PD-1292-15
PD-1292-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/30/2015 3:04:59 PM
Accepted 9/30/2015 4:04:58 PM
No. ________________
ABEL ACOSTA
CLERK
In The
COURT OF CRIMINAL APPEALS OF TEXAS
Austin, Texas
Jesse Dimas Alvarado, Petitioner
v.
State of Texas, Respondent
On Appeal from the 185th District Court Harris County, Texas
and from the First Court of Appeals, Houston, Texas
Trial Court Case No. 1410607
Court of Appeals Case No. 01-14-00857-CR
PETITION FOR DISCRETIONARY REVIEW
Timothy A. Hootman
SBN 09965450
2402 Pease St
Houston, TX 77003
713.247.9548
713.583.9523 (f)
September 30, 2015 Email: thootman2000@yahoo.com
ATTORNEY FOR PETITIONER, JESSE
DIMAS ALVARADO
Oral argument not requested
1
Identity Of Judges, Parties, and
Counsel
The following judges, parties, and counsel are associated with this
case in the trial court and on appeal:
Trial judge: Hon. Susan Brown
Judge, 185th Judicial District
1201 Franklin St, 17th Fl
Houston, TX 77002
Justices from the First Hon. Sherry Radack, Chief Justice
Court of Appeals: Hon. Laura Carter Higley, Justice
Hon. Michael Massengale, Justice
301 Fannin St
Houston, TX 77002-2066
Defendant/Petitioner: Jesse Dimas Alvarado
Attorney for petitioner Bryan D. Coyne
(in the trial court): SBN 04966800
1914 Memorial Dr.
Houston, TX 77007
Attorney for petitioner Timothy A. Hootman
(in the court of appeal SBN 09965450
and the Court of Criminal 2402 Pease St
Appeals): Houston, TX 77003
Respondent: The State of Texas
Attorneys for respondent: Neil Krugh, SBN 24068262
Sarah Bruchmiller, SBN 24051359
Harris County District Attorney’s Office
1201 Franklin
Houston, TX 77002
2
Table Of Contents
IDENTITY OF JUDGES, PARTIES, AND COUNSEL.…………………………………… 2
TABLE OF CONTENTS……………………………………………………………………… 3
INDEX OF AUTHORITIES…………………………………………………………………. 4
STATEMENT REGARDING ORAL ARGUMENT……………………………………… ..6
STATEMENT OF CASE……………………………………………………………………… 7
STATEMENT OF PROCEDURAL HISTORY……………………………………………… 8
QUESTIONS PRESENTED FOR REVIEW……………………………………………….. 9
ARGUMENT………………………………………………………………………………… 10
PRAYER FOR RELIEF……………………………………………………………………. 22
CERTIFICATE OF WORD COUNT……………………………………………………….23
CERTIFICATE OF SERVICE ………………………………………………………………24
APPENDIX…….. Memorandum Opinion from the First Court of Appeals
3
INDEX OF AUTHORITIES
Cases:
Anaya v. State, 988 S.W.2d 823 (Tex. App.—Amarillo 1999,
no pet.) ................................................................................................ 18
Boyington v. State, 738 S.W.2d 704 (Tex. App.—Houston [1st
Dist.] 1985, no pet. ) ............................................................................. 19
Brown v. State, 974 S.W.2d 289 (Tex. App.—San Antonio
1998, pet. ref’d) .................................................................................... 18
Cude v. State, 588 S.W.2d 895 (Tex. Crim. App. 1979) ..................................... 18
Ex parte Menchaca, 854 S.W.2d 128 (Tex. Crim. App. 1993)....................... 18, 21
Glivens v. State, 918 S.W.2d 30 (Tex. App.—Houston [1st Dist.]
1996, pet. ref’d) .................................................................................... 19
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) ........................... 18
Gosch v. State, 829 S.W.2d 775 (Tex. Crim. App. 1991) .................................... 21
Johnston v. State, 145 S.W.3d 215 (Tex. Crim. App. 2004) ............................... 17
Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App. 1996) ................................ 17
Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007) .................................... 18
Miles v. State, 644 S.W.2d 23 (Tex. App.—El Paso 1982, no
pet.) ................................................................................................ 18, 19
Montez v. State, 824 S.W.2d 308 (Tex. App.—San Antonio
1992, no pet. ) ...................................................................................... 19
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) ......................... 17
Perrero v. State, 990 S.W.2d 896 (Tex. App.—El Paso 1999,
pet. ref’d) ............................................................................................ 18
Ramirez v. State, 873 S.W.2d 757 (Tex. App.—El Paso 1994,
pet. ref’d) ............................................................................................. 19
Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996) .................................. 17
Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App. 2002) ................................. 17
Roberts v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006)................................. 18
Stone v. State, 17 S.W.3d 348 (Tex. App.—Corpus Christi
2000, pet. ref’d) ................................................................................... 18
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .......................... 19, 20
4
Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) ............................... 18
Vaughn v. State, 931 S.W.2d 564 (Tex. Crim. App. 1996) ................................. 21
Federal cases:
Lyons v. McCotter, 770 F.2d 529 (5th Cir. 1985)............................................... 19
Spriggs v. Collins, 993 F.2d 85 (5th Cir. 1993) ................................................. 19
Strickland v. Washington, 466 U.S. 668 (1984) ........................................ 19, 20
Rules:
TEX. R. EVID. 103 ...................................................................................... 15, 16
TEX. R. EVID. 104 ........................................................................................... 16
TEX. R. EVID. 403 ........................................................................................... 17
TEX. R. EVID. 404(b) ...................................................................................... 17
5
STATEMENT REGARDING ORAL
ARGUMENT
Petitioner does not request oral argument.
6
STATEMENT OF THE CASE
Petitioner was charged by indictment with unlawful possession of a
firearm in violation of section 46.04(a)(1) of the Penal Code (CR 9). After a
plea of not guilty, a jury convicted appellant (CR 33-39) and the trial court
sentenced him to five years in prison and $335.00 in court costs (CR 40).
