AFFIRMED and Opinion Filed August 19, 2019 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00126-CR SILVINO RICARDO AREVALO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F-1624895 

### MEMORANDUM OPINION Before Justices Bridges, Brown, and Nowell Opinion by Justice Bridges A jury convicted appellant Silvino Ricardo Arevalo of capital m urder (murder in the course of committing or attempting to co mmit robbery), and the trial c ourt sentenced him to life imprisonment without the possibility of parole. Appellant rais es nine issues on appeal. In his first two issues, he challenges the sufficiency of the evidence to su pport his conviction. He challenges the admission of extraneous offenses in issues three, four, and five. In his sixth issue, he challenges the admission of jail phone calls that the State allegedly inte rcepted in violation of his constitutional rights. In his seventh issue, he asserts he suf fered egregious harm when the trial court failed to sua sponte instruct the jury on lack of volunta ry act. He alleges in his eighth issue that his constitutional rights were violated when the trial cou rt sentenced him to mandatory life–2– imprisonment without the possibility of parole. Finally, he co ntends he received ineffective assistance of counsel. We affirm. Background On the evening of November 10, 20 16, Tanisha Macias hung out at the home of David Martinez and his girlfriend Adrianna Ortega. Appellant, a frie nd of Martinez, was also hanging out. Macias, who was an exotic dancer at the time, was not wor king that night and mentioned she was looking to make some extra money. Martinez suggested Lupit as, a bar in Garland known as a location where men paid women for drinking and spending time with them. The foursome left for Lupitas in Ortega’s black Chrysler 300. When they arrived, Macias and Ortega went in first. The men followed about ten minutes later. Around 9 p.m., Daniel and Ishmael Mendez arrived at Lupitas, or dered drinks, and rented a pool table. As they finished their last game, Macias approac hed them and started flirting. Ishmael continued talking with her and at some point, he slappe d her bottom. They were not aggressive towards her, and sur veillance video did not show her reacting angrily towards the men after the incident. However, be cause she was drinking and “ha[ d] a memory of something happening” to her, she “got angry after a while.” After a litt le more conversation, she demanded money from Ishmael for the time she spent with them. She could not remember exactly what she said, but something like, “[I]f you’re going to touch my bottom , at least give me money or something.” Ishmael had no interest in her continued advances, and the men decided to leave. Macias became “very aggressi ve” and followed them out. Roberto Negrete was the security guard for Lupitas and describe d the night as starting out “calmly.” However, when Daniel an d Ishmael were leaving, Negre te observed Macias following them. Negrete told Ishmael, “I’m watching y’all, and I see tha t they’re the ones getting aggressive.”–3– Macias threw her beer on Ishmael. Despite her behavior, Ishmae l remained calm, ignored her, and left. Negrete ordered Macias to leave; however, she i gnored him. He grabbed her arm, and Macias hit him in the eye as he forced her to leave. Orteg a also hit him. Negrete then used pepper spray in his continued efforts to get the women off the property. Macias testified that although she felt violated by Ish mael’s actions, she did not ge t angry until Negret e got involved. Negrete heard Daniel or Ishmael yell something like, “That’s wh at you get for hitting people,” as they drove away in Daniel’s white car. It was not said in anger but in a “teasing” manner. Macias allegedly heard one of the brothers yell, “You’ re dead, B.” No one else heard the threat, and she kept it to herself. Macias wanted to get the white car’s license plate number so sh e could file a police report. She also threatened to sue the bar. She admitted she was not r eally going to sue the bar, but was irritated and “just saying that stuff.” She did not remember t elling Martinez and appellant to drive after the white car. Rather, she remembered screaming and cryi ng from the pepper spray. The foursome got in Ortega’s black car to leave. Appellant was in the front passenger seat and Macias sat behind him. Martinez drove while Ortega sat beh ind him. Surveillance video showed the two cars left Lupitas within a few minutes of each o ther. Macias could not tell where they were driving. As Daniel and Ishmael approached the intersection of Ferguson a nd Gus Thomasson, Daniel heard a car “going fast and stopped really fast, real ha rd.” The black car stopped to the left of their car, and Daniel heard gunshots. Bullets missed his he ad by inches. Daniel identified appellant as the man wh o pulled the trigger. Macias recalled hearing two gunshots. She ducked and grabbed O rtega because she thought they were being shot.