Opinion issued January 23, 2024

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-22-00836-CR

———————————

MICHAEL ALLEN LEE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th Judicial District Court

Brazoria County, Texas

Trial Court Case No. 91060-CR

MEMORANDUM OPINION

A jury convicted appellant Michael Allen Lee of aggravated assault and 

sentenced him to ten years’ imprisonment. See TEX. PENAL CODE § 22.02. In nine 

issues, Lee contends his trial counsel rendered ineffective assistance of counsel. We 

affirm.
2

Background

Lee and the complainant, Kayla Emmons, met in 2017 and began dating in 

early 2018. According to Emmons, Lee became violent within a few months, 

throwing objects and breaking things in her home. She also contends that Lee’s 

violence turned physical toward her. In early 2020, the couple began dating other 

people but continued to discuss reconciliation. 

One day in April 2020, Emmons was at her boyfriend’s house when Lee began 

calling and texting her cell phone. When Emmons did not answer, Lee left her a 

voicemail. Emmons did not listen to the voicemail right away. Lee then sent a text 

message to her, stating: “I’ll be waiting for you, check your voicemail.” Emmons 

did not initially see the text message. Later, Emmons received another text message 

from Lee, asking, “Have you had a dog in your bed?” Emmons became suspicious 

that Lee was in her home, because her boyfriend had a large dog, and it had slept in 

her bed. Emmons asked her grandmother to drive by to see if Lee was there, and 

according to Emmons, her grandmother observed Lee’s truck in her driveway. 

Emmons then called Lee and told him to leave. Lee told her he wanted to see her 

and was waiting for her. Emmons then checked her voicemail and heard the message 

Lee left earlier. In the voicemail, Lee said he would see Emmons when she got 

home.1 He left the message at approximately 5:30 a.m. Because her conversation 

1 This voicemail was admitted at trial. 
3

with Lee occurred between 10:00 a.m. and 11:00 a.m., she believed he had been 

inside her home for several hours. 

After speaking with Lee, Emmons called her mother, Tina, and asked her to 

go by Emmons’s house to make sure her firearms were still in her gun safe. Against 

Emmons’s wishes, Tina called police. With Emmons’s permission, officers entered 

her home and confirmed her guns were still in the safe. Emmons also gave officers 

permission to call Lee and issue a criminal trespass warning, instructing him not to 

return to her home. 

Lee and Emmons subsequently began speaking again. By July 2020, the two 

spent “almost every other day together.” On the evening of July 6, 2020, Emmons 

invited Lee over to watch a movie. Emmons believed Lee had been drinking. At 

some point in the evening, Lee became “aggravated” following a telephone call with 

his brother. According to Emmons, Lee walked into her bedroom, picked up her gun 

safe, and began “banging” the safe on her bedside table. He then grabbed a lamp and 

began hitting himself in the head with it. Emmons took the lamp from Lee, and as 

she turned to place it back on the table, she saw him move his hand to move his shirt, 

which was covering a gun he was wearing on his hip. Lee then put the gun to 

Emmons’s head for approximately fifteen seconds. Emmons was able to persuade 

Lee to lower the gun, and she took it from him. When Lee walked into another room, 

Emmons unloaded the gun and hid it in a drawer. Lee refused to leave the home and 
4

fell asleep on the couch. The next morning, after an argument, Lee left Emmons’s 

home. Emmons then left the home to stay with family and friends.

On July 10, 2020, Emmons called police and asked them to come pick up 

Lee’s gun. During the call, Emmons mentioned that Lee had put the gun to her head 

days earlier. Officers arrived at Emmons’s home, and in explaining why she needed 

police to take Lee’s gun, Emmons described the assault. Though she expressed 

reluctance to press charges, officers collected the gun as evidence and advised 

Emmons they would be pursuing aggravated assault charges against Lee. 

When Lee returned to Emmons’s home on July 26, 2020, asking Emmons to 

return his gun, Emmons again called police. Later that day, officers arrested Lee for 

trespassing. In October 2020, a grand jury indicted Lee for aggravated assault with 

a deadly weapon. 

At trial, the State presented testimony from various police officers involved 

in the investigation, Emmons, and her mother. The defense presented testimony from 

a former girlfriend, Lee’s brother, and his father in support of his alibi that he was 

not with Emmons on July 6, 2020. Following deliberations, the jury convicted Lee 

of aggravated assault and sentenced him to ten years’ confinement in the Institutional 

Division of the Texas Department of Criminal Justice. The trial court signed a 

judgment of conviction on November 10, 2022. Lee did not file a motion for new 

trial or other post-judgment motion. This appeal followed. 
5

Ineffective Assistance of Counsel

Each of Lee’s nine issues raised on appeal concerns allegations of ineffective 

assistance of counsel. In his first six issues, Lee claims he received ineffective 

assistance of counsel during the guilt phase of his trial. In his last three issues, Lee 

argues that his counsel provided ineffective assistance during the punishment 

proceedings. We address Lee’s allegations in turn below.

A. Standard of Review and Applicable Law

The Sixth Amendment of the United States Constitution and the Texas 

Constitution guarantee a criminal defendant the right to reasonably effective 

assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; see Lopez v. 

State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The right to effective assistance 

of counsel requires objectively reasonable representation, not errorless performance. 

Lopez, 343 S.W.3d at 142 (citing Strickland v. Washington, 466 U.S. 668, 686 

(1984); Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)).

