### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00716- CR NO. 03-12-00717- CR NO. 03-12-00718- CR

Courtney Trapp, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 207 TH JUDICI AL DISTRICT

NOS . CR-0 5-7 96, CR- 11- 0974 , & CR-11 -09 83 THE HO NORAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Courtney Trapp appea ls three trial court judgme nts: a judgme nt adjudicating him g uilty of ag g rava ted assault, a judgme nt of conviction for ag g ravated assault, and a judgment of conviction for family violence assault, repe at offender

. See Tex. Code Crim

. Proc.
art. 42.12, § 5(b); Tex. Penal Code §§ 22.01, 22.02. I n four points of err or on ap peal, appellant complains about the admission of hear say evidenc e and ineffe ctive assistance of counsel. Finding

no reve rsible er

ror, we aff

irm the trial cour

t’s judgme nts.BACK GR OUND 1
I n October 2006, pursuant to a plea barg ain, appellant pled gu i l t y an d judicially confe ssed to the offe nse of ag g ravated assault. See Tex. Penal Code § 22.02. I n Fe bruar y 2007, in

acc ordanc e with the plea ag ree ment, the trial court defe rre d a finding of g uilt and place d appellant on community

supervision for a

period of te n y ear s. See Tex. Code Crim. P roc. a rt. 42.12, § 5. 2
I n November 2011, the State filed a motion to adjudicate alleg ing sever al violations of appellant’ s defe rre d-adjudication comm u n i t y supervision, including the commission of new crim i n al o ffenses. I n Dec ember 2011, appellant was char g ed in two indictments with two new assault offe nses: family

violence assault, repe at offe nder, alleg ed to ha ve bee n committed ag ainst Ang elica Calderon on September 26, 2 0 1 1 , an d ag g ravated assault causing serious bodily injury alleg ed to ha

ve been c ommitt ed ag ainst Ang elica Ca lderon on Oc tober 9, 2011. The assault case s

wer e consolidate d for tria l, and the motion to adjudicate wa s car ried for war d to trial. At trial, the jury

hear d evidenc e that on the ni g ht of S eptember 26, 2011, appellant and his g irlfriend, Ang elica Calderon, wer e driving with a friend in San Marc os when appellant and Calderon beg an arg uing. Eventually they pulled up to the friend’ s house, and the friend went inside.

Be cause the parties are familiar with the fac ts of these case s, their proce dural histories, and 1 the evidenc e ad d u ce d at t ri al, we provide only a g ener al overvie w of the fac ts and proce dural b ackgr ound of these case s. We provide additional fac ts as nece ssary to advise the parties of the Court’s decision and the basic rea sons for it. See Tex. R. App. P. 47.1, 47.74. The fac ts rec ited are taken f rom the testimony

and other evidenc e pre sented a t trial. The rec ord ref

lects that at the same proce eding , as part of the same plea barg ain, appellant 2 pled g uilty to five additional counts: four counts of ag g ravated assault and one count of burg lary of a habitation. I n acc ordanc e with the plea barg ain, he was sentenc ed to five y ear s’ imprisonment on eac h of those counts. Also during that proce eding , appellant pled g uilty to the offe nse of reta liation in a companion c ase a

nd was sente nced to f

our y ear s’ imprisonment. 2Appellant and Calderon stay ed outside, and the arg ument continued. At some poin t , C alderon

attempted to walk awa

y . She beg an knocking on doors in the neig hborhood try ing to find someone who could provide h er wi t h a p h o n e so she could call for a ride back home to Austin. Appellant followed Calderon and g rabbe d her and “body slam[m ed]” her to the g round. He then drag g ed her by the hair sc raping her kne es on the c oncre te ca using the m to bleed. The jury also hear d evidenc e that approximately two wee ks later, on October 9, 2011, Calderon was again with appellant, this time at hi s uncle’ s home i n San Marc os, when they ag ain
arg ued. During the alterc ation, appellant pushe d Calderon, spit on her, pulled her hair, and ripped her clothes. After repe ated attempts to leave the room that wer e hindere d by appellant blocking the door, Calderon eventua lly esca ped the room. Appellant followed, and a confr ontation in the kitchen with knives ensued. Calderon then kicked appellant in his g enitals and ran out of the residenc e. She

ran to a neig hbor’s house to seek help. Appellant pursued her and, outside the door s h e was knocking on, repe atedly struck Calderon in the fac e with his fists, continuing to punch her even afte r she fell to the g round. Appellant ran off, and t h e n eighbor answe red the door. Calderon was subsequently transporte d to the hospital where she rec eived trea tment for fac ial injuries, including

a nasa l bone fra cture and rig ht medial orbital (ey e socke t) fra cture

.