–4– Daniel drove away quickly, but M artinez continued in pursuit. Daniel estimated they were driving over seventy or eighty miles per hou r. Daniel eventual ly wrecked his car into another car that turned in front of him. The passenger of that vehicle des cribed the impact as “very hard and violent.” Daniel testified to the following events surrounding the shooti ng. Martinez approached and pulled Daniel out of the car. Appellant pulled Ishmael fro m the passenger side. Martinez demanded Daniel’s gold chains, wh ich he surrendered. Martinez also took a gold ring from him. Martinez then pistol-whipped Da niel in the head. About the sam e time, Daniel heard a gunshot. When Daniel checked on Ishmael, he saw a gunshot wound to his h ead and Ishmael died within seconds in Daniel’s hands. Although Daniel did not see appella nt shoot Ishmael, Daniel saw appellant running away from wher e Ishmael died. The men return ed to the car and drove away. When Daniel talked to detectives later that night, he told them the shooter “had to be somebody that followed us from Lupitas.” Macias testified she felt their car stop and heard both front d oors open. Neither man said anything about what they planne d to do. She then heard one gun shot. Macias never saw anything, but recalled the men returning and driving her home. She repea tedly asked them what happened, but they never answered her. Katelyn Sorrels lived in an apartment near the accident scene. About 1 a.m., she was leaving her complex and heard the car crash. She called 911. She saw two men jump out of a black car. One ran to the passenger’s side and the other ran t o the driver’s side. She “heard [] the bang and seen the flash in my r ear view,” but did not see any i nteraction between the men. Isabel Rivera was asleep in her apartment when the loud crash f rom the car wreck woke her up. When she looked out her window, she saw two men approa ching the white car, one on the passenger side and one on the driver’s side. She described the man that walked to the driver’s side–5– as “fat” and the other one as “skinny.” As she walked from her window to the fr ont door to get a better look, she heard the gunshot. She did not see who fired the gun or either man with a gun in their hand as they returned to the black car. The “fat” man go t in the driver’s side, and the “skinny” one got in the passenger’ s side of the car. Kathryne Juarez, who lived nearby, asked a “skinny guy” if he n eeded any help, but he did not answer her. Instead, he walked back to the car and left. She did not see this man with a gun and did not pay attention to which s ide of the car he went to. Detective Brian Worsham served as lead investigator. He descri bed the scene upon arrival as very chaotic. He observed the wrecked cars, a deceased indi vidual, a distraught relative, and numerous witnesses. Once he assessed the scene, he assisted in transporting witnesses to the police station for interviews. Once he learned the incident began at Lupitas, he went to the bar and obtained surveillance video. He also reviewed reports from the previous night and learned of Negrete’s assault. Detective Worsham followed up on that incid ent and recovered a cell phone. From the cell phone, he started i dentifying potential suspects. The day after the murder, Macias said appellant asked Martinez if she “needed to be green lit,” meaning have a hit out on her because of her knowledge of the events. She said she was not going to talk to anyone or ask questions. Detectives interviewed Macias, Ortega, and Martinez, but they denied seeing appellant with a gun or firing a gun. Eve ntually, all four were transfer red to Lew Sterrett jail. While they were waiting, Martinez told Mac ias appellant planned to confess to everything. Based on the initial investiga tion, appellant and Martinez were charged with murder. Detective Worsham acknowledged “the girls are kind of what star ted this whole incident,” but they were not involved in anything that happened after they left Lup itas. The murder charge was upgraded to a capital crime after Daniel told inv estigators the y stole his neck chains. Detective–6– Worsham also heard a 911 call in which one of the men said, “Gi ve me that bread.” On the street, “bread” referred to money. Dr. Reade Quinton, the deputy chief medical examiner, performedIshmael’s autopsy. He determined the gunshot wound to I shmael’s forehead was “atypica l.” Because t he wound did not have any gunshot residue or soot within it, he surmised the gun was not fired at close range, meaning it was not a contact gunshot wound. He could not estim ate the distance from which the gun was fired because detectives n ever recovered the murder wea pon. However, he believed it was likely fired from more than a few feet from Ishmael’s head. Dr. Quinton classified the manner of death as homicide. The jury convicted appellant of capital murder. The trial cour t sentenced him to mandatory life imprisonment without the possibility of parole. This appe al followed. Sufficiency of the Evidence In his first two issues, appellant argues the evidence is lega lly insufficient to support his conviction because the State failed to establish his principal or party liability as the shooter or his specific intent to commit capital murder. The State responds t he evidence is sufficient to prove appellant’s identity as the s hooter and his intent to commit ca pital murder. When reviewing the sufficiency of the evidence, an appellate c ourt considers all of the evidence in the light most favorable to the verdict to determin e whether the jury was rationally justified in finding guilt b eyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 318– 19 (1979); Merritt v. State , 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Appellate courts are required to determine whether any rational juror could have fou nd the essential elements of the offense beyond a reasonable doubt. See Jackson , 443 U.S. at 319. An appellate court is required to defer to the jury’s credibility and weight determinations be cause the jury is the sole judge of the witnesses’ credibility and the w eight to be given their testimo ny. Id . All evidence, whether–7– properly or improperly admitted, will be considered when review ing the sufficiency of the evidence. Id

