Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-12-00826-CR

Alonzo HELMKE,

Appellant

v.

The

The STATE of Texas,

Appellee

From the 187th Judicial District Court, Bexar County, Texas

Trial Court No. 2012CR3874

Honorable Raymond Angelini, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: October 9, 2013

AFFIRMED

A jury found Alonzo Helmke guilty of robbery. After Helmke pled “true” to an 

enhancement allegation, the trial court sentenced him to 15 years’ imprisonment. In his sole issue 

on appeal, Helmke contends that he received ineffective assistance of counsel. We affirm the trial 

court’s judgment. 

BACKGROUND

Three individuals attacked Randy Marks in a downtown San Antonio parking lot. The 

attackers assaulted Marks and took his wallet and two metal chains from his neck. Thereafter, 
04-12-00826-CR

Marks pursued one of the assailants on foot and flagged down two San Antonio Police Department 

officers. The officers arrested Helmke after the two chains matching Marks’ description were 

found on Helmke’s person. Helmke was indicted for robbery and plead not guilty. A jury found 

him guilty of the charged offense. Helmke pled “true” to an enhancement allegation and was 

sentenced by the trial court to 15 years’ imprisonment. 

STANDARD OF REVIEW

To prevail on a claim of ineffective assistance of counsel, an appellant must prove two 

elements by a preponderance of the evidence: (1) deficient performance of trial counsel; and (2) 

harm resulting from that deficiency sufficient to undermine confidence in the outcome of the trial. 

Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte LaHood, 401 S.W.3d 45, 49 (Tex. 

Crim. App. 2013).

Deficient performance is that which “‘fell below an objective standard of reasonableness’ 

under prevailing professional norms and according to the necessity of the case.” Ex parte Moore, 

395 S.W.3d 152, 156 (Tex. Crim. App. 2013) (quoting Strickland, 466 U.S. at 687–88). We begin 

with a presumption that counsel’s actions were reasonable and based on sound trial strategy. Id. 

To overcome this presumption, an appellant must establish ineffectiveness that is “firmly founded” 

and affirmatively demonstrated in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. 

Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). A 

direct appeal is generally an “inadequate vehicle for raising such a claim because the record is 

generally undeveloped.” Id. Trial counsel “should ordinarily be afforded an opportunity to explain 

his actions before being denounced as ineffective.” Id. (quoting Rylander v. State, 101 S.W.3d 

107, 111 (Tex. Crim. App. 2003)). Absent that opportunity, deficient performance should be found 

only if the trial counsel’s conduct was “so outrageous that no competent attorney would have 

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engaged in it.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Garcia 

v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). 

Deficient performance is prejudicial to an accused when there is a “reasonable probability 

that the outcome of the trial would have been different but for counsel’s deficiency.” LaHood, 

401 S.W.3d at 50. “Reasonable probability” is “a probability sufficient to undermine confidence 

in the outcome” of the trial. Id. (quoting Strickland, 466 U.S. at 694).

DISCUSSION

Helmke contends that trial counsel rendered ineffective assistance of counsel because he: 

(1) did not understand the procedure for issuing a subpoena; (2) misstated the legal definition of 

robbery during voir dire; (3) failed to object to hearsay; (4) called an adverse witness to testify; 

and (5) requested an instruction for a lesser-included offense of theft. We turn to each allegation 

of ineffective assistance, noting that the two elements of Strickland need not be analyzed in any 

particular order. Ex parte Martinez, 330 S.W.3d 891, 900 n.19 (Tex. Crim. App. 2011). “An 

appellant’s failure to satisfy one prong of the Strickland test negates the court’s need to consider 

the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

A. Failure to Subpoena Jewelry

Helmke contends that his trial counsel did not know the procedure for issuing a subpoena 

duces tecum in order to obtain the chains to use as evidence at trial. On the night of the robbery, 

the investigating police officers returned the stolen chains to the complainant, Marks. One chain 

was made of gold and the other of sterling silver. Marks wore the silver chain to court, and trial 

counsel had the chain admitted into evidence. The gold chain was no longer available to Marks 

and was never entered into evidence. However, the State did enter into evidence photographs of 

both chains taken the night of the incident. 

