IN THE

TENTH COURT OF APPEALS

No. 10-08-00174-CR

HIRAM RAMSES STOOKSBURY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 32277CR

MEMORANDUM OPINION

Hiram Ramses Stooksbury was convicted of the offense of Aggravated Sexual 

Assault of a Child after a jury trial. TEX. PEN. CODE ANN. § 22.021 (Vernon 2003). 

Stooksbury elected to go to the jury for the punishment phase. The jury found an 

enhancement allegation true, which then mandated that Stooksbury’s sentence be set at 

imprisonment for life in the Texas Department of Criminal Justice – Institutional 

Division. TEX. PEN. CODE ANN. § 12.42(c)(2) (Vernon Supp. 2008). 

Stooksbury complains in eight points of error that he received ineffective 

assistance of counsel at trial, there was prosecutorial misconduct, there was judicial 
Stooksbury v. State Page 2

misconduct, and that the cumulation of these errors requires reversal. Where it is 

practicable, these points of error will be addressed together. Because we find the record 

is insufficient to find there was ineffective assistance of counsel, that any complaints 

regarding the prosecutor’s actions or the trial court’s actions were waived, and there 

was no cumulative error, we affirm.

Factual Background

Because there are no challenges to the sufficiency of the evidence, a detailed 

summary of the factual background of the case is unnecessary so we will discuss only 

those facts necessary to the disposition of this appeal. The victim in this case was 

Stooksbury’s daughter, who alleged that Stooksbury had digitally penetrated her 

genitalia more than once and improperly touched her over a period of years during the 

marriage of her parents. The extraneous offenses and bad acts admitted during trial 

which Stooksbury argues were improperly admitted were his excessive drinking during 

the marriage, his failure to pay child support after their separation, an isolated incident 

of family violence against his ex-wife, Stooksbury’s firing a gun at a computer monitor 

during an argument with his ex-wife, and his adultery. 

Ineffective Assistance 

Stooksbury alleges in points of error one and seven that he received ineffective 

assistance at trial because his trial counsel: (1) did not properly object to extraneous 

offenses and bad acts, (2) failed to request a jury instruction to disregard testimony after 

a properly sustained objection, (3) failed to object to the jury charge in the guiltinnocence phase for not containing a limiting instruction regarding the extraneous 
Stooksbury v. State Page 3

offenses, and (4) failed to object to a witness’s statement regarding Stooksbury’s 

invoking his Fifth Amendment right to counsel and to remain silent when he was 

arrested for this offense. U.S. CONST. amend. V. 

To prevail on an ineffective-assistance claim, Stooksbury must prove (1) counsel's 

representation fell below the 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. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 

2052, 80 L.Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). 

In considering an ineffective-assistance claim, we indulge a strong presumption that 

counsel's actions fell within the wide range of reasonable professional behavior and 

were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d 

at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this 

presumption, a claim of ineffective assistance must be firmly demonstrated in the 

record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle 

for raising such a claim because the record is generally undeveloped and cannot 

adequately reflect the motives behind trial counsel's actions. Rylander v. State, 101 

S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813-14. 

When the record is silent regarding trial counsel's strategy, we will not find 

deficient performance unless the challenged conduct was "so outrageous that no 

competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 

(Tex. Crim. App. 2005); Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000). 

In rare cases, however, the record can be sufficient to prove that counsel's performance 
Stooksbury v. State Page 4

was deficient, despite the absence of affirmative evidence of counsel's reasoning or 

strategy. Id.

It is critical that the defendant obtain the necessary record in the trial court to 

rebut the Strickland presumption that counsel's conduct was strategic for purposes of 

appeal. Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref'd.). This kind of record is best developed in a hearing 

on a motion for new trial, or by an application for a writ of habeas corpus. See Jackson v. 

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92.

Without evidence of the strategy and methods involved concerning counsel's actions at 

trial, the appellate court will presume sound trial strategy. See Thompson, 9 S.W.3d at 

814.

