Javier Martinez Calderon v. State

In The

Court of Appeals
Ninth District of Texas at Beaumont
_______________________

NO. 09-17-00016-CR
_______________________

JAVIER MARTINEZ CALDERON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. 24794

MEMORANDUM OPINION

A jury found Javier Martinez Calderon guilty of possession of a controlled

substance, methamphetamine, in the amount of four grams or more but less than two

hundred grams, with intent to deliver. The jury assessed punishment at twenty-two

years in prison and assessed a $10,000 fine. In four issues, Calderon appeals his

conviction. We affirm the trial court’s judgment.

1
 Background

Officer Billy Duke with the Polk County Sheriff’s Office testified that he

came into contact with Ricky Freeman and Norma Felipe during a traffic stop.

Officer Duke found that Freeman and Felipe had methamphetamine on their persons

and Officer Duke asked them where they got the methamphetamine. According to

Duke, Freeman and Felipe provided information to him about from whom and where

they obtained the drugs. Officer Duke testified that he and several officers from the

Corrigan Police Department went to 918 South Holmes Street in Corrigan based on

information Freeman and Felipe had provided Officer Duke. Officer Duke testified

that Freeman and Felipe informed him that the building’s occupants had a large

cache of narcotics and an AK-47, and because Officer Duke had unverified

information that the building’s occupants could possibly be involved with the cartel,

the officers approached the building with weapons drawn and “in a tactical manner

just in case.” According to Officer Duke, as they approached the building, Calderon

looked out of the window and saw the officers, law enforcement announced

themselves in English and Spanish, and the officers ordered the occupants to exit the

building, but no one complied. Officer Duke testified that exigent circumstances

existed—that law enforcement had credible information about weapons and drugs

in the building and the officers heard noises indicating the occupants were either

2
getting a weapon ready or disposing of the drugs—and that it necessitated that they

secure the scene and enter the building without a warrant. Officer Duke testified that

he kicked in the door, grabbed Calderon, and pulled him out. A video recording of

law enforcement’s approach and entry into the building was admitted into evidence

and played for the jury. Officer Duke testified that Calderon dropped a knife and that

the officers then placed co-defendant Suri Contreras and Calderon in handcuffs.

According to Officer Duke, law enforcement checked the building to make sure no

others were hiding inside, they saw that the shower was ripped away from the wall

and a hole was in the floor, and they saw in plain view a torch lighter commonly

used to ingest or smoke methamphetamine. Duke testified that a search warrant was

then obtained. A copy of the search warrant was admitted into evidence over defense

counsel’s objection. Duke reviewed certain photographs admitted into evidence and

identified the following items confiscated after law enforcement obtained the search

warrant: a knife, a broken meth pipe, a meth scale, an AR-15, a collapsible baton, a

hat, and “a large quantity of methamphetamine” found inside the hat and under the

building.

Officer Javier Segura with the Polk County Sheriff’s Office testified that

Officer Duke relayed information he had received from the traffic stop, and as a

result, Segura went to a location in Polk County. According to Officer Segura, he

3
had reason to believe that there were dangerous people, methamphetamine, and an

AK-47 in a building on the property. Segura testified that he and about four other

law enforcement officers arrived at the property without a search warrant. Officer

Segura testified that when they arrived at the location, the officers exited their

vehicles, unholstered their weapons, one of the officers from Corrigan knocked on

the door, and the officers announced themselves as “sheriff’s office[,]. . . police[,]

and . . . policia.” According to Officer Segura, he saw Calderon open the curtain on

the door and the officers ordered Calderon to open the door and for the occupants to

come out. Officer Segura testified that he could hear what he thought was

“somebody running inside, heard a lot of noise, just running back and forth in that

little small area[,]” and it sounded like “[s]omething was being torn apart[.]” Officer

Segura explained that when he heard the noise he was concerned because he did not

know if the occupants were getting weapons or destroying evidence. Officer Segura

testified that, after no one opened the door, the officers forced their way into the

building, and Officer Segura forced Calderon to the ground and placed him in

handcuffs. According to Officer Segura, the other officers went in the other rooms

of the building for their safety to make sure it was clear, and after a search warrant

was obtained and the premises were searched, methamphetamine was found. Officer

Segura testified that he assisted in searching the building and retrieving some of the

4
evidence, but that he did not file a report in the case and was not the arresting officer.

