Artur Sigalavillavicencio v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-17-00244-CR
___________________________

ARTUR SIGALAVILLAVICENCIO, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 4
Tarrant County, Texas
Trial Court No. 1451344D

Before Kerr, Pittman, and Birdwell, JJ.
Memorandum Opinion by Justice Pittman
 MEMORANDUM OPINION

A jury convicted Appellant Artur Sigalavillavicencio1 of the Christmas

2015 murder of M.C., the mother of his three children, and the trial court sentenced

him to fifty years’ confinement. In three issues, Appellant challenges the admission of

hearsay evidence that he claims is not subject to the Article 38.49 exception of the

Texas Code of Criminal Procedure (Issue One) and the constitutionality of that

statute (Issue Two) and contends that his trial counsel was ineffective by failing to

challenge the State’s expert witness on domestic violence and by failing to object to

her testimony “quantifying the lethality risk” Appellant posed to M.C. (Issue Three).

Because Appellant did not preserve his constitutional and evidentiary complaints or

satisfy his burden to prove ineffective assistance of his trial counsel, we affirm the trial

court’s judgment.

In a typed, pro se motion received but not filed by this court, Appellant, who
1

was then and is now represented by appointed appellate counsel, contends that the
correct spelling of his surname is Sigalavillavincencio. Conversely, in a handwritten
motion in the same mailed packet, also received but not filed, he contends that the
correct spelling is Sigalavillavicencio, the name used in the trial court’s judgment, the
notice of appeal, and this opinion. The court takes no action on any of Appellant’s
pro se motions. See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995)
(“[A]ppellant is not entitled to hybrid representation.”).

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 BACKGROUND FACTS

Appellant and M.C. had been together since 2011, but there had been multiple

incidents of domestic violence throughout their relationship. The jury heard evidence

that:

• In 2011, Appellant, who “[s]ometimes . . . d[id]n’t want [M.C.] to go to
work,” took the pickup she had borrowed from a family member and
parked it on some railroad tracks. It was unusable by the time it was
found;

• After that incident, M.C.’s sister (Sister) went to help M.C. move out of
Appellant’s parents’ home with her baby, and Appellant shot at Sister,
who was outside her car, and at the car containing M.C. and the baby;

• In 2013, Appellant cut M.C.’s neck and threw her against a wall; and

• In 2014, Appellant beat M.C., attempted to rape her, and choked her
until she lost consciousness; she was seven months’ pregnant.

M.C.’s home sat between Sister’s home and the home of their brother

(Brother). On December 24, 2015, M.C. and her two young daughters went next

door to Sister’s home to celebrate.2 Appellant sat in his van outside of M.C.’s house.

M.C. called him and invited him to join the party, but he refused. She had to work

the next morning, so she and her daughters went home sometime after midnight but

before 1:00 a.m.

A.S., M.C.’s teenaged niece, helped M.C. and her children take their presents

back to M.C.’s house. The door to the house was locked, however, so M.C. asked

M.C.’s son was in Mexico with his grandparents.
2

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A.S. to put the presents inside M.C.’s truck, and then M.C. began talking on her cell

phone to Appellant. A.S. testified that as she returned to her own house to retrieve

the rest of M.C.’s family’s presents, Appellant arrived at M.C.’s house driving fast and

playing his music loud. When A.S. returned to M.C.’s house with the remaining

presents, M.C. and her daughters were inside, and Appellant was in his van. The

older daughter, who was four years old, told A.S. that Appellant had a gun. A.S. told

the child to go to her room, M.C. told A.S. she could leave, and A.S. left.

Sometime after M.C. left Sister’s home, Brother heard a gunshot. Wanting to

join in what he thought was celebratory gunfire, Brother got his gun, went outside,

and fired off some shots. Appellant then came out of M.C.’s house holding a small

gun and looking scared. He confronted Brother, complaining that the gunfire would

bring the police. Brother told him that if the police came, he would take

responsibility for the gunfire. Appellant got in his van and left, briefly returned to the

house, and then sped off again.

