NUMBER 13-16-00252-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

VICTOR CANALES A/K/A

HERBERTO RIVERA-SALAZAR, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 148th District Court

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Hinojosa

Memorandum Opinion by Justice Hinojosa

Appellant Victor Canales, a/k/a Herberto Rivera Salazar, appeals his conviction for 

indecency with a child by contact, a second-degree felony. See TEX. PENAL CODE ANN.

§ 21.11(a)(1) (West, Westlaw through 2017 1st C.S.). A jury found appellant guilty, and 

the trial court assessed punishment of twenty years’ imprisonment in the Texas 
2

Department of Criminal Justice–Institutional Division. By one issue, appellant argues his 

trial counsel was ineffective in failing to object to (1) the complainant’s medical records 

and (2) extraneous-offense evidence. We affirm.

I. BACKGROUND

Appellant was charged by indictment with continuous sexual abuse of a child by 

committing two or more acts of sexual abuse against his eleven-year-old step-daughter 

S.L.1 See id. § 21.02 (West, Westlaw through 2017 1st C.S.). More specifically, the 

indictment alleged that, during a period spanning thirty or more days, appellant committed 

two counts of aggravated sexual assault of a child, see id. § 22.021 (West, Westlaw 

through 2017 1st C.S.), and indecency with a child by contact. See id. § 21.11(a)(1). 

During his opening statement, appellant’s trial counsel explained that appellant 

was an “illegal alien.” He maintained that the evidence would demonstrate that S.L. 

fabricated the allegations so that appellant would be deported. Finally, appellant’s 

counsel alluded to mental health problems S.L. was experiencing prior to her outcry of 

sexual abuse. 

S.L. testified that she previously resided with her mother, appellant, and her three 

brothers in Corpus Christi, Texas. S.L. described multiple instances of sexual abuse 

allegedly perpetrated by appellant beginning when she was eleven years old. On the 

first occasion, appellant and S.L. were “wrestling” in her room when he grabbed S.L, 

pulled down her pants and underwear, and placed his tongue in S.L.’s “middle.” 

Appellant asked S.L. not to tell her mother because she would kick him out of the house. 

 1 We will refer to the minor complainant and her family members by their initials to protect the 

complainant’s privacy. 
3

S.L. did not initially tell anyone about the incident.

S.L. recalled on another occasion that she awoke in bed to discover appellant’s 

hand inside her underwear. S.L. explained that appellant was touching her “middle” area 

with his finger and he was “rubbing inside of it.” Appellant removed his hand when he 

discovered that S.L. was awake, and S.L. left the room. S.L. did not tell anyone because 

she was afraid of “ruining things with him and [her] mom.” 

S.L. also explained that she and appellant would often wrestle while listening to 

music. On these occasions appellant “would put me down on the ground like he would 

be on top of me moving up and down.” S.L. described appellant’s movements as 

“humping,” and she stated that she could feel appellant moving “[h]is middle area into 

mine.” S.L. estimated that this occurred multiple times over the course of a year. 

S.L. recalled several occasions when appellant would try to put his “middle” in her 

mouth. She explained that appellant would grab her head and “just put it against his 

middle.” According to S.L., appellant also frequently tried to put his tongue in her mouth 

when kissing her. On another occasion, appellant exposed his “middle” to S.L. The last 

instance of alleged abuse occurred when appellant woke S.L. up and told her to “make 

love” to him. S.L. explained that appellant placed her on top of him and that appellant’s 

“middle” was “hard.” 

Using a diagram of the female body, S.L. demonstrated that appellant had touched 

her vagina, buttocks, and chest area. With the aid of a separate diagram of the male 

body, S.L. indicated that appellant touched her vagina with his finger and his mouth. 

S.L. testified that she later told family members, including her aunt, about 
4

appellant’s actions. Her aunt then contacted law enforcement. On the advice of a 

police officer, S.L.’s grandmother took S.L to Driscoll Children’s Hospital (Driscoll) in 

Corpus Christi for a sexual assault examination. Following her outcry of sexual abuse, 

S.L. spent time in multiple residential placements, and she was eventually admitted to 

Bayview Behavioral Hospital (Bayview) after demonstrating suicidal tendencies. When 

asked if she was hospitalized because of appellant’s abuse, S.L. replied, “Kind of, 

because I started to hurt myself more.” S.L. stated she also spent time at Bayview prior 

to disclosing appellant’s sexual abuse. S.L. has lived with her grandmother since her 

release from Bayview.

