Opinion issued April 11, 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 22
- 00219
- CR

——————

————— ISAIAS PINEDA , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 209th District Court

Harris County, Texas Tr ia l Court Ca se No. 1556925

MEMORANDUM OPINION A jury found Isai as Pineda guilty of sexual assault of a child . The jur y assessed his punishment at 20 years ’ impriso nment, a nd the t rial court sentenced
him in accordance with the jury ’ s verdict. O n a ppeal, P ineda a rgues that he received ineffective assistance of counsel. We affirm.2 Background Pineda was charged with sexual assault of a child based on allegations from his four teen

- yea r - old cousin. He proceeded to a jury trial. At trial, the jury heard from re spondin g officers , the complainant , the nurse who examined her a few day s after the incident, the investigator who obs erved her forensic interview , and a DNA technician.
O ne eveni ng in June 2017, Pineda picked up the complainant, his fourteen

year - old fem ale cou sin , so that she could spend a week of summer vacation with his family. P i neda was 44 years old at the time. On the way to his house , Pineda told the com pl ainant that he had to stop at the barbershop w here he wor ked.
N obody else was insi de the barbe rshop when they went inside. Pineda offered h is cousin tequila. Though she had never had it before, she dr ank the tequila. He then took her across the street to buy mor e a lcohol from a corner store. Pineda purchased a s ix

- pack of premi x ed and bottled vodka cock tails , and they re turned to the barbershop. They drank the cocktails , and the complainant testified that it made her fee l we ak and out of control

. Pineda began massa ging his cousin ’ s shoulders

an d used a n electric massager on her shoulders. He then be gan massaging h er chest with his hands. She asked P ineda to stop because it made her uncomfortable, but instead he pulled up her shirt a nd bra and began touching her c hest. Pineda pulled down the comp lainant ’ s pa nts and u nderwe ar and removed his own clo thi ng from3

the wa ist d own. When the complainant felt pain, she realized that Pineda had inserted his penis into her vagina. Pineda assaulted his cousin for several minutes
before e jacul ating on her stomach.
Th e complainan t cleaned herself off in a bathroom, and Pineda d rove he r to his house. It was after midnight. Several family members were at the house , but the compl ainant did not talk t o them. Ins tead, she went upstairs and took a show er. She wrapped her shi rt and bra i nside the towel s he had brought with her. She the n put
t he bundle on the floor of the room where she was s taying. She waited a few days to tell anyone what had happened because Pined a told her not to tell anyone. S he eventually told her family, and the inc ident was reporte d to the police.
La w enforcemen t respo nded t o Pi neda ’ s house where they interviewe d the complainant. She disclosed the sexual assaul t, and law enforcement took her shirt and bra that she had been wea ring on the night of the offense into e vidence. After testing , Pine da ’ s seme n was found on the complainant’s b ra and shirt

. Law enforcement went to the barbershop and obtained video footage from the shop ’ s secu rity cameras. T he video was played for the jury and shows that Pineda brought the co mplainant to the barbe rshop on the ni ght of the a ssault. He had a bottle of liquor with him. He tur ned the lights off and mass aged the complainant. His pants and belt were undone. T he vid eo does not show the actual4

sexual assault. Law enforcement te stif ied that there are unexpl ained gaps in t he footage d uring t he time the sexual assault occurred. On th e same day that she was inte rviewed by police, the complainant underwent a sexual assaul t examination. She again described the details of the assault to the examining nurse . There was no physica l evidence o f penet ration . The
nurse testif

ied that the lack of evidenc e w as likely d ue to the delay between the assault and examination and the fact that the complainant had showered, used the restroom, and chan ged clo thes in between. Duri ng trial, P ined a ’ s attorney had a conversation outside the presence of the jury with the State and t he judge regarding Pineda ’ s cell phone. During the conversation, the prosecutor explained that wh ile reviewing the evidence log over
t he weekend , she discov ered that the S tate was in possess ion of a dis k that she believed contained the forensic report from Pineda ’ s cell ph one. The cell phone had been seized and entered into evidence. After she found it, she met with Pineda ’ s attor ney and attempted to open the d ocument on th e dis k . It w as inac cessible. Neither attorney was able to access the document. The S tate did not know what the report contained, and the prosecutor to ld the trial court that she did not intend to admit it into e v idence. Neither party offered the dis k into evidence ,

an d ne ith er party objected . Neither party objected to the jury charge.5

After closing stateme nts, the jury found P i neda guilty of sexual assa ult and assessed the maximum punishment of 20 years ’ imprisonm ent. He appeals.