. If the record supports conflicting inferences, we must presume the factfinder resolved the conflicts in favor of the State and defer to that determination

. Id . at 326. Further, direct and circumstantial evidence are treated equally: “Circumstantial ev idence is as probative as direct evidence in establishing the guilt of an actor, and circumstant ial evidence alone can be sufficient to establish guilt.” Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Texas Penal Code section 19.03(a)(2) states that a person comm its capital murder if he commits murder, as defined unde r section 19.02(b )(1) (intention ally or knowingly causing the death of an individual), and he intentionally commits the murde r in the course of committing or attempting to commit a robbery (intentionally, knowingly, or re cklessly causing bodily injury to another in the course of committing theft with intent to obtain or maintain control of property).
T EX

. P ENAL C ODE A NN . §§ 19.03(a)(2), 29.02. Intent to commit murder may be inferr ed by circumstantial evidence, inclu ding a defendant’s acts, words, a nd the extent of a vi ctim’s injuries. Ex parte Weinstein , 421 S.W.3d 656, 668 (Tex. Crim. App. 2014). Evidence is suff icient to prove an underlying robbery for purposes of a capital murder convicti on if it shows the defendant formed an intent to obtain or maintain control of property before or c ontemporaneously with the murder. Shuffield v. State , 189 S.W.3d 782, 791 (Tex. Crim. App. 2006). If there is evid ence from which a rational jury could conclude b eyond a reasonable doubt “that the defendant formed the intent to obtain or maintain control of the victim’s property either befo re or during the commission of the murder, then the [prosecution] has proven that the murder occur red in the course of robbery.”
Alvarado v. State , 912 S.W.2d 199, 207 (Tex. Crim. App. 1995).–8– Appellant has not challenged the sufficiency of the evidence o f the underlying robbery, but instead challenges his identity as the shooter and his intent t o commit murder. We consider each argument in turn. Appellant first argues the evidence is insufficient to establis h his identity as the shooter because no one testified to seeing him shoot a gun, witness tes timony was inconsistent with the forensic evidence, and Macias’s hearsay testimony was inherentl y unreliable. The State may prove a defendant’s identity by either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence. Gardner v. State , 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). The absence of an in-court identificat ion does not in and of itself render the evidence insufficient on the issue of identity. Espinoza v. State , 571 S.W.3d 427, 434 (Tex. App.—Fort Worth 2019, pet. ref’d). Macias testified that when the foursome left Lupitas, appellant was sitting in the front passenger seat. They drove quick ly and she recalled hearing tw o gunshots. Her testimony aligns with Daniel’s testimony that a black car chased them and two sh ots were fired towards him from the passenger side of the blac k car. He identified appellant a s the person who shot at him. When the black car stopped, Macias heard the front doors open a nd both men get out. Witnesses that heard the car wreck testified two men exited the car. The “fat one” went to the driver’s side of Daniel’s car and the “skinny one” went to the passenger side. One witness identified the “fat one” as t he driver of the black car. Daniel testified Martinez had a gun, but he only used it to pis tol-whip him. The jury could infer that the one gunshot sever al witnesses heard after the me n exited the car came from appellant’s gun. Daniel saw appellant running away from where Ishmael died. One witness testified the “skinny one” ran to the passenger side of the bla ck car after the shooting.–9– Ramirez later told Macias that appellant accidentally shot the gun. During a subsequent jailhouse call, Martinez said app ellant needed to “step up” and take responsibility for what he did. In another jailhouse call, appe llant said the gun went off acci dentally. The day after the murder, appellant threatened to “green light” Macias if she talked about the shooting. Evidence of threats may establish a “consciousne ss of guilt”; therefore, the jury could reasonably infer he threatened her because he was the sho oter. See Torres v. State , 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.); see also Rocha v. State , No. 05-15-01401- CR, 2017 WL 85420, at *2 (Tex. App.