V.H., S.L.’s aunt, testified that she had approached S.L. at a family gathering 

because it looked like something was bothering her. S.L. told V.H. that appellant was 

touching her “private part.” V.H. took S.L. from the gathering and made contact with law 

enforcement. 

Elena Estrada, a forensic child abuse nurse examiner at Driscoll, conducted a 

sexual assault examination. Through Estrada’s testimony, the State introduced medical 

forensic examination records, which the trial court admitted without objection. Estrada 

read to the jury the history provided by S.L. during that examination. Estrada stated that 

she conducted a physical examination of S.L. but found no physical trauma. She 

explained that this occurs with eighty-five to ninety percent of sexual assault victims due 

to delayed reporting of the abuse. 

Cindy Croston, the records custodian for Bayview, sponsored the admission of 

S.L.’s Bayview hospital records. The trial court admitted the records without objection. 
5

The records were accompanied by a business records affidavit.

Tracy Bru, a licensed professional counselor, testified that she provided counseling 

services to S.L. Bru explained that delayed and incremental outcries are extremely 

common in child sexual abuse cases. 

Appellant testified that he was born in Mexico and came to the United States in 

1998 or 1999. Appellant met S.L.’s mother in 2003, when S.L. was a baby. They

married in 2005. Appellant has supported the family financially since that time. 

Appellant stated that he initially came to the United States legally, but that he was later 

arrested and deported. According to appellant, he has been arrested and deported to 

Mexico on multiple occasions, but he returned to the United States each time. 

Appellant believed S.L. fabricated the allegations of sexual abuse because he 

confronted her for receiving nude photos of an older man on her phone. This occurred 

approximately fifteen days prior to S.L.’s outcry of sexual abuse. Appellant denied ever 

touching S.L. inappropriately. 

During the State’s cross-examination, appellant testified that he was arrested in 

2005 for drug possession. The State later elicited the following testimony from appellant:

Q. And that was—the possession of marijuana was a third-degree 

felony, correct?

A. Yes.

Q. Isn’t that between 5 and 50 pounds of marijuana?

A. Yes.

Q. How much marijuana did you have?

A. Like, I think it was 20 pounds.
6

Q. Were you selling it?

A. No, I was not selling it.

Q. Were you transporting it for somebody?

A. Yes.

Q. Did those drugs come from Mexico?

A. No.

The State also asked clarifying questions concerning the dates of appellant’s deportations 

and reentries. 

Following a recess, the trial court asked the attorneys to approach the bench, and 

the following exchange took place:

Court: I don’t know if the law has changed, but you—

has the law changed that you cannot go into the 

details of a conviction?

Appellant’s Counsel: It hasn’t changed.

Court: Then how come you did not object.

Appellant’s Counsel: He wanted to tell the truth.

Court: Okay. But he can tell—you can ask if he’s 

been convicted of a felony for possession of 

marijuana, but you cannot go into the details. 

That could cause unfair prejudice to the jury. I 

don’t know what this caused or if this caused 

any unfair prejudice to the jury, but do you see 

the problem you just created for the Court 

because you went into the details of the 

possession of marijuana by saying 20 pounds, 

implying that he’s a dealer now. They didn’t 

know anything about the 20 pounds. They 

didn’t have to know anything about the 20 

pounds. All they needed to know that he was 
7

convicted of felony possession of marijuana. 

That’s all they’re entitled to know.

Prosecutor: I apologize, Your Honor. I was not familiar with 

that area of the law.

Appellant’s Counsel: I was, Your Honor, but—

Court: Well, you should have objected then because 

that is not part of the—that’s showing prejudice 

to the Court and I could find you ineffective. 

Now, I don’t—that’s something—there’s no 

reason for that to be in front of the Court—I 

mean, in front of that jury. There was no 

reason for that to be in front of the jury.

Appellant’s Counsel: I understand that.

Court: So I just want to make sure that—

Prosecutor: I will not talk about that anymore, Your Honor.

Court: I appreciate that.

Prosecutor: Your Honor, I would agree to even strike that 

portion from the testimony and an instruction to 

disregard.

Court: Well, we can try that if you want to, that would 

be up to the defense to make that motion, you 

know, and I’ll let the defense think about 

whether they want to do that or not, or whether 

the defense wants to do that. Sometimes that 

just calls attention—

Appellant’s Counsel: That’s what I was thinking.

Prosecutor: That’s true.

