Jose Rodriguez v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-16-00280-CR
________________________

JOSE RODRIGUEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2015-408,048; Honorable Jim Bob Darnell, Presiding

July 2, 2018

OPINION
Before CAMPBELL, PIRTLE and PARKER, JJ.

Appellant, Jose Rodriguez, was convicted following a jury trial of assault for

causing bodily injury to Delia Salazar, a person with whom he had a dating relationship

or who was a member of his household.1 During the punishment phase of his trial,

1 See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2017). Prior to the submission of his guilt
or innocence to the jury, Appellant stipulated as true the additional allegation that he had previously been
convicted of assault against a person with whom his relationship to or association with was described by
sections 71.0021(b), 71.003, or 71.005 of the Texas Family Code, making the offense a third degree felony.
See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2017). See also TEX. FAM. CODE ANN. §§
71.0021(b), 71.003, 71.005 (West 2014 & West Supp. 2017).
Appellant plead “true” to two prior felony convictions and he was sentenced by the trial

court to confinement for seventy-five years.2

Appellant raises ten issues on appeal. He asserts the trial court erred by (1)

granting an amendment to the indictment without requiring that the State give him the

applicable statutory notice, (2) admitting unduly prejudicial testimony that Appellant

pushed his mother during the incident, (3) admitting extraneous offenses related to

another woman, (4) permitting the State to introduce evidence of extraneous offenses

without proper notice, and (5) permitting the State to offer evidence without the statutory

acknowledgment required by article 39.14(j) of the Texas Code of Criminal Procedure.

See TEXAS CODE CRIM. PROC. ANN. art. 39.14(j) (West 2018). He also asserts that his

counsel was ineffective (6) during the cross-examinations of two witnesses, (7) by failing

to preserve error regarding jurors challenged for cause, and (8) by failing to investigate

State witnesses or alternative sources for Salazar’s injuries. He further asserts (9) the

trial court erred by failing to instruct the jury on the lesser included offense of

misdemeanor assault and that (10) cumulative error warrants reversal. We affirm.

BACKGROUND

In 2015, an indictment issued alleging that on or before June 7, 2014, Appellant

intentionally, knowingly, or recklessly caused bodily injury to Salazar, a person with whom

Appellant was in a dating relationship or a member of his household (as described by

sections 71.0021(b) and 71.005 of the Texas Family Code) by striking her with his hand

2 See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2017). The two felony enhancements made

the offense punishable by imprisonment for life, or for any term of not more than 99 years or less than 25
years.
2
or with a hard object.3 On June 16, 2016, four days before trial, the State amended its

notice of extraneous offenses to include any and all matters regarding an assault against

another woman, Sylvia Cruz, that occurred on or about May 31, 2016, and an assault/theft

against Cruz that occurred on or about February 7, 2016.

GUILT/INNOCENCE PHASE

The State’s evidence at trial4 established that on June 7, 2014, Appellant and his

girlfriend, Salazar, were living with his mother, Josefa Rodriguez. Salazar had been living

there since April or May. She shared a bedroom with Appellant, slept with him, and did

household chores such as laundry, cleaning, and dishes. They cooked meals together

and she believed they were in a dating relationship.

On June 7, 2014, Appellant became angry when Salazar left the dinner table and

rinsed her dishes without picking up his mother’s plate. Appellant punched her in the

face, flipping her chair backwards. She fell and hit her head against the wall. Josefa

attempted to intervene, but Appellant hit Salazar in the face again. Salazar got up from

the floor and started running but Appellant grabbed her by the hair, pulled her down, and

resumed his attack. She was crying and dizzy from being hit. When his mother came

between them to stop the assault, Appellant again pushed her away. His mother then

ran to a neighbor’s house as Appellant continued beating Salazar. Appellant

3 The indictment also alleged Appellant had been finally convicted of two prior felonies for
aggravated assault on June 22, 1990, and aggravated assault with a deadly weapon on July 14, 1999.
Prior to trial, the State amended the indictment to allege that the conviction for aggravated assault with a
deadly weapon occurred July 1, 1999.

4 Voir dire was held June 20, 2016, with the guilt/innocence phase beginning and closing on June

21. The punishment phase began June 21 and continued through June 22.

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subsequently told her to take a shower. When she came out of the shower, she was

dizzy and felt weak. Appellant told her to sit down on the sofa and to be calm.

In the meantime, Josefa arrived at her neighbor’s house upset and asked her to

call the police. Officer Glen Osborn responded. In his report, he described Appellant as

arrogant while Salazar was cowering on the sofa. Officer Cecil Garcia took a statement

from Josefa who told him that her son was in her house assaulting his girlfriend. After

meeting Appellant, the officers became concerned for their own safety because Appellant

was standoffish and aggressive.

Officer Garcia photographed Salazar’s injuries and described her as having a black

eye with swelling around her left eye and cheekbone, multiple bruising to areas of her

face, and a lump on the top of her forehead above her right eye about the size of a quarter.

Salazar was taken to a hospital and Appellant was placed under arrest. Salazar feared

that when Appellant was released from custody, he would come back and hurt her. A

physician assistant at the hospital testified that in addition to the injuries described by

Officer Garcia, Salazar had a broken nose.