—Dallas Jan. 10, 2017, no pe t.) (mem. op., not designated for publication). Appellant emphasized Daniel was never shown a line up to confir m which man pistolwhipped him. However, Daniel to ld detectives the passenger in the car began shoo ting at them at the intersection of Ferguson and Gus Thomasson. A video from m oments before they approached the intersection showed defenda nt in the front passenger seat. The jury was free to weigh any conflicting evidence and disbelie ve that appellant and Martinez switched positions in the car, meaning Martinez was the passenge r who shortly thereafter exite d the passenger side of the car and killed Ishmael. Based on Daniel’s account and other witness statements, Martine z was the man who pistolwhipped Daniel. Thus, the jury could reasonably infer appellan t shot Ishmael. It was within the province of the jury, as the fact finder, to weigh and evaluate the credibility of the evidence, and we will not substitute our judgment for that of the jury. Jackson , 443 U.S. 319. Accordingly, the evidence is legally sufficient to support the conclusion that a ppellant murdered Ishmael. Appellant’s first issue is overruled.–10– We now consider whether the evidence is sufficient to establis h appellant intended to kill Ishmael. Appellant claims the forensic evidence along with tes timony that the shooting was accidental negates specific intent. By its nature, a culpable mental state must generally be infer red from the circumstances.
Nisbett v. State , 552 S.W.3d 244, 267 (Tex. Crim. App. 2018). The culpable men tal state for murder can be inferred from a defendant’s motive or the extent of the victim’s injuries. Id . A jury may also consider the acts, words, and conduct of the accused, and the method of committing the crime. Hebert v. State , No. 05-02-00208-CR, 2003 WL 1870558, at *2 (Tex. App.—Dallas Apr. 14, 2003, no pet.) (mem. op., not designated for publication). The circumstances accompanying the use of a deadly weapon may s upport a finding that a defenda nt had the specifi c intent to cause the death of another. Cordova v. State , 698 S.W.2d 107, 112 (Tex. Crim. App. 1985). If a deadly weapon is used in a deadly manner, the inference is almost conc lusive the defendant intended to kill. Id . (citing Godsey v. State , 719 S.W.2d 578, 581 (Tex. Cri m. App. 1986)). Here, it is undisputed Ishmael died from a single gunshot woun d to the head. Appellant’s use of a deadly weapon in a deadly manner is a strong inference of his intent to kill Ishmael. Id

. Further, during the recorded 911 call, the brothers were told “ You’re dead B” and ordered to “Give me that money. Hurry up, I’ll beat yo ass. Hurry up ho. Give me that bread.” Within seconds, there was a gunshot. Then a voice said, “yea wassup.” The jur y could infer from these words appellant intended to kill in the course of committing or attem pting to commit robbery. To the extent the jury heard evidence that the shooting was ac cidental, the jury was free to disbelieve such testimony. The jury could have believed the su ggestion that the shooting was accidental was self-serving. Moreover, the medical examiner te stified Ishmael was not shot at close range thereby negating the likelihood that the gun fired accidentally during a struggle between the two men.–11– To the extent the jury saw a picture of a bullet hole in the b ack of Daniel’s car and another on the side of the car that was consistent with being fired fro m behind, such forensic evidence does not discredit Daniel’s testimony that he saw appellant shooting at them from the passenger side. Rather, we assume the jury resolv ed such conflict in evidence i n favor of the State. Jackson , 443
U.S. at 319. Viewing the evidence in the light most favorable to the verdic t, a rational fact finder could have found beyond a reasonable doubt that appellant, in the cou rse of robbing or attempting to commit robbery, intended to kill Ishmael. We overrule appellan t’s second issue.
Extraneous Offenses In issues three, four, and five, appellant argues the trial co urt erroneously admitted extraneous offenses that were i rrelevant and unduly prejudicial in violation of his rights to due
process. See T EX

