ORIGINAL

IMIS

NO. PDIN THE

COURT OF CRIMINAL APPEALS

FOR THE STATE OF TEXAS

3ECHMR

OCT 29 2015

Absi Acr. „ w.wi

From Cause No. 11-13-00220-CR

11th Court of Appeals, Eastland, Texas

MICHAEL DEWAYNE CARELL ,

PETITIONER FILED IN

COURT OF CRIMINAL APPEALS

v- 0CT29 2.;5

the state of Texas, Abel Acosta, Clerk

APPELLEE

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PETITIONER PRO-SE: MICHAEL DEWAYNE CARELL #1863720

ALLRED UNIT

2101 FM 369 N.

Iowa Park, Tx. 76367
; TABLE OF CONTENTS

Names of all interested parties 2

Statement regarding Oral Argument 4

Statement of Procedural History 5

Statement of the Case 5

Questions For Review 8

I. DID THE 11th COA ERROR IN AFFIRMING THE APPELLANT'S

CONVICTION BASED ON A DECISION THAT CONFLICTS WITH THE

DECISION WITH ANOTHER COA'S ON THE SAME MATTER?

II. WHETHER THE 11th COA DECIDED AN IMPORTANT QUESTION OF STATE

OR FEDERAL LAW THAT HAS NOT BEEN, BUT SHOULD BE SETTLED BY

THE COURT OF CRIMINAL APPEALS?

III. WHETHER THE 11th COA DECIDED AN IMPORTANT QUESTION OF

STATE OR FEDERAL LAW IN CONFLICT WITH THE APPLICABLE.

DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE

UNITED STATES SUPREME COURT?

IV. WHETHER THE DECISION RENDERED BY THE 11th COA IS IN

CONFLICT WITH THIS HON. COURT'S RULING SET FORTH

IN: MENDEZ V. STATE, 138 S.W.3d 334 (Tex.Crim.App.2004),

THAT THE ISSUANCE OF AN ORDER OF REFERRAL TO A MAGISTRATE

UNDER TEX.GOV'T CODE ANN. § 54.657, IS A SYSTEMIC RIGHT

THAT ACCORDING TO THE TEXAS COURT OF CRIMINAL APPEALS

CANNOT BE WAIVED OR FORFEITED?

[Tex.R.App.Proc. Ann. 66.3 (a), (c) and (f) (Vernon Pam. 2012)]

Reasons For Review 8

Prayer For Relief 1°

Certificate of Service 11

it/Ves/ti/K- OfW"A? *^ -ftttr (/+•* CM

3.
NO. PDIN THE

COURT OF CRIMINAL APPEALS

FOR THE

STATE OF TEXAS

MICHAEL DEWAYNE CARELL,

PETITIONER

V.

THE STATE OF TEXAS,

APPELLEE

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Comes now-Appellant, Michael Dewayne Carell, TDC#1863720,

Pro-Se, and respectfully urges this Court to GRANT discretionary

review in the above-numbered cause.

STATEMENT REGARDING ORAL ARGUMENT

The disposition of this case could have a substantial impact

on the appellate review of alleged errors. Should the Court desire

oral argument, Appellant requests that this Court appoint counsel

for such matters and to appear and discuss the issues with the Court.
STATEMENT OF PROCEDURAL HISTORY

Appellant, Michael Dewayne Carell, was indicted by a Grand

Jury for Tarrant County, Texas, for the offense of Aggravated

Robbery. See Tex.Penal Code Ann. § 29.03(a)(2) (West 2011). Appellant

with counsel, entered a plea of not guilty to the charge in the

indictment and the case was tried to a jury. The jury heard the

evidence and argument of counsel and found Appellant guilty as .

charged. Appellant pleaded true to the enhancement allegation and

the court sentenced Appellant to (50) fifty-years confinement in

the Texas Department of Criminal Justice, Institutional Division,

with no fine.

Appellant gave notice of appeal and the parties filed briefs.

On July 30, 2015 the 11th Court of Appeals affirmed Appellant's

conviction and sentence. Carell v. State, (not designated for

publication). No Motion-for-Rehearing was filed. This Petition

is being filed with the Texas Court of Criminal Appeals within

the statutory time limits and deadline set for October 30, 2015.

