Affirmed and Memorandum Opinion filed October 26 , 2021
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00295

- CR

BRITTANY CNAE MCCUTCHEON , Appellant
V.
THE STATE OF TEXAS , Appellee
On Appeal from the 212th District Court Galveston County, Texas Tri al Court Cause No. 18

- CR

- 0917

MEMORANDUM OPINION Appellant Brittany Cnae McCutcheon appeals her conviction for engaging in organized criminal activity by committing the underlying offense of fraudulent possession of fifty or more items of identifying in fo r mation, in combination with others. Appellant asserts that she received in effective ass istance of counsel. We affirm.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND
Some retail stores like Kohl ’s permit a per son t o make purchases using a store credi t car d even wh e n the customer leaves the card be hind

. It ’s an o ld

fashioned convenience that pre

- dates A pple P ay

. With a customer ’s social security number and driver ’ s licens e as proof , t he store will l ook up and verify a customer ’s store credit c ard account and ch a rge the customer as if they had the card with them

. Th is is how appellant purchased a Bulova watch at the Le ague City Kohl ’s

. And while appellant was permitted t o make the transaction, she was “red

flagged ” because , in the course of the process , she pre s ent ed an out of state lic en se. The cost of the item , the out

- of

- state license, and the fact that appellant had to consult her phone to recite her own social secur i ty number prompted the jewelry department supervisor, Lacy Brychta, to question the transac t ion and alert loss
preven tion. After the store was alerted of possible su spicious activity, appellant was monitored and observed to then go p urchase a $ 500 gift c a rd from another register

. When David Rui z, K ohl ’s asse t protection manager, was al erte d t o obs erve appellan t from t he monitors in the loss prevention office , he recognized appellant as a person identified in a BOL O (be on the lookout) notice he had rec ei v ed a week earlier. He notice d two other in dividuals with a ppellant, but they disappeared a s sh e went to the back of the store

. Ruiz noticed the group talked amongst themselves before the other two left

. Ruiz called the polic e.
Officer Michael Guzman o f the Le ague City Police Dep artment r esponded
to the call of a potential f rau d in progress. He met with R uiz and anot her store empl oyee at the front entrance and was advised appellant was still in the store.
When Guzman approached a ppellant and asked for her ID , she retrieved a3

small purse and thumbed through the purse, revealing several dif f er e nt IDs f

rom different s tates, before providing her Texas ID. Guzman ran the Texas ID through dispatch and confirmed several active warrants on a ppellant

. Appella n t identified herself as Brittany McCutcheon

. Guzman placed appellant in handcuffs and l e d h er to the loss preventi on office

. Guzman arrested appellant, and believes that he read appellant her Miranda rights, but cou ld not be sure. He said generally, wh e n he handcuffs someone, he reads them Miranda rights immediately, but he could not remem b er thi s particular occasio n

. Guzman said appellant made no statement

. Ruiz confirmed that appell ant remained silent wh ile in the office. Ruiz testified that he th o ught the officer read the appellant her Miranda rights when they were in t h e office , but
ag r eed that a ppellant already had handcuf fs on when Guzman brought her back to the office

. T he Police Department did not retain the body cam footage and Kohl ’s did n o t r etain its survei llance footage from the day of the incident.
Guzman said he searched h e r p urse incident to arres t and found two fictitious state ID s that contained appellant ’ s face and someone else ’ s n ame and date of birth

. Additionally, Guzman fou nd a $200 Kohl ’ s gift card and a blank VISA card in the name o f “ William Law ”

. B eliev ing tha t mor e information was contain ed on appellant ’ s cell phone, Guzman seized the cell phone and placed it into evidence, pending a search warrant

. On March 22, 2018, a ppellant was indicted for the offense of e ngaging in

o rganize d c riminal a ctiv ity , namely f r a udu lent possession of identi fying info rmation

. When cross examined by appellant ’s counsel at trial, Guzman agreed that he obtained a

ppell ant ’ s phone passcode sub seq uent to her arrest, but only at

a ppellant ’ s request so she co u l d get some tel ephone number s

. G uzman stated he4

never sea rched the phone until after obtaining a warrant

. Guzman said the date of the search warrant was eleven days after her arrest

. Guzman ex plained that he performed the entire task of retrieving those n umbers for app ellant in her p res ence before shutting off the phon e and placing it back in the loss prevention bag and that this was his only contact with the phone prior to the execution of the warrant.
The e vidence and forensic manager with the League C i ty Police Depa rtment
te stif i e d t hat after a se arch warran t was issued for the phone ’s data, he used a forensic tool to extract call records, text messages, chat messages, images, websites vi sit ed on the phone, as well as contact names and numbers

. Thro u g h the officer s ’ testimony, s i gni fic ant information was obtain ed from the phone and offered into evidence in support of the State ’s case. As conveyed through Guzman, the phone inform ed that

• A pp ellant would purchase and receive personal identifying i n formation from the dark web

.