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We must consider an attorney’s decision to limit pre-trial discovery with “a great deal of 

deference to the attorney’s judgment, looking to the reasonableness of the decision in light of the 

totality of the circumstances.” Pratt v. State, No. 04-09-00070-CR, 2010 WL 546529, at * 6 (Tex. 

App.—San Antonio Feb. 17, 2010, pet. ref’d) (mem. op., not designated for publication). Trial 

counsel’s failure to issue a subpoena for the jewelry does not necessarily mean that trial counsel 

did not understand the procedure for doing so. Trial counsel may have intended to rely on the 

absence of the physical evidence to cast doubt on the sufficiency of the State’s photographic 

evidence of the chains. Thus, Helmke has not overcome the presumption that trial counsel acted 

reasonably and in accordance with a sound strategy. 

Moreover, Helmke has failed to prove that trial counsel’s alleged lack of knowledge of the 

subpoena procedure was prejudicial. Even if trial counsel had issued a subpoena, the record does 

not establish that the presence of the gold chain at trial would have affected the outcome of the 

trial. Therefore, Helmke has failed to prove ineffective assistance with respect to trial counsel’s 

failure to subpoena the jewelry.

B. Misstatement of the Legal Definition of Robbery

Next, Helmke contends that trial counsel rendered ineffective assistance by misstating the 

legal definition of robbery during voir dire because trial counsel incorrectly stated that a completed 

theft was an element of robbery.1

 Helmke points to the following exchange between trial counsel 

and a venireperson:

COUNSEL: So if you’re not sure that an item was taken . . . but everything else was 

proven, how would you find the Defendant?

1 “No completed theft is required in order for the proscribed conduct to constitute the offense of robbery under [TEX.

PEN. CODE ANN. § 29.02].” White v. State, 671 S.W.2d 40, 41 (Tex. Crim. App. 1984) (en banc). Rather, a robbery 

is committed when: “. . . in the course of committing theft as defined in Chapter 31 and with intent to obtain or 

maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) 

intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” TEX. PEN. CODE 

ANN. § 29.02(a) (West 2011).

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04-12-00826-CR

VENIREPERSON: The trial is about the item taken; right? If you’re not sure, then he’s 

innocent.

COUNSEL: Exactly. The trial is about the item being taken. It’s a robbery case.

Trial counsel must have a “firm command” of the governing law in the case. Ex parte 

Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982). Counsel’s misunderstanding of the law 

can never be considered a sound trial strategy. Garcia v. State, 308 S.W.3d 62, 75 (Tex. App.—

San Antonio 2009, no pet.). However, we must consider an alleged misstatement of law in the 

context of trial counsel’s other statements. Drew v. State, 743 S.W.2d 207, 220 (Tex. Crim. App. 

1987). The record indicates that at the time of the exchange with the venireperson, trial counsel 

was using a demonstrative that appears to have explained the elements of robbery. The record is 

silent, however, as to the exact substance of the demonstrative. In the absence of the 

demonstrative, we are unable to put trial counsel’s alleged misstatement of law in the context 

necessary to determine whether the statement was truly a misstatement of law. See Orchard v. 

State, No. 14-00-00494-CR, 2001 WL 1013412, at*5 (Tex. App.—Houston [14th Dist.] Sept. 6, 

2001, no pet.) (mem. op., not designated for publication) (no ineffective assistance where alleged 

misstatement of law by trial counsel was considered in the context of subsequent statements). 

Accordingly, we cannot determine whether trial counsel’s performance was deficient with respect 

to the alleged misstatement of law.

Assuming, without deciding, that trial counsel’s alleged misstatement of the law was 

deficient performance, Helmke has still failed to prove he was prejudiced by the alleged 

misstatement. See Cox v. State, 389 S.W.3d 817, 820 (Tex. Crim. App. 2012) (the prejudice 

component of Strickland is not met every time the jury receives incorrect information). The jury 

was properly instructed on the statutory definition of robbery in the jury charge and the trial court 

specifically instructed the jury to wholly disregard statements of law made by counsel that were 

not in harmony with the law as stated in the charge. Rangel v. State, 179 S.W.3d 64, 75 (Tex. 

