1 Joh n T . B oyd, C hief J ustic e (R et.), Se ven th C ourt o f Ap pea ls, sitting b y ass ignm ent. T EX
. G OV ’ T

C ODE A NN
. § 75.0 02 (a )(1) (V erno n Su pp. 2 003 ). NO. 07-02-0304-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E FEBRUARY

25, 2003

______________________________ JOE A. NARVAI S, JR.,

Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 364 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2001-438,391; HON. JOHN T. FORBIS , PRESIDING

_______________________________ Before QUINN and REAVIS, JJ., an d BOYD, S.J. 1 Appellant

Joe A. Narvais, Jr., attacks his c onvic tion for the offense of agg ravated assault with a d ead ly weap on by c onte ndin g he re ceive d ine ff ecti ve assistance of counsel. Counsel was allegedly ineffective beca use he 1) f ailed to hav e the trial court determine whether appellant’s s tatement (or admis sion to using a handgun during the assault) made to an employee of the Tex as Child Pr

otective Serv ices (CPS) was voluntary, 2) failed to object to the testimony of an investigating police officer as hearsay , 3) failed to obj ect to2 At t ri al, Susanna deni ed that appel lant

had a gun, thr eatened her wit h one, or str uck her wi th one. 2 the State calli ng the complai nant as a hostil e w itness alleg edly for the pu rpose of impeaching her, and 4) was i neffective in li ght of the cumulati ve effect of the foregoi ng errors. We overrul e each issue and affirm the judgment. Background The victim of the aggravated assault was Susanna Narvais (Susanna), appellant’s wife. The two wer

e separ ated at the ti me of the assault. F urthermore, on S eptember 12, 2001, Susanna (while holding her child) sat in the back seat of a vehicle talking to a girl friend. Appellant appr

oached the vehi c le, opened the back door, entered i t, and asked, “[w]hat’s up now, bitch?” Susanna replied by asking that he not shoot her. Appellant then exited the vehicl e from one side w hile Susanna and t he child ex ited from the other. Atthat point, appe lla nt c irc led the car, gr abbe d hi s w ife by the thr oat, held a handg un to her head, struckher in the face with the weapon, and fled. 2 Though Susanna tol d the police tha t her husband held a gun to her h ead w hen they came to invest igate the assault, s he recanted that portion of her

statement at tri al.

Standard o f Review The standard by

which w e review claims of ineffective assistance i s well estab lished

. We will not repeat it, but rather cite the parties to Strickland v. Washington, 466 U.S. 668, 687-95, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), Bone v. State , 77 S .W .3d 8 28 (T ex. Crim

. App. 2002), Thompson v . State , 9 S.W.3d 808 (Tex. Crim. A pp. 1999), and Rios v. Stat e, 990 S.W.2d 382 (Tex. App.—Amaril lo 1999, no pet.) for its ex planation.3 378 U .S. 368, 84 S.Ct. 1774, 12 L.Ed .2d 908 (1964 ). 3 Issue One – Failure to Determine Voluntariness of Admission In his first issue, appellant ask s us to determine “whether trial couns el . . . was ineffective by

failing to ob

ject to or ask for a Jackson v. Denno [sic] hearing when a child prot ecti ve services employee tes tified to incr iminating facts obtained in v iolation of the 5 th and 6 th Amendments of the United States [sic] and Tex.C.Crim.Proc. Sec. 38.22 [sic].”The “incriminatin g fa cts” allude d to consisted of appellant admitti ng that he held a gun to Susann a’s head. Furthermore , this admiss ion occurred during an i nterview between appellant

and the CPS employee while t he latter was conducting an investi gation into the welfare of appellant’s children . W e overrule the issue for two reasons. First, th e rea sons or motives underly ing counsel ’s action appear s nowhere i n the record. Consequentl y, appellant failed to rebut t he presumption that those acti ons were reasonable. Thompson v . State , 9 S.W.3d at 814 (holding that the appellant failed to rebut the presumption that counsel’s dec ision wa s reasonable becau se the record was sil entas to why counsel failed to object to the Stat e’s attempt to elicit hearsay). Second, hearings conducted pursuant to ar ticle 38.22 of the Tex

as Code of Crimina l Procedure and Jackson v. D enno 3 are utilized to deter mine the voluntariness of an accused’s admissions or confessions. Yet, before w e can say th at counsel was deficient for failing to pu rsue a parti cular cours e of conduct, there must be evidence of record ind icating that there ex isted matters beneficial to appel lant that was susceptibl e to discovery

through the pu rsuit. See Melancon v. State, 66 S.W.3d 375 , 380 (Tex. App.—Houston [14 th Dist.] 2001, no p et.). Indeed, i t is clear that counsel need not4

undertake meaningless acts simply to be effective. See White v. State , 999 S.W.2d 895, 899-900 (Tex. App.–Amar illo 1999, pet. ref’d ) (holding that counsel need not object jus t to object). Moreover, appellant neither contends th at his admission to the CPS employee
was involuntary nor cites us t o evidence s uggesting that it was. Without either that
c ontention or evidence, we cannot hold his attor ney deficient for omitting to i nstigate a proceeding t hat may well have uncovered nothi ng objection able.