The court of appeals affirmed and denied petitioner’s motion for rehearing.
7
STATEMENT OF PROCEDURAL HISTORY
On July 16, 2015, the First Court of Appeals affirmed petitioner’s
conviction in an unpublished opinion.
On July 31, 2015, petitioner filed a motion for rehearing which was
denied on September 1, 2015.
8
QUESTIONS PRESENTED FOR REVIEW
Question one:
Would a reasonably competent lawyer formulate a trial
strategy of not objecting to the extraneous offense evidence
present in this case when he or she could have preserved the
error outside the hearing of the jury under Rules of Evidence
103 and 104 thereby eliminating the need to object in front of
the jury without losing the objection?
Question two:
Should the court of appeals have addressed the merits of the
ineffective assistance of counsel claim raised in Appellant’s
Brief?
9
ARGUMENT
On July 21, 2003, petitioner pleaded guilty to sexual assault of a
teenaged female who was between 14 and 17 years old (her exact age is not
clear from the record) while he was 18 years old. (RR 3/58 and 5/State
Exh. 9). More specifically, petitioner pleaded guilty to the second
paragraph of the indictment which alleges that he “cause[d] the
penetration of the female sexual organ of … the [c]omplainant, a person
younger than seventeen years of age … by placing his finger in the female
sexual organ of the [c]omplainant.” Id. Petitioner was sentenced to ten
years deferred adjudication probation with “152 days in the Harris County
Jail beginning July 21, 2003” as a condition of the probation. (RR 5/State
Exh. 9).
On July 22, 2003 (the day after being sentenced in the sexual assault
case), a motion to adjudicate petitioner’s deferred adjudication probation
was filed because he “committed the offense of intentionally and knowingly
escaping from custody on or about July 21, 2003.” Id. The motion to
adjudicate states that the confinement from which appellant escaped “was
the result of conditions imposing a period of confinement in a secure
correctional facility.” Id. In other words, petitioner escaped the same day
that he was sentenced to the deferred adjudication probation regarding the
sexual assault case.
10
On August 12, 2003, petitioner pleaded true to the motion to
adjudicate without an agreed recommendation on the sentence, was
adjudged guilty and sentenced to eight years in prison, a $500.00 fine and
$823.00 in court costs. Id. Thus, petitioner would have completed his
sentence on August 12, 2011. (RR 3/26).
On December 5, 2013 (less than five years after petitioner completed
his sentence on the sexual assault case), a federal child-pornography search
warrant was executed on a residence located at 137 Soren Lane, Houston,
Texas by a team of federal and state police officers. (RR 3/15). The
residence is a small two-bedroom, wood-framed house where the Alvarado
family lived for many years. (RR 3/16-18 and 5/State Exh. 1, 2 & 3). One
of the officers considered the home to be located in one of the highest
crime areas in Houston. (RR 3/27-28). In this regard, petitioner’s brother,
Alfred, testified that when he was small the home was “shot up” by
strangers in a drive-by shooting incident. (RR 3/87). And, petitioner’s
mother testified that two and a half years earlier a car drove by and threw
rocks thru the window of the bedroom where the pistol in question was
located. (RR 4/19). This is the same window where the police found a
surveillance camera pointed at the street. (RR 3/87 and 5/State Exh. 12).
The purpose of the search warrant was not directly told to the jury
(although it was strongly insinuated), but in a pretrial hearing it was shown
that the purpose was to look for child pornography believed to be in the
11
home. (RR 3/6). When the warrant was being served the officers did not
know who in particular might be in possession of the child pornography
suspected of being in the home, but Officer Krugh testified that “[a]s it
turned out, the target of my investigation was Alfred Alvarado”, petitioner’s
brother. (RR 3/20).
When the officers arrived at the home, appellant, his brother, Alfred,
his mother and a “young female” were inside. (RR 3/19). Petitioner’s
other brother, Rudy, was not present but his car was parked in the front
yard. (RR 3/28-29). A search of the vehicle revealed a “fairly good amount
of drugs.” (RR 3/28). Rudy was later arrested and sent to prison for the
drugs in his car. Id. A series of questions and answers through Officer
Ackley’s testimony showed Rudy’s history of criminal involvement. (RR
3/28-30).
A pistol was found on the upper shelf of the closet inside one of the
bedrooms where petitioner was sleeping when the officers arrived. (RR
3/22-23 & 60). Officer Nieto testified that petitioner said the room was
his. (RR 3/46, 60, 62). Also, located in the room were a wallet that
contained petitioner’s (1) Texas identification card issued on August 3,
2012 and expiring on September 21, 2012 with the 137 Soren Lane address,
(2) Texas identification card issued on September 18, 2012 and expiring on
September 21, 2013 with the 137 Soren Lane address, and (3) Texas
offender card with no address listed. (RR 3/47 and 5/State Exh. 6-10).
12
However, petitioner’s brother, Alfred, clarified through his testimony that
he had purchased the pistol for self-protection and placed it in the closet,
and that the bedroom was his until May 0f 2013. (RR 3/87-91).
The state offered into evidence various photographs that
misleadingly suggest the physical state of the bedroom and the exact
location and visibility of the pistol at the moment the officers entered the
home. (RR 5/State Exh. 5-25). However, it is clear from the officers’
testimony that the photographs of the bedroom and pistol were taken after
the officers had searched the bedroom and closet and therefore do not
accurately show how the items were originally discovered. (RR 3/45, 65,
68 and 5/State Exh. 5-25). Moreover, petitioner’s mother testified that the
photographs do not show how the bedroom and closet were kept before the
officers entered. (RR 4/16-17). In this regard, Officer Nieto explained that
State’s Exhibit 17 is a picture of where in the bedroom closet in which the
pistol was located, except that the photograph was taken after the officers
had searched the room and moved the items. (RR 3/51).
Two officers testified as to the location and accessibility of the pistol
inside the bedroom (RR 3/26-27; 32-34; 51; 60; 73-74).