STATEMENT OF THE CASE

The Court of Appeals summarized the record regarding the offense

as follows:

Background Facts

Cody Dale Smith is an acquaintance of Appellant. Smith

testified that he, Appellant and others were up all night doing

drugs, including methamphetamine. Smith said that he drove Appellant

to a home around 6:30a.m. purportedly to borrow money from

Appellant's aunt so that Smith and Appellant could rent a motel

room. Smith testified that he and Appellant entered the home through

an unlocked door. After he saw Appellant pull out a gun, Smith

returned to his car. The home actually belonged to C.B. C.B.'s

neighbor's home surveillance video showed Smith's car drive past

C.B.'s home several times before the robbery. The video also

showed Smith and Appellant walk by.

5.
C.B. testified that a black male wearing jeans and a "blue

and striped" dress shirt entered her bedroom with a gun while

she was asleep. He woke her up and demanded cash and other

valuables. C.B. gave the man three rings from her bathroom because

she had no cash. C.B. then led a man to a bedroom where S.B.,

her son, was still in bed. The man again demanded valuables,

and he threatened to shoot C.B. and S.B. They collected additional

items from around the house because they feared for their lives.

The man took the rings, several firearms and C.B.'s purse from

the house. He subsequently abandoned the purse and firearms

in a park across the street.

Roger Soto, was interviewed and the police examined his

phone and found the numbers that had been called by the man

who approached him. Those numbers were to a number on the account

of Stacy McMillan, who informed the police that her son, Cody

Smith, his father.

A homeowner with a security camera system had recorded

video that morning that showed two men walking in the neighborhood

and showed a gold Taurus circling the block that morning.

Dtective Frizzell of the Grand Prairie police interviewed

Cody Smith, who admitted his involvement. Smith testified that

he had driven a person he said was Michael Carell to the area:

where the robbery occurred because Carell had told him that

his aunt lived in the house, that Smith had gone into the house

witlv Carell, that Smith saw pictures in the house of a white

family/ causing him to think that Carell's aunt did not live

there, that Smith saw Carell pull a gun before they encountered

anyone in the house and that Smith left the house at that time.

Smith testified that he had gone back to the gold Taurus

and had driven around for a while until he got a call from Carell

asking him to meet Carell at a nearby elementary, which he did,

and they then drove away from the area.

6.
After Dtective Frizzell interviewed Smith he obtained a

search warrant for the gold Taurus and in the trunk he found

a checkbook with checks containing the printed name of Michael

Carell.

Frizzell arrested Michael Carell, pursuant to an arrest

warrant he had obtained, and after the arrest, examined the

contents of Carell's wallet and found a business card of Amy's

Gold and Silver Exchange. Frizzell went to the business and

obtained records showing that a man claiming to be Michael Carell

had sold two rings to the business on the day of the robbery.

C.B. viewed a photo line-up identification procedure conducted

by lead investigator of the case-Detective Frizzell, but did

not identify Carell's photo as the robber. S.B. viewed the photo

spread, and identified Carell's photo, and the record of the

procedure indicated that a "tentative ID" was made and 80% sure

he was the person who came into the house.

Roger Soto viewed a phcito array, also made a "tentative

ID," and placed his level of certainty at 90%.

S.B. and Soto each identified a different photograph as

the person they saw that morning, and Frizzell testified that

both photographs were of Carell. S.B. could not identify anyone

in open court as his assailant, but Soto identified Carell in

open court as the man whom he talked with the morning of the

robbery.
QUESTIONS PRESENTED FOR REVIEW

I. Did the 11th Court of appeals error in affirming the appellant's

conviction based on a decision that conflicts with the decision

with another Court of Appeals on the same matter?

II. Whether the 11th Court of Appeals decided an important question

of state or federal law that has not been/ but should be settled

by the Court of Criminal Appeals?

III. Whether the 11th Court of Appeals decided an important question

of state or federal law in conflict with the applicable

decisions of the Court of Criminal Appeals or the United

States Supreme Court?

