Opinion filed December 21, 2018

In The

Eleventh Court of Appeals __________

No. 11-17-00003-CR

__________

SHAWN PINSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-44,548

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

The jury convicted Shawn Pinson of murder and assessed his punishment at 

confinement for seventy years and a $10,000 fine. Appellant brings nine issues on 

appeal. In Appellant’s first issue, he contends that the trial court erred when it denied

his motion for new trial. In his second, third, fourth, and fifth issues, Appellant 

asserts that the trial court abused its discretion when it admitted certain pieces of 

evidence. In Appellant’s sixth and seventh issues, he argues that trial counsel 
2

provided ineffective assistance of counsel. In his eighth and ninth issues, Appellant 

challenges the sufficiency of the evidence. We affirm.

On the night of October 24, 2014, the police responded to a call about a 

possible deceased person at Appellant’s residence in Ector County, Texas. When 

they arrived, they smelled the strong odor of a dead body emanating from the 

residence. Once inside, they discovered Daniel Searcy dead in the living room. 

Searcy’s body was severely decomposed; someone had covered it with several

towels and blankets and had wrapped it in a rug. Searcy’s body lay face down; his 

arms and legs were tied behind his back in a hog-tied position. The police found no

one else in the house. At the time that the police discovered the body, Appellant was 

in police custody for an unrelated drug offense.

Searcy had been missing for several days when the police discovered his body. 

He was last seen alive at Appellant’s residence. The police investigation revealed a 

Facebook post that Searcy had posted, which showed a picture of himself in 

Appellant’s home five days prior to his body being found. The date of the Facebook 

post was October 19, 2014. According to the police, the clothes on Searcy’s dead 

body were the same clothes that Searcy wore in the picture. Additionally, Searcy’s 

sister, Tamara Lynn Ingraham, testified that Appellant told her that Searcy had been

at Appellant’s house on October 19. She further testified that neither she nor 

Searcy’s family had heard from Searcy since that day.

Sergeant James Patrick Chadwick was the officer in charge of the 

investigation that night. At trial, he testified about the evidence that the police 

discovered in Appellant’s house. In Appellant’s living room, the police found a fan 

blowing air up the fireplace chimney, and they also found a “Scentsy candle” near 

the body. Sergeant Chadwick testified that the fan was being used as a ventilation 

system to remove the odor from the house and that the candle was being used to 

mask the odor. Additionally, the police located four bottles of spray cleaners: two 
3

in the living room and two in a bag in the kitchen. The contents of the bag in the 

kitchen also included latex gloves. The police discovered another latex glove 

underneath the couch near Searcy’s body. Amber Miller, a forensic scientist, 

testified that Appellant and Searcy could not be excluded as possible contributors to 

the DNA profile found on the glove and that it was extremely likely that the glove 

contained DNA from both Appellant and Searcy.

In addition to this evidence, the police found several bleach marks on the 

carpet near the location of the body. The bleach marks were also on the towels, 

blankets, and rug that covered the body. The police later located an empty bottle of

Clorox bleach inside the house. Further investigation revealed that Appellant had 

gone to Walmart to purchase cleaning supplies and bleach. In Appellant’s bedroom, 

the police discovered a DVR for a home security recording system. They also

observed that Appellant had video surveillance cameras inside and outside his home.

Accordingly, Sergeant Chadwick obtained a search warrant to search the DVR for

video footage. But when he examined the DVR, he found that the hard drive had 

been removed.

The record reflects that after October 19, Appellant began to live outside in 

his carport, which was attached to his house. Appellant’s friend, Charles 

Christensen, testified that he checked on Appellant daily and was worried because 

Appellant would not go inside his house; nor would Appellant allow Christensen to 

go inside. According to Christensen, Appellant claimed that “the sewer pipe was 

broken.” It was apparent to Christensen that Appellant was not leaving his carport 

and was going through a “hard time.” He expressed that Appellant “was very upset” 

and not “in his right frame of mind.” Moreover, Christensen testified that, although 

Appellant did not say why he was troubled, he did say that “he didn’t want to live 

no more.” 
4

On Wednesday, October 22, 2014, Ingraham learned that Searcy was missing. 

When Ingraham learned that Searcy was missing, she and her mother got in

Ingraham’s vehicle and started to look for Searcy. During the search, they stopped 

at Appellant’s house to ask him about Searcy. Appellant was in the carport. The 

record reflects that Christensen was with Appellant at that time. As Ingraham started 

to approach the front door, Appellant and Christensen walked over from the carport 

to meet her before she got close to the house. Ingraham identified herself as Searcy’s 

sister and asked Appellant whether he had seen Searcy. According to Ingraham, 

Appellant told her that “he hadn’t seen [Searcy] since Sunday” and that “[Searcy] 

left with somebody.” Ingraham then gave Christensen her telephone number and 

left. Christensen testified that after Ingraham left, Appellant “got a little nervous” 

and very anxious. At some point after the weekend of October 19, Appellant 

contacted his friend, Cedric Rease. At trial, Rease testified that Appellant asked him 

for money. Appellant claimed that he was in trouble and that he needed to leave 

town. 

Paul Charles Neatherlin, Jr., a former employee of Appellant, also testified at 

trial. Neatherlin testified that he accompanied Appellant to Walmart on more than 

one occasion that week.

1

 According to Neatherlin, on one occasion, Appellant gave 

him money to purchase various items, including bleach and air freshener. After the 

second trip to Walmart, Neatherlin realized that Appellant was living in his carport 

and would not enter his home. When Neatherlin confronted Appellant about his 

behavior, Appellant started to cry. Neatherlin testified that Appellant said he was 

not going to lie to him anymore. Appellant then took Neatherlin inside the house 

and showed him Searcy’s dead body. After they came back outside, Neatherlin 

 1

The record reflects that Appellant and Neatherlin went to Walmart on Wednesday, October 22, 

2014, and on Thursday, October 23, 2014. 
5

asked Appellant whether he killed the person under the blankets. Appellant 

responded: “I killed him.” Appellant also told Neatherlin that he killed Searcy 

because Searcy was stealing from Appellant.

Dr. Susan Roe, a deputy medical examiner, performed an autopsy of Searcy’s 

body on October 27, 2014. At trial, Dr. Roe testified about Searcy’s injuries and 

cause of death. She used Searcy’s autopsy photographs to help the jury understand 

her testimony. According to Dr. Roe, the autopsy revealed a fracture on the right 

side of Searcy’s skull. She described the size of the fracture as “medium.” In 

addition to the skull fracture, the autopsy revealed multiple rib fractures on the back 

side of Searcy’s rib cage and one rib fracture in the front. She testified that all these 

fractures were “complete fractures.” Based on the autopsy, Dr. Roe concluded that 

“blunt force injuries” caused Searcy’s death. She also testified about how these 

injuries could have occurred. Dr. Roe explained that Searcy’s skull and rib fractures 

were consistent with someone “hitting or striking” Searcy with the hands or “kicking 

or stomping” Searcy with the feet.

