Opinion issued November 20, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00234-CR
———————————
TERRENCE BRENT MCNEIL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1362563
OPINION
A jury convicted appellant Terrence McNeil of felony murder for causing
the death of a child in the course of committing the offense of injury to a child and
assessed his punishment as life in prison. On direct appeal, appellant argues that
he received ineffective assistance from his trial counsel. We affirm.
TRIAL TESTIMONY
Anita Washington’s 19-month old daughter Alycia was small for her age
because she suffered from a congenital heart-defect condition. When she was
about a year old, Alycia underwent two successful open-heart surgeries to correct
the defects in her heart. Despite her health issues, Alycia recovered from her
surgeries and functioned as a normal and otherwise healthy toddler, but with some
developmental delays.
Beginning in July 2010, when Alycia was about 17-months old, Anita hired
Ruby Cantu to take care of Alycia at Cantu’s home while Anita was at work. By
early September of that year, Cantu began to notice bruises on Alycia’s legs, head,
chest, stomach, and arm. At one point, Anita admitted to Cantu that she had
spanked Alycia and caused a bruise on her thigh. When Cantu told Anita that she
would not be able to keep Alycia one day, Anita told her that was okay because
Anita’s live-in boyfriend, appellant, wanted to do a “baby boot camp on her”
because Alycia rolls her eyes and “gets an attitude.” Cantu testified that, on
September 8, 2010, Alycia had a bruise down the side of her head and a fractured
arm. On September 11, 2010, Cantu noticed red dots in Alycia’s eyes. Cantu did
not believe Anita’s excuses about Alycia’s injuries. Suspecting abuse, Cantu took
pictures of Alycia’s injuries, notified CPS, and told Anita that she would no longer
keep Alycia.
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Appellant then agreed to care for Alycia while Anita was at work. After
walking Anita to the bus stop on the morning of September 14, 2010, appellant
returned to the apartment with Alycia. According to appellant, Alycia—who had
just recently begun to walk—fell and hit her head on a toy piano in the apartment.
Appellant later admitted to also having dropped Alycia that morning, causing her
to hit her head on the wall. Appellant soon noticed that Alycia was slouching and
having trouble breathing.
At Anita’s suggestion, appellant called his friend David to drive them to a
hospital. Appellant explained to David that, because Alycia held her breath when
he tried to feed her, he had “popped” her on the stomach, causing her to flail back
and hit her head. After she started crying, appellant said that he tried to feed her
again, and again she fell back, again hitting her head. At that point she stopped
crying, causing appellant to be alarmed and eventually call David. By the time
David and appellant arrived at West Houston Hospital, Alycia was no longer
breathing. She was life-flighted to Texas Children’s Hospital.
The staff at West Houston Medical Center and Texas Children’s Hospital
found Alycia unresponsive and noticed bruises on her body. Although Alycia was
officially pronounced dead on the morning of September 15, she had already been
brain dead for some time. Dr. Lopez reviewed Alycia’s prior medical records and
performed her autopsy. Apart from the various injuries Alycia had suffered over
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the course of the past month and her small size due to her chromosomal
abnormality, he testified that she appeared to be “functioning normally and was
otherwise healthy.”
Lopez identified bruises on Alycia’s head and scalp. There were also
bruises on her abdomen, legs, and the arm that was fractured a week before.
Internally, Alycia had hemorrhages in her abdomen, internal organs, head, arm,
and eyes. She also had a detached retina. Many of the hemorrhages, including
those on Alycia’s head and abdomen, were acute, meaning that they had occurred
within 48 hours of the autopsy, and these hemorrhages were the cause of death.
The hemorrhages on Alycia’s head and abdomen were consistent with being
caused by severe blunt force trauma, and Lopez determined that the manner of
death was homicide. Dr. Love, a forensic anthropologist, also performed a
pediatric skeletal exam and determined that there had been trauma to Alycia’s ribs
and her broken arm.