To establish that trial counsel provided ineffective assistance, an appellant 

bears the burden to demonstrate by a preponderance of the evidence that (1) 

counsel’s performance was deficient, and (2) the deficient performance prejudiced 

the defense. Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142. An appellant 

must establish both prongs before an appellate court will find counsel’s 

representation to be ineffective. Lopez, 343 S.W.3d at 142 (citing Strickland, 466 
6

U.S. at 687); see Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) 

(“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s 

need to consider the other prong.”).

To satisfy the first prong, an appellant must show that his trial counsel’s

performance fell below an objective standard of reasonableness under the prevailing 

professional norms. Strickland, 466 U.S. at 687–88; Lopez, 343 S.W.3d at 142. 

Under the second prong, an appellant must demonstrate prejudice or “a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland, 466 U.S. at 694; see Lopez, 343 S.W.3d at 

142. A reasonable probability is one sufficient to undermine confidence in the 

outcome. Lopez, 343 S.W.3d at 142.

For an appellate court to find that counsel was ineffective, “counsel’s 

deficiency must be affirmatively demonstrated in the trial record; the court must not 

engage in retrospective speculation.” Id. “It is not sufficient that appellant show, 

with the benefit of hindsight, that his counsel’s actions or omissions during trial were 

merely of questionable competence.” Id. at 142–43 (quoting Mata v. State, 226 

S.W.3d 425, 430 (Tex. Crim. App. 2007)). Furthermore, a claim of ineffective 

assistance of counsel also requires proof of prejudice. Bone v. State, 77 S.W.3d 828, 

837 (Tex. Crim. App. 2002).
7

In most cases, the record on direct appeal is undeveloped regarding the motive 

behind counsel’s actions and thus inadequate to prove a claim of ineffective 

assistance.2 See Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); 

James v. State, 506 S.W.3d 560, 569 (Tex. App.—Houston [1st Dist.] 2016, no pet.); 

see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“A 

substantial risk of failure accompanies an appellant’s claim of ineffective assistance 

of counsel on direct appeal.”). The Court of Criminal Appeals has repeatedly stated 

that trial counsel “should ordinarily be afforded an opportunity to explain his actions 

before being denounced as ineffective.” Menefield, 363 S.W.3d at 593 (quoting 

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). When trial 

counsel is not provided an opportunity to explain his actions, we will not find that 

counsel’s performance was deficient unless the challenged conduct was “so 

outrageous that no competent attorney would have engaged in it.” Id. (quoting 

Goodspeed, 187 S.W.3d at 392).

All of Lee’s ineffective assistance arguments concern his trial counsel’s 

purported failure to object to certain testimony or evidence. When a defendant 

alleges that his trial counsel was deficient in failing to object to the admission of 

evidence, the defendant must show: (1) the evidence was inadmissible, and (2) the 

2 Claims of ineffective assistance of counsel rejected on direct appeal “due to lack of 

adequate information may be reconsidered on an application for a writ of habeas 

corpus.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). 
8

objection would have been granted. Lesso v. State, 295 S.W.3d 16, 21 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d).

B. Alleged Ineffective Assistance During Guilt/Innocence Phase

1. Failure to Object to Hearsay

In his first issue, Lee contends that he received ineffective assistance when 

trial counsel failed to object to various pieces of testimony that Lee characterizes as 

hearsay. Specifically, Lee argues that counsel should have objected to the following 

as hearsay: (1) testimony from Tina concerning how she learned of Lee’s presence 

in Emmons’s home in April 2020, (2) testimony from Emmons as to her discussion 

with her grandmother in April 2020, and (3) testimony from Officer Guthrie 

referring to statements made in his body cam video. 

a. Testimony from Tina and Emmons Concerning Lee’s Presence 

in Emmons’s Home in April 2020

Lee argues that trial counsel rendered ineffective assistance in failing to object 

to hearsay testimony from Tina and Emmons concerning the April 2020 incident. 

Tina testified to conversations with Emmons’s grandmother after the grandmother 

drove by Emmons’s home and observed Lee’s truck. Tina also testified that Emmons 

told Tina that Lee had asked if there had been a dog in Emmons’s bed. Additionally, 

Lee complains that his counsel did not object to testimony from Emmons concerning 

her phone conversation with her grandmother wherein she learned that Lee’s truck 

was at her home. 
9

Hearsay is an out-of-court statement offered to prove the truth of the matter 

asserted in the statement and is generally inadmissible. TEX. R. EVID. 801(d), 802. 

Lee contends that the complained-of portions of testimony were offered to prove that 

Lee was, in fact, at the home in April 2020. However, even if we were to agree that 

counsel’s failure to object to this testimony was erroneous, we nevertheless conclude 

that any error was harmless. As Lee admits in his brief on appeal, “it is true that there 

was other evidence, mostly statements made by Mr. Lee about the April 

incident . . . .” We note that Emmons testified, without objection, to a phone call 

with Lee on the date in question wherein Lee admitted he was at her home.3

Therefore, given the cumulative nature of the complained-of testimony, any error by 

trial counsel in failing to object was harmless. See Braughton v. State, 749 S.W.2d 

528, 532 (Tex. App.—Corpus Christi–Edinburg 1988, pet. ref’d), cert. denied, 493 

3 Emmons testified as follows: 

Q. You called him. And what did you say originally in that 

conversation? 

A. First thing I said is are you in my house? And he said yes. I 

said get out of my house. He said why? I’m waiting for you. I 

want to see you. And I told him to get out. . . . Eventually he 

did leave.

. . . .

Q. How did you know he had left? 

A. He said, fine, I’m leaving, on the phone. 
10

U.S. 870 (1989); see also Toney v. State, No. 01-94-00239-CR, 1996 WL 183411, 

at *6 (Tex. App.—Houston [1st Dist.] Apr. 18, 1996, pet. ref’d) (not designated for 

publication) (concluding that “[w]hen measuring the performance of counsel, failure 

to object to hearsay evidence that is cumulative of other properly admitted evidence 

is generally harmless” (citing Braughton, 749 S.W.2d at 532)).