• T h r o ugh various people like Latasha Krauth, appellant would send the identifying information to other s and get physical ID s made with appellant ’ s picture and someone el se ’ s name, date of birth and social security number

.

• A ppellant and othe r s would purchas e m e rch andise and sell it at a discount

. A ppellant was involved with other participants which included Latasha Krauth , a male named Eric, a woma n named Ma, a woman nam ed Puney, and a man named Shake

.

• Latasha was acting as a look

- o ut for appel lant at Kohl s

. A ppe llant and Latasha texted each other throughout the transaction at Kohls and those text messages w ere recovered

.

• Latasha and appellant pa ssed text s, shar ing dif ferent names, dates of birth, addresses, cre dit card numbers, e xpiration dates, securit y c o d es, phone numbers and social security numbers

.

• Eric , appellant ’ s b rother, made fraudulent purchases and provided appellant the merchandise t o off load and sell at a5 discounted price . Eric procure d physical ID s and provide d the m to appellant and Latash a

. E ric also received proceeds and money fr om the illicit activities

.

• Shake was a facilitator for the gift cards and some merchandise, converti ng it into cash

. Shake em ployed others that returned merchandise to r etailers and r e ceived cash back

. Guzman refe r r ed t o these people as “returners,” according to the text messages

.

• T he money flowed from appellant to Latasha, Shake to appellant , Eric to appellant , and appellant t o her mother

.
The State ’s investigator test ified that she was provided information on al l the

na mes, dates of birth, social security number s, driver ’ s license, and addresses extracted from a ppellant ’ s phone in this case

. She sai d that she ran each name a nd verified that the names and addresses mat ched ; that they were real people and had real s ocia l securit y numbers

. Three of these people testifie d at trial

. E ach testified that the ir name s , date s of birth, s ocial security number s , and dri ver ’ s license s
mat c hed the information contained on appellant ’s phone . Each testified that they did not k now appellan t or grant her permission to use their resp ective identifying information.
Th e first issue in this appeal concerns the Stat e ’ s trial counsel ’ s closing argument. While e xplaining the legal standard for finding a “ Combination ” whi ch the charg e states means “ three or more person who co llaborate carrying on criminal activitie s ” he made the following comment:
Tha t ’ s why this is an engaging case. She ’ s working with Tasha, Ma and Eric and Puney and Shake and the way the offense is worded it has to b e the defendant working with two or more other people. But you as a jury you don ’ t all have to a gree on who the th r ee p eople were. You have to agree there were at least three people involved in this criminal organi zation. So jurors #1 and #2 may believe t h is operation was primarily the defendant, Tasha and Eric. And juror #126

may believe the oper atio n was mainly the d e fend ant, Shake and Ma. That ’ s fine. Many of you believe like I do, that all six of these people wer e involved. They were absolutely involve d

. As the charge will instruct you, the law doesn ’ t require that all members of the organizati on k now each other or w ork directly with each other...

. Ap pellant ’s trial counsel did not object to the bolded comment

. Th e second issue in the case concern s appe l l ant ’s trial counsel ’s own comments in closing ar gument : One, t here is an issue of Miranda w hich is always questionable for us as attorneys as far as if you read Miranda rights versus not reading it. If h e took her purse and took her phone before she was a ctually placed in custody. Of course, all we have is his word. We don ’ t have any video which would be helpful. All we h ave is his word. So you know it ’ s our contention there may be some issues within a re asonable
s earch and seizure

. In the Stat e ’ s concl u d ing arguments it glossed appellant ’s trial counsel ’s Miranda

- related arguments as a non

- issue mer ely raised to confuse the ju ry. He explained , “ You heard from Officer Guzman multiple times; [appellant] di d not make a statement. ” The jury found app ella n t guilty of the offense of engaging in or ganized criminal a c tivity as charged in the indictment