A. Appellant’s Videotaped Statements
Anita, David, and appellant all voluntarily went from the Texas Children’s
Hospital to the police station for interviews with homicide detectives. On that day,
appellant gave Sergeant Torres a videotaped statement. After his arrest ten months
later, appellant gave additional videotaped statements: one to Detective Johnson
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and two to Sergeant Chandler. Appellant’s four videotaped statements to officers
totaled about five hours.
At a pretrial hearing, the State and defense counsel agreed to several
redactions to the videotaped statements to remove references to appellant’s
polygraph examination and some comments about race. Defense counsel conceded
appellant made all four statements voluntarily and with appropriate warnings.
Counsel argued, however, that a few of the statements and questions by officers on
the tapes were improper because they cast doubt on appellant’s credibility,
expressed the officers’ opinions on the strength of the State’s case, and suggested
to the jury that there was additional evidence that the jury was not hearing
implicating appellant. The court overruled those objections.
During the guilt/innocence phase of trial, Sergeants Chandler and Torres and
Detective Johnston testified about the making of the tapes and the police
investigation. Appellant did not testify, but his videotaped statements were played
before the jury without additional objection from his counsel.
The jury found appellant guilty of felony murder and assessed a sentence of
life imprisonment.
INEFFECTIVE ASSISTANCE OF COUNSEL
In three points of error, appellant contends that his trial counsel was
ineffective because, during the guilt/innocence phase, counsel: (1) failed to request
5
a burden-of-proof instruction and limiting instruction on extraneous offenses; (2)
failed to raise key objections to portions of appellant’s videotaped statements; and
(3) provided such deficient representation that, which viewed in its totality, caused
the trial’s result to be unreliable.
A. Standard of Review and Applicable Law
We consider claims of ineffective assistance of counsel under the two-prong
test adopted in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on
an ineffective assistance of counsel claim, appellant must show that (1) counsel’s
performance was deficient, meaning it fell below an objective standard of
reasonableness, and (2) the deficiency prejudiced the defendant, meaning there was
a reasonable probability that, but for the counsel’s deficient performance, the
results of the trial would have been different. Id.; Ex parte Napper, 322 S.W.3d
202, 246, 248 (Tex. Crim. App. 2010). The burden is on appellant to prove by a
preponderance of the evidence that counsel was ineffective. See McFarland v.
State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
The first prong of Strickland requires that the challenged acts or omissions
of counsel fall below the objective standard of professional competence under
prevailing professional norms. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
App. 2010). Appellate courts are highly deferential to trial counsel and avoid
evaluating counsel’s conduct in hindsight. Ingham v. State, 679 S.W.2d 503, 509
6
(Tex. Crim. App. 1984). Thus, courts must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689.
The second prong of Strickland requires a reasonable probability that the
outcome of the case would have been different. Id. at 694. A reasonable
probability is a probability sufficient to undermine confidence in the outcome,
meaning that counsel’s errors must be so serious that they deprive appellant of a
fair trial. Smith v. State, 286 S.W.3d 333, 340–41 (Tex. Crim. App. 2009).
Allegations of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the ineffectiveness. Mallett v. State, 65
S.W.3d 59, 63 (Tex. Crim. App. 2001). “In the rare case in which trial counsel’s
ineffectiveness is apparent from the record, an appellate court may address and
dispose of the claim on direct appeal.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.
Crim. App. 2011). When the record is silent as to the reasoning behind an alleged
deficiency by trial counsel, “we will assume that counsel had a strategy if any
reasonable sound strategic motivation can be imagined.” Id. See also Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[I]n the absence of evidence
of counsel’s reasons for the challenged conduct, an appellate court . . . will not
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conclude the challenged conduct constituted deficient performance unless the
conduct was so outrageous that no competent attorney would have engaged in it.”).
B. Jury Charge Instructions
In his first issue, appellant argues that defense counsel was ineffective
because he failed to request that a burden-of-proof instruction and a limiting
instruction about extraneous offenses be included in the jury charge. Specifically,
he contends that the court should have instructed the jury during the
guilt/innocence phase that (1) it could not consider evidence of extraneous offenses
unless the offenses were proven beyond a reasonable doubt (burden-of-proof
instruction), and that evidence of extraneous offenses could only be used for
limited purposes, and not as evidence of appellant’s character (limiting
instruction).