IV. Whether the decision rendered by the 11th Court of Appeals is

in conflict with this Hon. Court's ruling set forth in; Mendez

V. State, 138 S.W.3d 334 (Tex.Crim.App.2004), that the issuance

of an order of referral to a magistrate under Tex.Gov't Code

Ann. § 54.657, is a systemic right that cannot be waived or

forfeited?

[Tex.R.App.Proc. Ann. 66.3 (a), (c) and (f) (Vernon Pam.1012)].

REASONS FOR REVIEW [TRAP 66.3]

The 11th Court of Appeals (hereinafter 11th COA), affirmed

this conviction finding that appellant has waived his complaint under

Sectiin 54.657 of the Tex.Gov't Code because he did not object

to the magistrate presiding over jury selection. This case was

transferred to the 11th COA from the 2nd COA in Fort Worth pursuant

to an order of the Texas Supreme Court under the authority of section

73.001 of the Tex.Gov't Code. Gov't § 73.001. By which the 11th COA
states that in accordance with rule 41.3 of the Tex.Rules App.Proc.,

they [11th COA] are required to follow the precedent of the 2nd COA

unless, it appears that the transferor court itself would not be

bound by that precedent. [TRAP 41.3].

Section 54.651 of the Texas Government Code authorizes

the criminal district court judges of Tarrant County to appoint

magistrates who are empowered to carry out the duties set out

in 54.658, which includes the power to "select a jury." Presumably

our lawmakers intended by this that the magistrates may preside

over jury selection, since judges do not select juries.

Section 54.657 states as follows:

" (a) To refer one or more cases to a magistrate, a judge

must issue an order of Referral specifying the magistrate's

duties."

In the instant case, Honorable Gene Grant, A Tarrant County

Magistrate, presided over jury selection. The Clerk's Record

and the Reporter's Record do not include any order of referral

from Honorable Mollee Westfall, elected Judge of the 371st

District Court of Tarrant County.

The gist of the issues raised to the 11th.COA is that jury

selection conducted by an unelected magistrate without the

constitutional authority of a district judge, violated the appellant's

right to be tried in accordance with the Constitution and Laws

of the State of Texas.

Here, appellant asserts that the 11th COA rendered a decision

that is in conflict with another COA on the same mater and has

not been, but should be settled by this Honorable Court respectively.

Following its previous holding requiring a referral order

in Ex Parte Pardun, 727 S.W. 2d 131 (Tex.Crim.App.-Dallas 1987),

the Dallas 5th District COA in Ex Parte Oscar Lopez DeLeon,

No. 05-11-00594, (Ct.App. Dallas 2011)-ruled that because there

was no order of referral the magistrate did not have the authority
Further, the established precedent decided by this Honorable

Court in: Mendez V. State, 138 S.W.3d 334, 342 (Tex.Crim.App.

2004) Held; "That because the Magistrate's duty to issue an

order of referral is not optional, it is a systemic right, and

therefore cannot be waived or forfeited."

Appellant's contention here is that the controlling caselaw

precedent should be that of this Honorable Court of Appeals

of Texas which is clearly established in the Mendez court, decided

in 2004 [emphasis added] and not that of the NASH court, infra,

decided by the lower court in 2003. (See; Nash v. State, 123

S.W. 3d 534 (Tex.App.-Fort Worth 2003 pet.ref'd)).

In sum, the 11th COA incorrectly applied the controlling

caselaw authority on appeal by rejecting this Honorable Court's

precedent and replacing it with £Hat of the lower courts opinion.

Such assumptions are not contemplated by the law which requires

the issuance of an order of referral to a magistrate*is a "systemic

right" that cannot be waived or forfeited. In making this decision

the 11th COA DENIED appellant his right to a full and fair

review of his point of error raised in this appeal. Appellant

also has not been aforded the right to have his matters squarely

adjudicated.

PRAYER

Wherefore, Appellant prays that the Honorable Court of Criminal

Appeals GRANT review in this matter, that the case be set for

submission, and that after submission, this Hon. Court reverse the

judgement of the 11th COA and remand the case back to the Appeals

Court for Reconsideration.

