                        NUMBER 13-10-00493-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

            CORPUS CHRISTI—EDINBURG
____________________________________________________

FRANCISCO EMMANUEL DOMINGUEZ,                                            Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 357th District Court
                        of Cameron County, Texas
____________________________________________________

                         MEMORANDUM OPINION

            Before Justices Rodriguez, Benavides, and Perkes
                Memorandum Opinion by Justice Perkes

      Appellant, Francisco Emmanuel Dominguez, was indicted for capital murder.

See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011). He appeals his conviction for the

lesser-included offense of murder, a first-degree felony. See id. § 19.02 (b)(1). Based

on a jury’s verdict, appellant was found guilty of murder and sentenced to twenty years
of confinement in the Texas Department of Criminal Justice, Institutional Division. By

eight issues, including a challenge to the voluntariness of his confession and a claim of

ineffective assistance of trial counsel, appellant argues that his conviction should be

reversed.1 We affirm.

                       I. FACTUAL AND PROCEDURAL BACKGROUND2

        After failing to arrive for work at the high school where he taught, John Edward

Farr, the murder victim, was found dead in his apartment. There was no sign of forced

entry and nothing in the apartment appeared to be out of order. Farr was lying in his

bed on his back, dead. Farr was wearing pajamas and had been stabbed over twenty

times. Farr died of severe stab wounds to the left and right internal jugular. There were

no definitive defensive wounds on his body. A toxicology report revealed that Farr was

intoxicated at the time of his death.

        Police who arrived at the murder scene noticed that Farr’s cellular phone and a

laptop computer were missing. Farr’s car was also missing from outside the apartment.

Texas Rangers attempted to determine the location of Farr’s phone in the hope that the

phone would lead them to the person who killed Farr.

        In the meantime, appellant’s aunt contacted the Harlingen Police Department

and reported that appellant admitted to killing someone. Police were dispatched to

        1
            In his prayer for relief, appellant asks this Court to reverse his conviction and enter a judgment
of acquittal or, in the alternative, to remand the case to the trial court for a new trial. We note, however,
that appellant has not presented a challenge to the sufficiency of the evidence which would entitle him to
an acquittal in the event the State’s evidence was found insufficient to sustain his conviction. See e.g.,
Villani v. State, 116 S.W.3d 297, 307 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (citing Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997), noting the sufficiency-review standard ensures that a
judgment of acquittal is reserved for instances in which the State actually fails to prove the crime).
        2
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.


                                                      2
speak with appellant’s aunt. When they arrived, appellant was with his aunt, and he told

one of the officers, “You’re going to find out anyway. I was stopped and arrested driving

Mr. Farr’s car.” The officer confirmed with the Texas Department of Public Safety that

one of its troopers stopped appellant while he was driving Farr’s car. Shortly thereafter,

appellant was arrested on suspicion of murder.

      The police learned from appellant’s aunt that Farr was one of appellant’s

teachers and that Farr would give appellant money. At the time of his arrest on June

16, 2008, appellant was sixteen years old. Appellant was placed in a juvenile-detention

facility until August 2008, when at age seventeen, he was certified to stand trial as an

adult and transferred to an adult-detention facility. After being transferred, he gave law-

enforcement officers a written statement in which he admitted to killing Farr.

A. The Relevant Contents of Appellant’s Written Statement

      Appellant’s statement was admitted into evidence at trial.        The beginning of

appellant’s statement includes a written warning and waiver of both his Miranda rights

and his rights under article 38.22, section 2 of the Texas Code of Criminal Procedure.

In his statement, appellant explained that he was giving his statement “voluntarily,

without fear of duress or threat, and without promise of leniency.” He also explained

that prior to making the statement, he was advised that he was “suspected of or

charged with the offense of capital murder.”

      Appellant described Farr’s murder and the surrounding circumstances. Appellant

explained that in January 2008, he started the second semester of his freshman year at

Harlingen High School South. Farr was his speech teacher. About a week into the

semester, Farr arranged for appellant to be in his “Theatre Tech” class. Farr would ask



                                            3
him if he worked out, and he would ask him to flex his muscles. Farr said appellant

could be a model or a stripper. Appellant stated that some time before spring break

2008, Farr called him on his cellular phone and told him to skip school to meet a friend

of his who was a male stripper. According to his statement, appellant did so. Appellant

visited Farr’s apartment about ten times, and Farr would give appellant alcohol and

money.

       On the night of June 16, 2008, appellant called Farr and asked to borrow twenty

dollars.   Farr answered “yes” and told appellant to come to his apartment.          After

appellant drank about four mixed drinks and eight beers, Farr made multiple overt

sexual advances to appellant while appellant was lifting weights. Appellant declined the

advances and Farr offered him cocaine. After consuming the cocaine, appellant asked

Farr if he was going to give him the twenty dollars. Farr told appellant to wait in his

bedroom for the money and appellant did so. According to appellant, Farr then entered

the bedroom holding a pointed object with a brown handle. Farr then attempted to

molest appellant and during a struggle, appellant stabbed Farr with the pointed object.