Based on the evidence presented, including Appellant’s stipulation regarding his

prior conviction for assault against a person with whom his relationship to or association

with was described by sections 71.0021(b), 71.003, or 71.005 of the Texas Family Code,

the jury returned a verdict of guilty. The issue of punishment was, however, decided by

the court.

PUNISHMENT PHASE

During the punishment phase of trial, the State’s evidence focused on testimony

from Salazar and two past victims of Appellant’s abuse and assaultive behavior. In

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addition to the facial injuries Salazar suffered in the assault in question, she also suffered

wounds to her legs from a beating by Appellant with a belt buckle only a few days before.

Sylvia Cruz additionally testified that she had previously dated Appellant off and on for

ten years and that he had beaten her about the face and head and the back of her thighs

and legs with a shoe. Finally, Mary Helen Rodriguez, Appellant’s former wife, described

a beating she suffered at Appellant’s hands in the late 1990s that resulted in his

imprisonment.

Specifically, Cruz described three beatings in early to mid-2016 where (1)

Appellant threw her around an apartment, (2) beat her in a car until she had bruises on

her back and front, and (3) repeatedly hit her face and back in a car causing bodily

bruising and two black eyes and requiring her to miss three days of work.5 Regarding

this third beating, Officer Jared Dalton of the Lubbock Police Department described

finding Cruz in the middle of the road with cuts and bruising to her face and a large goose

egg above her left eye. The trial court also admitted Officer Dalton’s photographs of

Cruz’s injuries from this third beating.

Appellant’s evidence during the punishment phase focused on mitigation. The

defense presented four family members—Appellant’s mother, sister, and two brothers.

Their testimony centered primarily on Appellant’s early childhood and home life. During

this time, his father abused and assaulted Josefa. Alcohol was a problem in the home

5 Evidence concerning Cruz’s testimony was turned over by the State to Appellant on the evening
of Friday, June 17, 2016, shortly after the State learned of its existence. At a pretrial hearing on June 20,
Appellant objected to admission of the evidence in the guilt/innocence and punishment phases because
the State violated the trial court’s pretrial discovery order and he would not have the opportunity to prepare
a defense against this newly disclosed evidence. The trial court denied the admission of this testimony as
to the guilt/innocence phase but admitted the evidence for use in the punishment phase.

5
and his father would become violent after drinking heavily. The violence and drinking

occurred in the presence of Appellant and his family members.

ISSUE ONE—AMENDMENT OF ENHANCEMENT ALLEGATION

On June 13, 2016, the State filed its motion to amend the second enhancement

paragraph in the indictment by changing the date of conviction of the offense of

aggravated assault with a deadly weapon from “July 14, 1999” to “July 1, 1999.” The

State’s motion was heard on June 14. During the hearing, Appellant requested a ten-day

continuance pursuant to article 28.10(a). See TEX. CODE CRIM. PROC. ANN. art. 28.10(a)

(West 2006). Aside from requesting the ten-day period, Appellant made no showing of

necessity or prejudice. The trial court denied Appellant’s request and orally granted the

State’s motion to amend.6 The trial court issued a written order on June 21.

Appellant asserts the trial court erred by granting the State’s motion to amend the

indictment the day before guilt/innocence proceeding commenced and denying his motion

for a continuance to allow him ten days to respond to the amendment. See art. 28.10(a).7

We disagree.

“The granting or denying of a motion for continuance is within the sound discretion

of the trial court.” Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006).

Accordingly, we review a trial court’s ruling on a motion for continuance based upon an

abuse of discretion standard. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007),

cert. denied, 553 U.S. 1080, 128 S. Ct. 2872, 171 L. Ed. 2d 813 (2008). A trial court does

6 Appellant subsequently plead “true” to the enhancement as amended.

7 Article 28.10(a) states that although an indictment may be amended at any time before trial on
the merits commences, a defendant shall, upon request, have a period of at least ten days to respond to
the amended indictment or information. Hereinafter, this article will be referred to simply as “article
28.10(a).”

6
not abuse its discretion so long as its decision is within the zone of reasonable

disagreement and is correct under any theory of law applicable to the case. Winegarner

v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Further, “[a] bare assertion that

counsel [does] not have adequate time to interview the State’s potential witness does not

alone establish prejudice.” Gallo, 239 S.W.3d at 764 (citing Heiselbetz v. State, 906

S.W.2d 500, 512 (Tex. Crim. App. 1995)).

Here, the trial court committed no error by denying Appellant’s request for a ten-

day continuance pursuant to article 28.10(a). While prior convictions used for

enhancement purposes must be plead in some form, they need not be plead in the

indictment. Johnson v. State, 214 S.W.3d 157, 158 (Tex. App.—Amarillo 2007, no pet.)

(citing Villescas v. State, 189 S.W.3d 290, 292-93 (Tex. Crim. App. 2006)). “Since

enhancement paragraphs need not be pled in the indictment, it logically follows that they

are unessential to the validity of the indictment and comparable to surplusage for

purposes of article 28.10.” Id. As a result, modifying the date in the enhancement

paragraph here did not implicate article 28.10, and therefore, the trial court did not abuse

its discretion by denying Appellant’s motion for a continuance. Id. at 158-59. See also

Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010). Accordingly, Appellant’s

first issue is overruled.