At around 3:40 a.m. while he was at M.C.’s, Appellant called 911 and stated

that:

• His wife (M.C.) had called him to report that a .25 caliber gun had gone
off accidentally, shooting her in the breast;

• He had the gun (which he later denied in the same conversation);

• He was not at her house, the address of which he reported, but she was;
and

• He was coming from his cousin’s house.

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The MedStar dispatcher notified Appellant that he knew the call was coming from the

reported address of the shooting.

A few minutes after Appellant sped away from M.C.’s house, the police arrived.

M.C. was on her bed, dead of a gunshot wound to the chest. Her sleeping baby and

four-year-old were on the bed with her.

No gun or shell casing was found in the house. One of Brother’s casings was

found in the street, but it did not match the bullet retrieved from M.C.’s body.

Instead, the police found the gun that fired that bullet in Appellant’s bedroom at his

parents’ house.

Appellant fled to Mexico and surrendered a few months later to authorities in

the United States.

Appellant does not challenge the sufficiency of the evidence, and in his opening

statement, his trial counsel stated that “there’s no doubt that [Appellant was] holding

a gun that went off and struck and killed [M.C.]” and conceded that the couple had “a

stormy past.”

DISCUSSION

I. Appellant Did Not Preserve His Constitutional Complaint.

In his second issue, Appellant contends that Article 38.49 of the Texas Code of

Criminal Procedure violates his rights to due process under the Sixth and Fourteenth

Amendments to the United States Constitution because it undercuts his rights of

confrontation. See Tex. Code Crim. Proc. Ann. art. 38.49. A challenge to the

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constitutionality of a statute must be raised in the trial court to be preserved for

appellate review. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009)

(holding that a facial challenge to the constitutionality of a statute cannot be raised for

the first time on appeal); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995)

(holding as-applied issues forfeited because not raised in the trial court); Shepherd v.

State, 489 S.W.3d 559, 575 n.13 (Tex. App.—Texarkana 2016, pet. ref’d) (holding an

as-applied constitutional challenge to Article 38.49 forfeited because the defendant did

not raise it in the trial court); see Tex. R. App. P. 33.1(a). A reviewing court should not

address the merits of an issue that has not been preserved for appeal. Ford v. State,

305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Appellant does not refer us to any place

in the record where he raised this complaint in the trial court, nor has our own review

of the record shown that he first raised it in the trial court. Accordingly, we overrule

Appellant’s second issue.

II. Appellant Did Not Preserve His Hearsay Complaints About State’s
Exhibit 126 or About the Testimony of Its Contents by Detective Russell
and Kathryn Jacob.

In a pretrial hearing, the trial court found that some evidence should be

admitted under the doctrine of forfeiture by wrongdoing as described in Article

38.49 of the Texas Code of Criminal Procedure but did not find that all the evidence

the State proffered on that ground should be admitted under that doctrine. In his

first issue, Appellant challenges the admission of State’s Exhibit 126—a Fort Worth

Police Department family violence packet completed after Appellant’s alleged

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2014 assault of M.C. and including statements from M.C. (family violence packet)—as

well as related testimony by Fort Worth Police Detective Marcus Russell and

SafeHaven President Kathryn Jacob because they were or contained hearsay

statements not expressly included in the trial court’s ruling admitting evidence under

the doctrine. The trial court made no express pretrial ruling on the admissibility of

the evidence Appellant challenges.

A. Appellant Does Not Challenge the Trial Court’s Ruling that He
Committed Forfeiture by Wrongdoing and Does Not Raise
Confrontation Complaints to the Evidence He Challenges.

The Confrontation Clause provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI; see also Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct.

1354, 1359 (2004). Under the doctrine of forfeiture by wrongdoing, a defendant is

barred from asserting his right of confrontation when he has wrongfully procured the

unavailability of the witness. Giles v. California, 554 U.S. 353, 359–62, 128 S. Ct. 2678,

2683–84 (2008); Gonzalez v. State, 195 S.W.3d 114, 118–19 (Tex. Crim. App. 2006);

Schindler v. State, No. 02-17-00241-CR, 2018 WL 4924946, at *3 (Tex. App.—Fort

Worth Oct. 11, 2018, pet. filed) (mem. op., not designated for publication). Article

38.49 codifies the doctrine. Schindler, 2018 WL 4924946, at *3; Shepherd, 489 S.W.3d at

574; see Tex. Code Crim. Proc. art. 38.49.

