                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-12-00826-CR

                                        Alonzo HELMKE,
                                            Appellant

                                                v.
                                               The
                                       The STATE of Texas,
                                             Appellee

                    From the 187th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012CR3874
                          Honorable Raymond Angelini, Judge Presiding

Opinion by:      Catherine Stone, Chief Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: October 9, 2013

AFFIRMED

           A jury found Alonzo Helmke guilty of robbery.       After Helmke pled “true” to an

enhancement allegation, the trial court sentenced him to 15 years’ imprisonment. In his sole issue

on appeal, Helmke contends that he received ineffective assistance of counsel. We affirm the trial

court’s judgment.

                                           BACKGROUND

           Three individuals attacked Randy Marks in a downtown San Antonio parking lot. The

attackers assaulted Marks and took his wallet and two metal chains from his neck. Thereafter,
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Marks pursued one of the assailants on foot and flagged down two San Antonio Police Department

officers. The officers arrested Helmke after the two chains matching Marks’ description were

found on Helmke’s person. Helmke was indicted for robbery and plead not guilty. A jury found

him guilty of the charged offense. Helmke pled “true” to an enhancement allegation and was

sentenced by the trial court to 15 years’ imprisonment.

                                     STANDARD OF REVIEW

       To prevail on a claim of ineffective assistance of counsel, an appellant must prove two

elements by a preponderance of the evidence: (1) deficient performance of trial counsel; and (2)

harm resulting from that deficiency sufficient to undermine confidence in the outcome of the trial.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte LaHood, 401 S.W.3d 45, 49 (Tex.

Crim. App. 2013).

       Deficient performance is that which “‘fell below an objective standard of reasonableness’

under prevailing professional norms and according to the necessity of the case.” Ex parte Moore,

395 S.W.3d 152, 156 (Tex. Crim. App. 2013) (quoting Strickland, 466 U.S. at 687–88). We begin

with a presumption that counsel’s actions were reasonable and based on sound trial strategy. Id.

To overcome this presumption, an appellant must establish ineffectiveness that is “firmly founded”

and affirmatively demonstrated in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). A

direct appeal is generally an “inadequate vehicle for raising such a claim because the record is

generally undeveloped.” Id. Trial counsel “should ordinarily be afforded an opportunity to explain

his actions before being denounced as ineffective.” Id. (quoting Rylander v. State, 101 S.W.3d

107, 111 (Tex. Crim. App. 2003)). Absent that opportunity, deficient performance should be found

only if the trial counsel’s conduct was “so outrageous that no competent attorney would have



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engaged in it.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Garcia

v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

       Deficient performance is prejudicial to an accused when there is a “reasonable probability

that the outcome of the trial would have been different but for counsel’s deficiency.” LaHood,

401 S.W.3d at 50. “Reasonable probability” is “a probability sufficient to undermine confidence

in the outcome” of the trial. Id. (quoting Strickland, 466 U.S. at 694).

                                           DISCUSSION

       Helmke contends that trial counsel rendered ineffective assistance of counsel because he:

(1) did not understand the procedure for issuing a subpoena; (2) misstated the legal definition of

robbery during voir dire; (3) failed to object to hearsay; (4) called an adverse witness to testify;

and (5) requested an instruction for a lesser-included offense of theft. We turn to each allegation

of ineffective assistance, noting that the two elements of Strickland need not be analyzed in any

particular order. Ex parte Martinez, 330 S.W.3d 891, 900 n.19 (Tex. Crim. App. 2011). “An

appellant’s failure to satisfy one prong of the Strickland test negates the court’s need to consider

the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

       A. Failure to Subpoena Jewelry

       Helmke contends that his trial counsel did not know the procedure for issuing a subpoena

duces tecum in order to obtain the chains to use as evidence at trial. On the night of the robbery,

the investigating police officers returned the stolen chains to the complainant, Marks. One chain

was made of gold and the other of sterling silver. Marks wore the silver chain to court, and trial

counsel had the chain admitted into evidence. The gold chain was no longer available to Marks

and was never entered into evidence. However, the State did enter into evidence photographs of

both chains taken the night of the incident.



