Affirmed and Memorandum Opinion filed August 9, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00525-CR

JORGE ORTEGA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 8

Harris County, Texas

Trial Court Cause No. 1943959

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

Appellant Jorge Ortega challenges his conviction for harassment. Appellant 

asserts (1) the evidence is legally insufficient to support his conviction, and (2) he 

received ineffective assistance of counsel. We affirm.
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I. FACTUAL AND PROCEDURAL BACKGROUND

Charged by information with the offense of harassment by causing the 

complainant’s telephone to ring repeatedly with the intent to harass and annoy her,

appellant pleaded “not guilty.” At trial, the State presented evidence that appellant

and the complainant began dating in January 2013. According to the complainant, 

their relationship seemed normal, but, after a few months, appellant became “very 

clingy and jealous.” The complainant testified that “he always had to know where 

I was or what I was doing at all times. If I didn’t answer the phone or if I didn’t 

text him back fast enough, I would get in trouble . . . or yelled at.” The 

complainant further testified that appellant “wanted to have all control over me . . . 

I had to depend on him for everything.” Appellant talked the complainant into 

putting her paychecks into his account, and forced the complainant to ask for 

money to make purchases. 

Whenever the complainant tried to end their relationship, appellant 

threatened to kill himself. The complainant’s attempts to end the relationship 

proved unsuccessful, never lasting more than a day. According to the complainant, 

appellant would get jealous, would want to know where she was at all times, and 

even began waiting outside her work place and a friend’s home where she babysat.

The complainant began taking anxiety and sleeping medication; she would check 

her shower, or anywhere else she thought someone could hide, for fear that 

appellant would be in her house. 

In December 2014, the complainant decided to end the relationship. On a 

trip to church, she hit the car window after pulling off her seatbelt. Appellant grew 

angry and ordered the complainant to wait outside. The complainant told appellant 

she was ending the relationship. Appellant sent the complainant “love quotes,” 

called her many times a day, and told her that she would regret not getting back 
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together with him. 

The jury found appellant guilty of the charged offense. The trial court 

assessed punishment at 180 days’ confinement, probated for eighteen months, and 

a $1,500 fine. 

I. SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant challenges the sufficiency of the evidence to

support his conviction for harassment. See Tex. Pen. Code Ann. § 42.07 (West

2011). Specifically, he argues the State never identified him as the defendant.

When reviewing the sufficiency of the evidence, we view all of the evidence 

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

any reasonable inferences from it, whether any rational factfinder could have found 

the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 

743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 

(1979)). We may not overturn the verdict 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 exclusive judge of the credibility of 

witnesses and the weight to be given to the evidence. See Isassi v. State, 330 

S.W.3d 633, 638 (Tex. Crim. App. 2010). We draw all reasonable inferences from 

the evidence in favor of the verdict. Id. 

The State has the burden of proving the appellant is the person who 

committed the offense charged. See Mayo v. State, 238 S.W.2d 777 (Tex. Crim. 

App. 1951); see also Kromah v. State, 283 S.W.3d 47, 50 (Tex. App.—Houston 

[14th Dist.] 2009, pet. ref’d). The test for the sufficiency of an in-court 

identification is whether we can conclude “from a totality of the circumstances the 

jury was adequately apprised that the witnesses were referring to appellant.” 
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Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. [Panel Op.] 1981); see 

also Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984) (noting that 

although Mayo establishes the proper burden on the State to provide appellant 

committed the offense charged, it is the totality of the circumstances by which we 

measure the sufficiency of such proof). 

We conclude the record evidence is sufficient to establish that appellant was 

the “Jorge Ortega” charged with harassing the complainant. During arraignment, 

and in the presence of the jury, appellant was “hereafter styled ‘the Defendant.’” 

Following arraignment, the complainant identified appellant in testimony:

[Prosecutor]: Do you recognize the Defendant in this case?

[Complainant]: Yes. 

[Prosecutor]: Can you identify him by an article of clothing that he’s 

wearing?

[Complainant]: A white shirt.

[Prosecutor]: Your Honor, let the record reflect that the witness has 

identified the Defendant.

[The Court]: Yes. 

[Prosecutor]: How do you recognize the Defendant?