Following the jury’s guilty verdict—and during a discussion with the court
about the punishment-phase jury charge—the court asked appellant’s counsel
whether he wanted extraneous-offense instructions in the jury charge for the
penalty phase. Counsel responded that, as in the guilt/innocence phase, he wished
to exclude any extraneous-offense instructions in the penalty phase. He explained
his reasoning during the following exchange:
The Court: There’s been, with regard to the guilt/innocent stage of
trial, specifically, [defense counsel], you have requested that there not
be an extraneous instruction at that phase, and it’s my understanding
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that you are asking that that instruction also be removed from the
Court’s Charge [for the penalty phase].
Defense Counsel: That is correct.
The State: Judge, we just want to make sure that the record is clear.
We think out of an abundance of caution the extraneous charge should
be in there given all the other injuries attributed to this child that are
not necessarily date specific and attributed to the defendant. So we
want the record to be clear that it is his trial strategy to not have it in
there because he believes it’s going to draw more attention to it.
Because I think the more cautious thing would be for it to be in the
Charge. So we need the record to reflect that.
Defense Counsel: It is my decision, based on the fact, I do not want
any further attention attracted to any other injuries or any other
possible misconduct that I wish to have the extraneous charge
removed or not included.
The Court: Okay. Based upon that request then, the Court will
remove it based upon [defense counsel’s] stated reasons and request.
A criminal defendant is “entitled to be tried on the accusations made in the
State’s pleading and he should not be tried for some collateral crime or for being a
criminal generally.” Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App.
1987). Thus, evidence of other crimes, wrongs, or acts is not admissible to prove
the character of the defendant, but may be admissible for other legitimate purposes.
TEX. R. EVID. 404(b). “The general standard or test for the admission of an
extraneous offense is whether the prosecution can show (1) that the offense or
transaction is relevant to a material issue in the case, and (2) that the probative
9
value of the evidence to the trier of fact outweighs its prejudicial or inflammatory
nature.” Wilkerson, 736 S.W.2d at 659.
If evidence has only been admitted for a specific purpose, then the trial court
must—upon request—include a limiting instruction that the jury may only consider
the evidence within its proper scope. TEX. R. EVID. 105(a). When requested, the
court must also include an instruction not to consider evidence admitted for a
limited purpose unless the jury finds beyond a reasonable doubt that the defendant
committed the extraneous offenses. George v. State, 890 S.W.2d 73, 76 (Tex.
Crim. App. 1994).
Appellant relies primarily on the Court of Criminal Appeals’ opinion in Ex
parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001) (orig. proceeding) in
contending that his counsel provided ineffective assistance in failing to request jury
instructions about extraneous offenses. Similarly to this case, the State’s murder
case against the defendant in Varelas was built on evidence of physical abuse that
his murdered stepdaughter sustained over the six weeks leading up to her death. 45
S.W.3d at 629–30. And, as in this case, trial counsel in Varelas failed to request
burden-of-proof or limiting instructions with regard to extraneous offenses. Id. at
631. The Court of Criminal Appeals reversed the defendant’s murder conviction,
concluding that trial counsel’s performance was deficient in failing to request
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appropriate jury instructions, and that defendant was prejudiced by his counsel’s
deficient performance. Id. at 633–34.
There are important differences, however, between this case and Varelas. In
Varelas, the Court of Criminal Appeals refused to grant relief on direct appeal
from the defendant’s conviction, stating:
In light of the number of ways and the degree to which a
defendant can suffer harm from the admission of extraneous offense
evidence, we have trouble understanding why trial counsel did not
request a burden of proof or limiting instruction regarding these
offenses. However, the bare record does not reveal the nuances of trial
strategy. Further, to hold trial counsel’s actions (or inaction)
ineffective in the instant case would call for speculation and such
speculation is beyond the purview of this Court. Rather, because of
the strong presumptions that trial counsel’s conduct falls within the
wide range of reasonable professional assistance and that such
conduct might be sound trial strategy, we must conclude, in light of an
otherwise silent record, that appellant failed to meet his burden of
showing that his trial counsel’s assistance was ineffective.