Additionally, to the extent Lee complains of out-of-court statements made by 

Lee, Emmons, or Guthrie, their admission was also harmless because each of these 

individuals testified at trial and was subject to cross examination. See, e.g., 

Thompson v. State, 665 S.W.2d 188, 190 (Tex. App.—Houston [1st Dist.] 1984, no 

pet.) (holding no reversible error where complainant who made out-of-court 

statement was in court, testified on direct and cross-examination, and was available 

for further examination); Morales v. State, 727 S.W.2d 101, 104 (Tex. App.—San 

Antonio 1987, pet. ref’d) (holding any error in admitting officer’s testimony as to 

what complainant told him was harmless where complainant was present and 

available during trial for cross-examination and observation by jury; “the usual 

reasons for excluding hearsay statements [were] not present”).

b. Testimony from Emmons Regarding Her Discussions with 

Officers

Next, Lee argues that his trial counsel should have objected to the following 

testimony from Emmons concerning why she installed a doorbell camera after the 

alleged assault: 
11

Q. Because the officers have told you [“]time to [p]ack up and move?[”]

A. Yes.

Q. [“]Protect yourself. Leave this house. He knows where you’re at?[”]

A. Yes.

Lee contends that this testimony was hearsay because it was admitted for its 

truth; i.e., to establish that Lee would return to harm Emmons if she did not move. 

We disagree. Rather, the State could have offered this testimony to show the effect 

the officers’ statements had on Emmons—prompting her to install a doorbell 

camera. Lee appears to acknowledge as much in his briefing, stating that the above 

testimony from Emmons “explain[ed] why she had installed a doorbell camera after 

July 6, 2020 . . . .” We therefore reject this ineffective assistance argument. See 

McNeil v. State, 452 S.W.3d 408, 419 (Tex. App.—Houston [1st Dist.] 2014, pet. 

ref’d) (overruling ineffective assistance argument concerning failure to object and 

noting that “[s]tatements offered only to show their effect on the listener are not 

hearsay”); see also Ex parte Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App. 2012) 

(“The failure to object to proper questions and admissible testimony . . . is not 

ineffective assistance.”). 

c. Testimony from Guthrie

In his final sub-argument concerning hearsay, Lee argues that trial counsel 

should have objected to testimony from Officer Guthrie concerning (1) his 
12

discussions with Emmons on July 10, 2020 and other statements made in Guthrie’s 

body cam video from that day, and (2) his conversation with Officer Santucci 

concerning the no-trespass warrant.4

First, we disagree with Lee that these statements were offered for their truth. 

An officer’s testimony offered to establish the course of events and circumstances 

leading to the defendant’s arrest, and not for the truth, is not hearsay. See Dinkins v. 

State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (citing Jones v. State, 843 

S.W.2d 487, 499 (Tex. Crim. App. 1992) (holding that extra-judicial statements 

were not inadmissible hearsay because they were admitted not for truth, but to 

explain how defendant came to be suspect)); see also Sosa v. State, No. 05-11-

01294-CR, 2012 WL 5936295, at *4 (Tex. App.—Dallas Nov. 28, 2012, no pet.) 

(mem. op., not designated for publication) (collecting cases). Here, Guthrie testified 

concerning his investigation, particularly, his initial encounter with Emmons and her 

account of the assault. This testimony was admitted to show the effect Emmons’s 

statements had on his role as a police officer. See Dinkins, 894 S.W.2d at 347; see 

4 Lee contends counsel should have objected to the following testimony from Guthrie 

as hearsay: 

Q. Do you recall Santucci saying anything about the No[-]Trespass Warrant? 

A. I believe he’s the one that issued it to [Lee]. 

Q. Okay. And [Santucci] indicated that he had talked to the Defendant? 

A. Correct.
13

also Flores v. State, No. 02-21-00028-CR, 2022 WL 3097287, at *6 (Tex. App.—

Fort Worth Aug. 4, 2022, pet. ref’d) (mem. op., not designated for publication) 

(holding no error in admitting officer’s testimony concerning what another officer 

told him about defendant “because it was not offered to prove the truth of the matter 

asserted; it was admitted to show the effect it had on his role as a police officer”). 

Second, the testimony complained of is largely cumulative of other properly 

admitted evidence. Emmons testified concerning the events of July 6, 2020 and her

subsequent conversations with Officer Guthrie, and the body cam footage from that 

date was likewise admitted. As for Guthrie’s testimony that Santucci said in the body 

cam video that Santucci was the officer who issued the no-trespass warrant to Lee, 

this same general information was admitted elsewhere. Testimony from Sergeant 

Shoemake and Officer Guthrie, body cam footage from July 10 and July 26, and 

testimony from Emmons all discuss the issuance of the no-trespass warrant in April 

2020.5 Considering the cumulative nature of Officer Guthrie’s testimony, and the 

fact that the record does not illuminate trial counsel’s strategy for failing to object, 

we determine that any error was harmless. See Braughton, 749 S.W.2d at 532; 

Toney, 1996 WL 183411, at *6. 

5 Guthrie’s body cam footage is the only evidence specifically identifying Santucci 

as the officer who issued the no-trespass warrant. 
14

Lastly, considering the silent record, we decline to hold trial counsel was 

ineffective for failing to object to any of the testimony Lee complains of in his first 

issue, even if the testimony was hearsay. See Thompson, 9 S.W.3d at 814 (no 

deficient performance on silent record as to why trial counsel failed to object to 

State’s “artful questions” as State “doggedly pursued the introduction of 

inadmissible hearsay”). We overrule Lee’s first issue.

