### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00216
- CR

Roland Darrell Trotter, Appellant

v. The State of Texas, Appellee

FROM THE 274TH DISTR ICT COURT OF HAYS CO UNTY NO. CR
- 17
- 0254, THE HONORABLE GARY L. ST EEL, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
A jury co nvicted appellant Rol a nd Darrell Trotter of the thi rd de gre e felony offense s of assault family violence , repeat off ender (Count I) , s ee Tex. Penal Code § 22.01( b )(2)( A ) ; violation of a prote ctive order, repeat of fender (Count II) , i d. § 25.07(g)(1); and violation of a protective order, family violence (Count III) , id. § 25.07(g )( 2)

. Follow ing a punishment hearing in which appellant pleaded true to an en hancem ent paragraph , t he trial c our t
sentence d appell ant to t welve years ’ confi nement for both Counts I and II , s ee id. § § 12 .3 3 , 12.42(a) , and sentenced appellant to a fine of $1,000 and ten years ’ confinement for Count III , but the court su spend ed the sentence of confinement for Count III and placed hi m on communi t y

s upervision for ten years , s ee Tex. Code Crim. Pro c. art . 42A .053

. On appeal, ap p ella n t claims that he was denied effective assistance of counsel

. Because we conclude that appellant has not2

demonstrated that his trial attorney ’ s performanc e was defici ent , w e affirm the j udgment s of conviction.
Background

Appell ant w as charged by indictment with three offenses arising out of an
i ncident involving his ex

- girlfriend Jennifer Hernandez on or about December 2, 2015 , at a hotel where she w ork ed

. C o unt I

— a ssault family violen ce, re peat offender

— included allegations of

a n April 2010 convi ction for assault bodily injury family violence , see Tex. Pen al Code § 22.01(b)(2) (A) ( stating that offense is third degree felony when defendant pr eviously ha s been

con vi ct ed of o ffense against family m em ber or person with who m defendant has or ha s had dating relationship ) ; C o unt II

— violation of a p rotective order, rep eat offender

— included alleg ations of a n April 2014 conviction and a May 2015 con viction for vi olati on s of a protecti ve order , see id. § 25. 07(g)(1) ( stating that offense is third degree felony when defendant pr eviously ha s been con victed two or more times of offense under sec t ion ) ; and Count III alleged that appellant vi olated the p rotect ive ord er by committin g family violence a gainst Hernandez , “ a protected individual described in the p rotective order , to

- wit: by intentionally and knowingly causing bodily injury to [ her] by striking her on or about the hea d and or body w ith a hand

. ” The indictm ent also includ ed an enhan cement paragra ph

. S ee id. § 12.42 ( a )

.

T he jury tri al occurred in Januar y 2018. Appellant pleaded not gui lty , but he signed a stipulation of facts in which he sti pu lated t o his previo us con victions alleg ed in the ind ict ment

. Th e ex hib its in clu ded app ellant ’ s stipulation of facts and a copy of the p r otective order

. The pro tective order was agreed, and a ppellant signed it on Au gust 29, 2013. It prohibited appellant f

rom , among other actions , communicating with Hernandez , exc ept through3

his m oth er or attorn eys ; goi ng within 200 y ards of a location where he knew that she was present ; and engaging in conduct directed spe cifically toward Hernandez “ tha t [was] reasonably likely to h arass, anno y, a larm, abuse, t orment, or embarrass tha t person ” ; bu t i t allowed appellant
to have visitation with his child at a t hird

- party facility

. Appellant and Hernandez a re the child ’ s parents

. The protective order also state d that i t wo uld expire on August 2 9, 2 01 5, unless appellant “ [ was ] incarcerat ed on that da te in which case the order will r emain in e ff ect for one
year after the date of [appellant] ’ s release fro m incarceration. ” In the stipulation of facts,

a ppell ant also stipulated that he was incarcerat ed on A ug ust 29, 201 5, for violation of a protective or der and released September 19, 2015

.