Throughout the trial a series of irrelevant and prejudicial evidence,
which was introduced into evidence without objection from defense
counsel, permeated the trial establishing petitioner to be a bad person in
general even though the veracity of this information was not subjected to
13
scrutiny. Specifically, the state introduced without objection police and
prison records indicating that the teenaged female, with whom petitioner
had been convicted of having sexual contact with his hand, had been
forcefully raped and sodomized by petitioner after he entered her bedroom
window at night, that he ejaculated in her mouth without her consent, that
he verbally and physically abused her, including telling her that he had
AIDS and other nefarious diseases that she may have contracted, and that
he had threatened to hurt her and her father. (RR 5/State Exh. 4). This
hearsay evidence was not objected to by defense counsel and is not what
appellant was actually found guilty of in the underlying felony conviction—
in fact, appellant was not even charged with forcible rape. The indictment
in the underlying case was introduced into evidence which alleges two
counts, the count for which he was found guilty (placing his finger inside
the vagina), and the count that was dismissed (placing his penis inside the
vagina). (RR 5/State Exh. 4). Evidence that petitioner had committed the
offense of escape was admitted. (RR 5/State Exh. 4 & 27).
Also, introduced into evidence—again, without objection—were
various notations by prison officials noting that petitioner had misbehaved
while in prison by “mast[urbating] in public and refus[ing] to stop when
ordered to do so”, and, that he is a registered sex offender. (RR 5/State
Exh. 4). Additional prison-record notations were admitted showing that
petitioner had been arrested seven times, had been arrested for running
14
from court after being sentenced to jail time, had been convicted of escape,
had been convicted of evading arrest, that he had served 30 days in jail as a
minor in possession of cigarettes, and that he has used marijuana, Codeine,
Ecstasy, Cocaine, Xanax, embalming fluid, and is an excessive drinker.
(RR 5/State Exh. 9).
The jury found petitioner guilty, and the trial court assessed his
sentence at five years in prison and $335.00 in court costs. Petitioner
appealed arguing there was legally insufficient evidence that he had
possessed the weapon and that he was denied effective assistance of
counsel by his trial lawyer’s failure to object to the extraneous bad acts
evidence. The court of appeals concluded there was sufficient evidence of
possession and that the record is not sufficient to review the ineffective
assistance complaint on direct appeal because “[it] is possible that trial
counsel strategically choose not to object to the complained-of portions to
avoid drawing the jury’s attention to the information.” Op. at 16. On
rehearing petitioner pointed out that, the relevant procedural rules state:
Rule 103(b) Not Needing to Renew an Objection. When the court
hears a party’s objection outside the presence of the jury
and rules that evidence is admissible, a party need not
renew an objection to preserve a claim of error for appeal.
TEX. R. EVID. 103(b).
Rule 103(d) Preventing the Jury from Hearing Inadmissible
Evidence. To the extent practicable, the court must
conduct a jury trial so that inadmissible evidence is not
suggested to the jury by any means. TEX. R. EVID. 103(d).
15
Rule 104(a) In General. The court must decide any preliminary
question about whether … evidence is admissible. TEX. R.
EVID. 104(a).
Rule 104(c) Conducting a Hearing So That the Jury Cannot
Hear It. The court must conduct any hearing on a
preliminary question so that the jury cannot hear it if: … (3)
justice so requires. TEX. R. EVID. 104(c)(3).
In other words, there was no need for trial counsel to wait for the
prosecutor to offer the evidence in front of the jury to object. He could
have and should have filed a motion objecting to the evidence and obtained
a ruling outside of the hearing of the jury. Under Rule of Evidence 103,
such a ruling preserves error and if the trial judge had overruled the
objection, then trial counsel could still have sat back without saying
anything in front of the jury. In short, there is no conceivable trial strategy
that trial counsel could possibly come up with if the issue of ineffective
assistance of counsel were raised in a motion for new trial or on habeas.
Because of that the court of appeals should have addressed the merits of
whether trial counsel was ineffective in failing to object to inadmissible
extraneous offense evidence. The court of appeal’s resolution of this issue
based on conclusion that trial counsel may have had a trial strategy is not
supported by the record because no reasonably competent lawyer would
formulate a trial strategy of not objecting to the extraneous offense
evidence present in this case when he or she could have preserved the error
outside the hearing of the jury thereby eliminating the need to object in
front of the jury.
16
A basic tenet of criminal law is that evidence of a defendant’s bad
character is not admissible to show that he acted in conformity therewith. 1
Even if bad-acts evidence is relevant to a non-character conformity issue, it
is still inadmissible if its probative value is substantially outweighed by the
danger of unfair prejudice to the defendant. 2
In the trial of petitioner’s case, a litany of information showing that
he was a bad person generally came into evidence, without objection, for
no purpose other than to prove character conformity. Failure to object to
this evidence was such an obvious professional blunder that there can be
no reasonable trial strategy to justify the omission, and therefore, the
ineffective assistance claim can be raised on direct appeal instead of by
1 TEX. R. EVID. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex.
Crim. App. 2004) (bad character evidence is inherently prejudicial, tends
to confuse the issues, and forces defendant to defend himself against
charges he has not been notified would be brought against him); Robbins
v. State, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002) (“Relevant evidence of
a person’s bad character is generally not admissible for the purpose of
showing that he acted in conformity therewith.”); Webb, 36 S.W.3d at 181
(“[P]roof of the sexual assault against Porter served no probative function
other than to show appellant as a person who commits sexual assaults in
general, and therefore, was more likely to have committed the sexual
assault against Baird, an inference rule 404(b) strictly forbids.”); Rankin v.
State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996); Abnor v. State, 871
S.W.2d 726, 738 (Tex. Crim. App. 1994); Montgomery v. State, 810 S.W.2d
372, 390 (Tex. Crim. App. 1991) (trial court has no discretion to admit over
proper objection extraneous offense evidence that is relevant only to
character conformity).
2 TEX. R. EVID. 403; Johnston v. State, 145 S.W.3d at 220; Robbins, 88
S.W.3d at 262-263; Mitchell v. State, 931 S.W.2d 950, 952 (Tex. Crim. App.