ISSUE TWO—EXTRANEOUS OFFENSE PRESENTED DURING GUILT/INNOCENCE PHASE

By his second issue, Appellant asserts the trial court erred by allowing Salazar to

testify, during the State’s guilt/innocence case-in-chief, that he also assaulted his mother

while she was attempting to stop him from assaulting Salazar. We disagree.

Generally, to prevent an accused from being prosecuted for some collateral crime

or misconduct, the State may not introduce evidence of bad acts similar to the offense
7
charged. Roberts v. State, 29 S.W.3d 596, 600-01 (Tex. App.—Houston [1st Dist.] 2000,

pet. ref’d). Texas Rule of Evidence 404(b) provides that evidence of “other crimes,

wrongs, or acts” is not admissible to prove a defendant’s character to show action in

conformity therewith. TEX. R. EVID. 404(b).8 Nevertheless, such evidence may “be

admissible for other purposes, such as motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Id. In addition, a “party may

introduce evidence of other crimes, wrongs, or acts if such evidence logically serves to

make more or less probable an elemental fact, an evidentiary fact that inferentially leads

to an elemental fact, or defensive evidence that undermines an elemental fact.” Martinez

v. State, 304 S.W.3d 642, 657 (Tex. App.—Amarillo 2010, pet. ref’d) (quoting Martin v.

State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005)).

Evidence of another crime, wrong, or act may also be admissible as same-

transaction contextual evidence where “several crimes are intermixed, or blended with

one another, or connected so that they form an indivisible criminal transaction, and full

proof . . . of any one of [the crimes] cannot be given without showing the others.” Wyatt

v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting Rogers v. State, 853 S.W.2d

29, 33 (Tex. Crim. App. 1993)). As such, a jury is entitled to know all relevant surrounding

facts and circumstances of the charged offense. Id.

Whether extraneous offense evidence has relevance apart from character

conformity, as required by Rule 404(b), is a question for the trial court. Moses v. State,

105 S.W.3d 622, 627 (Tex. Crim. App. 2003). So, too, is a ruling on the balance between

probative value and the countervailing factors set out in Rule 403 of the Texas Rules of

Evidence, although that balance is always slanted toward admission of otherwise relevant

8 Hereinafter, we will cite Rule 404(b) of the Texas Rules of Evidence simply as “Rule 404(b).”
8
evidence. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). See TEX.

R. EVID. 403. Thus, we review a trial court’s decision to admit extraneous offense

evidence under an abuse-of-discretion standard. Prible v. State, 175 S.W.3d 724, 731

(Tex. Crim. App. 2005). A trial court does not abuse its discretion so long as its decision

is within the zone of reasonable disagreement and is correct under any theory of law

applicable to the case. Winegarner, 235 S.W.3d at 790.

Here, the State was required to prove that on or before June 7, 2014, Appellant

intentionally, knowingly, or recklessly caused bodily injury to Salazar, a person with whom

Appellant was in a dating relationship or a member of his household, as described by

sections 71.0021(b) and 71.005 of the Texas Family Code, by striking her with his hand

or with a hard object. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2017).

As such, the State was tasked with proving Appellant caused bodily harm to Salazar and

that her relationship to him was one described by the relevant sections of the Texas

Family Code. Id.

In that regard, the extraneous offense evidence was relevant to establish

Appellant’s intent to assault Salazar; that is, he interrupted himself long enough to push

Josefa out of the way and then resumed beating Salazar. See Martinez, 304 S.W.3d at

658. Moreover, the testimony that Appellant pushed his mother away also has relevance

as same-transaction contextual evidence. The evidence at trial established that the

extraneous offense, the pushing of his mother, was part of a continuous violent episode

that ultimately resulted in Josefa running to a neighbor’s house for assistance. See Devoe

v. State, 354 S.W.3d 457, 469-70 (Tex. Crim. App. 2011). Further, any prejudicial effect

of admitting the extraneous offense evidence was outweighed by its probative value

regarding intent and contextual evidence. Id. Given the facts of this case, we cannot say

9
that evidence of Appellant’s pushing Josefa during the episode was so prejudicial that the

trial court abused its discretion by admitting her testimony. Accordingly, Appellant’s

second issue is overruled.

ISSUE THREE—EXTRANEOUS OFFENSES PRESENTED DURING PUNISHMENT PHASE

Appellant next asserts the trial court erred by permitting the State to admit

testimonial evidence, during the punishment phase of his trial, of three extraneous

offenses that occurred in 2016. During that phase, Cruz described three beatings she

received from Appellant in early to mid-2016 where (1) Appellant threw her around an

apartment, (2) beat her in a car until she had bruises on her back and front, and (3)

repeatedly beat her in the face and back in a car causing bodily bruising and two black

eyes. Regarding this third beating, Officer Dalton responded to a call and described

finding Cruz in the middle of the road with cuts and bruising to her face and a large goose

egg above her left eye. The trial court admitted the officer’s photographs of Cruz’s injuries

from the third beating. Appellant asserts that because evidence of these extraneous

offenses was unduly prejudicial, the trial court abused its discretion by admitting the

evidence. We disagree.