According to Officer Segura, Contreras and Calderon were charged with possession

with intent to deliver methamphetamine. On cross-examination, Officer Segura

testified that at the time he took Calderon into custody, he never saw Calderon in

possession of a weapon or in possession of any drugs.

Kai Allen, a chemist for the Texas Department of Public Safety (DPS) crime

lab, testified that he tested the substances seized in the case using procedures

followed by the Texas DPS in weighing and testing a substance. Allen confirmed

that the substance admitted as State’s Exhibit 20 amounted to 19.03 grams of

methamphetamine.

Ricky Freeman testified that at the time of trial he was incarcerated for

“[m]anufacture and delivery, two counts, . . . possession of a firearm and bail

jumping.” According to Freeman, he first spoke to State’s counsel about Freeman

testifying against Calderon or Contreras when he met with State’s counsel and a

detective with the sheriff’s department two days prior to his testimony, and after he

had pleaded guilty to the charges of possession and delivery and manufacture of

methamphetamine. Freeman testified that he asked State’s counsel to help him serve

his sentence at the Polk County jail instead of going to the Texas Department of

Corrections, that State’s counsel explained he could not give Freeman anything and

5
nothing was guaranteed, but State’s counsel told Freeman that he would talk to the

sheriff’s office and write a letter to the Board of Pardons and Paroles about

Freeman’s truthful testimony. Freeman testified that he was testifying of his own

free will and that he would testify truthfully even despite his conversations with

State’s counsel.

According to Freeman, he was arrested for possession with intent to deliver

methamphetamine on May 4, 2016, and he informed a deputy that he had obtained

the methamphetamine from people using his girlfriend’s, or her family’s, property

at 918 Holmes Street in Corrigan, Texas. Freeman testified that he had obtained

drugs from Contreras on prior occasions, that Freeman sold the drugs and gave

Contreras a percentage of the proceeds, and Freeman also kept some of the money.

According to Freeman, on May 4, 2016, prior to his arrest, he went to the address in

Corrigan and Contreras handed him drugs to sell. On cross-examination, Freeman

testified that Calderon was inside the building with Freeman and Contreras and

Calderon smoked methamphetamine with them, but he agreed that Calderon did not

give Freeman any drugs and he had never met Calderon prior to May 4, 2016.

Christie Allen, a detective with the Polk County Sheriff’s Office, testified that

she assisted State’s counsel in interviewing Freeman just days prior to trial.

Detective Allen’s recollection of what Freeman reported during the interview was

6
that “[t]here was a main man that came from Houston that brought . . . a lot of

different kinds of drugs, and he gave them to the first guy that was there, and then

he gave them to the defendant.” Detective Allen testified that she understood

Freeman to say that both people in the building on the night of May 4 had contact

with the drugs given to Freeman.

Virginia Calderon, the defendant’s sister, testified that she saw the defendant

on May 4, 2016, and that she did not see him in possession of drugs. Andres

Rodriguez, the defendant’s brother-in-law, testified that he could not recall if he had

contact with the defendant on that date, and Vernice Calderon, the defendant’s sister,

testified that she did not have contact with the defendant on the date in question.

The jury found Calderon guilty of possession with intent to deliver a

controlled substance, methamphetamine, as alleged in the indictment. Calderon

elected for the jury to assess punishment. At the punishment hearing, Virginia

Calderon testified that she has had a lot of contact with Calderon over the years and

has never known him to deal drugs and never has seen him using drugs. She testified

that Calderon was not a U.S. citizen and she did not know if Calderon had a criminal

history in the United States or in Mexico. When asked by defense counsel if the jury

elected to give her brother community supervision did she think her brother would

7
conduct himself in a manner to complete that community supervision, Virginia

responded “Yes, sir.”

Andres Rodriguez testified during the punishment phase that he had known

Calderon for ten years and he has been Calderon’s work supervisor for about three

years. Rodriguez testified he had never seen Calderon using or selling drugs. When

asked by defense counsel if Rodriguez believed that if the jury gave Calderon

probation would Calderon be responsible while on probation, Rodriguez answered

“Yes, sir.”