1996).
17
habeas review. 3 Moreover, the cases are legion which hold that a lawyer is
ineffective in failing to object to inadmissible character conformity, bad-
acts evidence, like the evidence in this case, and therefore, review by direct
appeal is the efficient and procedurally correct avenue for review. 4
3 Mata v. State, 226 S.W.3d 425, 428-29 (Tex. Crim. App. 2007)
(ineffective assistance claim proper on direct appeal when defense
counsel’s conduct is of a type that no reasonably competent lawyer would
have engaged in for any reason); Goodspeed v. State, 187 S.W.3d 390, 396
(Tex. Crim. App. 2005) (Holcomb, J., dissenting) (same); Andrews, 159
S.W.3d at 100 (same); Ex parte Menchaca, 854 S.W.2d 128, 131-33 (Tex.
Crim. App. 1993) (same); Vasquez v. State, 830 S.W.2d 948, 951 (Tex.
Crim. App. 1992) (same); see also Miles v. State, 644 S.W.2d at 23, 25-26
(Tex. App.—El Paso 1982, no pet.) (abatement of direct appeal regarding
claim of ineffective assistance for trial court to conduct hearing to further
develop record regarding counsel’s alleged deficiencies where strong
indications counsel was deficient).
4 See, e.g., Roberts v. State, 187 S.W.3d 475, 486 (Tex. Crim. App.
2006) (“We decide that appellant’s trial lawyer performed deficiently
under the first prong of Strickland for eliciting testimony from appellant at
the guilt phase of his trial that appellant was already incarcerated on two
convictions that were pending on appeal.”); Ex parte Menchaca, 854
S.W.2d at 131-33 (counsel ineffective for allowing prior drug conviction to
be heard by jury during guilt-innocence phase of rape trial); Cude v. State,
588 S.W.2d 895, 897-98 (Tex. Crim. App. 1979) (counsel ineffective by
failing to object to extraneous offenses of defendant and his relatives
during guilt-innocence phase of aggravated robbery trial); Stone v. State,
17 S.W.3d 348, 353 (Tex. App.—Corpus Christi 2000, pet. ref’d) (“We hold
that under the facts of this case, counsel’s decision to elicit testimony
regarding the prior murder conviction cannot be considered part of a
reasonable trial strategy. We believe that where, as here, the record
affirmatively demonstrates that counsel took some action in defending his
client that no reasonably competent attorney could have believed
constituted sound trial strategy, the defendant has shown he received
ineffective assistance of counsel.”); Perrero v. State, 990 S.W.2d 896, 899
(Tex. App.—El Paso 1999, pet. ref’d) (counsel ineffective by not preparing
defendant well enough to testy so he would not open door to admission of
his prior record in assault and resisting arrest case); Anaya v. State, 988
S.W.2d 823, 826 (Tex. App.—Amarillo 1999, no pet.) (counsel ineffective
18
The Strickland v. Washington standard of review is applied to
ineffective assistance claims. 466 U.S. 668, 688 (1984); Hernandez v.
by asking defendant, “Have you been in trouble for anything else?” and
thus opened door regarding extraneous offenses); Brown v. State, 974
S.W.2d 289, 293 (Tex. App.—San Antonio 1998, pet. ref’d) (counsel
ineffective by allowing drug use and promiscuity to be heard by jury during
guilt-innocence of murder trial); Thomas v. State, 923 S.W.2d 611, 613-14
(Tex. App.—Houston [1st Dist.] 1995, no pet.) (“Counsel for appellant had a
duty to object to harmful, inadmissible evidence, and when she neglected
that duty, appellant suffered. Although appellant applied for and proved
his eligibility for probation, the trial judge assessed his punishment at 16
years of confinement. Counsel’s failure to object to inadmissible evidence
offenses allowed the trial court to consider allegations that appellant had
threatened police officers, had stalked police officers and the prosecutor,
and had solicited the murder of police officers. Clearly, the overwhelming
prejudicial effect of these allegations outweighed any potential benefit of
cross-examination.”); Glivens v. State, 918 S.W.2d 30, 33-34 (Tex. App.—
Houston [1st Dist.] 1996, pet. ref’d) (counsel ineffective at punishment
phase where trial court assessed punishment after jury determined guilt
even though evidence was offered during guilt phase of trial, because no
indication trial court did not consider evidence in sentencing); Ramirez v.
State, 873 S.W.2d 757, 763 (Tex. App.—El Paso 1994, pet. ref’d) (counsel
ineffective by allowing prior murder conviction during a jury trial into
evidence during guilt-innocence phase of murder trial); Montez v. State,
824 S.W.2d 308, 310 (Tex. App.—San Antonio 1992, no pet.) (“Although
the State did not try to inject extraneous offenses, Mr. Montez’s own lawyer
actually and affirmatively elicited, on cross-examination of the State’s
witnesses, numerous highly prejudicial extraneous acts which otherwise
would have been inadmissible.”); Boyington v. State, 738 S.W.2d 704, 708
(Tex. App.—Houston [1st Dist.] 1985, no pet.) (“Although the [extraneous
bad acts] evidence complained of was properly admitted during another
phase of the trial, it was admitted only because counsel for appellant
without any plausible reason, presented character witnesses, thus allowing
the inadmissible deeds to become admissible.”); Miles, 644 S.W.2d at 25
(counsel opened door for admission of defendant’s arrest record); Spriggs
v. Collins, 993 F.2d 85, 89-90 (5th Cir. 1993) (counsel ineffective for not
objecting to unadjudicated extraneous offenses in PSI report); Lyons v.
McCotter, 770 F.2d 529, 531 (5th Cir. 1985) (counsel ineffective for allowing
prior convictions of burglary and drugs to be heard by jury in guilt-
innocence phase of aggravated robbery trial).
19
State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland
test for Texas criminal cases). The standard of review is a two-prong test,
stated as follows:
First, the defendant must show that counsel’s
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient
performance prejudiced the defense. This
requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a
trial whose result is reliable. Strickland, 466 U.S.
at 688.