The jury convicted appellant of ag g ravated assault and family v iolence assault, repe at offe nder, as alleg ed in the indictments and assessed prison time and a fine as punishment f or eac h 3
offe nse: 55 y ear s and a $10,000 fine for the ag g ravated assault, 20 y ear s and a $10,000 fine for the

As proof of the “re peat offe nder” portion of the family violence as s au l t i ndictment, 3 the State offe red evidenc e of appellant’ s prior conviction for famil y violence assault ag ainst his previous g irlfriend. 3family violence assault. The trial court pronounce d sentenc e in acc ordanc e with the jury ’s verdic t.

Having car

ried the State’s motion to adjudicate , the trial court made its finding s reg arding the alleg ed violations of appe l l an t ’s community supervision based on the evidenc e prese nted during the jury
t ri al

. The court found the alleg ations to be true, adjudicate d appellant g uilty , and assessed h i s punishment at 20 y ear s in prison and a $10,000 fine. The court order ed the adjudication sentenc e to be serve d consec utive with the two sentenc es asse ssed by the jury

. 4

DISCUSSIO N Hearsay Evidence Dustin Slaughte r, a patrol office r with the San Marc os police depar tment, was dispatch ed in the ear ly morning hours of September 26, 2011, on a “dela y ed assault” call and responde d to the scene wher e Calderon was found. During his testimony , the State offe red a video

rec ording from the dash- ca m o f the patrol car of the first responding office r showing Calderon talking t o t h e p o l ice office rs about the assault. Also during his testimony , the State offe red the 5
statement Calder on wrote out on the hood of the patrol c ar at the s cene . I n his first point of er ror, During the oral pronounce ment of sentenc e, the trial judge in i t i ally order ed the two 4 sentenc es assessed by the jury to be serve d consec utively

. Howeve r, afte r the jury was discharg ed, the State indicated that beca use the case s had been joined for trial an d p ro s ec u t ed in the same criminal action, cumulative sentenc es wer e not authorized. See Tex. Penal Code §§ 3.01(2), 3.02(a) , (b), 3.03(a)

. The judge expressed uncer tainty about the court’s ability to cumulate the sentenc es but stated, “Well, if we can’ t do it, we can’ t do it.” The written judgme nts of conviction ref lect that the two sentenc es assessed by the jury are to be serve d concur rently with eac h other but consec utive to the adjudica tion sentence

. Offic er Slaughte r testified that another office r located Calderon standing in the middle of 5 the road about a half block awa y from wher e Offic er Slaughte r was. Thoug h the video was not from his patrol car , he immediately went to their location and was prese nt f or the conver sation rec orded on the video which takes plac e outside the view ing f rame of the c amer a. 4appellant arg ues that t h e trial court err ed in admitting Calderon’ s rec orded statement from the

dash-c am vi deo recording (State’s Ex hibit #18) and Calderon’ s written s tatement (St ate’ s Ex hibit #19) beca

use they we re i n ad m issible hear say . Specifica lly , he asser ts that the State failed to establish the pre dicate de monstrating tha t either stateme nt was an e x cited uttera nce. Preser vation of err or is a sy stemic require ment on appea l. Blackshe a r v. State , 385 S.W .3d 589, 590 (Tex. Crim. App. 2012). A revie wing court should not addre ss the merits of

an issue th at h as n o t b ee n prese rved for appea l. W ilson v. State , 311 S.W .3d 452, 473–74 (Tex. Crim. App. 2010). To prese rve a complaint for appellate revie w, a party must have prese nted to the trial court a timely reque st, objection, or motion that states the s p ec i fi c gro unds for the desired

ru ling if they are not appar ent from the context. Tex. R. App. P. 33.1(a) (1); Clark v. Sta t e , 365 S.W .3d 333, 339 (Tex. Crim. App. 2012). At trial, when the State offe red the dash-c am video

rec ording of Calderon’ s statement, appellant’ s counsel briefly questioned the office r about whether the rec ording had been altere d or modified. After the office r indicated it had not, appellant’ s counsel

