Affirmed and Memorandum Opinion filed April 9, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-07-00802-CR
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ALEJANDRO VASQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1072931
M E M O R A N D U M O P I N I O N
Alejandro Vasquez was convicted of murder and sentenced to confinement for seventy-five years in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $10,000 fine. Vasquez challenges his conviction and sentence, contending that (1) the evidence was factually insufficient to support the verdict; (2) the trial court failed to properly charge the jury on the burden of proof associated with extraneous offenses and bad acts offered during the punishment phase of the trial; (3) the trial court improperly admitted evidence of extraneous offenses and bad acts during the punishment phase of the trial; and (4) he was denied the effective assistance of counsel during both the guilt and punishment phases of his trial. We affirm.
Facts
At about 2:10 a.m. on June 13, 2006, Harris County Deputy Sheriff J. Burton received a dispatch about a weapons disturbance in the 5300 block of Dunnethead in western Harris County. Upon arriving at the scene, Deputy Burton met with the homeowner who had placed the call, and then proceeded with his partner, Deputy Rusche, to the backyard of the home. Walking through the backyard, Deputy Burton discovered the complainant, Christian Ventura Ferman, lying face down in the grass. Upon closer inspection, Deputy Burton observed blood on Ferman=s shirt, and what appeared to be a bullet hole in his back. Ferman was alive, but having difficulty breathing. Deputy Burton called for emergency medical services. An ambulance arrived and took Ferman to a hospital where he later died.
As other arriving deputies began to secure and document the crime scene, they discovered bullet holes in the fence of the homeCone between the street and the backyard, and another at the rear of the yard. Deputy James Welsh was assisting Deputy Burton when he observed a passing car with several young men inside. When questioned, the young men stated that they had been a block away on Cairnleigh Drive, the street behind the house where the shooting occurred, when they heard several gunshots. Not long after that, they saw a silver Ford Expedition with its headlights off turn onto their street, and park in a driveway. One of the men recognized the Expedition as belonging to a resident of the house where it was parked. Detective Eric Clegg of the Harris County Sheriff=s Office also interviewed the individuals in the car. After hearing their descriptions, Detective Clegg and Deputy Welsh went to the house on Cairnleigh to investigate. Other Harris County deputies were already at the residence. Coincidentally, the residents of the home, located almost directly behind the Dunnethead residence where Ferman had been shot, had also called 9-1-1 when the shooting occurred. A bullet had come through a window at the rear of the Cairnliegh house, striking a wall. Upon arriving at the house, and seeing the silver Expedition parked out front, Deputy Welsh touched the hood of the vehicle and noticed that it was still warm, indicating that the vehicle had been driven recently.
The occupants of the Cairnleigh house gave consent for the deputies to search the house in conjunction with their examination of the bullet hole. Deputies were unable to find the actual bullet that had broken the window and struck the wall. Detective Clegg and Deputy Welsh took turns questioning the occupants= son, Enrique Ramirez. Ramirez denied any knowledge about the shooting, as well as having driven the Expedition that night, although keys to the vehicle were later found in his possession. With the consent of Ramirez=s parents, the deputies searched the Expedition and recovered two empty .45-caliber shell casings.
Ramirez told the deputies that, earlier that night, he had been down the street at his girlfriend=s house. Ultimately, Ramirez admitted to having removed the missing bullet from the wall and hiding it in his room. Ramirez told the deputies where he had hidden the bullet, but denied firing a gun or being around a gun that night. At this point, Detective Clegg obtained Ramirez=s consent to have his hands placed in plastic bags in order to preserve them for firearms-residue analysis. Detective Clegg also arranged for a deputy to take Ramirez to the Sheriff=s Department offices for further questioning.
