Opinion issued August 1, 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 22
- 00022
- CR

——————————— ALEXIS L I MON , Appella n t

V. THE STATE OF TEX A S , Appell e e
On Appeal from the 230th District Court

Harris County, Texas Trial Court Ca se No. 1627432

MEMORANDUM OPINION Alexis L i mon appeals his c onviction for aggravated robbery. S ee T EX
. P ENAL C ODE § 29.0 3

. Lim on p lead e d not true to an enhancement and proceeded to a jury trial. A jury found him guilty , found the enhancement tru e, and assessed
Li mon ’ s punishment at 40 years ’ imprisonment and a $5,000 fine.2

On appeal, he argues the evidence was insufficient t o sup port his convi ction, the evidence was insufficient to support the enhancement paragraph , and he received ineffect ive as sistance of counsel during the punishment hearing . We affirm. Background Limon was charged with aggravated rob bery. He pl e aded not guil t y an d proceede d to a jury trial. A. Guilt/ Innocence Testimony At trial, Ir ineo M onjarez, Jr. ( “ Irineo Jr. ”) testified tha t in April 2019, he saw

a white Silverado truck next to his fathe r ’ s truck outside their house. It was about

one in th e morning, and s ever al streetl ights were on. The dome light on his father ’ s truck w as also on. Irineo Jr. saw a person inside of his fathe r ’s truck on the driver ’s
side. Irineo Jr. confronted the person in the truck, and a struggle ensued. The
person g ot into the running Silv erado

. Iri neo Jr. held onto him , an d the truck

cr ashed into a ditch. Irineo Jr. blacked out and suffered damaged discs in his back
from the c rash. When he regained c onsciousness, he realized his neighbor and friend, Jose Andres Alm aza n , had come outsi d e. A lmazan and Irineo Jr. continued to fight wit h the man. The man p ulled out a gun and shot Almazan in the ankle

. Irineo Jr. ’ s brother ran out and grabbed the gun, unloaded it, and pointed it at the unk nown man. Irineo Jr. called 91 1, but the man ran awa y on foot befor e first3

responders arrived. Irineo Jr. provided a description to the responding law enforcement officers.
I rineo Jr. testified that he asked around the neighborhood to investigate who the robber could have been. That sa m e day, h e heard it c o uld have been Alexis Limon, so he looked Limon up on Facebook . He forwarded a photograph of Limon to detectives. He also i dentified Limon in a photo array

. Irineo Jr. also identified Limon in court.
Jose A ndres Almazan testified tha t shortly after midnig h t he heard a c rash, looked out a window, and saw two people fighting in the street. When he saw it was his friend, Irineo Jr. , he went to assist. He attempted to put the man fig hting with Irineo Jr. in a chokehold. The man pull ed a gun from his waistband a nd s hot
two or three times. A lmazan was shot in the ankle . He was treated at the hospital , where he spoke to a detective. He identified Limon in a ph oto array, stating that he was 90% sure Limon was the person who had shot him. Lat er , Irineo Jr. showed
hi m a p hotograph from the intern et of a possible suspect. A l mazan then told law
enforcement that he was 100 % sure of his iden tification from the photo array.
Al mazan identified Limon in court.
T he Houston Police O f

ficer who resp onde d to the scene testified t hat he arrived when Almazan was being treated by paramedics in an ambulance

. He secured the scene until a detective from t he robbery division arrived. He noticed4

that Irineo M on

jarez , Sr. ’ s ( “ Ir ineo Sr. ” ) truck had damage consistent with popp ing out the l o ck a nd prying the door open, a nd the radio had been removed. There was also a screwdriver or prying tool in the truck. The stereo from Irineo Sr. ’ s truck was found in the Sil verado. The police officer collected the firearm , ammunition, a jac ket, and a ce l l ph one. The p hone was found in the S i lverado and believed to be long to the suspect

. The jacket was found in a ravine abou t thirty feet away, in the direction that the suspect had fled. Inside the jacket, the officer found a live round and a fire d bullet c asin g. The off icer testified that similar ammunition was recovered
from the firearm. The robbery division detective who r esponded to the scene testified at trial. He learned that the Silverado truck had been reported stolen. The owner lived a fe w blocks a way from the s cene of the robbery. The detective had a patrol officer
p i ck up the owner of t he S i lverado and bring him to the scene to identify his truck. The Silverado was then towed to a processing facility. The detective also talked to A lmaza n at the h ospi tal. Alma z an described the suspect as about 5 ’ 6 ” tall, 140 to 150 pounds, with tattoos covering his face and neck. T he detective testified that he received an email later in the day from
Al mazan with a photo of a person he believed had s hot h im. Once h e fo und the

su spect ’ s name, the detective searched and realized that the suspect, Alexis Limon,5

lived next door to the own er of the S i lverado truck. The dete ctive created a photo array with L i mon and five similar looking in dividuals. He gave the array to a noth er detecti ve who was unaware which of the individuals in the a rray was the suspect. That detective presented the array to Irineo Jr. and Almazan, who both identified
L i mon as the suspect. The jury found Limon guilt y and proceeded to a punis hment hear i ng . B. Punishmen t Testimony Limon pleaded not true to the en hancement paragr aph alleging a prior felony conviction for evadi ng arrest in a motor vehicle in 2015 . The State then presented punishment evidenc e. In addition to evidence to link Limon to the prior convic tion alleg ed i n the enhancement paragraph and evidence of Limon ’ s prior c riminal history , the State presented evide nce of unadjudicated extr aneous offenses allegedly committed by L imon after the aggravated robbery . The State also presented evidence regardi ng L imon ’ s g an g affiliation

. Limon ’ s mother was a mitigation witness. 1. Adjudicated Extraneous O ffenses The State p re sented evidence of offenses committed by L imon before the aggravated robbery . This evidence included numerous ju dgments of conviction or

or ders for defer

red adjudication. The State used one of the prior judgments to support the enhancement paragr aph alle ged in the indictment. T he State alleged6

that in 2015 Limon was convicted of evading arrest in a motor vehicle and was sentenced to three yea rs ’ imprisonme nt

