# 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 CRIMINALAPPEALS

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 COAstates 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 authorityFurther, 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, Pro-Sel^ (Appellant, 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 ofappeal*

No. 11-13-00220-CR


### MICHAEL DEWAYNE CARELL, Appellant

. . , V.- 

### THE STATE OF TEXAS, Appellee

On Appealfrom the 371stDistrict Court Tarrant County, Texas Trial Court Cause No. 1295039D

MEMORANDUM OPINION 

### Michael Dewayne Carell appeals hisjury conviction for aggravated robbery. SeeTex. Penal Code Ann. § 29.03(a)(2) (West 2011). Thetrialcourt assessed his punishment at confinement for a term offifty years in the Institutional Division of 

### the Texas Department ofCriminal Justice. Appellantraises three issues on appeal. We affirm.BackgroundFacts 

### Cody Dale Smith is an acquaintance ofAppellant. Smith testified that he, 

### Appellant, and others were up all night doing drugs, including methamphetamine. Smith saidthathedrove Appellantto ahome around 6:30 a.m. purportedlytoborrow 

### money from Appellant's aunt sothat Smith and Appellant could rent amotel room. Smith testified that he and Appellant entered the home through an unlocked door. 

### Afterhesaw Appellantpull outagun, Smith returnedto 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 walkby. 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 bedroomwhere S.B., her son, was still inbed Theman again demanded valuables, and he threatened to shootC.B. andS.B. Theycollected additional items from around thehouse because 

### they feared fortheirlives. Themantooktherings, several firearms, andCB.'spurse fromthe house. He subsequently abandoned the purse andfirearms in a park across
the street. 

### Shortly afterthe robbery occurred, Appellantapproached Rogelio Javier Soto at a nearby construction site where Soto worked. Appellant asked Soto for a job, andwhenSoto declined, Appellant asked to use Soto's cellphone to call for aride. 

### Soto noticedthatAppellanthad aguninhis waistband. SototestifiedthatAppellant wore a "gray wife beater

... andjeans" and held "a Polo-looking shirt that was 

### striped, two colorin tone." Appellant called Smith and askedhim for aride. Smith testified that, when he picked up Appellant, Appellant showed him three rings and told him that he hadjustrobbed a woman.Around 10a.m., SmithandAppellant 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 gasforSmith's carand rented a motel room with the money from the saleofthe rings. Smith testified that he later talked with one of his friends and discovered that Appellant had obtained more 

### methamphetamine, which Smith thought Appellantpurchased with the money from the sale ofthe rings. Alan Frizzell, a police officer for the city ofGrandPrairie, 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. WhenDetectiveFrizzell confronted Smith aboutthe 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 hewent with Appellant for the purpose ofburglarizing the house. Detective Frizzell prepared photo lineups to 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 notidentify the assailant from the photographs, but S.B. and Soto made tentative identifications of 

### Appellant. S.B. and Soto each identified adifferentphotograph 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, Appellantcontends thatthe magistrate who presided overthe 

### jury selection was not authorized to| do so because the trial court did not issue an order ofreferral 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 reviewalloftheevidence in the lightmostfavorable to the verdict and determine whether any rational trieroffact 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 sufficiencyreview, 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 defertothe factfinder's role asthe solejudge of thewitnesses' credibility andtheweighttheirtestimony isto beafforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve 

### conflicts inthe testimony, toweigh the evidence, andtodraw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 

### 778. Whentherecord supports conflictinginferences, wepresumethatthe factfinder resolvedtheconflicts infavor 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 ormaiiitain control ofsaid property, Appellant 

### intentionally or knowingly threatened orplaced CB. in fear ofimminent bodily 

### injury or death and that Appellant used or exhibited a deadly weapon, to-wit: a firearm, indoing so. SeePenal §§ 29.02(a)(2), 29.03(a)(2) (West2011), §31.03(a), 

### (b)(1) (West Supp. 2014). Appellantacknowledges thatthere is no dispute that CB. was the victim ofarobbery 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 ofhim 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 atthe home. Smith laterpicked up Appellant after Appellant 