Appellant then stole some liquor from the apartment and fled in Farr’s car.

       Appellant attached to his written statement a drawing he made of the pointed

object. It looks like an ice pick, though appellant did not use this term. On his drawing,

appellant identified the “brown handle” and noted that the pointed portion measured four

inches in length. Appellant signed beneath the drawing and wrote the date and time,

“8-11-08 10:42 p.m.”




                                            4
B. The Circumstances Surrounding Appellant’s Written Statement

        The transcript of the hearing on appellant’s motion to suppress his written

statement shows that law-enforcement officers did not attempt to interrogate appellant

after his arrest on June 16, 2008, because an attorney arrived at the Harlingen Police

Station, stated he represented appellant, and stated no one could speak to appellant. 3

On August 11, 2008, Lieutenant Rolando Castañeda of the Texas Rangers was

informed that appellant had been certified to stand trial as an adult and was not

represented by counsel.4 He traveled to the adult-detention facility and asked appellant

if he would give a statement. Detective Frank Rolph of the Harlingen Police Department

and Lieutenant Victor Escalon, Jr. of the Texas Rangers accompanied Lieutenant

Castañeda when he interviewed appellant.                  They were present during the entire

interview.

        Lieutenant Castañeda testified that appellant said he wanted to talk to the law-

enforcement officers the night he was arrested, but that his attorney would not let him.

After being read his Miranda warnings and the warnings required under Texas Code of

Criminal Procedure article 38.22, appellant spoke with the officers and gave his written

statement. The record shows appellant also initialed and signed a written copy of both

sets of rights. Appellant was interviewed and gave his written statement in a law library

and appellant, though handcuffed, was advised he was free to take a break any time


        3
           Lieutenant Castañeda testified that in June 2008 an attorney named Trey Garza appeared at
the police station and made that statement. Trey Garza, however, did not represent appellant in the trial
court.
        4
             The appellate record does not include a copy of any motion to withdraw as counsel or any
order permitting counsel to withdraw from representing appellant immediately following his certification to
stand trial as an adult. After filing appellant’s notice of appeal, appellant’s trial counsel, Anthony P.
Troiani, filed a motion to withdraw as counsel which the trial court granted before appointing appellate
counsel.

                                                    5
during his three to three-and-a-half hour conversation with the officers. Appellant was

very talkative and remained calm, though not emotionless, during the conversation.

      Lieutenant Castañeda testified that if appellant had told him he did not want to

speak, he would not have continued the conversation. Lieutenant Castañeda admitted

that at one point in the conversation he probably did tell appellant he would “talk to the

District Attorney’s Office without promising anything and see what happens because of

his cooperation.” But when asked whether he told appellant this at the outset of the

conversation, Lieutenant Castañeda responded that he could not recall at what point

during the interview he made this statement. In response to questioning from defense

counsel about when he made the statement, Lieutenant Castañeda clarified that the

start of his conversation with appellant consisted of Lieutenant Castañeda introducing

himself, telling appellant he was present to hear appellant’s side of the story, and

reading appellant his rights after appellant said he had wanted to give a statement from

the “get-go.”   Lieutenant Castañeda testified that he did not promise appellant a

reduced sentence in exchange for his statement, and that appellant was not threatened

or coerced in any way to make a statement.

      Detective Rolph testified that there was no conversation with appellant about how

his confession would affect his case.     Lieutenant Escalon testified that he did not

remember anyone telling appellant that the officers would talk to the district attorney

about his cooperation.

      Appellant testified at the suppression hearing and, in several respects, gave a

different account of the events that preceded his statement. Appellant testified that on

the day of his arrest, June 16, 2008, he told law enforcement and a magistrate judge



                                            6
that he did not want to talk to any of them. He was not interrogated at that time.

Appellant testified that no law-enforcement officer attempted to talk to him again until

August 11, 2008, after he was certified to stand trial as an adult. When asked whether

he had an attorney at the time he was certified to stand trial as an adult, appellant

testified, “No, sir. Well, at that time it was a juvenile court-appointed attorney.”

       Appellant testified that when the law-enforcement officers came to talk to him on

the night of August 11, 2008, the officers told him that they wanted to know the truth and

that if he spoke to them, they would tell the district attorney to give him “less time” or

“help” him “out.” Appellant testified that he initially told the officers he did not want to

speak, but because of their offer, he “just told them what happened from the beginning.”

C. The Trial Court’s Ruling on Appellant’s Motion to Suppress

       At the end of the suppression hearing, the trial court denied appellant’s motion to

suppress his written statement. The trial court found in open court that the statement

was obtained in compliance with Texas Code of Criminal Procedure article 38.22, and

its findings are included in the reporter’s record. See TEX. CODE CRIM. PROC. ANN. art.