Respectfull

/s//

ectruily Submitted,

(Appellant, Pro-Se

Michael Dewayne Carell #1863720

Allred Unit

2101 FM 369 N.

Iowa Park, Tx. 76367

10,
CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 26th day

of October, 2015, the following have been completed:

(1) A legible copy of appellant's Petition for Discretionary

Review in the above cause number has been sent by U.S. Mail by

placing the Petition in the prison mailbox system on the above

date forwarde to:

Clerk of the

Texas Court of Criminal Appeals,

Attn: Abel Acosta

P.O. BOX 12308

Capitol Station

Austin, Tx. 78711

CC/File MDC

(Abbellant, (Appellant, Pro-Sel^ Pro-Se

Michael Dewayne Carell #1863720

Allred Unit

2101 FM 369 N.

Iowa Park, Tx. 76367

11.
Opinion filed July 30,2015

In The

Clekientf) Court of appeal*

No. 11-13-00220-CR

MICHAEL DEWAYNE CARELL, Appellant

. . , V.-

THE STATE OF TEXAS, Appellee

On Appeal from the 371st District Court

Tarrant County, Texas

Trial Court Cause No. 1295039D

MEMORANDUM OPINION

Michael Dewayne Carell appeals his jury conviction for aggravated robbery.

SeeTex.Penal Code Ann. § 29.03(a)(2) (West 2011). Thetrial court assessed his

punishment at confinement for a term of fifty years in the Institutional Division of

the Texas Department ofCriminal Justice. Appellant raises three issues on appeal.

We affirm.
BackgroundFacts

Cody Dale Smith is an acquaintance of Appellant. Smith testified that he,

Appellant, and others were up all night doing drugs, including methamphetamine.

Smith saidthathe drove Appellant to ahome around 6:30 a.m. purportedly to borrow

money from Appellant's aunt sothat Smith and Appellant could rent a motel room.

Smith testified that he and Appellant entered the home through an unlocked door.

After he saw Appellant pull outa gun, Smith returned to hiscar. The home actually

belonged to CB. C.B.'s neighbor's home surveillance video showed Smith's car

drive past C.B.'s home several times before the robbery. The video also showed

Smith and Appellant walk by.

CB. testified that a black male wearing jeans and a "blue and striped" dress

shirt entered her bedroom with a gun while she was asleep. He woke her up and

demanded cash and other valuables. C.B. gave the man three rings from her

bathroom because she had no cash. C.B. then led the man to a bedroom where S.B.,

herson, was still in bed Theman again demanded valuables, and he threatened to

shootC.B. andS.B. Theycollected additional items from around the house because

they feared fortheirlives. The man took therings, several firearms, andCB.'s purse

fromthe house. He subsequently abandoned the purse and firearms in a park across

the street.

Shortly after the robbery occurred, Appellant approached Rogelio Javier Soto

at a nearby construction site where Soto worked. Appellant asked Soto for a job,

andwhen Soto declined, Appellant asked to use Soto's cellphone to call for a ride.

Soto noticed that Appellant had agun inhis waistband. Soto testified that Appellant

wore a "gray wife beater ... and jeans" and held "a Polo-looking shirt that was

striped, two color in tone." Appellant called Smith and asked him for a ride. Smith

testified that, when he picked up Appellant, Appellant showed him three rings and

told him that he had just robbed a woman.
Around 10 a.m., Smithand Appellant went to Amy's Gold and Silver, where

Appellant sold two rings. The store clerk testified that he bought two rings from

"Dewayne Carell," and his description of the two rings corresponded with C.B.'s

and Smith's description oftwo ofthe rings that had been stolen. The receipt ofthe

sale bears Appellant's signature. Appellant bought gasfor Smith's carand rented a

motel room with the money from the sale ofthe rings. Smith testified that he later

talked with one of his friends and discovered that Appellant had obtained more

methamphetamine, which Smith thought Appellant purchased with the money from

the sale ofthe rings.