[Complainant]: That’s my ex-boyfriend.

The following day, the complainant’s mother also identified appellant:

[Prosecutor]: Do you recognize the Defendant in this case?

[Complainant’s mother]: Yes, ma’am.

[Prosecutor]: And can you identify him by an article of clothing that 

he’s wearing?

[Complainant’s mother]: Yes, ma’am, a hot pink T-shirt. 

[Prosecutor]: Your Honor, let the record reflect that the witness has 

identified the Defendant.

[The Court]: Yes.
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[Prosecutor]: How do you recognize him?

[Complainant’s mother] He used to date my daughter.

The witnesses’ identifications were uncontroverted. The trial court took 

judicial notice that the witnesses had identified Appellant. Appellant was the only 

defendant on trial. Looking at the totality of the circumstances, the identification 

evidence is sufficient for the jury to have concluded that the witnesses were 

referring to appellant. Miller v. State, 667 S.W.2d at 776 (Tex. Crim. App. 1984); 

Rohlfing, 612 S.W.2d at 601; Purkey v. State, 656 S.W.2d 519, 520 (Tex. App.—

Beaumont 1983, pet ref’d) (noting that Rohlfing does not require a ritualist 

identification; it requires that the totality of the circumstances adequately apprise 

the jury that the witnesses are referring to the appellant). We overrule appellant’s

first issue. 

II. INEFFECTIVE-ASSISTANCE-OF-COUNSEL ANALYSIS

In his second issue, appellant claims trial counsel provided ineffective 

assistance of counsel. Specifically, appellant argues that counsel was ineffective 

by (1) making inflammatory remarks during voir dire, (2) failing to request notice 

of prior bad acts, (3) failing to object to allegedly inadmissible and prejudicial

evidence, (4) failing to request limiting instructions related to evidence under 

Texas Rule of Evidence 404(b), and (5) failing to adequately investigate and 

present evidence supporting appellant’s sole defense.

Both the United States Constitution and the Texas Constitution guarantee an 

accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. 

I, § 10; see also Tex. Code Crim. Proc. Ann. art. 1.051 (West 2015). This right 

necessarily includes the right to reasonably effective assistance of counsel. 

Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on an ineffectiveassistance claim, appellant must prove (1) counsel’s representation fell below the 
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objective standard of reasonableness, and (2) there is a reasonable probability that 

but for counsel’s deficiency the result of the proceeding would have been different.

Id. at 687, 694; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986).

To establish the first prong, the appellant must prove by a preponderance of the 

evidence that counsel’s representation fell below the objective standard of 

prevailing professional norms. Hernandez, 726 S.W.2d at 78. 

Ineffective assistance of counsel prejudices a criminal defendant if there is a 

reasonable probability that, but for counsel’s deficiency, the result of the 

proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable 

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

Id.; Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012). In determining 

whether an appellant has been prejudiced by counsel’s deficient performance, the 

court “must consider the totality of the evidence before the judge or jury.” 

Strickland, 466 U.S. at 695. But, “a court must indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance; 

that is, the defendant must overcome the presumption that, under the 

circumstances, the challenged action might be considered sound trial strategy.” Id. 

at 689. “[A] verdict or conclusion only weakly supported by the record is more 

likely to have been affected by errors than one with overwhelming record support.” 

Id. at 696.

Appellant raised his allegations of ineffective assistance of counsel through 

a motion for new trial. The trial court conducted a hearing and denied the motion. 

1. Voir Dire

Appellant contends counsel was ineffective because he made inflammatory 

comments during voir dire. To support this contention, appellant points to the 

following exchange between his counsel and a prospective juror: 
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[Defense Counsel]: And why am I picking on you, Juror No. 1?

[Prospective Juror]: Why?

[Defense Counsel]: Is your birthday October 21st?

[Prospective Juror]: Yes.

[Defense Counsel]: You share that with my aunt who has the same 

birthday as Kim Kardashian. Are there three sex tapes out there or—

[Prospective Juror]: I don’t know.

[Defense Counsel]: I aim to make it as pleasant as possible.

