‘s expert witnesses, 

(3) failure to obtain and submit appellant‘s medical records reflecting that appellant 

suffered from muscular dystrophy, and (4) failure, during the guilt/innocence phase, to 

seek a medical expert witness to testify about appellant‘s medical condition, evidence 

appellant claims would have served as mitigating evidence in the punishment phase.

Both the United States and Texas Constitutions guarantee an accused the right to 

assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Tex. Code Crim. 

Proc. art. 1.051 (West 2005). 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. 
13

Strickland, 466 U.S. at 688–92. Moreover, 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). 

In assessing appellant‘s claims, we apply a strong presumption that trial counsel 

was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We 

presume counsel‘s actions and decisions were reasonably professional and were 

motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. 

App. 1994). When, as in this case, there is no proper evidentiary record developed at a 

hearing on a motion for new trial, it is extremely difficult to show that trial counsel‘s 

performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 

2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit 

from trial counsel becomes almost vital to the success of an ineffective-assistance claim. 

Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston [14th Dist.] 2000, pet. 

ref‘d). The Court of Criminal Appeals has stated that it should be a rare case in which an 

appellate court finds ineffective assistance on a record that is silent as to counsel‘s trial 

strategy. See Andrews, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On such a silent 

record, this court can find ineffective assistance of counsel only if the challenged conduct 

was ― ̳so outrageous that no competent attorney would have engaged in it.‘‖ Goodspeed 

v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 

S.W.3d 436, 440 (Tex. Crim. App. 2001)). 

Alleged Failure to Conduct Voir Dire on the Law of Parties

The record reflects that the State questioned the venire panel about the law of 

parties and, at one point, the trial court provided a hypothetical to illustrate a conviction 

under the law of parties. Trial counsel‘s failure to conduct voir dire on the law of parties 

may be deemed reasonable trial strategy if that topic, as in this case, had been adequately 

covered by the State or the trial court during voir dire. See Goodspeed, 187 S.W.3d at 

392–93; Williams v. State, 970 S.W.2d 182, 184 (Tex. App.—Houston [14th Dist.] 1998, 
14

pet. ref‘d). Appellant therefore has failed to show that his trial counsel‘s performance 

was deficient or that the outcome of trial would have differed had his trial counsel 

questioned the venire panel on the law of parties. See Williams, 970 S.W.2d at 184.

Alleged Failure to Obtain a Ruling on Appellant’s Motion to Disclose Experts

Appellant claims his trial counsel was obligated to obtain a ruling on his motion to 

disclose experts under article 39.14(b) of the Texas Code of Criminal Procedure.

According to the record, trial counsel acknowledged that she relied upon the State‘s 

voluntary disclosure that ―no experts‖ would be called, and consequently did not procure 

a ruling on appellant‘s subsequent motion to disclose experts. The fact that such a 

strategy was unsuccessful does not necessarily mean that trial counsel‘s strategy was not 

reasonable. See, e.g., Baber v. State, 931 S.W.2d 359, 362 (Tex. App.—Amarillo 1996, 

pet. ref‘d). In examining the totality of counsel‘s representation for ineffective 

assistance, we will not second-guess in hindsight the effectiveness of counsel‘s strategy 

at trial. See Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983).

In light of our conclusion that the trial court did not err in allowing the fingerprint 

expert to testify, appellant has not demonstrated that the absence of a ruling on his motion 

would have resulted in a different outcome at punishment. See Rosas v. State, 636 

S.W.2d 729, 732 (Tex. App.—Corpus Christi 1982, no pet.) (concluding that an accused 

did not suffer harm from trial counsel‘s failure to obtain a ruling on pre-trial discovery 

motion under article 39.14, and determining that counsel did not render ineffective 

assistance). Thus, appellant has not satisfied the second prong of Strickland.

Alleged Failure to Obtain or Present Evidence of Appellant’s Medical Condition

Appellant claimed at trial to have suffered from muscular dystrophy, but he asserts 

on appeal that his trial counsel rendered ineffective assistance by failing to procure his 

medical records or obtain a medical expert to provide credible evidence that he was 

physically unable to commit the charged offense. Appellant claims that such evidence 

would have served as mitigating evidence in the punishment phase.
15

At trial, appellant and his daughter both testified that appellant suffers from 

muscular dystrophy. According to the record, although appellant can move around, 

appellant has difficulty climbing stairs and suffers from general weakness in his muscles. 

By appellant‘s own admission, however, he had no difficulty walking half a mile or 

striking Johnson in the chest after consuming many beers on the night of the incident. 

Furthermore, appellant has not demonstrated that a medical expert was available and 

would have testified or that evidence about appellant‘s medical condition, had it been 

admitted, would have been beneficial in light of the testimony from appellant and his 

daughter as to his capabilities. Without such a showing, we cannot conclude that trial 

counsel rendered ineffective assistance. See King v. State, 649 S.W.2d 42, 44 (Tex. 

Crim. App. 1986); Nwosoucha v. State, 325 S.W.3d 816, 830 (Tex. App.—Houston [14th 

Dist.] 2010, pet. stricken).

Appellant has failed to satisfy the requirements of Strickland to support his claim 

for ineffective assistance. We overrule appellant‘s fourth issue.

Reformation of the Trial Court’s Judgment

Appellant additionally requests this court to reform the trial court‘s judgment to 

accurately reflect the two enhancements alleged in the indictment and the findings on 

those enhancements at punishment. The State makes no objection to this request.

The record reflects that the charged offense was enhanced with two prior 

convictions and the trial court‘s finding of ―true‖ as to the enhancements; but, the trial 

court‘s judgment does not reflect this finding. Consequently, we find merit in appellant‘s 

argument for reformation. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 

1992); Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.—Houston [1st Dist.] 2002, no 

pet.). Accordingly, we reform the trial court‘s judgment to reflect that the indictment 

alleged two enhancement paragraphs for felony convictions, to which appellant pleaded 

―not true,‖ and the trial court found to be true.
16

As reformed, the trial court‘s judgment is affirmed.

/s/ Kem Thompson Frost

Justice

Panel consists of Justices Frost, Seymore, and Jamison.

Do Not Publish — Tex. R. App. P. 47.2(b).