Court: —to the—you know, but at the same time, too, 

it’s kind of hard to unremember something that 

they’ve heard. So, anyway, I just wanted to 

throw it out there for you. And so, you all can 

do with that what you will come trial.
8

No subsequent reference to appellant’s marijuana conviction appears in the record.

During closing argument, appellant’s counsel emphasized that S.L. wanted 

appellant out of her life, possibly because of the confrontation over her use of the phone. 

He reminded the jury that S.L. has been to Bayview on two occasions, including prior to 

her outcry of sexual abuse.

The jury received instructions on continuous sexual abuse of a child and the lesserincluded offenses of aggravated sexual assault of a child and indecency with a child by 

contact. After deliberating, the jury returned a guilty verdict for the offense of indecency 

with a child by contact. Following a punishment hearing, the trial court sentenced 

appellant to twenty years’ imprisonment. This appeal followed.

II. STANDARD OF REVIEW AND APPLICABLE LAW

To prevail on an ineffective assistance claim, appellant must show (1) counsel’s 

representation fell below an objective standard of reasonableness, and (2) the deficient 

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689 

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “Unless appellant 

can prove both prongs, an appellate court must not find counsel’s representation to be 

ineffective.” Lopez, 343 S.W.3d at 142. To satisfy the first prong, appellant must prove 

by a preponderance of the evidence that his counsel’s performance fell below an objective 

standard of reasonableness under the prevailing professional norms. Id. To prove 

prejudice, appellant must show that there is a reasonable probability, or a probability 

sufficient to undermine confidence in the outcome, that the result of the proceeding would 

have been different. Id. 
9

Our review of counsel’s representation is highly deferential, and we will find 

ineffective assistance only if appellant rebuts the strong presumption that his counsel’s 

conduct fell within the wide range of reasonable professional assistance. Strickland, 466 

U.S. at 689; Lopez, 343 S.W.3d at 142. “In order for an appellate court to find that 

counsel was ineffective, counsel’s deficiency must be affirmatively demonstrated in the 

trial record; the court must not engage in retrospective speculation.” Lopez, 343 S.W.3d 

at 142; see Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“Any 

allegation of ineffectiveness must be firmly rooted in the record[.]”). “It is not sufficient 

that appellant show, with the benefit of hindsight, that his counsel’s actions or omissions 

during trial were merely of questionable competence.” Mata v. State, 226 S.W.3d 425, 

430 (Tex. Crim. App. 2007). When direct evidence is unavailable, we will assume 

counsel had a strategy “if any reasonably sound strategic motivation can be imagined.” 

Lopez, 343 S.W.3d at 143. We must review the totality of the representation and the 

circumstances of each case without the benefit of hindsight. Id. 

“When an ineffective assistance claim alleges that counsel was deficient in failing 

to object to the admission of evidence, the defendant must show, as part of his claim, that 

the evidence was inadmissible.” Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). 

Trial counsel is not ineffective in failing to assert frivolous arguments and objections. 

Brennan v. State, 334 S.W.3d 64, 74 (Tex. App.—Dallas 2009, no pet.). Furthermore, 

isolated instances in the record reflecting errors of omission do not render counsel’s 

performance ineffective, nor can ineffective assistance of counsel be established by 

isolating one portion of trial counsel’s performance for examination. Robertson v. State, 
10

187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

Although an appellant may claim ineffective assistance of counsel for the first time 

on direct appeal, the record in such a case often will be insufficient to overcome the 

presumption that counsel’s conduct was reasonable and professional. Cannon v. State, 

252 S.W.3d 342, 349 (Tex. Crim. App. 2008); Washington v. State, 417 S.W.3d 713, 724 

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Where, as here, there is no proper 

evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult 

to show trial counsel’s performance was deficient. See Bone v. State, 77 S.W.3d 828, 

833 (Tex. Crim. App. 2002). Under this procedural posture, we will not find deficient 

performance unless counsel’s conduct is so outrageous that no competent attorney would 

have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); 

Washington, 417 S.W.3d at 724. 

III. DISCUSSION

A. Medical Records

1. Hearsay 

Appellant first argues that his trial counsel was ineffective for failing to object to the 

admission of State’s Exhibit 5, S.L.’s Bayview records2 because S.L.’s allegations of 

sexual abuse contained within the exhibit constitute inadmissible hearsay. We note that 

appellant identifies no specific statement within the exhibit for which an objection should 

have been raised. Rather, appellant cites generally to the “858 pages” contained in the 

reporter’s record without any pin-point citation. Therefore, we will first determine whether 

 2 Appellant makes no complaint regarding his counsel’s failure to object to State’s Exhibit 4, the 

sexual assault examination records from Driscoll.
11

the trial court would have committed error in overruling a global objection to the records. 