Id. at 632. On subsequent habeas corpus review, trial counsel proffered an
affidavit stating that “failure to request these instructions was not the result of trial
strategy. It was simply an oversight.” Id. Because the “trial could would have
been required to give the instructions had counsel requested them” and given the
evidence that the counsel’s failure to request was not the “product of trial
strategy,” the Court of Criminal Appeals held that trial counsel’s performance was
deficient. Id.
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Unlike Varelas, trial counsel’s strategy here is expressly reflected in the
record, which demonstrates that counsel chose to omit a request for inclusion of
extraneous-offense instructions because he did not want any further attention to be
drawn to potential extraneous offenses or misconduct committed by the defendant.
In light of this evidence of trial strategy, appellant has not met his burden under the
first Strickland prong of demonstrating that his trial counsel’s failure to request
jury instructions on extraneous offenses rendered his representation deficient.
Garcia v. State, 887 S.W.2d 862, 889 (Tex. Crim. App. 1994) (citing Strickland,
466 U.S. at 687–89); see also Agbogwe v. State, 414 S.W.3d 820, 838 (Tex.
App.—Houston [1st Dist.] 2013, no pet.) (“It is reasonable to conclude . . . [that]
defense counsel decided that seeking an instruction to disregard Ozoh’s testimony
would only bring further attention to it”); see also Delgado v. State, 235 S.W.3d
244, 250 (Tex. Crim. App. 2007) (“[T]he decision of whether to request a limiting
instruction concerning the proper use of certain evidence, including extraneous
offenses, may be a matter of trial strategy”).
We overrule appellant’s first point of error.
C. Failure to make objections
In his second point of error, appellant asserts that his counsel was ineffective
for failing to object to statements made by investigating officers during appellant’s
videotaped statements because their probative value was allegedly outweighed by
12
potential prejudice. Appellant also argues that his counsel was deficient for failing
to object to portions of his videotaped statements as either inadmissible hearsay or
improper opinion testimony. Finally, appellant contends that counsel’s failure to
object to the use of his videotaped statements allowed the State to improperly
convict him on “bad character” evidence. Appellant does not direct us to specific
statements in support of each of these arguments, but his brief quotes all the
following statements in support:
(Second Interview – July 19, 2011)
Q. [Johnson] Well, I will tell you this: there’s injuries that are a
little more significant that what you and Anita have explained. When I
say “significant,” I mean significant. I mean, she’s got bleeding in her
brain. She has a detached retina. And there’s only certain ways that
those things happen. Those aren’t natural things that happen to a
child, and they don’t happen by falling onto a piano.
....
Q: . . . Right, but keep in mind, I know what Texas Children’s has
told you, okay, ‘cause I have their records here, okay? But I . . . an
autopsy was done on her. I’m sure you’re aware of that.
A. Yes.
Q: Okay? Autopsy . . . That’s what it looks for. This is scientific
stuff. Okay? And it’s a medical fact that the bleeding she has in her
brain, the detached retina, the other things that she’s got going with
her eyes . . . there’s only one way that gets there. Okay? And from
what everything that’s been explained to us, you were the only one
that was present when all this started happening.
A. So, me spending a few . . .
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Q: Hold on. Hold on.
A: Hours with her, you’re saying that, all of a sudden, all these
problems just came wrong with her?
Q: It can happen [snaps] that quick. That quick. Like a light
switch shutting off. It’s acute. It happens immediately. Okay?
Q: . . . Ten months ago last week this happened. If I was in a
hurry, I’d have arrested you that night. If I was just trying to put
something on somebody, I’d have arrested you that night. I’d have
arrested Anita that night, if I was just looking to put it on somebody.
But, that’s not how I work. I get all the facts – every one of ‘em – and
I have more than just those things.
....