After spending several hours working at both houses involved in the shooting, Detective Clegg and Deputy Henry Palacios began working their way down Cairnleigh Drive, looking for more clues, and asking neighbors for information, until they reached the residence that Ramirez had indicated was his girlfriend=s house. After knocking at the door, they were invited in by an older Hispanic female. As they stood in the doorway, Detective Clegg received a phone call from Sergeant James Parker of his department=s homicide division. Sergeant Parker relayed that, while being questioned about the incident, Ramirez had named another individual, the appellant, as the shooter. Detective Clegg quickly conveyed this information to Deputy Palacios, who then determined that the home they had entered belonged not to Ramirez=s girlfriend, but to the alleged gunman, the appellant. The Hispanic female who had answered the door brought Detective Clegg and Deputy Palacios to the appellant, who immediately surrendered. The appellant acknowledged that he knew why the deputies were there. They then handcuffed him and led him outside where they sat him down on the lawn.
Deputy Palacios obtained consent from the appellant=s brother, the owner of the residence, to conduct a search. Upon searching the appellant=s bedroom, Deputy Palacios discovered a loaded Kimber .45-caliber handgun in a backpack. The appellant=s hands were then preserved for residue analysis. Later, deputies discovered a .22-caliber handgun, a shotgun, and over 200 rounds of ammunition for the various weapons. Deputies also recovered several .45-caliber shell casings from the street in front of the appellant=s house. Crime-scene investigators recovered these items, and photographed the appellant=s bedroom. The appellant was then taken to the Harris County Sheriff=s Office where he made a custodial statement that was video-recorded.
Detective Clegg later learned that a third individual, Oscar Chavarria, was also involved in the shooting. After Chavarria was located, he agreed to be interviewed by investigators at the sheriff=s office. Chavarria told investigators that, although he worked with Ramirez and the appellant, he did not know them well. He told the investigators that he had gone to the appellant=s home after work that night to smoke marijuana with the appellant and Ramirez. He also admitted to being present in the Expedition when the shooting occurred.
Ultimately all three individuals were charged with the murder of Ferman. The appellant was tried by a jury, convicted, and sentenced to seventy-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $10,000 fine. This timely appeal followed.
Analysis
In four issues on appeal, Vasquez challenges his conviction and sentence contending that (1) the evidence presented during the guilt phase was factually insufficient to support the verdict; (2) the trial court failed to properly charge the jury on the State=s burden of proof related to evidence of extraneous offenses and bad acts offered during the punishment phase of the trial; (3) the trial court improperly admitted evidence of extraneous offenses and bad acts during the punishment phase; and (4) he was denied the effective assistance of counsel during both the guilt and punishment phases of his trial.
A. Factual Sufficiency
In his first issue on appeal, the appellant argues that the evidence presented at trial was factually insufficient to support his conviction. Specifically, he contends that the prosecutor failed to prove the required element of intent, either to kill or cause serious bodily injury, beyond a reasonable doubt. Further, he contends that the trial evidence demonstrated that he merely intended to scare Ferman and his friends, thereby undermining the jury=s verdict.
When reviewing a factual‑sufficiency challenge, we view all the evidence neutrally. Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005); Newby v. State, 252 S.W.3d 431, 435 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d). We especially discuss and examine the specific evidence that the appellant contends undermines the jury=s verdict. Newby, 252 S.W.3d at 435; see also Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or if the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006); see also Newby, 252 S.W.3d at 435. We may disagree with the jury=s conclusions; however, we must avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Newby, 252 S.W.3d at 435.
A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. ' 19.02(b)(1) (Vernon 2003). A person may also commit murder by intending to cause serious bodily injury and committing an act clearly dangerous to human life that causes the death of an individual. Id. ' 19.02(b)(2) (Vernon 2003).
In the present case, the appellant argues that there was no direct evidence of his intent to either kill or cause serious harm to Ferman. The appellant contends that the only direct evidence on this point was his custodial statement and the testimony of Chavarria. In his recorded statement, the appellant said that on the night of the shooting he had seen some unknown males walking around his neighborhood in dark clothing. Because he suspected that these men had burglarized his brother=s car sometime before, he enlisted Ramirez and Chavarria to go look for them. In his recorded custodial statement, the appellant claimed that when he and Ramirez discovered the unknown menCa group which included FermanCthe appellant fired his gun up in the air in an attempt to scare them. The appellant stated that he did not intend to shoot any of them, and was unaware that any of them had been shot.
