## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00084

- CR

CRAIG EUGENE TAYLOR , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 5th District Court Bowie County, Texas Trial Court No. 18F1293

- 005

Be fore Morriss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Justice Stevens

_______________________________________ *Jack Carter, Retired Justice, S itting by Ass ignment2 

### ME MORANDUM OPINION A Bowie County jury found Craig Eugen e Taylor guilt y of aggravated robbery. See T EX

. P ENAL C ODE A NN . § 29.03

. On appeal, Taylor claims that his trial counsel provided ineffective
assistance 1 at the punishment stage of trial by failing to object to certain testimony that Taylor claims was inadmissible hearsay

. Up o n review of the record and the applicable law, we find that Taylor has failed to meet his burden of showing that counsel was ineffective. As a result, w e affirm the trial court’s judgment.
I. Background During its case

- in

- chief , the State proved tha t Tay lor ro bbed an E

- Z Mart convenience store in Texarkana, Texas. In evidence was a surveillance video that showed Taylor, with a t

shirt wrapped around his head so that only his eyes were visible, enter the store with a drawn pistol and demand the money from the s tore’s register. 2 After threatening the E

- Z Mart clerk with the gun, Taylor fled the store. Police responded to the call quickly ; one dr o v e around the

area and saw an individual running away down an alley across the street from t he E

- Z Mart

. L ater, in a fiel d next to that alley, police found a backpack with items connecting Taylor to the robbery. 3 During the punishment phase , the State presented evidence of four other armed robberies in which Taylor was a suspect. One of those was a robbery a t an Exxon conv enience store in

1 See U.S. C ONST

. amend. VI

.
2 Taylor left the store without obtaining any cash. Even so, “ p roof of a completed the ft i s not required to establi sh a robbery.” Wolfe v. State , 917 S.W.2d 270, 275 (Tex. Crim. App. 1996)

.
3 As Taylor’s point of error stem s from t he punishment phase of the trial, we will detail relevant guilt

- stage evidence as necessary in our assessment of t he poi nt of error.3

Texarkana, Arkansas

. Evidence con cerning that robbery forms the basis of Taylor’s appellate complaint

. II. Standard of Review To prevail on a claim of ineffective assistance of counsel, the defe ndant must satisfy the

two

- pro nge d test set fo rth in Strickland v. Was hington , 466 U.S. 668, 687

– 88 (1984) ; s ee also
Ex parte Imoudu , 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) ( orig. proceeding) . A failure to make a showing under either prong defeats a claim for ineffective assistanc e. Rylander v. State , 101 S.W.3d 107, 1 10

– 11 (Tex. Crim. App. 2003).
The first Strickland prong requires a showing “ that counsel ’ s performance fell below an objective standard of reasonableness. ” Strickland , 466 U.S. at 6 8 8 . T his requirement can be
di ffi cult to meet since there is “ a strong presumption that counsel ’ s conduct falls within the wide range of reasonable professional assistance. ” Id. at 689. As a result, t he Texas Court of Criminal Appeals has said that “ [ t] rial counsel ‘ should ordinarily be affo rded an opportunity to explain his act ions before being ’” found ineffective

. Menefield v. State , 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)

. When an appellate record is silent on why trial counsel failed to take certa in actions, the appellant has “ faile d to rebut the presumption that trial counsel ’ s decision was in some way

— be
it conceivable or not

— reasonable. ” Mata v. State , 226 S.W.3d 425, 431 (Tex. Crim. App. 2007) ;

see Thompson v. State , 9 S.W.3d 808, 814 (T ex. Cr im. App. 19 99)

. This is becaus e a ll egations
of ineffectiveness “ must ‘ be firmly founded in the record. ’” Bone v. State , 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App.4

1999) )

. W hen a pa rty ra ises an ine ffective assistance of co unsel claim for the first time on dire ct appeal, the defendant must show that “ under prevailing professional norms, ” Strickland , 466
U.S. at 688 , no competent attorney would do what trial counsel did or no competen t atto rney would fail to do what tria l cou nsel failed to do. Andrews v. State , 159 S.W.3d 98, 102 (Tex. Crim. App. 2005)

. As many cases have noted, the right to counsel does not mean the right to
errorless counsel. Robertson v. State , 187 S.W.3d 475, 48 3 (Tex

. Crim. App. 2006)

. 4
A silent “record on direct appeal is undeve loped and cannot adequatel y refl ect the
motives behind trial counsel’ s ac tions.” Mallett v. State , 65 S.W.3d 59, 63 ( Tex. Crim