Appellant contends this comment damaged his cause and cannot be seen as 

reasonable trial strategy. He relies exclusively on Miller v. State, a case in which 

this court held trial counsel’s inflammatory comments, including those made 

during voir dire, constituted ineffective assistance of counsel. 728 S.W.2d 133, 

134–135 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d). In Miller, the 

defense counsel appeared to have deliberately angered the jurors. Id. During voir 

dire, counsel not only accused a prospective juror of attempting to avoid jury duty, 

but also refused to allow the juror to respond to this accusation. Id. Moreover, 

during jury argument, counsel made several racial remarks that were likely to 

inflame the jury. Id. at 135. This court found that these comments, taken 

collectively, amounted to ineffective assistance of counsel. Id. In today’s case, 

appellant’s trial counsel’s remark fails to rise to level of offensiveness 

demonstrated in Miller. 

Though appellant questioned defense counsel at the hearing on his motion 

for new trial, appellant raised no questions concerning defense counsel’s conduct 

during voir dire, the record contains no evidence from which we can ascertain 

counsel’s motivation or reason for making this comment, and we decline to 

speculate. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). See 

also Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002) (holding that 
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appellate courts may not reverse a conviction on ineffective-assistance-of-counsel 

grounds when counsel’s actions may have been based upon tactical decisions, but 

the record contains no specific explanation for counsel’s decisions). “Nothing in

the record proves that counsel’s voir dire was the product of an unreasoned or 

unreasonable strategy, or that there was a fair probability that it led to either an 

unreliable guilty verdict or unjust punishment.” Id. at 834. Furthermore, counsel 

ordinarily should be accorded an opportunity to explain counsel’s actions before 

being condemned as unprofessional. Id. at 836. Appellant’s trial counsel did not 

get that opportunity. We conclude that appellant has failed to satisfy the first 

prong of the test for ineffective assistance of counsel. Hernandez, 726 S.W.2d at 

78.

2. Prior Bad Acts

Appellant contends trial counsel provided ineffective assistance by failing to 

request notice of prior bad acts the State intended to introduce during trial. During 

the hearing on the motion for new trial, appellant asked if counsel recalled “from 

trial there being many prior bad acts discussed by [the complainant] such as

[appellant] sitting out in front of her residence,” “sitting out in front of the place 

where [the complainant] babysat,” and “sitting out in front of her mom’s work over 

numerous time periods” to which counsel stated he did. But, these acts are not 

evidence of a “crime, wrong, or other act” prohibited under Texas Rule of 

Evidence 404(b). 

Specifically, the prohibition against “other acts” evidence typically refers to 

evidence that is extrinsic to the crime charged and introduced solely for the 

purpose of showing propensity. Worthy v. State, 312 S.W.3d 34, 39 n.21. (Tex. 

Crim. App. 2010). Texas Rule of Evidence 404(b) only applies to limit the 

admissibility of evidence of extrinsic acts. Id. “Intrinsic evidence, on the other 
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hand, is generally admissible so that the jury may evaluate all the circumstances 

under which the defendant acted.” Id. (internal cites and quotation marks omitted). 

We do not reach the question of propensity. The “prior bad acts” of which 

appellant complains are acts intrinsic to the harassment at issue. The evidence, 

therefore, comprises “part and parcel” of the charged offense and is not “other 

acts” evidence at all. As such, Rule 404(b) is not implicated. Id. (citing United 

States v. Beckman, 298 F.3d 788, 794 (9th Cir. 2002)). Accordingly, we conclude 

that appellant failed to satisfy the first prong of the test for ineffective assistance of 

counsel.

3. Allegedly Inadmissible and Prejudicial Evidence

Appellant contends trial counsel provided ineffective assistance by failing to

object to allegedly inadmissible and damaging evidence. Specifically, appellant 

points to “prior bad acts,” some of which he claims are in the form of inadmissible 

hearsay, given during the complainant’s testimony. The complainant testified as 

follows:

(1) [Appellant] became very clingy and jealous. I couldn’t hang out 

with my friends. I didn’t ever see my friends, only at work. When I 

had a lunch break and he was there, I had to eat lunch with him. Me 

and my mom are really close and I didn’t get to see her a lot. I 

always—he always had to know where I was and what I was doing at 

all times. If I didn’t answer the phone or if I didn’t text him back fast 

enough, I would get in trouble or, like, get yelled at. It was just 

mentally kind of hard to deal with.

