Daniel Diaz v. State

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00104-CR
____________________

DANIEL DIAZ, Appellant

V.

THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________

On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CR29411
________________________________________________________ _____________

MEMORANDUM OPINION

Appellant Daniel Diaz was indicted for official oppression under section

39.03 of the Texas Penal Code. See Tex. Penal Code Ann. § 39.03 (West Supp.

2014). 1 The indictment alleged that on or about November 13, 2011, Diaz

“intentionally subject[ed] James David McCormick to detention that [Diaz] knew

was unlawful, and [Diaz] was then and there acting under color of his employment

1
Because the amendments do not affect this case, we cite to the current
version of the statutes.
1
as a public servant, namely, Game Warden.” A jury found Diaz guilty and the trial

court sentenced Diaz to one year confinement in the Liberty County Jail and

assessed a $4,000 fine. Diaz appeals.

On appeal, Diaz argues that (1) the evidence is legally and factually

insufficient to sustain the jury’s verdict; (2) the trial court abused its discretion by

admitting irrelevant and prejudicial evidence from a series of alleged extraneous

acts in violation of Rules 401, 403, and 404(b) of the Texas Rules of Evidence; (3)

he was “denied his [c]onstitutionally protected and guaranteed right to effective

assistance of counsel[;]” and (4) that if the decision of the trial court is upheld by

this Court, “it will create a level of uncertainty that will have a chilling effect on

every traffic stop conducted by law enforcement officers within the State of

Texas.” We overrule his issues and affirm the judgment.

Guilt/Innocence Evidence

The testimony at trial indicated that Diaz and McCormick had a “prior

history” that preceded the incident of November 13, 2011. In 2006, Diaz

confronted McCormick about some “fish heads” McCormick allegedly threw over

the fence and into his neighbor’s pasture. Diaz drove up in his “game warden

truck” while McCormick was throwing out the fish and asked McCormick why he

was throwing fish heads onto the neighbor’s property. McCormick told him “I

2
always throw them back here.” Diaz asked to see McCormick’s fishing license and

continued to question McCormick. Based upon Diaz’s tone of voice, McCormick

called the Liberty Police Department and asked them to send an officer to the

scene. McCormick testified that as soon as Diaz noticed the Liberty police officer

pulling into McCormick’s driveway, Diaz “handed [McCormick his] fishing

license and said I’m going to give you a warning this time. Don’t throw fish heads

over here no more unless you get permission from [the neighbor].” A day or two

later, and after he obtained permission from the neighbor, McCormick drove over

to Diaz’s home to let him know that the neighbor had given McCormick

permission to throw the fish heads over onto her property. According to

McCormick, Diaz then told McCormick he knew that McCormick had “called the

law” on him and he stated to McCormick, “you better not ever call the law on me

again and you better watch your back.” McCormick testified he told Diaz he was

not there to argue, and Diaz told McCormick that he was arresting him and “[he]

was going to jail” for trespassing. When McCormick proceeded to walk to his

truck, Diaz grabbed McCormick’s wrist and held it up in the air and began

screaming at McCormick telling him he was going to jail. McCormick went to jail

and was charged with “assault” on Diaz. The assault case went to trial in 2010, and

the jury found McCormick not guilty.

3
 McCormick testified that while McCormick was waiting to go to trial on the

2006 assault charge, Diaz followed him on more than one occasion. One evening

Diaz blocked the path of McCormick’s vehicle with his personal truck and when

McCormick drove around Diaz to pull into McCormick’s driveway, Diaz followed

him and “stayed parked” in front of McCormick’s house for fifteen minutes. Right

after the jury found McCormick not guilty on the 2006 assault charge, Diaz again

followed McCormick, and Diaz flashed his lights at McCormick but did not stop

him. McCormick notified the police department that Diaz was “harassing” him but

he did not make a formal report. McCormick indicated at trial that the police

department personnel told him there was “pretty much nothing they [could] do.”