Alan Frizzell, a police officer for the city of Grand Prairie, checked Soto's

phone records. Frizzell was able to connect the phone calls that Appellant made

from Soto's phone to Smith. Detective Frizzell asked Smith to meet with him under

false pretenses. When Detective Frizzell confronted Smith about the robbery, Smith

told him that he thought he was taking Appellant to his aunt's house to borrow

money. Smith later admitted to Detective Frizzell that he went with Appellant for

the purpose ofburglarizing the house.

Detective Frizzell prepared photo lineupsto show C.B. and S.B. in order for

them to identify their assailant. Soto also viewed a photo lineup to identify the

person that approached him and used his cell phone. CB. could not identify the

assailant from the photographs, but S.B. and Soto made tentative identifications of

Appellant. S.B. and Soto each identified a different photograph as the person they

saw that morning, and Detective Frizzell testified that both photographs were of

Appellant. S.B. could not identify anyone in open court as his assailant, but Soto

identified Appellant in open court as the man whom he talked with the morning of

the robbery; Detective Frizzell obtained an arrest warrant for Appellant, and after

Appellant's arrest, Detective Frizzell searched him and found a business card for

Amy's Gold and Silver in Appellant's wallet. Detective Frizzell obtained the
records forthesale ofthetwo rings from Amy's Gold andSilver, and the sales clerk

provided receipts. i

[Analysis

Inhis first issue, Appellant contendsthat the magistrate who presided overthe

jury selection was not authorized to| do so because the trial court did not issue an

order of referral to the magistrate. |ln his second issue, Appellant asserts that he

received ineffective assistance ofcounsel. In his final issue, Appellant contends that

the evidence was insufficient to support his conviction.

We will address Appellant's sufficiency issue first. We review a sufficiency

ofthe evidence issue under the standard ofreview set forth in Jackson v. Virginia,

443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893,912 (Tex. Crim. App. 2010);

Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. refd).

UndertheJackson standard, we reviewall ofthe evidence in the lightmostfavorable

to the verdict and determine whether any rational trier offact could have found the

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

When conducting a sufficiency review, weconsider alltheevidence admitted

at trial, including evidence that may have been improperly admitted. Winfrey v.

State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d

772,778 (Tex. Crim. App. 2007). We defer tothe factfinder's role asthe sole judge

of thewitnesses' credibility andtheweight theirtestimony isto be afforded. Brooks,

323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve

conflicts inthe testimony, toweigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at

778. When the record supports conflicting inferences, wepresume that the factfinder

resolved the conflicts in favor oftheprosecution, andwe deferto thatdetermination.

Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
The indictment alleged that, while in the course of committing theft of

property and with intent to obtain or maiiitain control ofsaid property, Appellant

intentionally or knowingly threatened or placed CB. in fear of imminent bodily

injury or death and that Appellant used or exhibited a deadly weapon, to-wit: a

firearm, indoing so. See Penal §§ 29.02(a)(2), 29.03(a)(2) (West 2011), §31.03(a),

(b)(1) (West Supp. 2014). Appellant acknowledges that there is no dispute that CB.

was the victim ofa robbery on the date inquestion. He directs his challenge to the

sufficiency ofthe evidence on the purported lack ofphysical evidence linking him

to the robbery and purported deficiencies in the witnesses' identification of him as

the assailant.

As noted previously, Smith testified that he andAppellant traveled to C.B.'s

home and that they entered it without C.B.'s consent. Smith further testified that

Appellant had a gun at the home. Smith later picked up Appellant after Appellant

called him. Smith testified that Appellant possessed three rings atthat time that he

said he had juststolen from a woman. C.B. testified thatshe gave her assailant three

rings. C.B.'s neighbor's home surveillance video showed Smith's car pass by

several times and also showed Smith along with a black male walking by that

location. Smith identified Appellant as the person with him in the video, and S.B.

saidthe personaccompanying Smith on the video looked similar to his assailant.

The clerk from Amy's Gold and Silvertestified that hebought two rings from

"Dewayne Carell" and that the rings he purchased fit C.B.'s and Smith's description

of the stolen rings. The clerk bought the rings at the same approximate time that

Smith said that he and Appellant went to sell the rings. Furthermore, the receipt for

the transaction bears Appellant's signature. Additionally, Detective Frizzell found

abusiness card in Appellant's wallet from the business that bought the riigs.