(2) [E]very time I had free time, I had to spend it with him if he was—

he had free time as well.” 

(3) [Appellant] would call me repeatedly or text me or message me on 

Facebook, text me, call me over and over again, text me until I 

answered the phone.

(4) [Appellant] wanted to have—I felt like he wanted to have all 

control over me, like, mentally, physically, anything, like he wanted 
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to take—like I had to depend on him for everything. He wanted me to

depend on him for everything.

(5) [Appellant] talked me into start [sic] putting my paycheck into his 

account. And so when I got paid, I started having my paycheck going 

into his account so it was to save money to go do other things and he 

would only give me money when I had to pay a bill. If I needed 

something, like, needed gas or anything, I had to ask him for it. So, if 

he wanted me to give me [sic]to get a certain amount of gas, so I 

could only go certain places. [sic]

(6) [Appellant] got jealous of the kids I babysat.

(7) [Appellant] didn’t like me taking the kids—the kids I babysat—he 

didn’t like me taking them to school. He thought they should be 

taking the bus. He didn’t like me taking them places, doing anything 

with them.

(8) If I would try to go on a break, he would say that he was going to 

kill himself. He even told me one time that his neighbor had to talk 

him out of not killing himself because we wanted to take a break.

(9) I went to church with [appellant] and I pulled my seatbelt off and 

it hit the window right there and he started getting mad, so I got out of 

the car and started walking towards the church. He goes, ‘No, you are 

not allowed to come in here. You can wait outside until I am done.’

Appellant contends all the testimony above consists of “prior bad acts” 

prohibited under Rule 404(b). As noted above, these acts are not “crimes, wrongs, 

or other acts” prohibited under Rule 404(b), but rather admissible intrinsic 

evidence “part and parcel” to the charged offense. Id. Therefore, Rule 404(b) was 

inapplicable and counsel was not ineffective for failing to object to this testimony. 

See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (holding counsel 

was not ineffective for failing to object to admissible evidence).

Appellant further contends that the evidence of “bad acts” concerning 

appellant sitting outside the complainant’s home, work, and her mother’s work 

were not only inadmissible prior bad acts under Rule 404(b), but were admitted via 

inadmissible hearsay. Appellant points us to the following testimony: 
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[Prosecutor]: During the end of your relationship, would the 

Defendant sit outside your work?

[Complainant]: Yes. 

[Prosecutor]: How do you know this?

[Complainant]: Because we have security cameras. I work at a bank 

and where it is located, we have security guards that drive around.

They would come and tell me because I would forewarn them of what 

was going on. They would let me know to not leave right now, that 

someone [sic] outside or my manager would walk me out to my car 

because he would walk around to make sure to see what was going on.

The complainant further testified: 

[Prosecutor]: At [the] time that you are getting . . . text messages, are 

you still being told that the Defendant is still outside of your work?

[Complainant]: Yes. 

Q: Sitting outside of your mother’s school?

[Complainant]: Yes. 

[Prosecutor]: Can you tell us a little bit about how he was sitting 

outside of your mother’s school?

[Complainant]: He would sit outside in the back parking lot where 

only the teachers can park and it is facing the principal’s office. The 

secretary noticed going out there and they knew what was going on 

because my mom informed them as well. Thankfully, me and my 

mom had left because of what was going on. She wanted me to try to 

relax, so we were not there at the time. But they told me that it was 

him out there, because he actually works for the school district and 

they knew it was his car.

Regarding the home where the complainant worked as a babysitter, the 

complainant testified: 

[Prosecutor]: At this home, would he ever show up there 

unannounced?

[Complainant]: Yes. 

[Prosecutor]: What would he do?
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[Complainant]: He would sit outside or call me because he wouldn’t 

come inside . . . [s]o he would sit outside and call me and tell me to 

come outside or the kids would tell me he was sitting outside after we 

had broken up . . . [b]ut afterwards, he would sit out there and they 

would call me, ‘[complainant], do not come over here. He’s sitting 

outside here.’