McCormick testified that on another occasion, prior to being stopped by Diaz in

November 2011, while McCormick was driving on Highway 146, Diaz followed

McCormick. McCormick also told the jury that prior to November 2011, he spoke

to law enforcement about getting a restraining order against Diaz and they told him

he needed to hire an attorney.

According to McCormick, on November 13, 2011, around 6:20 a.m., he was

driving his vehicle on Minglewood (a/k/a Mizell) Road, on his way to work, and

he drove past the driveway to Diaz’s home. McCormick had to drive past Diaz’s

home to exit his subdivision. McCormick testified he had his headlights on because

4
it was still dark outside. He stated that he knew he was not going over 30 m.p.h.,

“[b]ecause I always make sure I’m going under 30 when I pass . . . Mr. Diaz’s

house[,] . . . to try to avoid any trouble that I might have as I pass by his house.” As

he approached Diaz’s driveway, he noticed Diaz’s game warden truck parked in

the driveway. Diaz’s vehicle had its headlights on and as McCormick approached

Diaz’s driveway, Diaz turned his game warden truck “red and blue lights on.”

After McCormick’s vehicle got into the first curve past Diaz’s driveway,

McCormick then noticed that Diaz pulled out onto the roadway behind

McCormick. McCormick testified that he was “afraid for [his] safety” because of

their “past history” and that is why he did not immediately pull over. McCormick

stated,

I yielded for [Diaz] to go around because I thought
maybe that he had a call that he was going to, so I
yielded. . . . I also yielded for [Diaz] to go around while I
was on [the] phone with 911, but [Diaz] stayed behind
me. Then [Diaz] started getting close to my vehicle, so at
that point, I knew [Diaz] must have been pulling me
over.

McCormick testified that “[t]here was no other cars on the road, so at that point I

called 911 because I wasn’t really sure what to do. I was afraid for my safety at

that time.” McCormick pulled over and stopped while he was talking to the

911operator.

5
 After stopping, Diaz told McCormick to get out of his truck and McCormick

complied. Diaz asked to see McCormick’s driver’s license and proof of insurance.

Diaz told McCormick to put his driver’s license on the hood of Diaz’s truck, and

McCormick did what he asked. Then Diaz told McCormick to put his hands behind

his back and Diaz handcuffed McCormick, and told him he was arresting him for

“speeding.” McCormick testified that Diaz also “got right in [McCormick’s] face”

and asked McCormick, “[D]id you get satisfaction out of us going to court[?]”

McCormick replied, “[D]amn right. I enjoyed every minute of it, especially when

you got up on the stand and lied . . . you made a fool out of yourself.” McCormick

told Diaz that he had called 911. Diaz then called someone and said “I have James

McCormick pulled over and I have him handcuffed for my protection.” Diaz never

had his citation book out or with him, and none of the officers issued McCormick a

citation for anything.

The Liberty Police officers responded to a call to assist. When they arrived,

they took Diaz over in front of their vehicle and they had a discussion with Diaz.

McCormick testified that the male officer came back and told McCormick “Mr.

Diaz [is] going to set [you] free,” and the officer told Diaz to take the cuffs off of

McCormick. Before McCormick left to go to work, Diaz told McCormick he was

“going to get a warrant” to arrest McCormick for evading arrest. McCormick

6
turned to the male officer and said, “[C]an he do that?” McCormick told the jury

the officer looked at McCormick “and winked” and told McCormick to contact an

attorney.

