Opinion filed July 20, 2017
In The
Eleventh Court of Appeals
__________
No. 11-15-00139-CR
__________
CURTIS WAYNE TEER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR42737
MEMORANDUM OPINION
Curtis Wayne Teer was indicted on two counts of failing to comply with sex
offender registration requirements. Count I alleged that Appellant was required to
register as a sex offender and failed to report his intended change of address,
anticipated move date, and new address in person to the local law enforcement
authority in Midland “seven days before the intended change of address and seven
days after change of address.” Count II alleged that Appellant was required to
register as a sex offender and failed “to report a change in the defendant’s job status
not later than the seventh day after the date of the change, to the local law
enforcement authority of the municipality of Midland.” The jury found Appellant
guilty on both counts. The trial court assessed his punishment at confinement for
four years in the Institutional Division of the Texas Department of Criminal Justice
on each count. Appearing pro se, Appellant asserts fourteen issues on appeal. We
affirm.
Background Facts
Appellant was required to register as a sex offender with the Midland Police
Department due to his prior conviction for indecency with a child by contact.
Detective Raymond Flores was the coordinator of the sex offender program for the
Midland Police Department. He was in charge of completing all registrations for
new sex offenders and maintaining records for current registered sex offenders to
ensure that they complied with registration requirements. Detective Flores testified
that, on July 29, 2013, Appellant registered his current address in Midland at a
residence on La Salle Circle. On August 9, 2013, Appellant registered his place of
employment with the Midland Police Department as Mayden Oilfield Services in
Midland. Those registrations were the last updates that Detective Flores received
from Appellant.
On December 27, 2013, Detective Flores received notice that Appellant was
in federal custody in Arizona. Detective Flores obtained a warrant for Appellant’s
arrest after contacting Mayden Oilfield Services and determining that Appellant was
out of compliance with his sex offender registration requirements because he was no
longer working for the company.
Appellant lived with Paula Neal in Midland and used her address for his last
registration with the Midland Police Department. Neal also worked with Mayden
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Oilfield Services as a contract bookkeeper. Neal testified that Appellant stopped
living with her on September 16th or 17th of 2013 when she changed the locks at
her home without giving him notice. Neal stated that Appellant stopped working at
Mayden Oilfield Services after he stopped living with her because the company went
out of business.
After the State rested, Appellant moved for a directed verdict on both counts
in the indictment. As to Count I, Appellant asserted that the State failed to prove
that he intended to change his residence and that he did not have a chance to notify
the Midland Police Department about the move. As to Count II, Appellant asserted
that the State failed to prove that he stopped working for Mayden Oilfield Services.
The trial court denied both requests.
Appellant testified on his own behalf during the guilt/innocence phase of trial.
He stated that he went to Arizona to look for work after Neal locked him out of her
house. According to Appellant, he did not go to Arizona intending to change his
residence. His job with Mayden Oilfield Services ended on October 23, 2013, and
he left Midland on that date. Appellant testified that he drove to Arizona, arriving
there on October 25, 2013. On October 26, 2013, he started working for Harpole
Construction in Arizona. Appellant testified that he did not have the resources to
return to Texas to report his change of residence. Appellant attempted to register in
Arizona but failed to register correctly. He was subsequently arrested in Arizona for
being unregistered in that state and was later convicted under federal law.
Sufficiency of the Evidence
In his first and second issues, Appellant challenges the sufficiency of the
evidence supporting his convictions for failing to comply with sex offender
registration requirements. We review a challenge to the sufficiency of the evidence,
regardless of whether it is denominated as a legal or factual sufficiency challenge,
3
under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979).
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337
S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson
standard, we review all of the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency
review, we consider all the evidence admitted at trial, including pieces of evidence
that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767
(Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). We defer to the factfinder’s role as the sole judge of the witnesses’ credibility
and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This
standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record
supports conflicting inferences, we presume that the factfinder resolved the conflicts
in favor of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326;
Clayton, 235 S.W.3d at 778.
Appellant’s first issue is directed at his conviction for Count I. Appellant was
charged with violating Article 62.055(a) of the Code of Criminal Procedure for
failing to notify law enforcement of his change in address, both before and after his
move. TEX. CODE CRIM. PROC. ANN. art. 62.055(a) (West Supp. 2016). The statute
reads, in pertinent part:
If a person required to register under this chapter intends to
change address . . . the person shall, not later than the seventh day before
the intended change, report in person to the local law enforcement
authority . . . and provide the authority and the officer with the
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person’s anticipated move date and new address. If a person required
to register changes address, the person shall, not later than . . . the
seventh day after changing the address . . . report in person to the local
law enforcement authority in the municipality or county in which the
person’s new residence is located and provide the authority with proof
of identity and proof of residence.