Ineffec tive Assistance of C o unsel In h is sole i ssue on appeal, Pineda argues that his trial counsel was ineffective because his counsel failed to request a spoliation instructi on in the jury charge after the State discovered the dis cont aining f orensic analysis of P ineda ’ s cell pho ne. We disag ree. A. S tandard of Review T he Sixth Amendment of the United States Constitution and the T e xas C o nstitution guarantee a criminal defendant the right to reasonably e ffective assistance of coun sel. U.S. C ONST
. a mend. VI; T EX
. C ONST
. art. I, § 10; s ee Lopez

v. State , 343 S.W.3d 137, 142 (Tex. Crim. App. 2011 ). The right to effective assistance of counsel requires ob jectively r easonable represent ation, not errorless performance

. Lopez , 343 S.W.3d at 14 2 (ci ting S t rickland v. Washington , 466 U.S. 668, 686 ( 1984), and Rob ertson v
. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)).
To establish tha t trial counsel provided ineffective assistance, an appellant bears the burden to demonstrate by a preponder ance of the evidence tha t (1) coun sel ’ s p erformanc e was defici ent; an d (2) the deficient performance prejudic ed the defense. Strickland , 466 U.S. at 687; Lopez , 343 S.W.3d a t 142. An6

a ppellant must e stablish both prongs before an appellate court will find couns e l ’ s

re presentation to be ine ffective. Lopez , 343 S.W.3d at 142 (citing Strickland , 466 U.S. at 687); see Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ( “ An appell ant’s failure t o satisfy one prong of the St rickland test negates a cour t ’ s

n eed to consider the other pro ng. ” )

. To sati sfy the firs t prong , an appellant must show that his trial counsel ’ s performance fell below an objective standard of reason ableness un der the prevail ing pro fessional norms. Strickland , 466 U.S. at 687

– 88; L opez , 343 S. W.3d at 142. Under the second prong, a n appellant must de monstrate prejudice or “ a reasonable probability that, but for counsel ’ s unprofessional errors, the res ult of the proceeding woul d have been different. ” Strickland , 466 U. S. at 694; see L opez , 343
S .W.3d at 142. A reason able probability is one suff icient to undermi ne confidence in the outcome. Lopez , 343 S.W.3d at 142. For an appellate court to find th at counsel was ineffective, “ counsel ’ s deficiency must be affirmatively demonstrated i n the tr ia l record; the court must not engage in re trospective specul ation. ” Id

. “ It is not sufficient t hat appellant

s how, with the benefit of hindsig ht, that hi s counsel ’ s act ions or omissions during trial were merely of questionabl e com petence. ” Id. at 142

– 43. (quo ting Mata v.
State , 226 S.W.3d 425, 430 (Tex. Crim . App. 2007)). Furthermo re, a claim of7

in effective assistance o f counsel also requires pr oof o f prej udice. Bone v. State , 77 S.W.3d 828, 836

– 37 (Tex. Crim. App. 2002).
In most cases, the record on direct appeal is undeveloped and thus inad equa te to prove a cla i m of ineffective assistance

. 1 Se e Menefield v. State , 363 S.W.3d 591, 592

– 93 (Tex. Cri m. App. 201 2) ; Thompson v. State , 9 S.W.3d 808,
813 ( Tex. Crim . App. 1999) ( “ A su bstan tial risk of failure ac companies an
appe llant’s cla im of i neffecti ve assistance o f counsel on direct appeal. ” ). The Court of Criminal Appeal s has repea tedly stated that t rial counsel “ should ordinarily be afforded an opport unity to explain his actions befo re be ing denounced as ineffective. ” Mene

field , 363 S.W.3d at 593 ( quoting Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). W hen trial c ounsel is not provi ded an opportunity to explain his actions, w e will no t find th at counsel ’ s performance was de ficient unless the challenged con duct was “ s o outra geous th at no compete nt attorney would have engaged in it. ” Id. (quotin g Goodspeed , 187 S.W.3 d at 392).
B. Analysi s Pineda is unable to overcome the presumption that his attorn ey provided effective as sista nce of cou nsel because the record d oes not con tain an explana tion of his attorney ’ s trial strategy. He also has not shown that the forensic repor t of his

1 Claims of ineffective assistan ce of cou nsel reject ed on dir ect appeal “ due to lack of adequate information may be reconsidered on an application for a writ of habeas cor pus. ” Lopez v. State , 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).8

cell phone was material or exc ul patory evidence or that the Sta te acted in bad faith

. On thi s record , we cannot say that Pineda ’ s attorney ’ s deci sion not to reques t a spoliation instructio n was below the standard of prevaili ng professio nal norms.

“ Spoliati on concerns the loss or destruction of evidence. ” Guzman v. St ate , 539 S.W.3d 394, 401 (Tex . App.

— Houston [1st Dist.] 2017, pe t. ref ’ d) ( citing
Torres v. State , 3 71 S.W.3d 317, 319 (Tex. App.

— Houston [1st Dist.] 2012, pet. ref ’ d)). When the State fails to preserve material , exculpatory evidence, the Stat e commits a d ue process violation, see Ari zona v. Y oungblood , 488 U .S . 51, 57

– 58 (1988); Zapata v. State , 449 S.W .3d 220, 228

– 29 (Tex. App.

