Affirmed and Opinion Filed October 19, 2016 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-15-01567-CR ANDRES HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F12-62691-Q 

### MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Francis A jury convicted Andres Hernandez of indecency with a child by contact, and punishment was assessed at twelve years in prison. In three issu es, appellant complains he was denied effective assistance of counsel and the trial court committed fundamental error by allowing (1) the prosecutor to ask him, in the pres ence of the jury, if he was the accused and (2) a detective to testify he believed the child. We affirm. Appellant, a pastor, was a friend of the family of ten-year-old P.M. Appellant asked P.M. and her older brother, E.M., who was fourteen, to go to the church with him to practice music. When they arrived, appellant said P.M. was going to help him clean his office while E.M. went to a different building to set up the equipment. While in the office, appellant touched P.M.’s breast, touched her vagina over her clothing, and ma de her touch his penis until he ejaculated.–2– He told P.M. not to tell anyone. After they practi ced music, appellant took P.M. and E.M. home. Some time that same day, P.M. told her sisters a nd E.M. what happened. Her oldest sister, who was nineteen, called the police, w ho came and talked to P.M. P.M. was then taken to the hospital by ambulance to be examined. Poli ce arrested appellant that night. In his first issue, appellant contends he was denied effective assist ance of counsel when his trial counsel failed to object to (1) witnesse s, other than the outcry witness, testifying to P.M.’s hearsay statements about the offense, (2) the paramedic a nd supervising physician testifying about documents prepared by othe r people, on confrontation grounds, (3) the prosecutor asking appellant, in front of the jur y, if he was the accused, and (4) the detective’s testimony that he believed P.M.. To prevail on a claim of ineffective assistan ce of counsel, an appe llant must show that (1) counsel’s representation fell below an objec tive standard of reasonableness and (2) the deficient performance prejudiced the defense; that is, but for the deficiency, there is a reasonable probability that the result of the pro ceeding would have been different. Lopez v. State , 343 S.W.3d 137, 142 (Tex. Cr im. App. 2011), citing Strickland v. Washington , 466 U.S. 668, 689 (1984). Unless appellant can pr ove both prongs, an appellate court must not find counsel’s representation to be ineffective. Lopez , 343 S.W.3d at 142. We must make a “strong presumption that counsel’s performance fell within the wide range of reasonably prof essional assistance.” Id . To find counsel was ineffective, counsel’s deficiency must be affirmatively demonstrated in the record, and we must not engage in retrospective speculation. Id . When such direct evidence in not available, we will assume that counsel had a strategy if any reasonably sound strategic motivation can be imagined. Id

. The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel’s actions will not overcome the strong presumption of–3– reasonable assistance. Rylander v. State , 101 S.W.3d 107, 110 (Tex. Crim . App. 2003). Further, counsel should ordinarily be accorded the oppor tunity to explain his actions before being denounced as ineffective. Menefield v. State , 363 S.W3d 591, 593 (Tex. Crim. App. 2012). Because the reasonableness of tria l counsel’s choices often involve facts that do not appear in the appellate record, an application for writ of habeas corpus is the more appr opriate vehicle to raise ineffective assistance of counsel claims. See Mitchell v. State , 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Here, appellant did not file a motion for new tria l and thus the record is silent as to trial counsel’s reasons for not making the objections to evidence appellant believes he should have made. Because the record provides no explanati on for counsel’s actions or inactions, appellant has not met his burden of overcoming the str ong presumption of reasonable assistance. See Lopez , 343 S.W.3d at 143–44 (concluding silent record failed to s how deficient performance by trial counsel who failed to object to outcry-wit ness testimony and opinion testimony on witness’s credibility); Menefield , 363 S.W.3d at 593 (concl uding silent record failed to show deficient performance by trial counsel who failed to object, on confrontat ion grounds, to lab report when analyst conducting test did not testif y). We overrule the first issue. In issues two and three, appellant complain s the trial court committed fundamental error with respect to two of the same issues he raised as ineffective assistance of counsel. Specifically, he contends the trial court erre d by (1) allowing the prosecutor, while reading the indictment to the jury, to ask appellant, “Is that your name, sir,” to which appellant responded, “Correct”, and (2) allowing the detective to testify he believed P.M. He argues that both complaints fall within the “second category of rights” that are “not forfeitable” under Marin v. State , 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), and theref ore he did not need to object.–4– The court of criminal appeals has explained that rights not requi ring an objection are a “narrow exception” to the general ru le that error must be preserved. See Grado v. State , 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). In fact, almost all error––even constitutional error–– may be forfeited if the appellant failed to object. Fuller v. State , 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). Here, appellant makes no attempt to explain why these complaints are not forfeitable. After considering the specific complaints, we see no reason why both should not require an objection below. See Fuller , 253 S.W.3d at 232 (explaining that failure to object forfeits complaints about admissibility of evidence, even if alleged error concerns constitutional right of defendant); Stewart v. State , 473 S.W.2d 495, 497 (Tex. Crim. App. 1971) (concluding no error presented when defendant failed to object be low to arraignment in presence of jury). Accordingly, neither issue is preserve d. We overrule issu es two and three. We affirm the trial court’s judgment.

Do Not Publish T EX
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. P. 47.2(b) 151567F.U05 /Molly Francis/ MOLLY FRANCIS JUSTICE–5– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANDRES HERNANDEZ, Appellant
No. 05-15-01567-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F12-62691-Q. Opinion delivered by Justice Francis; Justices Evans and Stod dart participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered October 19, 2016.