Officer Cedric McDuffie, a Deputy with the Liberty County Constable’s

Office and formerly a police officer with the Liberty Police Department, testified

that he and his partner, Officer Elizabeth Polasek, responded to a call on November

13, 2011, to assist at the scene of a traffic stop. McDuffie had over twenty years in

law enforcement at the time of trial. McDuffie testified that when they arrived

McCormick was in handcuffs standing on the side of the road over by the Game

Warden’s truck. McDuffie got out of his vehicle and walked over to speak with

Diaz. According to McDuffie, Diaz indicated that McCormick was speeding and

Diaz stated he had observed McCormick driving by Diaz’s residence at “maybe

about 30 miles per hour.” Diaz also said “possibly” McCormick did not have his

headlights on. At that time, the subject of evading arrest never came up. Officer

McDuffie testified that the City of Liberty requires a radar to determine speed, and

he would never recommend that an officer try to enforce a traffic law for speeding

without getting a radar and special training to enforce speeding laws. 2 At one point

2
McDuffie explained that the Liberty Police use radar to document the speed
of a vehicle, but indicated that you can also use “[r]adar pacing and clocking[.]”
According to McDuffie, radar pacing is where the officer follows behind someone
7
at the scene, Diaz admitted to McDuffie that he had no reason to give Mr.

McCormick a ticket. At trial, McDuffie acknowledged on direct examination that it

was “fair to say that [Diaz] had no reason to give [McCormick] a ticket[.]”

The video captured by the Liberty Police Department dash camera was also

introduced into evidence at trial and played for the jury without any objection from

Diaz. The video (with audio) depicts the arrival of the Liberty police officers to the

scene, and the conversations of Diaz with the officers about the situation. On the

video, Diaz can be heard making the following statement, “No, I don’t have a

reason to give him a ticket . . . I really wasn’t going to give him a ticket.” Diaz can

also be heard telling the Liberty officers that “McCormick got out of . . . an assault

on me . . .,” and “he calls 9-1-1.”

The State introduced the audio recording and a transcript of the 911 call

made by McCormick, and there were also records of two calls made by Diaz on the

non-emergency line. Dispatcher Mary Jackson testified that McCormick’s 911 call

came in at 6:27 a.m., and it was the first call she received. Later, she also received

and determines their speed from the speed on the officer’s speedometer. And,
“clocking” is timing a vehicle from one point to another and then using the exact
distance to extrapolate a speed. Officer McDuffie said he “never felt comfortable”
using clocking and that only the State of California uses it. McDuffie testified that,
while you can sometimes just “eyeball” a car to determine if it is speeding, it is
more difficult and deceptive, especially around a curve.
8
two calls from Diaz on the non-emergency line. The time lapse between the start of

McCormick’s 911 call and then the beginning of Diaz’s first call was about two

minutes. As McCormick hung up with the 911 dispatcher, Diaz called the

dispatcher in his first call and then followed up with another call several minutes

later.

Rod Ousley, a Captain with Texas Parks and Wildlife, and Diaz’s supervisor

at the time of the 2011 incident, testified that Diaz came to his office the day after

Diaz stopped McCormick in November of 2011. Ousley explained to the jury that

Diaz brought in Diaz’s handwritten statement about the stop and informed Ousley

that Ousley probably needed to notify internal affairs because he thought the stop

could potentially generate a complaint. Diaz explained in his statement that he

observed “a black truck with no lights, headlights or parking lights” that

“appear[ed] to be exceeding the posted speed limit” and that he recognized that the

truck belonged to McCormick ,who he had “had a run-in with in the past.” Ousley

testified he notified Diaz on January 9, 2012, that the Internal Affairs investigation

resulted in a letter of intent to take corrective action. The next day, Diaz “put in”

for retirement, and therefore no corrective action was taken.

McCormick spoke with an attorney and decided to file a complaint with

Texas Parks and Wildlife against Diaz. Texas Parks and Wildlife investigated the

9
matter and referred it to Internal Affairs who then sent it to the District Attorney.