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         We must consider an attorney’s decision to limit pre-trial discovery with “a great deal of

deference to the attorney’s judgment, looking to the reasonableness of the decision in light of the

totality of the circumstances.” Pratt v. State, No. 04-09-00070-CR, 2010 WL 546529, at * 6 (Tex.

App.—San Antonio Feb. 17, 2010, pet. ref’d) (mem. op., not designated for publication). Trial

counsel’s failure to issue a subpoena for the jewelry does not necessarily mean that trial counsel

did not understand the procedure for doing so. Trial counsel may have intended to rely on the

absence of the physical evidence to cast doubt on the sufficiency of the State’s photographic

evidence of the chains. Thus, Helmke has not overcome the presumption that trial counsel acted

reasonably and in accordance with a sound strategy.

         Moreover, Helmke has failed to prove that trial counsel’s alleged lack of knowledge of the

subpoena procedure was prejudicial. Even if trial counsel had issued a subpoena, the record does

not establish that the presence of the gold chain at trial would have affected the outcome of the

trial. Therefore, Helmke has failed to prove ineffective assistance with respect to trial counsel’s

failure to subpoena the jewelry.

         B. Misstatement of the Legal Definition of Robbery

         Next, Helmke contends that trial counsel rendered ineffective assistance by misstating the

legal definition of robbery during voir dire because trial counsel incorrectly stated that a completed

theft was an element of robbery. 1 Helmke points to the following exchange between trial counsel

and a venireperson:

             COUNSEL: So if you’re not sure that an item was taken . . . but everything else was
             proven, how would you find the Defendant?


1
  “No completed theft is required in order for the proscribed conduct to constitute the offense of robbery under [TEX.
PEN. CODE ANN. § 29.02].” White v. State, 671 S.W.2d 40, 41 (Tex. Crim. App. 1984) (en banc). Rather, a robbery
is committed when: “. . . in the course of committing theft as defined in Chapter 31 and with intent to obtain or
maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2)
intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” TEX. PEN. CODE
ANN. § 29.02(a) (West 2011).

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           VENIREPERSON: The trial is about the item taken; right? If you’re not sure, then he’s
           innocent.
           COUNSEL: Exactly. The trial is about the item being taken. It’s a robbery case.

       Trial counsel must have a “firm command” of the governing law in the case. Ex parte

Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982). Counsel’s misunderstanding of the law

can never be considered a sound trial strategy. Garcia v. State, 308 S.W.3d 62, 75 (Tex. App.—

San Antonio 2009, no pet.). However, we must consider an alleged misstatement of law in the

context of trial counsel’s other statements. Drew v. State, 743 S.W.2d 207, 220 (Tex. Crim. App.

1987). The record indicates that at the time of the exchange with the venireperson, trial counsel

was using a demonstrative that appears to have explained the elements of robbery. The record is

silent, however, as to the exact substance of the demonstrative.            In the absence of the

demonstrative, we are unable to put trial counsel’s alleged misstatement of law in the context

necessary to determine whether the statement was truly a misstatement of law. See Orchard v.

State, No. 14-00-00494-CR, 2001 WL 1013412, at*5 (Tex. App.—Houston [14th Dist.] Sept. 6,

2001, no pet.) (mem. op., not designated for publication) (no ineffective assistance where alleged

misstatement of law by trial counsel was considered in the context of subsequent statements).

Accordingly, we cannot determine whether trial counsel’s performance was deficient with respect

to the alleged misstatement of law.