. App. 2001). An appellate “court must not engage in retrospective speculation” as to trial c ounsel’s performance. Lopez v. Sta te , 343 S.W.3d 137, 142 (T ex. Cr im. App. 2011)

. Further, Taylor m ust show that, had counsel made the objections Taylor now urges, the trial court would have erred to overrule those objections

. Vaughn v. State , 931 S.W. 2d 564, 566 ( Tex. Crim

. App. 1996) (“in order to argue succ essful ly that

. . . trial counsel’s failure to object

. . . amounted t o ineffective assistance, appellant must show that the trial judge would
have committed error in overruling such an objection”)

. III. Analy s is Taylor’s appeal claims that his trial counsel failed to object to certain testimony at t he punishment stage of tria l and that counsel, thus , rendered ineffective assistance . All these

4 The seco nd Strickland prong requires a showing that the deficient performance prejudiced the defense to the degr ee that there is a reasonable probability that, but for the attorney ’ s deficiency, the result of the trial would have b een differ ent. Strickland , 466 U .S. at 689; T ong v. State , 25 S.W.3d 707, 712 ( Tex. Crim. App. 2000)

. “ The appropriate stand ard for judging prejudice requires an appellant to ‘ show that there is a reasonable probability that, but for counsel ’ s unprofessi ona l error s, the result of the proceeding would have been different

. A reasonabl e probability is a probability suff

icient t o undermine confidence in the outcome. ’ ” Tong , 25 S.W.3d at 712 ( quoting Strickland , 466 U.S. at 694 )

.5

instances occurred during trial counsel’s cross

- examinati on of Arkansas Detecti ve Wade Easley,
who descr i bed his investigation of the robbery of an Exxon convenience store i n Texarkana,
Arkansas. Tay lor argues the following :

• when Easley described what he had seen in a surveillance video of the Exxon robbery, c ounsel should have objected that the video i tse lf was the best evidence of that incident;

• when Easley testified that Taylor’s family t old him what kind of car Ta ylor drove, counsel should have made a hearsay objection; and

• when Easley testified about a tex t message conversation between Taylor and h is broth er, counsel should have challenged those text messages as hearsay. Yet, Taylor is a t a serious disadvantage, a s the record is silent about counsel’s reasons for what she asked, objected to , and did not obj ect to. In the record before us, th ere are mome nts
from which trial strategies can be gleaned. 5 As discussed below, we believe T aylor fail ed to meet the req uirements of showing ineffective assistance.
A
. Easley’s Testimony During the punishment phase o f the trial, the State presented evi de nce that Taylor had
committed four other aggravated robberies in Texarkana. 6 Easley describ ed his investigation of

an arme d robbery of an Exxon convenience store on the Arkansas side of State Line Avenue.
Easl e y told the jury during his investigati on that he viewed a surveillance video of the Exxon robbery and recognized Taylor’s brother , Lamarc us e Johnson , acting as “basical ly the lookout

5 For example, counsel got Ea sle y to a gree that no fingerprints or DNA linked Taylor to the Exxon robbery and that Taylor was not foun d in poss ession of anything from that crime scene. Counsel also introduced photographs of tattoos on Taylor’s torso

. I n the Exxon surveillance video , th e robber \ gunman was shirtless, an d Easley did not recall seeing any tattoos on the suspect’s t or so
.
6 We take judicial notice that two cities, Texarkana, Texas, and Texarkana , Arkansas , are adjacent cities divided for several miles by State Line Avenue. “ T he state line between the st ates of Texas and Arkansas runs through and divides the city o f Texarkana. ” Payne v. Wynne , 233 S.W. 609, 610 (Tex. Civ. App. 1921), aff ’ d , Wynne v

. Payne , 244 S.W. 993 (Tex. Comm ’ n App. 1922) (describing rail lines and con nec t ions between two railway com panies).6

guy
. ” A second man entered, with his face covered and holding a pistol, 7 and r obbed the store. Easley suspect ed the gunman was Taylor. Easley developed that suspicion because a white
Crown Victoria was seen leaving the Exxon robbe ry scene , and Easley had information that Taylor owned or drove such a car. Easley also had access to text messages between Ta yl or and
Johnson in whi ch they plann ed to rob a store. 8 At the time of his testimony at Taylor’s trial, Easley had an arres t warrant for Taylor for the Ex xon robbery. During the cross

- examination of Easley, Taylor’s counsel be gan by describi ng what she thought was the State ’ s punishment theory linking Taylor to the extraneous robberies described by Easley and other punishment witnesses:
I’ve hea rd testimony