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App.—San Antonio 2005, pet. ref’d) (trial counsel’s misstatement of law not prejudicial where 

jury was correctly instructed on the law in the jury charge). In addition, the State provided the 

jury with the proper statutory definition of robbery during voir dire, and trial counsel subsequently 

referred to the State’s definition. Thus, Helmke has failed to prove that trial counsel’s 

misstatement of the legal definition of robbery amounted to ineffective assistance of counsel. 

C. Failure to Object to Hearsay / Non-Responsive Statements

Helmke also contends that trial counsel rendered ineffective assistance by failing to object 

to hearsay evidence and to statements that were non-responsive. Specifically, Helmke contends 

that the trial testimony of the two police officers, included hearsay statements. Helmke also 

contends that hearsay was contained in State’s Exhibit 18, a SAPD property release form.

“In the absence of a developed evidentiary record which adequately reflects the motives 

behind counsel’s action and inaction, it is extremely difficult to prove that counsel’s performance 

was deficient.” Gaines v. State, No. 04-05-00804-CR, 2006 WL 3611811, at*3 (Tex. App.—San 

Antonio Dec. 13, 2006, no pet.) (mem. op., not designated for publication). Helmke argues that 

trial counsel’s failure to object could not logically be a sound strategy because it allowed evidence 

to be admitted which undermined the defense’s position. However, when the record is silent as to 

why counsel did not make an objection to hearsay, we may not speculate as to counsel’s reasoning 

or strategy. Thompson, 9 S.W.3d at 814; Infante v. State, 397 S.W.3d 731, 739 (Tex. App.—San 

Antonio 2013, no pet.) (failure to object to alleged hearsay testimony of police officers not 

deficient performance when record was silent as to trial counsel’s reasoning or strategy); Moreno 

v. State, No. 04-12-00720-CR, 2013 WL 3963709, at*3 (Tex. App.—San Antonio Jul. 31, 2013, 

no pet.) (mem. op., not designated for publication) (failure to object to report containing alleged 

hearsay not deficient performance when record was silent as to trial counsel’s reasoning or 

strategy); McDonnel v. State, Nos. 01-09-00084-CR, 01-09-00085-CR, 2009 WL 4359064, at *2 

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n.3 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, pet ref’d) (mem. op., not designated for 

publication) (trial counsel’s failure to object to non-responsive answer presumed reasonable trial 

strategy where record was silent).

In addition, we cannot conclude that trial counsel’s failure to object to the alleged hearsay 

was deficient performance when the statements in question were likely admissible as hearsay 

exceptions. To prove ineffective assistance, an appellant must show that the trial court would have 

committed error in overruling the objection. Ex Parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. 

App. 2011). A review of the entire record indicates that the statements by Marks which Helmke 

contends are hearsay were made while Marks was still bleeding from the attack and while he was 

“frantic,” “yelling,” and “frightened.” The officers’ testimony regarding these statements, 

therefore, would likely have been admissible as excited utterances. 2

 Likewise, the SAPD property 

release form would likely have been admitted under the business records exception to the hearsay 

rule. 3 As trial counsel was not required to make a futile objection, his failure to object to this 

evidence was not deficient performance. Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 

1991) (en banc); Solis v. State, No. 04-97-00426-CR, 1999 WL 248951, at*5 (Tex. App.—San 

Antonio Apr. 28, 1999, no pet.) (mem. op., not designated for publication) (not ineffective 

assistance when counsel’s hearsay objection would have been futile).

Moreover, trial counsel’s failure to object to the alleged hearsay statements cannot be said 

to have prejudiced Helmke when all of the declarants provided testimony at trial cumulative of the 

alleged hearsay statements. “Improper admission of evidence does not constitute reversible error 

if the same facts are proved by other, properly admitted evidence.” Maranda v. State, 253 S.W.3d 

2 An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the 

stress of the excitement caused by the event or condition.” TEX. R. EVID. 803(2). 3 See TEX. R. EVID. 803(6).