       Assuming, without deciding, that trial counsel’s alleged misstatement of the law was

deficient performance, Helmke has still failed to prove he was prejudiced by the alleged

misstatement. See Cox v. State, 389 S.W.3d 817, 820 (Tex. Crim. App. 2012) (the prejudice

component of Strickland is not met every time the jury receives incorrect information). The jury

was properly instructed on the statutory definition of robbery in the jury charge and the trial court

specifically instructed the jury to wholly disregard statements of law made by counsel that were

not in harmony with the law as stated in the charge. Rangel v. State, 179 S.W.3d 64, 75 (Tex.
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App.—San Antonio 2005, pet. ref’d) (trial counsel’s misstatement of law not prejudicial where

jury was correctly instructed on the law in the jury charge). In addition, the State provided the

jury with the proper statutory definition of robbery during voir dire, and trial counsel subsequently

referred to the State’s definition.     Thus, Helmke has failed to prove that trial counsel’s

misstatement of the legal definition of robbery amounted to ineffective assistance of counsel.

       C.      Failure to Object to Hearsay / Non-Responsive Statements

       Helmke also contends that trial counsel rendered ineffective assistance by failing to object

to hearsay evidence and to statements that were non-responsive. Specifically, Helmke contends

that the trial testimony of the two police officers, included hearsay statements. Helmke also

contends that hearsay was contained in State’s Exhibit 18, a SAPD property release form.

       “In the absence of a developed evidentiary record which adequately reflects the motives

behind counsel’s action and inaction, it is extremely difficult to prove that counsel’s performance

was deficient.” Gaines v. State, No. 04-05-00804-CR, 2006 WL 3611811, at*3 (Tex. App.—San

Antonio Dec. 13, 2006, no pet.) (mem. op., not designated for publication). Helmke argues that

trial counsel’s failure to object could not logically be a sound strategy because it allowed evidence

to be admitted which undermined the defense’s position. However, when the record is silent as to

why counsel did not make an objection to hearsay, we may not speculate as to counsel’s reasoning

or strategy. Thompson, 9 S.W.3d at 814; Infante v. State, 397 S.W.3d 731, 739 (Tex. App.—San

Antonio 2013, no pet.) (failure to object to alleged hearsay testimony of police officers not

deficient performance when record was silent as to trial counsel’s reasoning or strategy); Moreno

v. State, No. 04-12-00720-CR, 2013 WL 3963709, at*3 (Tex. App.—San Antonio Jul. 31, 2013,

no pet.) (mem. op., not designated for publication) (failure to object to report containing alleged

hearsay not deficient performance when record was silent as to trial counsel’s reasoning or

strategy); McDonnel v. State, Nos. 01-09-00084-CR, 01-09-00085-CR, 2009 WL 4359064, at *2
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n.3 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, pet ref’d) (mem. op., not designated for

publication) (trial counsel’s failure to object to non-responsive answer presumed reasonable trial

strategy where record was silent).

         In addition, we cannot conclude that trial counsel’s failure to object to the alleged hearsay

was deficient performance when the statements in question were likely admissible as hearsay

exceptions. To prove ineffective assistance, an appellant must show that the trial court would have

committed error in overruling the objection. Ex Parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim.

App. 2011). A review of the entire record indicates that the statements by Marks which Helmke

contends are hearsay were made while Marks was still bleeding from the attack and while he was

“frantic,” “yelling,” and “frightened.”             The officers’ testimony regarding these statements,

therefore, would likely have been admissible as excited utterances. 2 Likewise, the SAPD property

release form would likely have been admitted under the business records exception to the hearsay

rule. 3 As trial counsel was not required to make a futile objection, his failure to object to this

evidence was not deficient performance. Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App.

1991) (en banc); Solis v. State, No. 04-97-00426-CR, 1999 WL 248951, at*5 (Tex. App.—San

Antonio Apr. 28, 1999, no pet.) (mem. op., not designated for publication) (not ineffective

assistance when counsel’s hearsay objection would have been futile).

         Moreover, trial counsel’s failure to object to the alleged hearsay statements cannot be said

to have prejudiced Helmke when all of the declarants provided testimony at trial cumulative of the

alleged hearsay statements. “Improper admission of evidence does not constitute reversible error

if the same facts are proved by other, properly admitted evidence.” Maranda v. State, 253 S.W.3d



2
  An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the
stress of the excitement caused by the event or condition.” TEX. R. EVID. 803(2).
3
  See TEX. R. EVID. 803(6).

