Affirmed and Memorandum Opinion filed February 28, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00437-CR

LASHAWN MONIQUE DARNELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 3

Brazoria County, Texas

Trial Court Cause No. 178818

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

A jury convicted appellant Lashawn Monique Darnell of assault causing bodily 

injury, and the trial court sentenced her to one year in jail, probated for 24 months, and 

assessed a $1,000 fine. Appellant challenges her conviction in two issues, arguing that 

her trial counsel rendered ineffective assistance of counsel. We affirm. 

BACKGROUND

Appellant brought her car to Wal-Mart for servicing. Complainant Laura Cook 

was a Wal-Mart employee in the automotive department. When appellant attempted to 

check out, Cook used incorrect paperwork and gave appellant the wrong car keys. 
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Appellant berated Cook for the mistake. After appellant paid for the service, Cook turned 

away from appellant to retrieve the correct keys, and appellant slapped Cook’s face.

Cook then called for a manager over the intercom, and assistant manager Edgard 

Colomer arrived in the automotive department. Colomer spoke to Cook and noticed a red 

mark on the side of Cook’s face. Colomer then asked appellant if she hit Cook, and 

appellant responded, ―No, I didn’t hit her. I slapped her.‖

ANALYSIS

In her first and second issues, appellant contends she was denied effective 

assistance of counsel because her trial counsel (1) did not object to certain evidence; (2) 

failed to adequately cross-examine the State’s witnesses; (3) lacked an understanding of 

the crime charged and the law; and (4) did not object to the State’s improper closing 

argument.

To establish ineffective assistance of counsel, appellant must show by a 

preponderance of the evidence that (1) counsel’s performance was deficient because it 

fell below an objective standard of reasonableness; and (2) the deficient performance 

caused appellant prejudice because there is a probability sufficient to undermine 

confidence in the outcome that but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. See Lopez v. State, 343 S.W.3d 137, 142 (Tex. 

Crim. App. 2011) (citing Strickland v. Washington, 466 U.S. 668 (1984)). For an 

appellate court to conclude that counsel’s performance was deficient, the deficiency must 

be affirmatively demonstrated in the trial record. Id. 

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

time on direct appeal, the record in such a case often will not be sufficient to show that 

counsel’s performance was deficient. Cannon v. State, 252 S.W.3d 342, 347 n. 6, 349

(Tex. Crim. App. 2008). In such a case, 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). 
3

I. Objections to Evidence 

Appellant contends that trial counsel rendered ineffective assistance because 

counsel failed to object to (1) the admission of a surveillance video when a predicate was 

never laid; (2) the admission of photographs of Cook’s face; and (3) the State’s questions 

that called for Cook to speculate. 

At trial, the State offered a surveillance video into evidence and counsel said, ―No 

objection.‖ Appellant contends counsel should have objected because no predicate was 

laid prior to admission. The record contains nothing to suggest that a predicate could not 

have been laid for the video by witness testimony that the matter is what it is claimed to 

be. See Tex. R. Evid. 901(b)(1); see also Whitmore v. State, Nos. 05-07-00292-CR, 05-

07-00293-CR, 2007 WL 3293640, at *2–3 (Tex. App.—Dallas Nov. 8, 2007, no pet.) 

(not designated for publication) (no ineffective assistance based on failure to object to 

lack of foundation because the record did not establish the evidence would have been 

excluded); Coker v. State, No. 08-02-00014-CR, 2004 WL 1194362, at *3 (Tex. App.—

El Paso May 27, 2004, pet. ref’d) (mem. op., not designated for publication) (no 

ineffective assistance based on failure to object to lack of foundation because there was 

no evidence in the record suggesting that the State would have been unable to lay a 

proper foundation). Further, the State presented testimony from a Wal-Mart employee 

who maintained and operated the surveillance system and compiled the video. Cook also 

testified about the contents of the video. Because trial counsel is under no obligation to 

do futile acts, appellant fails to demonstrate that the failure to object to the introduction of 

the video was deficient performance. See Holland v. State, 761 S.W.2d 307, 319 (Tex. 

Crim. App. 1988); see also McGee v. State, No. 14-94-00563-CR, 1997 WL 566202, at 

*5 (Tex. App.—Houston [14th Dist.] Sept. 11, 1997, pet. ref’d) (not designated for 

publication) (no ineffective assistance based on failure to object to lack of foundation 

when the State’s witness testified about the contents of the video). Finally, counsel could 

have had a reasonable trial strategy to allow admission of the video because it did not 
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show the actual assault; indeed, counsel relied on this fact throughout trial to demonstrate 

a weakness in the State’s case.