- - we’re her e because allegedly there’s an MO, [ 9 ] a distinctive MO, o f Cr aig Taylor, and only Craig T aylor, wearing a t

- shirt wrapped around his head in a very distinctive fashion w here he loops the , you know, the hold, the neck hole, around h is eyes like this and, you know, pulls it sort of around his ears to keep it in pl ac e , and then wraps the t

- shirt around his head. Is that a dis tinctive MO to Craig Taylor? Easley responded that he could not answe r the question

. C ounsel then asked Eas ley why he was so sure Taylor was the masked gunman at the Exxon robbery. In resp on se , Eas ley

7 Easley also testified that the gun rec overed and placed in eviden ce for the E

- Z Mart robbery matched the gun he saw in the Exxon surveillance video

.
8 The texts were not produced at trial, but Easley evidently ha d t h em with him on the witness stand

. He testified to a text conversation in which Lemarcus e sent a message that stated , “ We need to hit some

— need to hit some tonight” to the phone number identified as Taylor’s. Taylor responded , “lol bet , ” which Easley tra n slated to mean “laugh out loud yes
. ” Later that night, Lemarcus e texted Taylor, “Gree n light.” The time of that text corresponded to a moment where Lemarcu s e was seen in the Exxon surveillance video and appeared to be texting.

9 Modus operandi

.7

explained that he had Taylor’s phone number from Easley’s own investigation into Lemarcuse , 10
that Taylor ’ s p hone number led the detective to the text conversation with Lemarcuse about the men planning to rob a store , and that there was a m essa ge from Lemarcuse ’ s phone to Taylor’s phone that said “Green light” right before the masked gunman entered the Exxon

. Easley further
testified that Lemarcuse did not seem afraid when the gunman entered

. A fter the robbery , Lemarcuse and the gunman ra n out together and were both seen getting “ into a white Crown
Victoria with black wheels that matche [d] what [Taylor drove ]

. ”
B. Easley ’s Testimony a bout the S urveillance V ideo of the Exxon R obbery
A s to E asley ’s testi mony abo ut the surveillance v ide o he saw f r om the Exxon robbery , Taylor claims that (1) the video itself was the best evidence of the robbery and (2) trial counsel should have made an objection base d on Rule 1002 to challenge Easley’s descrip tion of the
video’s contents. See T EX

. R

. E V ID

. 1002 ( “ A n original writing, recording, or photograph is required in order to prove its content unless these rules o r other law provides otherwise.” )

. We
note that t here is nothing in the record establishing that t he video was available at t he time of
tria l. Cou n s el also may have had reasons not to move for admission of such video , as the jury
had seen videos of three other robb eries already. Counsel could have thought that the jury seeing Taylor involved in another c rime would be prej udic ial. W ith a silent rec o r d and the presumption of reasonable representation, we cannot find counsel’s performance deficient in this respect

. 11

10 A t g u ilt / inn ocence , Easley testified he wa s investigating Lemarcuse for an unspecified off ense on the Arkansas side of Texarkana. In that investigation , he acquired Taylor’s phone number.

11 In its brief , the State points to its statement that, at the end o f te s timony du ring the punishment phase, it intended to offer videos from each of the extraneous robberies, including the Exxon robbery

. But the next day, af ter the State’s last punishment witness testifie d, t he State rested without offering a video of th e E x x o n robbery.8

Taylor has failed to rebut the “strong presumption that counsel’s conduct [ fell ] within the wide range of rea sona bly professional ass ist a n ce.” Robertson , 187 S.W.3d at 48 2

. C
. Easley’s Testimony About the Text Messages Taylor also alleges that trial counsel was ineffective for failing to raise a hearsay object ion as to Easley’s testimony abo ut the text messa ges be tween Taylor and Lamarc u s e
. We disagree. In the text conversation , Taylor agree d with his brother that they need ed to “hit something,” which from the context and Easley’s testimony describe d a robbery. “A statement qualifies as an a dmission by party oppon ent if it is offered aga i nst a party and it is the party’s
own statement.” Hughes v. State , 4 S.W.3d 1, 6 ( Tex. Crim App. 1999). 12 Moreover, a s our sister court found in a similar situation, “the trial court did not err in admitting appellant ’s
Face book p os ts as admissions of a p arty opponent.” Ripstra v. State , 514 S.W.3d 305, 315 (Tex. App.

— Houston [1 4 t h Dist.] 2016, pet. ref’d)

.

“ T o demonstrate ineffective assistance of counsel for failure to object to the admission of
testimon y, appellan t must ident ify the specific obje cti o n and prove that it would have been
successful. ” McNeil v. State , 452 S.W.3d 408, 417 (Tex. App.