A firearm, such as the handgun used in this shooting, is a deadly weapon. Id. ' 1.07(a)(17)(A) (Vernon 2003 & Supp. 2008). When Aa deadly weapon is used in a deadly manner, the inference is almost conclusive that [the appellant] intended to kill. . . .@ Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) (quoting Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986)); Arnold v. State, 234 S.W.3d 664, 672 (Tex. App.CHouston [14th Dist.] 2007, no pet.). In the absence of other evidence, the jury may presume the intent to kill from the use of a deadly weapon. Arnold, 234 S.W.3d at 672. The accused may rebut this presumption with other evidence. Thompson v. State, 521 S.W.2d 621, 622 (Tex. Crim. App. 1974); Munoz v. State, 932 S.W.2d 242, 245 (Tex. App.CTexarkana 1996, no pet.).
At trial, Chavarria testified that he had seen the group of unknown men walking in the neighborhood while he was waiting to meet the appellant and Ramirez after work. Later, while they were standing outside the appellant=s house, Chavarria told the appellant about seeing the group of young men walking around the neighborhood. According to Chavarria=s testimony, the appellant then walked into this house and returned a few minutes later. About that time Ramirez pulled into the appellant=s driveway driving the Expedition. As he climbed into the vehicle next to Ramirez, the appellant told Chavarria, AGet in.@ Chavarria testified that the three of them drove around the neighborhood while Ramirez pointed a large flashlight out the window, looking for the group of men. At some point, according to Chavarria, Ramirez stopped the vehicle and said, AThere they go. There they go.@ The appellant then pulled out a pistol and handed it to Chavarria, and then showed him how to pull the hammer back. Chavarria testified that he handed the pistol back to the appellant. According to Chavarria, as Ramirez pointed the flashlight out the window, the appellant drew another pistol, reached across Ramirez, pointed the pistol out the window and fired three or four shots. Someone, Chavarria wasn=t clear who, then said, AGo, go,@ and Ramirez quickly drove away, heading to the appellant=s house. Upon arriving at the appellant=s house, Chavarria climbed out of the Expedition while Ramirez and the appellant remained inside. Chavarria testified that, several minutes later, the appellant handed to him the handgun that he had used in the shooting. The appellant then asked him to take it into the house and hide it in his bedroom. Chavarria testified that he took the gun into the house and put it inside a backpack in the appellant=s bedroom.
The appellant argues that Chavarria=s testimony does not prove that the appellant intended to kill or cause injury because Chavarria could not have clearly seen where the appellant aimed the gun when firing it. The appellant points to Chavarria=s testimony that he was sitting in the backseat of the Expedition, and that he ducked down with his head between his knees when the appellant started shooting. But Chavarria stated that he did not duck down until after the first shot was fired. Before he ducked, Chavarria witnessed the appellant fire at least one shot out the window. Chavarria testified that the appellant did not shoot up in the air, or down at the ground, but directly at the men outside the vehicle. Firing a gun in the direction of an individual is an act clearly dangerous to human life. Forest v. State, 989 S.W.2d 365, 368 (Tex. Crim. App. 1999).
Next, the appellant argues that there was conflicting evidence related to firearm residue. At trial, William Davis of the Harris County Medical Examiner=s Office testified that while Ramirez tested positive for firearm residue on his hands, no residue was detected on the appellant=s hands. But Mr. Davis also testified that a negative residue test result would not be unusual if the subject was tested more than six hours after allegedly firing a weapon, as the residue will wear off over time. In this case, the appellant was not tested until more than six hours after the shooting. Any remaining doubt concerning who fired the weapon was resolved by the appellant himself. In his recorded custodial statement played for the jury, the appellant repeatedly admitted to firing the gun. Further, the appellant stated that he was the only person to fire a gun that night. As the trier of fact, the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999); Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.CHouston [14th Dist.] May 13, 2008, no pet.). The jury was free to weigh the credibility of the appellant=s and Chavarria=s testimony, as well as the testimony regarding the physical evidence.
Even considering the evidence that appellant contends is contradictory to the State=s case, we cannot say that the jury=s verdict in this case was against the great weight and preponderance of the evidence. Nor can it be said that, in light of this evidence, the jury=s verdict was manifestly unfair or unjust. Consequently, the evidence was factually sufficient to justify the jury=s verdict. See Watson, 204 S.W.3d at 414B15; Newby, 252 S.W.3d at 435. We overrule the appellant=s first issue.
