### IN THE TENTH COURT OF APPEALS No. 10-12-00110-CR ALFONSO HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee

From the 278th District Court Walker County, Texas Trial Court No. 25,353

MEMORANDUM OPINION
A jury found Appellant Alfonso Hernandez gu ilty of cruelty to nonl ivestock animals and assessed his punishment at two years’ confinement in a state-jail facility and a $1,000 fine. This appeal ensued. Factual Background Marcus Luttrell testified that in the early morning hours of April 1, 2009, he let his therapy dog DASY outside. 1 The dog had no injuries at that time. Luttrell subsequently heard a gunshot and grabbed his pistol. He first went next door and checked on his mother. Luttrell then

1 Luttrell, a former Navy SEAL, said that DASY was an acronym that he cr eated out of the names of his fourmember reconnaissance team (three of whom were killed) in a 2005 mission in Afghanistan.Hernandez v. State Page 2 made his way to the road and saw a car, his dog laying in the ditch, and two men standing outside the car. The men got in the car and started driving off, talking and la ughing. Luttrell checked on DASY, but she was dead. He then ran and got in his truck, began chasing the car, and called 9-1-1. Luttrell chased the car from Walker County to Polk County, where it was stopped by police. Just before Hernandez’s trial began, Michael Edmonds made an open plea of guilty. Edmonds testified that Hernandez picked him up at his house and they went “riding around” and “hunting,” which they did freque ntly. Edmonds said that He rnandez had a shotgun and that Hernandez used it to shoot a dog. Later, they picked up He rnandez’s brother Arturo and Arturo’s friend Caleb McGough. They all went back to Edmonds’s house to get another gun (Edmonds’s .357 handgun) and then continued “driving around.” McGough was driving; Hernandez and Edmonds were in the backseat. Edmonds testified that a dog started chasing the car at some point and he shot her with his .357. McGough turned the ca r around and went back to where the dog had fallen in the road. Herna ndez, Arturo, and McGough got out of the car. Edmonds testified that Hernandez then repeat edly hit the dog with a wooden baseball bat that had been in the backseat of the car. Edmond s said, “[T]hey kicked it, hit it” while laughing. They then got back in the car and continued up the road. Edmonds noticed that someone was coming up behind them very quickly. During the ch ase, Hernandez told Edmonds to get rid of his gun, and Edmonds threw his .357 out the window. Edmonds described the scene in the car as “chaos”: “you have somebody chasing you with a gun, and obviously you’re scared, and you’re trying to get rid of your gun and all the other stuff that you have on you.” Hernandez folded down the back seat and put his shotgun in the trunk before they were ultimately stopped by the police.Hernandez v. State Page 3 Arturo testified that he, Hernandez, Ed monds, and McGough left Edmonds’s house to go “riding around” and to smoke mar ijuana. A dog started chasing th e car, and he heard a gunshot. Edmonds told McGough, who was driving, “Just re verse, I want to see what I got.” McGough backed up. Edmonds got out of the car and star ted laughing. Arturo said that no one used a baseball bat. Edmonds got back in the car, and they drove off. They ended up in a high-speed chase and were eventually stopped by the police. Texas Ranger Steven Jeter testified that when he interviewed Hernandez, Hernandez told him that he, Edmonds, Arturo, and McGough decided to do a little “road hunting.” Jeter’s audiorecorded interview with Hernandez was admitted as evidence and played for the jury. In the interview, Hernandez told Jeter that he had never shot a dog. He said that Edmonds shot Luttrell’s dog from the car and then got out of the car and looked at the dog. Luttrell’s dog was the second dog Edmonds had shot that night. Hernandez said that Edmonds threw his gun out the window and that Hernandez’s shotgun was put in the trunk. Elzie Parrish , patrol sergeant for the Onalaska Police Department in Polk County at the time of the in cident, testified that when he searched Hernandez’s car that ni ght, he found the shotgun in the trunk. He found no baseball bat in the car. Walker County Sheriff’s Deputy Stephen Casper testified that he had been at the scene that night and had taken several photos of th e dog. Casper confirmed that the dog suffered a gunshot wound. When asked if he could identi fy in the photos any other wounds on the dog other than the gunshot wound, he replied that one of the front legs looked a little swollen and that the neck looked a little more swollen than average. He also said that the legs of the dog appeared to have blunt-force injuries. He stated that a necropsy was not performed on the dog. Finally, Stephenie Vallie testif ied that she has been the ow ner and operator of MagnoliaHernandez v. State Page 4 Boarding Kennels since 1989 and, be fore that, was a narcotic canine sergeant for the prison system for fourteen years. She has also