After all the evidence had been presented, prior to closing arguments, and

outside of the hearing of the jury, counsel for the State noted on the record that

defense counsel did not file an application for probation. Defense counsel

acknowledged that he did not know he needed to file an affidavit by Calderon

swearing that he had never been convicted of a felony. State’s counsel noted on the

record that the State would accept the filing of the affidavit prior to deliberations.

Defense counsel handwrote an affidavit but then informed the trial court that the

affidavit could not be filed truthfully. Calderon testified that he understood that by

not signing and filing the affidavit he is no longer eligible for probation and would

be sentenced to time in the Texas Department of Criminal Justice, that he understood

if he signed an untrue affidavit that he would face perjury charges, and he did not

8
want to sign the affidavit. The jury assessed punishment at twenty-two years in

prison and assessed a $10,000 fine. Calderon appealed.

Appellate Issues

In his first two issues, Calderon argues he was denied his Sixth Amendment

right to effective assistance of counsel during both the guilt-innocence and

sentencing phases of trial. In his third issue, Calderon contends that the trial court

committed reversible error by failing to include an accomplice-witness instruction

in the jury charge in the guilt-innocence phase of trial. In his fourth issue, Calderon

asserts that the State’s final argument in the guilt-innocence phase of trial was

improper and deprived him of a fair and impartial trial. Because our resolution of

issues three and four affect our analysis in issues one and two, we address issues

three and four first.

Accomplice-Witness Instruction

In issue three, Calderon argues that the trial court committed reversible error

by failing to include an accomplice-witness instruction in the jury charge in the guilt-

innocence phase of trial. According to Calderon, testimony at trial showed that

“Freeman was participating with Appellant and Contreras before and during the

commission of the crime, that he was engaged in an ongoing conspiracy to possess

and deliver methamphetamine with both Contreras and Appellant, and therefore, was

9
an accomplice witness as a matter of law.” Calderon argues he suffered egregious

harm because of the absence of the accomplice-witness instruction.

We review a claim of jury charge error using a two-step analysis. Serrano v.

State, 464 S.W.3d 1, 7 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). We first

determine whether there is error in the jury charge, and if we find error in the charge,

we next determine whether sufficient harm was caused by that error to require

reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The degree of harm necessary for

reversal depends upon whether the error was preserved in the trial court. Ngo, 175

S.W.3d at 743. If error was not preserved, then reversal is required only upon a

showing of “egregious harm.” Id. at 743-44.

Egregious harm is a “high and difficult standard” to satisfy. Villarreal v. State,

453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (quoting Reeves v. State, 420 S.W.3d

812, 816 (Tex. Crim. App. 2013)). “‘Jury-charge error is egregiously harmful it if

affects the very basis of the case, deprives the defendant of a valuable right, or vitally

affects a defensive theory.’” State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim.

App. 2016) (quoting Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App.

2016)). The Court of Criminal Appeals has instructed that, in conducting an

egregious-harm analysis, we must consider (1) the entirety of the jury charge, (2) the

10
state of the evidence, (3) counsel’s arguments, and (4) any other relevant information

revealed by the entire trial record. Id. at 598. We must “review the relevant portions

of the entire record to determine whether [a defendant] suffered actual harm, as

opposed to theoretical harm, as a result of the error.” Id. (citing Marshall, 479

S.W.3d at 843).

Under article 38.14 of the Code of Criminal Procedure, a criminal conviction

may not be based on the testimony of an accomplice witness unless the testimony is

“corroborated by other evidence tending to connect the defendant with the offense

committed[.]” Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). If the evidence

at trial raises a question of fact as to whether a witness is an accomplice, the trial

court must instruct the jury to decide whether the witness is an accomplice; if the

evidence conclusively establishes that a witness is an accomplice, the trial court must

instruct the jury that the witness is an accomplice as a matter of law. Druery v. State,

225 S.W.3d 491, 498-99 (Tex. Crim. App. 2007). We review a trial court’s

determination of whether the evidence supports an accomplice-witness instruction

under an abuse of discretion standard. See Paredes v. State, 129 S.W.3d 530, 538

(Tex. Crim. App. 2004). A witness is an accomplice witness only if he participates

in the crime with the defendant, taking an affirmative act to assist in the commission

of the crime before, during, or after the commission of the crime, with the required

11
culpable mental state for the crime. Druery, 225 S.W.3d at 498-99; see also Paredes,

129 S.W.3d at 536. Mere presence at the scene of the crime does not render a witness

an accomplice. Druery, 225 S.W.3d at 498; Cocke v. State, 201 S.W.3d 744, 748

(Tex. Crim. App. 2006).