We will first address Appellant’s eighth and ninth issues concerning the 

sufficiency of evidence. In his eighth issue, Appellant argues that the trial court 

erred when it denied his motion for a directed verdict at the conclusion of the 

guilt/innocence phase of trial. In his ninth issue, Appellant argues that the evidence 

was not sufficient to convict him of murder. 

A motion for directed verdict is reviewed under the same standard as the legal 

sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. 

App. 1996). We therefore address both issues together. 

We review the sufficiency of the evidence under the standard of review set 

forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 

912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—

Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the evidence 
6

in the light most favorable to the verdict and determine whether, based on that 

evidence and any reasonable inferences from it, any rational trier of fact could have 

found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 

U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

A person commits the offense of murder if he (1) “intentionally or knowingly 

causes the death of an individual” or (2) “intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an 

individual.” TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (West 2011). The grand jury 

indicted Appellant under both subsections (1) and (2). Additionally, the indictment 

specifically alleged the manner in which Appellant caused Searcy’s death, namely 

as follows: “by hitting or striking with his hand or an object unknown to the Grand 

Jury or by kicking or stomping with his foot the said DANIEL SEARCY, or by a 

manner and means unknown to the Grand Jury, or by a combination thereof.” At 

trial, the jury found Appellant “guilty beyond a reasonable doubt of the offense of 

murder as charged in the indictment.” 

The linchpin of Appellant’s argument on appeal is that he was not the person 

that committed the murder. In support, he argues that the evidence only established 

that he was aware of Searcy’s body in his home; it did not prove that he actually 

committed the murder. Apart from Neatherlin’s testimony about Appellant’s alleged 

confession, which Appellant argues is not credible, he contends that there was no 

direct evidence that linked him to the murder. Therefore, Appellant contends that 

“the State failed to introduce evidence beyond a reasonable doubt that [he] actually 

murdered Searcy.” We disagree. 

The Jackson standard imbues to the factfinder the responsibility to resolve 

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences 

from basic facts to ultimate facts. See Jackson, 443 U.S. at 319; Clayton v. State, 

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as 
7

the sole judge of the witnesses’ credibility and the weight their testimony is to be 

afforded. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). An 

appellate court presumes that the factfinder resolved any conflicts in the evidence in 

favor of the verdict and defers to that resolution, provided that the resolution is 

rational. See Jackson, 443 U.S. at 326.

Moreover, in our review of the record, direct and circumstantial evidence are 

treated equally; circumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient 

to establish guilt. Clayton, 235 S.W.3d at 778. In determining the sufficiency of the 

evidence, a reviewing court examines “whether the necessary inferences are 

reasonable based upon the combined and cumulative force of all the evidence when 

viewed in the light most favorable to the verdict.” Id. (quoting Hooper v. State, 214 

S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). Finally, the “cumulative force” of all the 

circumstantial evidence can be sufficient for a jury to find the accused guilty beyond 

a reasonable doubt, even if every fact does not “point directly and independently to 

the guilt of the accused.” Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 

2006).

Here, the evidence shows that the police discovered Searcy’s decomposed 

body in Appellant’s living room. Prior to this discovery, Appellant confessed to 

Neatherlin that he had killed Searcy. After Searcy’s death, Appellant began to live 

outside in his carport and refused to let anyone inside his house. During this time, 

Appellant was upset, nervous, and not “in his right frame of mind.” He also took 

measures to conceal the odor of the body, lied to Searcy’s sister about Searcy’s 

whereabouts, and even contemplated leaving town. When we consider the

cumulative force of the evidence in the light most favorable to the verdict, we 

conclude that a rational trier of fact could have found beyond a reasonable doubt that 
8

Appellant committed Searcy’s murder. Accordingly, the evidence was sufficient to 

support Appellant’s conviction. We overrule Appellant’s eighth and ninth issues. 

In Appellant’s first issue, he contends that the trial court abused its discretion 

when it denied his motion for new trial.2 In his motion, Appellant made three 

separate arguments. Specifically, he argued that he was entitled to a new trial based 

on (1) the State’s use of false testimony, (2) newly discovered evidence, and 

(3) insufficient evidence. As discussed above, the evidence was sufficient to support 

Appellant’s conviction for murder. Thus, our analysis of whether the trial court 

erred when it denied Appellant’s motion for new trial will focus on Appellant’s first 

and second arguments.

We review a trial court’s denial of a motion for new trial for an abuse of 

discretion. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). The trial 

court abuses its discretion in denying a motion for new trial only when no reasonable 

view of the record could support the trial court’s ruling. Id. This is a deferential 

standard of review that requires us to view the evidence in the light most favorable 

to the trial court’s ruling. Id. In determining whether the trial court abused its 

discretion, we do not substitute our own judgment for that of the trial court, and we 

uphold the trial court’s ruling if it is within the zone of reasonable disagreement. Id.

As an initial matter, we note that Appellant’s attempt to show (1) that the State 

used false testimony and (2) that he is entitled to a new trial based on newly 

discovered evidence rests solely on the affidavits attached to his motion—most 

notably, the affidavit of Deputy Mike Griffis. The Court of Criminal Appeals, 

however, has stated that an affidavit attached to a motion for new trial “is but a 

pleading that authorizes the introduction of supporting evidence. It is not evidence 

in itself.” Stephenson v. State, 494 S.W.2d 900, 909–10 (Tex. Crim. App. 1973). 

 2

The record reflects that Appellant’s motion was overruled by operation of law.
9

To constitute evidence, “it needs to be introduced as such at the hearing on the 

motion.” Id. Thus, before this court can rely on supporting affidavits, they must 

first be offered into evidence at a hearing, even if the motion for new trial implicates 

federal constitutional issues. Rouse v. State, 300 S.W.3d 754, 762–63 (Tex. Crim. 

App. 2009)

Here, the record indicates that the trial court did not hold a hearing on 

Appellant’s motion for new trial. Further, Appellant did not request such a hearing. 

Because no hearing was held on Appellant’s motion, Appellant has failed to provide 

any “evidence” of false testimony or newly discovered evidence. See Montelongo v. 