2. Failure to Object to Admission of Exhibit 13

In his second issue, Lee asserts that he received ineffective assistance when 

his counsel failed to object to the admission of footage from Officer Guthrie’s body 

camera from July 10, 2020 (Exhibit 13). The record is silent as to trial counsel’s 

strategy. However, in her opening statement, defense counsel asked the jury to “look 

at the DVDs” and specifically referenced Guthrie’s body cam video:

COUNSEL: As far as the criminal trespass back in April, the officer 

even -- you’ll hear him say on the recordings that, well, if you keep 

inviting him over it makes it void. So that someone is calling the police 

and making an accusation, there is no charges. There is no information 

other than a piece of paper that says a date. There is no signature from 

[Lee] that he received that. She also says on the recordings, well, I 

wouldn’t tell him. So you’re not telling him not to come over. She says 

she invites him over. So how is he supposed to know that he’s not 

supposed to be there? And the officer, you’re going to hear him say at 

least once, maybe twice, it voids -- it voids anything if you keep inviting 

him over.

Based on counsel’s argument to the jury, it is possible that counsel wanted the 

jury to see the body camera footage because she wanted the jury to hear from 
15

Emmons that she invited Lee over even after the no-trespass warrant was issued and 

that officers told Emmons this “voided” the no-trespass warrant. See Stoneham v. 

State, No. 01-21-00462-CR, 2023 WL 3311466, at *5–6 (Tex. App.—Houston [1st 

Dist.] May 9, 2023, pet. ref’d) (mem. op.) (not designated for publication)

(considering ineffective assistance argument concerning counsel’s failure to object 

to body cam footage and noting that where counsel introduced portions of video 

herself, there was “some evidence, then, that trial counsel did not object to the 

video’s admission because she intended to use the video herself”); see also McKinny 

v. State, 76 S.W.3d 463, 473 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (en 

banc) (“[A]dvocates must be free to choose not to make [objections] even if they 

have a legal basis for doing so. . . . [J]urors often see lawyers who make [objections] 

as ‘trying to keep the real truth from them.’”) (quoting THOMAS A. MAUET, TRIAL 

TECHNIQUES, 465 (5th ed. 2000)). 

Further, even if trial counsel’s failure to object to Guthrie’s body cam video 

was constitutionally deficient, Lee would not be able to establish the second prong 

of the Strickland test—prejudice—because he has not demonstrated that there is a 

reasonable probability that but for the admission of the video, the outcome of trial 

would have been different. See Thompson, 9 S.W.3d at 812. Again, Lee was charged 

with aggravated assault with a deadly weapon. See TEX. PENAL CODE § 22.02(a)(2); 

see also id. § 22.01. Lee argues that the video was inadmissible, “clearly harmful,” 
16

and prejudicial to his defense because statements in the video directly refuted Lee’s 

alibi defense. But the jury did not need to see the video to reject Lee’s alibi defense 

and determine that Lee committed an aggravated assault with a deadly weapon. The 

jury heard testimony from Emmons herself describing the assault and contradicting 

Lee’s alibi. The jury’s verdict indicates the jury believed Emmons’s version of 

events and found her to be credible. 

Even without the body cam footage, the jury could have found Lee committed 

an assault with a deadly weapon based on Emmons’s testimony. See Green v. State, 

465 S.W.3d 380, 382–83 (Tex. App.—Fort Worth 2015, pet. ref’d) (complainant’s 

testimony that she felt gun pressed to head and defendant told her it was gun was 

sufficient to support deadly weapon finding and conviction for aggravated assault 

with deadly weapon); Padilla v. State, 254 S.W.3d 585, 590 (Tex. App.—Eastland 

2008, pet. ref’d) (if believed, complainant’s testimony alone could support 

conviction for aggravated assault with deadly weapon); Lee v. State, 239 S.W.3d 

873, 878 (Tex. App.—Waco 2007, pet. ref’d) (complainant’s testimony identifying 

shooter in aggravated assault case sufficient to support conviction). Therefore, Lee 

has not proven the prejudice prong of the Strickland test based on trial counsel’s 

failure to object to the body cam video. See Stoneham, 2023 WL 3311466, at *6 

(concluding appellant could not establish prejudice resulting from counsel’s failure 
17

to object to body cam video where appellant testified to exhibiting gun, thus 

supporting his conviction).

We overrule Lee’s second issue.

3. Failure to Object to Admission of Exhibit 2

In his third issue, Lee argues that his trial counsel rendered ineffective 

assistance when she failed to object to the admission of body cam footage from 

Officer Garcia from July 26, 2020 (Exhibit 2). This video depicts Garcia’s 

discussions with Emmons at her home on July 26, 2020, after Lee came to the home 

that evening and asked for his gun. Emmons likewise discussed the no-trespass 

warrant and the July 6, 2020 assault with Garcia. Garcia’s body cam also recorded 

Emmons’s phone as she played videos from her doorbell camera showing Lee at the 

home on July 26, 2020. 