Hearsay is an out of court statement that a party offers to prove the truth of the 

matter asserted within the statement. TEX. R. EVID. 801(d). Hearsay is generally 

inadmissible. Id. R. 802. However, Rule 803(6) of the Texas Rules of Evidence creates 

an exception to the hearsay rule for

[a] record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by—or from information 

transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted business 

activity;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or 

another qualified witness, or by an affidavit or unsworn declaration that 

complies with Rule 902(10); and

(E) the opponent fails to demonstrate that the source of information or the 

method or circumstances of preparation indicate a lack of 

trustworthiness. “Business” as used in this paragraph includes every 

kind of regular organized activity whether conducted for profit or not.

Id. R. 803(6). Here, the exhibit was accompanied by an affidavit prepared by the 

custodian of records for Bayview in compliance with Rule 902(10). See id. R. 902(10). 

Further, appellant has made no showing that the source of the information contained in 

the records or the circumstances of its preparation indicate a lack of trustworthiness. 

See id. R. 803(6)(E). Therefore, the exhibit was admissible under Rule 803(6). See 

Castaneda v. State, 28 S.W.3d 685, 694 (Tex. App.—Corpus Christi 2000, pet. ref’d) (“A 

sexual assault victim’s emergency room medical records are admissible under rule 803(6) 

as an exception to the hearsay rule.”). 
12

However, any statements made by S.L. contained within the Bayview records must 

independently qualify for admission under a separate hearsay exception. See Garcia v. 

State, 126 S.W.3d 921, 926–27 (Tex. Crim. App. 2004). Pursuant to Rule 803(4),

statements made for the purpose of medical diagnosis or treatment are admissible as an 

exception to the hearsay rule. TEX. R. EVID. 803(4). This exception applies to 

statements made for the purposes of mental health diagnosis or treatment. Taylor v. 

State, 268 S.W.3d 571, 587–88 (Tex. Crim. App. 2008). The record demonstrates that 

S.L. was admitted to Bayview for mental health treatment after showing suicidal 

tendencies. We generally observe that S.L.’s statements contained within the exhibit 

relate to her mental health treatment. Further, appellant has not identified any specific 

statement in the voluminous exhibit that would be inadmissible under Rule 803(4). See 

Thompson, 9 S.W.3d at 813 (explaining that appellant bears the burden of proving his 

counsel was ineffective). Appellant has failed to demonstrate that the Bayview records, 

or any statement contained therein, constitute inadmissible hearsay. See Ortiz, 93 

S.W.3d at 93. Therefore, appellant’s counsel was not ineffective in failing to object on 

that basis. See Brennan, 334 S.W.3d at 74.

2. Confrontation Clause

Next, appellant argues that the introduction of the Bayview records violated his 

right to confront and cross-examine witnesses as guaranteed by the Sixth Amendment.3 

 3 Appellant’s Sixth Amendment argument is limited to entries recorded by nurses, doctors, and 

other mental health professionals. Appellant makes no Sixth Amendment argument concerning the 

statements of S.L., who testified at trial and was subject to cross-examination. See Crawford v. 

Washington, 541 U.S. 36, 59 n.9 (2004) (explaining that if the declarant is subject to cross-examination at 

trial, “the Confrontation Clause places no constraints at all on the use of [a declarant’s] prior testimonial 

statements”).
13

See U.S. CONST. amend. VI. Other than this conclusory statement, appellant offers no 

argument or authority supporting his contention. See TEX. R. APP. P. 38.1(i) (“The brief 

must contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record.”). We note, however, that the Sixth 

Amendment’s confrontation protections are limited to statements which are testimonial in 

nature. See Crawford v. Washington, 541 U.S. 36, 59 (2004); Coronado v. State, 351 

S.W.3d 315, 323 (Tex. Crim. App. 2011). The United States Supreme Court has 

described the class of testimonial statements covered by the Confrontation Clause as 

follows:

Various formulations of this core class of testimonial statements exist: ex 

parte in-court testimony or its functional equivalent—that is, material such 

as affidavits, custodial examinations, prior testimony that the defendant was 

unable to cross-examine, or similar pretrial statements that declarants 

would reasonably expect to be used prosecutorially; extrajudicial 

statements . . . contained in formalized testimonial materials, such as 

affidavits, depositions, prior testimony, or confessions; statements that were 

made under circumstances which would lead an objective witness 

reasonably to believe that the statement would be available for use at a later 

trial.