B. Charge Error in Punishment Phase
In his second issue, the appellant contends that the trial court erred by omitting a reasonable-doubt instruction for extraneous offenses during the punishment phase. As a consequence, the appellant argues, it was possible for the jury to base its assessed punishment on allegations of extraneous offenses that were not proven beyond a reasonable doubt.
The State may offer punishment-phase evidence as to any matter the court deems relevant to sentencing, including evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant. Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a) (Vernon 2006 & Supp. 2008). When evidence of extraneous offenses or bad acts is admitted during the punishment phase, the trial court is required to instruct the jury sua sponte on the reasonable-doubt standard of proof. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000).
The review of alleged charge error is a two‑step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); Green v. State, 233 S.W.3d 72, 78 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d). First, we examine the jury charge to see if the trial court erred. Abdnor, 871 S.W.2d at 731B32; Green, 233 S.W.3d at 78. Second, if we find that the trial court erred, we must determine if the harm is sufficient to warrant reversal. Abdnor, 871 S.W.2d at 731B32; Green, 233 S.W.3d at 78. The degree of harm necessary for reversal depends on whether the error was preserved. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Green, 233 S.W.3d at 78.
The appellant contends and the record confirms that, during the punishment phase of the trial, the State introduced evidence alleging that the appellant was involved in gang activity, and that he possessed both illegal drugs and drug paraphernalia. However, the trial court failed to instruct the jury on the State=s burden of proof under article 37.07. Accordingly, the trial court erred by failing to give the required instruction. See Huizar, 12 S.W.3d at 484.
But the appellant did not request the instruction, nor did he object to the trial court=s omission. In the absence of a request or objection, jury charge error does not require reversal unless it causes Aegregious harm.@ Id. at 484B85; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). Egregious harm is a difficult standard and must be proven on a case‑by‑case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). The actual degree of harm must be determined in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. Egregious harm is present whenever a reviewing court finds that the error made the case for punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). Errors resulting in egregious harm are those which affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Almanza, 686 S.W.2d at 172; Green, 233 S.W.3d at 78.
At trial, the State showed evidence suggesting that the appellant participated in gang activity or, at a minimum, glorified such activity. Specifically, the State showed photographs taken in the appellant=s bedroom, which was decorated with posters from the films Good Fellas and Scarface, as well as framed photos of famous gangsters such as Al Capone. Further, there were several framed photos of the appellant posing with friends, some of whom it was said were showing gang signs. The state also showed a bandana found in the appellant=s bedroom. This bandana featured writing which Deputy Jesse Ortiz testified was related to a recognized local gang. But there was no evidence presented to establish that the shooting in question was in any way gang-related.
The State also presented evidence of possible drug use. Specifically, the State presented a plastic bag with a green, leafy substance described as smelling like marijuana, as well as another plastic bag containing a white powdery substance. Further, the State presented scales and empty plastic bags discovered in the bedroom. On cross-examination, Deputy Ortiz admitted that the substances in the bags were never chemically analyzed, so it was impossible for him to conclusively state what they were. Further, there was no evidence presented that the shooting in question was in any way related to illegal drugs.
After reviewing this evidence and the record as a whole, we conclude that the appellant did not suffer egregious harm by the trial court=s failure to supply a reasonable-doubt instruction during the punishment phase. As the error in this case affects neither the basis of the case nor a defense theory, and does not deprive the appellant of a valuable right, egregious harm can be found to exist only if the presentation of this evidence in the absence of the required charge makes the case for punishment clearly and significantly more persuasive. See Saunders, 817 S.W.2d at 692; Matthews v. State, 999 S.W.2d 563, 565 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). Our analysis of this question is guided by the fact that the appellant=s trial counsel effectively challenged the probative weight of this extraneous-offense and bad-act evidence. Further, the State did not refer to it in its closing argument. When discussing the range of punishment, the State did not mention the alleged extraneous offenses at all; instead the State focused on the danger that the appellant posed to the community as represented by the offense which had already been proven beyond a reasonable doubtCmurder. Finally, there is nothing in the record to demonstrate that the jury was in any way influenced by the evidence of extraneous offenses and bad acts.