. During punishment , t he State presented evidence of ten prior convictions, including one that enhanced the puni shment

. Appe llant pled true to the enhance ment

. The remainder of appellant ’ s prior conv ictions included f i ve misdemeanors and four s tate jail f elonies

. The S tate also prov ided evidence that appellant had been out on parole for only three months before s he committed the current offense and that s he w a s attempting to fraudu lently obtain a fir earm through a thi r d party so she could work as an armed security guard

. Through cro ss
- examination, appellant ’s trial counsel elicited information7

that appellant was not violent o r disruptive when she was arrested , that she had f our children and she had made efforts t o find a job other than the security guard j ob

. T he State rested its case

. A pp ellant ’ s trial counsel rested and explain ed she had attempted reach appellant ’ s brother, and that he had not responded to h er

. In cl osing, t he State asked for life in prison

. Ap pellant ’s trial co u nsel asked for leniency of fifteen years , based on her being a mother o f four children, the non

violent nature of her crime, and t he fact that no on e was physically h armed by her

c o nduct

. Th e jury sentenced appellant to 30 years confine ment with the TDCJ and a $1000.00 fine

. A motion for new t rial was not filed. This appeal followed.
II. I SSUES AND A NALYSIS
In her first and second issues, appellant claims s he receive d i neffective

a ssistance of counsel during the guilt

- innocence phase of trial because ( 1) her attorney failed t o object to a prose cutor ’ s comment in closing argu ment and, (2) her attorney alluded to a M iranda violation in closing argument , without first

mo vin g to suppre s s or re que sting a n a ppropriate instruction

. In her thir d issue, she claims that s he received i n effective assistanc e of counsel during the punishm ent phase of trial because her trial counsel did not present any mitigating evidence.

A. Appe lla te Review o f Ineffecti ve Assistance Complai nts on Direct Appeal
Both the United States C onstitution and the Texas Constitution guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. a rt. I, § 10; see also Tex. Code C rim . Proc. Ann

. art. 1.05 1 (Supp.). This right necessarily includes the right to reasonably effective assistan c e of counsel. Stric kland v. Washington , 466 U.S. 6 68, 686 (1984); Ex parte Gonzales , 945 S.W.2d 830, 835 (Tex. C rim. App. 1997). To prevail on he r i neffective

- a ssistance

-8

of

- counsel claims, ap pellant must prove (1 ) counsel ’ s representati on fell below the

o b jective standard of reasonableness, and (2) a reas onable probability that but for counsel ’ s alleged deficiency t he result of the proceeding would ha ve been dif f erent. See Strickland , 466 U.S. at 687

– 88; see also Hernandez v. State , 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (a pplying Strickland standard to ineffective

- assistance claims under the Texas Constitution). I n considering an ineffective

- assi sta nce claim, w e indulge a strong presumption that counsel ’ s action s fell within the wide r ange of reasonable p rofessional behavio r and were motivated by sound t rial strategy. Strickland , 466 U.S. at 689; Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. Ap p. 1999); Jack s on v. Stat e , 877 S.W.2d 768, 77 1 (Tex. Crim. App. 19 94). To defeat this pres umption, any allega t ion of ineffectiven ess must be firmly grounded in the record so that the record affirmatively shows the alleged ineffectiveness. Prine v. State , 537 S.W.3d 113 , 117 (Tex. Crim. App. 2017).

T rial counsel generall y should be given an opp ortunity to explain counsel ’ s actions b efore the court finds counsel i neffective. Id. In most cases, a direct appeal proves an inade quate vehicle for raising an inef fec tive

- assist a nce claim because the record ge nerally stands undeve loped and cannot adeq uately reflect the mot i ves behind trial co unsel ’ s actions. Rylander v. St ate , 101 S.W.3d 107, 110

– 11 (Tex. Crim. App. 2003); Thompson , 9 S.W.3d at 813

– 14. In the face o f a silent rec o rd,

we can not know trial counse l ’ s strategy, so we w ill not find deficien t performance unless t h e challenged conduc t is “so outrageous that no com petent attorney would have engaged in it.” Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App

. 2005).
A sound tri al strategy may be ex ecuted imperfectly, b ut the right to effective assistance of cou n sel does not enti tl e a defendant to errorless or p erfect counsel.9

Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Instead, we “re vie w the total i ty of the representation and th e circu mstances of ea ch case without the benefit of hindsight.” L opez v. State , 34 3 S.W.3d 137, 143 (Tex. Crim. App . 2011). Though counsel ’ s conscious decision not to object to evidence is not insulated from re vie w, unless t h e defendan t overcomes the presu mption that counsel ’ s actions were based in sound trial strategy , counsel genera lly will not be found ineffective. Ex parte Flores , 387 S.W.3d 626, 633 (Tex. Crim. App. 2012).