Failure to establish one prong of the test negates a court’s need to consider
the other. Id. at 697. Trial counsel is presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment. Id. at 689 & 690. The burden is on the defendant
to overcome the presumption that, under the circumstances, the
challenged action might be sound trial strategy. Id. at 689. Because of
this, the record must affirmatively demonstrate the claim of
ineffectiveness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App.
1999). Counsel’s errors are judged by the totality of the representation.
Strickland, 466 U.S. at 695-96.
When counsel is deficient in allowing inadmissible evidence into
evidence the following factors are relevant to determine if the defendant
was prejudiced by the deficiency: (1) the weight, nature, and focus of the
20
evidence presented to the jury; (2) the nature of the prosecutor’s closing
argument; and (3) the relative role the disputed conviction played in the
outcome of the trial. Ex parte Menchaca, 854 S.W.2d 128, 133 (Tex. Crim.
App. 1993) (citing Crockett v. McCotter, 796 F.2d 787, 793-94 (5th Cir.
1986)). Moreover, when the basis of an ineffective assistance claim is that
counsel failed to object to inadmissible evidence, the defendant must show
that the trial court would have committed error in overruling the objection.
Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996); Gosch v.
State, 829 S.W.2d 775, 784 (Tex. Crim. App. 1991).
The state offered into evidence the prison records of petitioner
containing the laundry list of bad-acts that appellant had, according to the
records, engaged in over time. The records had no relevance to any issues
to be decided by the jury other than to show that because petitioner was a
bad person in the past he must, logically, have been a bad person on this
occasion and therefore been a felon in possession of the pistol. Although
this is a classic example of evidence that should not be admitted into
evidence, petitioner’s trial counsel did not object.
What aggravated the circumstances even more is that the improperly
admitted evidence makes it appear that petitioner was a violent rapist
when that is by no means the case. Petitioner pleaded guilty to a sexual
offense that, on its face, was not a violent sexual assault. According to the
guilty plea and the surrounding undisputed evidence, petitioner was
21
eighteen and the victim was a teenager between fourteen and seventeen.
There is a wide range of factual possibilities that are not contained in the
appellate record as to what exactly happened and as to what exactly were
the circumstances, yet those factual contours were never litigated. Yet trial
counsel allowed this damning evidence into evidence without objection
even though it indicates that what in fact happened was the worst—violent
rape. Pile on top of that the evidence of the multiple arrests, escape,
masturbating in front of prison officials and use of all told forms of illegal
narcotics imaginable—all of which is totally and clearly inadmissible with
no objection forthcoming—and the prejudicial effect is obvious.
There is no amount of intellectualizing that could result in any
legitimate trial strategy to justify not objecting to this evidence. Therefore,
this ineffective assistance of counsel claim was properly raised on direct
appeal, and the court of appeals should have addressed the merits of the
argument.
PRAYER
Petitioner prays that this petition be granted, that briefing on
the merits be ordered, and that this case be reversed and remanded to
the court of appeals to address the merits of his ineffective assistance
of counsel argument.
22
Respectfully submitted,
/s/Timothy A. Hootman_____
Timothy A. Hootman
SBN 09965450
2402 Pease St
Houston, TX 77003
713.247.9548
713.583.9523 (f)
E-mail: thootman2000@yahoo.com
ATTORNEY FOR PETITIONER
CERTIFICATE OF WORD COUNT
I hereby certify that, in accordance with Rule 9.4 of the Texas
Rules of Appellate Procedure, that the number of words contained in
this document are 3,769 according to the computer program used to
prepare this document.
Dated: September 30, 2015.
/s/Timothy A. Hootman_____
Timothy A. Hootman
23
CERTIFICATE OF SERVICE
I hereby certify that, in accordance with Rule 9.5 of the Texas
Rules of Appellate Procedure, I have served the forgoing document
upon the following attorneys by electronic service:
Neil Krugh
Sarah Bruchmiller
Harris County District Attorney’s Office
1201 Franklin
Houston, TX 77002
John R. Messinger
P.O. Box 13046
Austin, TX 78711
Dated: September 30, 2015.
/s/Timothy A. Hootman_____
TIMOTHY A. HOOTMAN
24
Opinion issued July 16, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00857-CR
———————————
JESSE DIMAS ALVARADO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1410607
MEMORANDUM OPINION
Appellant, Jesse Dimas Alvarado, was found guilty by a jury of the offense
of unlawful possession of a firearm by a felon.1 The trial court assessed
Appellant’s punishment at five years in prison. In two issues on appeal, Appellant
1
See TEX. PENAL CODE ANN. § 46.04(a)(1) (Vernon 2011).
asserts that the evidence was insufficient to support the judgment of conviction and
that he received ineffective assistance of counsel at trial.
We affirm.
Background
Appellant was convicted of the offense of sexual assault of a child on
August 12, 2003. He was sentenced to eight years in prison. Appellant was
released from prison on July 1, 2011.
On December 5, 2013, several law enforcement agencies, working together,
executed a search warrant on Appellant’s family home as part of a child
pornography investigation.2 The target of the investigation was Appellant’s
brother, Alfred. Appellant, Alfred, and their mother were at home when the
warrant was executed. Appellant was asleep in a bedroom.
During the search of the home, Houston Police Officer D. Nieto found a
firearm, a 9 millimeter pistol, on the shelf of the closet in the bedroom where
Appellant had been sleeping. The gun was in a nylon holster with the butt of the
gun facing outward. Men’s clothing was hanging in the closet. When the officer
asked whose bedroom it was, Appellant responded that it was his room.
Appellant’s wallet containing his driver’s license and his Texas Department of
Criminal Justice offender card was found in the bedroom. Drug paraphernalia—
2
The jury in this case was not informed of the purpose of the search warrant.
2
including various scales and different size plastic baggies of the type used to
package narcotics—was also recovered from the bedroom.
The police searched a car belonging to Appellant’s other brother, Rudy.
Inside the car, they found a large quantity of illegal drugs. Rudy was not at the
scene, but he was later arrested and convicted for illegal drug possession.