At the pretrial hearing on June 20, Appellant objected to the admission of this

evidence because the State’s production was untimely under the trial court’s pretrial

discovery order. While the trial court sustained the objection as to the introduction of that

evidence during the guilt/innocence phase of the trial, it admitted the evidence for use in

the punishment phase only. During that phase, Appellant again objected to the

introduction of Officer Dalton’s photographs and Cruz’s testimony because the defense

did not receive timely notice under the pretrial order. No objection was made, however,

to Officer Dalton’s testimony. Prior to Cruz’s testifying, Appellant asked for and received

10
a running Bill of Exception to her testimony. Appellant’s counsel did not cross-examine

Cruz and did not assert any defense against the evidence.

On appeal, Appellant now asserts that the trial court abused its discretion by

admitting the extraneous offense evidence under Rule 404(b) because the photographs

and Cruz’s testimony were unduly prejudicial. In other words, he contends its prejudicial

nature substantially outweighed it probative value. As such, Appellant’s present assertion

does not comport with the objection made at trial; see Clark v. State, 365 S.W.3d 333,

339-40 (Tex. Crim. App. 2012), and there is nothing in the record to indicate that either

the judge or prosecutor understood Appellant’s evidentiary objections to be a complaint

concerning Rule 404(b), rather than an alleged violation of the trial court’s discovery

order. Id. See TEX. R. APP. P. 33.1(a)(1)(A) (an objection to the admissibility of evidence

must be made “with sufficient specificity to make the court aware of the complaint, unless

the specific grounds were apparent from the context”).9 As a result, this ground for appeal

was waived by Appellant. See Clark, 365 S.W.3d at 339-40.

Even if a Rule 404(b) objection had been preserved, we cannot say the trial court

abused its discretion in finding the evidence relevant and admissible for sentencing

purposes. “The sentencing process consists of weighing mitigating and aggravating

factors, and making adjustments in the severity of the sentence consistent with this

calculus.” Tucker v. State, 456 S.W.3d 194, 210 (Tex. App.—San Antonio 2014, pet.

ref’d). Article 37.07, section 3(a)(1) allows for admission of any evidence the trial court

“deems relevant to sentencing.” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West

9 An objection to the trial court’s pretrial order was not an objection to the admissibility of the
evidence but merely the procedure governing its disclosure. Further, Appellant’s objection was addressed
solely to the timeliness of the disclosure and there was no showing of prejudice beyond Appellant’s
assertion that he needed more time to prepare a defense. The order stated in pertinent part, that “[t]en
days before trial, the State of Texas shall supplement all discovery and any reports regarding all
unadjudicated 404(b) information to counsel for the defendant.”
11
Supp. 2017). “The Legislature has expressly provided that ‘relevant’ punishment

evidence includes, but is not limited to, both character evidence in the form of opinion

testimony as well as extraneous-offense evidence.” Sims v. State, 273 S.W.3d 291, 295

(Tex. Crim. App. 2008). “When the jury assesses punishment, it must be able to tailor

the sentence to the particular defendant, and relevance is simply ‘a question of what is

helpful to the jury in determining the appropriate sentence for a particular defendant in a

particular case.’” Id. (quoting Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App.

2006).

Moreover, we cannot conclude on this record that Appellant was harmed by the

admission of this evidence. A violation of evidentiary rules that results in the erroneous

admission of evidence is non-constitutional error. See King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997). Non-constitutional error that does not affect a defendant’s

substantial rights must be disregarded. See TEX. R. APP. R. 44.2(b). Substantial rights

are not affected by the erroneous admission of evidence if the appellate court, after

examining the record as a whole, has fair assurance that the error did not influence the

jury or had but a slight effect. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002). “In assessing the likelihood that the jury’s decision was adversely affected by the

error, the appellate court should consider everything in the record, including any

testimony or physical evidence admitted for the jury’s consideration, the nature of the

evidence supporting the verdict, the character of the alleged error and how it might be

considered in connection with other evidence in the case.” Id. at 355. Given the severity

of Appellant’s offense proven at trial and the multiple witnesses testifying to Appellant’s

past behavior at the punishment hearing, along with Officer Dalton’s unobjected-to

testimony concerning Cruz’s injuries, we find little about her testimony that would lead us

to conclude Appellant’s sentence was enhanced based upon that testimony alone. The
12
evidence, even without Cruz’s testimony, was more than sufficient to justify the sentence.

Accordingly, on this record, we cannot conclude the trial court abused its discretion in

admitting Cruz’s testimony and the photographs of her injuries. Appellant’s third issue is

overruled.

ISSUE FOUR—ARTICLE 37.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE

By his fourth issue, Appellant asserts that the State’s intent to introduce Cruz’s

testimony violated article 37.07, section 3(g) of the Texas Code of Criminal Procedure.

See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (West Supp. 2017).10 As discussed

in issue three, Appellant objected to the State’s untimely request under the trial court’s

discovery order—not Rule 404(b). Again, because Appellant’s assertion regarding article

37.07, section 3(g) does not comport with the objection made at trial; see Clark, 365

S.W.3d 339-40, and there is nothing in the record to indicate that either the judge or

prosecutor understood Appellant’s evidentiary objections to be complaints concerning an

alleged article 37.07, section 3(g) violation. Accordingly, this basis for appeal was also

waived. Id.