Id. Article 62.055(a) provides for two alternate “manners and means” of violating
the provision: (1) failing to report a change of address “not later than the seventh day
before the intended change” or (2) failing to report “not later than the . . . seventh
day after changing the address.” Thomas v. State, 444 S.W.3d 4, 9–10 (Tex. Crim.
App. 2014) (citing Young v. State, 341 S.W.3d 417, 427 (Tex. Crim. App. 2011)).
Appellant contends that the evidence was insufficient as to Count I because
the State failed to prove that he intended to change his address. He bases this
contention on the evidence showing that he did not intend to change his address
because he was locked out of his registered residence without notice. Appellant
asserts that he could not have notified the Midland Police Department of the change
of address at least seven days in advance because he did not know in advance that
he would be changing addresses. Appellant asserts that, because Article 62.055
states only that he must report to the local authority where his new residence is
located and because his new residence was not in Midland, he was not required to
notify the Midland Police Department after his change of address. We disagree.
The evidence shows that Appellant was locked out of his registered residence
around September 16 or 17, 2013. Thus, his residence changed on that date. He
remained in Midland for approximately one month because he continued to work at
Mayden Oilfield Services until October 23, 2013, at which time he left Midland for
Arizona. Appellant never reported his new address to the Midland Police
Department during this one-month period. Accordingly, the evidence establishes
5
that Appellant did not notify the Midland Police Department of his change of address
from the registered residence either seven days before or seven days after the change.
“Jurors must unanimously agree only that a sex offender failed to fulfill his
reporting duty; they are not required to agree as to how he failed that duty.” Young,
341 S.W.3d at 427–28. Although Appellant may have been unable to notify the
Midland Police Department of the initial change of address at least seven days in
advance, nothing in the record shows that he was unable to notify them after the
change. The focus of the statute is on giving notification to law enforcement and
not the means by which a sex offender failed to do so. Id. at 427. Because Appellant
failed to provide any notice of his change of address to the Midland Police
Department, we hold that a rational jury could have found beyond a reasonable doubt
that Appellant failed to comply with Article 62.055. See CRIM. PROC. art. 62.055(a).
Appellant additionally asserts that there is a variance between the offense
alleged and the evidence offered at trial. Appellant is essentially asserting that, after
he changed residences to Arizona, he did not have to notify the Midland Police
Department because Article 62.055(a) only required him to notify the local law
enforcement authority in the municipality or county in which the person’s new
residence is located. This contention ignores the fact that Appellant remained in
Midland for a month after being locked out of the registered address. Accordingly,
there is no variance between the offense alleged (failing to notify the Chief of Police
of Midland) and the evidence at trial. We overrule Appellant’s first issue.
In his second issue, Appellant contends that the evidence was insufficient as
to Count II because the State failed to show that his job status at Mayden Oilfield
Services changed. Under Article 62.057, an individual required to register as a sex
offender must report any change in his job status to the local law enforcement
authority designated as his primary registration authority not later than the seventh
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day after the date of the change. CRIM. PROC. art. 62.057(b). Appellant primarily
contends that the evidence offered at trial by the State on his job status was
insufficient because it constituted hearsay through the testimony of Detective Flores
and Neal.
Under the applicable standard of review, we consider all of the evidence
admitted at trial, including evidence that may have been improperly admitted. See
Winfrey, 393 S.W.3d at 767; Clayton, 235 S.W.3d at 778. Thus, the fact that
evidence may have constituted hearsay does not exclude it from our consideration
of the sufficiency of the evidence supporting the convictions. Neal testified that
Mayden Oilfield Services went out of business and that Appellant stopped working
there shortly after he stopped living with her. Additionally, we also consider
Appellant’s own testimony offered at trial. Appellant testified that his job with
Mayden Oilfield Services ended on October 23, 2013, and that he left for Arizona
that day without notifying the Midland Police Department of the change in his job
status. Based on this evidence, we conclude that a rational trier of fact could have
found the elements of the alleged offense in Count II beyond a reasonable doubt.