. Limon p leaded “ not true ” to this enhancement pa ragraph. The State called t he supervisor of the l atent print section of the Houston Forensic Sci ence Center regarding the fingerprints on the jud gments. She testi fied that she took fingerpri nts of Limon a nd compared them to fingerprints on the prior judgmen ts. All the judgments contained L imon ’ s name and state identification number. The fingerprint examiner was able to match most of t hem by finge rprin t as wel l. Th e fingerprint on three of the jud gments was either inconclusive or did not have a “ print of value. ” One of the inconclusive judgments was the ju d gment underlying the enhancement paragraph. The fingerprint examiner testified that while she could not con clusively match Limon to th ree ju dgme nts, she c ould not conclude that the fingerprint s on the m did not belong to Limo n either. 2. Limon ’ s Gang Affilia tion A Houston Police Sergeant with the gang division testified that Limon was placed in a database for tracking gang member s bec ause he was a s elf

- admitt ed member of Houstone Tango Blast . He also had gang

- related tattoos.7

3. Unadjudicated offenses The Sta te presented evidence of several un ad judicated offenses allegedly committed by Lim on . Each of these offenses occurred either right before the
agg ravated ro bbery or in the years after it but before Limon ’ s trial. (1) Felon in possession of a f irearm H arris Cou nty Deputy P . Manickas testified that in March 20 19 he responded to a call that a ma n in all

- black clothing, possib ly hol ding a gun , was walk ing around veh icl es in a residential driveway. When he arrived on the scene,
the deputy viewed the caller ’ s surveil lance video. The deputy testified that the suspect could be seen pulling on car handles, consistent with burglari zing v ehicles

an d theft. T he d eputy used his radio to r elay a description of the suspect. When an officer responded that a suspect matching the description was at a nearby gas station, the d eputy went to that location

. He observed the same person he ha d seen in th e surveill a nce video , wh o he later identified as A lexis L i mon. Another officer testified that he heard the radio description and then s aw

someone , later identified as Limon, standing in a gra s s y area near the air pu mp in a nearby ga s station. As the o ffice r approach e d, Limon star ted to run away. The officer detained Limon , then walked over to the grassy area where he had been
stand ing. T h e officer found a firearm

. Though the officer did not see Limon drop the firearm, the officer testified that he knew it h ad not bee n there lo ng b ecause it8

was not covered in condensation. The officer testified that Limon had a Houston
Astros star tattooed on his ne ck and that the officer knew this to be gang related

. Limon was arrested for felon in possession of a firea rm. A ballisti c s examiner

tes ted the fi rearm and determined it was operational. (2) Evading in a motor vehicle, failure to stop and rende r aid, unauthorized use of a motor vehicle, and burglary of a motor vehicle A patrol officer testified that he was in a r eside ntial area when he s aw
p arked tail lights in the middle of the street in July 2019 . He pulled up to the vehicle and saw that the driver ’ s side door was open, but nobody was inside. Limon was in a parked car next to it. T he officer believed that Limon w as ei ther tryin g to steal or burglarize the car. As the officer and his partner approached,
L i mon disobeyed their commands, got into the run ning vehicle in the middle of the roadway, and drove away. A chase ensued. Limon ’ s vehicle was hit when he ran a
red light . He did n o t stop . E vent ually, he got out of the car and fled on foot. T he officer ’ s partner apprehended Limon in a driveway. The offic ers learned that the

car Li mon had been driving was stolen . T he stereo had been pulled out , and the
i gnition in the parked car had bee n dam aged

. The patro l officer testified that the driver of the vehicle that hit Limon ’ s as he was fleeing sustained injur ies and went to the hospital. Limon was charged with9

four felony cases: ev ading in a motor vehicle, failure to stop and r ender aid, unauthori zed use of a m otor vehicle, and burglary of a motor vehicle

. (3) Evading on foot and failure to identify as a fugitive In December 2020, a n officer initiated a traffic stop when he s aw a car driving the wrong way down the road. The c ar st opped temp o rarily an d th en drove

a way. A chase ensu ed. The car turned and crashed into a utility area. T he driver and another suspect f

led on foot. The officer pursued the suspect through a trailer park and eventually apprehended him. Meanwhile, the o ffice r radioed a descript ion of the oth er suspect , including that the suspect was wearing a black coat and black pants. After an extensive s earch, L i mon was apprehended under an outd oor pool table when the homeowner flagged law enforcement down. Limon had disca rded his s h irt , pant s, a nd shoes. The officer saw the clothes nearby on a fence.
L imon told law enforcement that he was riding his dir t bike and passing through to get to his residence. He gave law enforcement a false name and date of birth. Law enfo rceme nt used Li m on ’ s fing erpr ints to id entify him and determine that he had six open felony warrants . The officer testified that L i mon was c harged with felony ev ading on foot and could have been charged with the misdemeanor offense of failure to identify a s a f ugitive.10

(4) P ossession of c ontrolled s u bstance s and public intoxication An officer testified that he was dispatched to an apartment comp lex regarding an intoxicated man who had broken a car window in April 2021 . Law enforcement split up to l ocate the s uspec t. From ac r oss the c ourt yard, the officer saw Limon

. T h e officer watched as Limon s tarted running when he saw the other officers. The o fficer chased and detained Limon. The officer determined that L i mon was not the suspect described in the call
about the broken w in d ow, but h e be lieved tha t Limon was intoxicated. Limo n had watery eyes, droopy eyelids , and slow , slurred speech. H e was conf used and had difficulty following basic instructions. The office r arrested Limon for public
intoxication

. The offic er se arched Lim o n and fou nd e cstasy, co caine, Adderall, and marijuana. A forensic chemist tes t ed the ecstasy tablets and fo und that they

con tain ed methamphetamine and eutylone. Limon was charged with felony possession of a controlled substance for the ecst asy. (5) Unauthoriz e d use of a mo tor vehicl e and f elon in possession of a firearm An officer testified that he initiated a traffic stop on a st olen GMC Yukon in May 2021 . During the stop, the officer observed the driver making furtive movements toward s t he ba ck se at. The of f icer iden tifi ed Limon a s the driver. The11

owner of the vehicle confirmed that Limon did not have permission to drive the Yuko n. A search of the Yukon rev ealed a firearm on the back rig ht passenger floorboa rd. A ballistics examiner tested th e fir earm and c o nfirmed i t wa s operatio nal. Limon was charged with unauthorized use of a motor vehicle. (6) Aggravated assault with a deadly wea pon A n investigator with the Harris County Sherriff ’ s O ffice testified that she investigated an assault on two inmat es in the Harri s County j ail that occur red in September 2021. The investigator viewed surveillance video from the time of the assault. She d escribed the video , and it was shown to the jury. The assault occurred in the evening when lights were off in the ce ll bl ock. Inmat e s p ropped she ets, towel s, and blankets to attempt to block the camer a ’ s view shortly before the assault. The investigator te stifi ed that this typically happens when an assault , sexual intercourse, gambli ng, or dice games are happening. Next , s ev eral inmat e s went in to t he cell bl ock. Their feet a re visible moving around while a broomstick is being tossed. The blankets attempting to cover the camera flare as the assault is happening. People ’ s hands with closed fists can be seen as one complain ant i s pulled f r om the to p bu nk. An othe r person can be seen side