State, No. 08-16-00001-CR, 2018 WL 4178520, at *5 (Tex. App.—El Paso 2018, 

no pet.) (not designated for publication); Jesse v. State, No. 01-15-00181-CR, 2017 

WL 769906, at *3 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (mem. op., not 

designated for publication); Garcia v. State, 291 S.W.3d 1, 7 (Tex. App.—Corpus 

Christi 2008, pet. ref’d). Consequently, nothing is presented for appellate review. 

Royal v. State, 659 S.W.2d 135, 135 (Tex. App.—Beaumont 1983, no pet.).

But even if we were to consider the affidavits in our review of Appellant’s 

argument on the merits, we would conclude that the trial court did not abuse its 

discretion when it denied Appellant’s motion for new trial. 

The gravamen of Appellant’s motion for new trial was the alleged false 

testimony of one of the State’s witnesses, Neatherlin. At trial, Neatherlin testified 

that, after Appellant confessed to killing Searcy, Neatherlin went straight to his

former girlfriend’s house. Neatherlin testified that, while there, he reported the dead 

body to the police. In particular, he testified that he talked to Deputy Griffis and

informed him about the body in Appellant’s house. 

In his motion, Appellant argued that Neatherlin’s testimony that he talked to 

Deputy Griffis was false. In support, Appellant attached three affidavits, including 

an affidavit of Deputy Griffis, whose testimony Appellant contends was newly 
10

discovered evidence.

3

 In the affidavit, Deputy Griffis refutes the fact that Neatherlin 

ever contacted him to report a dead body. Specifically, he attested as follows: “I 

never received any telephone call from Mr. Paul Charles Neatherlin. If I had 

received a report of a dead body I would have sent officers to the location 

immediately. I would also have gone to the scene myself.”

Appellant first argues that a new trial is warranted because the State used

Neatherlin’s false testimony. The State’s use of material false testimony to procure 

a conviction or punishment violates a defendant’s constitutional right to due process, 

regardless of whether the State does so knowingly or unknowingly. See, e.g., Ex 

parte Robbins, 360 S.W.3d 446, 459 (Tex. Crim. App. 2011). Generally, when a 

defendant asserts this violation on appeal, we review the record to determine 

(1) whether the State used false testimony and (2) whether the testimony was 

material. Yates v. State, 171 S.W.3d 215, 220–22 (Tex. App.—Houston [1st Dist.] 

2005, pet. ref’d). False testimony is material only if there is a “reasonable 

likelihood” that it affected the judgment of the jury. Ex parte Weinstein, 421 S.W.3d 

656, 665 (Tex. Crim. App. 2014); Ex parte Chavez, 371 S.W.3d 200, 206–07 (Tex. 

Crim. App. 2012).

Even if we assume that the contested portion of Neatherlin’s testimony—that 

he reported the dead body to Deputy Griffis—was false, the record does not support 

the conclusion that this testimony was material to the jury’s verdict. To support his 

argument that Neatherlin’s false testimony was material, Appellant cites to Ex parte 

Chabot. There, the State unknowingly presented false testimony of an accomplice

 3

Appellant’s three affidavits are marked as Exhibits A, B, and C. Appellant attached Exhibits A 

and B to his original motion for new trial; he attached Exhibit C to an addendum to his motion for new trial.

Exhibit A is an affidavit of Matt L. Thomas, Appellant’s trial counsel; Exhibit B is an affidavit of 

Robin McBride, Matt Thomas’s private investigator; and Exhibit C is an affidavit of Deputy Griffis. In 

their affidavits, Thomas and McBride both corroborate the statements made by Deputy Griffis in his 

affidavit.
11

witness. Ex parte Chabot, 300 S.W.3d 768, 770–71 (Tex. Crim. App. 2009). The 

accomplice witness testified that he was in another room when the defendant 

sexually assaulted and murdered the victim. Id. The jury subsequently convicted 

the defendant of murder and sexual assault based on this testimony. Post-conviction 

DNA evidence, however, exculpated the defendant and revealed that it was the 

accomplice witness who had committed the offense. Id. Because the State used the 

accomplice-witness’s false testimony, which was critical to the defendant’s 

conviction, the Court of Criminal Appeals held that the defendant’s due process 

rights were violated. See id. at 772. In a subsequent decision, the court reasoned 

that the false testimony of the accomplice witness was “material because it provided 

the only direct evidence supporting the conviction.” Chavez, 371 S.W.3d at 205.

In contrast, Neatherlin’s false testimony in this case did not provide any direct 

evidence to support Appellant’s conviction. Rather, Neatherlin’s allegedly false 

testimony concerned his actions after Appellant confessed to killing Searcy. 

Although Neatherlin’s testimony about Appellant’s confession was critical to 

Appellant’s conviction, Neatherlin’s testimony about his conduct after he left 

Appellant’s residence, specifically whether he contacted Deputy Griffis, does not 

directly impact the question of whether Appellant committed Searcy’s murder. Nor 

does it negate the evidence at trial that Appellant confessed to the murder. Unlike 

in Chabot, the allegedly false testimony in this case was not critical to the jury’s 

determination of guilt, and therefore is not material. See Chabot, 300 S.W.3d at 770.

Appellant also argues that a new trial is warranted based on newly discovered 

evidence. The code of criminal procedure gives an accused a right to a new trial 

where material evidence favorable to the accused has been discovered since trial.

See TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2018). To meet the statutory 

requirement for materiality, a defendant must satisfy the following four-part test: 

(1) the newly discovered evidence was unknown or unavailable to the movant at the 
12

time of his trial; (2) the movant’s failure to discover or obtain the evidence was not 

due to a lack of diligence; (3) the new evidence is admissible and is not merely 

cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is 

probably true and will probably bring about a different result in another trial. See 

Carsner v. State, 444 S.W.3d 1, 2–3 (Tex. Crim. App. 2014) (citing Keeter v. State, 

74 S.W.3d 31, 36–37 (Tex. Crim. App. 2002)). A defendant’s failure to establish 

any of the essential requirements for a new trial based on newly discovered evidence 

warrants the trial court’s denial of the motion. Jones v. State, 234 S.W.3d 151, 157 

(Tex. App.—San Antonio 2007, no pet.).

Appellant fails to satisfy both the third and fourth prongs of the Carsner test. 

In general, newly discovered evidence that merely impeaches the witness’s 

testimony will not be sufficient to grant a new trial. Carsner, 444 S.W.3d at 3. The 

State argues that Appellant’s newly discovered evidence (i.e., Deputy Griffis’s 

affidavit, in which he states that Neatherlin did not contact him to report the victim’s 

dead body) “would have been merely impeachment” and thus not sufficient to 

support a new trial. We agree. In his motion for new trial, Appellant argued that 

this newly discovered evidence bears “directly upon the credibility of Paul 

Neatherlin’s testimony.” Additionally, on appeal, Appellant argues that in light of 

Neatherlin’s false testimony, a new trial is warranted because “Neatherlin’s 

credibility . . . was of crucial importance in the State’s case against [him].” Thus, to 

the extent that Appellant argues that he is entitled to a new trial because the newly 

discovered evidence will impeach Neatherlin’s testimony, it fails to satisfy the third 

prong of the Carsner test. 