The transcript of Diaz’s testimony before the grand jury was admitted into

evidence, as well as Diaz’s handwritten statement about the incident. According to

the transcript of Diaz’s grand jury testimony, Diaz testified that before sunrise on

November 13, 2011, he was leaving in his patrol vehicle and saw a truck “50 feet

100 feet something like that” away with no lights on. He recognized the truck

belonged to McCormick as the truck went by, and he pulls behind him and “turns

on his red and blue lights cause I’m going to stop him, he had no lights and I allege

he’s speeding.” He saw McCormick apply his brakes but not pull over. Diaz

contacted the police department to inform them the vehicle would not pull over,

and the dispatcher said McCormick was on the 911 line and was reporting that

Diaz was harassing him. Diaz asked for assistance. According to Diaz, McCormick

pulled over, and when he got out of his truck “he didn’t come out very friendly he

said I called the real police and you’re in trouble[.]” Diaz made McCormick get

behind his truck and cuffed him because McCormick was talking “in an elevated

voice” and Diaz believed there was going to be “another scuffle” and he “didn’t

want to take any chances[.]” The grand jury indicted Diaz.

Irma Sanchez, custodian of records for Texas Parks and Wildlife, testified

that she performed a search for traffic citations and warnings issued by Diaz from

10
2008 through 2011. According to Sanchez, her search revealed that during that

time period Diaz did not write any warnings or citations for traffic offenses.

Dorothy Drennan, City of Liberty Municipal Court Clerk, testified that she

performed a search of the traffic citation issued by Diaz going back to 1993.

According to Drennan, Diaz had only issued one traffic citation since 1993, and

that was for cutting through a parking lot at an intersection.

Punishment Evidence

At the punishment phase, Special Ranger Jimmy Belt with the Texas

Department of Public Safety, testified he had several “run-ins” with Diaz dating

back to 1986 wherein Diaz tried to intimidate him. On at least one occasion, Belt

filed a complaint with Texas Parks and Wildlife regarding Diaz. Belt testified that

Diaz has a reputation for bullying members of the public and members of law

enforcement.

John Feist, a former Chambers County Game Warden, also testified at the

punishment phase. Feist said he has known Diaz for “[p]robably 25 years” and that

Diaz has a reputation for being unprofessional. Similarly, Highway Patrol Sergeant

Steve Holloway, formerly a Liberty County DPS officer from 1989 to 1998, stated

that he had witnessed Diaz threaten another law enforcement officer. Gary Cain, a

retired game warden who had previously worked in Hardin County, acknowledged

11
that he had people complain to him about Diaz “using his badge to bully the

public[,]” and that he heard complaints about Diaz from private citizens as well as

law enforcement. Captain Ousley, Diaz’s former supervisor, testified about an

incident in 2011 where Diaz violated Texas Parks and Wildlife policies when he

discharged a weapon “to get [a] guy’s attention.” In Captain Ousley’s opinion,

Diaz engaged in vindictiveness as a game warden. Private citizens also testified

about confrontations they had with Diaz.

In contrast, Game Warden Vu Nguyen, who has known Diaz for eight years

and worked with Diaz on “[m]any occasions[,]” testified that Diaz’s behavior was

“[a]lways professional and courteous.” Nine other character witnesses testified that

they have known Diaz for a long time and all of them had good experiences

dealing with Diaz while he was working in his capacity as a game warden. Diaz’s

wife testified that they have been married twenty-two years. She testified that Diaz

“is a good man” and a Vietnam veteran.

Legal and Factual Insufficiency Challenge

In his first issue, Diaz contends that the evidence is legally and factually

insufficient to sustain the jury’s verdict. We construe appellant’s first point of error

as a challenge to the legal sufficiency of the evidence. See Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) (there is no longer any meaningful

12
distinction between a legal and factual sufficiency standard when reviewing

sufficiency of evidence to sustain a criminal conviction).

We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under the single

sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Brooks, 323 S.W.3d at 912. Under that standard, we view all the evidence in the

light most favorable to the verdict and determine whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. “It is not necessary that the

evidence directly proves the defendant’s guilt; circumstantial evidence is as

probative as direct evidence in establishing the guilt of the actor, and

circumstantial evidence alone may be sufficient to establish guilt.” Carrizales v.