Appellant was arrested and later charged with the offense of unlawful
possession of a firearm by a felon. At trial, Officer Nieto testified that he was the
police officer who found the pistol on a shelf of the bedroom closet. He testified
that the pistol was not hidden or obstructed by anything on the shelf. He stated
anyone who entered the closet and looked up would have seen the butt of the
pistol.
R. Ackley, an investigator with the Harris County Sherriff’s Office, also
participated in the search of the home. Investigator Ackley testified that he saw the
pistol on the shelf of the bedroom closet. He stated that the shelf was at eye level,
about five feet high. He testified that the pistol was clearly visible on the shelf. He
stated that the pistol was in a holster, with the handle of the gun facing out and the
barrel of the gun pointing into the closet. He testified that the pistol was stuffed
between two shopping bags but the handle was sticking out far enough that he
could tell that it was a gun.
3
Photographs of the closet and of the shelf with the pistol were also admitted
into evidence. In the photographs, the pistol was laying on the shelf with nothing
around it. On cross-examination, Officer Nieto acknowledged that pistol had been
taken off the shelf and cleared of ammunition, replaced on the shelf and then
photographed. He did not agree that, when he initially found the pistol, it had been
stuffed between two shopping bags as Investigator Ackley had testified.
Appellant’s brother, Alfred, and Appellant’s mother testified for the defense.
Alfred stated that he had purchased the pistol about six months before the search
for home protection. Alfred explained that the bedroom where the pistol was
found had previously been his bedroom. Appellant moved into the bedroom where
the pistol was found approximately six months before the search, and Alfred had
moved to another bedroom.
Appellant’s mother, Juanita, testified that the items on the shelf where the
pistol was found belonged to her; however, the clothes hanging in the closet
belonged to Appellant. Juanita stated that she did not know that the pistol was in
the closet.
In closing argument, the defense asserted that the State’s photographs,
showing the pistol laying in plain view on the shelf did not accurately reflect where
the pistol had been in the closet when it was found by Officer Nieto. The defense
pointed to the testimony of Investigator Ackley indicating that the pistol had been
4
stuffed between two shopping bags. The defense relied on Alfred’s testimony
indicating that he had purchased the pistol and placed it in the closet.
In its closing argument, the State pointed out that both Officer Nieto and
Investigator Ackley testified that the pistol was in plain view in the closet. The
State also pointed out that, under the law, the jury did not need to find that
Appellant owned the pistol in order to find that he possessed it.
The jury found Appellant guilty of the offense of unlawful possession of a
firearm by a felon. Appellant elected to have the trial court assess punishment. At
the punishment hearing, the State reoffered the evidence from the guilt-innocence
phase, which was admitted for punishment purposes. The defense requested that
Appellant receive the minimum prison sentence of two years, and the State
requested that the trial court assess a six-year sentence. At the conclusion of the
hearing, the court sentenced Appellant to five years in prison. Appellant did not
file a motion for new trial.
Appellant now appeals, raising two issues.
Sufficiency of the Evidence
In his first issue, Appellant asserts that the evidence was insufficient to
support his conviction for the offense of unlawful possession of a firearm by a
felon. Specifically, Appellant claims that “the evidence does not affirmatively link
the pistol in question to appellant.”
5
A. Standard of Review
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, 99 S. Ct.
2781, 2789 (1979). See Matlock v. State, 392 S.W.3d 662, 673 (Tex. Crim. App.
2013); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Pursuant to
the Jackson standard, evidence is insufficient to support a conviction if,
considering all the record evidence in the light most favorable to the verdict, no
rational fact finder could have found that each essential element of the charged
offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970);
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be
insufficient under the Jackson standard in two circumstances: (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an element
of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See
Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
6
to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). An appellate court presumes that the fact finder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
In our review of the record, direct and circumstantial evidence are treated
equally; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point
directly and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the conviction.”
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Elements of the Offense and Pertinent Legal Principles
To establish the offense of unlawful possession of a firearm by a felon, the
State must show that the defendant was previously convicted of a felony offense
and possessed a firearm after the conviction and before the fifth anniversary of the
person’s release from confinement. TEX. PENAL CODE ANN. § 46.04(a)(1) (Vernon
2011). Appellant does not dispute that he had a prior felony conviction or that it
has been less than five years since his release from prison; rather, he challenges
only the sufficiency of the evidence to prove that he possessed a firearm.
7
The Penal Code defines possession as “actual care, custody, control, or
management.” Id. § 1.07(a)(39) (Vernon Supp. 2014). A person commits a
possession offense only if he voluntarily possesses the prohibited item. Id.
§ 6.01(a) (Vernon 2011). Possession is voluntary if the possessor knowingly
obtains or receives the thing possessed or is aware of his control of the thing for a
sufficient time to permit him to terminate his control. Id. § 6.01(b).
We analyze cases involving possession of a firearm by a felon under the
sufficiency-of-the-evidence rules adopted for cases involving possession of a
controlled substance. See Corpus v. State, 30 S.W.3d 35, 37 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref’d). In such cases, the State is required to prove that a
defendant knew of the firearm’s existence and that he exercised actual care,
custody, control, or management over it. See id. at 38; see also TEX. PENAL CODE
ANN. § 1.07(a)(39). If the firearm is not found on the defendant’s person or is not
seen in the defendant’s exclusive care, custody, control, or management, the State
must offer additional, independent facts and circumstances that link the defendant
to the firearm. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.
2005).
Possession need not be exclusive. Wiley v. State, 388 S.W.3d 807, 813 (Tex.
App.—Houston [1st Dist.] 2012, pet. ref’d) (citing McGoldrick v. State, 682
S.W.2d 573, 578 (Tex. Crim. App. 1985)). When the accused is not in exclusive
8
possession of the place where the firearm is found, then additional, independent
facts and circumstances must affirmatively link the defendant to the firearm in
such a way that it can reasonably be concluded that the defendant had knowledge
of the contraband and exercised control over it. See Kibble v. State, 340 S.W.3d
14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Roberts v. State, 321
S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). The
evidence, whether direct or circumstantial, must establish, to the requisite level of
confidence, that the accused’s connection with the firearm was more than just
fortuitous. See Poindexter, 153 S.W.3d at 405–06 (quoting Brown v. State, 911
S.W.2d 744, 747 (Tex. Crim. App. 1995)).