Based on appellant ’ s stipulation of facts , the trial judge advised the State and
appe llant that he would “ limit

—unl ess some door is opene d or you c an convi nce me t hat there is another eviden tiary reason , I ’ ll limit any t estim ony on prior convictions. ” The prosecutor responded :

And we

— and that ’ s what we intend to do. We ’ re not going to offer much at all. It ’ s just we might ask the lady : Has

— was he ever arrested f or the violation p revious to this e ve nt ? S he ’ s pr ob ably

— she ’ s going to sa y “ Yes. ” But that ’ s it. We ’ re just going to leave it alone and we ’ re not going to talk about an y of the facts, any of [the ] sentences, an ything like that.

The ex hibits at trial also included photographs . One of the photographs wa s of appellant and Hernandez at the hotel and other photo graphs were of Hernandez ’ s face that w ere
t aken after appellant allegedly slapped her

. The State ’ s witnesse s were Herna ndez and one of the
respo nding officer s to the incident on Decem ber 2, 2 015

. T he ju ry heard evidence th r ough Hernandez ’ s testimony that appellant assaulted her at the hotel

. Hernandez te stified that sh e worked in housekeeping at the hotel ; she was at wo rk when ap pellan t was “ ste ad y ca lling ” her ;4

they saw each other t h r ough a window ; he “ c a me through the door ” ; and she tried t o get away from him by going into a storage clos et , but he followed her into the closet and “ grabbed [ her ] by [ her ] ne c k

. ” She al so tes ti fied that, durin g the incident at the hotel , a ppe llant “ r ipped ” her phone
out of her shirt ’ s pocket and “ slapped the shit out of [ her ]

. ”

The defense theor ies to the ju ry w ere that the State had not me t its b urden of proof, f o cusing on witnesses that the State did not c all such as the other responding o ffi cer, a nd that Hern andez ’ s testimony was not credible

. The def ense called appellant ’ s mother , his fiancé e , and Hernandez . His mother and fiancé e testified th at Hernandez and the child were at the house of appellant ’ s mother a t the same time appellan t was there i n late Dece mber 201 5

. A ppellant ’ s fiancé e als o testified that Hernandez was un happ y about appellant ’ s r elation ship with his fian cé e . Alth ough Hernandez den ied that she had contacted appellant

— s he tes tified that it was appellant
cont acting her

— she admitted t o seeing him, co mmunicating with him , and agreeing t o let him bring her food . She testi fied that she had to communicate with him to “ play his cat

- and

mouse games . ”

Afte r the defense passed Hernandez to the State f or qu est ioning , the trial court

overrul ed appell a nt ’ s obj ection and allowed the S tat e to question Hernandez about h er relationship with appellant because the defense had “ open ed the discussion of the relationsh i p . ”
Th e trial court conclud ed that “ the door [had] been opened ” after the prosecuto r made th e followi ng argument:
So we were trying to keep this neat and nice and to the po int with this one incident and I think we ’ve gone a nd the Defense has gone way into the rel ationship of the parties. To give a fair picture to the jury, according t o 38.371 I want to g o into the relationship between the defendant and the victim.5

I want to talk about their relationship before this e vent and after and the violen ce and t he protective order violations previous to this event and aft er. That ’s per the s tatute. I would like you to read it and then make the call. It ’s a family viol ence.

See T ex. Code Crim. Pro c. art. 38.371 (authorizing , subject to T exas Rules of Evidence or other applicable la w, testimony or evi den ce “regard ing the nature of the relatio nship bet w een the acto r and the alleged victim ” in prosecution of certain offenses involving family viol ence ). Following the trial court ’ s ruling , Hernandez tes tified about other actions by appellant directed toward Hernandez , includi ng des cribing past in cidents t h at formed th e basi s of appellant ’ s prior convictions and other incidents in which appellant al legedly co mmit ted acts of do mesti c violence against Hernandez

.