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762, 769 (Tex. Crim. App. 2007) (citing Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App.

1986)); Bryant v. State, 282 S.W.3d 156, 163 (Tex. App.—Texarkana 2009, pet. ref’d) (applying

Maranda to a claim of ineffective assistance of counsel). The testimony of the officers regarding

Marks’ statements added no new details to Marks’ testimony at trial. Accordingly, even assuming

the trial court would have excluded the alleged hearsay statements, there is no reasonable

probability that the outcome of the trial would have been any different. See Pacheco v. State, No.

04-11-00036-CR, 2012 WL 566072, at*3 (Tex. App.—San Antonio Feb. 15, 2012, no pet.) (mem.

op., not designated for publication) (claim of ineffective assistance failed for lack of prejudice

where officer’s alleged hearsay statements were cumulative of the complainant’s testimony).

       D.      Adverse Witness Testimony

       Next, Helmke contends that his trial counsel provided ineffective assistance by calling

Detective Randy Resendez as a witness and asking the court’s permission to treat the witness as

adverse. After the trial court denied this request, Helmke contends that trial counsel improperly

asked leading questions of the witness.

       First, it appears that trial counsel had several strategic reasons for calling Resendez. The

record indicates that trial counsel was attempting to impeach Marks with contradictory testimony

from Resendez. Additionally, trial counsel elicited testimony from Resendez that implied that a

blood spot on Helmke’s shirt was never tested for DNA. Lastly, trial counsel’s request to treat

Resendez as an adverse witness is not evidence of deficient performance. Helmke has failed to

overcome the presumption that trial counsel was acting reasonably in calling Resendez and asking

the court to treat Resendez as an adverse witness. See Bond v. State, No. 02-05-446-CR, 2007 WL

79694, at*2 (Tex. App.—Fort Worth Jan. 11, 2007, no pet.) (mem. op., not designated for

publication) (appellant failed to overcome presumption of reasonableness where trial counsel

elicited testimony from probation officer regarding a pending criminal charge).
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        In addition to Helmke’s inability to show deficient performance, Helmke also has not

demonstrated that the outcome of the trial would have been any different without Resendez’s

testimony. Helmke points to no specific testimony that he considers harmful. Rather, Resendez’s

testimony could actually have helped Helmke’s case as it created at least some doubt as to whose

blood was found on Helmke’s shirt. Accordingly, Helmke has failed to show how calling

Resendez as a witness amounted to ineffective assistance of counsel.

        E.      Lesser Included Offense of Theft

        Lastly, Helmke argues that his trial counsel rendered ineffective assistance of counsel by

requesting that the jury charge include an instruction for the lesser-included offense of theft.

Helmke contends that this request undermined trial counsel’s apparent strategy of arguing that a

completed theft never occurred. Again, when faced with a silent record, we cannot speculate as to

trial counsel’s strategy. Therefore, Helmke has failed to overcome the presumption that his trial

counsel acted reasonably. See Menefield, 363 S.W.3d at 593.

        Moreover, Helmke has not demonstrated how being denied an instruction for which he was

not entitled had a reasonable probability of changing the outcome of the trial. “The evidence

supports an instruction on a lesser-included offense if it permits a rational jury to find the defendant

guilty only of the lesser-included offense.” Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App.

2011). Here, the evidence of Helmke’s assaultive conduct supported an instruction for robbery,

not theft alone. Darnell v. State, No. 14-11-00437-CR, 2012 WL 626318, at*3 (Tex. App.—

Houston [14th Dist.] Feb. 28, 2012, no pet.) (mem. op., not designated for publication) (no

prejudice when trial counsel requested a lesser included offense that was unavailable to defendant).

Accordingly, Helmke has failed to prove that his trial counsel rendered ineffective assistance by

requesting the lesser-included offense instruction.



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                                          CONCLUSION

       Because Helmke has failed to show that his trial counsel rendered ineffective assistance,

the trial court’s judgment is affirmed.



                                                      Catherine Stone, Chief Justice

DO NOT PUBLISH




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