A nonexclusive list of factors that may establish a link between a defendant
and a firearm found inside a house, which was not in the defendant’s exclusive
control, includes whether (1) the defendant was present at the time of the search;
(2) the defendant was the owner of or had the right to control the location where
the firearm was found; (3) the firearm was in plain view; (4) the defendant was in
close proximity to and had access to the firearm; (5) firearms or other contraband
was found on the defendant; (6) the defendant attempted to flee; (7) conduct by the
defendant indicated a consciousness of guilt, including extreme nervousness or
furtive gestures; (8) the defendant had a special connection or relationship to the
firearm; (9) the place where the firearm was found was enclosed; and (10)
9
affirmative statements connected the defendant to the firearm, including
incriminating statements made by the defendant when arrested. Jones v. State, 338
S.W.3d 725, 742 (Tex. App.—Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854
(Tex. Crim. App. 2012).
When deciding whether the evidence is sufficient to link a defendant to a
firearm, the fact finder is the exclusive judge of the credibility of the witnesses and
of the weight to be given to their testimony. See Poindexter, 153 S.W.3d at 406.
The jury is allowed to infer the defendant’s knowledge from his acts, conduct,
remarks, and from the surrounding circumstances. See Krause v. State, 243
S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
No formula of facts exists to dictate a finding of links sufficient to support
an inference of knowing possession. See Taylor v. State, 106 S.W.3d 827, 831
(Tex. App.—Dallas 2003, no pet.). The link between the defendant and the
firearm need not be so strong that it excludes every other outstanding reasonable
hypothesis except the defendant’s guilt. See Brown v. State, 911 S.W.2d 744, 747
(Tex. Crim. App. 1995). In sum, it is the logical force of the evidence, and not the
number of links, that supports a fact finder’s verdict. Evans v. State, 202 S.W.3d
158, 166 (Tex. Crim. App. 2006).
10
C. Analysis
To support his challenge that insufficient evidence was presented to link him
to the recovered handgun, Appellant points to evidence that it was his brother,
Alfred, who had purchased the pistol for home protection, and it was Alfred who
had placed the pistol in the closet when it had been Alfred’s bedroom. Appellant
also points out that a number of people lived in the house. However, the State was
not required to show that Appellant owned the pistol or that he exercised sole
control over it. See Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005,
pet. ref’d) (holding State is not required to prove defendant had exclusive
possession of firearm).
Appellant also asserts that the pistol was not in plain view. He claims that
he would only have seen it if he opened the closet door and looked at the pistol.
He points out that Investigator Ackley testified that the pistol was stuffed between
two bags on the shelf. Appellant further avers that the State presented no evidence
regarding a number of the link factors. He asserts he made no incriminating
statements or furtive gestures; he also did not attempt to flee.
Generally, Appellant correctly cites the record. However, the absence of
various affirmative links does not constitute evidence of innocence to be weighed
against the affirmative links that are present. James v. State, 264 S.W.3d 215, 219
(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Appellant’s analysis does not
11
appropriately view the evidence in the light most favorable to the verdict and
improperly discounts evidence linking him to the pistol recovered from the closet.
A factor that is of little or no value in one case may be the turning point in another.
See Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2004, no
pet.).
The State offered evidence linking Appellant to the firearm. Appellant was
asleep in the bedroom where the closet was located when the search began.
Appellant told the police that it was his bedroom. His wallet, driver’s license, and
offender’s registration card were found in the bedroom. Alfred testified that it had
been Appellant’s bedroom for six months. Alfred also testified that he had
purchased the pistol about six months before the search.
The evidence further showed that it was Appellant’s clothes hanging in the
closet. Officer Nieto and Investigator Ackley testified that the pistol was in plain
view on the shelf. Although he stated that the pistol was stuffed between two bags,
Investigator Ackley testified that the pistol was visible, and it was identifiable as a
gun. Investigator Ackley also testified that the shelf was eye level, being about
five feet from the floor.
The circumstantial evidence outlined above, when viewed in combination,
constitutes sufficient evidence connecting Appellant to the firearm, not merely
fortuitous proximity. See Poindexter, 153 S.W.3d at 405–06. Although Appellant
12
cites link factors on which the State presented no evidence, as well as evidence that
weighs in his favor, “[i]t is the logical force of the circumstantial evidence, not the
number of links, that supports a jury’s verdict.” See Evans, 202 S.W.3d at 166.
Viewing the evidence in a light most favorable to the verdict, we conclude
that a rational fact finder could have found beyond a reasonable doubt that
Appellant possessed the firearm; that is, that he knew of the pistol’s existence and
exercised care, custody, control, or management over it.3 See Jackson, 443 U.S. at
3
As part of his sufficiency challenge, Appellant asserts that, even if the evidence
was sufficient to link him to the firearm, he should nonetheless be acquitted
because, under the narrow circumstances of this case, he had a state and a federal
constitutional right to bear arms. See U.S. CONST. amend. II (“A well regulated
Militia, being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.”); TEX. CONST. art. I, § 23 (“Every
citizen shall have the right to keep and bear arms in the lawful defence of himself
or the State; but the Legislature shall have power, by law, to regulate the wearing
of arms, with a view to prevent crime.”). Appellant points out that the evidence
showed that his home was in a high crime area, and it had been the target of
criminal activity in the past. Appellant claims that, under these circumstances, he
had a constitutional right to possess a firearm to defend his home, despite his
status as a felon. Appellant asserts that to hold the evidence sufficient to support
his conviction would violate his state and federal rights to bear arms. Although
woven into his sufficiency-of-the evidence challenge, Appellant’s complaint is an
as-applied constitutional challenge to Penal Code section 46.04. See Adams v.