B. Did appellant ’s trial counsel r end er ineffe ct i ve assista nce for failing to ob ject to the prosecuto r ’ s expression of personal opinions during c losing arguments ?
In her first issue, appellant a sserts that her trial counsel rendered ineffective assistance because s he did not object to the pr osecutor ’ s s tatement

— “ [m] any of you belie ve like I do, that a ll six of these people were involved.”

— as an improper opinion injected over the issue

. The p rosecutor made the statement in the context of explaining the charge to the jury

-- th at each jur or only had to believe th e

a ppellant conspired with t wo or more of the co

- conspirators

. Proper j ury argument generally falls with in one of the following four ar eas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to a rgu ment of
opp o sing couns el; and (4) plea for law enf orcement. Freeman v. State , 340 S.W.3d 717 , 727 (Tex. Crim. App. 2011).
Th e prosecuto r ’ s comment “many of you believe lik e I do ” is a personal opinion , and as such is improper

. See Beltran v. State, 99 S.W.3d 807, 811 (Tex. App.

— Houston [14th Di st.] 20 03, pet. ref ’ d) (holding that prosecutor ’ s s tatement that “[i]f I believed th e man was not guilty I wouldn ’ t be here” was improper)

. One rationale courts have stated for this rule is that the opinion im pro perly conve y s the idea that the prosecutor has a b asis for such an opinion outside the eviden c e10

presented at trial. Williams v . State, 417 S.W.3d 162, 1 72 (T ex. App.

— Houston [1st Dist.] 2013, pet. ref ’ d)

. We are doubtful that, in a context s uch as her e w here the pr o secutor ’ s expressed personal op inion d irectly follow ed his reference to trial

ex h ibits implicating all six co

- consp irators ’ participation , the jury believed the prosecut ion ’ s ‘ belief ’ was based on someth ing other than the evidence to which he had just ref

e rred them

. In short, in a case s uch a s this , where the rationale for the rule is not s erved, the trial court may ha ve properly exercised its discr etion in overruli ng an objection to the prosecutor ’ s statement.
But even presuming that the p rosecutor ’ s s t atement wa s imprope r as to r esult in the re asonable expectation that the tri a l court would sustain the objection , i f appellant ’ s trial counsel made a deliberate decis ion not to object , we cannot conclu de that such a decision was categorically unr easonab le

. A ppellan t cit es n o authority fo r the proposition that a fail u re by trial counsel to object to purported improper j ury argument, standing alone, wo uld be “so outrageous that no competent attorney would have engaged in it.” See Goodspeed , 187 S.W .3d at 39 2

. In fact, we h ave recognized tha t the failure to object to im p roper jury argument may be based on a reasonable tria l strategy: to avoid drawing att ention to the prosecutor ’ s statement. Lopez v. State , 565 S.W.3d 879, 887 (Tex. App.

— Houston [1 4th Dist.] 2 0 18, pet. r ef ’ d) ; Se e Orellana v. State , 489 S.W.3d 537, 550 (T e x. App.

— Houston [14th Dist.] 2016, pet. ref ’ d)

. Appel lant has not met her burden to r ebut the presumption that counsel ’ s actions were motivated by sound trial strategy by n ot o b jec t ing when ap p ellant cla ims that cou n sel should have. See Perez v. State , 56 S.W.3d 727, 731 (Tex. App.