Moreover, the range of punishment for murder was confinement from five to ninety-nine years, and a fine of up to $10,000. See Tex. Penal Code Ann. ' 12.32(a), (b) (Vernon 2003). The jury=s punishment assessment, seventy-five years and a $10,000 fine, fell well below the maximum punishment. Given the totality of the evidence and the record as a whole, we find the case for the punishment assessed was not made clearly and significantly more persuasive by the error. See Walton v. State, No. 14-06-00227-CR, 2007 WL 706582, at *3 (Tex. App.CHouston [14th Dist.] Mar. 8, 2007, pet. ref=d) (mem. op., not designated for publication), cert. denied, 128 S.Ct. 1710 (2008); Burrow v. State, No. 14‑04‑00425‑CR, 14‑04‑00426‑CR, 2005 WL 3116296, at *2B3 (Tex. App.CHouston [14th Dist.] Nov. 23, 2005, pet. ref=d) (mem. op., not designated for publication). We overrule the appellant=s second issue.
C. Admission of Evidence in Punishment Phase
The appellant=s third issue is that the trial court erred in admitting certain evidence during the punishment phase of the trial. Specifically, the appellant contends that the trial court should not have admitted several photographs taken of his bedroom, including posters of criminal characters such as Scarface, Al Capone, Pablo Escobar, and Bonnie and Clyde. The appellant argues that these photographs were irrelevant to the punishment proceedings as there was no credible evidence to support the associated inference that he was part of a gang, or engaged in gang-related activity.
Generally, we review a trial court=s admission of evidence under an abuse-of-discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). A trial court does not abuse its discretion if its evidentiary ruling was within the Azone of reasonable disagreement,@ and was correct under any legal theory applicable to the case. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007); Bargas v. State, 252 S.W.3d 876, 889 (Tex. App.CHouston [14th Dist.] 2008, no pet.). Thus, because the trial court is usually in the best position to decide whether evidence should be admitted or excluded, we must uphold its ruling unless its determination was so clearly wrong as to lie outside the zone within which reasonable persons might disagree. See Winegarner, 235 S.W.3d at 790; Hartis v. State, 183 S.W.3d 793, 801B02 (Tex. App.CHouston [14th Dist.] 2005, no pet.).
After a defendant has been found guilty, the State may present evidence during the punishment phase of the trial demonstrating the defendant=s general reputation and character. See Tex. Code Crim. Proc. Ann. art. 37.07 _ 3(a)(1). A trial court may admit evidence regarding a defendant=s alleged gang membership as a basis for assisting the jury to assess a proper punishment. See Beasley v. State, 902 S.W.2d 452, 456B57 (Tex. Crim. App. 1995); Aguilar v. State, 29 S.W.3d 268, 270 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (gang membership is admissible at punishment phase of trial as character evidence). The relevance of gang membership depends upon whether the jury receives enough information to make evidence about such membership useful to its determination. To prove relevance of a defendant=s membership in a gang, the State must offer proof of (1) the gang=s violent and illegal activities; and (2) the defendant=s membership in the gang. Barracks v. State, No. 14-07-00625-CR, 2008 WL 2838099, at *4 (Tex. App.CHouston [14th Dist.] July 22, 2008, pet. ref=d) (mem. op., not designated for publication); Reyes v. State, No. 14‑03‑00414‑CR, 2004 WL 1171766, at *5 (Tex. App.CHouston [14th Dist.] May 27, 2004, no pet.) (mem. op., not designated for publication); see also Mason v. State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995).
The appellant objected to the relevance of the photos at trial, and now contends that the photos were not probative of his character because they failed to demonstrate his actual membership in any gang, or his participation in any particular gang=s activities, so as to assist the jury in tailoring an appropriate sentence. See Beasley, 902 S.W.2d at 457. The appellant correctly points out that there was inadequate proof to establish his actual membership in a gang. Nor was there any evidence to attribute specific violent or illegal activities to any specific gang. We agree that the trial court erred in admitting the gang‑related evidence.