See Jackson, 443 U.S. at 319; Isassi, 330 S.W.3d at 638. We overrule Appellant’s
second issue.
In his fifth issue, Appellant challenges the factual sufficiency of the evidence
supporting his convictions. Appellant acknowledges that, in Brooks v. State, the
Texas Court of Criminal Appeals abolished factual sufficiency review for elements
of the offense that the State is required to prove beyond a reasonable doubt. 323
S.W.3d at 894–95 (plurality op.); id. at 926 (Cochran, J., concurring); see Howard v.
State, 333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011) (explaining that Brooks
“abolished factual-sufficiency review”); see also Butcher v. State, 454 S.W.3d 13,
20 (Tex. Crim. App. 2015) (same). Under principles of stare decisis, this court is
7
bound to follow the precedent established by the Court of Criminal Appeals. See
Gardner v. State, 478 S.W.3d 142, 147 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d). We must apply the current standard articulated by the Court of Criminal
Appeals for reviewing the sufficiency of the evidence. See id. In our resolution of
Appellant’s first and second issues, we have determined that the evidence supporting
his convictions is sufficient under the standard articulated in Brooks. Accordingly,
we overrule Appellant’s fifth issue.
In his tenth issue, Appellant contends that the trial court erred in denying his
motions for directed verdict. A challenge to the trial court’s denial of a motion for
an instructed verdict or a motion for a directed verdict is treated as a challenge to the
sufficiency of the evidence to support the conviction. Williams v. State, 937 S.W.2d
479, 482 (Tex. Crim. App. 1996); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim.
App. 1993). In our review, we consider all the evidence presented at trial, both from
the State and the defense. Cook, 858 S.W.2d at 470; Bellah v. State, 415 S.W.2d
418, 420 (Tex. Crim. App. 1967). In other words, our review is not limited to the
evidence presented before a defendant’s motion for directed verdict is made at the
end of the State’s case-in-chief. See Bellah, 415 S.W.2d at 420. Thus, the matter
presented in Appellant’s tenth issue is a challenge to sufficiency of the evidence
supporting his convictions. We have already addressed these challenges in our
resolution of Appellant’s first, second, and fifth issues. Accordingly, we overrule
Appellant’s tenth issue.
Improper Jury Argument
In his fourth issue, Appellant contends that the State engaged in improper jury
argument. Appellant challenges statements that occurred during the prosecutor’s
closing argument. However, Appellant did not object to these statements or any
portion of the prosecutor’s closing argument. The State asserts that Appellant has
8
waived any complaint of improper jury argument in the absence of an objection at
trial. We agree.
Generally, to preserve error for an improper jury argument, a defendant should
(1) contemporaneously object to the statement, (2) request an instruction that the
jury disregard the statement if the objection is sustained, and (3) move for a mistrial
if the request for an instruction is granted. Cooks v. State, 844 S.W.2d 697, 727–28
(Tex. Crim. App. 1992). “[A] defendant’s failure to object to a jury argument or a
defendant’s failure to pursue to an adverse ruling his objection to a jury argument
forfeits his right to complain about the argument on appeal.” Cockrell v. State, 933
S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Threadgill v. State, 146 S.W.3d
654, 670 (Tex. Crim. App. 2004) (failure to object to an allegedly “manifestly
improper” jury argument forfeits the right to raise the issue on appeal). Because
Appellant did not object at trial to the argument that he claims was improper, he has
not preserved this issue for appellate review. See TEX. R. APP. P. 33.1(a); Cockrell,
933 S.W.2d at 89; Cooks, 844 S.W.2d at 727–28. Appellant’s fourth issue is
overruled.
References to Prior Conviction that Required Registration
In issues six and seven, Appellant asserts that the trial court erred by allowing
his prior conviction, as alleged in the indictment, to be read to the jury and by
including the prior conviction in the jury charge because he stipulated to the prior
conviction. We disagree.
Generally, the State is required to read the indictment to the jury. CRIM. PROC.
art. 36.01(a)(1) (West 2007). This provision authorizes the reading of the full
indictment except for prior convictions alleged for purposes of enhancement only.
See Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim. App. 2000) (holding that two
prior DWI convictions alleged for jurisdictional purposes in a felony DWI
9
prosecution could be read to the jury as a part of the prosecutor’s reading of the
indictment).
The Amarillo Court of Appeals addressed an analogous situation in Herring v.