. R S E VID . 403, 404. The extraneous offenses related to appellant’s gan g affiliation, his drug use, and his threat to “green light” Maci as. The State responds appellant failed to preserve his issues for review. To preserve an issue for appellate review, a party must timely object, stating the specific legal basis for the objection. T EX

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. P. 33.1(a). The failure to object in a timely and specific manner during trial forfeits com plaints about the admissibility of evidence. Saldano v. State , 70 S.W.3d 873, 889 (Tex. Crim. App. 2002). Appellant concedes he failed to object to Detective Vann’s testimony regarding his affiliation with the gang unit, which the jury could have inferred meant appellant was a gang member. Appellant also concedes he failed to object to Macias’s testimony regarding appellant’s drug use. Thus, he failed to p reserve his issues for review. See, e.g., Smith v. State , 595 S.W.2d 120, 123 (Tex. Crim. App. 1980) (“failure to objec t waives any error in admission of evidence te nding to show an extraneous of fense”). Appellant’s third and fourth issues are overruled.–12– Appellant objected to Macias’s t estimony that she felt “intimid ated because [Martinez] had told me that he had said something about green lighting me if I said anything” as hearsay. On appeal, he challenges the statement under rules 403 and 404. A defendant’s objection on appeal must comport with the speci fic objection made at trial. Pena v. State , 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). A complaint is not preserved if the legal ba sis of the complaint raised on appeal varies from the complaint made at trial. Lovill v. State , 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009). Because appellant’s argument on appeal does not comport with his trial objection, he failed to preserve error, if any, for review. T EX

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. P. 33.1; Grubbs v. State , No. 05-15-01429-CR, 2016 WL 5851921, at *1–2 (Tex. App.—Dallas Oct. 6, 2016, no pet .) (mem. op., not designated for publication). We overrule appellant’s fifth issue.
Admission of Jail Phone Calls In his sixth issue, appellant contends his rights under the Fo urth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution (and corresponding Te xas constitutional provisions) were violated when the trial court admitted illegally intercept ed jail phone calls. In one call, appellant claimed the gun fire d accidentally. In another call, Martinez told someone appellant needed to take responsibility for his actions. The State respo nds appellant failed to preserve his issue for review, and the substance of his complaint was solici ted by defense counsel’s attempt to attack the State’s allegation t hat he intentionally shot Ismael

. An appellant cannot make an appe llate error of an action he in duced. See Vennus v. State , 282 S.W.3d 70, 74 (Tex. Crim. App. 2009). Here, the State did not introduce the phone calls or discuss the phone calls during its case-in-chief. The phone ca lls were brought to the jury’s attention through defense counsel ’s cross-examination of Detect ive Worsham. More importantly, neither appella nt nor the State objected to t he testimony regarding the jail phone calls. To preserve an issue for appellate review, a party must timely object, stating the–13– specific legal basis for the objection. T EX

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. P. 33.1(a). Because appellant failed to object to the testimony, he failed to preserve error, if any, for revi ew. We overrule appellan t’s sixth issue. Jury Charge Error In his seventh issue, appellant argues he suffered egregious h arm when the trial court failed to sua sponte submit an instruction on lack of voluntary act. The State responds, assuming the trial court erred, the record does not establish egregious harm. We review alleged charge error by considering t wo questions: ( 1) whether error existed in the charge; and (2) whether sufficient harm resulted from the e rror to compel reversal. Ngo v.
State , 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Appellant presented evidence the shooting at the site of the wr ecked vehicle was involuntary. Based on the evid ence, appellant contends the cou rt should have included a “voluntary act” instruction. See T EX

. P ENAL C ODE A NN . § 6.01(a) (“A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.”). Even assuming the trial court’s omission was error, because appellan t argues jury charge error for the first time on appeal, we can reverse his conviction only if the error caused him egregious harm.
Estrada v. State , 334 S.W.3d 57, 63 (Tex. App.—Dallas 2009, no pet.). Errors r esult in egregious harm when they affect the very basis of the case, deprive the d efendant of a valuable right, or vitally affect a defensive theory. Id . To make this determination, we examine the entire jury charge, the state of the evidence, the arguments of counsel, an d any other relevant information revealed by the record of the trial as a whole. Id