But having determined that the trial court erred in admitting the photos, we must also conduct a harm analysis to determine if such error was reversible. The appellant stipulates in his brief that this issue involves nonconstitutional error. We must disregard nonconstitutional errors that do not affect the substantial rights of the defendant. Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the entire record, is assured the error did not influence the jury=s decision or only influenced it slightly. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). If there is no influence or only a slight effect on the finder of fact, reversal is not required. See Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). AIn assessing the likelihood that the jury=s decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury=s consideration, the nature of the evidence supporting the verdict, the character of the error, and how it might be considered in connection with other evidence in the case.@ Motilla, 78 S.W.3d at 355; see also Reyes, 2004 WL 1171766, at *7 (AIn considering whether inadmissible evidence prejudiced appellant during the punishment phase, we also look to the other evidence presented, such as prior convictions, bad acts, and the nature of the crime committed.@).
As discussed in association with the appellant=s second issue, the appellant=s assessed punishment was well within the allowable range. In assessing punishment, the jury could have properly considered that he had been convicted of murder by use of a firearm, that he possessed three firearms and a substantial collection of ammunition at the time of the shooting. Moreover, the prosecutor=s central argument during the punishment phase concerned the danger that the appellant posed to society. Finally, the appellant=s trial counsel effectively demonstrated on cross-examination that there was no direct proof of the appellant=s inferred gang membership. In consideration of these facts, we are not convinced that the trial court=s erroneous admission of the these photographs influenced the jury=s assessment of the appellant=s punishment at all. Consequently, we hold that the trial court=s error in this case was harmless, and therefore not reversible. See Johnson, 43 S.W.3d at 4. We overrule the appellant=s third issue. D. Ineffective Assistance of Counsel
The appellant=s fourth issue is that he was denied his right to the effectiveness of counsel guaranteed by the Sixth Amendment. He contends that his trial counsel performed deficiently by (1) failing to object to the testimony of two undesignated expert witnesses, and (2) failing to request a jury instruction on the State=s burden of proof as to extraneous offenses and bad acts during the punishment phase of the trial.
In reviewing claims of ineffective assistance of counsel, we apply a two‑prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, the appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Id.
When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When determining the validity of an ineffective‑assistance claim, any judicial review must be highly deferential to trial counsel and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (citing Strickland, 466 U.S. at 689). There is a strong presumption that counsel=s conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740 (citing Mallet v. State, 65 S.W.3d at 59, 63 (Tex. Crim. App. 2001)). To overcome the presumption of reasonable professional assistance, A[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson, 9 S.W.3d at 814.
1. Nondisclosed Expert Witnesses
The appellant=s first asserted instance of ineffective assistance relates to the admission of testimony from two of the State=s witnesses at trial. The appellant claims that his trial counsel failed to object to testimony from Deputy Bradley Burns and Deputy Jesse Ortiz, despite the State=s failure to disclose their status as potential expert witnesses.
The State is required to disclose anticipated expert witnesses upon the filing of a motion to compel disclosure by the defendant. Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989), disapproved on other grounds, Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998). The record indicates that the appellant=s trial counsel filed such a motion. In response, the State filed two lists of expert witnesses. Deputy Ortiz=s name appeared on the first list, with crime-scene investigation as his area of expertise. Deputy Burns was not named on either list. During the guilt phase of the trial, Deputy Burns gave expert testimony related to the mechanics of firearms, general forensic ballistics testing, and specific ballistics tests performed on the firearms seized in this case. During the punishment phase of the trial, Deputy Ortiz gave expert testimony related to gang culture and the identity of certain gangs. Counsel failed to object to such testimony by either witness.
The appellant does not argue that his trial counsel should have objected to either Deputy Burns=s or Deputy Ortiz=s qualifications as experts in their respective fields, or to any specific portion of their testimony. Consequently, our review relates only to the procedural notice given regarding this testimony.
When the trial court allows a witness to testify who was not on the list furnished to the defendant, the standard of review is abuse of discretion. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993); Doherty v. State, 892 S.W.2d 13, 18 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). In determining abuse of discretion, this court must look for bad faith in the prosecutor=s failure to disclose the witness at an earlier time and whether the defendant could reasonably anticipate that the witness would testify, even though that witness=s name was left off the list. Nobles v. State, 843 S.W.2d 503, 514B15 (Tex. Crim. App. 1992); Doherty, 892 S.W.2d at 18.