Stooksbury filed a motion for new trial within the time periods allowed by law;

however, the motion did not allege ineffective assistance of counsel. When appellate 

counsel substituted into the case, there was a motion for leave of court to file an 

amended motion for new trial outside of the thirty-day deadline alleging Stooksbury’s 

desire to raise the issue of ineffective assistance of counsel; however, the State objected 

to the motion and the trial court denied the motion. No hearing was conducted on the 

motion for new trial, and it was overruled by operation of law.

Failure to Properly Object to Extraneous Offenses

Generally, isolated failures to object to certain procedural mistakes or improper 

evidence would not constitute ineffective assistance of counsel. See Ingham v. State, 679 

S.W.2d 503, 509 (Tex. Crim. App. 1984). When the record is silent as to counsel's reason 
Stooksbury v. State Page 5

for failing to object, an appellant fails to rebut the presumption that counsel acted 

reasonably. Thompson, 9 S.W.3d at 814. Moreover, the decision not to object to 

inadmissible evidence can sometimes be justified as part of a sound trial strategy.

Darby v. State, 922 S.W.2d 614, 623-24 (Tex. App.—Fort Worth 1996, pet. ref'd).

The record does not contain any evidence regarding trial counsel's reasons or 

strategy for not objecting to the testimony regarding Stooksbury’s extraneous conduct 

or bad acts other than what appeared to be a general trial strategy of demonstrating the 

motivation of the victim and her mother to fabricate these charges against Stooksbury. 

Those motivations were that the victim and her mother were angry after the 

Stooksburys’s bitter divorce, because of Stooksbury’s adultery, and of Stooksbury’s 

subsequent remarriage to a woman the victim did not like. There is no other 

explanation for why trial counsel did not object or did not assert proper objections in 

the record. Regarding trial counsel's failure to seek an instruction to disregard or a

mistrial after the trial court sustained objections to several of the prosecutor's questions, 

most of which were based on hearsay, we cannot speculate on this issue. Absent 

explanations for trial counsel's reasons for the above, Stooksbury has failed to 

overcome the presumption that the challenged actions were sound trial strategy, and 

his claims must fail. See Ramos v. State, 45 S.W.3d 305, 311 (Tex. App.—Fort Worth 2001, 

pet. ref'd). Because on the undeveloped record presented here Stooksbury has failed to 

show that his trial counsel's performance was deficient, we need not reach the prejudice 

prong of Strickland. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
Stooksbury v. State Page 6

Failure to Request Limiting Instruction in Jury Charge

A limiting instruction concerning the use of extraneous offense evidence should 

be requested, and given, in the guilt-stage jury charge only if the defendant requested a 

limiting instruction at the time the evidence was first admitted. Delgado v. State, 235 

S.W.3d 244, 251 (Tex. Crim. App. 2007); see Hammock v. State, 46 S.W.3d 889, 895 (Tex. 

Crim. App. 2001) (recognizing that once evidence is admitted without limiting 

instruction, it may be used for all purposes and trial court is not required to include 

limiting instruction in jury charge). Further, a trial court generally is not required to 

instruct the jury sua sponte on the burden of proof to be used when considering evidence 

of an extraneous offense during the guilt-innocence phase. Delgado, 235 S.W.3d at 254. 

The court reasoned that evidentiary issues in the guilt-innocence phase are not "the law 

applicable to the case," which the trial court must sua sponte include in the charge, 

because determining whether to request instructions on these matters frequently 

depends on trial strategy. Id. at 249-52; see TEX. CODE CRIM. PROC. art. 36.14 (Vernon 

2007) (requiring court to submit in guilt-innocence phase jury charge "distinctly setting 

forth the law applicable to the case."). Because the evidence regarding Stooksbury’s 

extraneous conduct was admitted for all purposes, Stooksbury was not entitled to a 

limiting instruction. As such, the failure to object to the charge as written in this 

instance is not ineffective assistance of counsel. 