. As discussed in detail above in the sufficiency review of the e vidence, the jury could have reasonably concluded appellant did not accidentally shoot Ishma el. Daniel’s testimony belies such a conclusion. More importantly and perhaps even more persuasiv e, is the content of the 911 call in which the brothers were told they were dead shortly before t he shooting occurred. There was–14– no evidence in the record of a struggle prior to the shooting; therefore, there was no accidental discharge of the weapon. Defense counsel cross-examined witnesses and challenged the Sta te’s theory that appellant intentionally killed Ishmael. T hus, he was not denied presenta tion of a viable defensive theory. Moreover, the jury instructions provided that if the jury had a reasonable doubt that he was guilty of capital murder or aggravated robbery, it should find appella nt guilty of the lesser-included offense or acquit. Accordingly, considering the state of the e vidence, the jury charge, and the record as a whole, appellant did not suffer egregious harm from the alleged charged error. We overrule appellant’s seventh issue. Constitutionality of Mandatory L ife Imprisonment Without Parole In his eighth issue, appellant a rgues his mandatory life sente nce without parole is an unconstitutional sentence for capital murder and violates his r ights under the Eighth and Fourteenth Amendments of the Constitution as well as article I, sections 1 0, 13, and 19 of the Texas Constitution. He asserts his sentence imposes cruel and unusua l punishment without the opportunity to present mitigating evidence, “an archaic concept ” that “does not comport with evolving standards of decency.” The State responds the constit utionality of penal code section 12.31(a)(2) is settled, and appellant provides no reason to rec onsider it. See T EX

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NN . § 12.31(a)(2) (“an individual adjudged guilty of a capital fe lony in a case in w hich the state does not seek the death penalty s hall be punished by imprisonme nt in the Texas Department of Criminal Justice for . . . life without parole, if the individu al committed the offense when 18 years of age or older”). The Supreme Court has concluded an automatic life sentence with out parole does not violate the Eighth Amendment. See Harmelin v. Michigan , 501 U.S. 957, 994–96 (1991). Multiple courts, including this one, have continued to follow Harmelin , holding that the Eighth–15– Amendment does not guarantee ad ult defendants an individualized punishment hearing when sentenced to life in prison without the possibility of parole f or capital murder. See Kim , 2015 WL 1935948, at *6; see also Simms v. State , No. 06-18-00181-CR, 2019 WL 2479845, at *10 (Tex. App.—Texarkana June 14, 2019, pet. filed) (mem. op., not design ated for publication); Cormier
v. State , 540 S.W.3d 185, 193 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); Lewis v. State , 448 S.W.3d 138, 147 (Tex. App.—Hous ton [14th Dist.] 2014, pet. ref’d); Buhl v. State , 960 S.W.2d 927, 935–36 (Tex. App.—Waco 1998, pet. ref’d). Appellan t has not presented any new arguments to distinguish these cases other than arguing Harmelin is outdated and does not comport with “evolving standards of decen cy.” We overrule appellant’s eighth issue.
Ineffective Assistance of Counsel In his ninth issue, appellant argues his appointed counsel was not qualified for appointment pursuant to article 26.052 of the code of criminal procedure, a nd therefore, should have refused appointment to his case. Because counsel was not statutorily q ualified to take the case, appellant contends the face of the record demonstrates ineffective assist ance of counsel. Appellant further argues defense counsel performed deficiently because he failed to file any pretrial motions, including a motion for discovery under the Michael Morton Act. The State responds article 26.052 does not apply to his case, and the record fails to demonstrate any deficient conduct to support an ineffective assistance claim. The standard of review for evaluating claims of ineffective ass istance of counsel is set forth
in Strickland v. Washington , 466 U.S. 668, 687 (1984). Under the Strickland two-step analysis, a defendant must demonstrate that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id . at 687–88, 694; Nava v. State , 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). An appellant bears the burden of proving his claims–16– by a preponderance of the evidence. Jackson v. State , 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Failure to make the requi red showing of either deficien t performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). Appellate review of counsel’s rep resentation is highly deferent ial, and we must “indulge in a strong presumption that counsel’s conduct was not deficien t.” Nava , 415 S.W.3d at 307–08. To overcome this presumption, claims of ineffective assistance of counsel must be firmly founded in the record and affirmatively demonstrate the alleged ineffec tiveness. See Salinas v. State , 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). However, a reviewing c ourt will rarely be in a position to fairly evaluate the merits of an ineffective assistance of c ounsel claim on dir ect appeal because the trial record is usually undeveloped and inadequate to refle ct the motives behind trial counsel’s actions. Id . Rather, trial counsel should have the opportunity to explain his actions before being condemned as ineffective. See Rylander v. State , 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Therefore, when the record is silent as to trial counsel’s stra tegy, we assume counsel had a sound strategy, 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); see also Lopez
v. State , 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Appellant first argues defense c ounsel was deficient for faili ng to decline appointment to his case because at the time of defense counsel’s appointment, he was not on the list of those attorneys qualified to accept appointments. The State contends article 26.052 does not apply to appellant’s case. We agree. Article 26.052 states, “this arti cle establishes procedures in death penalty cases for appointment and payment of counsel to represent indigent defend ants at trial and on direct appeal and to apply for writ of certiorari in the United States Suprem e Court.” T EX