— Houston [14th Dist.] 2001 , pet. ref ’ d) (explaining that t he appellant has the burden to rebut presumption of sound trial s trategy with evid ence)

. We o verrule appe l lant ’ s fir st issue.11

C
. Did appellant ’s trial counsel render ineffe ctive assistance by comment ing about a Miranda violation, or alt ernatively for n ot taking steps earlier ? Appellant ’ s second complaint is layered with subordina te parts that a re distingui s h able enou gh to d emand separate attention

. Her primary contention is that her trial counsel rendered ineffective a ssistance because of a statement she made in closing argument about “ a lack of Miranda warnin g in connection with the defenda nt ’ s statement

. ” She poin ts out that one officer testified that appel lant was read her Miranda w arning

. Under this com plaint, she argues her cou nsel was ineffecti ve in the earlier phases of tria l because s he neither moved to suppress any
stat ement o btained in violation of Miranda , nor did she r e quest an instructio n under artic le 38.23 of the Texas Code of Crim inal P rocedure

. Wh iche ver the complaint, our conclusion is the same

. Appellant does not attempt to identify the statement (or an y oth er evidence)
to which she r e fers

. A s t he State poi n ts out, the trial record reveals that the only

“ statement ” appellant made to the police in connection with her apprehension and
arrest was her approval to unlo ck her a lready seized phone so th at the police could relay t o her pho ne n umb er s sto red i n her phone so she could call her family members while in custody

. This statement was elicited from the testifying officer in cross

- examination ; he stated that appellant initiated the discussion by r equesting
t o have her cell p hone

. The S t ate di d no t o f fer this statement or any other
statement from appellant into evidence. From our record, it would appear that no statement was made by a ppellant concerning the facts of the offense . It also was

es tablished th at password that she provided w as n o t us ed b y the police to access any other information on her pho ne at any other time. Appellant ’ s phone , whic h was the source of significant e vidence, was not search ed until ten days af ter he r
arrest pursuant to a warrant

.12

Tw o officer s test ified t hat they b elieved that appellant was read her Miranda rights. Neither officer had a record to refer to support the ir assertion an d ex pressed that t heir belief was con nected to routine. No evidence was offered t o contr a dict their statements

. Moti on to S u ppress
T o the extent that appellant argues that her counsel was ineffective for failing to file a motion to suppres s a statement , her argument lacks suppor t in the record

. A person who is qu estione d by a police officer after s he is taken in to custody o r otherwise deprived of her freedom of action in any significant way must first be warned that s he has a right to re m ain silent, that any statement s he does make may be use d as evidence against her , and that s he has a right to the presence of a n attorney, e ither reta ined or appointed. Miranda v. Arizona. , 384 U.S. at 4 36, 444, 86 S.Ct. 1602 (1966). “ Statements elicited in noncompliance with this rule may not be admitt ed for certain purposes in a crimina l trial .” Stansbury v. California , 511 U. S. 318, 322, 114 S. Ct. 1526, 1528 (1994)

. To prevail on this complaint , the record on direct appeal must affirmatively pro ve a ppellant ’ s motion to suppress wou ld have been granted. Jackson v. State , 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)

. To me et he r burden, ap p ellant wa s require d to pr oduce evidence that would defeat the presumption of proper police conduct. Id. at 957 ; Wer t v. State , 383 S.W.3d 747, 753 ( Tex. App.

— Houston [14th Dist.] 2012, no
p et.)

. In the absence of a statement or evidenc e t o sup p r ess , the a p pellant ha s not af firmati vely shown by a preponderance of the evidence that any motion to
suppress would have been gran ted. See id

.13 Failure to request artic le 38.23 Instruction Likewise, to t he extent that appellant complains that her couns el wa s ineff ec tive for faili ng to re quest a n instructio n under artic le 38.23 of the Texas Code of Crim inal P rocedure , we conclude suc h complaint unavailing. A trial court is required to include an Article 3 8.23 instruction only if the trial evidence raise d a f a c tual is sue concerning whether the ev idence was obtained in violation of the federal constitution or the Texas Constitution or any of its laws. Ramirez v. Stat e , 76 S.W.3d 121, 128 (Tex. App.

— Houston [14th Dist.] 2002, pet. ref ’ d) ; Tex. Code Crim. P ro. A n n . art

. 38.23

. Becaus e appell ant has not shown she was entitled to an instruction under article 38.23 , her trial counsel ’ s fai lure to request such an instructi on is not ineffective assistance. Cummin gs v. State , 401 S.W.3d 127, 132 (Tex. App.