- punched

. The ligh ts turn on in the cell block , and all the inmates run out except for one complainant.12

Limon was later identified in the video and can be seen throwing a gang sign as he left th e cel l block. The inves tiga tor testif

ied that she reviewed a roster of th e men in the cell block on that date and time and obtained intake photos of each of them

. She then used a snipping tool to take screen shots from t he video of each inmate as he left the

c ell bloc k after th e as sault. She compared the intake photos to the screenshots and id entified six inmates who were part of the assault. One of the individuals the investigator identified was Limon. The investigator created a photo array that was shown to one compla inant

. Th e i n vest igator e xplained that she later interviewed
Limon and charged him , and four other people, with aggravated assa ult with a deadly weapon. 4. Mitigation t estimony Appellant ’ s mother testified that he began using drugs around age 1 5 and
that h e dropped ou t of school in the ninth grade. She tri ed to parent him t o not us e drugs , but drugs had changed him. She testified tha t his family supported him and that he is a better pe rson when not using drugs.
* * * The jury found the enhancement paragraph true and recomme nded a 40

- year sentence and $5 ,0 00 fine . The court senten ced Limon accordin gly

.13 S ufficiency of the Evidence Lim on first challenges the sufficiency of the evidence to support his aggravat e d r obbery conviction. A. Standard of Review Every criminal conviction must be suppor ted by legally suf ficient evidence

as t o ea ch element of the offense that the State is required to prove beyond a reasonable do ubt. Jackson v. Virginia , 443 U.S. 307, 31 6 (1 9 79) ; Adames v. State , 353 S.W.3d 854 , 859 (Tex. Crim. App. 2011). In a l egal suffi ciency review , we

c onsid er all the e vide nce in the light most favorable to the verdict, and we dec ide whether any rational trier of fact could have found the essential element s of the crime b eyond a reasonable doubt

. Jackson , 443 U.S. at 319 ; Broo ks v. Stat e , 323 S.W.3d 893, 902 (T ex. Crim. App. 201 0). The evidence may be circumstantial or direct, and juries may d raw multiple reasonable inferences from the evidence presented a t tr ial. Hooper v. State , 214
S.W. 3d 9, 14

– 15 (Tex. Crim. App. 2007) . Th e jury is the sole judge of witness credibility a nd o f the weight given to any evidence presented. Merritt v. State , 368 S.W.3d 516, 525 (Tex. Crim. App. 201 2 ). A jury may b elieve or d i sbe lieve some or all a witness ’ s tes timony. Penagraph v. State , 62 3 S.W .2d 341, 3 43 (Tex. Crim. App

. 1981)

. We presume t hat the jury resolved any conflicting inferences in favor of the verdict, and we defer to that dete rmination. Merritt , 368 S.W.3d at 5 2 5

– 2 6.14

B. A ggravated Robbery Limon does not argue that the evidence i s ina dequate to demonstrate that the cri me of aggrava ted r obbery was committed. Instead, he contends there is
in sufficient evidence identifying him as the perpetrator.

“ A person commits [robbe r y] if, in the course of comm itting the ft

. . . and with intent to o btain or m aintain control of the pr operty, he . . . i ntentionally or
k nowingly threate ns or places another in fear of imminent bodily injury or death. ”
T EX
. P ENAL C ODE § 29.02(a)(2)

. “ A pe r son commits [aggravated robb ery] if he commits robbery . . . a nd he . . . use s or exhibits a de adly we apon . . . . ” Id

. § 29.03(a)(2). A conviction for aggravated robbery ma y be based on the testimony of a single eyewitness. Smith v. State , 4 2 1 S .W.3d 161, 164 (Tex. Ap p.

— San Antonio 2013, no pet.) (cit ing Joh nson v. St ate , 176 S.W.3d 74 , 77

– 78 (Tex. App.

— H ousto n [1st Dist.] 2004, pet. ref ’d) ; see also Sosa v. State , 177 S.W.3 d 227, 230 (Tex. App.

— Houston [1st Dist.] 2005, n o pet.) (holding evi dence legally sufficient wh ere w itness identified defendant b ased on build, cl othing, and height ). Addi tionally, “ci rcums tantial evidence alone can be sufficient to establish guilt. ” Hoop er , 214 S.W.3d at 13

.

“ I d ent ity may be proven by direct e vidence , circumstantial evidence, or by

reasona ble infere nces from the evid ence. ” I ngerson v. St ate , 559 S.W.3d 501, 50915

(Tex. Crim. App. 2018 ) (citing Gardner v. State , 306 S.W.3d 274, 285 (Tex. C rim. App. 2009)). Proof by c irc umstantial evidence is equal ly as probative as proof by
direct evidence. See Mc Gee v. State , 774 S.W.2d 229, 23 8 (Tex. Crim. App. 1989).

“ [A]n inf erence is a conclusion reached by considering other facts and deducing a logica l consequence from them. ” W h atl ey v. State , 445 S.W.3d 159, 166 (Tex. Crim. App. 2014) (alter ation in origi nal) (quot ation omitted )

. “ [ I ]denti ty may be
pro ven b y inf

erences. ” Roberson v. State , 16 S.W.3d 156, 167 (Tex. App.

— Austin 2000, pet. ref ’ d); see al so Greene v. State , 124 S.W

. 3d 78 9 , 792 (Tex. App.