However, as the State points out, Appellant does not bring an issue challenging

the trial court’s ruling that he committed forfeiture by wrongdoing or the admission

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of evidence explicitly covered by the ruling, and we do not read his issue to raise

Confrontation-Clause complaints about the evidence he does challenge. We therefore

address his complaints as evidentiary, not constitutional, accepting the parties’ shared

understanding that Article 38.49 does not operate as a hearsay exception without so

holding. See Woods v. State, No. 08-07-00203-CR, 2009 WL 3790013, at *5 (Tex.

App.—El Paso Nov. 12, 2009, pet. ref’d) (not designated for publication) (holding

that the doctrine of forfeiture by wrongdoing applies only to an objection based on

the Confrontation Clause and that it is not a hearsay exception). But see Gonzalez,

195 S.W.3d at 119 (“[C]ourts have widely accepted the doctrine of forfeiture by

wrongdoing to reject both hearsay objections and confrontation claims[.]”).

B. Appellant’s Objection that the Family Violence Packet Was
Hearsay Initially Preserved His Complaint About that Exhibit.
The trial court admitted the family violence packet over Appellant’s objections

that it was hearsay, that no exception to the hearsay rule applied, that it was irrelevant,

and that it was not properly authenticated. Appellant complains on appeal that the

family violence packet was admitted over his hearsay objection. The State contends

that Appellant’s hearsay objection was global and that because some of the

information in the document was admissible under the “Then-Existing Mental,

Emotional, or Physical Condition” exception to the hearsay rule, Tex. R. Evid. 803(3),

his general objection did not preserve his complaint about the admission of the family

violence packet. We disagree with the State’s premise and conclusion.

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 We have reviewed the six-page family violence packet prepared on August 23,

2014 by M.C. and a Fort Worth detective who did not testify at trial as well as

Detective Russell’s testimony describing the packet. Detective Russell testified:

• The family violence packet is “a breakdown on how the victim and how
the suspect are related, any kind of previous history of a protective
order, any kind of intimate partner violence risk assessments. Basically,
the victim’s name and information and where the offense was located at
and what time and date of the offense”;
• On-scene police officers who take the report complete the packet with
all complainants in domestic-violence cases;
• The packets are kept as part of the case file;
• Detective Russell was assigned the case about six months after M.C.
reported the assault;
• Detective Russell reviewed the case file with M.C.;
• Page 3 of the packet “is a body diagram of [M.C.], and it actually has
arrows pointing to her actual pain locations, injury locations”; and
• M.C.’s written statement in Spanish appears at the end of the packet.3
Based on our review of the family violence packet and Detective Russell’s

testimony, the family violence packet appears to be a customary part of a Fort Worth

Police Department police report in domestic violence cases. Police reports are not

admissible in criminal cases. See Tex. R. Evid. 803(8); Cole v. State, 839 S.W.2d 798,

806 (Tex. Crim. App. 1990), reh’g granted, 839 S.W.2d 806, 811 (Tex. Crim. App. 1992)

3
Detective Russell testified that he had the statement translated into English,
but in our review of the record, we did not see that a translation of M.C.’s statement
was admitted during the guilt-innocence phase.

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(clarifying original opinion holding that evidentiary rule 803(8) cannot be

circumvented by the business records exception in rule 803(6) and finding the State’s

motion for rehearing without merit); Kennedy v. State, 193 S.W.3d 645, 659–60 (Tex.

App.—Fort Worth 2006, pet. ref’d) (op. on reh’g en banc). The family violence

packet in this case is therefore inadmissible hearsay in its entirety. Consequently,

Appellant’s hearsay objection initially preserved his complaint.