State, 147 S.W.3d 425, 428 (Tex. App.—Amarillo 2003), aff’d, 147 S.W.3d 390
(Tex. Crim. App. 2004). In Herring, the defendant was charged with failing to
register as a sex offender. He offered to stipulate to his prior conviction that required
him to register if the State would be precluded from informing the jury of the specific
offense, including reading the entire indictment to the jury. 147 S.W.3d at 427.
Relying upon Tamez, the court of appeals determined that the prior conviction “did
not reference unrelated convictions or extraneous bad acts which were not elements
of the crime.” Id. at 428. Rather, it was “the specific name attached by statute to an
element of the crime with which a defendant is charged.” Id. The court concluded
that the trial court did not err in permitting the prosecutor to read the description of
the defendant’s reportable conviction as it was specified in the indictment. Id.
We agree with the holding in Herring. In order to convict a person for failing
to register as a sex offender, the State must prove that the defendant was required to
register under Chapter 62 of the Code of Criminal Procedure. See Thomas, 444
S.W.3d at 9. Thus, the provision in the indictment alleging Appellant’s prior
conviction for indecency with a child by contact was a required element of the
offenses for which he was charged. Accordingly, the trial court did not err in
overruling Appellant’s objection to the prosecutor’s inclusion of the alleged prior
conviction when reading the indictment even though Appellant stipulated to the
offense. See Herring, 147 S.W.3d at 428. We overrule Appellant’s sixth issue.
Similarly, the trial court’s charge to the jury must set forth the law applicable
to the case. CRIM. PROC. art. 36.14. The trial court must instruct the jury on each
element of the offense or offenses charged. Vasquez v. State, 389 S.W.3d 361, 366
10
(Tex. Crim. App. 2012) (“Because the charge is the instrument by which the jury
convicts, [it] must contain an accurate statement of the law and must set out all the
essential elements of the offense.” (quoting Dinkins v. State, 894 S.W.2d 330, 339
(Tex. Crim. App. 1995)). As noted above, a prior conviction requiring registration
under Chapter 62 was an essential element of the charged offenses. See Thomas,
444 S.W.3d at 9. Accordingly, the trial court did not err in overruling Appellant’s
objection to including references to the prior conviction in the jury charge. See
Martin v. State, 200 S.W.3d 635, 640–41 (Tex. Crim. App. 2006) (“The jury charge
must include some reference to the jurisdictional element of two prior DWI
convictions in a felony DWI trial . . . .”). We overrule Appellant’s seventh issue.
Omitted Language from the Jury Charge
In his eighth issue, Appellant contends that there was “fundamental” error in
the jury charge because the trial court omitted language from the offense in the
abstract portion of the jury charge applicable to Count I. Specifically, Appellant
contends that the abstract portion should have included the words “in the
municipality or county in which the person’s new address is located” after the words
“if the person intentionally or knowingly or recklessly fails to report in person to the
applicable local law enforcement authority.”
We review a claim of jury charge error using the procedure set out in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Barrios v. State,
283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Our first duty in analyzing a jury
charge issue is to decide whether error exists. Id. (citing Ngo v. State, 175 S.W.3d
738, 743 (Tex. Crim. App. 2005)). If error exists, we must determine whether the
error caused sufficient harm to warrant reversal. Ngo, 175 S.W.3d at 743–44. When
the error was not objected to, reversal is proper only if the error caused actual,
11
egregious harm to the defendant. Arrington v. State, 451 S.W.3d 834, 840 (Tex.
Crim. App. 2015); Ngo, 175 S.W.3d at 743–44.
As noted previously, the jury charge must instruct the jury on each element of
the offense or offenses charged. See Vasquez, 389 S.W.3d at 366. Accordingly, the
abstract portion of the charge was not complete because of the omitted language that
Appellant cites. However, Appellant did not object to the omission. Therefore, we
must determine if Appellant suffered actual, egregious harm under Alamaza as result
of the omission.
“An egregious harm determination must be based on a finding of actual rather
than theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
Actual harm is established when the erroneous jury instruction affected the very
basis of the case, deprived the defendant of a valuable right, or vitally affected a
defensive theory. Id. (citing Almanza, 686 S.W.2d at 171). When assessing harm
based on the particular facts of the case, we consider the entire jury charge; the state
of the evidence, including contested issues and the weight of the probative evidence;
the parties’ arguments; and all other relevant information in the record. Arrington,
451 S.W.3d at 840; Cosio, 353 S.W.3d at 777. The Almanza analysis is fact specific
and is done on a “case-by-case basis.” Gelinas v. State, 398 S.W.3d 703, 710 (Tex.