We note that even if the newly discovered evidence impeaches a witness, the 

evidence may still warrant a new trial if it is “material and competent independent 

of its impeaching tendency.” Hale v. State, 51 S.W.2d 611, 613 (Tex. Crim. App. 

1932); see also Chabot, 300 S.W.3d at 770. This standard for materiality is 
13

encompassed in the fourth prong of the Carsner test. Cf. Garcia v. State, No. 13-

05-00097-CR, 2012 WL 987340, at *4 (Tex. App.—Corpus Christi Mar. 22, 2012, 

pet. ref’d) (mem. op., not designated for publication). Under the fourth prong, if the 

new evidence is probably true and will probably bring about a different result in a 

new trial, independent of impeachment, then the evidence is material and not merely 

impeachment. See Parker v. State, No. 13-13-00128-CR, 2014 WL 6085584, at *2–

3 (Tex. App.—Corpus Christi Nov. 13, 2014, pet. ref’d) (mem. op., not designated 

for publication). 

Appellant argues that “[t]his newly discovered evidence was material because 

it called into question when law enforcement officials were first placed on notice of 

Searcy’s dead body.” Moreover, he argues broadly that such evidence “established 

the falsehood of Neatherlin’s testimony.” As discussed above, however, we cannot 

conclude that Neatherlin’s testimony, even if false, would likely have produced a 

different outcome, independent of its impeaching tendency. Further, the question of 

when the police first became aware of the dead body is not material to the issue of 

whether Appellant caused Searcy’s death. Even if Neatherlin did not contact 

Deputy Griffis after Appellant confessed, this new evidence would not contradict 

Neatherlin’s testimony that Appellant confessed that he killed Searcy. Instead, the 

evidence would merely serve to impeach Neatherlin’s testimony in general. Thus, 

because Appellant’s newly discovered evidence is not likely to bring about a 

different result in a new trial, it also fails to satisfy the fourth prong of the Carsner

test. 

Accordingly, we cannot say that the trial court’s denial of Appellant’s motion 

for new trial was outside the zone of reasonable disagreement. Because the record 

fails to establish that Neatherlin’s allegedly false testimony or the newly discovered 

evidence was material to Appellant’s conviction, we hold that the trial court did not 
14

abuse its discretion when it denied the motion for new trial. We overrule Appellant’s 

first issue.

In Appellant’s second, third, fourth, and fifth issues, Appellant challenges the 

trial court’s decision to admit various pieces of evidence. We review a trial court’s 

evidentiary ruling under an abuse of discretion standard. Gonzalez v. State, 544 

S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court abuses its discretion when 

its decision falls outside the zone of reasonable disagreement. Id.; Johnson v. State, 

490 S.W.3d 895, 908 (Tex. Crim. App. 2016). We will uphold the trial court’s ruling 

on the admission or exclusion of evidence if the ruling was proper under any legal 

theory or basis applicable to the case. Devoe v. State, 354 S.W.3d 457, 469 (Tex. 

Crim. App. 2011). We address Appellant’s four evidentiary issues in turn. 

In Appellant’s second issue, he contends that the trial court erred when it 

admitted the following pieces of evidence: (1) a photograph of Searcy’s decomposed

body at the crime scene—State’s Exhibit No. 78; (2) photographs of Searcy’s 

autopsy—State’s Exhibit Nos. 171–76, 180–85; and (3) photographs of Appellant’s 

bedroom—State’s Exhibit Nos. 126–27, 134, 137, 139, 140–41, 146, and 154–55.

Appellant argues that these photographs were irrelevant and unfairly prejudicial in 

violation of Rules 402 and 403 of the Texas Rules of Evidence. He also argues that 

the admission of the bedroom photographs violated Rule 404.

Specifically, with respect to State’s Exhibit No. 78 and the autopsy 

photographs, Appellant argues that they were not relevant to the issue of whether he 

intentionally or knowingly killed Searcy. In addition, given the decomposition of 

the victim’s body, Appellant argues that the photographs were “extremely graphic” 

and “gruesome” and that the photographs only served to inflame the jury and thus 

resulted in unfair prejudice. We disagree. 

The admissibility of photographs is within the sound discretion of the trial 

judge. Shuffield v. State, 189 S.W.3d 782, 786 (Tex. Crim. App. 2006). To be 
15

admissible, the evidence must be relevant. TEX. R. EVID. 402. Evidence is relevant 

if it has “any tendency to make the existence of any fact that is of consequence to 

the determination of the action more probable or less probable than it would be 

without the evidence.” Shuffield, 189 S.W.3d at 787; TEX. R. EVID. 401. Crimescene photographs that depict the location of the body are generally relevant in a 

murder trial. See Shuffield, 189 S.W.3d at 787. Additionally, autopsy photographs 

are generally admissible as relevant when the pictorial evidence will help the jury to 

understand the verbal testimony of the medical examiner. See generally Harris v. 

State, 661 S.W.2d 106, 107 (Tex. Crim. App. 1983).

We conclude that State’s Exhibit No. 78 and the autopsy photographs were 

relevant to the issue of whether Appellant intentionally or knowingly killed Searcy. 

Appellant argues that he was not the person that killed Searcy. Because State’s 

Exhibit No. 78 shows the location of the body at the crime scene, which was the 

living room of Appellant’s residence, the photograph makes it more likely—than it 

would be without the photograph—that Appellant killed Searcy. Thus, State’s 

Exhibit No. 78 was relevant during the guilt phase of the trial. 

Additionally, the autopsy photographs were relevant because they helped the 

jury understand the medical examiner’s testimony about the autopsy. The 

photographs helped Dr. Roe explain the level of decomposition on Searcy’s body 

and the complex manner in which he was tied. Dr. Roe also testified about the 

injuries depicted in the photographs. She used the photographs to describe the 

severity and location of the injuries, and how the injuries could have occurred. 

Therefore, the autopsy photographs were relevant and helpful to the jury in making 

its decision. 

Even if the evidence is relevant, however, the trial court may exclude the 

evidence “if its probative value is substantially outweighed by a danger of . . . unfair 

prejudice.” TEX. R. EVID. 403. Rule 403 favors the admission of relevant evidence 
16

and carries a presumption that relevant evidence is more probative than prejudicial. 

Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Montgomery v. State, 

810 S.W.2d 372, 389 (Tex. Crim. App. 1991). Evidence is unfairly prejudicial when 

it has an undue tendency to suggest an improper basis for reaching a decision. 

Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000); Render v. State, 347 

S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). When we review a trial 

court’s determination under Rule 403, we reverse the trial court’s judgment “rarely 

and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847 

(Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d at 392). An analysis 

under Rule 403 includes, but is not limited to, the following factors: (1) the probative 

value of the evidence; (2) the potential to impress the jury in some irrational, yet 

indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s 

need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 

2012) (citing Montgomery, 310 S.W.2d at 389–90); Shuffield, 189 S.W.3d at 787.

In addition to these four factors, in the context of photographic evidence 

specifically, we also consider the following: the number of photographs, the size of 

the photograph, whether it is in color or black and white, the detail shown in the 

photograph, whether the photograph is gruesome, whether the body is naked or 

clothed, and whether the body has been altered since the crime in some way that 

might enhance the gruesomeness of the photograph to a defendant’s detriment.

Shuffield, 189 S.W.3d at 787; Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. 

App. 1995). Generally, photographs are admissible if testimony about the matters 

that the photographs depict would be admissible and if the probative value is not 

substantially outweighed by the prejudicial effect. Threadgill v. State, 146 S.W.3d 

654, 671 (Tex. Crim. App. 2004). Additionally, a trial court does not err merely 

because it admits gruesome photographs into evidence. Sonnier, 913 S.W.3d at 519; 

Luna v. State, 264 S.W.3d 821, 829 (Tex. App.—Eastland 2008, no pet.).
17

We conclude that the admission of State’s Exhibit No. 78 and the autopsy 

photographs did not run afoul of Rule 403. While State’s Exhibit No. 78 and the 

autopsy photographs may be gruesome, they “depict nothing more than the reality 

of the brutal crime committed.” Sonnier, 913 S.W.2d at 519. 

Sergeant Chadwick testified that State’s Exhibit No. 78 was a fair and accurate 

depiction of Searcy’s body after the police uncovered his body and processed it for 

transport. The appellate record contains a colored digital copy of State’s Exhibit 

No. 78. Nothing in the record indicates the size of the photograph that was admitted 

into evidence. The photograph is taken from a high vantage point and is not 

particularly detailed. In the photograph, Searcy is fully clothed, but his arms are 

exposed. He is lying down on his stomach, and his legs and arms are tied behind his 

back in a hog-tied position. The photograph shows the decomposition of his arms

and of the left side of his face; the right side of his face is not depicted. Moreover, 

because the police only pulled back the blankets and removed the towels to expose 

Searcy’s body, it was not altered in a manner that detrimentally affected Appellant.

The autopsy photographs show the victim’s body during the autopsy. There 

are twelve colored autopsy photographs in total. As with State’s Exhibit No. 78, the 

appellate record contains colored digital copies of the autopsy photographs and does 

not reflect the size of the originals. The photographs were not notably duplicative 

or cumulative. The record reflects that the State used no more photographs than 

were necessary for Dr. Roe to adequately explain her testimony. Together, they

show detailed close-ups of the victim’s injuries, areas of decomposition, and how 

the victim was hog-tied. Although some of the photographs reflect alterations of the 

victim’s body due to the autopsy procedures, specifically images of Searcy’s skull 

and rib cage, Dr. Roe explained that the alterations were made by her to examine 

Searcy’s internal injuries; thus, their presentation did not detrimentally affect 

Appellant. See generally Salazar v. State, 38 S.W.3d 141, 151–52 (Tex. Crim. App. 
18

2001) (discussing that when the body is altered during the autopsy to examine and 

portray the extent of internal injuries, there is no danger that the jury would attribute 

the alteration to the defendant). 

Together, State’s Exhibit No. 78 and the autopsy photographs were probative 

of whether Appellant killed Searcy and of the injuries that he received. They were 

also necessary for the State to develop its case and did not take an inordinate amount 

of time to present. We have reviewed the photographs marked as State’s Exhibit 

Nos. 78, 171 through 176, and 180 through 185, and we cannot conclude that they 

are so disturbing that a juror of normal sensitivity would not be able to rationally

decide the issues involved in the case after viewing the photographs. See Alvarado v. 

State, 912 S.W.2d 199, 212 (Tex. Crim. App. 1995). Therefore, we hold that the 

trial court did not abuse its discretion when it admitted State’s Exhibit No. 78 and 

the autopsy photographs over Appellant’s Rules 402 and 403 objections. 

Appellant also argues that the bedroom photographs, which all depicted 

graffiti and other markings on the door, walls, and ceiling, were irrelevant and 

unfairly prejudicial. He further contends that their admission constituted an 

impermissible attack on his character. The State responds that Appellant’s bedroom 

was a “crime scene.” Although the police did not find the body in the bedroom, the 

State asserts that the police did find a DVR that was a part of Appellant’s home 

security system. Because the hard drive was removed from the DVR, the State 

argues that this evidence suggests Appellant’s consciousness of guilt. However, 

only two of the exhibits to which Appellant objects, namely State’s Exhibit Nos. 127 

and 140, show the DVR. The remaining bedroom photographs—marked as State’s 

Exhibit Nos. 126, 134, 137, 139, 141, 146, 154, and 155—only show the graffiti and 

other markings.

Even if we assume, without deciding, that the admission of the bedroom 

photographs constitutes error, such admission did not harm Appellant. The 
19

erroneous admission of evidence generally constitutes nonconstitutional error. See

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We must disregard a 

nonconstitutional error if it does not affect substantial rights. TEX.R. APP. P. 44.2(b). 

“A substantial right is affected when the error had a substantial and injurious effect 

or influence in determining the jury’s verdict.” Schmutz v. State, 440 S.W.3d 29, 39 

(Tex. Crim. App. 2014). “[S]ubstantial rights are not affected by the erroneous 

admission of evidence ‘if the appellate court, after examining the record as a whole, 

has fair assurance that the error did not influence the jury, or had but a slight effect.’” 

Motilla, 78 S.W.3d at 355 (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. 

Crim. App. 2001)). In assessing the likelihood that the jury’s decision was adversely 

affected by the error, we must “consider everything in the record, including any 

testimony or physical evidence admitted for the jury’s consideration, the nature of 

the evidence supporting the verdict, the character of the alleged error and how it 

might be considered in connection with other evidence in the case.” Id.

Sergeant Chadwick testified about the bedroom photographs at trial. 