The j ury found appellant guilty o n all three c ounts , and th e punishment p hase was tri ed to the cou rt in March 2018

. Appellant pl eaded t rue to the enhancement paragra ph

. The
S tate called Hernandez w ho provided further testimony a bout her relationship with appellant

. She tes tified that their relation sh ip began in 2006 a nd ended in 2012, t hat appel lant first assa ulted her in 200 9 , a nd that he had assaulted her multiple other times. She also tes tified about the negative e ffect o f the De cember 2015 incident on her life , including losing her job , and her fear of appellant

. At the conclusion of the ev idence on punis hment , t he trial court sentenced appell ant to twelve years ’ confi nement for both C ount s I and II

. S ee Tex. Penal Code § § 12 .3 3 (setting punishm ent range for second de gree felony to be “ any ter m of not more than 20 years or less tha n 2 years ” ) , 12.42(a) ( s ta ti ng th at defendant shall be punished for second degree felony when “ it is shown on the trial of a felony of the third de gree that the defendant has previo usly been finally convicted of a fel ony other than a state jail felony pun i shable un der Section
12. 35(a) ” )

. T he tr ia l cou rt senten ced appellant to ten ye ars ’ confinement a nd assessed a fine of6

$1,000 for Count III , but su spend ed the sentence of confinement and placed him on communit y

s upervision fo r ten years

. See Tex. Code Cr im. Pro c. art. 42A .053. The trial court also ordered the sentences to run concurrent ly

.

Appellant filed a motion for new trial , arguing that the other responding officer, who was una vaila ble at trial, “ was material to pr ove that complainant lied ” and that evi dence had been d est royed that would show that “ complainant lied. ” Appellant also filed an amended motion for new trial , whi ch alle ged that appellant ’ s trial attorney provided ineffective assistance because he failed to call witnesses d uring the pu nishment phase, obtain an i nves ti gator for the

case, or give a mitigation report. Appellant ’ s motion for new trial wa s overruled by operation of law.
Analysis

In his sole issue, appellant argues that he w as denied effective assist ance of

couns el because his trial att orney “ elicit ed testi mony from the complainant that Appe llant committed additional violations of a p rotective order, and then ‘ opened the door ’ to specific details of prior domestic violence in cidents

— after the State had ag reed to l imit details b y stipulation. ”

Stand ar d of Re view

To establish ineffecti ve as si stance of counsel, an appellant must demon strate both deficient performance by counsel and prejudice suffered by the defendant. Strickl and

v. Wa shington , 466 U.S. 66 8, 687 (1 984); Na va v. State , 415 S. W.3d 289, 30 7 (Tex . Crim . App. 2013). The appel lant mu st first demonstrate that counsel ’ s perfor mance fell below an objective standard of reasonableness under preva iling professional norms. Strickl and , 466 U.S. at 687

– 88;7

Nava , 415 S.W .3d at 307

– 08 ; se e also Frangia s v. S tate , 450 S.W.3d 125, 136 (Tex . Cri m. App. 2013) (explaining that “ accused is n ot entitled to representation that is wholly errorless ” and that

“ re viewing court must look t o the total ity of the represen tation in gauging t he a dequacy of

co un sel ’ s perf

ormanc e ” ). The appellant must then show th e existence of a reasonable probability

— on e sufficient to undermine confidence in the outcome

— that the result of the proceeding would h ave been di fferent absent coun sel ’ s def icient per form ance. Strick la nd , 466 U. S. at 694; N

ava , 415 S.W.3d at 308. “ [A] n appellant ’ s failure to satisfy one prong o f the Strickland test negates a court ’ s need to consider the other p rong. ” Garcia v. State , 57 S.W.3d 4 36 , 440 (Tex. Crim. App. 200 1) (citing Str ickland , 466 U. S. at 697)

.