State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007)).

We must defer to the jury’s assessment of the credibility of the witnesses

and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. We also

allow for the jury to make “reasonable inferences” from the testimony or evidence.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also Tex.

Code Crim. Proc. Ann. art. 38.04 (West 1979). When the record supports

13
conflicting inferences, we presume that the jury “resolved the conflicts in favor of

the prosecution and therefore defer to that determination.” Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing to Jackson, 443 U.S. at 326).

Sufficiency of the evidence should be measured by the elements of the offense as

alleged in the indictment. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997).

On appeal, Diaz contends that the evidence is insufficient because it “did not

prove that [Diaz] acted knowingly, intentionally, and unlawfully in his detention of

James David McCormick.” Diaz argues that “a purely objective standard applies to

whether the officer had a valid reason for the stop [or] detention and not a

subjective standard” and Diaz “had reasonable suspicion to conduct and did

conduct a valid traffic stop and legally detained James David McCormick[.]”

Further, Diaz argues that if Diaz had “any legal reason to detain McCormick” then

Diaz “could not be guilty of official oppression in relation to detaining

McCormick[,] as a matter of law.”

To convict Diaz of official oppression as alleged in this case, the State had to

prove that Diaz, a game warden and public servant, while acting under color of his

office or employment, intentionally subjected McCormick to a “detention” that

14
Diaz knew was “unlawful.” See Tex. Penal Code Ann. § 39.03(a)(1); see also State

v. Edmond, 933 S.W.2d 120, 127 (Tex. Crim. App. 1996) (explaining that when

charged with official oppression by mistreatment, the defendant must have known

that the mistreatment alleged in the indictment was in fact unlawful in that it was

either criminal or tortious). The Penal Code defines “[u]nlawful” as “criminal or

tortious or both and includes what would be criminal or tortious but for a defense

not amounting to justification or privilege.” Tex. Penal Code Ann. § 1.07(a)(48)

(West Supp. 2014). Therefore, the State had to prove that Diaz, while acting under

color of his office, intentionally subjected McCormick to a detention he knew was

criminal, tortious, or both. See id., § 39.03(a)(1).

A temporary detention such as a traffic stop is generally justified when the

officer has reasonable suspicion to believe that an individual is violating the law.

See Terry v. Ohio, 392 U.S. 1, 29 (1968); Ford v. State, 158 S.W.3d 488, 492 (Tex.

Crim. App. 2005). “Reasonable suspicion” exists if the officer has specific

articulable facts that, when combined with rational inferences from those facts,

would lead him to reasonably suspect that a person has engaged, is engaging, or

soon will be engaging in criminal activity. Abney v. State, 394 S.W.3d 542, 548

(Tex. Crim. App. 2013). This objective standard disregards the officer’s subjective

intent and looks solely at whether an objective basis for the detention exists. Ford,

15
158 S.W.3d at 492. A reasonable-suspicion determination is made by considering

the totality of the circumstances at the time of the detention, considering common

sense judgments and inferences about human behavior. Illinois v. Wardlow, 528

U.S. 119, 125 (2000).

Based on the evidence in the record, the jury could reasonably have

determined that Diaz intentionally subjected McCormick to a detention he knew

was criminal, tortious, or both. In particular, evidence in the record indicates that

Diaz and McCormick had a “prior history” of confrontations, that McCormick was

being harassed by Diaz, that McCormick had made several calls to the Liberty

Police Department about Diaz following him, stopping him, and watching him

prior to this incident, that Diaz admitted to the Liberty Police officers who were

dispatched to the scene that Diaz had no “reason to give Mr. McCormick a

ticket[,]” that Diaz did not know the speed of McCormick’s vehicle, and that Diaz

was upset at McCormick for calling 911 and that he felt like McCormick “got out

of” the prior assault charges.