The State also introduced photographs of Cook’s face that were taken after the 

incident. Appellant contends counsel should have objected to the admission of the 

photographs, but she does not specify any grounds for objecting. Because appellant fails 

to specify what valid objection counsel should have made, she has not demonstrated 

deficient performance. See, e.g., Rodriguez v. State, 329 S.W.3d 74, 84 (Tex. App.—

Houston [14th Dist.] 2010, no pet.) (no deficient performance when appellant fails to 

identify the particular objection counsel should have made).

At trial, Cook was asked whether she had ―any reason to believe the slap was 

accidental.‖ Cook said, ―No.‖ Appellant contends that counsel’s failure to object was 

deficient performance because the question called for speculation. The record shows that 

Cook’s opinion was rationally based on her own perception — she explained that she saw 

appellant slap her, and appellant had to come around the counter to slap her — and the 

opinion was helpful for determining a fact in issue. See Tex. R. Evid. 701. Thus, counsel 

was not deficient for failing to object. See Ex parte White, 160 S.W.3d 46, 53 (Tex. 

Crim. App. 2004) (no deficient performance for failing to object to alleged speculation; 

the witness’s ―testimony that the applicant intentionally ran over the victims with his 

truck was admissible under Texas Rule of Evidence 701 because the lay witness’s 

opinion was rationally based on his own perception and was helpful in the determination 

of a fact in issue‖).

II. Cross-Examination

Appellant complains that counsel’s cross-examination of the State’s witnesses was 

inadequate. There is no explanation from counsel or anything else in the record to 

suggest that counsel was not following a plausible trial strategy. Absent very strong 

impeachment evidence, none of which appears in this record, trial counsel’s decision 

about how to proceed with cross-examination often is a matter of trial strategy. See, e.g., 

Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). Thus, appellant has 
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not demonstrated counsel’s deficient performance. See, e.g., Dannhaus v. State, 928 

S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).

III. Understanding of Crime Charged and Lesser Included Offense

Appellant argues that counsel appeared to have a lack of understanding of the law 

because (1) counsel asked the court for a charge on an offense that was not an available 

lesser included offense; and (2) co-counsel made several objections during trial. 

Assuming without deciding that counsel was deficient, appellant has failed to 

demonstrate any prejudice. She has not shown that she was entitled to a lesser charge or 

that co-counsel’s participation at trial harmed her defense in any way. See Phelps v. 

State, No. 07-10-00443-CR, 2011 WL 2582810, at *4–5 (Tex. App.—Amarillo June 29, 

2011, pet. ref’d) (mem. op., not designated for publication) (no ineffective assistance 

when counsel’s failure to understand the law did not affect the outcome); see also

Alexander v. State, 282 S.W.3d 701, 707 (Tex. App.—Houston [14th Dist.] 2009, pet. 

ref’d) (partial reliance on co-counsel was not deficient performance); cf. Davis v. State, 

930 S.W.2d 765, 768 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (reasonable trial 

strategy to not request an available charge on a lesser included offense).

IV. Failure to Object During Closing Arguments

Appellant contends counsel failed to object to the State’s closing argument asking

the jury to put themselves in the shoes of the victim. Appellant points to the following 

statements made by the State:

Suppose you had been the person in line at that Wal-Mart on that day or 

suppose you or somebody that you know or love, somebody in your family, 

would have been the cashier that day. Just imagine that. Think about what 

if this was not Laura Cook or this was you working at the Wal-Mart or your 

son or daughter working at the Wal-Mart.

* * *

What would you have done if you would have been Ms. Cook in that 

situation?
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* * *

Imagine you or someone you know was the cashier who was assaulted that 

day. Imagine that.

Assuming without deciding that these statements were objectionable, we cannot 

conclude counsel was deficient for failing to object. The record is silent as to why 

counsel failed to object, and appellant has failed to rebut the presumption that counsel’s 

conduct was ―reasonably based in sound trial strategy.‖ See Mata v. State, 226 S.W.3d 

425, 431 (Tex. Crim. App. 2007). This presumption ―compels [us] to consider ways in 

which trial counsel’s actions were within the bounds of professional norms.‖ Id.. Not 

objecting to patently improper argument may be a strategic decision; a plausible trial 

strategy is to refrain from directing the jury’s attention to the argument. See Richards v. 

State, 912 S.W.2d 374, 381 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d); see also 

Bryant v. State, 282 S.W.3d 156, 173 (Tex. App.—Texarkana 2009, pet. ref’d); Brennan 

v. State, 334 S.W.3d 64, 76–77 (Tex. App.—Dallas 2009, no pet.). Appellant has failed 

to show deficient performance.

Appellant’s first and second issues are overruled.

CONCLUSION

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

/s/ William J. Boyce

Justice

Panel consists of Justices Seymore and Boyce and Senior Justice Mirabal.*

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

 

*

 Senior Justice Margaret Garner Mirabal sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(h) 

(Vernon 2005).