C. A Party Must Timely and Repeatedly Object, Obtain a Running
Objection, or Object Outside the Jury’s Presence.

To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for the

desired ruling if they are not apparent from the context of the request, objection, or

motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim.

App. 2015). Even though Appellant’s complaint about the family violence packet was

initially preserved by his objection, the preservation rule requires a party to object

each time objectionable evidence is offered unless the party has obtained a running

objection or has requested a hearing outside the presence of the jury. Geuder v. State,

115 S.W.3d 11, 13 (Tex. Crim. App. 2003); see also Leday v. State, 983 S.W.2d 713,

718 (Tex. Crim. App. 1998) (explaining that Texas applies the “futility rule,” meaning

that even after a trial court overrules an objection to evidence, a party must keep

making “futile” objections on pain of waiver). Unobjected-to testimony about

objected-to evidence results in forfeiture of the objection. See Clay v. State, 361 S.W.3d

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762, 767 (Tex. App.—Fort Worth 2012, no pet.) (“[B]ecause Wallace provided

testimony about the Louisiana records without objection before and after [Clay’s]

objection to the admission of the records and because [Clay] failed to obtain a running

objection, we conclude that he forfeited his objection to the records’ admission.”

(footnote omitted)); see also Walker v. State, No. 02-16-00418-CR, 2018 WL 1096060, at

*4 (Tex. App.—Fort Worth Mar. 1, 2018, no pet.) (mem. op., not designated for

publication). A reviewing court should not address the merits of an issue that has not

been preserved for appeal. Ford, 305 S.W.3d at 532. Preservation of error is a

systemic requirement that this court should review on its own motion. Darcy v. State,

488 S.W.3d 325, 327–28 (Tex. Crim. App. 2016).

D. Appellant Did Not Timely Object to the Testimony of Detective
Russell About the Family Violence Packet.

All of Detective Russell’s testimony presented above about the family violence

packet was admitted without objection and before Appellant made a running

objection “on this line [of] questions.” Appellant therefore did not preserve his

complaint about Detective Russell’s testimony regarding the family violence packet.

See Tex. R. App. P. 33.1(a)(1).

E. A Running Objection Does Not Usually Cover Multiple Witnesses.

A running objection does not generally preserve objections to the same or

similar testimony of other witnesses unless the objection explicitly references the

testimony of such other witnesses. See Garner v. State, No. 02-15-00171-CR,

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2016 WL 4247970, at *6 (Tex. App.—Fort Worth Aug. 11, 2016, pet. ref’d) (mem.

op., not designated for publication) (“As Garner did not object to Gus’s testimony,

Garner did not preserve his complaints regarding the same testimony by Michelle.”);

Warner v. State, No. 02–07–00464–CR, 2009 WL 2356861, at *3 (Tex. App.—Fort

Worth July 30, 2009, pet. ref’d) (mem. op., not designated for publication) (“[Warner]

did not ask for his running objection to Officer Gonzales’s testimony to apply to all

witnesses . . . [a]nd . . . failed to object when Daniel Rhodes testified about [Warner’s]

statements in the home. Thus, he failed to preserve his complaint as to that

testimony.”); see also Stafford v. State, 248 S.W.3d 400, 410 (Tex. App.—Beaumont

2008, pet. ref’d) (“While Stafford requested, and was granted, a running objection to

Totino’s testimony, the record does not indicate he requested that his running

objection be applied to all witnesses . . . . Therefore, Stafford has failed to preserve

for appellate review any alleged error.”).

F. Appellant Did Not Object to Kathryn Jacob’s Testimony.

After Detective Russell testified, Kathryn Jacob testified about the contents of

the family violence packet without any new objection:

Q. . . . I’m showing you what’s been marked as State’s Exhibit 126, a
packet from the Fort Worth Police Department. Have you seen
something like that before?
A. I have.
Q. Okay. And you are aware that the Fort Worth Police Department
uses a version of a lethality assessment in their standard packet?
A. I know.