Failure to Object to Improper Fifth Amendment Testimony

In response to a question during direct examination by the State, one of the 

arresting officers stated that Stooksbury’s statement to him after the officer introduced 
Stooksbury v. State Page 7

himself to Stooksbury was, “Well, I want you to know that I have an attorney, and I’m 

not going to talk to you without my attorney present.” No objection was lodged to this 

statement. No further questions were asked of that witness or of any other witnesses 

regarding any statements of Stooksbury. This statement was not mentioned in either 

side’s closing argument. The record is silent as to any trial strategy by counsel. When 

the record is silent as to counsel's reason for failing to object, the appellant fails to rebut 

the presumption that counsel acted reasonably. Thompson, 9 S.W.3d at 814. We 

overrule Stooksbury’s points of error one and seven.

Prosecutorial Misconduct

Stooksbury complains in points of error two, three, and six that the prosecutor 

willfully admitted evidence that was inadmissible regarding extraneous offenses and 

bad acts by Stooksbury and by eliciting testimony regarding Stooksbury exercising his 

right to remain silent. 

However, Stooksbury failed to preserve error on his contention. To preserve 

error for an allegation of prosecutorial misconduct, a defendant must (1) make a timely 

and specific objection, (2) request an instruction to disregard the matter improperly 

placed before the jury, and (3) move for mistrial. See Penry v. State, 903 S.W.2d 715, 764 

(Tex. Crim. App. 1995); see also TEX. R. APP. P. 33.1. Further, the objection at trial must 

comport with the complaint on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. 

App. 2002). We overrule Stooksbury’s points of error numbers two, three, and six.
Stooksbury v. State Page 8

Actions by the Trial Court

Stooksbury complains in points of error four and five that the trial court 

commented on the weight of the evidence and demonstrated bias against Stooksbury 

and his trial counsel and in favor of the State during the trial in violation of his 5th and 

14th Amendment rights under the United States Constitution, Article 1, Section 13 and 

19 of the Texas constitution, and Article 1.05 of the Texas Code of Criminal Procedure. 

Stooksbury further complains that the trial court erred by allowing the evidence 

regarding extraneous offenses and bad acts to be admitted into evidence for the same 

reasons, as well as being improperly admitted pursuant to the Texas Rules of Evidence.

Remarks in the Jury’s Presence

A trial court must refrain from making any remark calculated to convey to the 

jury its opinion of the case. See TEX. CODE CRIM. PROC. ANN. art. 38.05 (Vernon 1979). 

Article 38.05 of the Texas Code of Criminal Procedure provides: “In ruling upon the 

admissibility of evidence, the judge shall not discuss or comment upon the weight of 

the same or its bearing in the case, but shall simply decide whether or not it is 

admissible; nor shall he, at any stage of the proceeding previous to the return of the 

verdict, make any remark calculated to convey to the jury his opinion of the case.” Id.

Nevertheless, a trial court has broad discretion in maintaining control and 

expediting trial. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). A trial court 

may interject to correct a misstatement or misrepresentation of previously admitted 

testimony, and may impose reasonable limitations on the examination of witnesses. 

Jasper, 61 S.W.3d at 421. Even a trial court's irritation at defense counsel does not 
Stooksbury v. State Page 9

"translate to an indication as to the judge's views about the defendant's guilt or 

innocence." Id. Absent a clear showing of bias, a trial court's actions are assumed to 

have been correct. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).

Generally, a party's failure to timely and specifically object to a trial court's 

remarks waives any error. Resendez v. State, 160 S.W.3d 181, 189-90 (Tex. App.—Corpus 

Christi 2005, no pet.); TEX. R. APP. P. 33.1(a). In Blue v. State, however, a plurality of the 

Texas Court of Criminal Appeals held an objection was unnecessary to preserve a 

complaint about a trial judge's remarks that tainted the presumption of innocence in 

front of the venire and constituted fundamental error of constitutional dimension. Blue 

v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality op.).