In determining whether the State acted in bad faith, reviewing courts have examined at least two areas of inquiry: (1) whether the defense shows that the State intended to deceive; see Nobles, 843 S.W.2d at 515; and (2) whether the State=s notice left the defense adequate time to prepare. Id.
Similarly, in determining whether the defense could have anticipated the State=s witness, reviewing courts have examined three areas of inquiry: (1) the degree of surprise to the defendant; see Nobles, 843 S.W.2d at 515; (2) the degree of disadvantage inherent in that surprise (e.g., the defendant was aware of what the witness would say, or the witness testified about cumulative or uncontested issues); see Hernandez v. State, 819 S.W.2d 806, 816 (Tex. Crim. App. 1991); and (3) the degree to which the trial court was able to remedy that surprise (e.g., by granting the defense a recess, postponement, or continuance, or by ordering the State to provide the witness=s criminal history). See Hernandez, 819 S.W.2d at 816; Stoker, 788 S.W.2d at 15; Richardson, 744 S.W.2d at 77.
The record indicates that Deputy Ortiz was named as a potential expert witness in the State=s notice to the court dated August 8, 2007. The appellant contends that this notice was insufficient as Deputy Ortiz was not designated as an expert on gangs. But neither the court=s order nor any other authority required the State to identify the scope of the designated witnesses= testimony. See Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon 2005 & Supp. 2008). The State met the requirements of both the court=s order and the relevant statute by providing Deputy Ortiz=s name as well as his address by reference. There was no error in admitting Deputy Ortiz=s testimony.
Deputy Burns, by contrast, was not named in either of the State=s witness-disclosure lists. In these two lists, the State disclosed twenty named expert witnesses, and one unnamed potential AFingerprint Expert.@ Among the twenty-one witnesses, eight were designated as AHomicide Detectives,@ five as ACrime Scene Investigators,@ three as AForensic Chemists,@ and two as AGang Unit and Disruptive Group@ experts. There is nothing in the record to show that the appellant=s trial counsel learned of the State=s intention to call Deputy Burns, or any expert on firearms and ballistics, until Deputy Burns took the witness stand. While this fact, in and of itself, is not definitive evidence of bad faith by the State in this case, there is also nothing in the record to demonstrate that the appellant=s counsel could have anticipated such testimony. Consequently, we hold that it would have been an abuse of discretion for the trial court to admit the expert testimony of Deputy Burns had the appellant=s attorney objected to the State=s failure to disclose the witness. For the purposes of this issue, we will presume that defense counsel=s failure to object satisfies the first prong of the Strickland test.
If a criminal defendant can prove that trial counsel=s performance was deficient, he must still affirmatively prove he was prejudiced by counsel=s actions. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). This requires the defendant to demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally. Strickland, 466 U.S. at 693; Bone, 77 S.W.3d at 833; Wade v. State, 164 S.W.3d 788, 795 (Tex. App.CHouston [14th Dist.] 2005, no pet.). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 693; Bone, 77 S.W.3d at 833.
Reviewing the evidence presented by the State, absent the expert testimony of Deputy Burns, we are not convinced that the outcome would have been different. Assistant Medical Examiner Sara Doyle testified that the complainant died as a result of a gunshot wound. In his recorded custodial statement, the appellant admitted to firing a handgun out the window of Ramirez=s Expedition in the direction of the deceased complainant and other young men with him. Chavarria testified that he observed the appellant fire the first shot, and that the appellant was pointing the gun at the group of young men. Chavarria testified that heard the appellant fire three to four shots. Chavarria also testified that, upon returning to the appellant=s home, the appellant told him to take his gunCthe same gun that Chavarria had seen the appellant fire out the window of the ExpeditionCand hide it in the appellant=s bedroom. Deputy Palacios testified that he discovered the same handgun in the appellant=s room. Based on this evidence alone, the jury could have convicted the appellant of murder. Consequently, the deficient conduct of the appellant=s trial counsel did not prejudice him. Strickland, 466 U.S. at 693; Bone, 77 S.W.3d at 833.