Although Soto only made atentative identification ofAppellant injthe photo

lineup, he identified Appellant inopen court. Soto testified that Appellant had agun
and wore a striped shirt and jeans when he talked with him. Soto's description of

Appellant was similar to CB.'s description of her assailant. Soto's cell phone

records ofthe call Appellant made on his phone connected Appellant to Smith.

Although Smith gave two different versions of his involvement with the

robbery to Detective Frizzell, he never changed his story about Appellant's

involvement. Additionally, the trial court instructed the jury on the corroboration

requirement for accomplice witness testimony. See Tex. Code Crm. Proc. Ann.

art. 38.14 (West 2005). There was ample non-accomplice evidence to corroborate

Smith'stestimony, and the non-accomplice evidence tended toconnect Appellant to

the offense. Viewing all ofthe evidence inthe light most favorable to the verdict,

we hold that a rational trier offact could have found that Appellant committed the

offense ofaggravated robbery as alleged in the indictment. Accordingly, sufficient

evidence supports Appellant's conviction. We overrule Appellant's third issue.

Appellant argues in his first issue that the magistrate who presided overjury

selection was unauthorized to do so. Chapter 54, Subchapter H of the Texas

Government Code provides for the use of magistrates in Tarrant County. Tex.

GOV'T Code Ann. § 54.651-663 (West 2013). The statute specifically permits the

referral of proceedings involving jury selection to magistrates. Id. §§ 54.656(d),

54.658(14). Section 54.657 requires the trial court to issue an order ofreferral in

order to refer a matter to a magistrate. Id. § 5.4.657.

Appellant contends that, inthe absence ofan order ofreferral as required by

Section 54.657, the magistrate had no authority to act. Appellant cites Ex parte

DeLeon, No. 05-11-00594-CR, 2011 WL 3690302 (Tex. App.—Dallas Aug. 24,

2011, no pet.) (not designated for publication), in support ofthis proposition. In

reviewing a similar statute, the Dallas Court ofAppeals held in DeLeon that the

issuance of an order of referral to a magistrate is a "systemic right" that cannot be

waived or forfeited. Id. at *2 (citing Mendez v. State, 138 S.W.3d 334, 342 (Tex.
CrimApp^^O^)^ Accordingly, the court held in DeLeon that a party is not

required to preserve error in the trial court regarding the absence of an order of

referral to a magistrate. Id.

Appellant did not object to the magistrate presiding overjury selection. Citing

cases from the Fort Worth Court of Appeals, the State contends that Appellant's

failure to object constitutes a waiver of his complaint on appeal. We agree. This

case has been transferred to us from the Second Court of Appeals in Fort Worth

pursuant to an order of the Texas Supreme Court under the authority of Section

73.001 ofthe Texas Government Code. Gov't § 73.001. In accordance with Rule

41.3 of the Texas Rules of Appellate Procedure, we are required to follow the

precedent of the Fort Worth Court of Appeals unless it appears that the transferor

court itselfwould not be boundby that precedent. Tex. R.App. P. 41.3.

The Fort Worth Court of Appeals has held that a defendant must object to a

magistrate presiding over jury selection in order to preserve error for appellate

review. Nash v. State, 123 S.W.3d 534, 536-37 (Tex; App.—Fort Worth 2003, pet

refd); Lemasurier v. State, 91 S.W.3d 897, 900 (Tex. App.—Fort Worth 2002, pet.

refd); McKinney v. State, 880 S.W.2d 868, 870 (Tex. App.—Fort Worth 1994, pet.

refd); seeGuerrerov. State, No. 02-13-00611-CR, 2015 WL 1407748, at *4 (Tex.

App.—Fort Worth April 30, 2015, no pet.) (mem. op., not designated for

publication) (holding "thatin order to challenge a trialcourt'sreferral of voirdireto

amagistrate, the appellant must have preserved error inthe trial court"). The recent

opinion in Guerrero is particularly instructive because the Fort Worth Court of

Appeals expressly rejected the holding inDeLeon. Guerrero, 2015 WL 1407748, at

*4. The court held that its holding in Nash is controlling on the issue. Id.