Crim. App. 2013).
We conclude that Appellant did not suffer egregious harm from the omission
of the statutory language from the abstract paragraph. The application paragraph of
the jury charge tracked the indictment and provided that Appellant was guilty of
Count I if the jury found beyond a reasonable doubt that he failed to notify the chief
of police of Midland of his change of residence either before or after his move.
“Because [the application] paragraph specifies the factual circumstances under
which the jury should convict or acquit, it is the ‘heart and soul’ of the jury charge.”
12
Vasquez, 389 S.W.3d at 367. Furthermore, as we noted above, the evidence
indicated that Appellant remained in Midland for a month after Neal locked him out
of her residence but before he moved to Arizona. Accordingly, the evidence
established that Midland continued to be the location where Appellant’s new address
was located during that one-month period. Furthermore, even if Appellant had
moved directly to Arizona after being excluded from Neal’s residence, we disagree
with his reading of the statute that he was excused from notifying the Midland Police
Department of this move afterwards. In this regard, the Midland Police Department
was the local law enforcement authority designated as Appellant’s primary
registration authority. See CRIM. PROC. art. 62.055(a). We overrule Appellant’s
eighth issue.
False Testimony
In his ninth issue, Appellant asserts that the State used “false testimony” that
contributed to his conviction in violation of his due process rights. The testimony
that he cites involves a hypothetical question posed by Appellant’s defense counsel
to Detective Flores asking if a registrant must report a change of employment that is
the result of a move to both the previous registration authority and the new
registration authority in the new location. Detective Flores stated that the registrant
must report the change of employment to both registration authorities and that the
report had to be done “in person” with both authorities. Thus, the testimony that
Appellant contends was false was an interpretation of the requirements of
Article 62.057. As the State points out, Appellant elicited the testimony at issue.
“The law of invited error provides that a party cannot take advantage of an error that
it invited or caused, even if such error is fundamental.” Woodall v. State, 336 S.W.3d
634, 644 (Tex. Crim. App. 2011) (citing Prystash v. State, 3 S.W.3d 522, 531 (Tex.
Crim. App. 1999)). Because Appellant induced the alleged error of which he now
13
complains, he may not raise this issue on appeal. Appellant’s ninth issue is
overruled.
Admission of Sex Offender Registration Records
In his eleventh issue, Appellant contends that the trial court erred in admitting
his sex offender registration records because they had no probative value. The State
contends that Appellant failed to preserve error on this contention because he only
objected to the records on the ground that they were not properly authenticated. We
agree. To preserve a complaint for appellate review, the complaining party must
make a timely objection specifying the grounds that support the objection and obtain
an adverse ruling on the record. TEX. R. APP. P. 33.1; see Guzmon v. State, 697
S.W.2d 404, 413 (Tex. Crim. App. 1985); Cienfuegos v. State, 113 S.W.3d 481, 488
(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). An objection on one basis will
not support a different contention on appeal. Rezac v. State, 782 S.W.2d 869, 870
(Tex. Crim. App. 1990); Edmondson v. State, 399 S.W.3d 607, 610 (Tex. App.—
Eastland 2013, no pet.). Because Appellant’s complaint on appeal does not comport
with his objection at trial, he has not preserved this issue for our review. See Rezac,
782 S.W.2d at 870. Appellant’s eleventh issue is overruled.
Assistance of Counsel
In his twelfth issue, Appellant asserts that he was denied assistance of counsel
during a critical stage in the proceedings. The trial court sentenced Appellant on
June 16, 2015. On June 18, 2015, trial counsel filed a notice of appeal, a motion for
new trial and motion in arrest of judgment, and a motion to withdraw as counsel. On
the same day that these motions were filed by Appellant’s trial counsel, the trial
court denied the motion for new trial and granted the motion to withdraw, appointing
another attorney as appellate counsel for Appellant. On June 29, 2015, Appellant
filed his first motion to proceed pro se. On July 1, 2015, he filed a subsequent motion
14
to proceed pro se. He also filed a pro se amended motion for new trial on July 1,
2015. The trial court entered an order on July 21, 2015, granting Appellant’s request
to represent himself. Accordingly, the record establishes that Appellant was
represented by counsel at all times during the proceedings up until the trial court
signed an order allowing him to represent himself.