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Q. And it contains many of the same questions that are asked in the
Jackie Campbell assessment?
A. It does.
Q. In looking at this specific lethality assessment—was one
performed on this individual?
A. It was.
Q. Okay. And they asked similar questions. Is that fair?
A. That’s fair.
Q. Okay. Did this person indicate that the suspect had been violent
towards them in the past?
A. Yes.
Q. That the suspect had access to firearms or weapons?
A. Yes.
Q. That the suspect had ever used weapons against them or
threatened to?
A. Yes.
Q. That they had been seriously injured by the suspect?
A. Yes.
Q. That the suspect abuses alcohol and drugs?
A. Yes.
Q. That the suspect has been abusive when drinking or using drugs?
A. Yes.
Q. That the suspect has been violent in front of others or in public?
A. Yes.
Q. The suspect has ever put his hands or objects around your neck
and squeezed or choked?
A. Yes.

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 Q. Was this person at the time currently pregnant?
A. Yes.
Q. Does the suspect have few friends or seem emotionally dependent
on you?
A. Yes.
Q. Does the suspect seem unusually jealous, possessive or to
consider you his or her property?
A. Yes.
Q. Has the suspect ever been violent when you left or talked about
leaving him?
A. Yes.
Q. Has the suspect ever forced you to have sex against your will?
A. Yes.
Q. Have police been called out regarding violence between you and
the suspect?
A. Yes.
Q. Has the suspect recently lost his job or had trouble keeping a job?
A. Yes.
G. Appellant’s Running Objection During Detective Russell’s
Testimony Did Not Preserve Appellant’s Complaint Regarding
Kathryn Jacob’s Testimony About the Family Violence Packet.

The trial court’s response during Detective Russell’s testimony to Appellant’s

running objection “on this line [of] questions” about the contents of the family

violence packet was, “You have objection to all this information going forward. . . .

And the exhibits that were just admitted.” Appellant did not ask that his objection be

extended to other witnesses. Because Appellant did not object again when Kathryn

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Jacob testified about M.C.’s family violence packet, he failed to preserve his

complaints about that testimony.4 See Garner, 2016 WL 4247970, at *6; Warner,

2009 WL 2356861, at *3; see also Stafford, 248 S.W.3d at 410.

H. Appellant Ultimately Did Not Preserve His Hearsay Objection to
the Family Violence Packet.

Because between them, Kathryn Jacob and Detective Russell testified about the

contents of the family violence packet without objection, Appellant has forfeited his

complaints about the trial court’s admission of the family violence packet. See Clay,

361 S.W.3d at 767; Walker, 2018 WL 1096060, at *4. We note in the interest of justice

that State’s Exhibit 6, which Appellant challenged at trial but not on appeal, contains

the most damning information from the packet. That exhibit is a recording of a

911 call on August 23, 2014 from a nurse in the Obstetrics Emergency Room of

Baylor All Saints Andrews Women’s Hospital in Fort Worth. The nurse reported that

a patient, M.C., had stated that her boyfriend had attempted to rape her and had put

her facedown on a bed, hit her repeatedly on her head and back, and choked her until

she lost consciousness. We overrule Appellant’s first issue.

4
Appellant’s complaints in this issue about Jacob’s unobjected-to expert
testimony regarding domestic violence and the import of M.C.’s family violence
packet are not preserved, nor does Appellant’s conclusion that his trial counsel’s
“failure to object or to seek a Daubert type hearing” resulted in fundamental error—
without argument or citation to authority—persuade us. If a party provides no
argument or legal authority to support his position, an appellate court may properly
overrule the issue or point as inadequately briefed. See Tex. R. App. P. 38.1(i); Lucio v.
State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (citing cases).

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III. Appellant Has Not Satisfied His Burden to Prove Ineffective Assistance
of Trial Counsel.

In his third issue, Appellant contends that his trial counsel was ineffective for

failing to challenge Kathryn Jacob as an expert witness on domestic violence and for

failing to challenge “significant portions of her testimony.”