State, 222 S.W.3d 37, 53 (Tex. App.—Austin 2005, pet. ref’d) (“Under an ‘as
applied’ challenge, the challenging party contends that the statute, although
generally constitutional, operates unconstitutionally as to him or her because of the
challenging party’s particular circumstances . . . .”). Appellant did not raise his
constitutionality challenges in the trial court. Thus, it has not been preserved for
review in this Court. See Flores v. State, 245 S.W.3d 432, 437 n. 14 (Tex. Crim.
App. 2008) (noting the “well-established requirement that appellant must preserve
an ‘as applied’ constitutional challenge by raising it at trial”); see also Karenev v.
State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that facial challenge
to constitutionality of statute is forfeitable right that is waived if defendant fails to
raise it in trial court).
13
319, 99 S. Ct. at 2789; Jones, 338 S.W.3d at 743. We hold that the evidence is
sufficient to support the judgment of conviction for the offense of unlawful
possession of a firearm by a felon.
We overrule Appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, Appellant asserts that he received ineffective assistance
of counsel at trial.
A. Applicable Legal Principles
To prevail on a claim of ineffective assistance of counsel, an appellant must
show the following: (1) counsel’s performance fell below an objective standard of
reasonableness and (2) a reasonable probability exists that, but for counsel’s errors,
the result would have been different. See Strickland v. Washington, 466 U.S. 668,
687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d
98, 101 (Tex. Crim. App. 2005). The first Strickland prong requires an appellant
to overcome the strong presumption that counsel’s performance falls within a wide
range of reasonable professional assistance. See Andrews, 159 S.W.3d at 101. The
second Strickland prong requires an appellant to show that there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different. See id. at 102. A “reasonable probability” is a probability
sufficient to undermine confidence in the outcome. See id.
14
An appellant has the burden to establish both prongs by a preponderance of
the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
A failure to show either (1) deficient performance or (2) sufficient prejudice
defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009); Carballo v. State, 303 S.W.3d 742, 750 (Tex. App.—
Houston [1st Dist.] 2009, pet. ref’d).
B. Analysis
Appellant asserts that defense counsel’s performance at trial was deficient
because counsel did not object to police and prison records contained in State’s
Exhibit 4, business records from the Texas Department of Criminal Justice, and in
State’s Exhibits 27 and 27A, Appellant’s pen packets. The State offered these
documents into evidence to prove Appellant’s prior felony conviction for sexual
assault and to show Appellant’s release date from prison, both relevant to proving
elements of the instant offense of unlawful possession of a firearm by a felon.
Appellant complains that counsel should have objected to the portions of these
exhibits revealing the following: (1) disturbing allegations related to the sexual-
assault count for which Appellant was convicted; (2) details of a second count of
sexual-assault that was abandoned by the State; (3) misconduct by Appellant while
he was in prison; (4) the fact that Appellant is a registered sex offender; (5)
15
notations indicating that Appellant had been arrested seven times for other offenses
and had used illegal drugs.
Normally, counsel is afforded an opportunity to explain his actions before
being condemned as unprofessional or incompetent, such as with a hearing on a
motion for new trial or with the filing of an affidavit. See Bone v. State, 77 S.W.3d
828, 836 (Tex. Crim. App. 2002); Anderson v. State, 193 S.W.3d 34, 39 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d). Here, Appellant did not file a motion
for new trial, and the record is otherwise devoid of any explanation regarding
counsel’s reasons or strategy for not objecting to the complained-of exhibits.
Appellant asserts that there could be “no imaginable trial strategy” to justify the
lack of objection. We disagree.
The allegedly objectionable information was not contained in testimony
heard by the jury; rather, it was contained in documentary evidence, part of which
was admissible to prove elements of the instant offense. It is possible that trial
counsel strategically choose not to object to the complained-of portions to avoid
drawing the jury’s attention to the information. See Bollinger v. State, 224 S.W.3d
768, 781 (Tex. App.—Eastland 2007, pet. ref’d) (observing that counsel may
choose not to object to evidence because “an objection might draw unwanted
attention to a particular issue”); Cooper v. State, 788 S.W.2d 612, 618 (Tex.
App.—Houston [1st Dist.] 1990, pet. ref’d) (overruling ineffective-assistance issue
16
when objection to allegedly inadmissible testimony would have likely focused
jury’s attention on fact that was unfavorable to defendant).
In any event, the record is silent regarding trial counsel’s strategy and his
reasons for not objecting to this evidence. Appellant has failed to overcome the
presumption that trial counsel’s actions were sound trial strategy. See Thompson v.
State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see also Warren v. State, 377
S.W.3d 9, 20 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (stating appellate
court, in absence of evidence of evidence of counsel’s reasons, will assume
strategic motivation for counsel’s failure to object). We conclude Appellant has
not shown counsel’s performance fell below an objective standard of
reasonableness. See State v. Morales, 253 S.W.3d 686, 696–97 (Tex. Crim. App.
2008); Bone, 11 S.W.3d at 834.
Moreover, Appellant has not established the second Strickland prong.
Appellant does not point to any place in the record where the State referenced or
otherwise highlighted the complained-of evidence. The primary issue at the guilt-
innocence stage was whether Appellant possessed the pistol. That was the focus of
the State’s evidence and its argument.
The State did reoffer all of its evidence at the punishment phase of trial;
however, it did not specifically mention the complained-of evidence during the
17
punishment phase. Rather, the State pointed to the evidence showing what had
been discovered during the search of Appellant’s family home.
In its closing statement, the State acknowledged that Appellant should not
receive the maximum ten-year sentence by requesting the trial court to assess a six-
year sentence. The defense requested the minimum two-year sentence, pointing
out that the instant offense involved no victim or property damage. The trial court
assessed Appellant’s punishment to be five years in prison.
We conclude that Appellant has not demonstrated a reasonable probability
that the result of the proceedings would have been different but for counsel’s
failure to object. We hold that appellant has failed to show, by a preponderance of
the evidence, that he received ineffective assistance of counsel at trial. See
Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068.
We overrule Appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
18