Hearsay is a statement, other than one made by the declarant while 

testifying, offered into evidence to prove the truth of the matter asserted. Tex. R. 

Evid. 801(d). Out-of-court statements need not be directly quoted to implicate the 

hearsay rules. Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999). The 

complainant testified that appellant would sit outside the home where she babysat.

The complainant was made aware of appellant sitting outside her work and her 

mother’s work, at least under the testimony above, via hearsay. At the hearing on 

the motion for new trial, trial counsel testified: 

[Prosecutor]: Do you recall during the testimony of [the complainant] 

. . . her learning of the Defendant sitting outside of her work or sitting 

outside her mother’s work; that that was learned through hearsay?

[Trial Counsel]: Ugh—

[Prosecutor]: She didn’t actually personally observe that?

[Trial Counsel]: Right. It was learned through hearsay. 

[Prosecutor]: Do you recall objecting to hearsay at trial?

[Trial Counsel]: I don’t. 

While counsel testified about the hearsay nature of certain evidence, the 

record contains no explanation for counsel’s conduct. In the absence of evidence 

of counsel’s reasons for the challenged conduct, we “will not conclude the 

challenged conduct constituted deficient performance unless the conduct was so 

outrageous that no competent attorney would have engaged in it.” Garcia v. State, 

57 S.W.3d 436, 440 (Tex. Crim. App. 2001). The testimony in issue included only

the circumstances surrounding the complainant’s relationship with appellant, and 
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the same evidence was admitted properly, without objection, through other

testimony. When asked if she ever saw appellant sitting outside her work, the 

complainant testified “[y]es, I saw him drive around a few times.” The 

complainant also testified that appellant would wait outside the house where she 

babysat and call her while he sat outside. When the complainant’s mother was 

asked if appellant ever came to her school, she responded that he had. Therefore, 

the record contains non-hearsay evidence concerning appellant sitting outside the 

complainant’s home, work, and her mother’s work. Because appellant’s

ineffective-assistance-of-counsel claim is based upon cumulative evidence, it fails. 

See Ingham v. State, 679 S.W.2d 503 (Tex. Crim. App. 1984).

Sergeant Stanley of the Harris County Sheriff’s Office also testified for the 

State. During his testimony, Sergeant Stanley stated that harassment cases “can 

lead to family violence and even cases of death . . . .” Appellant argues counsel

should have objected to this testimony under Texas Rules of Evidence 401, 402, 

and 403.

During direct examination, the complainant’s mother testified that 

“[appellant] became very possessive of [the complainant]. He didn’t like her 

spending time with anybody, including myself. When we were together, he would 

call, text, want to know where she was, when she was going to be home. If she 

wasn’t there, he would kind of get angry, get real angry with her—never was 

violent with her, but it was more of [sic] about emotional.” The complainant’s 

mother further stated that appellant showing up to the complainant’s work place 

scared her. Appellant argues this testimony also violated Rules 401, 402, and 403. 

During the hearing on the motion for new trial, trial counsel was not asked 

about this testimony or his failure to object to it. On a silent record, this court can 

find ineffective assistance of counsel only if the challenged conduct was “so 
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outrageous that no competent attorney would have engaged in it.” Garcia, 57 

S.W.3d at 440. See also Bone, 77 S.W.3d at 830 (refusing to reverse on 

appellant’s claim of ineffective assistance of counsel in the absence of evidence 

explaining counsel’s decisions). We cannot conclude trial counsel’s conduct was 

so outrageous that no competent attorney would have engaged in it. Accordingly, 

we conclude that appellant failed to satisfy the first prong of the test for ineffective 

assistance of counsel.

4. Limiting Instructions

Appellant contends defense counsel was ineffective in failing to request a 

Rule 404(b) limiting instruction. Having concluded that no “crimes, wrongs, or 

other acts” prohibited by Rule 404(b) were admitted at trial, we conclude there was 

no basis to request a limiting instruction. Worthy, 312 S.W.3d at 39 n.21.

Accordingly, appellant failed to satisfy the first prong of the test for ineffective 

assistance of counsel.

5. Alleged Failure to Investigate 

Appellant contends trial counsel failed to adequately investigate the case and 

present certain evidence that appellant claims would have supported his sole 

defense and impeached the complainant. 