A. Jacob Testified About Her Qualifications.

In addition to the testimony about the family violence packet discussed earlier

in the opinion, Jacob also testified as follows about her qualifications:

• She is the president and COO of SafeHaven of Tarrant County
and has been for a little over two years;
• SafeHaven of Tarrant County is the domestic violence service provider
for Tarrant County;
• SafeHaven oversees both of the emergency shelters for victims and all of
the nonresidential services for victims and offenders;
• She has been licensed in Texas as a master’s level social worker since
2006; and
• She has a focus on domestic violence and has completed extra training in
it in the United States and internationally.
B. Jacob Testified Generally About Domestic Violence.
Jacob informed the jury about domestic violence. She testified:

• Domestic violence is a pattern of abusive behavior in a
relationship . . . caused by power and control of one person over
another person[;]

• Intimate partner violence is a specific subset [of domestic
violence] that is, in fact, between intimate partners, so a boyfriend
and girlfriend, some sort of adult relationship[;]

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• You do not have to be married. You can be dating, you can be a
teenager dating, you can be someone who has a[n] intimate
relationship with someone on an ongoing basis[;]
• [W]hen you’re assaulted by a stranger, there’s a different level of
trauma that comes with that than when you’re assaulted by
someone that you know and trust. There are different dynamics
that keep you in that relationship or there are different dynamics
that make you react to the person differently than you would if
you were, say, raped or sexually assaulted on the street by a
stranger[;]
• [T]he cycle of violence is typically what happens when you’re in
an intimate relationship. It is three stages. The first stage is a
kind of honeymoon stage, where everything seems like it’s going
pretty well. Then there’s a stage called tension building, where we
often have victims report they feel like they’re walking on
eggshells. They feel like the relationship feels precarious or dicey.
And then there’s usually an explosion or an incident that happens,
and then you move on to the honeymoon stage.
The honeymoon stage is, again, where everything seems
rosy, oftentimes that’s when the offender says things like, I love
you so much, please stay with me, brings you flowers, . . . there’s a
courting component to that. And then that kind of leads again
into that tension building and an explosion. . . . [S]o that
identifies a pattern of behavior that we call domestic violence.
But that cycle can happen within an hour or it can take 20 years
for that cycle to repeat itself, and that all depends on the
relationship[;]
• It typically takes a victim six to nine attempts to leave their
abuser[;]
• The most common times that a serious assault or a homicide
happen are when the victim is leaving or the three months after
the victim leaves the relationship[;]
• [D]omestic violence is about power and control. That’s what
domestic violence is. And when the victim decides that they are
going to take some of that power and control back and they’re

17
 going to own their situation, that ends up being very threatening
to an offender[;]
• An offender wants to have complete power and control over their
victim, and so when a victim has a support network, like family or
friends or a church or, you know, other groups that they might be
a part of that support them, that threatens that 100 percent power
and control that they have over their victim, and so the offenders
typically try and take that away from their victim. They don’t like
it when they’re away or where they might have the opportunity to
lose some of that power and control[;]
• A strong family relationship would be threatening to an abuser[;]
• In 1985, Dr. Jackie Campbell created a lethality assessment. We
call it a danger assessment. That is a series of questions that can
help indicate whether a victim is most at risk of a homicide or not
or being the victim of a homicide or not[;]
• [W]e at SafeHaven give a lethality assessment to every victim that
we see. Like I said, it’s a series of questions. They’re yes-no
questions.
Some of the questions, when you do the scoring, are
weighted heavier than others. So the scoring really depends on if
they answer yes and no and which questions they’re answering yes
or no to. When you do the scoring, the victims fall into several
different categories, the worst of which is an extreme high danger.
So we use the tool to be able to explain to a victim what their
situation really looks like, if they are at risk of homicide. And,
oftentimes, it’s the first time the victim has ever thought of their
situation in that framework[;]
• So oftentimes a victim will put up with a lot before she has
children, but once she has children, usually that’s when the victim
starts thinking about exiting the relationship because they don’t
want their children to be a part of the relationship.
Then again, victims tend to intuitively know that that’s a
dangerous time when they decide to leave. So we really trust our
victims to know what is the safest situation for them. So they’re
going to know is it safe to leave now, is it safer to stay, but when