— San Antonio 2014, no pet.), and it s good or bad faith in doing so i s not relevant. Ex parte Napper , 322 S.W.3d 202, 229 (Tex. Cri m. App. 2010 ) (orig. proceedi ng). On the other hand, when spolia tion concer ns “ pot ential ly useful ev idence, ” the defendant bears the burden of establishing that the State lost or destroyed the e vidence in bad faith. See Youngblood , 488 U.S. at 57

– 58 ; Nappe r , 322 S.W.3d at 229; Torr es , 371 S.W.3d at 319

– 20. “ ‘ Bad fait h ’ is more th an sim p ly b eing aware tha t one ’ s action or
inaction could result in the loss of someth ing that is recognized to be evid ence. ” Napper , 322 S.W.3d at 238

. I t “ entails som e sort of imp roper motive, such as
persona l animus against the defendant or a desire to prevent the defendant fro m obtaining evidence that might be useful. ” Id. ; Guzman , 539 S.W.3d at 40 2. Absent evidence o f bad faith, a spoliation inst ruction is not requi red. See Youn gblood , 4889

U. S. at 57

– 58; S n ell v. State , 324 S.W.3d 682, 684 ( Tex. App.

— F ort Wor th 2010, no pet.) (holding no error in failing to include spoliation instructio n in jury charge
becau se there wa s no claim of bad faith on part of Stat e ). Pineda does not all ege that the evidence contain ed in the fore nsic report of his ce ll phone wa s mater ial or exculpatory

. He also does not allege that the State
acted in bad faith

. For the trial court to have commi tted error in overruling a request by appellant’s counsel for a spoliation instruct ion, the evidence must have been mate rial or exculpatory or the State must have acted in bad faith in fa iling to take steps to preserve the forensi c report. Hines v. St at e , No. 14

- 15

- 00325

- CR,
20 16 W L 2935636 at *3 (Tex. App.

— Houston [14t h Dist.] May 17. 201 6, no pet.) (me m. op., not design ated for publication) (holding no ineffectiv e assistance of counsel when there was no evidence of bad faith b y State to su pport spoliation instruction); s ee White v. State , 125 S.W.3d 4, 4 3

– 44 (Tex. App.

— Houston [14th Dist.] 2003, pet. ref ’ d ) (con cluding that t rial court did not err in denying appel lant ’ s request for sp oliation instruct ion when appellant mad e n o showing that State acted in bad faith in f ailing to p reserve potential ly u seful evidence). Since the trial court would not have erred in deny ing the request, t rial counse l ’ s failure to
reques t a spoliation ins truction was not so outrageous that no competent attorn ey

wou ld have engaged in it. See G o odspeed , 1 187 S.W.3d at 392

.10

Even if an instruction to disregard would have been appropria te, we do not have a sufficient record on direct appea l f rom which to discern whether counsel had a reasonable trial strategy for no t requesting a limiting instruct ion

. A trial attorney may reas onably decide, as p art of trial strategy, not to request a limit ing ins tructio n because a limiting instruction may brin g unwanted attentio n to other aspects of the case

. See Mc N eil v. State , 452 S.W.3d 408, 415 (Tex. App

. — Hous ton [1st Dist.] 2014, pet. ref ’ d) ( stating that it was reasonable trial strategy to omit request for extraneous of fense i nstruct ion “ because [counsel ] did not want
any further attention to be drawn to potential extraneous offense or misconduct

com mitted by the defendant ” ). Here, an instruction could have drawn attention to other missing evide nce, such as the gaps in t he secu ri ty fo otage during the sexu al assault. Trial counsel may have stra tegized that if the jury received a limiting
instruction regarding t he ce ll phone, the jury could have applied the same
presum ption against Pineda regar din g the mis sing surveillance footage

. Se e W ebb

v. State , 995 S.W .2d 295, 301 (Tex. App.

— Ho uston [14th Dis t.] 1999, no pet.) ( explaining that it was reasonable trial strate gy to av oid remindin g jury of or drawing attention to other matter s that could negatively i mpact their decision)

. Alternat ively , t

rial c ounsel may ha ve c hosen not to request the instr uction because he knew that the evidence on the phone w as damaging to Pine d a ’ s cas e. T he re cord does not indicate what evidence would have been found on the cell phone , and the11

State did not inte nd to use it

. C ouns el may h ave chosen not to request the inst ructi on because he did not want to incentivize the State to call a fo r ensic expert
to retrieve the unavailable report and introduce it into evid ence. On this record, we cannot say that trial counsel ’ s conduc t was s o outrag eous that no competent attorney would h ave engag ed in it. G oodspeed , 187 S.W.3d at 392

. Pineda has not established t hat trial counsel ’ s performance fell below an objective standa rd of re asonableness under prevailing professional norms.
Stric k land , 466 U.S. at 687

– 88. H aving determined that Pine da fail ed to establish the first prong of the Strickland test, we need not con sider w hether the allegedly deficient perform ance prejudiced h is defen se. See Williams , 301 S.W.3d at 687. We overrule P ineda ’ s issu e on ap peal. Concl usion We affirm the judgmen t of th e trial court.

Peter Kelly Justice
Pan el consists of Justices Kelly, Farris, and Radack. 2 Do not publish. T EX
. R. A PP
. P. 47.2(b).

2 The Honorable Sherry Radack, Senior Justice, Co urt of Ap peal s , Firs t Distric t of Texas at Houston, sitting by assignment.