Appellant bases his contention that he was not represented by counsel on the
assertion that his trial counsel did not include a claim of ineffective assistance of
counsel in the original motion for new trial and that his new appointed counsel did
not file an amended motion for new trial asserting ineffective assistance of counsel.
There is no question that the time for filing a motion for new trial is a critical stage
of the proceedings and that “a defendant has a constitutional right to counsel during
that period.” Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007). As noted
previously, the record establishes that Appellant was represented by counsel up until
the time that the trial court granted his motion to proceed pro se. Appellant
acknowledges that there is a rebuttable presumption that counsel adequately
represented the defendant during the critical motion-for-new-trial stage. Id. In order
to rebut the presumption, the record must compel the conclusion that the defendant
was abandoned by counsel. See Green v. State, 264 S.W.3d 63, 71 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d); Benson v. State, 224 S.W.3d 485, 498 (Tex.
App.—Houston [1st Dist.] 2007, no pet.).
The record does not demonstrate that Appellant was abandoned by counsel.
Trial counsel filed a motion for new trial and motion to withdraw within a matter of
days after the trial court sentenced Appellant. Other than Appellant’s
unsubstantiated claims in his brief that new counsel did not adequately communicate
with him, the record does not demonstrate that appointed appellate counsel
abandoned him. We overrule Appellant’s twelfth issue.
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In his thirteenth issue, Appellant contends that he was denied effective
assistance of counsel by his trial counsel. In order to establish that trial counsel
rendered ineffective assistance at trial, Appellant must show that counsel’s
representation fell below an objective standard of reasonableness and that there is a
reasonable probability that the result would have been different but for counsel’s
errors. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Andrews v. State,
159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 812–
13 (Tex. Crim. App. 1999). Courts must indulge a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance, and
Appellant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Strickland, 466 U.S. at
689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). “[C]ounsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S.
at 690.
“[A]ny allegation of ineffective assistance must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (quoting
McFarland v. State, 928 S.W.2d 428, 500 (Tex. Crim. App. 1996)). Under normal
circumstances, the record on direct appeal is generally undeveloped and rarely
sufficient to overcome the presumption that trial counsel rendered effective
assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The Court
of Criminal Appeals has said that “trial counsel should ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective.”
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If trial counsel did
not have an opportunity to explain his actions, we will not find deficient performance
16
unless the challenged conduct was “so outrageous that no competent attorney would
have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
We note that, although Appellant alleged ineffective assistance of counsel in his pro
se amended motion for new trial, the trial court did not hold a hearing on the motion.
Consequently, the appellate record does not contain an explanation from trial
counsel concerning his actions.
Appellant alleges five matters for which he contends his trial counsel was
ineffective. First, Appellant contends that his trial counsel failed to call a witness
that could verify that Appellant was still employed when he moved to Arizona. The
decision to call a witness is generally a matter of trial strategy. Joseph v. State, 367
S.W.3d 741, 744 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); see also
Brown v. State, 866 S.W.2d 675, 678 (Tex. App.—Houston [1st Dist.] 1993, pet.
ref’d) (“The decision whether to call a witness is clearly trial strategy and, as such,
is a prerogative of trial counsel.”). A defendant who complains about trial counsel’s
failure to call a witness must show that the witness was available and that the
defendant would have benefited from his testimony. King v. State, 649 S.W.2d 42,
44 (Tex. Crim. App. 1983); Perez v. State, 403 S.W.3d 246, 252 (Tex. App.—
Houston [14th Dist.] 2008), aff’d, 310 S.W.3d 890, 897 (Tex. Crim. App. 2010).
Appellant has not met either requirement. In his brief, Appellant claims that his
former employer, Ernest Mayden, could have testified that Appellant was still
employed whenever he moved to Arizona. However, the record does not support
Appellant’s claim that Mayden could have testified as to his job status. Appellant
has not shown that Mayden was available and that his testimony would have
benefited Appellant.
Second, Appellant asserts that his trial counsel failed to impeach
Detective Flores based on his testimony regarding the requirements of the sex
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offender registration statute. This is the same matter that we have addressed in
connection with Appellant’s ninth issue. This is also a matter that is inherently a
question of trial strategy.