Moreover, in our discussion of Appellant’s third issue, we found that given the

severity of Appellant’s offense proven at trial and the multiple witnesses testifying to

10 Article 37.07, section 3(g) states as follows:

On timely request of the defendant, notice of intent to introduce evidence under this article
shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If
the attorney representing the state intends to introduce an extraneous crime or bad act that
has not resulted in a final conviction in a court of record or a probated or suspended
sentence, notice of that intent is reasonable only if the notice includes the date on which
and the county in which the alleged crime or bad act occurred and the name of the alleged
victim of the crime or bad act. The requirement under this subsection that the attorney
representing the state give notice applies only if the defendant makes a timely request to
the attorney representing the state for the notice.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (West Supp. 2017). Hereinafter, this article will be simply
cited as “article 37.07, § 3(g).”

13
Appellant’s past behavior at the punishment hearing along with Officer Dalton’s testimony,

an error, if any, would not affect Appellant’s substantial rights.11 We have found that there

was nothing in Cruz’s testimony indicating the degree to which Appellant’s sentence was

enhanced based upon her testimony alone and that even without her testimony, the

evidence was more than sufficient to justify the sentence. Accordingly, on this record, we

cannot conclude the trial court committed reversible error by admitting Cruz’s testimony.

Appellant’s fourth issue is overruled.

ISSUE FIVE—ARTICLE 39.14(j) OF THE TEXAS CODE OF CRIMINAL PROCEDURE

Appellant’s fifth issue asserts the record affirmatively demonstrates that the State

did not abide by article 39.14(j) of the Texas Code of Criminal Procedure12 before trial

because the Discovery Compliance Acknowledgement filed by the State following its

disclosure of Cruz’s testimony and Officer Dalton’s photographs was signed by the State,

but not by Appellant—thereby violating the requirement that each party shall acknowledge

documents provided to the defense. As a result, Appellant asserts the trial court erred by

admitting Officer Dalton’s photographs and Cruz’s testimony during the punishment

phase. Again, we disagree.

Appellant correctly avers that his signature does not appear on the Discovery

Compliance Acknowledgement filed by the State after it disclosed its intention to use

11 For a discussion of the applicable legal standards regarding a “harm” analysis, refer to the

discussion under issue three.

12 Article 39.14(j) states as follows:

Before accepting a plea of guilty or nolo contendere, or before trial, each party
shall acknowledge in writing or on the record in open court the disclosure, receipt,
and list of all documents, items, and information provided to the defendant under
this article.

TEX. CODE CRIM. PROC. ANN. art. 39.14(j) (West 2018) (emphasis added).
Hereinafter, this article will be cited simply as “article 39.4(j).”
14
Cruz’s testimony and Officer Dalton’s photographs during the punishment phase. What

Appellant fails to acknowledge, however, is that disclosure and receipt of this information

was discussed “on the record in open court” during the pretrial hearing held on June 20.

Accordingly, Appellant has failed to demonstrate a failure to comply with article 39.14(j).

Furthermore, as discussed in prior issues, Appellant only objected to the State’s

untimely request to submit Cruz’s testimony and Officer Dalton’s photographs during the

punishment phase based upon an alleged violation of the pretrial discovery order.

Because the statutory rights created by article 39.14(j) are neither systemic or

fundamental, they are subject to waiver by failing to properly object to their alleged

violation. Glover v. State, 496 S.W.3d 812, 816 (Tex. App.—Houston [14th Dist.] 2016,

pet. ref’d). Here, Appellant did not make an objection based on article 39.14(j) prior to

admission of the photographs and testimony, and accordingly, he waived any error based

on the mandatory language contained in that statute. See Clark, 365 S.W.3d at 339-40.

As such, Appellant’s fifth issue is overruled.

ISSUES SIX, SEVEN, AND EIGHT—INEFFECTIVE ASSISTANCE OF COUNSEL

In three separate issues, Appellant asserts his counsel was ineffective because he

failed to adequately prepare for and cross-examine Officer Dalton and Cruz during the

punishment phase (issue six), preserve error as to the jurors he challenged for cause

during voir dire (issue seven), and investigate state witnesses or alternative sources for

Salazar’s injuries (issue eight). While issues six and seven were not the subject of

Appellant’s motion for a new trial or the hearing that followed its filing, whereas, issue

eight was. Accordingly, the standards of review differ for issues six and seven (claims

first asserted on direct appeal under the Strickland standard)13 and issue eight (claims

13 See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
15
asserted via a motion for new trial under an abuse of discretion standard)14 as discussed

below. Thus, we will address issues six and seven separately from issue eight after a

summation of the law regarding ineffective assistance of counsel.

STANDARD OF REVIEW

The Sixth Amendment guarantees the right to reasonably effective assistance of

counsel in state criminal prosecutions. McMann v. Richardson, 397 U.S. 759, 771 n.14,

90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). We examine ineffective assistance of counsel

claims by the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by Texas in Hernandez v. State, 726

S.W.2d 53, 56-57 (Tex. Crim. App. 1986). This standard applies to both the

guilt/innocence and punishment phases of criminal proceedings. Hernandez v. State,

988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

Under this standard, Appellant has the burden to show by a preponderance of

evidence that (1) trial counsel’s performance was deficient, i.e., fell below the prevailing

professional norms and (2) the deficiency prejudiced the defendant, i.e., but for the

deficiency, there is a reasonable probability that the result of the proceeding would have

been different. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A failure to make a

showing under either prong defeats a claim for ineffective assistance. Lampkin v. State,

470 S.W.3d 876, 897 (Tex. App.—Texarkana 2015, pet. ref’d) (citing Rylander v. State,

101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003)).