To the extent that Lee complains that counsel should have objected to 

statements made by Emmons in Exhibit 2 discussing the no-trespass warrant issued 

in April 2020, the assault on July 6, 2020, or the events of July 26, 2020, Emmons 

testified at trial to essentially the same information. Thus, these statements by 

Emmons in Exhibit 2 were cumulative of other properly admitted testimony, and any 

error in their admission was harmless. See Braughton, 749 S.W.2d at 532; Toney, 

1996 WL 183411, at *6. And again, because Emmons testified on both direct and 

cross examination, the jury was able to evaluate her credibility, which negated the 
18

typical reasons for excluding hearsay. See Thompson, 665 S.W.2d at 190; Morales, 

727 S.W.2d at 104.

Additionally, statements made by Emmons in the July 26, 2020 video 

concerning the events of that day and how she felt at that time about pressing charges 

would be admissible under the present sense impression exception to the hearsay 

rule. See TEX. R. EVID. 803(1) (defining “present sense impression” as a “statement 

describing or explaining an event or condition, made while or immediately after the 

declarant perceived it”). “The present sense impression exception to the hearsay rule 

is based upon the underlying premise that the contemporaneity of the event and the 

declaration ensures reliability of the statement.” Brooks v. State, 990 S.W.2d 278, 

287 (Tex. Crim. App. 1999). The closer in time the statement is to the event, the less 

likely there will be a calculated misstatement. Id.

Because the statements made by Emmons in Exhibit 2 were cumulative of 

other evidence, she testified at trial, and her statements made on July 26, 2020 

concerning the events that day were admissible under the present-sense-impression 

hearsay exception, we conclude that trial counsel’s decision not to object to the 

admission of those portions of Exhibit 2 does not rise to the level of ineffective 

assistance of counsel. See also Ex parte Jimenez, 364 S.W.3d at 887. 

We note that Officer Garcia did not testify at trial and was therefore not 

available for cross-examination as to the out-of-court statements he made in Exhibit 
19

2.6 However, even if the failure of trial counsel to object to Officer Garcia’s body 

cam footage was erroneous, we conclude (as we did with Officer Guthrie’s body 

cam footage) that Lee did not satisfy the prejudice component of the Strickland test 

because the jury could have found Lee committed an assault with a deadly weapon 

based on Emmons’s testimony alone, even without the body cam footage. See Green, 

465 S.W.3d at 382–83; Padilla, 254 S.W.3d at 590; Lee, 239 S.W.3d at 878; see also

Stoneham, 2023 WL 3311466, at *6 (concluding appellant could not establish 

prejudice resulting from counsel’s failure to object to body cam video where 

appellant testified to exhibiting gun, thus supporting his conviction).7 Considering 

this, as well as the absence of any information explaining trial counsel’s strategy for 

not objecting to the footage, we must overrule Lee’s third issue. 

4. Failure to Object to Victim Impact Testimony

In his fourth issue, Lee claims that his trial counsel failed to object to what he 

characterizes as victim impact testimony: first, testimony from Emmons’s mother 

6 The only statements made by Officer Garcia in Exhibit 2 that Lee complains of on 

appeal are those concerning the issuance of the no-trespass warrant on April 12, 

2020. Lee claims these statements were offered to prove that Lee was in fact served 

with or notified of a no-trespass warrant. As we noted earlier, other testimony and 

evidence admitted at trial concerned the issuance of the no-trespass warrant in April 

2020. 

7

In the body cam footage from Officer Villareal’s arrest of Lee on July 26, 2020 

(Exhibit 17), Lee admitted that he went to Emmons’s house on July 26, 2020 to 

retrieve his gun from her. Exhibit 17 was admitted at trial, and Lee does not 

complain about its admission on appeal. 
20

that the alleged assault “absolutely” affected Emmons “every day of her life,” and 

second, testimony from Emmons that she “pack[ed] up [her] children and . . . went 

and stayed at their dad’s house with them” and “got[] in to counseling” the week 

after the alleged incident. 

Lee argues that victim impact testimony is only admissible during the 

punishment phase of trial and thus, trial counsel’s failure to object to this testimony 

during the guilt phase was erroneous. In response, the State argues that the testimony 

was admissible because it “was used to rebut a defensive theory that had already 

been presented to the jury”—specifically, that the assault never occurred. We agree. 

Though victim impact testimony is “generally irrelevant at the guilt phase of trial 

because it does not tend to make more or less probable the existence of any fact of 

consequence at that stage,” it can be admissible as a “circumstance of the offense.” 

Longoria v. State, 148 S.W.3d 657, 659 (Tex. App.—Houston [14th Dist.] 2004, pet. 

ref’d); see also Wysack v. State, No. 01-13-00683-CR, 2015 WL 4366245, at *6 

(Tex. App.—Houston [1st Dist.] July 16, 2015, pet. ref’d) (mem. op., not designated 

for publication) (quoting Longoria, 148 S.W.3d at 659). For example, the testimony 

could be admissible if it tended to make more or less probable whether the defendant 

committed the crime at all. Wysack, 2015 WL 4366245, at *6.

In Wysack, this court determined that counsel’s failure to object to testimony 

that the complainant went to counseling, began cutting herself, and attempted suicide 
21

was not ineffective assistance, because the testimony was admissible to show that 

the alleged assault had in fact occurred, rebutting the appellant’s theory that the 

complainant fabricated the assault. Id. at *6–7. Similarly here, Lee’s entire defense 

was that he was not at Emmons’s house on July 6, 2020 and therefore, could not 

have assaulted her. Testimony from Emmons’s mother concerning the impact the 

assault had on Emmons, and Emmons’s testimony that she left the following day 

and then sought counseling, was admissible to refute Lee’s alibi and tended to make 

it more probable that the assault occurred as Emmons alleged. See id.; see also Cueva 

v. State, 339 S.W.3d 839, 881 (Tex. App.—Corpus Christi–Edinburg 2011, pet. 

ref’d) (holding that because victim impact testimony had “tendency to make more 

or less probable a fact of consequence at the guilt stage” and was admissible for its 

relevance as to whether appellant committed crime at all, trial counsel’s failure to 

object did not fall below objective standard). Accordingly, we conclude that Lee has 

not demonstrated that trial counsel’s performance was deficient on this ground. 

