Affirmed and Memorandum Opinion filed October 27, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00718-CR

                   HENRY DEMOND DORSEY, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1370868

                      MEMORANDUM OPINION

       We consider three questions in this appeal from a conviction for murder:
(1) whether the admission of evidence violated appellant’s rights under the
Confrontation Clause; (2) whether the verdict was truly unanimous; and
(3) whether appellant was denied the effective assistance of trial counsel. Finding
no error in connection with any of these stated issues, we affirm the judgment of
the trial court.
                                  BACKGROUND

      A fistfight broke out near the entrance to an after-hours nightclub. One of
the men involved in the fight pulled out a gun and fired multiple shots into the
crowd. Two of the bullets struck and killed the complainant. Surveillance footage
showed that the complainant had played no role in the fight and had merely been
standing in the background. The shooter ran off, but he was later caught and
identified as appellant.

                           CONFRONTATION CLAUSE

      The complainant’s body was sent to the medical examiner’s office, where an
autopsy was performed by a new doctor participating in a forensics pathology
fellowship program. The fellow did not testify at appellant’s trial. Testimony was
elicited instead from an assistant medical examiner who had supervised the fellow.
The assistant medical examiner testified that she was present for the complainant’s
autopsy, she reviewed the fellow’s autopsy report, and she co-signed the autopsy
report after making corrections to it.

      At trial, the State offered into evidence a collection of photographs that were
taken during the autopsy. Appellant objected to the admission of these
photographs, claiming that the absence of the fellow deprived him of his rights
under the Confrontation Clause. Continuing with the same reasoning, appellant
also argued that the autopsy report should be excluded in the event that the State
sought its admission. The trial court overruled the objection and admitted the
photographs, which were then published to the jury. The State never offered the
autopsy report into evidence.

      In his first issue, appellant contends that the admission of certain evidence
violated his rights under the Confrontation Clause. We review a trial court’s ruling


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admitting or excluding evidence for an abuse of discretion. See McCarty v. State,
257 S.W.3d 238, 239 (Tex. Crim. App. 2008). Under this standard, the trial court’s
ruling will be upheld if it is reasonably supported by the record and correct under
any applicable theory of law. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.
App. 2006). We give the trial court almost complete deference in determining
historical facts, but we review de novo the trial court’s application of law to those
facts. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

      The Sixth Amendment’s Confrontation Clause provides that a defendant in a
criminal prosecution “shall enjoy the right . . . to be confronted with the witnesses
against him.” See U.S. Const. amend. VI. This right applies not only to in-court
testimony, but also to out-of-court statements that are testimonial in nature. See
Crawford v. Washington, 541 U.S. 36, 50–51 (2004). Whether an out-of-court
statement is testimonial is a question of law for the court to decide. See De la Paz
v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008).

      Appellant styles this issue by asserting that “the trial court erred by violating
[his] right to confrontation of the [fellow] who actually performed the autopsy.”
Appellant addresses several points within this issue, beginning with a complaint
about the supposed admission of the complainant’s autopsy report. But, as we
stated above, the State did not offer the autopsy report into evidence, and the trial
court did not admit it. Thus, even assuming that the autopsy report contained
testimonial statements, there was no violation of the Confrontation Clause.

      Appellant then addresses the autopsy photographs, which were actually
admitted into evidence. But, in his own brief, appellant concedes that his trial
counsel’s objection to the admission of these photographs “should fail upon
appellate review.” “This is so,” appellant explains, “because this Court has held
that an autopsy photograph is not a testimonial statement.” See Herrera v. State,

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367 S.W.3d 762, 773 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“An
autopsy photograph, however, is not a testimonial statement.”) (citing Wood v.
State, 299 S.W.3d 200, 214–15 (Tex. App.—Austin 2009, no pet.)). Appellant has
not argued that Herrera is incorrect or should be revisited in light of more recent
authority. Therefore, applying our prior precedent, we hold that appellant’s rights
under the Confrontation Clause were not violated when the trial court admitted the
autopsy photographs.

      Appellant finally complains in very general terms about the testimony of the
assistant medical examiner, who observed the autopsy, but did not perform it. The
argument is without merit because appellant never objected to any portion of the
assistant medical examiner’s live testimony. He objected instead to the admission
of certain exhibits. Without a timely and specific objection, appellant forfeited this
complaint. See Tex. R. App. P. 33.1; Thacker v. State, 999 S.W.2d 56, 61 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d).