### called him. Smith testified that Appellantpossessed three rings atthat time thathe saidhe hadjuststolen from awoman. C.B. testifiedthat she gave herassailantthree 

### 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 thevideo looked similarto his assailant. 

### The clerkfromAmy's Gold and Silvertestifiedthatheboughttwo rings from 

### "Dewayne Carell" andthattherings hepurchasedfit C.B.'s and Smith's description ofthe stolen rings. The clerk bought the rings atthe same approximate time that 

### Smith saidthathe andAppellantwentto sell the rings. Furthermore, the receiptfor the transaction bears Appellant's signature. Additionally, Detective Frizzell found 

### abusiness card inAppellant's walletfromthe business thatboughtthe riigs. 

## Although Soto only made atentative identification ofAppellantinjthephoto lineup, he identifiedAppellantinopen court. Soto testifiedthatAppellanthad agun

### and wore astriped shirt andjeans when he talked with him. Soto's description of 

### Appellant was similar to CB.'s description ofher assailant. Soto's cell phone records ofthe call Appellantmade onhis phone connectedAppellantto Smith. Although Smith gave two different versions ofhis involvement with the 

### robbery to Detective Frizzell, he never changed his story about Appellant's involvement. Additionally, the trial court instructed thejury onthe 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's testimony, andthe non-accomplice evidence tendedtoconnectAppellantto 

### the offense. Viewing all ofthe evidence inthe light most favorable tothe verdict, we hold that a rational trier offact could have found that Appellant committed the 

### offense ofaggravatedrobbery 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 CodeAnn. § 54.651-663 (West 2013). The statute specificallypermits the 

### referral ofproceedings 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 requiredby Section 54.657, the magistrate hadno 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), insupport ofthis proposition. In 

### reviewing a similar statute, the Dallas Court ofAppeals held in DeLeon that the issuance of an order ofreferral to a magistrate is a "systemic right" thatcannot be 

### waived orforfeited. 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. 

### Appellantdidnotobjecttothemagistratepresidingoverjuryselection. Citing cases from the Fort Worth Court ofAppeals, the State contends that Appellant's failure to object constitutes a waiver ofhis complaint on appeal. We agree. This
case has been transferred to us from the Second Court ofAppeals 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 ofthe Fort Worth Court ofAppeals unless it appears that the transferor court itselfwould not be boundby thatprecedent. Tex. R. App. P. 41.3. 

### The Fort Worth Court ofAppeals has held that a defendant must object to a 

### magistrate presiding overjury selection in order to preserve error for appellate 

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

### refd); Lemasurierv. State, 91 S.W.3d 897, 900 (Tex. App.—FortWorth 2002, pet. refd); McKinney v. State, 880 S.W.2d 868, 870 (Tex. App.—FortWorth 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 "thatinorderto challenge a trialcourt'sreferral of voirdireto 

### amagistrate, the appellantmusthavepreserved errorinthe trial court"). The recent opinion in Guerrero is particularly instructive because the Fort Worth Court of 

### Appeals expresslyrejectedthe 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 inhis second issue thathe received ineffective assistance ofcounselbecausehis trialcounselfailedto (1) objectto extraneous offenses ofdrug 

### possession and use, (2) challenge questionablejurors 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, thendetermine whether there is a reasonable probability 

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

### errors. Stricklandv. Washington,466 U.S. 668,687 (1984); Hernandezv. State, 726 S.W.2d53,55-57 (Tex. Crim. App. 1986). Afailure tomake ashowingundereither 

### prong ofthe Strickland test defeats a claim ofineffective assistance ofcounsel. Perezv. 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 of reasonable professional assistance, and Appellantmust overcomethe 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 ofineffective assistance of counsel, therecord on direct appeal is generally undeveloped and rarely sufficient 

### to overcomethepresumptionthattrial counselrenderedeffective assistance. Bonev. 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.3d436,440 

### (Tex. Crim. App. 2001). Wenote atthe outsetof ouranalysis thatAppellantdidnot file amotionfornewtrial. Accordingly, trial counselhas nothad an opportunityto explain his actions. 