asser ted that he had “[n] o objection” to the admi s s i on of the video. Consequently , appellant’ s complaint about the admission of the dash-c am rec ording , State’s Ex hi b i t # 18, has not been
prese rved f

or appe llate re view. 6

I n his brief, appellant asser ts that afte r the dash-c am rec ording was admitted but befor e it 6 was published to the jury , he objected to the exhibi t as hear say “which the trial court trea ted as a timely ob j ec t i o n . ” Howeve r, the rec ord ref lects that afte r the rec ording was admitted the State attempted to publish it to the jury but encounte red technica l difficulties. As those wer e addre ssed, the prosec utor beg an questioning Offic er Slaughte r abo u t t h e content of the video. Appellant objected to the office r’s testim ony about what Calderon told him as hearsay

. He did not object to the video re co rd ing itself. Appellant does not complain about the admission of the office r’s testimony on appea l. 5Offic er Slaughte r testified that on the morning of Septemb er 2 6 , 2011, at

approximately 4:02, he was dispatched for a “d el ay ed assault” call wher e a fema le was being followed by her attacker

. When Office r Slaug hter a rrived on the scene , he encounte red Calderon 7 speaking to another responding office r. He testified that Calderon was “sca red, cry ing” and “her hair [was] in disarra

y .” She had abra sions on both of her knees that wer e visibly bleeding and “look[ed] to be in pa in.” Fur

ther, the offic er indicated that Calderon w as “f ear ful” a nd “looking around [for appellant].” Off

icer Slaughte r ag ree d that Calderon was “still under the stress and the e x citement of the event that just oc curr ed to her ” whe n she told the police off icer s about what ha d happene d. Offic er Slaughte r also testified about the ci rcumstances under which Calderon made her written
statement shortly afte r his arr ival. He indicated that they wer e still on the scene , the medics had just finished their assessment of Calderon’ s injuries, and she wrote out the statement on the hood of the patrol car . He testified that she beg an wr iting the statement at 4:30 a .m. a nd repor ted that she was “still upset, nervous.” She had “ca lmed down s o mewhat” but it was “obvious that she was still fea rful.” He ag ree d that she was “still under the eff ects of the emotion and the excitement from what had just happene d to her” when she wrote out the state ment.

Appellant objected to the admission of Calderon’s written statement, State’s
Ex hibit #19, as hear say . T h e trial court admitted it under the excited-utteranc e exception to the hear say exclusion. See Tex. R. Evid. 803(2). This e x ception allows the admission of out-of-c ourt
statements re lating to a

startling e vent or c ondition made while the dec lara nt is under the stress of

The officer explained that a “delay ed assault” call refer s to an assault which has already 7 occur red, w as not curr ently

ong oing, a

nd wher e the pa

rties wer e possibly

separ ated. 6excitement cause d by the event or conditi on. See id. Appellant conte nds that the trial cour t err ed in admitting the written statement as an excited utteranc e beca use the court lacke d a sufficie nt basis from which to deter

mine that the State “made a predic ate showing that [C alder on] was incapa ble of ref lection.” We disag ree .

For the excited-utteranc e exception to apply , (1) the exciting event must be startling
enoug h to evoke a truly spontaneous rea ction from the decla rant, (2) the rea ct i o n to the startling
event must be quick enoug h to avoid t he possi bility of fa brica tion, and (3) the resulting s tatement should be sufficie ntly “re lated to” the startling event to ensure the reliability and trustworthiness of that statement. McCarty v. State , 257 S.W .3d 238, 241–42 (Tex. Crim. App. 20 0 8 ). Her e, Calderon’ s written statement was undoubtedly rela ted to a startling event—Calde ron had just been body slammed to the g round, drag g ed by her hair, and sustained injuries to her knees. The statement

was made approximately 30 minutes afte r the assault occur red (within 20 minutes of when office rs made contac t with her) ; there fore , a rela tively short amount of time had elapse d. Finally , the rec ord ref lects that Calderon was still under the stress of excitement ca used by the assault and dominated by the emotions of the event, particula rly fea r and pain. I ndeed, afte r descr ibing Caldron’s distraug ht demea nor upon his arr ival, Offic er Slaughte r testified that Calderon was “obviously still fea rful” at the time she wrote the stat em en t