Although he pointed out the graffiti on the walls, his testimony about the markings 

was brief and nonspecific. Instead, he focused more on the evidence found within 

the bedroom, including the DVR. The State did not emphasize at trial the graffiti on 

the walls or spend an inordinate amount of time introducing such photographs. More 

importantly, the State presented ample evidence of Appellant’s guilt. In particular, 

the evidence established that Searcy’s body was found in Appellant’s living room 

and that Appellant confessed that he killed Searcy. In light of such evidence, we 

have fair assurance that the admission of the photographs of Appellant’s bedroom

did not influence the jury’s verdict, or influenced the jury only slightly. We overrule 

Appellant’s second issue. 

In Appellant’s third issue, he contends that the trial court abused its discretion 

when it admitted extraneous evidence of his illegal drug use on or around the date 
20

of the murder. In particular, Appellant argues that such evidence is inadmissible 

under Article 38.36 of the Texas Code of Criminal Procedure because the State failed 

to provide notice of its intent to use this evidence under Rule 404(b) of the Texas 

Rules of Evidence. The State responds that, although it did not provide notice of its 

intent to introduce evidence of Appellant’s general drug use, the admission of such 

evidence was harmless error.

We review the trial court’s decision to admit evidence of extraneous bad acts 

for an abuse of discretion. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. 

App. 2009). Article 38.36(a) provides: “In all prosecutions for murder, the state or 

the defendant shall be permitted to offer testimony as to all relevant facts and 

circumstances surrounding the killing and the previous relationship existing between 

the accused and the deceased, together with all relevant facts and circumstances 

going to show the condition of the mind of the accused at the time of the offense.”

CRIM. PROC. art. 38.36(a). Nevertheless, evidence admissible under Article 38.36(a) 

remains subject to Rule 403 and Rule 404(b) of the Texas Rules of Evidence. 

Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999). In particular, such 

evidence is subject to the notice requirement of Rule 404(b). See Umoja v. State, 

965 S.W.2d 3, 7 (Tex. App.—Fort Worth 1997, no pet.) (Article 38.36(a) does not 

abrogate the State’s obligation to provide notice to the accused of its intent to 

introduce extraneous offense evidence under Rule 404(b)). In relevant part, Rule 

404(b) provides that, “On timely request by a defendant in a criminal case, the 

prosecutor must provide reasonable notice before trial that the prosecution intends 

to introduce such evidence—other than that arising in the same transaction—in its 

case-in-chief.” TEX. R. EVID. 404(b). 

Even if we assume, without deciding, that the trial court erred when it 

permitted the State to introduce evidence of Appellant’s drug use, we conclude that 

the error, if any, did not harm Appellant. As we explained in our disposition of 
21

Appellant’s second issue, the erroneous admission of evidence generally constitutes 

nonconstitutional error. See Motilla, 78 S.W.3d at 355. We will disregard such error 

unless it affects Appellant’s substantial rights. TEX. R. APP. P. 44.2(b). 

The purpose of the Rule 404(b) notice requirement is to prevent surprise. 

Hernandez v. State, 176 S.W.3d 821, 825 (Tex. Crim. App. 2005). Thus, if the trial 

court erred when it admitted evidence due to lack of notice, we must determine 

whether the record reflects harm to Appellant in terms of surprise. See Roethel v. 

State, 80 S.W.3d 276, 281–82 (Tex. App.—Austin 2002, no pet.). A defendant’s 

substantial rights are not affected “if the defendant was not surprised by the 

evidence.” See Hernandez, 176 S.W.3d at 825; see also Roethel, 80 S.W.3d at 281–

82. In other words, “we must analyze how the deficiency of the notice affected [the 

defendant’s] ability to prepare for the evidence.” Hernandez, 176 S.W.3d at 825

(quoting Roethel, 80 S.W.3d at 281–82). 

Here, there is no indication that Appellant was surprised by the State’s desire 

to introduce evidence of his illegal drug use on or around the date of the murder. 

Indeed, had there been legitimate surprise that required Appellant to reevaluate his 

trial strategy, Appellant could have requested a continuance. McDonald v. State, 

179 S.W.3d 571, 578 (Tex. Crim. App. 2005). The record, however, does not reflect 

that Appellant moved for a continuance. Additionally, Appellant does not argue that 

he was unable to prepare his defense because of the State’s failure to give him notice. 

Therefore, we conclude that any error in admitting evidence of Appellant’s drug use 

without the requisite notice was harmless. We overrule Appellant’s third issue. 

In Appellant’s fourth issue, he contends that the trial court erred when it 

admitted the following pieces of evidence: (1) a Walmart customer receipt, marked 

as State’s Exhibit No. 7; and (2) four computer-generated receipts from Walmart, 

marked as State’s Exhibit Nos. 201 through 204.
22

Appellant first asserts that the Walmart customer receipt (Exhibit No. 7) was 

not relevant to the issue of whether Appellant murdered Searcy. The State 

introduced the customer receipt through Sergeant Chadwick. Sergeant Chadwick 

testified that he obtained information that Appellant and Neatherlin had visited 

Walmart to purchase cleaning supplies, among other items. Jodi Cash, a crime scene 

technician, located the customer receipt in Neatherlin’s vehicle. Appellant argues

that the customer receipt is not relevant for two reasons. First, he argues that “the 

State failed to establish the customer receipt was relevant to the time period in 

question.” Second, he argues that “[t]he customer receipt itself does not reflect the 

purchase of any cleaning supplies.”

Under Rule 402 of the Texas Rules of Evidence, evidence must be relevant to 

be admissible. See TEX. R. EVID. 402. “Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be without the evidence; 

and (b) the fact is of consequence in determining the action.” TEX. R. EVID. 401. 

We conclude that the evidence was relevant to prove a theory of the State’s 

case. Specifically, that Appellant and Neatherlin went to Walmart on multiple 

occasions, and on one of those occasions, they purchased cleaning supplies, 

including bleach. First, the customer receipt appears to be dated October 23, 2014, 

five days after the murder, as alleged by the State. Thus, it was relevant to the time 

period in question. Second, although the customer receipt did not indicate the 

purchase of cleaning supplies, the customer receipt has some tendency to make it 

more probable than it would be without the evidence that Appellant and Neatherlin 

did make trips to Walmart after the date of the murder. Accordingly, the trial court 

did not abuse its discretion when it admitted the customer receipt over Appellant’s 

relevancy objection. 