### Appellant first contends thathis trial attorneys were ineffectivebecause they 

### failed to objectto the introduction of extraneous offenses pertaining to Appellant's drugpossessionanddruguse. Inordertoprevail onthis contention, Appellantmust establish that the evidence was inadmissible because defense counsel's failure to 

## objectto acEaissibTejyidence does not constitute meffective^ssisMceof.counsel,. 

# "SeeExparteJimenez, 364 S.W.3d 866, 887 (Tex. Crim. App. 2012). Rule404(b) incorporates the fundamental tenet ofour criminaljustice 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). Foranextraneous offensetobe admissible, itmustberelevant 

### apart from supporting an inference of characterconformity. Montgomery v. State, 810 S.W.2d 372,387 (Tex. Crim. App. 1991). The State contends thatthe evidence 

### cited by Appellant had relevance apart from character conformity because it constituted either same transaction contextual evidence or provided relevant 

### evidence aboutAppellant's drug-relatedmotiveto commitaggravatedrobbery. 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 hasbeen defined as evidence ofother offenses connected with 

### the offensecharged. Wyattv. 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]thas longbeentherule inthis Statethatthejury is entitled to know allrelevant surrounding facts andcircumstances of 

### the charged offense; anoffense is not tried in avacuum." Moreno v. 

### State, 121 S.W.2d295,301 (Tex. Crim. App. 1986). Sametransaction contextual evidence is admissible under Rule 404(b) to theextent that 

### itis necessary to thejury's understanding of the 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 evidenceisto placethe instantoffense in context. Nguyen v. State, 177 S.W.3d 659, 667 (Tex. App.—Houston [1stDist.] 2005, pet. refd). 

### The evidence cited by Appellant concerns his drug possession and drug use with Smithbefore andafterthe robbery. This evidenceproyja^a^reasonwhyAppellant_ committed the.robbery. Accordingly, Appellant has not establishedtiiat the trial courtwouldhave erred inoverruling the objections hecontends trial counsel should 

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

### didnot objectto this testimony. Perhaps trial counsel determinedthatthe 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 donelikewise. See Garcia, 57 S.W.3d at 440. Accordingly, Appellant 

### has notsatisfiedthe first prong ofStrickland. See Strickland, 466 U.S. at687. 

### Appellant next argues that his trial attorneys were ineffective for not 

### challenging severalpotentialjurors forcause. Appellantacknowledges thatnone of 

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

### performance caused himto "lose valuable strikes that should not have [had] to be used on these panelists." In the absence ofarecord addressing the strategy of trial counsel inthe exercise ofchallenges for cause and peremptory strikes, the record does not establish that trial counsel's performance fell below the objective standard ofreasonableness.

10Appellantalso claims ineffective assistancebasedonhistrial 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, orareas 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 ifAppellant's trial counsel had objected tothe admission ofthe business card 

### based on an illegal search, the trial court would nothave erred in admitting acopy ofthe business card because Appellant had already been arrested and because Detective Frizzell found the business card ina search incidenttothat arrest. See id. 

### Because counsel's actions were not deficient, Appellant has not satisfied the first prongofStrickland. 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 thathis trial attorneys did notmake the jury aware ofthe fact that Soto and S.B. tentatively identified State's Exhibit Nos. 

### 48 and 54, respectively, as Appellant, butthat the photographs appearto be oftwo different people. We initially note that Defendant's Exhibit No. 1 showed that the photograph inState's ExhibitNo. 48was Appellant. DetectiveFrizzell also testified 

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

### regard, thejuryhad thepictures in evidence to look at and compare to Appellant's physical appearance at trial. 

### Weconcludethatthe absence of trialcounsel'sreasoninginconductingcross

### examinationprecludes arinding 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 anart, not a science,and it cannotbe adequatelyjudged in hindsight." Id. Furthermore, Appellant has not shown Jhat areasonable probability exists that 

### theresult of theproceeding 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 thejudgment ofthe trial court.

July 30, 2015 Do notpublish. SeeTex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

12 JOHN M. BAILEY JUSTICE