Even though Diaz and his expert witness testified that Diaz had reasonable

suspicion to stop McCormick for speeding or for not having his headlights on, or

even possibly failing to yield to an officer, the jury could have reasonably weighed

the credibility of the witnesses and the weight to be given to their testimony, and

16
made “reasonable inferences” from the testimony or evidence. Williams, 235

S.W.3d at 750; see also Tex. Code Crim. Proc. Ann. art. 38.04. We presume that

the jury resolved any conflicts in favor of the verdict and we therefore defer to that

determination. Clayton, 235 S.W.3d at 778. Reviewing the sufficiency of the

evidence submitted at trial in the light most favorable to the verdict, we conclude

that the evidence is legally sufficient to support the conviction for official

oppression as alleged in the indictment. We overrule the first issue.

Admission of Evidence

Next, Diaz argues that the trial court erred by admitting irrelevant and

prejudicial evidence from a series of alleged extraneous acts. Diaz contends

“[s]pecifically, the trial court erred in admitting the majority if not all of the

testimony of Daniel McCormick, Jimmy Belt, John Feist, Steve Holloway, Gary

Cain, Taylor Webb, Henry Dietz, Patsy Dubois, and Rod Ousley, especially

testimony involving alleged bad acts or opinion testimony with no basis and

relevance to the pending matter[,]” and he was further harmed when the State

referenced the “extraneous offenses” in its closing argument. Diaz provides us with

no citations to record evidence that would support his arguments as required by

Texas Rule of Appellate Procedure 38.1(i), and in our review of the record we

found no support for his arguments.

17
 Witnesses Belt, Feist, Holloway, Cain, Webb, Dietz, Dubois, and Ousley

testified during the punishment phase. Diaz made no objection to their testimony

during the punishment phase. He failed to preserve any error on this issue relating

to the admission of their testimony.

McCormick testified during the guilt/innocence phase of the trial. To

preserve error for appellate review, a party’s objection generally must be

sufficiently specific so as to “‘let the trial judge know what he wants, why he

thinks himself entitled to it, and do so clearly enough for the judge to understand

him at a time when the trial court is in a proper position to do something about it.’”

Malone v. State, 405 S.W.3d 917, 925 (Tex. App.—Beaumont 2013, pet. ref’d)

(quoting Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009)). In order

to raise a Rule 403 complaint, the objecting party must make a 403 objection

separate from a Rule 404(b) objection. See Montgomery v. State, 810 S.W.2d 372,

389 (Tex. Crim. App. 1991) (op. on reh’g). Diaz did not specifically make a Rule

403 objection separate from his 404(b) objection, and therefore, has not preserved

a Rule 403 complaint on appeal. See id.; see also Tex. R. App. P. 33.1(a).

Diaz filed a motion in limine to exclude any testimony by McCormick

regarding Diaz’s extraneous bad acts. The trial court granted the motion as to

testimony by any complainants (other than McCormick) during the guilt/innocence

18
phase of the trial, but denied the motion as to McCormick’s testimony during the

guilt phase regarding Diaz’s extraneous bad acts towards McCormick. Rule 404(b)

expressly provides that evidence of other crimes, wrongs, or acts is not admissible

to prove the character of the defendant in order to show he acted in conformity

therewith. Rule 404(b) codifies the common law principle that a defendant should

be tried only for the offense for which he is charged and not for being a criminal

generally. Rogers v. State, 853 S.W.2d 29, 32 n.3 (Tex. Crim. App. 1993); see also

Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (explaining that the

defendant is generally to be tried only for the offense charged, not for any other

crimes). Extraneous offense evidence, however, may be admissible for other

purposes such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). The

list of examples in Rule 404(b) is nonexhaustive. See Prible v. State, 175 S.W.3d

724, 731 (Tex. Crim. App. 2005). “Whether extraneous offense evidence has

relevance apart from character conformity, as required by Rule 404(b), is a

question for the trial court.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.