Ap pell at e review of counsel ’ s re prese nt ation is highly deferential; we must

“ indu lge in a strong presumption that counsel ’ s conduct was not deficient

. ” Nava , 415 S.W.3d at
3 07

– 08; see Strickland , 466 U.S . at 686. To rebut tha t presumption, a claim of ineff ecti ve assistance “ must be ‘ fi rmly fo unded in the record, ’ ” and “ ‘ the record mu st affirmatively demonstrate ’ the meritorious nature of the claim. ” See Menefield v. State , 363 S.W.3d 591, 592 (Tex. Crim . App. 20 12) (quoting G oodspeed v. State , 187 S. W. 3d 3 90, 39 2 (Tex. Cr im. App. 2005) )

. R ar ely will the trial record by itself be suf ficient to demonstrate an ineffective

- assistance claim. Nava , 415 S. W.3d at 308. “ If trial c ounsel has not been affor ded t he opport unity to expla in the rea sons for his co nduc t, we wi ll not find him to be de ficie nt unless the challenged conduct was ‘ so out rageous that no competent attorney would have engaged in it. ’” Id. (quoting Menefield , 363 S .W.3d at 593); Goodspeed , 187 S.W.3d at 392. Guided by these p rinciples, we
t urn to appel lant ’ s compl aint that h e was denied effective assist ance of counsel

.8

H as appellant demonstrated t hat he was denied effective assist ance of counsel?

Appel lant argues that he received ineffectiv e assista nce of counsel because his trial attorney “ introduc ed evidence of additional, uncharged violations of a protective order

c ommitted by Ap pellant ” and “ carelessly ‘ opened the door ’ to the admission of detailed prior acts of domesti c violence against the comp lain ant , after the State had agreed on th e record n ot to
pre sent any information on prior incidents, other than signed sti pulations of jurisdictional convictions. ” See Tamaz v. State , 11 S.W.3d 198, 20 1

– 0 2 (Tex

. Crim. App. 2000) (explain ing that defendant ’ s stipulation to previous conviction s th at w ere jurisdictional el eme nt s of offense

“ sh ould suffice when it carries the sa me evidentiary value as the judgme nts of prior convictions, yet substantially les sens the l ikelihood that the jury will impro perly foc us on the prev ious

con viction or the defe ndant ’ s ‘ bad character ’ ” ) ; see also H ollen v. State , 117 S.W.3d 798, 8 0 1

– 0 2 (Tex. Crim. App. 2003) ( concluding that tri al court did not err in admitting stipulation of prio r convictions that were jurisdicti onal elem ents of o ffens e charged)

. Appellant argu es that such

error “ was so egregious as to constitute ineffective assistance as a matter of law , ” and that “ [ n ] o reasonable t rial st rate gy exists to justify such action

. ”

A ppellant focuses on the S tate ’ s case in chief , in whi ch the State d id not introduc e evidence about appellant ’ s “ prior convi ctions, extran eous past bad acts or detai ls of the relationship ” be tween appellant and Hernan dez other than to offer appel lant ’ s stipulation o f facts as an exhibit , as c omp ared with He rn an dez ’ s testim ony after the d efense in its case passed her to the State for questioning

. At that jun cture, t h e State was allowed to question Hernandez in detail about her relat ionship w ith appellant and additional prior incidents i n which ap pellant had vi olat ed the protective order a nd committed acts of domesti c violence against Hern andez, including incidents that r esulted in appellant ’ s incarcerat ion

.9 “ Admitting evidence of prior conviction s and other bad acts is g enerally
pr ohi bited dur ing the guilt

- inno cence p hase. ” Robles v. St ate , 85 S.W.3d 211, 21 3 (Tex. Crim. App. 2002) ; see id. ( explaining that policy , embodied in Texas R u le of Evidence 404(b) and bifurcated trial procedure , “ address es [c ourt ’ s] concern that conviction no t be base d on the

ass um ption that the accu sed is a cri minal generall y or that he is a person of bad character ” ) ; see also Tex. R

. Evid. 404(b) ( “ Evidence of a crime , w rong , or other act is not admissib le to prove a
pe rson ’ s character in order to s how that on a part icular occasio n t he person act ed in acco rdanc e with the character

. ” )

. Fu rthe r , e vidence of prior convictions to satisfy a jurisdictional element of an offense “ is not ne cessary i f the accused stipulates to t heir existence because the statutory

re quireme nt has been sati sfied. ” Hernandez v. State , 10 9 S.W.3d 491, 494 (T ex. Crim. App. 2003) ; s ee id . at 495 (concluding that tri al court erred in overruling defendant ’ s motion to stipulate to prior convictions beca use d efendant ’ s “ stipulation would have placed t he prior convi ctions into evi d ence ” and “ sati sfied the ev identiary require me nts regarding stipulations

w hile avoiding the unfair prejudice that would accompany further mention of the convictions ” )

.