18
 they have children is when things really kind of come to light for
them[;]
• We see a lot of pregnant women and women with newborn babies
in our shelters[;]
• Pregnancy ends up being a very precarious time in a relationship,
even in a healthy relationship. There’s a lot of stress on a
relationship when someone is pregnant. And so especially when
it’s—when a woman is pregnant she thinks to herself a lot about
is this a—is this a relationship I want to bring my child into, and
she oftentimes will decide to leave during pregnancy[; and]
• Women go back to their offenders for a lot of reasons. One is
because they think and hope that the offender will change. One is
that maybe the offender has access to a house or a car or
resources that the victim doesn’t have on her own, you know. So
when faced with the question of are my children and I going to be
homeless versus should we stay in this relationship, a lot of times
they pick the devil they know.
C. Jacob Interpreted the Evidence the Jury Had Already Heard.

When the prosecutor asked Jacob hypotheticals based on the evidence before

the jury, she testified:

• I would interpret that[—stealing a vehicle and placing it where it
could be damaged beyond repair, such as on railroad tracks—]as a
threat, and threats are very common behavior in domestic
violence relationships[;]

• [A person’s shooting at a partner or her family member as she
tries to leave the relationship] would be a[n] indicator of a
domestic violence relationship, even just ownership of a gun[;]

• Jealousy is a question on the danger assessment[;]
• Any sort of physical violence or threats of violence are an
indicator of domestic violence[;]

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 • Forced sex increases risk of homicide. It is on the danger
assessment[;]
• Forced sex is a version of showing power and control [and is
common in relationships involving intimate partner violence;]
• If the offender can keep their victim pregnant, they are more able
to indicate that their victim isn’t going to leave them. You know,
if you have a new baby, if you have an infant with someone,
you’re more tied to your relationship. We see this a lot . . . [;]
• Strangulation and ownership of a gun bear the most weight on the
lethality assessment[;]
• [R]esearch shows us that if an offender strangles their partner, the
victim is 700 times more likely to be strangled again by their
offender and 800 times more likely to be killed by that offender,
not necessarily by strangulation[;]
• Strangulation is one of the most intimate forms of physical
assault[; and]
• It’s very dangerous. You can die from being strangled in a very
short amount of time.
D. Jacob Interpreted the Family Violence Packet.
Jacob also gave additional testimony regarding her review of the family violence

packet:

Q. So you said you give a very similar assessment to people coming
to your organization.
A. We do.
Q. And if you were to rate this individual, what category would they
fall into?
A. The extreme high danger.
Q. And that is extreme high danger of lethality at the hands of your
abuser?

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 A. Correct. So extreme high danger ends up being an indicator of a
potential homicide.
Q. So it would not shock or surprise you that a person who answered
the questions this way ended up dead at the hands of their abuser?
A. No.
Q. And what . . . did you say the two most important indicators of a
future homicide are?
A. Possession of a firearm and a history of strangulation.
Q. And both of those are indicated in this particular questionnaire?
A. They are.
Q. Would it surprise you if after an incident that was just described
that seemed this serious, that a person, even after a time period,
went back to their abuser?
A. No. It’s very common to return to your abuser.
Q. Even after some of the most serious of offenses?
A. Yes.
Q. Have you seen people suffer extreme trauma at the hands of their
offender and go back anyway?
A. Often.
E. Appellant Must Prove by a Preponderance of the Evidence Both
Deficient Representation by Trial Counsel and a Reasonable
Probability that Without It, the Outcome of His Trial Would Have
Been Different.
To establish ineffective assistance of counsel, Appellant must show by a

preponderance of the evidence that his counsel’s representation was deficient and that

the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.

2013). An ineffective-assistance claim must be “firmly founded in the record,” and

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“the record must affirmatively demonstrate” the meritorious nature of the claim.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Ineffective assistance of

counsel may properly be raised in a motion for new trial, Smith v. State, 286 S.W.3d

333, 341 (Tex. Crim. App. 2009), but is usually best addressed by a postconviction

writ of habeas corpus, Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); see

Thompson, 9 S.W.3d at 814 & n.6; Ex parte Torres, 943 S.W.2d 469, 475–76 (Tex. Crim.