Accordingly, Appellant has waived his complaint under Section 54.657 because he

did not object to the magistrate presiding over jury selection. We overrule

Appellant's first issue.
Appellant contends in his second issue that he received ineffective assistance

ofcounselbecausehis trialcounselfailedto (1) objectto extraneous offenses ofdrug

possession and use, (2) challenge questionable jurors for cause, (3) object to items

seized from Appellant's wallet, and (4) vigorously cross-examine witnesses about

photo identification procedures. To determine whether Appellant's trial counsel

rendered ineffective assistance, we must first determine whether Appellant has

shown that his counsel's representation fell below an objective standard of

reasonableness and, if so, then determine whether there is a reasonable probability

that the result of the proceeding would have been different but for his counsel's

errors. Stricklandv. Washington, 466 U.S. 668,687 (1984); Hernandez v. State, 726

S.W.2d 53,55-57 (Tex. Crim. App. 1986). Afailure tomake a showing under either

prong ofthe Strickland test defeats a claim of ineffective assistance of counsel.

Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

We must indulge a strong presumption thatcounsel's conduct fell within the

wide range ofreasonable professional assistance, and Appellant must overcome the

presumption that, under the circumstances, the challenged action could be

considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25

S.W.3d 707,712 (Tex. Crim. App. 2000). Anallegation ofineffective assistance of

counsel must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814

(Tex. Crim. App. 1999). With respect to allegations of ineffective assistance of

counsel, the record on direct appeal is generally undeveloped and rarely sufficient

to overcome the presumption that trial counsel rendered effective assistance. Bone v.

State, 11S.W.3d828,833 (Tex. Crim. App. 2002); Thompson,*} S.W.3dat 813-14.

The Court of Criminal Appeals has said that "trial counsel should ordinarily be

afforded an opportunity to explain his actions before being denounced as

ineffective." Rylanderv. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003), If
trial counsel has not had an opportunity to explain his actions, we will not find

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

competent attorney would have engaged init." Garcia v. State, 57 S.W.3d 436,440

(Tex. Crim. App. 2001). We note at the outset ofour analysis that Appellant did not

file amotion for new trial. Accordingly, trial counsel has not had an opportunity to

explain his actions.

Appellant first contends that his trial attorneys were ineffective because they

failed to object to the introduction ofextraneous offenses pertaining to Appellant's

drug possession and drug use. In orderto prevail on this contention, Appellant must

establish that the evidence was inadmissible because defense counsel's failure to

object to acEaissibTejyidence does not constitute meffective^ssisMceof.counsel,.

"See Exparte Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App. 2012). Rule 404(b)

incorporates the fundamental tenet of our criminal justice system that an accused

may be tried only for the offense for which he is charged, not for his criminal

propensities. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996); see

Tex. R. Evid. 404(b). For an extraneous offense to be admissible, itmust be relevant

apart from supporting an inference ofcharacter conformity. Montgomery v. State,

810 S.W.2d 372,387 (Tex. Crim. App. 1991). The State contends that the evidence

cited by Appellant had relevance apart from character conformity because it

constituted either same transaction contextual evidence or provided relevant

evidence about Appellant's drug-related motive to commit aggravated robbery.

As we stated in Greene v. State, 287 S.W.3d 277, 283 (Tex. App.—Eastland

2009, pet,refd):

Extraneous offense evidence may be admissible for purposes other than those expressly listed in Rule 404(b). For example, such

evidence may be admissible as same transaction contextual evidence,

which has been defined as evidence of other offenses connected with

the offense charged. Wyatt v. State, 23 S.W.3d 18,25 (Tex. Crim. App.
2000); Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993);

Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.]

2003, pet. dism'd). "[I]t has long been the rule in this State that the jury

is entitled to know allrelevant surrounding facts andcircumstances of

the charged offense; an offense is not tried in a vacuum." Moreno v.

State, 121 S.W.2d 295,301 (Tex. Crim. App. 1986). Same transaction

contextual evidence is admissible under Rule 404(b) to the extent that

itis necessary to the jury's understanding ofthe charged offense, such

as when the charged offense would make little or no sense without it.