Crawford, 541 U.S. at 51–52 (internal quotation marks and citations omitted). Business 

records are generally not testimonial because they are created for the administration of 

an entity’s affairs and not for the purpose of establishing or proving some fact at trial. 

Melendez–Diaz v. Massachusetts, 557 U.S. 305, 324 (2009). Likewise, medical records 

created for treatment purposes are not testimonial. See id. at 312 n.2 (noting that 

“medical reports created for treatment purposes . . . would not be testimonial under our 

decision today”); Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, 

pet. ref’d) (holding that medical records were non-testimonial); see also Harding v. State,
14

No. 13-14-00090-CR, 2015 WL 6687287, at *7 (Tex. App.—Corpus Christi Oct. 29, 2015, 

pet. ref’d) (mem. op., not designated for publication) (same). As noted above, the 

Bayview records relate to S.L.’s mental health treatment. Appellant has not identified 

any statement contained therein that would be considered testimonial in nature. 

Therefore, appellant has failed to demonstrate that his counsel was ineffective in failing 

to object on this basis. See Brennan, 334 S.W.3d at 74.

B. Extraneous-Offense Evidence

Next, appellant argues that his trial counsel was ineffective in failing to object to 

the State’s questions regarding extraneous offenses. Specifically, appellant argues that 

the State’s questioning of appellant elicited inadmissible character evidence under Texas 

Rule of Evidence 404. See TEX. R. EVID. 404. The complained-of testimony relates to 

appellant’s immigration status and a prior felony conviction. We will address each 

category of evidence separately. 

1. Immigration Status

Appellant complains that the State was permitted to elicit details of appellant’s 

immigration history, including that he was residing in the country illegally. However, 

appellant’s status as an “illegal alien” was necessary to trial counsel’s defensive theory 

that S.L. fabricated the allegations so that appellant would be deported. See Alexander 

v. State, 282 S.W.3d 701, 705–06 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) 

(“[T]rial counsel may have a sound trial strategy in not objecting to evidence that counsel 

feels is relevant to appellant’s defense, or not harmful to appellant.”). Appellant does not 

argue that his trial counsel was ineffective in pursuing this strategy. In furtherance of this 
15

defense, trial counsel referenced appellant’s immigration status in his opening statement 

and questioned appellant on this topic during his direct examination. Having done so, 

appellant opened the door to further examination by the State concerning this issue. See 

Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997) (explaining that otherwise 

inadmissible evidence may be admitted if the party against whom the evidence is offered 

“opens the door” to the evidence). We are unable to conclude then that the trial court 

would have erred in overruling an objection to the State’s clarifying questions. See Ortiz, 

93 S.W.3d at 93. Therefore, appellant’s counsel was not ineffective in failing to object to 

questions concerning appellant’s immigration status. See Brennan, 334 S.W.3d at 74.

2. Felony Conviction 

Finally, appellant argues that his trial counsel was ineffective in failing to object to 

evidence of appellant’s prior felony conviction for marijuana possession. 

Under Rule 404, “[e]vidence of a person’s character or character trait is not 

admissible to prove that on a particular occasion the person acted in accordance with the 

character or trait.” TEX. R. EVID. 404(a)(1). But “[e]vidence of a witness’s character may 

be admitted under Rule[] 609.” Id. R. 404(a)(4). A defendant who testifies places his 

credibility at issue and may be impeached like any other testifying witness. Vasquez v. 

State, 417 S.W.3d 728, 732 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). 

Accordingly, when a defendant testifies, Rule 609 permits the introduction of a prior felony 

conviction to impeach the witness. Jabari v. State, 273 S.W.3d 745, 753 (Tex. App—

Houston [1st Dist.] 2008, no pet.) (citing TEX. R. EVID. 609). While the fact of a prior 

felony conviction may be introduced for impeachment purposes, the details of the 
16

conviction are generally inadmissible. Id. (citing Mays v. State, 726 S.W.2d 937, 953 

(Tex. Crim. App. 1986)). 