We overrule Lee’s fourth issue. 

5. Failure to Object to Testimony Concerning Officer’s Prior 

Experience

In his fifth issue, Lee argues that his trial counsel rendered ineffective 

assistance when she failed to object to testimony from Officer Guthrie concerning 

his experience with and observations from other domestic violence cases. 

Specifically, Lee complains about the following testimony from Guthrie: 
22

Q. You heard [Emmons] say [on the video] . . . I’m not the kind of 

woman that would hide bruising. Correct?

A. Correct.

Q. Have you ever been on a domestic violence call where a victim 

will claim somewhat spontaneously that they don’t have a 

particular kind of injury, they are not doing something, and that 

turns out to be exactly what it is? 

A. Yes.

Q. Okay. So if there was bruising later discovered on [Emmons], 

that wouldn’t have surprised you?

A. No, sir, not at all. 

Lee also contends counsel should have objected to the following testimony 

from Guthrie (after earlier testimony regarding the presence of two bullets in the 

chamber of Lee’s gun8):

Q. Have you seen incidents with domestic violence where a gun is 

present where there is two bullets used?

A. Yes.

Q. Okay. And what -- how does that normally end up?

A. In a murder.

8

[STATE:] And did the -- was it significant to you at all for a domestic 

dispute to find two bullets?

[GUTHRIE:] Was it interesting? 

[STATE:] Yes.

[GUTHRIE:] Yes. Yes, sir, absolutely.
23

Q. Murder/suicide sometimes? 

A. Sometimes, yes, sir. 

Q. And you were very up-front with [Emmons] about what could 

happen if she didn’t get away. Correct?

A. Correct.

. . . . 

Q. Did you have reason to be concerned?

A. Yes, sir.

Q. Okay. And are those based on things you know and have seen?

A. Yes, sir. 

Lee argues that the testimony was irrelevant and unfairly prejudicial. We 

agree with the State that lay witnesses, such as Officer Guthrie, can offer opinion 

testimony, as well as testimony including “beliefs[] or inferences as long as they are 

drawn from his or her own experiences or observations.” Osborn v. State, 92 S.W.3d 

531, 535 (Tex. Crim. App. 2002); see also TEX. R. EVID. 701. Here, Officer Guthrie 

testified that, based on his observations and eight-and-a-half years of experience as 

a police officer who had responded to “hundreds” of domestic violence calls, it was 

his opinion that (1) Emmons may have lied about bruising, and (2) Lee could have 

intended a murder/suicide by placing only two bullets in his gun. This was 

permissible opinion testimony from a lay witness based on his observations, training, 

and experience. See Osborn, 92 S.W.3d at 535; see also Reece v. State, 878 S.W.2d 
24

320, 325 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (holding admissible 

officer’s testimony that based on his experience, appellant, who he observed 

drinking beer in parking lot with twelve rocks of cocaine and $200 in small bills, 

was selling drugs). Because Officer Guthrie’s testimony was admissible, trial 

counsel’s failure to object was not ineffective assistance of counsel. See Osborn, 92 

S.W.3d at 535.

We overrule Lee’s fifth issue. 

6. Cumulative Effect of Alleged Errors

In his sixth issue, Lee contends that the cumulative effect of the above alleged 

inactions by trial counsel constitutes ineffective assistance of counsel during the 

guilt-innocence phase of trial. Having concluded based on the record before us that 

Lee has failed to meet his burden to show that by any of the above complained 

actions alone, trial counsel’s actions fell outside the bounds of reasonable 

representation, or that any of the complained-of actions actually prejudiced Lee’s 

defense, we likewise conclude that the cumulative effect of such actions does not 

rise to the level of ineffective assistance of counsel. See Chamberlain v. State, 998 

S.W.2d 230, 238 (Tex. Crim. App. 1999) (acknowledging that non-errors may not, 

in their cumulative effect, amount to error); Straight v. State, 515 S.W.3d 553, 576 

(Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (concluding that cumulative 

effect of trial counsel’s actions did not amount to ineffective assistance because trial 
25

counsel did not render ineffective assistance of counsel in complained-of actions); 

see also Aguilar v. State, No. 01-15-00972-CR, 2017 WL 3634248, at *19 (Tex. 

App.—Houston [1st Dist.] Aug. 24, 2017, pet. ref’d) (mem. op., not designated for 

publication) (same). 

C. Alleged Ineffective Assistance During Punishment Phase

Lee’s remaining three issues concern allegations of ineffective assistance 

during the punishment phase of trial. We address each of these in turn below.

1. Failure to Object to Testimony Concerning Other Victim

In his seventh issue, Lee argues that he received ineffective assistance of 

counsel during the punishment proceedings because counsel did not object to the 

following testimony from Emmons: 

Q. Since this time have you had contact with other ex-girlfriends? 

A. Yes.

Q. Who? 

A. Her name is Megan Freeman.

Q. And why? 

A. Because he did the same thing to her.

We do not have the benefit of any information in the record explaining trial 

counsel’s decision not to object to this testimony. As the State argues, it is possible 

that counsel did not want to draw further attention to this alleged extraneous offense 
26

by asserting an objection. See Heigelmann v. State, 362 S.W.3d 763, 768 (Tex. 