Wyatt, 23 S.W.3d at 25; Swarb, 125 S.W.3d at 681. The purpose of

admitting extraneous offense evidence as same transaction contextual

evidence isto place the instant offense in context. Nguyen v. State, 177

S.W.3d 659, 667 (Tex. App.—Houston [1st Dist.] 2005, pet. refd).

The evidence cited by Appellant concerns his drug possession and drug use with

Smith before and after the robbery. This evidence proyja^a^reason why Appellant_

committed the.robbery. Accordingly, Appellant has not establishedtiiat the trial

court would have erred inoverruling the objections hecontends trial counsel should

WelnadeTAdditionally, the record is silent concerning why Appellant's counsel

didnot object to this testimony. Perhaps trial counsel determined that the evidence

would have been admissible under the authority cited above. We cannot conclude

that Appellant's counsel's actions were so outrageous that no competent attorney

wouldhave done likewise. See Garcia, 57 S.W.3d at 440. Accordingly, Appellant

has notsatisfied the first prong ofStrickland. See Strickland, 466 U.S. at 687.

Appellant next argues that his trial attorneys were ineffective for not

challenging several potentialjurors for cause. Appellant acknowledges that none of

these potential jurors sat on the jury panel. He contends that trial counsel's

performance caused him to "lose valuable strikes that should not have [had] to be

used on these panelists." In the absence ofarecord addressing the strategy oftrial

counsel in the exercise of challenges for cause and peremptory strikes, the record

does not establish that trial counsel's performance fell below the objective standard

ofreasonableness.

10
Appellant also claims ineffective assistance based onhistrial counsel's failure

to object.to the business card seized from Appellant's wallet after his arrest. "A

search incident to arrest permits officers to search a defendant, or areas within the

defendant's immediate control, to prevent the concealment or destruction of

evidence." McGee v. State, 105 S.W,3d 609, 615 (Tex. Crim, App. 2003). Thus,

even if Appellant's trial counsel had objected to the admission ofthe business card

based on an illegal search, the trial court would not have erred in admitting acopy

of the business card because Appellant had already been arrested and because

Detective Frizzell found the business card ina search incident tothat arrest. See id.

Because counsel's actions were not deficient, Appellant has not satisfied the first

prong ofStrickland. SeeStrickland, 466 U.S. at 687.

Appellant also argues that his trial attorneys were ineffective because they

failed to "vigorously" cross-examine some witnesses about the photo identification

procedures. Appellant's trial counsel cross-examined Detective Frizzell about the

photo lineup procedures but did not cross-examine Soto or S.B. about the photo

lineup procedures. Appellant also contends that his trial attorneys did not make the

jury aware ofthe fact that Soto and S.B. tentatively identified State's Exhibit Nos.

48 and 54, respectively, as Appellant, but that the photographs appear to be oftwo

different people. We initially note that Defendant's Exhibit No. 1 showed that the

photograph inState's Exhibit No. 48was Appellant. Detective Frizzell also testified

that State's Exhibit Nos. 48 and 54 were both photographs ofAppellant. In this

regard, the jury had the pictures in evidence to look at and compare to Appellant's

physical appearance at trial.

We conclude that the absence oftrial counsel'sreasoning in conducting crossexamination precludes a rinding that counsel was "objectively deficient." Exparte

McFarland, 163 S.WJd 743, 754 (Tex. Crim. App. 2005). "Cross-examination is

inherently risky, anda decision not to cross-examine a witness is often the result of

11
wisdom acquired by experience in the combat of trial." Id. at 756. "[C]rossexaminationis an art, not a science,and it cannotbe adequatelyjudged in hindsight."

Id. Furthermore, Appellant has notshown Jhat a reasonable probability exists that

the result of the proceeding would have been different but for the alleged errors of

his.trial attorneys. Accordingly, Appellant has not satisfied either prong of

Strickland. We overrule Appellant's second issue.

This Court's Ruling

We affirm the judgment ofthe trial court.

July 30, 2015

Do not publish. SeeTex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.

12

JOHN M. BAILEY

JUSTICE