A. . . . Okay, but, you need to understand how I function. I love
Anita, and when she has that look . . . when she’s asking me, you
know, with tears almost coming out of her eyes, you know, “you think
that, uh, her arm was fractured ‘cause of how you handled her.” I’m
like “uh, baby, If . . . If I did hurt her by how I picked her up, I
apologize to you, baby.” That’s what I said” “If I did hurt her, I
apologize to you baby.” And that’s . . . that’s the . . . courteous thing
to do. If you hurt somebody by accident, you apologize. So you . . . .
but you’re asking me why would I apologize.
Q. Yeah. If you didn’t do anything, why would you need to
apologize?
A: ‘Cause I told her if her arm was fractured from how I picked her up
that one time [motioning with fists], I apologize for picking her up
that way .. That’s all I was saying.
....
Q. [Chandler]. . . I worked child abuse . . .what? Twelve years
before I got here?
....
Q. I want you to tell me what your concerns are and what’s going
through your head right now.
A. Well, I’m looking at is, I’m a black male and a baby was hurt
and she died. . . . I’m not playing no race card, I’m just playing the
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reality card. . . . It’s the white detectives, white doctors, looking at a
black male, who, at the time, had no job, and they’re just looking for
somebody to hang for the baby being hurt and dying.
....
Q. . . .The problem is the injury is acute . . . Acute means that . . .
Like . . . Like . . . it had to have happened, like . . . a more severe.
Acute just mean like very, very severe. . . Acute . . . Usually, right
before a child expires, that means passes away . . . if you have head
trauma, like, if something happens to your head, and it’s acute, which
is what she had . . . She had acute injury, then the child usually stop . .
. has . . . the child usually throws up, has some type of seizure activity,
and then the baby dies. Like [snaps] that.
A. Well, she never threw up.
Q. Well, you said she did.
A. No. She spit up when I gave her CPR. She never threw up.
Q. Right. But that’s the same thing. That whole stuff comes up . . .
(Third Interview – July 19, 2011)
Q. [Chandler] . . . This is really serious when you have a baby,
and because she was so little, and she was so tiny, and she was so
fragile, it’s not likely that should would’ve . . . There’s no way she
could’ve inflicted those injuries on herself. So, something had to have
happened to her, be it an accident that these things happened, but
something had to have happened that these things occurred to her. It’s
not like she did ‘em to herself. You know how some kids do some . . .
something like that . . .
....
Q. . . . You know what, when they go to the autopsy . . . I hate to
say this to you, but they have to take a chainsaw and they have to cut
across, so it has to cut across the cartilage to give her a brain injury.
That’s not gonna [slaps the table] happen like that. That’s . . . it’s
gotta be a whole lot more.
Q. . . . I’m telling you is that particular day, shortly before she
died, she had an acute head injury. That’s what caused her death.
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Now, yeah. There’s some other things that happened to her that may
have aggravated that injury, like, maybe if none of this other stuff had
happened to her the weeks ago, maybe she hadn’t fallen on the
concrete, maybe if she hadn’t done this, maybe if she hadn’t done
that, then this injury may not have been so bad, but when you have
healing injuries, and then, you re-injure it more by something else,
that injury, that day, made all this stuff react.
....
Q. . . . It’s the new hemorrhages that caused her to die. . . . wasn’t
the old stuff. Was not the old stuff. So that’s what the problem is.
....
Q. So what I’m telling you is that this thing was so severe this
time, on top of all this stuff that was healing, that she didn’t make it. .
. . I have to make sure that I cover all the bases with you, because this
is a fact. It’s a fact that she had a significant injury that day. That’s a
fact. Now, how she got it, I don’t know. And the only person that
was there was you, Anita, and the baby. The baby ain’t talking. She’s
not here. She can’t talk anyway.
....
Q. . . . I’m just giving you an example, and then the baby . . . the
baby’s dead. She’s dead, and she has significant trauma, but you say
nothing happened. It don’t add up. Something should add up.
You’re not communicating something. Maybe you forgot something.
Maybe you’re not thinking.
....
Q. That autopsy is science. You can’t refute that. It’s pictures,
measurement, dah-dah-dah-dah-dah. You not gonna refute that.