Here, although Freeman testified he pleaded guilty to possession with intent

to deliver methamphetamine, he was not a co-defendant in this case, and the record

does not show that the methamphetamine he possessed during the traffic stop was

not the same methamphetamine the officers found at the building for which Calderon

was arrested. Assuming without deciding the trial court erred in omitting an

accomplice-witness instruction, Calderon failed to make this objection to the charge

and therefore we must apply the “egregious harm” standard. See Ngo, 175 S.W.3d

at 743-44.

“Under the egregious harm standard, the omission of an accomplice witness

instruction is generally harmless unless the corroborating (non-accomplice)

evidence is ‘so unconvincing in fact as to render the State’s overall case for

conviction clearly and significantly less persuasive.’” Ambrose, 487 S.W.3d at 598.

“In assessing the strength of the non-accomplice evidence, we examine (1) its

reliability or believability, and (2) the strength of its tendency to connect the

defendant to the crime.” Id. We must examine the non-accomplice evidence for

12
corroboration “tending to connect” appellant to the commission of the offense. See

id. (citing Casanova v. State, 383 S.W.3d 530, 539 (Tex. Crim. App. 2012)). The

corroborating evidence need not be sufficient, standing alone, to prove the offense

beyond a reasonable doubt—there “need be only some non-accomplice evidence

tending to connect the defendant to the crime, not to every element of the crime.” Id.

(quoting Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007)).

Here, non-accomplice corroborating evidence was admitted connecting

Appellant to the offense. Officer Duke and Officer Segura testified that as they

approached the building, Calderon looked out of the window and refused to exit the

building in response to law enforcement’s knock and announcements. Officer Duke

testified that he heard noise indicating the occupants were either getting a weapon

ready or disposing of drugs. Officer Segura testified that it sounded like

“[s]omething was being torn apart[.]” According to Officer Duke, Calderon dropped

a knife when law enforcement entered the building. Officer Duke and Officer Segura

testified that methamphetamines were found in a hole in the floor of the building

after a search pursuant to a search warrant. Officer Duke testified that Calderon and

Contreras were the only occupants in the building, and Officer Segura testified that

Calderon and Contreras were charged with possession with intent to deliver

13
methamphetamine. Kai Allen, the DPS chemist, testified that the substance turned

over in the case amounted to 19.03 grams of methamphetamine.

The record demonstrates that some non-accomplice evidence tended to

connect Appellant to the drugs and the offense, and the totality of the record fails to

show that Appellant was egregiously harmed by the omission of an accomplice-

witness instruction. See Ambrose, 487 S.W.3d at 598-99. We overrule issue three.

Claim of Improper Jury Argument

In his fourth issue, Calderon contends that, because the State did not have

probable cause to search the building occupied by Calderon when the officers

approached the building in the middle of the night with guns drawn and demanding

the occupants to come out of the building, the State improperly argued during final

argument that the officers had the right to surround the building, with their guns

drawn, and demand that Appellant come out. The trial court denied the motion to

suppress and Calderon does not challenge that ruling on appeal. “Proper jury

argument generally falls within one of four areas: (1) summation of the evidence,

(2) reasonable deduction from the evidence, (3) answer to argument of opposing

counsel, and (4) plea for law enforcement.” Freeman v. State, 340 S.W.3d 717, 727

(Tex. Crim. App. 2011). A prosecutor is permitted to draw from all the facts in

14
evidence to make reasonable, fair, and legitimate inferences. Borjan v. State, 787

S.W.2d 53, 57 (Tex. Crim. App. 1990).1

Officer Duke testified that exigent circumstances existed—that law

enforcement had credible information about weapons and drugs in the building and

the officers heard noises indicating the occupants were either getting the weapon

ready or disposing of the drugs—and that it necessitated that they secure the scene

and enter the building without a warrant. According to Officer Segura, he had reason

to believe there was methamphetamine at that location and reason to believe that

there were dangerous people, methamphetamine, and an AK-47 in a building on the

property. Officer Segura explained that he heard the noise in the building and was

concerned because he did not know if the occupants were getting weapons or

destroying evidence. We conclude the State’s argument was supported by or

reasonably based on the evidence. We overrule issue four.