Given appellant’s decision to testify, the fact of his prior felony conviction was the 

subject of proper impeachment. However, the additional details elicited by the State 

were not admissible for that purpose. We need not speculate whether the trial court 

would have sustained an objection to such evidence. The trial court’s statements on the 

record clearly demonstrate that it would have done so, and its ruling in that regard would 

have been a proper exercise of its discretion. See Brennan, 334 S.W.3d at 74. 

Nevertheless, while the scope of appellant’s cross-examination was subject to a 

valid objection, appellant has failed to rebut the presumption that counsel was acting 

according to sound trial strategy when he declined to raise any such objection. Before 

being condemned as unprofessional or incompetent, counsel is normally afforded an 

opportunity to explain his actions through a hearing on a motion for new trial or in a posttrial habeas proceeding. See Bone, 77 S.W.3d at 836. Without a proper evidentiary 

record, we will not conclude that counsel’s performance was constitutionally deficient if 

any strategic motivations can be imagined for the challenged conduct. See Garcia v. 

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In his brief exchange with the trial 

court, appellant’s counsel noted that his client wanted to be forthright with the jury. See 

Lemons v. State, 426 S.W.3d 267, 273 (Tex. App.—Texarkana 2013, pet. ref’d) 

(concluding that counsel’s decision not to object to extraneous-offense testimony could 

have been to “prevent the jury from concluding he was attempting to hide information 

from them” (internal quotations omitted)). Appellant’s counsel also concurred with the 
17

trial court’s concern that an instruction to the jury to disregard the testimony would only 

draw further attention to the evidence. It is possible that appellant’s counsel chose not 

to object in the first instance based on similar concerns. A desire to avoid drawing 

additional attention to unfavorable evidence is a reasonably sound strategic motivation. 

See Ex parte Bryant, 448 S.W.3d 29, 41 (Tex. Crim. App. 2014); Huerta v. State, 359 

S.W.3d 887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that counsel 

“may have . . . decided to withhold objections to avoid drawing unwanted attention to a 

particular issue, or to prevent the impression that she was objecting at every opportunity 

as a means of stonewalling evidence”). We are unable to conclude that counsel’s 

conduct is so outrageous that no competent attorney would have engaged in it. See 

Goodspeed, 187 S.W.3d at 392. Therefore, appellant has not defeated the strong 

presumption that his counsel’s representation fell within the wide range of reasonable 

professional assistance. See Thompson, 9 S.W.3d at 814.

Even if we were to assume that counsel’s isolated failure to object fell outside the 

wide range of reasonable professional assistance, see Robertson, 187 S.W.3d at 483 

(explaining that “[i]solated instances in the record reflecting errors of omission or 

commission do not render counsel’s performance ineffective”), appellant has not 

demonstrated that such failure prejudiced his defense. See Strickland, 466 U.S. at 689. 

The State placed no additional emphasis on the marijuana conviction for the remainder 

of the trial. Further, while we acknowledge the importance of appellant’s credibility to his 

defensive theory, he has failed to show that the jury placed any significance on the details

of his conviction—transporting twenty pounds of marijuana—when the fact of the 
18

conviction and appellant’s history of deportation and reentry were already before the jury. 

See Cavitt v. State, 507 S.W.3d 235, 259 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) 

(concluding that defendant was not prejudiced by counsel’s failure to object to details of 

a prior sexual assault conviction); Leyba v. State, 416 S.W.3d 563, 570 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref’d) (finding no harm resulting from the introduction of 

DUI conviction when the prosecution elicited testimony involving more recent and serious 

offenses); Jabari, 273 S.W.3d at 753 (concluding that the introduction of details of prior 

sexual assault convictions was harmless error); see also Lynch v. State, No. 08-15-

00371-CR, 2018 WL 636265, at *6 (Tex. App.—El Paso Jan. 31, 2018, no pet.) (mem. 

op., not designated for publication) (concluding that appellant was not prejudiced by trial 

counsel’s failure to object to felony possession conviction when evidence of more serious 

convictions was properly admitted by the trial court). On this record, we are unable to 

conclude that there is a reasonable probability that the jury would have reached a different 

conclusion had such evidence been excluded. See Lopez, 343 S.W.3d at 142. 

C. Summary

The failure to make a showing under either of the required prongs of Strickland

defeats a claim for ineffective assistance of counsel. See id. We conclude that 

appellant has not met his burden to show ineffective assistance of counsel by a 

preponderance of the evidence. See id. We overrule appellant’s sole issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

LETICIA HINOJOSA

Justice
19

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

17th day of May, 2018.