That’s done. That’s science . . . Her death. That body. . . That’s
evidence. That’s science. That happened. Now, how do you explain
all that stuff.
To demonstrate ineffective assistance of counsel for failure to object to the
admission of testimony, appellant must identify the specific objection and prove
that it would have been successful. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim.
App. 2002). An isolated failure to object does not amount to deficient
representation because whether “counsel provides a defendant adequate assistance
16
is to be judged by the totality of the representation rather than by isolated acts or
omissions.” Vasquez v. State, 819 S.W.2d 932, 938 (Tex. App.—Corpus Christi
1991, pet. ref’d) (finding counsel’s performance was not deficient, given the
totality of the circumstances, though he made the wrong objection to a jury
argument).
1. Texas Rule of Evidence 403
At the pretrial hearing, counsel objected to “the manner in which the
questioning was done by reference to outside materials or outside matters,” and to
certain comments by Sergeant Torres as impermissible medical expert testimony.
Additionally, he objected to the admissibility of one of the statements on both
statutory grounds and substantive grounds.
On appeal, appellant argues that even if these pretrial objections were
properly overruled, trial counsel should have then objected under Rule 403 of the
Texas Rules of Evidence that the probative value of such evidence was outweighed
by the danger of unfair prejudice, confusion of the issues, and misleading of the
jury. See TEX. R. EVID. 403.
Appellant does not cite supporting authority or identify specifically how the
probative value of any particular statement was outweighed by the dangers of
prejudice, confusion or misleading the jury under Rule 403. See Santellan v. State,
939 S.W.2d 155, 173 (Tex. Crim. App. 1997) (holding that “merely list[ing] these
17
exhibits in a table with a brief phrase describing the content of the photographs . . .
is not enough information for this Court to adequately address appeallant’s
unarticulated Rule 403 complaints. . . . We decline to make appellant’s arguments
for him.”). Appellant likewise fails to articulate how, absent his counsel’s failure
to lodge a Rule 403 objection to these statements, a different outcome would have
been likely. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
2. Hearsay and Opinion
Next appellant argues that he was deprived of reasonably effective
assistance of counsel because counsel “failed to point out specific improper
hearsay and expert opinion testimony by police during the various statements.” He
acknowledges the State’s position that many of the questions the jury heard posed
by investigators on appellant’s videotaped statements were “contextual.” But he
contends that the statements went beyond acceptable background and contextual
purposes, such that an objection would have been sustained had his counsel made
such an objection. See Langham v. State, 305 S.W.3d 568, 580–82 (Tex. Crim.
App. 2010) (police officer’s testimony about confidential informant’s statements to
him “crossed the line” from any permissible “background” relevance, particularly
because the State relied on statements as evidence during closing arguments).
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
18
asserted.” TEX. R. EVID. 801(d). Thus, an out-of-court statement is admissible if it
is not offered to prove the truth of the matter asserted. See Jones v. State, 843
S.W.2d 487, 499 (Tex. Crim. App. 1992). Opinion testimony by a witness who is
not testifying as an expert may be admissible if it is based upon firsthand sensory
experience. Osbourn v. State, 92 S.W.3d 531, 539 (Tex. Crim. App. 2002). A
witness may testify in the form of opinions and inferences, but this testimony is
limited to inferences and opinions which are (1) “rationally based on the
perception of the witness” and (2) “helpful to a clear understanding of the witness’
testimony or the determination of a fact issue.” TEX. R. EVID. 701; Fairow v. State,
943 S.W.2d 895, 898 (Tex. Crim. App. 1997). An opinion is rationally based upon
perception if a reasonable person could draw the opinion based upon personal
knowledge or experience. Fairow, 943 S.W.2d at 899–900.