— Houston [1st Dist.] 2003 , pet. ref ’ d) ( “ I dentity of a pe rpetrator can be proved by
d irect o r circu mstant ial e vidence; eyewitness identification is not necessary. ” )

. In reviewing histori cal facts that suppo rt conflicting inferences, w e m ust presume that the jury res olved any such conflicts in the State ’ s favor, a nd we must defer to that

res olution

. Whatley , 4 45 S.W .3d at 166. When identity is at issue, w e must consider the combined and cumulative force of al l evidence. See Merritt , 36 8
S. W.3d at 526. C. Analysis Conside ring the comb ined and cumulative force of all th e evidence , we conclude that there is sufficien t evid ence to prove Limon ’ s identity as the perpetrator.16

The evidence shows that I r i n e o Jr . saw a ma n get into his father ’ s truck ,

w hic h was parked outside t heir house, in the middle of the night. The truc k ’ s dome
l ight turned on. Ir ineo co nfronted the man a nd fought with him for several minutes.
H e testified that thre e streetlights were on . The fight co ntinued when the man got into his own truck . The truck cr ashed into a ditch

. Al mazan hear d the struggle a nd

came ou tside to join the fight. Ir i neo Jr. s aw the man pull out a gun fr om his waistband and shoot Almazan in the ankle. I ri ne o Jr. called 911 and t he man fled the scene. Ir ineo Jr. d e scr ibed the suspect a s a Hispanic ma le, with multiple tattoos

on his face and n eck, and maybe 140 to 150 pounds. The detective also spoke with Almazan in the hospital who described the suspect as “ 5 ’ 6 ” , 140, 150 ” and de scribed that his face and n e ck were covered in

t attoos

. Almazan testifi ed at trial that he saw a “ full frontal face view ” of Limon whi le eng aged in the fight. He testified that he would not forget the face of the person who shot hi m. Irineo Jr. testified tha t af

ter the incident h e found a photograph on Facebook that he believe d to be th e suspect. He sent the p hotograph to the le ad detective. The detective created a photo array, cont aining a different photograph of Limon as well as five other individuals wi th s imi lar characteristic s. Irineo Jr. identified Limon i n the array . A lm azan als o identified Limon , stati ng he was 90 % sure o f his identification. Both men also positively identified Limon in court. At trial, Irineo17

Jr. testified that he had shown the Fac e b ook photograph of Limon to Almazan before Almazan viewe d a photo array. Almazan t estified that Irin eo Jr. showed h im
the Fac ebook photograph after he had identified L imon in the photo array. Limon contends the evidence is insufficient to support the c o nvi ction in this

case bec ause the eyewitnesses ’ identific ations from a ph oto lineup were unreliable.
He argues that the eyewit nesses had se en a Facebook photograph of Limon before they saw the array, and they had already decided that he was the perpetrator

. H e als o argues that two of t he five photographs in the array s were of indivi duals who had large face tat too s that were dramatical ly differen t than Limon ’ s. Finally, he argues that ther e is no physical evidence connecting him to the crime. Here, the jury h a d t he opportunity to asse ss I rineo Jr. ’ s and Almazan ’ s

cr e dibility and to make reas onable inferences fro m their test imony. The jury also had the opportunity to view the photo ar rays that were shown to both men. Th ough Irineo Jr. and Almazan testified di fferently about whether Alma zan saw the Facebook photo befor e he identified L i mon in a n array or after, i t is the jury ’ s function to resolve any con f lic ts in the evi dence

. See Merritt , 368 S.W.3d at 5 2 5

– 2 6. The jury was likewise entitled to decide whether the identifications of appe llant from the photo array were r eliable. Considering all the e vidence in the lig ht most favor able to the verdict, we conclude that the jury was rationally j ust ified in finding guilt beyond a reasonable doubt and that the evidenc e is sufficie nt to18

support Limon ’ s conviction for aggravated robbery. See Brooks , 323 S.W. 3d at 895, 899.
W e overrule L imon ’ s first issue. Sufficiency of the E v idence to Support Enhancement Paragraph L i mon next argues that the evidence is legally insuffic ient to link him to the prior f elony offense used to enhanc e his punishment. In the indict ment, t he State alleged one enhancement p aragraph. This paragraph alleged that in 2015, Limon

was convicted of evading arrest and detention in a motor vehicle

. On app eal , Limon argues t ha t t he Stat e did not offer sufficient evidence of identity

. Specifica lly, Limon argues that the State did not pro ve the prior conviction beyond
a reasonable doubt because the fingerprint examiner could not match the fingerprint on the 2 015 judgment to him . He also contends that the State did not provide additio nal identit y evidence nor did the State cross

- examine his mother, who testifi ed at punishment, regarding his criminal history . We disagree and hold that the evidence was sufficient for the jury to fin d the enhancement true. A. Stan dard of Review To es tablish tha t the d efend ant has been convicted of a pri or offense, the
State mu s t prove beyond a reasonable doubt that (1) a prior conv iction exists, and (2) the defendant is linked to that conviction. F lowers v. State , 220 S.W.3d 919,
9 21 (Tex. Crim. App. 2007). Ther e is no spec ific document or mode of proof19

re quired to prove either that a prior conviction e xists or that the defendant is linked to that conviction. Id. The Court of Criminal Appe als has stated:
There is no “best evidence ” rule in Texas that requires th at the fact of a prior c onviction be proven w ith any d ocument, m uch less any specific document. While evidence of a certified copy of a final judgment and sentence may be a pref erred and convenient means, the State may prove both of these elemen ts in a num ber of different ways, i ncluding . . . docu me ntary pro of (such as a judgment) that contains suf fi cie nt information to establish both the existence of a p rior conviction and the defendant ’s identity as the person convicted. I d. at 921

– 22. “ Any t ype of evid ence, documentary or t es timonial, might suf fi ce ” to pr ove a convicti on. Id. at 922. The fact finder looks at the totality of evidence admitted concerning the prior conviction to determine (1) wheth er there was a prior convict ion, and (2) whether the defend ant was the person con vi cted. Id. at 923; s ee Henry v. State , 509 S. W.3d 915, 919 (Tex. Crim. App. 2016) (stating that
fact finder “ must look at the tot ality of the evidence adduc ed ” and “ must cons ider the evidence as a wh ole , as each piece of e vidence may provide little meanin g if considered in is ol ation ” ).
B. Testimony and e vidence The supervisor of the latent print section of the Houston Forensic Science
Center testified during pu nish ment. She test ified that she took a record of all ten of Limon ’ s fingerpr ints. She identified him in court as the sa me person w ho provided th e prints. She also testified that she reviewed the State ’ s exhibits 91 through 9 9, which wer e prior orders for deferred adjudicat ion or judgments of convicti on . She20

told the jur y of her fi ndings regarding whether the fingerprint s on t hese exhi bits matched t he ones she took from Limon. Several of the exhibits contained L i mon ’ s
name, state identificat ion number, and a fingerprint match

. T he supervisor testified that “ no print of va lue ” was fo und on two of the exhibits: State ’ s exhibit 9 6 and 97. State ’ s ex hib it 96 was a judgment of conviction for evading arrest and detention with a vehicle