vol unteered and been empl oyed by Texas Hearing and Service Dogs for numerous years, which involve d training service dogs for the disabled. Vallie stated that a lot of her training in dealing with dogs has come from the amount of time that she spends with dogs but that she has also attended numerous classes and ed ucation programs. She has trained people to train dogs. In all her year s of dealing with dogs and training dogs, she has also seen dogs that have been shot, beaten, abus ed, hit by a vehicle, and injured accidentally. On cross-examination, however, Vallie acknowledged that she is not a gunshot expert, is not a blood-spatter expert, and does not kn ow how to perform a necropsy. When she looked at the photographs of DASY, the first things she noticed were the way that DASY was laying, the blood, the coloration of th e hair, the different patterns of the hair, and the way that the mouth was opened slightly. Vallie explained that those things meant that the dog did not die instantly, “just basically trauma.” Vallie testified that DASY suffered trauma other than the gunshot wound and specifically identifie d an injury on the dog’s leg. Vallie stated that the leg injury was consistent with an injury she had seen to a narcotic dog that had been beaten with a bat and had seve ral broken bones. She also desc ribed some of the trauma as having a “cylindrical pattern.” Ineffective Assistance of Counsel In what appears to be two issues with seve ral sub-issues, Hernande z contends that he received ineffective assistance of counsel and that he was harmed by such ineffective assistance. To prevail on an ineffective assistance of counsel claim, the familiar Strickland v. Washington test must be met. Wiggins v. Smith , 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2dHernandez v. State Page 5 674 (1984)); Andrews v. State , 159 S.W.3d 98, 101-02 (Tex. Crim . App. 2005) (same). Under Strickland , the appellant must prove by a prepondera nce of the evidence that (1) counsel’s performance was deficient, and (2) the defe nse was prejudiced by counsel’s deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. Absent both showings , an appellate court cannot conclude that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The appellate court looks to the totality of the representation and the particular circumstances of each case in evalua ting the effectiveness of counsel. Id. There is a strong presumption that counsel’s actions and decisions were reasonably prof essional and motivated by sound trial strategy. See Salinas v. State , 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Stults v.
State , 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist .] 2000, pet. ref’d). To overcome the presumption of reasonably professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson , 9 S.W.3d at 813. When the record is silent regarding the reasons for counsel’s conduct, a finding th at counsel was ineffective would require impermissible speculation by the appellate court. Gamble v. State , 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (citing Jackson v. State , 877 S.W.2d 768, 771 (Te x. Crim. App. 1994)). Therefore, absent specific explanations for couns el’s decisions, a record on direct appeal will rarely contain sufficient information to ev aluate an ineffective-assistance claim. See Bone v.
State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Hernandez argues that his trial counsel’s perf ormance was deficient because he failed to object to Vallie’s testimony “on th e grounds that it was an opinion or conclusion of a person notHernandez v. State Page 6 qualified as an expert witness in either veteri nary medicine or in necropsy” under Rules of Evidence 701 and 702. The record is silent as to trial counsel’s reasons for his actions and decisions. To conclude that trial counsel wa s ineffective for failing to object to Vallie’s testimony would therefore call for sp eculation, which we will not do. See Jackson , 877 S.W.2d at 771; Gamble , 916 S.W.2d at 93. Hernandez argues that even with the silent record, the presumption of sound trial strategy should be overcome because Vallie’s testimony was proffered to corroborate the testimony of his alleged accomplice Edmonds. And if Vallie’s te stimony were excluded, then Hernandez would be entitled to an instructed verdict of ac quittal because Edmonds’s testimony would not be corroborated. See T EX
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. art. 38.14 (West 2005) (“A conviction cannot be had upon the testimony of an accomplice unle ss corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”). Hernandez’s appellate counsel states, “The undersigned counsel knows of no Defense trial st rategy where one willingly gives up on such a possibility.” 2 But this position overlooks Casper’s testim ony, which was very similar to Vallie’s testimony in that he described several othe r injuries on the dog besides the gunshot wound, including blunt-force injuries. 3 Other evidence also tends to connect Hernandez to the offense,