Without offering specific arguments about specific statements, appellant
complains about the police interviewers’ recounting the contents of hospital and
autopsy documents during appellant’s videotaped interviews as being hearsay. We
agree with the State that many of the interviewers’ statements fall within the
bounds of admissible evidence because they were not offered for the truth of the
matter asserted; rather, they were designed to probe appellant into providing more
accurate information, given the disconnect between the severity of Alycia’s
injuries and appellant’s version of events. See Hernandez v. State, No. 01-08-
19
00306-CR, 2009 WL 1331649, at *6–8 (Tex. App.—Houston [1st Dist.] May 14,
2009, pet. ref’d) (mem. op., not designated for publication) (holding that
“statements made by police officers during an interview are not hearsay if they are
offered only to give context to the interviewee’s replies, even if the officers accuse
the interviewee of lying and refer to the statements of unnamed witnesses”).
“Statements offered only to show their effect on the listener are not hearsay.” Id. at
*6. Viewing the interviews as a whole, we conclude that the interviewers’
statements about the contents of the hospital and autopsy records gave context to
appellant’s answers and reactions. Appellant has thus not demonstrated that
redaction of these statements would have been required even had his counsel
objected. We therefore reject the argument that counsel’s failure to object
constituted ineffective assistance of counsel. Ex parte Jimenez, 364 S.W.3d 866,
887 (Tex. Crim. App. 2012) (“The failure to object to proper questions and
admissible testimony . . . is not ineffective assistance.”).
To the extent that any of the statements went beyond context and amounted
to inadmissible hearsay, we also note that appellant’s argument ignores that the
majority of the complained-of statements about the medical nature of Alycia’s
injuries are cumulative of evidence introduced through the testimony of Lopez, an
assistant medical examiner, and Love, a forensic anthropologist. Chandler’s
comments during appellant’s videotaped interview describing hemorrhaging in
20
Alycia’s brain and her detached retina are supported by Lopez’s testimony that
Alycia had subscapular hemorrhages indicative of blunt trauma to her head,
bilateral retinal hemorrhages, and a partially detached retina.
Chandler’s statement that subdural hemorrhaging is not a result of “natural
things that happen to a child, and [does not] happen by falling onto a piano,” and
that “there’s only one way that gets there,” is consistent with Love’s testimony that
Alycia’s injuries were not consistent with what she would expect to see from a
regular fall. Chandler’s statement was also consistent with Lopez’s testimony that
“[w]ith a normal toddler fall from a standing position to the ground, I would not
expect to see that severity of subdural and retinal hemorrhages.” According to
Lopez, it would take a “very severe, forceful blow to her abdomen” to cause the
injuries Alycia had.
Similarly, Chandler’s description of what happens “right before a child
expires” is consistent with Lopez’s testimony that it would not be unusual for a
child suffering from a brain injury to exhibit seizure-like activity or vomit. While
not directly supported by testimony, Chandler’s comments were sufficiently
aligned with the experts’ testimony; as such, they cannot be held the basis for
harmful error.1 We thus conclude that the medical evidence discussed by
1
While most of Chandler’s statements were medically accurate and supported by
other testimony, appellant points out that her explanation of the term “acute” was
not correct. During the third videotaped interview, Chandler tells appellant that
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interviewers during appellant’s videotaped statements was cumulative and its
admission was harmless. Appellant cannot show the lack of objection to these
statements constituted ineffective assistance. See Frohne v. State, 928 S.W.2d 570,
576 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d), cert. denied, Frohne v.
Texas, 522 U.S. 812 (1997); Marlow v. State, 886 S.W.2d 314, 318 (Tex. App.—
Houston [1st Dist. 1994, pet. ref’d); see also Jensen v. State, 66 S.W.3d 528, 537
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (citing Matz v. State, 21 S.W.3d
911, 912–13 (Tex. App.—Fort Worth 2000, pet. ref’d)) (When statements in “a
videotape [are] cumulative of [another witness’s] properly admitted testimony on
the same issue, even if the trial court erred in admitting the videotape, we must
disregard the error because it could not have affected appellant’s substantial
rights.”).
3. Character Evidence
Finally, appellant contends that his counsel was ineffective for failing to
object that “[m]uch of the State’s use of [appellant’s] statement[s] was akin to
calling a witness for the purpose of impeaching him with evidence of bad
“[a]cute means like very, very severe” and that an acute injury results in the
child’s immediate death. Lopez and Love, however, correctly testified that the
terms “acute” and “chronic” are used to refer to how recently an injury occurred,
with an acute injury generally being one that has occurred in the last 48 hours.