I n thi s cas e , t he State pre sented uncontrover ted evide nce in its cas e in chi ef that appellant violate d the protective order on December 2, 2015 , when he went to Hernandez ’ s place of work and ha d contact with her there

. This evidence included the photograph of a ppell ant and Hernandez standing next to each oth er at the hote l. The only witness to testify t hat the alleged

assau lt occurred , however, w as Hernandez , ma king her credibi lity a critical issue

. Generally , it is a sound defense stra te gy to attack the cred i bilit y of the State ’ s key witness , even if it
mi ght inadverten tly open the door to otherwise in admissible evidence

. See Garza v. State , No. 0 3

- 13

- 00180

- C R, 2015 Tex. App. LEXIS 3449, at * 11

– 12 & n.29 (Tex. App.

— A ustin Apr. 9, 2015, pet. ref ’ d) (mem. op., not d esignated for publication) ( statin g that co urt could not10

conclu de that defense co un sel ’ s q uestion ing of State ’ s designated outcry wi tness , “ seeking to discredit her p rior testimony recounting the alleged outcries and her truthfulness generally, ” constitute d deficie nt perf ormance , “ even i f in doin g so counsel mig ht have inadvertently open ed the door to evidence related to [ another child ] ’ s o utcry ” and collecting cases reaching similar conclusions concerning claims of ineffective assistance of counsel when de fens e cou nsel inadverten t ly open ed door for admission of extraneous

- offense evidence )

. 1

We fur ther o bserve that the trial attorn ey has not had an oppo rtunity t o explain his strategy or reasoning

. 2 Consequ ent ly, the record before this Court is not sufficiently devel oped to allow us to e valuate t he trial a ttor ney ’ s supp osedl y def icient perform ance. A bsent record evidence regar ding counsel ’ s strategy or reasoning, we will presume he exercis ed reasonable professional judgment. S ee Fra ngias , 450 S.W.3d at 136 ( “ [U]nless ther e is a record s uf ficient to de mons trat e t hat cou nsel ’ s conduct was not t he pro duct of an informed strategic or tactical decision, a reviewing court should presume that tri al counsel ’ s performance was constitutionally adequate ‘ unless the challenged conduct was so outrage ou s that no com pete nt a tto rney wo uld hav e engaged in it. ’ ” ) (qu oting G oodspeed , 187 S.W.3d a t 392); Hill v. State , 303 S.W.3d 863,

1 See, e.g

. , Josey v . State , 97 S.W.3d 687, 695

– 96 (Tex. App.

— Texarkana 2003, no pet.) ( “ We cannot say atte mptin g t o discre dit one or both of the State ’ s primary witnesses is improper trial strate gy or otherwise f alls below the level of an objectively reasonable standard of con d uct [ eve n though the at tempt opened th e door to ot herwi se inadmissible testimony ]. ” ) ; c f. Ta ylor v. State , 442 S.W.3d 747, 751

– 52 (Tex. App.

— Amarillo 2014, pe t. ref ’ d ) (concluding trial cour t abus ed discre tion by refusing to a llow defendant to stipulate to one prior conviction for ass ault on family member and that admitting evidence of unnec es sar y pr ior conviction was harmful ) ; Brown v. State , 974 S.W.2d 289, 29 3

– 9 4 (Tex. App.

— San Anto nio 1998, pet. ref ’ d ) ( concluding that defendant c ounsel ’ s pe rformance wa s de ficient and reversi ng convict ion based on combined effect of multiple errors, includi ng openin g doo r to “ damaging extra n eous evidence ” )

.

2 Although appellant ’ s amended mot ion for new trial rai sed a claim of ineffective assistance of counsel, it was based on alle ged errors by the trial attorney other than the on e that he raise s on appeal , an d the motion wa s overruled by o peration of law.11

879 (Tex. App.