. This is the conviction the State alleged in t he enhancement paragraph. Th e trial court judgme nt states t hat the offense was committed on January 13, 2015 and that on January 15, 2015, the defendant wa s sentenced to three years in ja il. S tate ’ s exhibit 97 was a judgment of convictio n for burglar y of a motor vehicle. The offense was committed on th e same date as exhibit 96, January 13, 2015. The sent encing date was February 5,
2015 , and the defendant w as sentenced to 46 days in jail , with 23 d ays credit.
S t ate ’ s exhibits 96 and 97 bot h contained Limon ’ s name and state identificat ion number. The sup ervisor tes tified that “ no print of value ” meant th at t he re was no ridge detail to compare between the prints she had taken and the thumbprint on the
p rior judgments

. C. Analysis Consider ing t he totality of the evidence, there was sufficient evidence to prove be yond a reasonable doubt that Limon committed evading arrest in a motor21

vehicle. See F lowers , 220 S.W.3d at 9 2 1

. In provi ng prior convict io ns, identi ty of ten incl udes a combination of ide ntifiers, with each case judg ed on its own merits. Henry v. Sta te , 466 S.W .3d 294, 301 (Tex. App.

— T e xarkana 2015 ) , aff ’ d , 509 S.W. 3d 91 5 (Tex. C rim. App. 2016) (quoting Litt les v. State , 726 S.W.2d 26,
30

– 3 2 (Tex. Crim. App. 1984 ) (op. on reh ’ g)). “ [T]he p roof that is ad duced to
establish that the defendant on trial i s one and t he same person that is named in an alleged prior criminal con viction o r convictions closely resembles a jigsaw puzzl e. ” Flowers , 220 S.W.3d at 923 ( quotation omitted).
T he evidence at trial estab lished L i mon ’ s birthdate and state identificat io n number. T he record established that Exhibits 92

– 99, which were either orders fo r deferred adjudication or judgments of convic tion, each conta ined Limon ’ s name and sta te ident ification number. “ No print of v alue ” was found on exhib it 96, the judgment for evading arr est with a motor vehicle , but Limon ’ s name and state identifi cation nu mber were on the document. The Houston Forensic Science Center supervisor test ifi ed that “ no print of v alue ” mea nt that there were no ridge det ails on the fingerprint on the judgment to compa re to the t en - print card she had taken from Limon. S he did not testify t h at her c onclusion ex cluded Limon as the person whose f ingerprint appea red on the judgment. The date s of the offense and judgment, Janua ry 13, 2015 and January 15, 2015 , also fall c hro nologically within22

the criminal history established by th e orders for de ferred ad judication and judgments that did contain Limo n ’ s fingerprint s . A judgment with the def endant ’ s name and state identification n umber is sufficient for the jury to de termine beyon d a reason a b le doubt that the offense in question was committed, and th at Limon committed it. See Flowers , 220 S.W.3d at 923 ; see also Barnes v. St ate , 585 S.W.3d 643, 650 ( Tex. App.

— T exarkana 2019 ) , (holding su fficie nt a prior conviction linked by name and s tate identif icat ion numbe r considering the surrounding judgments and ide ntifying information al so admitted ) , rev ’ d on other grounds , P D

- 1072

- 19, 2021 W L 476483 (Tex. Cri m . App. Feb. 10, 2021) (not designated for pu blic ation)

. We overrule L i mon ’ s issue rel ated to the suff iciency o f the evidence to prove his prior conviction that enhanced his sentence. Ineffective Assistance of Counsel During Punishment Hearing In his third issue, Limon contends th at he receive d inef fectiv e assistance of counsel during the p unishment ph ase of trial. Each of his ineffective assistance of counsel complaints relates to either (1) the evidence supporting a dditional criminal offenses that the Sta te alleged Limon committed between the underlying
aggra v ated robbery and trial , or (2) the evid ence to supp ort prior adjudicated offenses committed by L i mon. Limon has not met his burden to establi sh that he received ineffective assistance of counsel durin g the punishment hearing.23

A. Standard of Rev iew T h e S ixt h Amendme nt to the United States Constitut ion and the T e xas C o nst it ution g uarantee a cr im inal defendant the right to reasonably e ffective

ass istance of coun sel. U.S. C ONST
. a men d. VI; T EX
. C ONST
. art. I, § 10; s ee Lopez

v. State , 343 S.W.3d 137 , 14 2 ( Te x. Crim. App

. 2011 ). The right to effective

a ssistance of counsel re qu ires ob jectively r ea so nable represent ation, not e rrorless performance

. Id. (ci ting S t rick land v. Washington , 466 U.S. 668, 686 ( 1984), a nd
Rob ertson v
. Stat e , 1 87 S. W.3d 475, 48 3 (Tex. Crim. App. 2006)).
To es tablish tha t trial coun se l provi ded ineffecti ve assistance, an appellant b ears the burden to demons trate by a preponder ance of the evid ence tha t (1) coun sel ’ s p erformanc e was defici e nt , an d (2) the defi cien t per formance
pre judic ed the defense. Strickland , 466 U.S. at 687; Lopez , 3 43 S.W. 3d a t 142. An

a ppellant must e stablish bot h prongs before an appell ate court will find couns e l ’ s

re pres entation to be ine ffective. Lopez , 343 S.W.3d a t 142 (citing Strick land , 466
U.S. at 687 ); see Williams v. State , 301 S.W .3d 675, 687 (Tex. Crim

. App. 20 09) ( “ An appe ll ant’s failure t o satisfy on e prong of the St rickland test negates a cour t ’ s

n eed to cons ider the other pro ng. ” )

. To sati sfy the firs t prong , an appellant mus t sho w that his t rial counsel ’ s performance fell b elow an obje ctive stand ar d of re ason ableness un der the prevail ing pro fessi onal norms. Strickland , 4 66 U.S. at 687

– 88; L opez , 343 S. W.3d24

at 142. Under the second prong, a n appellant m ust de monstrate prej udic e or “ a reasonabl e probability that, but for couns el ’ s unprofe ssional err or s, the res ult of the
p roceeding woul d have been d ifferent. ” Strickland , 46 6 U. S. at 694; see L opez , 343
S .W.3d at 142. A reason able probability is one suff ic ient to undermi ne co nfid en ce in the outco me. Lopez , 343 S.W.3d at 142.
F or an appell ate court t o find th at counsel wa s ineffective, “ counsel ’ s def iciency must be affirmati vely demonstrated i n the tr ia l recor d; the court must not engage in re trospective s pecul ation. ” Id

. “ It is no t s ufficient t h at appellant

s how, with the benef

it of hindsi g ht, that h i s counse l ’ s act ions o r omissions during
trial were merely of questionabl e c om petence. ” Id. at 142