      Moreover, even if he had objected, the argument would still fail because the
assistant medical examiner was questioned about her own observations and
opinions, not those of the fellow who performed the autopsy. Thus, the trial court
did not erroneously admit testimonial hearsay in violation of appellant’s rights
under the Confrontation Clause. See also Melendez-Diaz v. Massachusetts, 557
U.S. 305, 311 n.1 (2009) (noting that the Confrontation Clause does not demand
“that everyone who laid hands on the evidence must be called”).

                            UNANIMOUS VERDICT

      In his second issue, appellant complains about an irregularity during the jury
polling process.




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      When the jury returned its verdict, the trial court asked the jurors to affirm
that they had all voted to find appellant guilty. Collectively, the jurors answered,
“Yes.” Appellant then asked for the jurors to be polled individually. The poll
happened as follows:

      CLERK:       [J.L.], is this your verdict?
      JUROR:       It is.
      CLERK:       [J.R.], is this your verdict?
                   No [J.R.]?
                   [S.G.], is this your verdict?
      JUROR:       It is.
      CLERK:       [A.N.], is this your verdict?
      JUROR:       It is.
      CLERK:       [J.P.], is this your verdict?
      JUROR:       It is.
      CLERK:       [R.G.], is this your verdict?
      JUROR:       Yes.
      CLERK:       [D.V.], is this your verdict?
      JUROR:       Yes.
      CLERK:       [R.D.], is this your verdict?
      JUROR:       It is.
      CLERK:       [R.B.], is this your verdict?
      JUROR:       Yes.
      CLERK:       [K.P.], is this your verdict?
      JUROR:       Yes.
      CLERK:       [S.P.], is this your verdict?
      JUROR:       It is.
      CLERK:       And [S.M.], is this your verdict?
      JUROR:       Yes.


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      COURT:       That’s only 11.
                   Who did not answer? Who was not polled? What’s your
                   name, sir?
      JUROR:       [R.V.].
      COURT:       What was your juror number in the panel?
      JUROR:       Fifty-five.
      CLERK:       Fifty-five, [R.V.], is this your verdict?
      COURT:       All right. So, members of the jury, we are going to recess
                   for the day and have you come back Monday morning.
                   We’ll start on punishment on Monday morning. . . .

      Appellant contends that the trial court ran afoul of Article 37.05, which
provides that the jury must retire again to consider its verdict if any juror, when
polled, answers that the verdict is not his own. See Tex. Code Crim. Proc. art.
37.05. Instead of calling for a recess, appellant argues that the trial court should
have retired the jury because “two jurors did not respond affirmatively to the
polled question.” Appellant appears to be referring to J.R., who was called second
by the clerk, and R.V., who was called last. It is clear, however, that J.R.’s name
was called inadvertently. His name is marked on the strike list and he could not
have been an actual member of the jury. Twelve other names were called,
including R.V.’s, and each of those twelve jurors spoke on the record.

      The court reporter did not record a verbal or nonverbal response from R.V.
when he was polled. However, the trial court continued the proceedings as though
R.V. had made an affirmative response, and appellant did not object to R.V.’s
response or nonresponse.

      A defendant must timely object to error in the jury polling process, as error
of this type is subject to forfeiture. See Barnett v. State, 189 S.W.3d 272, 277 (Tex.
Crim. App. 2006) (concluding that a defendant had forfeited any error by failing to
object when the trial court asked improper questions during the jury polling
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process). Because appellant did not object when R.V. was polled, he forfeited any
claim that the trial court failed to comply with Article 37.05. Id.

      Even if appellant had objected, his claim would still fail because the trial
court’s obligation to retire the jury is triggered only when a juror answers that a
verdict is not his own. See Llorance v. State, 999 S.W.2d 866, 869 (Tex. App.—
Houston [14th Dist.] 1999, no pet.) (holding that a juror’s procedural question did
not amount to an answer in the negative). Here, the record does not reflect that
R.V. gave a negative answer. The tenor of the trial court’s closing remarks
suggests instead that R.V. gave an affirmative nonverbal answer that his verdict
was in accord with the other eleven jurors. We conclude that appellant’s complaint
is without merit.