— Fort Worth 2009, pet. ref ’ d) ( explaining that ge nerally court does not speculate about trial counsel ’ s strat eg y or “ sec ond guess th ro ugh hindsi ght the strate gy of coun sel at trial ” (citing Blevins v. State , 18 S.W.3d 266, 271 (Tex. App.

— A ustin 2000, no pet.)) )

.

We also o bse rve tha t evid ence about the nature of the relationship between an
act or and the alleged v i ctim is a dmissible to r e fu t e a defense theory

. See Te x. Code C ri m. Proc. art. 38.371 ; Gonzale z v. State , 541 S.W.3d 306, 312 (Tex. App.

— Houston [14 th Dist.] 2017, no pet. ) (explaining that a rticle 38.371 permit s evidence of relationship b etween defend an t and

v icti m to refute de fen s ive theories , such as that vi c tim fa brica ted assault and that “ offense never occurred ” )

. Irrespective of appellant ’ s stipulation of facts as to his prior con victions , th e State was not foreclosed from offer ing the relat ionship e vidence t o refut e the d efense theor y that Hernandez ’ s tes timony was not credible

. See Gonzale z , 541 S.W.3d at 312; see a lso T a me z , 11 S.W.3d at 202 (for e closing State “ from p resenting other evidence of the co nvictions during its

case - in

- chief

” whe n defend ant agr ee s to stipulate to convictions (emphasis added) ) ; Espin oza

v. State , No. 05

- 17

- 00547

- CR, 2018 Tex. App. LEXIS 10751 , a t * 15

– 19 (Tex. App.

— Dallas Dec. 21, 2018, no pet.) (mem. op., not de signated for publication) ( dis cussi n g interplay bet ween Texas R u le of Evidence 404(b) and article 38.371 and concluding t hat it was “ well within zone of reasonable disagreement for the trial cou rt to have found in this case that the disputed evi dence was admissible for a non

- character

- conformity pu rpose ” ); Fo st er v. State , No. 01

- 1 7

- 00537

- CR, 2018 Tex. App. LEXIS 2855 , at * 8

– 12 (Tex. App.

— Hou ston [ 1 st Dist.] Apr. 24, 2018, pet. ref ’ d) (mem. op., not de signated for publication) (dis cussi n g article 38.371 and rule s of evidence in co urt ’ s determi n ation that tr ial court did not abuse it s discre tion in adm itting testimony about pr ior incide nts of domestic violence)

.12 Appellant has failed to rebut the “ strong presum ption that counsel ’ s performance fell within the wide r ange of reason abl y pr o fessional a ssistance

. ” See L opez

v. State , 34 3 S.W .3d 1 37 , 14 2 (Tex. Crim. App. 2011). W e cannot say that “ no r ea sonable trial strategy could justify ” the trial attorney ’ s complained

- of conduct

. Id. at 143. Nor can we conclude that his condu ct was “ so outr ageous that no c ompetent at tor ney w ould ha ve engag ed in it. ” See Menefield , 363 S.W.3 d at 59 3 ; see also Ex parte Ji menez , 364 S .W.3d 866, 88 3 (Tex. Crim. App. 2012) ( “ The mere fact that another attorney might have pursued a different tactic at tria l d oes not suffice to p rove a clai m o f i ne ffectiv e assist an ce of counsel. ” ). Look ing to the totality of the trial attorney’s rep resentation, we cannot co nclude that his performa nce fell below an objective standard of reasonableness unde r prevailing p rofessi o nal norms

. See Stri ckland , 4 66 U. S. at 687

– 88 ; F rangias , 450 S.W.3d at 1 36

. Having foun d that appellant has not demonstrated de ficient performance by his trial attorney , we need not con sider the prejudice
prong. See Garci a , 57 S.W.3d at 440.

Conclu sion

For these reason s, we over rule appel lant ’ s is sue and affirm the trial court ’ s judgments of conviction.

__________________________________________ Melissa Goodwin , Justice
Be fore Just ices Goo d wi n, Baker, a nd Triana Affirmed Filed: November 22, 2019 Do Not Publish