Appellant was charged by information with the offense of harassment by 

causing the complainant’s telephone to ring repeatedly with the intent to harass and 

annoy her, on or about January 19, 2014. Appellant argues his sole defense was 

that he called the complainant on January 19, not to harass her, but to inquire about 

the check he had written the previous day, worried she had not given the check to 

the car company.

In October 2013, appellant and the complainant together co-signed and 
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purchased a car for her to use. The complainant testified that she was the primary 

driver on the insurance and, except for the very first payment, made all the 

monthly payments. 

The record evidence shows appellant wrote five checks, three on October 16, 

November 18, and December 18 of 2013, and the other two on January 18 and 

February 15 of 2014. The checks written in December 2013 and January 2014 

were payable to the complainant and the rest were payable to “Nissan Motor 

Acceptance Corporation.”

Appellant contends that trial counsel, by not offering the five checks into 

evidence, provided ineffective assistance of counsel since the jury received no 

evidence supporting his sole defense. Appellant also argues the checks would have 

impeached the complainant’s statement that she had made all the car payments, 

other than the first one in October 2013. Appellant also directs us to a loan 

document purportedly proving that the January 18 check was not provided to 

Nissan until the 21st. Appellant argues trial counsel was deficient in not obtaining 

this document before trial. Finally, appellant argues trial counsel failed to 

introduce a complete record of the phone records introduced at trial. According to 

appellant, the State offered only a portion of the phone records and had trial 

counsel obtained a complete record, the evidence would have shown that the 

complainant called appellant 49 times between January 1 and January 14. 

Appellant argues this evidence would have disproven the idea that he was a “crazy 

stalker” that the complainant feared.

Counsel has the duty to make an independent investigation of the facts 

surrounding his or her client’s case. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. 

App. 1986). But, when counsel’s questioned performance is based on sound trial 

strategy, we cannot find counsel ineffective. Appellant must overcome the 
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presumption that, under the circumstances, the challenged action might be 

considered reasonable trial strategy. Strickland, 466 U.S. at 689. 

At trial, the complainant testified that appellant was controlling and talked 

her into putting her paychecks into his account. If she ever needed to pay for 

anything, she would have to ask him for it. Regarding the car payments, the 

complainant testified “when I had my money in his account, he would either write 

me a check and I would send it off or put it in my account and send it off or he 

would pay it because all of my money was in his account.” 

At the motion for new trial hearing, trial counsel explained:

I think the State was trying to prove just that [appellant] had control of 

[the complainant’s] finances; that he was a very controlling person, 

even though it is not relevant to the harassment part of the case. I 

think that my strategy was that if he was just giving her checks to pay 

for the car, he was using her money and controlling her money and I 

just didn’t want to go there.

Appellant has failed to demonstrate that counsel’s performance fell below an 

objective standard of reasonableness. It is reasonable to conclude that had counsel 

introduced the checks into evidence, the checks would have supported, rather than 

contradicted, the complainant’s testimony. Strickland, 466 U.S. at 689. 

Regardless, “the existence of evidence that may support the conclusion that 

the call[s] had a facially legitimate purpose does not legally negate the prohibited 

intent or manner of the call.” Wilson v. State, 448 S.W.3d 418, 425 (Tex. Crim. 

App. 2014) Thus, the document purportedly proving that the January 18 check 

was not provided to Nissan until the 21st also does not negate appellant’s conduct.

In regards to the incomplete phone records, counsel was not provided an 

opportunity to explain why he did not seek or introduce a complete record of the 

phone calls made between appellant and the complainant. Absent an opportunity 
17

for trial counsel to explain his actions, appellate courts should not find ineffective 

assistance unless the challenged conduct was “so outrageous that no competent 

attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. We could hardly

conclude that trial counsel’s failure to obtain and produce a complete version of the 

phone records was outrageous. Accordingly, we conclude that appellant failed to 

satisfy the first prong of the test for ineffective assistance of counsel. Hernandez, 

726 S.W.2d at 78. We overrule appellant’s second point.

Having overruled all of appellant’s issues, we affirm the trial court’s 

judgment.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices McCally and Brown.

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