. Ba s ed on these fac tors, the trial court could conclude that the statement qualified as an excited utteranc e. See Zuli ani v. Stat e , 97 S.W .3d 589, 596 (Tex. Crim. App. 2003) (statements made 20 hours af ter incide nt by individual who was “sca red to de ath” and “tired” wer e excited utteranc es); Rey es v. State , 48 S.W .3d 917, 920 (Tex. App.—For t Worth 2001,

no pet.) (witness’s statements made 15 minutes afte r assault wer e excited utteranc es beca use witness

7was “ dominated by the emotion, fea

r, pain, a nd excitement resulting f

rom appe llant’s assault, and that her state ment was re lated to the startling occur renc e of the assault”)

. Appellant arg ues in his brief, as he did at trial, that the act of writing is a deliberative
act and there fore cannot qualify as an excited utteranc e. An excited utte ra n ce i s a statement that rela tes to a st artli n g ev en t o r condition, that is made when t he declara nt is still under the stress of excitement cause d by the event or condition. Coble v. State , 330 S.W .3d 253, 294 (Tex. Crim. App. 2010); see Tex. R. Evid. 803(2). “A ‘statement’ is an oral or written verba l expression.” Tex. R. Evid. 801(a)

. Appellant cites to no authority , and we find none, excluding written statements from the excited utteranc e exception. He re, Offic er Slaughte r expressed that althoug h Calderon had 8
“ca lmed down s omewhat” since his initial contac t with h er, she kept looking around as she wrote the statement a

nd was obviously

still fea rful. F urther, a s the trial cour t note d, the office r af

firmed that she was still under the stress and excitement of the assault. I n light of the prec eding , we cannot

We find appellant’ s relianc e on Moon v. State , 44 S.W .3d 589 (Tex. App.—For t Worth 8 2001, pet. ref

’d), a case out of our sister court of appea ls in For t Worth, to be misplaced. I n Moon , the appellate court approve d the admission of evidenc e of the victim’s or al statements made to the office r shortly afte r the office r arr ived on scene beca use those statements wer e made while the victim was dominated by the excitement from the assault. Id. at 594. I n contra st, the court conclude d that when the testimony of the office r who took the assault victim’s written statements, 45 minutes afte r the office r’s arr ival, was viewed in the context of the entire rec ord, the victim’s w ritten statements wer e not excited utteranc es. Id. Thus, the court h el d t h at the trial court err ed in admitting the victim’s w ritten statements. Id. Howeve r, the off icer ’s testimony

outside the prese nce of

the jury indicated that the victim was no long er unde r the stre ss of the assa ult when the written st atements wer e g iven. The office r expli citly stated that the victim “wa s not excited at the time she made these statements” and indicated that “she had a littl e time to g ather her thoughts about what had happene d.” Id. He descr ibed the victim’s state of mind as “[a]bnormal” but explained that he “wouldn’t consider her calm or normal day -to-day state of mind, a littl e ag itated m ay be, but I wouldn’t use the wor d excited or upset.” Id. No such testimony was g iven her e.

8say that the trial court err ed in deter mining t h at Calderon was still under the stress of excitement

cause d by the assault. See Tex. R. Evid. 803(2). Thus, the t rial co u rt d i d n o t abuse its discretion by admitting Calderon’ s writ ten statement under the excited-utteranc e exception to the hear say -exclusion rule. See W all v. State , 184 S.W .3d 730, 743 (Tex. Crim. App. 2006) (re view of trial court’ s deter

mination of

whether evidenc e is admissible under e x cited-utter ance exception to hear say rule is for a

buse of discr etion).
Moreove r, eve n assuming the trial court err ed in admitting Calderon’ s written statement, we would never theless conclude that the err or did not constitute reve rsible err or. See Tex.
R. App. P. 44.2(b). The err oneous admission of evidenc e is non-constitutional err or. Kirby v. State , 208 S.W .3 d 5 6 8 , 5 7 4 (Tex. App.—Austin 2006, no pet.); see Coble , 330 S.W .3d at 280; Casey

v. State , 215 S.W .3d 870, 885 (Tex. Crim. App. 2007). Non-c onstitut ional err or is reve rsible only if it aff ects the substantial rig hts of t h e ac cu s ed

. S ee Tex. R. App. P. 44.2(b); Barshaw v. State , 342 S

. W

. 3 d 9 1, 93 (Tex. Crim. App. 2011). We will not overturn a criminal conviction for non-constitutional error

if, afte r examining the r ecor d as a w hole, we ha ve fa ir assura

nce the er ror did not influence the jury , or influence d the jury only slightly

. Barshaw , 342 S.W .3d at 93; Kirby , 208 S.W .3d at 574.