App. 1997). Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped. Menefield v.

State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson, 9 S.W.3d at 813–14.

In evaluating the effectiveness of counsel under the deficient-performance

prong, we look to the totality of the representation and the particular circumstances of

each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the time

of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava,

415 S.W.3d at 307. Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct was not

deficient. Nava, 415 S.W.3d at 307–08.

It is not appropriate for an appellate court to simply infer ineffective assistance

based upon unclear portions of the record or when counsel’s reasons for failing to do

something do not appear in the record. Menefield, 363 S.W.3d at 593; Mata v. State,

226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be

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afforded an opportunity to explain his actions before being denounced as ineffective.”

Menefield, 363 S.W.3d at 593. If trial counsel is not given that opportunity, we should

not conclude that counsel’s performance was deficient unless the challenged conduct

was “so outrageous that no competent attorney would have engaged in it.” Nava,

415 S.W.3d at 308.

The prejudice prong of Strickland requires a showing that counsel’s errors were

so serious that they deprived the defendant of a fair trial, that is, a trial with a reliable

result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, Appellant must

show there is a reasonable probability that, without the deficient performance, the

result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068;

Nava, 415 S.W.3d at 308. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;

Nava, 415 S.W.3d at 308. The ultimate focus of our inquiry must be on the

fundamental fairness of the proceeding in which the result is being challenged.

Strickland, 466 U.S. at 697, 104 S. Ct. at 2070. “[A] verdict or conclusion only weakly

supported by the record is more likely to have been affected by errors than one with

overwhelming record support.” Id. at 696, 104 S. Ct. at 2069.

There is no requirement that we approach the two-pronged inquiry of Strickland

in any particular order or even that we address both components of the inquiry if the

defendant makes an insufficient showing on one component. Id. at 697, 104 S. Ct. at

2069.

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 F. Appellant Has Failed to Show a Reasonable Probability that
Absent Trial Counsel’s Deficient Performance, the Result of the
Trial Would Have Been Different.

Appellant did not file a motion for new trial alleging ineffective assistance and

have a hearing, so we do not know why his trial counsel did not challenge Jacob’s

qualifications to testify as an expert or any of her testimony. But even if Appellant’s

trial counsel’s performance was deficient, a holding we do not have to reach,

Appellant has failed to show that he was deprived of a trial with a reliable result. See

id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308.

That Appellant shot and killed M.C. was not in dispute, nor was the couple’s

history of domestic violence. The only real issue at trial was his intent in killing her.

His theory was that the shooting was accidental or at least short of murder, the State’s

theory was that it was murder, and overwhelming evidence supported the State’s

theory:

• Appellant had a history of violently abusing M.C., including beating her,
raping her, strangling her, and shooting at her;

• Early Christmas morning before M.C.’s death, Appellant’s four-year-old
daughter told her teenaged cousin that he was carrying a gun;

• Appellant lied about his whereabouts in the 911 call after M.C.’s
shooting;

• Appellant claimed to have the gun in the 911 call and then to not have it;

• He fled to Mexico after the shooting;

• The police found his gun in his bedroom at his parents’ house; and

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 • His gun was determined to be the gun that shot the bullet lodged in
M.C.’s body.
Appellant points to no “objective facts in the record to support any lack of

confidence in the conviction.” Williams v. State, No. 14-13-00708-CR,

2015 WL 5935660, at *6 (Tex. App.—Houston [14th Dist.] Oct. 13, 2015, pet. ref’d)

(mem. op., not designated for publication); see also Bone v. State, 77 S.W.3d 828,

837 (Tex. Crim. App. 2002). He has therefore failed to satisfy his burden to prove

prejudice from his trial counsel’s performance. We overrule Appellant’s third issue.

CONCLUSION

Having overruled Appellant’s three issues, we affirm the trial court’s judgment.

/s/ Mark T. Pittman
Mark T. Pittman
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 24, 2019

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