App.—Texarkana 2012, pet. ref’d); see also Smith v. State, No. 01-18-00331-CR, 

2020 WL 1942456, at *6 n.2 (Tex. App.—Houston [1st Dist.] Apr. 23, 2020, no pet.) 

(mem. op., not designated for publication) (“Texas courts have consistently held a 

decision not to object to extraneous-offense evidence can be a legitimate trial 

strategy, for reasons ranging from not wanting to draw the jury’s attention to the 

evidence to not wanting the jurors to believe that the defendant is trying to hide 

information from them.” (internal quotations omitted)). Regardless, any error in 

failing to object was harmless, in light of the following later testimony from Lee’s 

father: 

Q. Do you know a Megan Freeman? 

A. No. 

. . .

Q. Were you aware that she wrote an affidavit saying that [Lee] pulled a 

gun on her in June of 2020? 

A. No.

Lee does not complain about this subsequent line of questioning on appeal, 

which provided more information concerning Freeman’s allegations than Emmons’s 

testimony. Though Lee disagrees, we point out that, without his father’s testimony, 

Emmons’s testimony that Lee “did the same thing” to Freeman was vague as to what 
27

exactly Lee purportedly did to Freeman, or to what Emmons was referring. 

Considering this, as well as the absence of any explanation of trial counsel’s strategy, 

we decline to hold that trial counsel rendered ineffective assistance by failing to 

object to Emmons’s testimony during sentencing. See Braughton, 749 S.W.2d at 

532; Toney, 1996 WL 183411, at *6.

Lee contends that counsel’s failure to object is akin to the conduct of trial 

counsel in Dryer v. State, 674 S.W.3d 635 (Tex. App.—Houston [1st Dist.] 2023, 

pet. ref’d), a case where this court recently found ineffective assistance of counsel 

despite the appellate record’s silence as to trial counsel’s strategy. In Dryer, a jury 

convicted the appellant of continuous sexual abuse of a child. Id. at 638. At trial, the 

jury heard testimony from a friend of the complainant, who testified that during a 

sleepover, the appellant touched her upper thigh when she was “about 16”. Id. at 

639. The trial court conducted a pretrial hearing as to the admissibility of the friend’s 

testimony, wherein the State argued the testimony was admissible under article 

38.37 of the Texas Code of Criminal Procedure on the basis that the touching of the 

friend was a sex act committed against another child. Id. The State contended that 

the testimony was “extremely important” because it corroborated the child 

complainant’s allegations of abuse. Id. Defense counsel raised an objection to the 

admission of the testimony, though the basis of the objection was unclear. Id.

Ultimately, the trial court ruled that the testimony was admissible. Id. at 640.
28

On appeal, the appellant argued that his trial counsel was deficient in failing 

to object to the testimony as inadmissible under Texas Code of Criminal Procedure 

article 38.37, because that provision only allows for the admission of certain sexrelated offenses against children, and the witness was not a child at the time the 

alleged conduct occurred (rather, she was seventeen). Id. at 646. The appellant 

categorized the testimony as “damning evidence from a second accuser in what 

otherwise would have been a trial that boiled down to Dryer’s word versus [the 

complainant’s].” Id. This court agreed, concluding that counsel’s failure to object to 

the testimony’s admission met both prongs of Strickland. Id. at 650–51.

First, we determined that “no competent lawyer would have failed to make 

this objection because the inadmissibility of [the friend’s] testimony [was] plain on 

the face of the record and no reasonable counsel could have decided that the defense 

would be better served by its admission than its exclusion.” Id. at 648. Particularly, 

the friend stated her date of birth at the beginning of her recorded interview, which 

trial counsel received more than three years before the pretrial hearing concerning 

the admission of the testimony. Id. at 650. Further, on the video, the detective 

acknowledged that the friend was “technically an adult” at the time of the extraneous 

offense. Id. Thus, trial counsel was either aware or should have been aware before 

trial of the friend’s age and recognized the inadmissibility of her testimony. Id.
29

Second, concerning prejudice to the appellant, we concluded that defense 

counsel’s failure to object under article 38.37 was “both egregious and had a 

seriously deleterious impact on counsel’s representation.” Id. at 651. Essentially, the 

testimony transformed the case from a “he said, she said,” to “a contest in which 

Dryer faced two separate accusers.” Id. The testimony played a crucial role at trial, 

and the subject of the extraneous offense was referenced by at least six other 

witnesses throughout trial; “the sleepover ultimately occupied at least as much time 

at trial as [the complainant’s] allegations of sexual abuse.” Id. Ultimately, we held 

that counsel’s failure to object “undermine[d] our confidence in the trial’s outcome,” 

because the outcome essentially depended on the jury’s evaluation of the credibility 

of the appellant and the complainant, and the complainant’s testimony was 

significantly corroborated by her friend’s account of a similar experience. Id. at 652. 

We also noted that because the sleepover incident “pervaded the trial from start to 

finish,” counsel’s error impacted his representation as a whole significantly. Id.

We disagree with Lee’s attempts to analogize the instant testimony that Lee 

“did the same thing” to a former girlfriend to the damning testimony in Dryer. First, 

the testimony concerning Freeman only came in during the punishment phase of 

Lee’s proceedings; thus, our discussion in Dryer about the impact of extraneous 

offense evidence on a determination of guilt is inapplicable here. See id. (noting that 

this type of evidence “encourages the jury to convict based on bad character instead 
30

of proof of the specific crime charged”). Here, the jury found sufficient evidence to 

convict without ever hearing about Freeman. Further, we again note that the 

testimony complained of was not altogether clear as to what transpired with Freeman 

and did not come from Freeman herself; in contrast, the friend’s testimony in Dryer

was described as “demonstrably emotional,” and the State argued that her emotion 

was a sign of her truthfulness. See id. Those indicia are not present here. 