2. Burden of Proof for Extraneous Offenses and Bad Acts
In the second part of his ineffective-assistance issue, the appellant contends that his trial counsel performed deficiently by failing to request a jury instruction on the State=s burden of proof related to evidence of extraneous offenses and bad acts introduced during the punishment phase of the trial. As we have already discussed above, the trial court erred in failing to provide an instruction on the burden of proof in this instance. Huizar, 12 S.W.3d 484. In this case, however, the trial court=s error was harmless. We must now review whether the conduct of the appellant=s trial counsel in this matter qualifies as deficient and prejudicial.
This court has previously held that while the jury may not consider extraneous-offense evidence unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense, the failure to request such an instruction is not ineffective assistance of counsel. Duong v. State, No. 14-97-00387-CR, 14‑97‑00390‑CR, 14‑97‑00392‑CR, 1999 WL 587760, at *4 (Tex. App.CHouston [14th Dist.] Aug. 5, 1999, pet. ref=d) (not designated for publication) (citing Huizar v. State, 966 S.W.2d 702, 706 (Tex. App.CSan Antonio 1998), rev=d on other grounds, 12 S.W.3d 479 (Tex. Crim. App. 2000); Yates v. State, 917 S.W.2d 915, 924 (Tex. App.CCorpus Christi 1996, pet. ref=d); Poole v. State, 974 S.W.2d 892, 903 (Tex. App.CAustin 1998, no pet.). Having reviewed the record of the appellant=s trial as a whole, we cannot conclude that he was denied a fair and impartial trial. The appellant=s trial counsel vigorously cross-examined many of the State=s witnesses, and challenged the admission of several pieces of evidence. In every other respect, the appellant=s trial counsel afforded reasonably effective assistance of counsel. Consequently, we hold that the appellant=s trial counsel=s failure to request a jury instruction on the State=s burden of proof during the punishment phase of the trial does not overcome the strong presumption of reasonable professional assistance. See Burrow v. State, No. 14‑04‑00425‑CR, 14‑04‑00426‑CR, 2005 WL 3116296, at *4 (Tex. App.CHouston [14th Dist.] Nov. 23, 2005, pet. ref=d) (mem. op., not designated for publication).
Even if we did hold that the appellant=s counsel had acted deficiently, there is still no Areasonable probability@ that the outcome would have been different had counsel performed differently. Strickland, 466 U.S. at 693; Bone, 77 S.W.3d at 833. The appellant had already been convicted of murderCin this case, the violent shooting of an unknown person in the back. Evidence of the appellant=s personal arsenal of weapons and ammunition had already been presented during the guilt phase of the trial. The punishment evidence to which the appellant objectsCphotos of gangsters and possible gang affiliationsCwas never mentioned by the State in its jury argument. Although the jury=s sentence was at the upper end of the punishment range, it was still well below the maximum allowed. Based on the trial record and the sentence assessed by the jury, we cannot say that, but for trial counsel=s actions, the outcome would have been different. See Strickland, 466 U.S. at 693; Bone v. State, 77 S.W.3d at 833; see also Arriaga v. State, No. 03-05-00104-CR, 2008 WL 2065973, at *6 (Tex. App.CAustin May 14, 2008, no pet.) (mem. op., not designated for publication) (not reasonably probable that jury=s punishment would have been different had appellant=s counsel succeeded in having missing instruction added to punishment charge); Hudson v. State, No. 03-04-00733-CR, 2006 WL 2380403, at *12 (Tex. App.CAustin Aug. 18, 2006, no pet.) (mem. op., not designated for publication); Batiste v. State, 73 S.W.3d 402, 409 (Tex. App.CDallas, 2002, no pet.); Canchola v. State, No. 05-00-01783-CR, 05-00-01784-CR, 2001 WL 1464494, at *4 (Tex. App.CDallas Nov. 19, 2001, no pet.) (not designated for publication). We overrule the appellant=s fourth issue.
Conclusion
Having overruled the appellant=s four issues, we affirm the trial court=s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Chief Justice Hedges and Justices Guzman and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).