Third, Appellant argues that his trial counsel was not sufficiently prepared for
trial. Appellant claims that his counsel’s failure to impeach Detective Flores is one
example of counsel’s lack of preparation. As we have noted, this is a matter of trial
strategy. Appellant has not demonstrated that his trial counsel’s failure to attempt
impeachment was not sound trial strategy. Sims v. State, 807 S.W.2d 618, 624 (Tex.
App.—Dallas 1991, pet. ref’d). Further, there is no support in the record before us
for Appellant’s claim that his trial counsel was not sufficiently prepared for trial.
Fourth, Appellant contends that his trial counsel failed to make certain closing
arguments and failed to object to language in the jury charge. These are matters of
trial strategy, and we may not second guess trial counsel’s strategy decisions.
Farrar v. State, 701 S.W.2d 32, 36 (Tex. App.—Houston [14th Dist.] 1985, pet.
ref’d) (citing Passmore v. State, 617 S.W.2d 682 (Tex. Crim. App. 1981)).
Fifth, Appellant asserts that his trial counsel was ineffective because he did
not move to suppress Appellant’s sex offender registration records. The decision of
whether or not to file a pretrial motion may be part of trial counsel’s sound trial
strategy. Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—San Antonio 2001, pet.
ref’d).
All of Appellant’s claims of ineffective assistance of counsel are matters that
are inherently matters of trial strategy. The record before us does not demonstrate
that trial counsel’s representation fell below an objective standard of reasonableness
because there has been no inquiry into trial counsel’s trial strategy. See Thompson,
9 S.W.3d at 812–13. We overrule Appellant’s thirteenth issue.
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Motion For New Trial
In his fourteenth issue, Appellant contends that the trial court erred in denying
his motions for new trial without a hearing. A defendant’s right to a hearing on a
motion for new trial is not absolute. Rozell v. State, 176 S.W.3d 228, 230 (Tex.
Crim. App. 2005). Generally, a trial court should hold a hearing if the motion and
attached affidavit raise matters that are not determinable from the record and that
could entitle the accused to relief. Id. When examining a trial court’s denial of a
hearing on a motion for new trial, we review for an abuse of discretion. Smith v.
State, 286 S.W.3d 333, 339–40 (Tex. Crim. App. 2009). In so doing, we reverse
only when the trial judge’s decision was so clearly wrong as to lie outside that zone
within which reasonable persons might disagree. Id.
As noted previously, Appellant’s trial counsel filed a motion for new trial on
June 18, 2015. This motion was denied that same day without a hearing. Appellant
subsequently filed a pro se amended motion for new trial.
Appellant asserts that the trial court’s denial of trial counsel’s motion for new
trial without a hearing was an abuse of discretion. We disagree. Trial counsel’s
motion for new trial did not raise matters not determinable from the record. When
a trial court can determine the merits of the motion from the record, it does not abuse
its discretion in failing to hold a hearing on the motion. Darrington v. State, 623
S.W.2d 414, 416 (Tex. Crim. App. 1981); see Rozell, 176 S.W.3d at 230. With
respect to Appellant’s pro se motion for new trial, he filed it at a time when he was
represented by appointed counsel. A defendant has no right to hybrid representation.
See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). As a
consequence, a trial court is free to disregard any pro se motions presented by a
defendant who is represented by counsel. Id. Appellant remained represented by
counsel until over thirty days after he was sentenced, which was the deadline for
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filing either a motion for new trial or an amended motion for new trial. See TEX. R.
APP. P. 21.4. Therefore, the trial court did not err in not acting on Appellant’s pro se
amended motion for new trial. We overrule Appellant’s fourteenth issue.
Due Process
In his third issue, Appellant contends that his due process rights were violated
because he was convicted based upon a lack of evidence. In presenting this issue,
Appellant is essentially presenting a catchall, sufficiency-of-the-evidence claim that
incorporates his assertions that the State relied upon hearsay and false evidence and
made an improper jury argument. We have already addressed these contentions in
consideration of Appellant’s first, second, fourth, and ninth issues. Under the
applicable standard of review for reviewing the sufficiency of the evidence, we
consider all admitted evidence in conducting our review, including evidence that
may have been improperly admitted. See Winfrey, 393 S.W.3d at 767; Clayton, 235
S.W.3d at 778. Accordingly, we overrule Appellant’s third issue.
This Court’s Ruling
We affirm the judgments of the trial court.
JOHN M. BAILEY
JUSTICE
July 20, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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