Based on the foregoing, and in light of the lack of any explanation as to trial 

counsel’s strategy, we overrule Lee’s seventh issue. 

2. Failure to Object to Improper Argument Concerning Parole

In his eighth issue, Lee alleges that he received ineffective assistance from 

trial counsel during the punishment phase when counsel did not object to the 

following statement from the prosecutor during closing arguments: 

It’s 3(g), which means that he has been found guilty of an offense 

involving a deadly weapon, which means any time assessed will be 

served at half time before good conduct time is counted. So if you were 

to assess him a time in prison he has to serve at least half before they 

calculate good conduct and then they calculate it for him to be eligible 

for parole.

Lee contends that with the foregoing statement, the State “was allowed to 

highlight the possibility of parole for the jury, and remind the jury that they should 

double whatever sentence they thought was proper.” In response, the State contends 

that the prosecutor’s statement tracks the statutorily required language outlined in 
31

Texas Code of Criminal Procedure article 37.07, section 4(a). That section outlines 

the following jury instruction: 

Under the law applicable in this case, if the defendant is 

sentenced to a term of imprisonment, the defendant will not become 

eligible for parole until the actual time served equals one-half of the 

sentenced imposed or 30 years, whichever is less. If the defendant is 

sentenced to a term of less than four years, the defendant must serve at 

least two years before the defendant is eligible for parole. Eligibility for 

parole does not guarantee that parole will be granted. 

It cannot accurately be predicted how the parole law might be 

applied to this defendant if sentenced to a term of imprisonment, 

because the application of that law will depend on decisions made by 

parole authorities. 

You may consider the existence of parole law. You are not to 

consider the manner in which the parole law may be applied to this 

particular defendant. 

TEX. CODE CRIM. PROC. art. 37.07, § 4(a). The court’s charge to the jury in 

this case essentially mirrored the statutory language. We agree with the State that 

counsel’s failure to object to the prosecutor’s statements concerning parole was not 

erroneous. As the Court of Criminal Appeals has observed, “it [is] not improper for 

the prosecutor to accurately restate the law given in the jury charge.” Taylor v. State, 

233 S.W.3d 356, 359 (Tex. Crim. App. 2007). Further, in the context of parole law 

specifically, the Taylor court determined that the following statements by the 

prosecutor were not improper: 

A 40-year sentence means the defendant becomes eligible for parole 

after serving 20 years.

. . . .
32

A 60-year sentence means he becomes eligible after serving 30 years. 

A sentence of life or 75 still means he becomes eligible after 30 years.

Id. at 358–59. The court concluded that “the prosecutor did not convey any 

information beyond what was properly contained in the charge when he explained 

how the parole eligibility rules set out in the charge worked with forty, sixty and 

seventy-five year sentences.” Id. at 359. Rather, the prosecutor’s statements “simply 

ensured that the jury understood the language set out in the instructions.” Id. The 

court also concluded that the prosecutor’s use of the words “defendant” and “he” in 

his argument was not problematic, because the statute itself uses those words when 

describing the rules of parole eligibility. Id.

Though the prosecutor in this case referred to “he” and “him” when discussing 

parole, he did nothing more than summarize the court’s charge to the jury. Because 

“[n]othing in this case indicates that the prosecutor’s explanations went beyond an 

attempt to clarify the meaning of the jury instructions,” trial counsel did not render 

ineffective assistance in failing to object to the prosecutor’s statements. See id.; see 

also Johnson v. State, 987 S.W.2d 79, 84 (Tex. App.—Houston [14th Dist.] 1998, 

pet. ref’d) (“An attorney’s failure to object to proper argument cannot be ineffective 

assistance.”). 

We overrule Lee’s eighth issue. 
33

3. Cumulative Effect of Alleged Errors

As in his sixth issue, Lee’s ninth issue concerns the cumulative effect of the 

alleged errors made by trial counsel during the punishment phase. We again 

conclude that because Lee cannot meet his burden to demonstrate that any of the 

complained-of actions, standing alone, fell outside the bounds of reasonable 

representation, or that he suffered the requisite prejudice as a result, the cumulative 

effect of such actions likewise does not rise to the level of ineffective assistance of 

counsel. See Chamberlain, 998 S.W.2d at 238; Straight, 515 S.W.3d at 576; Aguilar, 

2017 WL 3634248, at *19. 

Conclusion

Regardless of whether Lee visited Emmons’s home in April 2020 or was 

issued a no-trespass warrant thereafter,9the sole question before the jury during 

Lee’s trial was whether Lee committed an aggravated assault with a deadly weapon 

against Emmons on July 6, 2020. In addition to the numerous reasons outlined above 

as to why the complained-of conduct of trial counsel was either not erroneous or not 

prejudicial, we also determine that any error in admitting the subject evidence or 

testimony was harmless, in light of the entire record. Again, the jury heard testimony 

from Emmons specifically describing the assault, including the time and place it 

9 Several of Lee’s complaints on appeal concern counsel’s failure to object to the 

admission of evidence or testimony concerning these ancillary issues. 
34

occurred and how Lee held the gun to her head. See TEX. PENAL CODE §§ 22.01, 

22.02(b); see also Green, 465 S.W.3d at 382–83; Padilla, 254 S.W.3d at 590; Lee, 

239 S.W.3d at 878. Therefore, Lee has failed to establish the requisite prejudice to 

his defense as required by the second prong of the Strickland analysis. See 466 U.S. 

at 687. 

Having overruled each of Lee’s nine issues, we affirm the judgment of the 

trial court.

Amparo Monique Guerra

Justice

Panel consists of Justices Kelly, Hightower, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).