2003). The trial court’s Rule 404(b) ruling admitting evidence is generally within

the zone of reasonable disagreement “if there is evidence supporting that an

19
extraneous transaction is relevant to a material, non-propensity issue.” Devoe v.

State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

The testimony from McCormick about the prior history and confrontations

he had with Diaz was relevant to one or more material issues in the case.

McCormick as the complaining witness explained his history with Diaz, the assault

charge that was brought against him by Diaz, and the other instances of Diaz

harassing him before this incident. Such detail directly related to the intent and

motive of Diaz in detaining McCormick, further explained the conduct of the

parties on the date in question, established a pattern of conduct on the part of Diaz,

and demonstrated intentional and knowing conduct.

To the extent Diaz complains on appeal of the admission of certain

testimony during the punishment phase,3 Diaz did not preserve error because he

failed to make any objection. Even if Diaz had preserved error, evidence may be

offered during the punishment phase as to any matter the court deems relevant to

sentencing, including but not limited to the prior criminal record of the defendant,

3
Diaz complains that the trial court erroneously admitted the “prejudicial”
testimony of Diaz’s bad acts by “Daniel McCormick, Jimmy Belt, John Feist,
Steve Holloway, Gary Cain, Taylor Webb, Henry Dietz, Patsy Dubois, and Rod
Ousley[,]” but Diaz fails to give record references regarding the specific testimony
of which he complains. We note that, of these witnesses, Ousley testified during
both guilt and punishment phases, McCormick testified during the guilt phase only,
and the remainder testified only at punishment.
20
his general reputation, his character, the circumstances of the offense for which he

is being tried, and any other evidence of extraneous crime or bad act that is shown

beyond a reasonable doubt by evidence to have been committed by the defendant

for which he could be held criminally responsible. See Tex. Code Crim. Proc. Ann.

art. 37.07, § 3(a)(1) (West Supp. 2014). The testimony during the punishment

phase about which Diaz complains was relevant to sentencing because it was

character evidence. See id. Therefore, we overrule issue two.

Ineffective Assistance of Counsel

In his third issue Diaz contends that he was “denied his [c]onstitutionally

protected and guaranteed right to effective assistance of counsel.” To prevail on a

claim of ineffective assistance of counsel, an appellant must prove two elements by

a preponderance of the evidence: (1) trial counsel’s performance was deficient; and

(2) harm resulted from that deficiency sufficient to undermine confidence in the

outcome of the trial. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Ex

parte LaHood, 401 S.W.3d 45, 49-50 (Tex. Crim. App. 2013). An ineffective

assistance of counsel claim “must be ‘firmly founded in the record’ and ‘the record

must affirmatively demonstrate’ the meritorious nature of the claim.” Menefield v.

State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Thompson v. State, 9

S.W.3d 808, 813-14 (Tex. Crim. App. 1999)).

21
 In evaluating the effectiveness of counsel under the first prong of Strickland,

we look to the totality of the representation and the particular circumstances of the

case. Thompson, 9 S.W.3d at 813. Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct fell within a wide range of reasonable representation. Mallett v. State, 65

S.W.3d 59, 63 (Tex. Crim. App. 2011).

The Texas Court of Criminal Appeals has explained that “trial counsel

should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.

App. 2003) (citing Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)).

Direct appeal is usually inadequate to make an ineffectiveness claim because the

record is frequently undeveloped in this respect. Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005); see also Cox, 389 S.W.3d 817, 819 n.11 (Tex.

Crim. App. 2012) (observing that “[a] reviewing court will rarely be in a position

on direct appeal to fairly evaluate the merits of an ineffective-assistance claim”).