14 See Shamim v. State, 443 S.W.3d 316, 321 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)

(citing Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004)).
16
 To overcome the strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance and presumption that the challenged action

might be considered valid trial strategy; Strickland, 466 U.S. at 689, “any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 814. Further, judicial

review must be highly deferential to trial counsel and avoid the deleterious effects of

hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Application of

the Strickland test “of necessity requires a case-by-case examination of the evidence.”

Williams v. Taylor, 529 U.S. 362, 382, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).

In the usual case in which an ineffective assistance claim is made, “the record on

direct appeal will not be sufficient to show that counsel’s representation was so deficient

and so lacking in tactical or strategic decision-making as to overcome the presumption

that counsel’s conduct was reasonable and professional.” Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002). This is generally the case because a silent record provides

no explanation for counsel’s actions and therefore will not ordinarily overcome the strong

presumption of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506 (Tex.

Crim. App. 2003).

ISSUES SIX AND SEVEN

Regarding Appellant’s contentions that counsel failed to adequately prepare for

and cross-examine Officer Dalton and Cruz and preserve error as to the jurors he

challenged for cause during voir dire, these issues demonstrate “the inadequacies

inherent in evaluating ineffective assistance claims on direct appeal.” Patterson v. State,

46 S.W.3d 294, 306 (Tex. App.—Fort Worth 2001, pet. ref’d). Like Patterson, Appellant’s

motion for a new trial did not claim ineffective assistance regarding these issues, and at

17
the hearing, there was no evidence whether Appellant’s complaints of ineffective

assistance involved actions that may or may not be grounded in trial strategy. As such,

the record does not reflect counsel’s reasons for doing or failing to do the things of which

Appellant complains. Furthermore, to the extent these purported omissions were part of

counsel’s mitigation strategy, we cannot say that counsel’s conduct was “so outrageous

that no competent attorney” would have chosen not to cross-examine Officer Dalton or

Cruz during the punishment phase or preserve error as to the jurors he challenged for

cause during voir dire. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005). See also Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991)

(recognizing as a valid trial strategy counsel’s decision to not move to quash a jury panel

and not object to certain testimony where action would have been futile).

In addition, we note that Appellant also asserts that he was prejudiced because

his counsel did not cross-examine Officer Dalton and Cruz in the punishment phase. As

discussed in issues three and four, we found that the admission of Cruz’s testimony and

Officer Dalton’s photographs during the punishment phase, even if error was assumed,

did not affect Appellant’s substantial rights.15 Accordingly, Appellant’s sixth and seventh

issues are overruled.

ISSUE EIGHT

Appellant further contends counsel was ineffective in his investigation, or lack

thereof, of (1) Salazar for impeachment purposes, (2) Appellant’s alternative theories of

how Salazar was injured, and (3) Officer Osborn for impeachment purposes. We

disagree.

15 For a discussion of the applicable legal standards regarding a “harm” analysis, refer to the

discussion under issue three.

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 HEARING ON MOTION FOR NEW TRIAL

At the hearing on Appellant’s motion for new trial, Appellant testified that Mike

Brown, his attorney, failed to investigate possible, alternative sources for Salazar’s

injuries. Appellant contended that scrapes on Salazar’s legs may have been caused by

a second boyfriend and the remainder of her injuries were caused by a fall from her

bicycle, i.e., she hit her face and head on the concrete. He also testified that Brown

should have investigated Salazar and Officer Osborn to develop impeaching evidence

and aggressively cross-examined them.

Brown testified that Appellant’s case was a difficult one. They had no favorable

fact witnesses and no factual defense to the indictment’s allegations or enhancements.

The sole witness that could shed a promising light on the defense’s view of what

happened during the incident was Appellant and he adamantly maintained he would not

take the stand. Approximately six months prior to trial, Brown held a meeting at the

Lubbock Private Defender’s Office with a panel of attorneys and a mitigation specialist.

They reviewed every aspect of Appellant’s case and the consensus at the meeting was

that it should be tried as a mitigation of sentence case. The case was going to trial

because Appellant maintained he was innocent throughout the proceedings and turned

down the State’s offer of a plea bargain.

Brown testified that after the meeting, he retained a mitigation specialist and

focused on witnesses that would help with the mitigation strategy by either cross-

examination in the guilt/innocence phase and direct examination in the punishment

phase. He cross-examined two witnesses at trial. In examining Salazar, he was careful

to avoid putting her character in issue because he thought it would inflame or, at the least,

have an unfavorable impact on the judge and jury having heard Salazar’s testimony and

19
viewed photographs of her severe injuries. He also cross-examined Officer Garcia who

took a statement from Appellant’s mother. He did not cross-examine Appellant’s mother

because she had witnessed the assault and Appellant had pushed her during the incident.

He decided not to cross-examine Officer Osborn, the first officer to arrive on the scene of

the incident, because he had had prior dealings with Appellant and due to his experience

and the tenor of his report, he did not believe he would gain any ground by attempting to

discredit Officer Osborn. During the punishment phase, he put on four of Appellant’s

family members that testified Appellant’s father engaged in substance abuse and physical

abuse of Appellant’s mother in his presence at an early age.