–

43

. (quo ting Mata v.
State , 226 S.W.3d 425, 430 (Tex. Crim

. App. 2007)). Further mo re , a c laim of
in ef fective assistance o f counsel als o requires p r oof o f pre j u dice. B one v. State , 7 7 S.W.3d 828, 836

– 37 (Tex. Crim. App. 2002).
In mo st cases, the record on d irect appea l is undeveloped and thus inad equa te to prove a cla i m of ineffectiv e as si sta nce . 1 Se e Me nefield v. State , 363 S.W.3d 591, 592

– 93 (Tex . Cri m. App

. 201 2) ; Thompson v. S ta te , 9 S.W.3d 808,
813 ( Tex. Crim . App. 1999) ( “ A su b stan tial risk of failure ac companies an
appe llant’s cla im of i neffecti ve assistance o f counsel on direc t ap pe al. ” ). The Cour t

1 Claims of ineffective as sistan ce of cou nsel re ject ed on dir ect appeal “ due to lack of adequate information m ay be reconside r ed o n an application for a writ of habeas cor p us. ” Lopez v. State , 343 S.W.3d 137, 143 (Tex. C r im. App. 2011).25

of Criminal Appeal s has repea te dly stated t hat t rial c ou nsel “ s hould ordinar il y be afforded an opport unit y to explain his actions befo re be ing denounced as ineffectiv e. ” Mene

field , 363 S.W.3d at 593 ( quoting Goods peed v. State , 187
S .W.3 d 390 , 392 (Tex. Crim. App. 2005)). W hen trial c ou nsel is not provi ded an

o pportun ity to explai n his actions, w e will no t fi nd th at counsel ’ s perform ance was de ficient unless the challe nged con duct was “ s o outra geous th at no compete nt attorney would ha ve e ng age d in it. ” Id

. (quotin g Goodspeed , 187 S.W.3 d at 392).
B. A n alysis 1. Counsel was not in effective for failing to secure a pr eliminary ruling on judgments that did not contain an identifiable finge rprint match. Limon argues that his c ounsel was ineffective f or failing to secure a preliminary hearing on the State ’ s fing erprint evidence used to lin k Limon to prior judgment s of conviction . Specifically, he argues that the State could not prove beyond a reasonable doubt that he committed t h e crimes listed in t hr ee jud gments , State ’ s exhibits 96 , 9 7, and 99

. Exhibit 96 was a judgment for evadin g arrest in a motor vehicle . This is the prior felony conviction that the State alleged should enhance Limon ’ s sentence. During punishment , t he State pr odu ce d several prior judgments as S tate ’ s

e xhibits 92

– 99, which w ere either orders fo r deferred adjudication or judgments of convic tion . E ach exhibit conta ined Limon ’ s name and sta te ident ification number.26

Several of the exhibits also contained a finger print ma tch

. A fingerprint expert was unable to identify the fingerp ri nt o n three of the judgments , exhibits 96, 97, and 99

. She testif ied that her inability to identify the fingerprint on the se three ju dgments did not mean that the fingerprint could not b elong to Limon.
T he judgments with out identifiable fing erprints fit c hronol ogicall y among the judg ments identified with Limon ’ s fingerprint

. Considering the totality of the evi den ce presented regarding Limon ’ s criminal history , the fact finder could

reason ably d ec ide beyond a reasonab le dou bt that Limon committ ed the offen ses listed in the judgments. See Flowers , 220 S.W.3d at 923

. Counsel was not ineffective for failing to secu re a pr eliminary ruling on the admissibility of the judgments because the trial court would not have abused its d i scretion in admitting the evidence. L i mon has failed to meet his burden to prove that his counsel ’ s performance fell below an objective standa rd o f r easonableness. See L opez , 343
S. W.3d at 142. 2. Counsel was not ineffective for f ailing t o ask for a pr eliminary ruling on an un adjudicated offense for f elon in possession of a firearm . Limon co ntends that his trial counsel was ineffective for failing to request a
pre li minary ruling on an alleged unadjudicated offense. He argues t hat t he State

c ould not prove beyond a re asonable doubt that Li mon was a fe lon in possession of27

a firearm in March 2019 , and there fore, the trial court abused its discretion in putting the evidence before the ju ry. To establish unlawful pos session of a fi re arm by a felo n, the S tate must show t hat the accused was prev iously convi cted of a felony offense and possessed a firear m after the conviction and before the fifth anniversary o f his release from
confinement , or from community supervision, parole, or man dator y sup ervis ion, whichever date is l ater. T EX
. P ENAL C ODE § 46.04(a)(1) ; James v. State , 264 S.W.3d 215, 218 ( Tex. App.

— Houston [1st Dist.] 2008, pet. ref ’ d). Possession is a voluntary act if the possessor knowingly obtains or receives th e thing possess ed or
is a w are o f his control of t he thing for a sufficient tim e to permit him to terminate his contro l. T EX
. P ENAL C ODE § 6. 01(b).

“ I f the firearm is not found on the defendant or i s not in his exclusive possession, t he evidence must affirmatively link h i m to the firearm. ” Jame s , 26 4
S .W.3d at 219. T he State may establish possess ion by provi ng an “ affirmative link, ” which demons trates th at the defendant w as conscious of his connection with

t he weapon and knew what it was. I d. Some fa ctors that may establ i s h an affirmative link i nclud e that th e defendant w as in close proximity and had ready

ac cess to the contraban d; the defendant attempted to flee ; and conduct b y the defendant indicating consciousness of guilt

. Id. T he evidence used to satisfy these elemen t s can be either direct o r cir cumstantia l. Id.28

During the puni shment phase, t he State pre sented evidence that while out on bond for the underlying offense, Limon committed the offense of felon in possession of a weapon. A deputy from the Harris County She r i ff ’ s Office testified

t hat o n March 1 3 , 2019 he was dispatched to a call tha t a suspicio us man in all black clothing, possibly holding a gun, was walking around pickup trucks in a driveway. When the deputy arri ved, the reporte e showed him surveillance vi d e o . In the video, the de puty saw a man in all

- black clothing walking around t wo pickup

tr ucks while looking in the windows and shaking the door handles. The man ran off when a security light in the driveway turned on. The deputy relayed what he saw over t h e dispatch radio. Anoth er pa trol officer less than a mile away observed a pe rson th at ma tched the same description.
T he d eputy went to that location and observed the same person he ’ d seen in the surveillance video, who he later identified as A lexis L i mon . The patrol officer als o tes tified that he hea rd the deputy ’ s radio call and observed a person that fit the description at a g as stati on nearby. The officer thought that the person was suspicious because he was in a Tahoe truck near an air pump but not a d d ing air to his tires