Issue Two –

Failure to

Object to

Hearsay In his second i ssue, appellant asks that we determine whether his trial attorney was inef fec tive “by faili ng to object to test imony of an investigating officer as hearsay w hen he discussed an out of co u rts t a t e m e n tm a d e b y t h e v i c t i m a n d tw o o t h e r w i t n e s s e s
. ” We overrulethe issue for th e following reason. The reasons or motives underlying counsel’s inaction appear nowhere i n the record. Cons eque ntly, appellant failed to reb ut the presumption tha t those actions were reasonable. Thompson v . State , 9 S.W.3d at 814 (holdin g that the appel lant failed to rebut the presumption that coun sel’s decision was reasonable because the record was sil ent as to why counsel failed to object to the Sta te’s attempt to el icit hearsa y). Next, that the failure to object may be founded upon soun d trial str ategy w as exemplified in Ortiz v. State , No. 73-692, 200 2 L EXIS 185 (Tex. C rim. App. September 25, 2002). There, counsel omitted objection to hears ay utte red by Speci al Agent Lott. The hearsay i nvolved statements uttered to the agent by two other

individ uals. Furthermore, t he record ther

e, like here, failed to discl ose counsel’sreasons for re maining silent. I n o ve rruling the claim of ineffectiv eness, the Cour

t of Criminal Appeals noted that an objection may have compelled the State to introd uce the evidence directly thro ugh the5

actual live tes timony of the tw o dec lara nts a nd, m ore im port antl y, cou nsel may “h ave believed that such direct evidence would have a more powerful and adverse effect on the jury than the evi dence the State was conte nt to offer.” Id. at 39. Thus, contr ary to appellant’s supposition, silence on the part of counsel under circumsta nces akin to those bef ore u s may b e fo und ed up on so und trial strat egy.

Issue Three -

Failure to

Object t o Impeachmen t Evid ence In his third issue, appell ant asks that w e determine w heth er h is trial counsel wa s inef fec tive by “failing to object to the prosecution calling a hostile witness [ i.e. the v icti m]

. . . to impeach her with otherwis e ina dmissible hear say or to object to impeach ment material as hearsay

and ask for a li miting ins truction.” We ov errule the issue for th e following reasons. First, the reasons or

motives underlying counsel’s ac tion appear now here in the record. Consequentl y, appellant failed to rebut t he presumption that those acti ons were reasonable. Thompson v . State , 9 S.W.3d at 814 (holding that the appellan t failed to rebut the presumption that counsel’s dec ision wa s reasonable becau se the record was sil entas to why counsel failed to object to the Stat e’s attempt to elicit hearsay). Second, assumin g arguendothat the omissi on exemplified un reasonable conduc t,
we cannot say that but for it the re exists a reasonable probability that the resul t of the proceeding would have differed. This is so because this ev idence wascumulativeof other
ev idence illustra ting that appel lant utilized a deadly w eapon, i.e. the handgun, whil e assaulting his wi fe. Again, appel lant himself admitted to striki ng his w ife with a han dgun. Addi tion ally, that appellant so struck his wi fe was confir med by another w itness at tr ial who6

personally saw the event, and no one questions the adm issibilit y of that witness’s test imon y. So, given the latter testimony and ap pellant’s ow n admission w hich, according to appellant, “s olidified the Sta te’s case as only a confess ion can,” we cannot s ay tha t there exists a reasonable pr obability that the outcome w

ould have di ffered had counsel done what appel lant says he should havedone.

Issue Four –

Cumulativ

e Effect of

Errors In his last issue, appell antcontends that there is a reasonable pr obability that the outcomeof the trial w ould have di ffered without t he cum ulative effect ofthe errors addressed in th e first three i ssues. We overrule the issue. Simplyp ut, appe llant did not prove, by a preponderance of the evidence, that his counsel wa s deficient in any particular

respect. N or

did he prove, by the same standard
o f evid ence, that any

act or omiss ion about whi ch he complains, individ ually or cumulativel y, affected the outcome of the trial. Accordingl y, the judg ment of the trial court is affirmed.

Brian Quinn Justice Do not publish

.