I n assessing potential harm, our focus is not on whether the outcome of the trial was
proper despite the err or but on whether the err or had a substantial or injurious eff ect or influence on the jury ’s verdic t. Barshaw , 3 4 2 S .W.3d at 93–94. We revie w the entire rec ord to asce rtain the eff ect o r i n fl uence on the verdic t of the wrong fully admitted evidenc e. Id. at 93; see Coble , 330 S.W .3d at 280 (in conducting harm analy sis “ we examine the entire tria l rec ord and calc ulate,

9as much as possible, the probable impact of the err or upon the rest of the evidenc e”) ; see also Moon

v. State , 44 S.W .3d 589, 595 (Tex. App.—For t Worth 2001, pet. ref

’d). We consider all the evidenc e that was admitted at trial, the nature of the e vidence supporting the verdic t, the char acte r of t he allege d err or, and howthe evidenc e mi g ht be considered in connec tion with other evidence in the case. Barshaw , 342 S.W .3d at 9 4

. W e may also consider the jury instructions, the parties’ theories of the case , closing arg uments, voir dire, and whether the State emphasized the err or. Id. ; Morales v. State , 32 S.W .3d 862, 867 (Tex. Crim. App. 2000).

I n her testimony at trial, Calderon descr ibed the events of that night, providing details of appellant body slamming her to the g round and drag g ing her by her hair. Her testimony was consistent with the statement rec orded on the dash-c am of the patrol car immediately afte r the assault happene d (which was admitted with o u t o bjection). Fur ther, her testimony was corr oborate d by photogr aph i c ev i d en ce and medical evidenc e as well as the office r’s testimony descr ibing visible injur i es and “dra g marks” consistent with her testimony

. The prosec utors did not mention the written statement in closing arg ument, nor did the State ov er l y emphasiz e the written statement otherw ise.

After examining the rec ord as a whole, including the streng th of the State’s case , we have fair assura

nce that the err oneous admission of C al d eron’s written statement reg arding the September 26th assault, if it was err or, did not influence the jury or had but a s l i gh t effect. There fore , any

err or in admitting the c omplained-of e vidence was ha rmless.
For the fore g oing r easons, we overr ule appe llant’s first point of err or.

10F alse or M isleadin g P redicat e I n his second point of err or, appellant asser ts that the Stat e prese nted false or misleading testimony when establishing the predic ate for admitting Calderon’ s hear say statements about the September 26th assault—the rec o rd ed an d written statements complained about in appellant’ s first point of err or—as excited utteranc es. He arg ues that the prosec utor cre ated a false impression about Calderon’ s opportunity to ref lect upon her s tatements at the time she made her
statements to the office rs by failing to inform the trial court that prior to Offic er Slaughte r’s arr ival at the sce ne Calder on called he r mother a nd 911.
I n his brief, appellant asser ts that the State reve aled this information during trial but only afte r the court had ruled on the admissibili ty of the statements. He appea rs to arg ue that the failure to inform the court that Offic er Sl au gh t er wa s n ot the first person Calderon told about the assault was a “withholding” of “mater ial evidenc e” that violated his rig ht to due proce ss and due

course of law. Howeve r, appellant never objected to the purported misinformation c oncer ning the timing of the statements to the office r, even when, as appellant acknow ledg es in his brief, it beca me
appar ent later in trial. Even constitutional rig hts—including the rig ht of due proce ss and due course of law—may be waived if the proper reque st, objection, or motion is not asser ted in the trial court. Saldano v. St a t e , 7 0 S

. W .3d 873, 886–87 (Tex. Crim. App. 2002); see Mende z v. State , 138 S.W .3d 334, 342 (Tex. Crim. App. 2004). I f a party fails to pro p erly object to constitutional

err ors at trial, these err ors can be forf eited. Cl a r k , 3 6 5 S.W .3d at 339; Briggs v. State , 789 S.W .2d 918, 924 (Tex. Crim. App. 1990 ). He re , ap pellant never objected to the purported misinformation or lack of information in the S t at e’s predic ate at all (at any point in the trial), let