. T wo ot her people were ne ar the truck, a bout 30 feet aw ay. The offi cer testified that the suspect was sta nding in a grassy area, and when the officer approached him, the person started to walk away. The officer noticed that the indiv i d ual had tattoos on his face and a n Astros star tattoo on his29

neck. In the of

ficer ’ s expe rience, that meant that t he individual was tie d to the Houstone Tango Blast gang

. After arresting the person, the officer located in the
grassy area a pisto l with an e x tended magazine contain ing s everal rounds . The officer identified the person he detained as Alexis Limon and arrested him for felon in possession of a firearm. The office r identified Limon in the courtroom. There were sufficient circumstantial links to c o nnect Limon as the felo n in possession of the firearm during this incident

. The jury hea rd testimony th at a deputy respo nded t o a call of a suspicious person walking around trucks, checking their windows and doors. The deputy testified that he went to a g a s station nearby
and id entif

ied the same perso n from the surveillance video at the gas s tation.
An other officer testified that he resp onded to the gas station and saw a person standing near an air pump but not putting air in his tires. The person was sta n d ing in a grassy are a. W hen t he officer approached , the person began to walk away. After the officer arrested the person, he fo und a pi stol in the grass. Though he did not see the man drop the gun, it was apparent that it had been freshly dropped in the g r a ss. The evidence was l egall y sufficient to prove that L i mon was the person in possessio n of a firearm during this incident. B eca use the circumstantial evidence is
sufficient to identify L i mon, even if trial counsel ha d reque sted a preliminary hearing, t h e trial court would not have abused its discretion in admitting the30

evidence. Trial couns el ’ s performan ce did not fall below an ob ject ive standard of reasonableness. See Strickland , 466 U.S. at 687

– 88; see also L opez , 343 S. W.3d at 142. 3. C ounsel was not ine f fective for failing to seek a pre tri al de termination of the legality of Limon ’ s arrest fo r public int oxication. During the punishment hearing, the State presented evidence that while on bond in April 2021 , Limon was arrested for public intoxication

. Limo n argues that
trial co uns el w as deficient for failing to request a preliminary hearing reg arding thi s incident because his initial detention was illegal , the search of his pe rson was not justified by reasonable suspicion, and the evidence discovered as a r e sult
should have been suppressed. Limon a rgue s t hat without the evidence, the State could not have pr ove d that L i mon possessed various controlled substances , and the trial c ourt would have abu sed it s discretion in admitting the evidence

. During the punis h ment phase, a police officer testified th at h e wa s d ispatched in the early hours of the m orning to an apartment complex regarding an intoxicated man who had broken a v ehicle ’ s window. R e spo nding law enforcement split up to search for the suspect. The offi cer saw Lim on run when Limon spot ted

anot her police office r . The officer chased a nd detained Limon. The officer observed that Limon had watery eyes, droopy eyelids, and slow, slurre d speech. Limon appeared to be confused and had difficulty followin g direct ions and31

answering the officer ’ s q ues tions. Though the offic er de t ermined tha t Limon was not the suspect from the call regarding the broken window, t he officer believed that Limon was intoxicated and arrested him for public intoxica tion. The office r be liev ed that L i mon was a da nger to himself du e to his intoxication

. Lim on was

searc hed and found in possession of ecstasy, cocaine, Adderall , and marijuana

. A police officer may a rrest an individual without a warrant only if probable

cau se exists with respect to the individual in q uest ion , and the arrest falls within one of the exceptio ns s e t out in the Code of Criminal Procedure. Torre s v. State , 182 S.W.3 d 899, 901 (Tex. Crim. Ap p. 2005). Article 14

. 01(b) of the Code of Criminal Procedu re states that an offic er may arrest an i ndiv idual w ithout a
warrant for an offense commi tted within the officer ’ s presence or view. T EX
. C ODE C RIM
. P ROC
. art. 14.01( b). The ultimate question under a rticle 14.01(b) is whether
the officer ’ s knowledge is s ufficient “ to warrant a p rudent man in beli evi n g that the arrested person had committed or was committi ng an offense. ” State v. Woodard , 3 41 S.W.3d 404, 412 (Tex. Crim. App. 2 011) (internal quotation omitted). A person commits public intoxication if he app ears in a public place wh ile intoxicated to the degre e that he may enda nger himself or anot her. T EX
. P E NAL C ODE § 49.02(a). P ublic places include a partment buildings. Id. § 1. 07(4 0). Here, there was evidence that L imon was in a public place , he attempted to flee law enforcement, and he appeared in toxi cated. The officer t estified that32

Limon ’ s ey es we re glas sy, his speech was slowed, and he had trouble following commands. The of

ficer also opined that L i mon was a danger to himself. He was in

a n apartment comp lex parking lot in the ea rly hours of the m orni ng. S e e State v. Martinez , 569 S.W.3d 621, 6 29 (Tex. Cri m. App. 20 19 ) ( stating intoxicated person

was potential danger to himsel f in parking lot of p ublic place “ where it is
reasonable to assume that cars would travel in and out ” ). S i nce the office r ha d prob able cause to arrest Limon for public in toxication , trial counsel was no t ineffective for failing to request a preliminary hearing on the legality of Limon ’ s
arrest. L imon has not established the first p rong of the Stric kland test t hat his

counse l ’ s perfor mance wa s deficient

. Strickland , 466 U .S. at 687

– 8 8

. 4. C ounsel was not ineffective for failing to attempt to exclude eviden ce of drugs found during the public in toxication arrest. Limon further a lleges t h at his counse l was ineffecti ve for failing to attemp t to exclude evidence of drugs found o n Limon when he w as arrested for public
intoxication i n April 2021