1
We note that in Contreras v. State, No. 09-17-00029-CR, 2018 Tex. App.
LEXIS 2389, at *9 (Tex. App.—Beaumont Apr. 4, 2018, no pet.) (mem. op.) (not
designated for publication), this Court affirmed the trial court’s judgment convicting
Suri Sadi Contreras of the same offense as Calderon. With respect to the trial court’s
pretrial ruling denying the motion to suppress filed by Contreras, we concluded in
Contreras that “the trial court could have reasonably determined that the entry into
the building was based upon probable cause and exigent circumstances.” Id. at *18.
15
 Ineffective Assistance of Counsel

In his first two issues, Calderon argues he was denied his Sixth Amendment

right to effective assistance of counsel during the guilt-innocence and sentencing

phases of trial. In issue one, Calderon argues his counsel was ineffective during the

guilt-innocence phase of the trial and outlines nine areas or instances of counsel’s

ineffectiveness. In issue two, Calderon argues that his counsel was ineffective during

the punishment phase of the trial because his counsel did not know before trial

whether Calderon had a criminal record and that his counsel was unaware that he

had to file a motion for probation before trial began.

A defendant has a Sixth Amendment right to the effective assistance of

counsel. U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668, 685-

86 (1984). To establish that he received ineffective assistance of counsel, Calderon

must demonstrate that (1) counsel’s performance fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different. See Strickland, 466

U.S. at 687-88, 694. The party alleging ineffective assistance has the burden to

develop facts and details necessary to support the claim. See Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting an ineffective-assistance

claim must overcome the “strong presumption that counsel’s conduct fell within the

16
wide range of reasonable professional assistance.” See Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 689). An appellant’s

failure to make either of the required showings of deficient performance or sufficient

prejudice defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d

107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the

Strickland test negates a court’s need to consider the other prong.”).

The right to effective assistance of counsel ensures the right to “reasonably

effective assistance[,]” and it does not require that counsel must be perfect or that

the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.

Crim. App. 1984). The appropriate context is the totality of the representation;

counsel is not to be judged on isolated portions of his representation. See Thompson,

9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). Isolated

failures to object to improper evidence or argument ordinarily do not constitute

ineffective assistance of counsel. See Ingham, 679 S.W.2d at 509; Ewing v. State,

549 S.W.2d 392, 395 (Tex. Crim. App. 1977). To meet his burden regarding his

claim that his counsel was ineffective for failing to object to evidence, Appellant

must also establish that the trial court would have committed error in overruling such

17
objection had an objection been made. See Vaughn v. State, 931 S.W.2d 564, 566

(Tex. Crim. App. 1996).

Ordinarily, on direct appeal, the record will not have been sufficiently

developed during the trial regarding trial counsel’s alleged errors to demonstrate in

the appeal that trial counsel provided ineffective assistance under the Strickland

standards. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012).

Trial counsel’s actions regarding search issues 2

Calderon argues that during the guilt-innocence phase his counsel was

ineffective because he failed to challenge deficiencies in the search warrant and

accompanying affidavit. According to Calderon, his trial counsel failed to challenge

the “false statement” in the search warrant regarding who controlled the buildings

on the property. Calderon also argues that his trial counsel failed to challenge Officer

Duke’s conclusory statements in the search warrant affidavit on the bases that the

affidavit lacked information showing: (1) Duke had training and experience with

methamphetamine; (2) Freeman and Felipe had previous experience with

methamphetamine; (3) Freeman and Felipe were reliable informants; and (4) the

information was received by the officer recently and that the informants had seen

2
For convenience, we categorize the nine alleged areas or instances of
ineffectiveness with similar subheadings as those used by Appellant, and we address
some of the alleged areas or instances of ineffectiveness together.
18
the narcotics at the location recently. In addition, Calderon argues that his trial

counsel failed to challenge the information in the affidavit regarding the scale and

torch lighter, as those items were “illegally obtained evidence” due to the officer’s

entry into the building in violation of Calderon’s Fourth Amendment rights.