Without evidence of trial counsel’s strategy, “an appellate court will assume a

strategic motivation and will not conclude that the challenged conduct was

deficient unless it was so outrageous no competent attorney would have engaged in

it.” Ozuna v. State, 199 S.W.3d 601, 612 (Tex. App.—Corpus Christi 2006, no

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pet.) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). It is not

appropriate for an appellate court to simply infer ineffective assistance of counsel.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

Diaz contends that his trial attorney rendered ineffective assistance in both

phases of his trial, and that the failure of his attorney to “make a single objection

during the punishment phase of the trial and during the guilt/innocence phase of

trial, other than the alleged running objections made outside the presence of the

jury and which arguably did not preserve error in any form, can in no way be

classified as ‘trial strategy’.” Diaz argues “countless objections” could have been

raised during the trial and were not, that Diaz’s counsel failed to object to leading

questions, inflammatory statements, unfounded evidence and conclusions, and

failed to familiarize himself with the proper legal standards. Diaz points to no

specific record references, but he argues that the extraneous evidence of prior bad

acts as contained in his earlier issue would be a specific example.

Regarding the alleged omissions of his attorney to object to questions or

testimony, Diaz has not established the trial court judge would have committed

error in overruling the objections if they had been made. Vaughn v. State, 931

S.W.2d 564, 566 (Tex. Crim. App. 1996) (holding that “in order to argue

successfully that her trial counsel’s failure to object” amounted to ineffective

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assistance, appellant “must show that the trial judge would have committed error in

overruling such an objection”). To the extent Diaz implies that his trial counsel

should have called more witnesses in his favor, he has not established that he

would have benefited from the testimony of any other unspecified witnesses he

argues his counsel should have called to testify. “‘[F]ailure to call witnesses at the

guilt-innocence and punishment stages is irrelevant absent a showing that such

witnesses were available and appellant would benefit from their testimony.’” Perez

v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting King v. State, 649

S.W.2d 42, 44 (Tex. Crim. App. 1983)). Additionally, he must demonstrate that

there is a reasonable probability that the witnesses’ testimony would have affected

the result of the trial. Id. We conclude that the record in this case does not

affirmatively demonstrate ineffective assistance of counsel. The record is

undeveloped and does not adequately reflect the motives behind trial counsel’s

actions. We cannot simply infer that trial counsel lacked a trial strategy in failing to

lodge objections. We therefore overrule this issue.

Chilling Effect

In his fourth and final issue, Diaz argues that if the decision of the trial court

is upheld by this Court, “it will create a level of uncertainty that will have a

chilling effect on every traffic stop conducted by law enforcement officers within

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the State of Texas.” Diaz cites no legal authority for his argument. The State

argues that the official oppression statute as drafted by the Legislature avoids any

“‘chilling effect’ on Law Enforcement” personnel because it tells officers what

they should not do.

As already stated, a temporary detention such as a traffic stop is generally

justified when the officer has “reasonable suspicion” to believe that an individual

is violating the law. See Ford, 158 S.W.3d at 492. “Reasonable suspicion” exists if

the officer has specific articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably suspect that a person has

engaged, is engaging, or soon will be engaging in criminal activity. Abney, 394

S.W.3d at 548. Our ruling today does not in any way restrict, alter, or amend the

“reasonable suspicion” standard as applied by law enforcement personnel in the

exercise of a lawful discharge of their duties. This case does not involve a “lawful

discharge” of official duties by an officer or public servant in making a traffic stop

based upon “reasonable suspicion.” Rather, the jury found Diaz guilty of official

oppression. Diaz is not charged with the “lawful discharge” of his official duties in

conducting a traffic stop, but rather with the “unlawful discharge” of his duties.

The jury determined that Diaz engaged in a detention of another person which

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violated the law and constituted “official oppression.” Accordingly, we overrule

his issue.

Having overruled all of Diaz’s issues, we affirm the judgment.

AFFIRMED.

______________________________
LEANNE JOHNSON
Justice

Submitted on August 11, 2014
Opinion Delivered December 10, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.

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