11alone on the basis of the now asser ted constitutional violations. Acc ording ly , appellant forf eited any complaint about the alleg ed misinformation violating his constitutional rig hts to due proce ss and due

course of law.
More importantly , appellant has wholly failed to demonstrate that the State prese nted false or misleading information in establishing the predic ate for the excited-utteranc e exception by failing to inform the trial court that Offic er Slaughte r was not the first per s o n t o whom Calderon made statements. The predic ate for establishing that a statement meets the excited-utteranc e exception require s a show i n g t h at the statement is a “stateme nt rela ting to a startling event or condition made while t h e decla rant was under the stress of excitement cause d by the event or condition.” See Tex. R. Evid. 803(2); Salazar v. State , 38 S.W .3d 141, 154 (Tex. Crim. App. 2001). There is no require ment t h at t h e statement be the first statement made by the decla rant about the
event. The statement must simply have been made befor e the decla rant’s excitement cause d by the startling event or condition has abate d. Zuliani , 97 S.W .3d at 596. Her e, as we discussed in the first point of err or, Off

icer Slaughte r’s testimony established that Calderon was still under the stress of excitement cause d by

appellant’ s assault when she made the sta tements to the offic ers. Thus, it is irrele vant that Calderon told others about appellant’ s assault befor e telling Offic er Slaughte r about it when he a

rrived on the scene . We overrule d appellant’ s second point of e rror .

Ineff ect ive Assistance of Counsel
I n his final two points of er ro r, ap p el lant contends that his trial counsel, the third attorney appointed to repr esent him, rende red ineffe ctive assistance during both the g uilt-innocence

12and punishment phases of trial. Appellant complains of multipl e actions or inactions on the part of

trial counsel, including the failure to eng ag e in particula r pretria l discovery , the “inept questioning” of appellant duri n g h i s testimony , the failure to reque st a curative instruction, and the failure to object to the admission of var ious ty pes of e vidence

. 9
To establis h i n ef

fe ctive assistance of counsel, an appellant must demonstrate by a preponde ranc e of the evidenc e both defic ient perf ormanc e by counsel and prejudice suffe red by the defe ndant. Strickland v. W ashington , 466 U.S. 668, 687 (1984); Nava v. State , 415 S.W .3d 289, 307 (Tex. Crim. App. 2013). The appellant must first demonstrate that counsel’s perf ormanc e fell below

an objective standard of rea sonablene ss under preva iling profe ssional norms. Strickland , 466 U.S.
at 687–88; Nava , 415 S.W .3d at 307. The a ppellant must then show the exist ence of a rea sonable probability

—one suffic i en t t o undermine confide nce in the outcome—that the result of the
proce eding would have been differ ent absent counsel’s defic ient perf ormanc e. Strickland , 466 U.S.
at 694; Nava , 415 S.W .3d at 308. Fa ilure to make the require d showing of either defic ient perf ormanc e or sufficie nt prejudice defe ats the ineffe ctiveness claim. Strickland , 466 U.S. at 700;
see Pe rez v. State , 310 S.W .3d 890, 893 (Tex. Crim. App. 2010).

Appellate revie w of counsel’s repr esenta tion is highly defe rential; we must indulge

a strong presumption that counsel’s repr esenta tion falls within the wi de rang e of rea sonable profe ssional assistance —that is, we must p re s u m e t h at trial counsel’s decisions wer e rea sonably

The majority of appellant’ s complaints (16 of 19) involve trial counsel’s failure to object, 9 or to make the “appr opriate” objec t i o n , t o purportedly inadmissible evidenc e, including opinion testimony , hear say evidenc e, victim impact evidenc e, char acte r evidenc e, and extraneous conduct e vidence

. 13profe ssional and motivated by sound trial strateg y . Strickl a n d , 4 6 6 U.S. at 686; Salinas v. State ,

163 S.W .3d 734, 740 (Tex. Crim. App. 2005); see Nava , 415 S.W .3d at 307–08 (“c ourts indulge in

a strong presumption that counsel’s conduct was not defic ient”). To rebut that presumption, a claim of ineffe ctive assistance must be “firmly founded in the rec ord” and “the rec ord must aff irmatively demonstrate” the meritorious nature of the claim. See Mene field v. State , 363 S.W .3d 591, 592 (Tex. Crim. App. 2012); Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial re co rd b y itself be sufficie nt to demonstrate an ineffe ctive-a ssistance claim. Nava , 415 S.W .3d at 308; see Lopez v. State , 343 S.W .3d 137, 143 (Tex. Crim. App. 2011). I f trial counsel h as not been affor ded the opportunity to explain the reasons for his conduct, we wil l not find him
to be defic ient unless the challeng ed conduct was “so outrag eous that no competent attorney would have eng ag ed in it.” Nava , 415 S.W .3d at 308 (quoting Mene field , 363 S.W .3d at 593); Goodspee d , 187 S.W .3d at 392.