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762, 769 (Tex. Crim. App. 2007) (citing Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 

1986)); Bryant v. State, 282 S.W.3d 156, 163 (Tex. App.—Texarkana 2009, pet. ref’d) (applying 

Maranda to a claim of ineffective assistance of counsel). The testimony of the officers regarding 

Marks’ statements added no new details to Marks’ testimony at trial. Accordingly, even assuming 

the trial court would have excluded the alleged hearsay statements, there is no reasonable 

probability that the outcome of the trial would have been any different. See Pacheco v. State, No. 

04-11-00036-CR, 2012 WL 566072, at*3 (Tex. App.—San Antonio Feb. 15, 2012, no pet.) (mem. 

op., not designated for publication) (claim of ineffective assistance failed for lack of prejudice 

where officer’s alleged hearsay statements were cumulative of the complainant’s testimony). 

D. Adverse Witness Testimony

Next, Helmke contends that his trial counsel provided ineffective assistance by calling 

Detective Randy Resendez as a witness and asking the court’s permission to treat the witness as 

adverse. After the trial court denied this request, Helmke contends that trial counsel improperly 

asked leading questions of the witness.

First, it appears that trial counsel had several strategic reasons for calling Resendez. The 

record indicates that trial counsel was attempting to impeach Marks with contradictory testimony 

from Resendez. Additionally, trial counsel elicited testimony from Resendez that implied that a 

blood spot on Helmke’s shirt was never tested for DNA. Lastly, trial counsel’s request to treat 

Resendez as an adverse witness is not evidence of deficient performance. Helmke has failed to 

overcome the presumption that trial counsel was acting reasonably in calling Resendez and asking 

the court to treat Resendez as an adverse witness. See Bond v. State, No. 02-05-446-CR, 2007 WL 

79694, at*2 (Tex. App.—Fort Worth Jan. 11, 2007, no pet.) (mem. op., not designated for 

publication) (appellant failed to overcome presumption of reasonableness where trial counsel 

elicited testimony from probation officer regarding a pending criminal charge).

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In addition to Helmke’s inability to show deficient performance, Helmke also has not 

demonstrated that the outcome of the trial would have been any different without Resendez’s 

testimony. Helmke points to no specific testimony that he considers harmful. Rather, Resendez’s 

testimony could actually have helped Helmke’s case as it created at least some doubt as to whose 

blood was found on Helmke’s shirt. Accordingly, Helmke has failed to show how calling 

Resendez as a witness amounted to ineffective assistance of counsel.

E. Lesser Included Offense of Theft

Lastly, Helmke argues that his trial counsel rendered ineffective assistance of counsel by 

requesting that the jury charge include an instruction for the lesser-included offense of theft. 

Helmke contends that this request undermined trial counsel’s apparent strategy of arguing that a 

completed theft never occurred. Again, when faced with a silent record, we cannot speculate as to 

trial counsel’s strategy. Therefore, Helmke has failed to overcome the presumption that his trial 

counsel acted reasonably. See Menefield, 363 S.W.3d at 593.

Moreover, Helmke has not demonstrated how being denied an instruction for which he was 

not entitled had a reasonable probability of changing the outcome of the trial. “The evidence 

supports an instruction on a lesser-included offense if it permits a rational jury to find the defendant 

guilty only of the lesser-included offense.” Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 

2011). Here, the evidence of Helmke’s assaultive conduct supported an instruction for robbery, 

not theft alone. Darnell v. State, No. 14-11-00437-CR, 2012 WL 626318, at*3 (Tex. App.—

Houston [14th Dist.] Feb. 28, 2012, no pet.) (mem. op., not designated for publication) (no 

prejudice when trial counsel requested a lesser included offense that was unavailable to defendant). 

Accordingly, Helmke has failed to prove that his trial counsel rendered ineffective assistance by 

requesting the lesser-included offense instruction.

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CONCLUSION

Because Helmke has failed to show that his trial counsel rendered ineffective assistance, 

the trial court’s judgment is affirmed. 

Catherine Stone, Chief Justice

DO NOT PUBLISH

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