Stooksbury complains of the following remarks made to his trial counsel by the 

trial court in the presence of the jury: "Sustained. I mean, Counselor, it’s an 

argumentative question what’s important for the jury to hear;" "Counselor, you’re not 

going to examine this or any of the witnesses that I know of that y’all got scheduled, 

either side, what the law is. I’m going to tell the jurors what the law is;" "No. 

Counselor, the rule’s been invoked. You can’t tell the witnesses what somebody else 

testified to;" "Counselor, where are we going with this? I mean, are you seeking to offer 

that or what?" 

These remarks did not rise to the level of fundamental error of constitutional 

dimension and, thus, timely and specific objections were required to preserve any 

complaint for appellate review. Stooksbury failed to object, thereby waiving this 

complaint. See Resendez, 160 S.W.3d at 189-90; TEX. R. APP. P. 33.1(a). However, even if 
Stooksbury v. State Page 10

Stooksbury had properly objected at trial, we would overrule this issue. The record 

does not clearly show bias on the part of the trial court. It is our opinion that none of 

the challenged remarks were calculated to convey to the jury the trial court's opinion of 

the case. 

Improper Admission of Evidence

Stooksbury argues that the trial court improperly admitted evidence of 

extraneous offenses and bad conduct according to the Texas Rules of Evidence;

however, no objection was lodged to any of this evidence for any purpose except lack of 

prior notice. Stooksbury offers no authority to support his position on the standard of 

review or why the lack of preservation of error should be ignored. We find that 

Stooksbury has waived this issue due to inadequate briefing. See TEX. R. APP. P. 38.1(i); 

Tex. Dep’t. of Crim. Justice v. King, No. 10-01-058-CV, 2003 Tex. App. LEXIS 10481 at *15, 

(Tex. App.—Waco, December 10, 2003, pet. denied). We overrule Stooksbury’s points 

of error numbers four and five.

Cumulative Error

Stooksbury argues that the cumulative impact of the errors during the trial

should result in a reversal for a new trial. An appellate court should consider the 

cumulative effect when there are multiple errors. See Martin v. State, 151 S.W.3d 236, 

242 (Tex. App.—Texarkana 2004, pet. ref'd). It is possible that a number of errors may 

be harmful in their cumulative effect. See Feldman v. State, 71 S.W.3d 738, 757 (Tex. 

Crim. App. 2002); Hughes v. State, 24 S.W.3d 833, 844 (Tex. Crim. App. 2000); 

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); see also Modica v. State, 
Stooksbury v. State Page 11

151 S.W.3d 716, 727 (Tex. App.—Beaumont 2004, pet. ref'd), cert. denied, 547 U.S. 1210, 

126 S.Ct. 2895, 165 L.Ed. 2d 923 (2006); Melancon v. State, 66 S.W.3d 375, 385 (Tex. 

App.—Houston [14th Dist.] 2001, pet. ref'd). However, while multiple errors could be 

harmful in their cumulative effect, non-errors cannot produce harm in their cumulative 

effect. See Hughes, 24 S.W.3d at 844; Chamberlain, 998 S.W.2d at 238; see also Modica, 151 

S.W.3d at 727; Melancon, 66 S.W.3d at 385. We have not found error; therefore, we 

cannot say that there is cumulative error. See Hughes, 24 S.W.3d at 844; Melancon, 66 

S.W.3d at 385. We overrule Stooksbury’s point of error number eight.

Conclusion

We find that Stooksbury has not met his burden to establish that he received 

ineffective assistance of counsel. We further find that the issues regarding prosecutorial 

misconduct, if there were any, were not preserved and, therefore, were waived. We 

find that the judge did not act improperly in the trial. Having overruled all of 

Stooksbury’s points of error, we affirm the judgment of conviction.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed September 9, 2009

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