Appellant next asserts that the court erred when it admitted the four computergenerated Walmart receipts, marked as State’s Exhibit Nos. 201 through 204.
23

Specifically, he argues that the computer-generated receipts constitute hearsay and 

that the State failed to assert a proper hearsay exception. Hearsay is a statement, 

other than one made by the declarant while testifying at trial, that is offered to prove 

the truth of the matter asserted. TEX. R. EVID. 801(d). Hearsay is not admissible 

except as provided by statute, the Rules of Evidence, or other rules prescribed under 

statutory authority. TEX. R. EVID. 802. Once the opponent of hearsay evidence 

makes the proper objection, the burden shifts to the proponent of the evidence to 

establish that an exception applies that would make the evidence admissible in spite 

of its hearsay character. Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 

2008).

Assuming without deciding that the trial court’s ruling was erroneous, we 

must determine whether it amounts to reversible error. It is well established that the

“improper admission of evidence is not reversible error if the same or similar 

evidence is admitted without objection at another point in the trial.” Thomas v. State, 

1 S.W.3d 138, 142 (Tex. App.—Texarkana 1999, pet. ref’d) (citing Mayes v. State, 

816 S.W.2d 79, 88 (Tex. Crim. App. 1991)). Thus, if there is additional evidence 

that establishes the same or similar facts as the computer receipts, we must find the 

error harmless. See id.

At trial, the State offered the computer-generated receipts through Joy Jordan, 

an asset protection associate at Walmart. Jordan testified that State’s Exhibit 

No. 201 documented a purchase of a prepaid cellphone on October 22, 2014; State’s 

Exhibit No. 202 indicated the return of the same phone on October 23, 2014; and 

State’s Exhibit No. 204 established that the phone was shipped back to Walmart’s

distribution center on October 26, 2014. Further, Jordan testified that State’s Exhibit 

No. 203 showed the purchase of four items shortly after the phone was returned on 

October 23, including a printer, a Pedialyte drink, deodorant, and supplements.
24

These same or similar facts were established by other properly admitted 

evidence at trial, to which Appellant did not object. Specifically, Neatherlin later 

testified that he purchased and returned a cell phone at Walmart. Additionally, 

through Jordan, the State introduced video surveillance footage of the Walmart 

transaction documented in State’s Exhibit No. 203. The video showed the purchase 

of the items outlined in the computer-generated receipt, namely the printer, drink, 

deodorant, and supplements. Therefore, even if we assume that the computergenerated receipts constituted inadmissible hearsay, we conclude that their 

admission was harmless error. We overrule Appellant’s fourth issue. 

In Appellant’s fifth issue, he contends that the trial court erred when it 

admitted an anthropology report—authored by a forensic anthropologist, Dr. Dana 

Austin—through the medical examiner, Dr. Susan Roe.4 Specifically, Appellant

asserts that the anthropology report, which was attached to the autopsy report, was 

inadmissible hearsay. See TEX. R. EVID. 801(d).

At trial, Dr. Roe testified that she observed red discoloration on the muscles 

within the right side of Searcy’s neck. She removed the hyoid bone and thyroid 

cartilage from within the neck and asked Dr. Austin to examine the structures for 

trauma. Dr. Austin examined the structures and authored a separate report about her 

findings (the anthropology report). The State did not call Dr. Austin to testify. 

Rather, the State asked Dr. Roe to explain what Dr. Austin found. Over Appellant’s 

hearsay objection, Dr. Roe testified about the contents of the anthropology report.

She testified that based on the report, a part of the victim’s thyroid cartilage was 

fractured. But, according to the report, she testified that the age of the fracture could 

not be determined. At the conclusion of Dr. Roe’s direct examination, and over 

 4

Dr. Roe used the anthropology report to make her overall determination about the victim’s cause 

of death. She also referenced the anthropology report in her autopsy report and attached a copy of the 

anthropology report to the autopsy report.
25

Appellant’s second hearsay objection, the State then introduced Dr. Roe’s autopsy

report into evidence, which included Dr. Austin’s anthropology report as an 

attachment.

Even if we assume that the trial court erred when it overruled Appellant’s 

objection, the error was harmless. As mentioned above, the erroneous admission of 

evidence is nonconstitutional error. See Motilla, 78 S.W.3d at 355. Accordingly, 

we will disregard such error unless it affects Appellant’s substantial rights. TEX. R.

APP. P. 44.2(b).

Although Dr. Roe testified about the conclusions of Dr. Austin’s report, 

namely that the victim’s thyroid cartilage was fractured, testimony about the fracture 

was brief and neither Dr. Roe nor the State emphasized the thyroid fracture. Indeed, 

the record reflects that Dr. Roe did not fully embrace the thyroid injury as a cause of 

the victim’s death. Although Dr. Roe concluded that “[m]ultiple blunt force 

injuries” caused Searcy’s death, including (1) a skull fracture, (2) left rib fractures, 

and (3) a fracture of the thyroid cartilage, she explained to the jury that the age of 

the thyroid fracture could not be determined.5

 She made it clear that this meant that 

the fracture may not have resulted from the incident in question. On the other hand,

Dr. Roe testified unequivocally that the skull fracture did contribute to the victim’s 

death because that fracture showed no evidence of healing. Rather than focus on the 

thyroid fracture, Dr. Roe continued to testify about the skull fracture and rib fractures 

as the main causes of Searcy’s death. Additionally, during closing arguments, the 

State did not attempt to argue that the thyroid fracture caused the victim’s death, but 

focused on the skull fracture and rib fractures instead. Accordingly, we have fair 

 5

Dr. Roe’s autopsy report also contains a notation of “age undetermined” next to the finding that 

the victim’s thyroid cartilage was fractured.
26

assurance that any error concerning the anthropology report did not influence the 

jury or only influenced the jury slightly. We overrule Appellant’s fifth issue. 

In Appellant’s sixth and seventh issues, Appellant contends that he received 

ineffective assistance of counsel. We review a claim of ineffective assistance of 

counsel under the Strickland standard, which is a two-part analysis that includes a 

performance prong and a prejudice prong. Strickland v. Washington, 466 U.S. 668, 

687–88 (1984). For the performance prong, Appellant must show that trial counsel’s 

performance was deficient. Id. For the prejudice prong, Appellant must show that 

there is a reasonable probability that the outcome would have differed but for trial 

counsel’s errors. See Wiggins v. Smith, 539 U.S. 510, 534 (2003); Strickland, 466 

U.S. at 694. A failure to make a showing under either prong of the Strickland test 

defeats a claim of ineffective assistance of counsel. Perez v. State, 310 S.W.3d 890, 

893 (Tex. Crim. App. 2010). Appellate review of defense counsel’s performance is 

highly deferential, and we presume that counsel’s actions fell within the wide range 

of reasonable and professional assistance. Strickland, 466 U.S. at 689; Bone v. State, 

77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Walker v. State, 406 S.W.3d 590, 594 

(Tex. App.—Eastland 2013, pet. ref’d). 