Calderon’s counsel filed a written motion to suppress evidence, arguing, in

part, that the search warrant violated the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution, Article I, Sections 9, 10, and 19 of

the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure

because:

a. The affidavit upon which the search warrant was based was
improperly and illegally executed.

b. The warrant was illegally issued for the reason that the supporting
affidavit does not reflect sufficient probable cause to justify issuance
of a search warrant, in that: (i) the affidavit lacks sufficient
underlying circumstances which would permit the conclusion that
the alleged contraband was at the location in which it was claimed;
and (ii) the affidavit fatally fails to state sufficient underlying
circumstances to establish the credibility of the affiant.

c. The warrant was illegally issued because the affidavit did not show
probable cause sufficient to justify the issuance of the search
warrant, because the magistrate who issued the search warrant did
not have a substantial basis for concluding that probable cause
existed, i.e., that the alleged contraband would be found in a
particular place, and thus did not meet the totality of the
circumstances analysis adopted in Illinois v. Gates, 103 S.Ct. 2317[]
(1983).

19
 After a hearing, the trial court denied the motion. Even if we presume defense

counsel erred, Calderon failed to demonstrate a reasonable probability that, but for

counsel’s alleged error, the outcome of his trial would have been different. See Bone

v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

Trial counsel and the co-defendant, Suri Contreras

Calderon argues that during the guilt-innocence phase his counsel was

ineffective because he failed to subpoena co-defendant Contreras or talk to him or

his attorneys. Appellant did not establish in the trial court or on appeal that

subpoenaing Contreras or talking to him or his attorneys would have yielded

favorable information or testimony for Appellant. See Holland v. State, 761 S.W.2d

307, 319 (Tex. Crim. App. 1988) (defendant attempting to show trial counsel’s

performance fell below objective standard of reasonableness because counsel failed

to subpoena a witness to testify must show that the witness was available to testify

and would have provided testimony beneficial to the defendant); 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 could have changed the result of the case). Calderon has failed to demonstrate

20
that trial counsel, in failing to subpoena or talk to Contreras or his attorneys, acted

below the standard. See Strickland, 466 U.S. at 688-89.

Testimony that Appellant was a member of a cartel

Calderon argues that during the guilt-innocence phase his counsel was

ineffective because he failed to request a hearing or obtain an order on counsel’s

motion in limine requesting that there be no mention of “drug cartels” and failed to

object to hearsay testimony that Calderon was a cartel member. Calderon’s counsel

prior to trial asked State’s counsel outside of the jury’s hearing whether the State

intended to refer to a drug cartel in the State’s case-in-chief and the State responded

that the officer had information suggesting that Calderon might be a cartel member,

and that the information was relevant to law enforcement’s decision to approach the

building in the manner they did. The State said it would approach the bench prior to

initiating the line of questioning that would elicit testimony relating to drug cartels.

It is possible that Calderon’s trial counsel decided to withhold additional

objections to prevent the impression that he was objecting at every opportunity or to

avoid drawing unwanted attention to any alleged cartel affiliation. See Huerta v.

State, 359 S.W.3d 887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Faced

with a silent record on direct appeal, we conclude Appellant has failed to rebut the

strong presumption that his trial counsel’s conduct was reasonable. See Thompson,

21
9 S.W.3d at 813. Nor has Appellant established his trial counsel’s failure to object

was so outrageous that no competent attorney would have made the same decision.

See Menefield, 363 S.W.3d at 593.