— Houst on [1 4 t h Dis t. ] 2011, pet . r ef ’ d)

. Silen t Record

Because n o motion for new trial was filed , there is no record of appellant ’ s trial counsel ’ s explanation for her com ment in closing or her decisions not to

s uppress or seek an instruction with respect to an y sta t e ment. E ven if we ass ume appe llant ’ s attorney concluded that appellant ’ s exchange permitting the officer to open he r pho ne was subject to Miranda , th at Miranda warnings were not given, and that such statements could have b een suppressed or that a court would ha ve

s u ppressed , w e c annot conclude that appellant ’ s trial counsel ’ s failure to act on such and seek the exclusion or a n instruction with respect to the evidence in
q uestion

— with no discernable bearing on her offense or the seizure of her cell phone data

— w a s “ so outrage o us that no competent attorney would have en gaged in it.” Goodspeed , 187 S.W.3d at 392

. Even if she lacked a statement to suppress or seek a 38.23 instruc tion , her counsel may have strategic ally s ought to engu l f the jury in su spicion of p ol i c e misconduct to distra ct them from weaknesses in her14

client ’ s case

. Therefore, we overrule appellant ’ s second is sue. D
. Did appellant ’s trial counsel render ineffe ctive assistance for failing to present mitigating evid e nce during the punishmen t pha se ?
In h er thir d issue, appellant complains that her trial counsel was ineffec tive in failing to p resent any mitigat ing evidence at the punishment phase. Other th an her general complaint, appellant has not added significant d etail in su pport ; she has nei th e r identif

ied any parti cular evidence or category of mitigating evidence available to h er counsel that she omitted , nor has she addressed her counsel ’ s reasoning behind t his decision not to offer any evidence

. A hearing on a motion for new trial would ha ve given the par ties and opportunity to present evidence to shed light on these subjects

. However, as set out in p r evious parts of this opinion, when the record is sil ent as to trial counsel ’ s strategy, we will not conc lud e the defenda nt received ineffe ct i ve assistance unless t he challenged conduct was “so outrageous that no competent attorney would have engaged in it .” Goodspeed , 187 S.W.3d at 392; see Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We cannot r e ach such a conclusion in this c a se

. Appe lla nt eve n notes in her brief that “ this issue may be more appropriately developed through a stat e writ of habeas corpus ” and conced es that under a si l ent record “ her trial counsel reasonably could have de t ermined that the potential benefit of a d ditional w itn esses was outweighed by the risk of unfavorable counter

testimony

. ” This latter point bears particul ar application to this case because in additio n to the State ’ s evidence of 10 prior convictions , text messages from

a p pellant ’ s phone showe d a ppellant ’ s cr iminal ideas and thinking in the three months s ince she was last released

. Thes e communications ill ustrated that she spoke in a derogatory manner to others about the parole system and she actively15

sou g ht out other criminal s to establish h er criminal ente rp rise

. W he n the Court as ked appellant ’ s attorney if she had any witnesses , she responded , “ We attem pted to gather a witness, whic h is actually her brother. We haven ’ t heard back from him. So at this ti m e we rest. ” Prior to resting, her co un s el d emonstrat ed a willin gness elicit miti gating testimony

. She elicit ed testimony that

a ppellant was non
- violent , that she had attempted to get work by means ot h er than stealing and defrauding others , and she attemp t ed to elicit testimon y that appellant

w a s a mother of f

our child ren. On this record, without and further explanation about her trial coun sel ’ s decisio n
- m aking , it is not clear what other witnesses and evidence were available to her trial co unsel and her d e cision

- making process with respect an y a vailable evid ence , and w hat other external limitations beyond her
contr ol may have been placed on appellant ’ s cou n sel

. Jones v. State , 572 S.W.3d 841, 850

– 51 ( T ex. App.

— Houston [14th Dist.] 2019, no pet.) (concludin g t hat shortcomings o f a silent record p r evented meani ng ful consi deration of first Strickland prong in failure

- to

- present

- mitigating evidence ineffective assistance complaint on direct appeal ) ; see als o Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1 9 92) ( trial counsel no t ineffectiv e f or not presen ting more mitig ating evidence in capital murder trial when on a ppeal defendant did not specify what evidence should have been presented)

. For the f or e going reasons, we overrule the third issue.

III. C ONCL U SION Appellant ’ s thre e ineffectiv e
- a ssistance

- of

- counsel ar g umen ts provide no basis for appellate relief. Accord ingly, we overrule appellant ’ s compla ints and affirm the trial court ’ s judgment

.16 /s/ Randy Wilson Justice

Panel consi s ts of Justic e s Jew ell , Spai n , an d Wilson ( Sp ain, J., concurs without opinion )

. Do Not Publish

— Tex. R. App. P. 47.2(b).