STANDARD OF REVIEW

Given that this ineffective counsel issue was raised in Appellant’s motion for new

trial and evidence was heard at the hearing, we analyze this issue on appeal as a

challenge to the trial court’s denial of his motion for a new trial and review it under an

abuse of discretion standard. Shamim v. State, 443 S.W.3d at 321. Thus, we reverse

only if the trial court’s decision to deny the motion for a new trial was arbitrary or

unreasonable viewing the evidence in the light most favorable to the trial court’s ruling.

Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012).

A trial court abuses its discretion in denying a motion for new trial only when no

reasonable view of the record could support the trial court’s ruling. Shamim, 443 S.W.3d

at 321 (citing Riley, 378 S.W.3d at 457-58). Further, when as here, the trial court makes

no findings of fact regarding the denial of the motion for a new trial, we ascribe to the

court “implicit factual findings that support that trial judge’s ultimate ruling on that motion

when such implicit factual findings are both reasonable and supported by the record.” Id.

(citing Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005)).

20
 ANALYSIS

After a meeting with a panel of attorneys and a mitigation specialist at the Lubbock

Private Defender’s Office, counsel agreed with the consensus at the meeting that the

case should be tried as a mitigation sentence case. He believed that the factual evidence

of Appellant’s guilt was quite substantial, and he had no defense to the offense itself. In

addition, Salazar’s injuries were quite extensive and there were vivid photographs

documenting the severe nature of those injuries. Counsel testified at the hearing that he

did not develop evidence with which to impeach Salazar’s credibility, if it existed, because

he believed it would inflame the jury and turn its opinion against his client. Under these

facts, we cannot say that the trial court’s implicit findings that counsel’s strategy was

reasonable was arbitrary or unreasonable. In addition, Appellant did not establish in the

trial court or on appeal that such an interview would have yielded favorable information

for Appellant. See Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.]

2009, pet. denied) (finding that a claim for ineffective assistance based on trial counsel’s

failure to interview a witness cannot succeed absent a showing of what the interview

would have revealed that reasonably could have changed the result of the case).

Regarding Appellant’s alternative theories of how Salazar was injured, Appellant

provided counsel with no information capable of being investigated regarding Salazar’s

purported second boyfriend who might have caused her injuries. Moreover, given the

State’s evidence at trial, the nature of Salazar’s injuries, and their extent depicted in the

photographs, he believed that to advance theories that her injuries were caused by a

second boyfriend or a bicycle accident would have resulted in inflaming the judge and

jury, resulting in the loss of all credibility with the fact finders. Again, we cannot say that

the trial court abused its discretion by implicitly finding counsel’s trial strategy was not

unreasonable.
21
 As to a cross-examination of Officer Osborn, Brown testified that he did not attempt

to impeach his credibility because he was an experienced witness who, judging from his

report, had a jaundiced view of Appellant, i.e., describing Appellant as a “boisterous bully”

in his report. In addition, Appellant had prior contacts with Officer Osborn and counsel

did not believe he would gain any advantage by antagonizing him. Trial counsel may

make strategic decisions as to whether and how to cross-examine witnesses. See Coble

v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973) (opining that “[o]ften, the decision

to not cross-examine a witness is the result of wisdom acquired by experience in the

combat of trial”); Navarro v. State, 154 S.W.3d 795, 799 (Tex. App.—Houston [14th Dist.]

2004, pet. ref’d) (acknowledging circumstances in which it would be “entirely reasonable

or forseeable that a defense attorney would limit his cross-examination out of fear of

alienating a jury or coming across as too aggressive”). Under these circumstances, we

cannot say that the trial court abused its discretion by implicitly finding counsel’s decision

not to cross-examine or impeach Officer Osborn was not unreasonable. Accordingly, we

overrule Appellant’s eighth issue.

ISSUE NINE—LESSER INCLUDED OFFENSE

By his ninth issue, Appellant asserts the trial court erred when it denied his request

that the jury be allowed to consider whether he committed the lesser included offense of

misdemeanor assault. During the charge conference, Appellant argued that evidence

supported instructing the jury on the offense of misdemeanor assault. In support, he

22
pointed to testimony by Josefa that he and Salazar were not living in the same household

regularly, and that they were not, therefore, in a dating relationship.16 We disagree.

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required
to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious
injury or risk of injury to the same person, property, or public interest suffices
to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable
mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise
included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006).17

We use a two-pronged test to determine whether a defendant is entitled to an

instruction on a lesser included offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex.

Crim. App. 2012) (citing Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007));

Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 2011). The first step is a question

of law, in which the court compares the elements alleged in the indictment with the

elements of the lesser offense to determine if the proof necessary to establish the charged

offense also includes the lesser offense. Cavazos, 382 S.W.3d at 382. The second step

of the lesser included offense analysis is to determine if there is some evidence from

16The indictment alleges that Salazar had both a dating relationship with Appellant and was a
member of his household. Per the jury instructions and the Texas Family Code, a “‘[h]ousehold’ means a
unit composed of persons living together in the same dwelling, without regard to whether they are related
to one another,” and a “‘[d]ating relationship’ means a relationship between individuals who have or have
had a continuing relationship of a romantic or intimate nature.” See TEX. FAM. CODE ANN. §§ 71.005,
71.0021(b) (West 2014).
17 Hereinafter, this article will be simply cited as “article 37.09.”
23
which a rational jury could acquit the defendant of the greater offense while convicting

him of the lesser included offense. Sweed, 351 S.W.3d at 67-68. Because this fact

question depends on the evidence presented at trial, we review the entire record in

making this determination on appeal. Id.