Complaints regarding failure to object to leading questions, hearsay, bolstering,
speculation and opening the door to hearsay; Testimony of Christie Allen; State’s
Exhibit 1 - the video recording of the initial warrantless entry; and Trial counsel’s
attempt to introduce positive character evidence

Calderon argues that trial counsel assisted the State in presenting its case by

repeatedly failing to object to hearsay about Freeman and Felipe telling the officers

that there was an AK-47 in the building and that the occupants were dangerous,

failing to object to leading and bolstering questions when the State called Freeman

to testify, failing to object to the line of questioning when the State was attempting

to show that Calderon would have known Contreras was trying to hide drugs, and

opening the door to damaging hearsay evidence from Officer Duke. Calderon also

argues that his counsel failed to obtain an order granting his Motion for Witness List,

failed to attempt to prove the State acted in bad faith in not giving him notice that

witness Christie Allen would possibly be a witness, failed to object to Allen’s non-

responsiveness and improper impeachment, and failed to request the court to instruct

the jury at trial and in the charge that Allen’s testimony was offered for the purpose

of impeaching Freeman’s testimony. Calderon further asserts his counsel failed to

object to State’s Exhibit 1, the video recording of the entry, on the bases that it was
22
a fruit of the illegal warrantless entry and that the audio portion was hearsay.

Calderon also argues that had his counsel learned of Calderon’s criminal history,

counsel would not have attempted to introduce favorable character evidence or may

have determined that Calderon should plead guilty.

“‘If counsel’s reasons for his conduct do not appear in the record and there is

at least the possibility that the conduct could have been legitimate trial strategy, we

will defer to counsel’s decisions and deny relief on an ineffective assistance claim

on direct appeal.’” Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003)

(quoting Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002)). Since there is

no evidence of counsel’s reasons for these specific actions or inactions, we must

defer to counsel’s decision if there is at least the possibility that the conduct could

have been legitimate trial strategy. This Court should not consider the wisdom of

such strategy because ineffective assistance of counsel claims cannot be “built on

retrospective speculation[.]” Bone, 77 S.W.3d at 835. Furthermore, Calderon has not

demonstrated that the errors together created a reasonable probability that, but for

the errors, Calderon would not have been convicted. See id. at 833.

Complaint regarding accomplice witness charge as to witness Ricky Freeman

Calderon argues that during the guilt-innocence phase his counsel was

ineffective because he failed to request an accomplice-witness instruction regarding

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the witness Ricky Freeman. We have already overruled Calderon’s issue regarding

the failure to include an accomplice-witness instruction and it cannot be ineffective

assistance of counsel when the trial court would not have erred by refusing such a

request. See Vaughn, 931 S.W.2d at 566 (to successfully present an argument that

counsel was ineffective because of a failure to object to State’s questioning and

argument, appellant must show that the trial court would have committed error in

overruling such objection). Furthermore, even if we presume defense counsel erred,

Calderon failed to demonstrate a reasonable probability that, but for counsel’s

alleged error, the outcome of his trial would have been different. See Bone, 77

S.W.3d at 833.

Trial counsel’s failure to object to the State’s final argument

Calderon argues that trial counsel’s failure to object to the State’s improper

final argument that the officers had the right to surround the building with their guns

drawn and demand Calderon to come out constituted ineffective assistance of

counsel. As stated above, Calderon has not demonstrated that the State’s final jury

argument was improper. Furthermore, Calderon has not established that during the

guilt-innocence phase his counsel’s performance fell below an objective standard of

reasonableness and that there is a reasonable probability that, but for counsel’s

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error(s), the result of the proceeding would have been different. See Strickland, 466

U.S. at 687-88. We overrule issue one.

Allegations of Ineffective Assistance During Punishment Phase

Calderon also argues that his counsel was ineffective during the punishment

phase of the trial because his trial counsel did not know prior to trial whether

Calderon had a criminal record, his trial counsel was unaware that he had to file a

motion for probation prior to trial, and that his trial counsel elicited testimony that

Calderon was not a United States citizen. We note that the record demonstrates that

Calderon could not truthfully file an affidavit stating facts sufficient to show he was

a candidate for probation. Under the second prong of the Strickland test, Calderon

must show a “reasonable probability” that, but for the error, the result would have

been different. See Bone, 77 S.W.3d at 833. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Thompson, 9

S.W.3d at 812. Even assuming counsel’s lack of knowledge regarding Calderon’s

criminal record or counsel’s eliciting of testimony that Calderon was not a United

States citizen was error, Calderon has not demonstrated that the probability of a

different result is sufficient to undermine confidence in the outcome. See id. We

overrule issue two.

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 We affirm the trial court’s judgment.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

Submitted on June 27, 2018
Opinion Delivered October 24, 2018
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.

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