                     INEFFECTIVE ASSISTANCE CLAIM

      Appellant also contends that the assistance of his trial counsel was
constitutionally ineffective. In two separate issues, each relating to the punishment
phase of his trial, appellant complains that counsel presented no mitigation
evidence and counsel’s closing argument merely recited the evidence produced by
the State.

      We review claims of ineffective assistance of counsel under the standard set
forth in Strickland v. Washington, 466 U.S. 688 (1984). Under Strickland, the
defendant must prove that his trial counsel’s representation was deficient, and that
the deficient performance was so serious that it deprived him of a fair trial. Id. at
687. Counsel’s representation is deficient if it falls below an objective standard of
reasonableness. Id. at 688. A deficient performance will only deprive the defendant
of a fair trial if it prejudices the defense. Id. at 691–92. To demonstrate prejudice,
there must be a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. at 694. Failure to make
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the required showing of either deficient performance or sufficient prejudice defeats
the claim of ineffectiveness. Id. at 697. This test is applied to claims arising under
both the United States and Texas Constitutions. See Hernandez v. State, 726
S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

      Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that counsel’s actions were reasonably
professional and were motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to counsel’s
strategy, we will not conclude that the defendant received ineffective assistance
unless the challenged conduct was “so outrageous that no competent attorney
would have engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). Rarely will the trial record contain sufficient information to
permit a reviewing court to fairly evaluate the merits of such a serious allegation.
See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of
cases, the defendant is unable to meet the first prong of the Strickland test because
the record on direct appeal is underdeveloped and does not adequately reflect the
alleged failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex.
Crim. App. 2007).

      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Isolated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for examination.
See McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled
on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).

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Moreover, it is not sufficient that the defendant show, with the benefit of hindsight,
that his counsel’s actions or omissions during trial were merely of questionable
competence. See Mata, 226 S.W.3d at 430. Rather, to establish that counsel’s acts
or omissions were outside the range of professionally competent assistance, the
defendant must show that counsel’s errors were so serious that he was not
functioning as counsel. See Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.
App. 1995).

      We begin with appellant’s complaint that his trial counsel produced no
mitigation evidence during the punishment phase of trial. To prevail on such a
claim, the record must affirmatively demonstrate that mitigation witnesses were
available to testify and that their testimony would have benefited the defense. See
Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986); Wade v. State,
164 S.W.3d 788, 796 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The record
is silent on these points. Appellant did not file a motion for new trial or otherwise
establish that mitigation evidence existed. His complaint is therefore without merit.

      In a related issue, appellant also complains about counsel’s performance in
closing arguments. During his argument to the jury, counsel openly confessed that
he “simply chose not to put on a case for you in punishment.” Counsel then
sympathized with the complainant’s family and expressed regret that the
complainant had been caught in the fray of a shooting. Counsel said that appellant
was still a human being though, not a monster, and counsel implored the jury to
choose its own sentence, without offering a recommended sentence.

      In his brief, appellant argues that counsel’s performance was deficient
because counsel recited the State’s evidence and never emphasized appellant’s
own good character traits. But, as we mentioned earlier, the record does not
contain any mitigation evidence that counsel could emphasize. Furthermore, the

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record is silent as to counsel’s reasons and strategies during closing argument. We
could not deem counsel constitutionally ineffective without speculating as to his
motivations, which we are not permitted to do. See Lumpkin v. State, 129 S.W.3d
659, 665 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). Appellant has not
shown that his counsel’s performance fell below the range of reasonable
professional judgment, or that he was prejudiced by his counsel’s performance. See
Jagaroo v. State, 180 S.W.3d 793, 800 (Tex. App.—Houston [14th Dist.] 2005,
pet. ref’d) (rejecting ineffective assistance claim where counsel sympathized with
the complainants during closing arguments); see also Martin v. State, 265 S.W.3d
435, 447 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (explaining that counsel
may reasonably choose to recite facts that the jury would have remembered
anyways so that counsel might convince the jury to put aside those facts with
rhetorical devices such as empathy).

                                 CONCLUSION

      The trial court’s judgment is affirmed.




                                       /s/      Tracy Christopher
                                                Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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