. The officer who arrested Limon for public intoxication testified during punishment that he found cocaine, ecstasy, Adderall , a nd marijuana

o n L i mon. L i mon arg ues th at his trial counsel sho ul d have obj ected to admission of testimony that he possessed Adderall, cocaine , and marijuana. He contends that only the e cstasy was tested by a forensic chemist, a nd therefore, the other33

subst ances were not p ro v en beyond a r eas ona ble doubt. 2 The State re sponds that if appellant’s coun sel had objected , only the cocaine and Adderall would have been

exc lu ded because the ecstasy was tested, and marijuana can be visually identified by an officer. Th e Sta te conten ds that trial coun sel ’ s decision did not fall be low professi onal norms because i t can be trial strategy to be transparent about c riminal history a nd drug use during punish ment. The Sta te also alleges that Limon ca nnot demonstrate prejudice , a s the admissio n of two of four s ubstan ces would not have signi ficantly cha nged his sentence. The record is silent regarding counsel ’ s reasons for not objecting to the drug
testimon y. Claims of ineffective assistance must b e firmly rooted in the record. Th ompson v. State , 9 S.W.3d 80 8, 814 (Tex. Crim. App. 1999). When counse l has had no opportunity to explai n his actions, we assume a strategic motive, if one can be ascertained , and f

ind counsel deficient only if his conduct was so outrageous that no compete nt attorne y would have engag ed in it. Hart v. State , 667 S.W.3d
774 , 782 (Tex. Crim. App. 2023)

. It is apparent from closing argumen t that defe nse

couns el ’ s overall strategy was to portray Limon as a person who had experienced a

“ downward spi ral ” from usin g dr ugs fr om a young age. It is conce iva ble that trial

cou nsel did not object to the officer ’ s testimony regarding the drug s found on

2 Li m on also argues that all the drug evide nce should have been e xcluded because his arrest was not support ed by probable c ause . Having held th at t he officer had probable cause to arrest Limon for public intoxication, we do n ot address h i s argument based o n the exclusionary rule. See T EX
. R. A PP
. P. 47.1.34

Limo n during t he arres t because he wanted to be upfront and honest about Limon ’ s past. It is also c onceivable that co unsel believed drawing attenti on to the te stimony by objecti ng, when o nly two of th e substances could have possibly been exclude d,
was not a worthwhile s trategy for garnering leniency with the jury as it could
appear as though Limon did n ot take responsibi lity f or his drug use. On this record,

we cannot say that no r easonable trial strategy justified counsel ’ s actions

. See
Mene field , 3 63 S.W. 3d at 593

. 5. Counse l was not ineffective for failing to make a C onfrontation C lause objection to identif ication t estimony r egarding alleged aggravated a ssault with a deadly weapon. L i mo n next contends that his counsel was ineffecti ve for failing to object
b ased on the Confrontation Clause to identification testimony from an unavail able witness regarding an u nadjudicated extran eous conduct that occurred in September
2 021

. The State alleged that Limon had committed aggravated assault with a deadly weapon while in Harris County Jail in September 2021. The State responds that the trial record is not suffi ciently d eveloped to firmly establis h that counsel was i neffective. The Con frontation Clause pr ovides that “ [i]n all criminal prosecutions, the
accused shall en

joy the right . . . to be co nfronted with the witnesses against him. ”
U.S. C ONST
. amend

. VI. The a dmissi on of a hearsay st atement ma de by a n on testifyi ng declarant violates the Sixth Amendment if the statement w as testimonial,35

and the defendant lacked a p rior opportunity for cross

- ex amination. Crawford v. Washington , 541 U.S. 36, 68 (2004). Testimon ial stat ements are “ statem ents that

were m ade under circ umstances wh ich would lead an obje ctive witness reasonably to believe that the statement would be availa ble fo r u se at a later trial

. ” Id. at 51

– 52. During the punishment phase, the State offered evidenc e that Limon committed assau lt wit h a deadly wea pon while in jail in Se ptember 2021. A Harris County investigator testified that she watched surveillanc e video from the time o f the ass ault on two inma tes. She described the video, and it was shown to the jur y. The video showed t owels, sheets, and blanke ts pro pped up to block the camera ’ s view

. The investigator testified that inmates typically block the cam era in this way when in mates are having a fight, having sexua l relations, playing dice, or gamb ling.
In the video, s everal in mates go i nto one cell. T he ir f eet are visible moving around whil e a broomstick is being toss ed. The blankets flare as they were c ausing
the assault. Peo ple’s hands with closed f i sts can be seen as the second complainant is pulled down from a top bunk. The first complainant is see n side punched

. When the light s turn on in the cell block, all the inmates run out except for t he complainant. The inv estigator testified that she looked at a roster of who was in which cell block at that da te and time. She then pu lled their phot os fr om proces sing36

into the jail. As she watched th e video of the inmates leaving the cell block, she

use d a snipping tool to ta ke a picture and compare d that picture to the intake photos for the cell b lock. Sh e believed she had positively i dentified six i nm ate s who wer e part of the assault. One of the individ uals the investigator identified was
L i mon. The in vestigator created a ph oto array that was shown to one complainant. The investigator testified , “ t hat’ s h ow we positively Id ’ d the compl ain

– , the suspect s or the def

endants. ” Defense counsel objected based on hearsay, and the obj ectio n was overru led. The i nve stigator testified that she later interviewed Limon and charged him , and four othe r people, with aggravated assau lt with a deadly

wea pon. The record reflects that the substance of the victim ’ s identification was not rela yed to the j ury. During her test imo ny, the investigati ng office r said that she had
administered a photographic array to the complainant , and that was how she identifi ed “ the defendants

. ” T he investigati ng officer di d not testify tha t the victim had s pecif

ically ide ntified Limon.
Even if the statement about which Limon complains was te st imonial, we cannot say his co unsel was ineffec tive for fal ling to object based on th e Confrontation Clause. Whether the C o nfrontatio n Cla use applies during a punishment hea ring before a jury in Texas is an open question. See Stringer v.
State , 309 S.W.3d 42, 45

– 48 (Tex. Crim. App. 201 0) (ho lding that when a pre

-37

s entence investigation repo rt is used in non - capital case when judge deter mines

senten cing , Crawford does not apply and declining to address whether Crawford applies when jury determines se ntencing ). Claims of ineffectiv eness must be fir mly rooted i n the record

. Thompson , 9 S.W.3d a t 814

. “ B ecause the law is not an exact science and it m a y shift ov er ti me, the rule that an attorney is no t liable for an error in judgment on an unsettled proposition of law is universall y recognized. ” Ex parte Chandle r , 182 S.W.3d 350 , 35 8 (Tex. Crim. App. 2005) (internal quotation

om itted). We cannot say t hat counsel ’ s fai lure to object based on the Confron tation Clause fell below objective standards of professional norms. See L opez , 343
S. W .3d at 142. We overrule Limon ’ s ineffective ass istance of c ou nsel issue. Con clusion We affirm the judgment of the trial court.

Peter Kelly Justice Panel consists of Justices Kelly, Hightower, and Count iss.
Do not publish. T EX
. R. A PP
. P. 47.2(b).