To overcome this presumption, Appellant’s claim of ineffective assistance 

must be firmly founded in the record, and the record must affirmatively demonstrate 

the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 

1999). Direct appeal is usually an inadequate vehicle for raising such a claim 

because the record is generally undeveloped. Menefield v. State, 363 S.W.3d 591, 

592–93 (Tex. Crim. App. 2012). In most cases, a silent record that provides no 

explanation for counsel’s actions will not overcome the strong presumption of 

reasonable assistance. Id. at 813–14. Appellant must overcome the presumption 

that, under the circumstances, the challenged action might be considered sound trial 

strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hayden v. 
27

State, 155 S.W.3d 640, 648 (Tex. App.—Eastland 2005, pet. ref’d). If trial counsel 

has not had an opportunity to explain the challenged actions, then we will not 

conclude that those actions constituted deficient performance unless they were so 

outrageous that no competent attorney would have engaged in them. See 

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Rylander v. State, 

101 S.W.3d 107, 111 (Tex. Crim. App. 2003). 

In Appellant’s sixth issue, he asserts that trial counsel provided ineffective 

assistance because trial counsel failed to request a hearing on the motion for new 

trial. Trial counsel filed the motion for new trial on January 6, 2017. As addressed 

in Appellant’s first issue above, Appellant argued that a new trial was required 

because of the State’s use of Neatherlin’s allegedly false testimony, newly 

discovered evidence, and insufficient evidence. Trial counsel, however, did not 

request a hearing on the motion. The motion was then overruled by operation of 

law. 

Even if we assume that trial counsel was deficient in not requesting a hearing, 

we conclude that trial counsel’s performance did not prejudice Appellant. The 

second prong of Strickland requires that an appellant show prejudice that resulted

from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 

770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove 

that there is a reasonable probability that but for counsel’s deficient performance, 

the result of the proceeding would have been different. See Jackson v. State, 973 

S.W.2d 954, 956 (Tex. Crim. App. 1998). A reasonable probability is “a probability 

sufficient to undermine confidence in the outcome of the proceedings.” Id.

As we discussed in Appellant’s first issue, even if we assume that trial counsel 

requested a hearing and presented actual evidence of Neatherlin’s false testimony

and the newly discovered evidence, we cannot conclude that the trial court erred 

when it denied Appellant’s motion. Because Neatherlin’s allegedly false testimony 
28

was not material to the jury’s verdict and only served to impeach Neatherlin’s 

testimony in general, there is no reasonable probability that the result of the 

proceeding would have been different had trial counsel requested a hearing on the 

motion. Accordingly, we overrule Appellant’s sixth issue. 

In Appellant’s seventh issue, he contends that he received ineffective 

assistance of counsel for two additional reasons. First, Appellant claims that he 

received ineffective assistance because trial counsel failed to assert a Confrontation 

Clause objection to Dr. Roe’s testimony regarding the anthropologist’s report or the 

admission of the report itself (contained within State’s Exhibit No. 188). Appellant 

claims that trial counsel should have asserted these objections because Dr. Roe “did 

not sign the [anthropologist’s report] or perform or observe the anthropology exam.”

See Burch v. State, 401 S.W.3d 634, 638, 640 (Tex. Crim. App. 2013) (holding that 

the Confrontation Clause was violated when the testifying witness averred directly 

about the conclusions of a non-testifying expert’s report). Such “surrogate 

testimony,” Appellant argues, “violated the Confrontation Clause and [his] right to 

confront the anthropologist.”

The appellate record, however, does not contain an explanation from trial 

counsel about his failure to assert a Confrontation Clause objection. Because trial 

counsel has had no opportunity to explain his reasoning for his actions, or lack 

thereof, we must assume that he had a strategic motivation for his conduct, if any 

such motivation can be imagined. Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. 

App. 2001). As the Court of Criminal Appeals explained in Menefield, in regard to 

the admission of a laboratory report, “[w]e do not know why counsel failed to raise 

a Confrontation Clause objection.” 363 S.W.3d at 593. “[P]erhaps the State could 

(and with an objection would) have brought [the report’s author] to the courtroom 

to testify, and counsel realized that cross-examining [him] would not benefit his 

client.” Id. Here, because the record is silent as to why trial counsel failed to object 
29

under the Confrontation Clause, Appellant has not overcome the strong presumption 

that counsel’s conduct was reasonable.

Second, Appellant argues that he received ineffective assistance because trial 

counsel failed to object under Rule 705(d) of the Texas Rules of Evidence or request 

a limiting instruction to testimony about the anthropology report and the report itself. 

Appellant argues that, because the anthropologist’s report constituted inadmissible 

hearsay, “the trial court should not have allowed the medical examiner to testify 

regarding the anthropology report or allowed the State to introduce the anthropology 

report into evidence without conducting the balancing test required under Rule 

705(d).” Moreover, he claims that trial counsel should have requested a limiting 

instruction “to limit this evidence’s impact and influence on the jury’s deliberation 

and ultimate verdict.” Id.

Although trial counsel did not object under Rule 705(d), he did object to 

hearsay under Rule 802. After the trial court overruled his objection, Appellant’s 

trial counsel may have reasonably believed that any further objections to the 

anthropologist’s report would have been futile. In doing so, he may have adopted 

the trial strategy to not further object to the report because additional objections 

would have emphasized the evidence. It is also reasonable to conclude that, after 

the trial court overruled his hearsay objection, trial counsel decided that seeking a 

limiting instruction would only bring further attention to the report. The record, 

however, is silent as to trial counsel’s true motivations. Thus, on this record, we 

cannot conclude that trial counsel’s failure to object under Rule 705(d) or to seek a 

limiting instruction fell below an objective standard of reasonableness. See 

Thompson, 9 S.W.3d at 813 

Therefore, we hold that nothing in the record demonstrates that Appellant’s 

trial counsel rendered ineffective assistance when he failed to object under either the 

Confrontation Clause or Rule 705(d), or request a limiting instruction. Moreover, 
30

trial counsel’s actions were not so outrageous that no competent attorney would have 

engaged in them. See Goodspeed, 187 S.W.3d at 392. We overrule Appellant’s 

seventh issue. 

We affirm the judgment of the trial court. 

JIM R. WRIGHT

SENIOR CHIEF JUSTICE

December 21, 2018

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

Panel consists of: Bailey, C.J.,

Wright, S.C.J.,

6 and Judge Satterwhite.7

Willson, J., not participating. 

 6

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment. 

7

Rodney W. Satterwhite, 441st District Court, Midland, sitting by assignment.