2 In the absence of evidence of trial counsel’s reason for the challenged co nduct, we assume a strategic reason for trial counsel’s conduct, if one can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[A]n appellate court ‘commonly will assume a strategic motivation if any can possibly be imagined,’ and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it.”) (quoting 3 W. L AFAVE , ET AL ., C RIMINAL P ROCEDURE § 11.10(c) (2d ed. 1999) and citing Thompson , 9 S.W.3d at 814).

3 Hernandez’s trial counsel did not object to Casper’s initial description of the dog’s other wounds but did object that Casper was not an expert when Casper was asked to descri be what kind of wounds they were. That objection was initially overruled, but the trial court then ruled that Casper could describe the wounds but could not opine on theirHernandez v. State Page 7 including his own interview with Jeter. 4 See Gill v. State , 873 S.W.2d 45, 48 (Tex. Crim. App. 1994) (“All that is required is that there be some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment.”). Thus, without evidence as to trial counsel’s reasons for his actions and decisions, we must conclude that Hernandez has not overcome the presumption that trial counsel’s decision not to object to Vallie’s testimony on the grounds that it was an opinion or conclusion of a person not qualified as an expert witness in either veterinary medici ne or in necropsy was reasonably professional and motivated by sound trial strategy. 5 See Salinas , 163 S.W.3d at 740; Gamble , 916 S.W.2d at 93. For these reasons, we overrule Hernandez’s issu es and affirm the trial court’s judgment.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed March 27, 2014 Do not publish [CR25]
causes. Hernandez does not complain of that ruling on appeal, nor does he assert that trial counsel was ineffective in failing to object to Casper’s initial description.

4 Excluding Vallie’s testimony, the evidence that tends to connect Hernandez to the offense and corroborates Edmonds’s testimony includes the follo wing: Hernandez admitted to road h unting by shooting other animals. Although he reported that Edmonds killed the other dog, He rnandez continued to ride ar ound hunting with him. Hernandez was riding in the backseat of his own car with his shotgun while letting someone else drive at the time DASY was shot. In his interview with Jeter, Hernandez st ated that Edmonds told him to “get back in the car” and he “got back inside the car,” indicating that he was out of the car when Edmonds was observing DASY’s body. Luttrell stated that he saw two men outside the car over DA SY. And again, Casper testified to the appearance of the gunshot wound but also indicated that there were other injuries to the dog.

5 The jury charge contained a charge on the law of parties; therefore, Hernandez was cr iminally responsible for the offense if “acting with intent to promote or assist the commission of the offense, he solicit[ed], encourage[d], direct[ed], aid[ed], or attemp t[ed] to aid the other person to commit the offense.” T EX

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. § 7.02(a)(2) (West 2011). We also agr ee with the State’s contention that, becau se Hernandez was tried as a party to the offense of shooting the dog with a firearm, the State did not have to prove that Hernandez beat the dog with a baseball bat. And because Hernandez has not challenged on appeal the sufficiency of the evidence to support his conviction as a party to the offense, he therefore cannot show prejudice or ha rm on his ineffective-assistance claim with respect to Vallie’s testimony about the other trauma to DASY.