I n this case , appellant filed a motion for new trial. Howeve r, he did not raise a claim of ineffe ctive assistance of counsel in the motion. Thus, the rec ord is silent as to why trial counsel
acte d or failed to act in the manner that a ppellant now complains a bout on appea l. Consequently , the rec ord befor e this Court is not su ff i ci en tly develope d to allow us to evalua te those supposed improper actions or failure s to act beca use “[n] either [hi s] counsel nor the State have been g iven an opportunity

to respond to” the c laims of ineffe ctiveness. See M enefield , 363 S.W .3d at 593. The rec ord is silent as to whether there was a strateg ic rea son for counsel’s conduct. Appellant’s repe ated asser tion that there was none is mere specula tion. Such specula tion doe s not constitute a demonstration, founded in the rec ord, that no rea sonable trial strateg y exis t ed

. See

14Lopez , 343 S.W .3d at 142 (“[C] ounsel’s defic iency must be aff irmatively demonstra t ed in the trial rec ord; the court must not en gage in retrospe ctive specula tion.”); see also Villa v. State , 417 S.W .3d 455, 463 (Tex. Crim. App. 2013) (“[C] ounsel’s alleg ed defic iency must be aff irmatively demonstrated in the trial rec ord.”)

. Counsel was not aff orded an opportunity to explain his rea sons for the complained- of conduct. Absent rec ord evidenc e reg arding counsel’s strateg y or rea soning,

we will presume he exercised rea sonable profe ssional judgme nt. See Hill v. State , 303 S.W .3d 863,
879 (Tex. App.—For

t Wor t h 2009, pet. ref

’d); Poole v. State , 974 S.W .2d 892, 902 (Tex. App.—Austin 1998, pet. re f’d) ; see also Lopez , 343 S.W .3d at 143. Appellant has failed to rebut the stro n g p resumption of rea sonable assistance beca use without explanation for trial counsel’s decisions, the complained- of conduct does not compel a conclusion that trial counsel’s perf ormanc e

was defic ient. We cannot say that “no rea sonable trial strateg y could justify ” counsel’s decision to
eng ag e in the complained- of conduc t. See Lopez , 343 S.W .3d at 143. Nor can we conclude that 1 0
counsel’s c onduct was “so out rag eous t hat no competent attorney would have e ng ag ed in it.” See
Mene f i el d , 363 S.W .3d at 592. Acc ording ly , we find that appellant has failed to demonstrate defic ient perf

ormanc e on the part of his trial counsel

. See Frangias v

. State , 392 S.W .3d 642, 653 (Tex. Crim. App. 2013) (“[U]nless there is a rec ord sufficie nt to demonstrate that counsel’s conduct

For example, appellant complains about trial counsel’s failure to object to the admission 1 0 of Calderon’ s hear say statements about the assaults in the rec ording s of the 911 calls. An arg ument can be made, howeve r, that these statements wer e admissible as excited utteranc es, an exception to the hear say rule. More importantly , howeve r, the defe nse s t rateg y involved emphasizing inconsistencies in Calderon’ s statements and demonstrating that Calderon was falsely acc using appellant. Thus, it may be that counsel felt that he rec eived some benef it to the admission of the 911 rec ording s —from inconsistencies shown in her statements or the demea nor that she exhibi ted in the re cording s. 15was not the product of an informed strateg ic or tactica l decision, a revie wing court should presume

that trial counsel’ s perf

ormanc e wa s constitutionally adequate ‘unless the challeng ed conduct wa s so outrag eous that no compe tent attorney would have e ng ag ed in it.’”)
Be cause appellant failed to meet his burden on the first prong of Strickland , we need
not consider the require ments of the second prong —prejudice

. Lopez , 343 S.W .3d at 144; see also
W illiams v. State , 301 S.W .3d 675, 687 (Tex. Crim. App. 2009) (“An a ppellant’s fa ilure to satisfy

one prong of the Strickland test neg ates a court’s need to consider the other prong .”). Neve rtheless,

we a lso find that appellant fa iled to demonstrate that he suffe red pr ejudice.