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NN . art. 26.052(a). Although the Stat e concedes the written reco rd does not contain a waiver of the death penalty, the trial record establishes that the State was not seeking the death penalty. The trial court informed the potential jurors during voir dire, “Th is is not a death penalty case. So I want to make sure you’re aware of that up front.” The State la ter reemphasized “death is not being considered in this case” while discussing punishment with the p otential jurors. And finally, the State indicated the death penalt y was not at issue during its c losing argument. The plain language of article 26.052 applies only to death pena lty cases. The State was not seeking the death penalty. Not hing in the record indicates def ense counsel believed the State was seeking the death penalty when he accepted the appointment. No thing in the record indicates appellant was misled by the State and believed the death penalt y was a possible punishment. Thus, the record does not support appellant’s claim that counsel’s pe rformance fell below an objective standard of reasonableness because he was unqualified to accept the appointment. See Salinas , 163 S.W.3d at 740 (claims of ineffective assistance of counsel must be firmly founded in the record and affirmatively demonstrate the alleged ineffectiveness). Be cause appellant cannot satisfy the first Strickland prong , his ineffective assistance of counsel claim based on article 26.052 fails. Appellant’s contention that couns el was ineffective because he failed to file pretrial motions likewise fails. In general, counsel’s failure to file pretrial motions does not result in ineffective assistance of counsel. See Martinez v. State , 449 S.W.3d 193, 208 (Tex. App.— Houston [1st Dist.] 2014, pet. ref’d). Rather, appellant must show a pretrial motion had merit and a ruling on the motion would have changed the outcome of the ca se. See Roberson v. State , 852 S.W.2d 508, 511 (Tex. Crim. App. 1993); see also Straight v. State , 515 S.W.3d 553, 565 (Tex. App.—Houston [14th Dist. ] 2017, pet. ref’d). Appellant has not identified any specific pretrial motion couns el should have filed other than “an absence of a written motion for discovery under the Mi chael Morton Act.” First, article–18– 39.14 does not require an attorney to file a discovery request, but instead states “as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection” of certain documents. T EX

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. A NN . art. 39.14. Further, appellant has not indicated what he could or should have received had cou nsel filed such a motion, how such evidence would have changed the outcome of the case, or that he was prejudiced in any way. Accordingly, appellant fails to show how counsel was deficient or articulate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland , 466 U.S. 668, 687; see also Hoffman v. State , No. 09-17-00172- CR, 2018 WL 5930308, at *8 (Tex. App.—Beaumont Nov. 14, 2018, p et. ref’d) (mem. op., not designated for publicatio n) (ineffective assistance of counsel claim failed because appellant made no showing trial counsel’s failu re to obtain discovery would ha ve changed outcome of trial or that it prejudiced her in any way). A ppellant’s ninth issue is over ruled.
Conclusion The judgment of the trial court is affirmed.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SILVINO RICARDO AREVALO, Appellant
No. 05-18-00126-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1624895. Opinion delivered by Justice Bridges. Justices Brown and Now ell participating.

Based on the Court’s opinion of t his date, the judgment of the trial court is AFFIRMED

. Judgment entered August 19, 2019