But the autopsy results and medical testimony overwhelmingly show that Alycia’s
injuries were, in fact, both severe and acute. We are thus confident that
Chandler’s misstatement that acute means severe could not have impacted the
jury’s interpretation of the severity of the actual injuries, on which the jury heard
extensive testimony from multiple witnesses.
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character.” In support, he cites Hughes v. State, 4 S.W.3d 1 (Tex. Crim. App.
1999). In that case, the State called a witness that it knew would offer no favorable
testimony in support of its case, as demonstrated by the witness’s unfavorable
testimony at two previous hearings. Id. at 4–5. The State then called a different
witness to impeach the first witness with testimony about the first witness’s prior
inconsistent statements. Id. at 4. The Court of Criminal Appeals held that the trial
court’s allowing the State to call a witness under the guise of impeachment to get
in otherwise highly prejudicial, inadmissible evidence was improper under the
circumstances and erroneous under Rule 403 of the Texas Rules of Evidence:
While these maybe legitimate reasons for calling K.P. to testify
at appellant’s trial, the State fails to offer this Court any explanation
for why it expected K.P. to testify differently than she had at the
pretrial hearing. More importantly, however, an examination of the
record reveals the State elicited no favorable testimony from K.P. The
lack of favorable testimony suggests the State was attempting to use
K.P.’s prior inconsistent statements under the guise of impeachment
for the primary purpose of placing before the jury evidence which was
not otherwise admissible. Consequently, we conclude the State had
little, if any, legitimate purpose in admitting K.P.’s prior inconsistent
statements to impeach her testimony. Due to the highly prejudicial
nature of this evidence we conclude any probative value it may have
had was substantially outweighed by its prejudicial effect.
Id. at 7.
Appellant insists this case is similar, and argues that because the State
played up during opening statement and closing arguments that his videotaped
interviews reflected that he was “a self-absorbed, self-centered liar,” the jury may
23
have convicted him of murder because of “his alleged character as an insensitive
liar.” Accordingly, appellant contends that his counsel was ineffective for failing
to object that admission of his videotaped interviews “allowed the State to place
him on trial for bad character, in effect impeaching him through his statements
even though he elected not to testify.”
Hughes is inapposite. This case does not involve use of an otherwise
inadmissible prior statement to impeach a testifying witness. Appellant’s
videotaped statements were admissible under the rule permitting an accused’s prior
statement be admitted if the statement was made “freely and voluntarily and
without compulsion or persuasion.” TEX. CODE CRIM. PROC. ANN. art. 38.21
(Vernon 2005). Appellant does not challenge the voluntariness of his statements to
police, and he cites us no authority for excluding an accused’s prior statement from
evidence because the State relies on that prior statement to argue that the accused
had been untruthful and not shown remorse about the accused alleged role in the
charged conduct.
In addition, as the State points out, the general allegations in appellant’s
brief do not identify which statements amounted to inadmissible character
evidence for purposes of impeachment. See TEX. R. APP. P. 38.1(i). Appellant has
thus failed to demonstrate that his counsel rendered deficient performance by
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failing to object to admission of his videotaped statements as improper
impeachment and character evidence.
We overrule appellant’s second point of error.
D. Totality of the Representation
In his third point of error, appellant contends that—when viewed in light of
the totality of the representation—trial counsel’s conduct deprived appellant of
reasonable effective assistance of counsel. See Frangias v. State, 392 S.W.3d 642,
653 (Tex. Crim. App. 2013) (“[A] reviewing court must look to the totality of the
representation in gauging the adequacy of counsel’s performance.”). Appellant has
not demonstrated, in light of the totality of the representation and the strength of
the evidence about which appellant has not complained, a reasonable probability
that the jury would have delivered a different verdict.
We overrule appellant’s third point of error.
CONCLUSION
We affirm the trial court’s judgment.
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Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Justice Jennings, concurring.
Publish. TEX. R. APP. P. 47.2(b).
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