Even if an appellant shows that particula r err ors of co u n s el were unrea sonable, he
must further show that they actua lly had an adver se effec t on the defe nse. Strickland , 466 U.S. at 693–95; Cochran v. State , 78 S.W .3d 20, 24 (Tex. App.—Ty ler 2002, no pe t.). I t is not suf ficient that an appellant show, with the benef it of hindsight, that his counsel’s actions or omissions during trial wer e of questionable competenc e. Lopez , 343 S.W .3d at 142–43. Fur ther, mere ly showing that the err ors had some conce ivable eff ect on the proce eding s will not suffice

. Strickland , 466 U.S. at 693; Ex parte M

artinez , 330 S.W .3d 891, 901 (Tex. Crim. App. 2011). The a ppellant must prove that counsel’s e rror s, judge d by the totality of the re prese ntation, not by isolated instances of

err or or by a portion of the tr ial, denied him a f air trial. Strickland , 466 U.S. at 695. Appellant arg ues that this Court should find prejudice beca use the cumulative eff

ect of the alleg ed err ors demonstrates that his trial counsel failed to subject the State’s case to a meaning ful adver sarial challeng e. He maintains that counsel’s perf ormanc e resulted in a brea kdown of the adver sarial proce ss. We disag ree . During voir dire, trial counsel extensively questioned the

16jury panel reg arding their abili ty to serve o n t h e jury : he dis cussed important leg al concepts such

as the State’s burden of proof, appellant’ s Fifth Amendment rig ht not to te stify , and the applicable punishment rang e; he explored possible bias or preconce ptions rela ting to appellant; he discussed issues fac tually rele vant to the case such as dating rela tionsh i p s , t roubled rela tionships, and infidelity ; he asked th e j urors their opinions reg arding g overnme nt involvement in persona l rela tionships; he discussed possible rea sons why an alleg ed victim might falsely acc use someone of

a crime; he talked about the cre dibilit y of law-e nforc ement witnesses and asked the panel members about their prior interac tio n s wi t h law-e nforc ement personne l; he discussed the eff ect that a defe ndant’s prior misconduct might have on decision making ; and he challeng ed sever al panel members for cause . Fur ther, the rec ord shows that counsel prese nted and d ev el o p ed a defe nse strateg y involving alterna te perpe trators and a false acc usation by Calderon ag ainst appellant instigate d by his infidelity in their rela tionship. I n support of this defe nse, trial counsel emphasized, throug h cross-e x amination of the State’s witnes s es and in jury arg ument, the fac t that Caldron
repe atedly g ave inconsistent statements about the assaults. Also, during his closing arg ument, trial counsel ag ain discussed the State’s burden of proof and reminded the jury that even though there was evidenc e of appellant’ s prior misdeeds, the jury should only find him g uilty if they conclude that he
was g uilty

of the off enses a ctually

char g ed.
An acc used is not entitled to entirely err orless repr esenta tio n, and we look to the totality of the repr esenta tion in g aug ing the adequacy of counsel’s perf ormanc e. Frangias , 392 S.W .3d at 653. The rec ord in this case reve als that counsel’s trial strateg y was to prese nt evidenc e of alterna

tive perpe trators of the alleg ed ass au l t s an d a motive for Calderon to falsely

17acc use appellant. Counsel focuse d on the inconsistencies of Calderon’ s descr iptions of the assault

incidents, including the fac t that she named someone else a s the perpe trator of one of the assaults, and her rea son for fa lsely acc using appellant: appellant’ s repe ated infidelity

. The fac t that this strateg y ultimately

proved unsuc cessf

ul does not rende r counse l’s assistance ineffe ctive.
On t he recor d befor e us, appellant has failed to demonstrate deficie nt perf ormanc e

on the part of his trial counsel or that he suffe red prejudice beca use of the alleg ed err ors of counsel. Thus, he has not shown himself entitled to reve rsal based on ineffe ctive assi s t an ce of counsel.
Acc ording ly , we ove rrule a ppellant’s third and f

ourth points of err or.

CONCLUSION Having overr

uled appellant’ s four p o in

ts of err or, we aff

irm the trial court’s judgme nt adjudicating g uilt and judgments of c onviction.

__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: Oc tober 17, 2014 Do Not Publish

18