Anything more than a scintilla of evidence may be sufficient to entitle a defendant

to a jury instruction on a lesser included offense. Hall, 225 S.W.3d at 536. “Although this

threshold showing is low, ‘it is not enough that the jury may disbelieve crucial evidence

pertaining to the greater offense, but rather, there must be some evidence directly

germane to the lesser-included offense for the finder of fact to consider before an

instruction on a lesser-included offense is warranted.’” Sweed, 351 S.W.3d at 68 (quoting

Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)). “[T]he standard may be

satisfied if some evidence refutes or negates other evidence establishing the greater

offense or if the evidence presented is subject to different interpretations.” Sweed, 351

S.W.3d at 68.

The indictment in this case alleges that Appellant “intentionally, knowingly, or

recklessly caused bodily injury to Delia Salazar, a person with whom Appellant has or has

had a dating relationship or is a member of defendant’s household, as described by

Sections 71.0021(b) or 71.005, Family Code . . . .” A person commits the offense of

misdemeanor assault if he “intentionally, knowingly, or recklessly causes bodily injury to

another, including the person’s spouse.” TEX. PENAL CODE ANN. § 22.01(a)(1) (West

Supp. 2017). Because this offense is “established by proof of the same or less than all

the facts” necessary to prove the charged offense; see art. 37.09(1), and “the proof

necessary to establish the charged offense also includes the lesser offense; Cavazos,

382 S.W.3d at 382, we conclude that misdemeanor assault is a lesser included offense

24
of felony assault of a family member. Compare TEX. PENAL CODE ANN. § 22.01(a)(1)

(West Supp. 2017) (misdemeanor assault), with § 22.01(b)(2)(A) (felony assault of a

family member). Accordingly, the first step as to whether a jury instruction was warranted

is satisfied.

We next consider whether there is more than a scintilla of evidence that Appellant

is guilty, if at all, of only misdemeanor assault. Appellant contends that there is evidence

in the record that Appellant and Salazar did not have a dating relationship and she was

not a member of his household based on the testimony of his mother, in pertinent part,

as follows:

STATE: Okay. On June 7th, 2014, you mentioned you lived there [her
residence]?

JOSEFA: Yes.

STATE: Who else lived in the house at that time?

JOSEFA: I lived alone at that house, but when I came back I was living with
my daughter. I saw that there was someone in there. It was a lady. I didn’t
know who the lady was.

STATE: So, who all lived at the house?

JOSEFA: My son [Appellant].

STATE: Did the woman live there too?

JOSEFA: No, no. She was not living there when I was there. No, she was
not living there. But when I went back she was there.

STATE: So, on June 7th, 2014, the woman was living there with your son?

JOSEFA: Yes. Yes.

STATE: In the late evening hours of June 7th, 2014, did y’all eat dinner
together?

JOSEFA: Yes.

STATE: In that house? In your house?
25
 JOSEFA: At that house. At my house.

STATE: Did something happen at the dinner table?

JOSEFA: Well, we were having dinner. I don’t know what happened. She
got up – they both got up. She got up and then he – I don’t know what
happened.

* * *

JOSEFA: Well, I thought to myself they’re mad at each other, and I was
scared, right, because – well, I didn’t know what was happening.

* * *

JOSEFA: I ran. I ran to get someone so that they could call the law. That’s
what I did.

Other direct evidence at trial showed that Salazar moved into the residence

occupied by Josefa and Appellant in April or May of 2014, and she was living there on

June 7, 2014. She shared a bedroom with Appellant at the residence, slept with him, and

did household chores such as laundry, cleaning, and dishes. She believed they were in

a “relationship.” Josefa’s testimony does not contradict or refute this direct evidence.

Although she does not name the woman in her testimony as Salazar, the context of the

facts she testified to as well as the other evidence at trial clearly indicated Salazar was

the “woman” Josefa was referring to in her testimony. Thus, the jury could reasonably

find from Josefa’s testimony that Salazar was living in her house and she was living there

on June 7, 2014, when Appellant assaulted her. Having examined the entire record, we

find that Appellant has not come forward with more than a scintilla of evidence that he

and Salazar were not in a dating relationship or members of the same household on the

day of the assault. Accordingly, the trial court did not commit error by denying Appellant’s

request for a lesser-included offense instruction and his ninth issue is overruled.

26
 ISSUE TEN—CUMULATIVE ERROR

Finally, Appellant asserts the sum of the purported errors he identified from his trial

and punishment proceedings warrant a finding that reversible error occurred and he was

denied a fair trial. We disagree.

Multiple errors may be found to be harmful in their cumulative effect, even if each

error considered separately, would be harmless. Chamberlain v. State, 998 S.W.2d 230,

238 (Tex. Crim. App. 1999). The mere existence of multiple errors, however, does not

warrant reversal unless they operated in concert to undermine the fundamental fairness

of the proceedings. Estrada v. Smith, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010).

Moreover, if an appellant’s individual claims of error lack merit, then there is no possibility

of cumulative error. Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009).

Here, we have determined that Appellant’s purported errors lack merit and there is

no possibility of cumulative error. Id. Accordingly, Appellant’s tenth issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle

Publish.

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