— Houston [1 4 t h Dist.] 2014, pet. ref’d) ( citing Ortiz v. State , 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) )

. But Taylor has fai le d to

s how that his suggested ob j ection would have been granted by the trial cour t. T he record is
silent on counsel’s reasons and presumed strategy

. As a result, t his complaint fails to meet the
Strickland standard for deficient perfo rmance.

12 See T EX

. R. E VID

. 803(24).9

D . The W hite Crown Victoria Under direc t e x amination by the State in the punishment stage , Easley testified that he
learned that “[a] white Crown Victoria with factory wheels” was seen leaving the scene of the Exxon robbery and that Taylor “ha[d] that vehicle.” O n cr oss
- examinati o n, 13 counsel e nga g ed in the following discussion with Easley:

[Taylor’s counsel ]: What is it that ties Craig Taylor to a white Crown Victoria? [Easley]: His friends told us that’s what he drives. [Taylor’s counsel ]: Didn’t they also t ell

- - [Easley]: His family act u ally. [Taylor’s counsel ]: Didn’t they also tell you that car belonged to somebody else? [Easley]: Probably, I don’t recall. [Taylor’s counsel ]: Okay. Did you look for any kind of records or docu men tation or pro of tha t he drives a white Crown V ict o ria. [Easley]: Other than just what his family told me. [Taylor’s counsel ]: So, your testimony about him driving a white Crown Victoria was just really, I guess, not hearsay per se, but it was what y ou had been told ? [Ea sley]: Yes, it’s what we l ear n ed in our investigation. On appeal, Taylor claims that counsel should have raised a hearsay objection to Easley’s testimony that Taylor’s family told the detective the make and model of Taylor’s car.

13 Taylor’s appellate counsel also argues that trial counsel ’ s elicitation of the alleged hearsay statement fro m Easley with her questioning is more evidence of trial counsel’s ineffectiveness. But “ t he fa ct that oth e r couns el might have tried the case differently does not show inadequate representati on.” Ex parte Prior , 540 S.W.2d 723, 727 ( Tex. Crim. App. 1976).10

Here , the recor d is s i lent as to counsel’s reaso nin g for failing to object. Arguably, Easley’s testimony was admissible to show why his investigation focused on Taylor. See Ortiz
v. State , 93 S.W.3d 79, 95 (Tex. Crim. App. 2002)

. Thus, there was at leas t one argua ble th eory of admissibility for Easle y’s testimony about how he connected the car with Taylor. Taylor has also cited no authority that the trial court would have been wrong to overrule a hearsay objection,
had one been made.
We also observe that , du ring th e gui lt pha se of Taylor’s trial, a h ear s ay objection was lodged by defense co

- counsel to a similar line of questioning. Texarkana, Texas , Detective Craig Buster was testifying about the investigation of the offense

— the E

- Z M art robbery

— leading to Taylor’ s und erlying con viction . Buster test ifi e d that he consulted Easley, who was investigating Taylor for an Arkansas offense. Buster explained that Easley supplied a phone number for Taylor and that that phone was used to call in a fak e rob bery, a s a distractio n, to another part of Texarkana ri ght after the indicted offense was committed. Buster also testified that he reviewed a report from a third officer, which said that the phone number attributed to Taylor “pinged,” or was found to have been in the vicinity, of the location acros s the stree t f r om the indicted robbery, near where the backpack with inculpatory evidence had been found. Taylor’s co

- counsel lodged a hearsay objection to that testimony. The State responded that it

was n ot of

fering the testimony fo r the truth of the matter assert ed; rather, it was “ si mply asking where he got the information to further his investigation.” The trial court overruled the defense’s objection. Based on that ruling earlier in the trial, Taylor’s counsel could have thought that , even11

if she lodged a hea rsa y obje ction to the testi mony about the Crown Victoria, it would not have
been successful. See Thompson v. State , 9 S.W.3d 808, 814 (Tex. Cr im. App. 1999). Thus, Taylor has not established that trial counsel was deficient in not objecting to Easley’s te sti m ony about how he acquired kn owledge of the car Taylor drove. Because Taylor
has failed to meet Strickland ’s first prong, we need not addre ss t he second prong
. As a result, w e overrule Taylor’s point of error.
IV. Conclusion For these reasons, the trial co u rt’s judg ment is affirmed

.

Scott E. Stevens Justice
Date Submitted: April 29, 2021 Date Decided: Ju ly 16 , 2021
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