38.22, § 6 (West 2011) (requiring the trial court to enter the specific findings of fact that

support its conclusion that the written statement made by an accused as a result of

custodial interrogation was voluntarily made); Drake v. State, 123 S.W.3d 596, 601–02

(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding trial court’s oral findings that

were dictated to a court reporter and made part of the record satisfied the article 38.22

requirement that the trial court enter findings); Garza v. State, 915 S.W.2d 204, 211

(Tex. App.—Corpus Christi 1996, pet. ref’d) (explaining it is mandatory for the trial court

to file findings under article 38.22, section 6). The court also found appellant was read



                                              7
his warnings, made a voluntary statement, and understood the consequences of giving

his statement. See e.g., Drake, 123 S.W.3d at 601–02.

                                                II. ISSUES

    In his brief, appellant asserts the following eight issues for review:5

         (1) Did the trial court reversibly err by not suppressing appellant’s written
             statement because it was obtained in violation of his Fifth and Sixth
             Amendment rights under the United States Constitution?

         (2) Did the trial court reversibly err by not suppressing appellant’s written
             statement under Texas Code of Criminal Procedure article 38.21 because the
             statement was induced by a promise from a law-enforcement officer that the
             statement would be beneficial to him?

         (3) Did appellant receive ineffective assistance of trial counsel?

         (4) Did the trial court err by allowing the State to introduce evidence of
             appellant’s prior juvenile adjudications?

         (5) Did the trial court reversibly err by refusing to instruct the jury to disregard
             improper jury argument concerning extraneous offenses?

         (6) Did the trial court reversibly err by its failure to instruct the jury on the issue of
             extraneous offenses?

         (7) Under Texas Rule of Evidence 403, did the trial court err in admitting
             photographs of the murder victim into evidence over appellant’s objection?

         (8) Did the trial court err in denying appellant a mistrial when the State improperly
             argued that appellant failed to make a statement to law-enforcement officers
             at the time of his arrest?

                                            III. ANALYSIS

A. Appellant’s Motion to Suppress His Written Statement

        In the trial court, the focus of appellant’s motion to suppress was that he lacked the

intelligence to validly waive his rights and give a knowing, voluntary statement to the

law-enforcement officers. Appellant also argued in his motion to suppress that: (1) his

         5
             In the interest of judicial economy, we paraphrase appellant’s issues as necessary. See id.
47.1.

                                                    8
written statement was inadmissible because it was obtained in violation of his rights

under the Fifth and Sixth Amendments to the United States Constitution; and (2) the

statement was induced by an improper promise from a law-enforcement officer.

     1. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). At a suppression hearing, the trial court is the sole finder of fact and is free to

believe or disbelieve any or all of the evidence presented. Wiede v. State, 214 S.W.3d

17, 24 (Tex. Crim. App. 2007). We give almost total deference to the trial court’s

determination of historical facts that depend on credibility and demeanor, but we review

de novo the trial court’s application of the law to the facts because resolution of those

ultimate questions does not turn on the evaluation of credibility and demeanor.

See Guzman, 955 S.W.2d at 89. We review a trial court’s ruling on a motion to

suppress in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24.

If supported by the record, a trial court’s ruling on a motion to suppress will not be

overturned. Mount v. State, 217 S.W.3d 716, 724 (Tex. App.—Houston [14th Dist.]

2007, no pet.).

     2. Admissibility of the Statement under the Fifth and Sixth Amendments

      By his first issue, appellant argues that the trial court erred by admitting his

written statement into evidence because it was obtained in violation of his rights under

the Fifth and Sixth Amendments to the United States Constitution. See U.S. CONST.

amends. V, VI. Specifically, appellant argues that his statement was inadmissible under

Michigan v. Jackson and Edwards v. Arizona because he was represented by counsel



                                            9
when he gave the statement, counsel had previously advised law enforcement that no

one was to speak to appellant, and counsel was not present when appellant was taken

from his cell just after 10:00 p.m. and interrogated for over three hours. See Michigan v.

Jackson, 475 U.S. 625, 636 (1986), overruled by Montejo v. Louisiana, 556 U.S. 778

(2009); Edwards v. Arizona, 451 U.S. 477, 485 (1981).

        The Supreme Court of the United States has held that in deciding whether an

accused actually invoked his right to counsel, reviewing courts must use an objective

standard and determine whether an accused unambiguously requested counsel during

custodial interrogation. See Pecina v. State, 361 S.W.3d 68, 79 (Tex. Crim. App. 2012)

(citing Davis v. U.S., 512 U.S. 452, 458–59 (1994)). This approach avoids difficulties of

proof and provides officers guidance in conducting interrogations. Id. Thus, we review

the totality of the circumstances from the viewpoint of the objectively reasonable police

officer conducting a custodial interrogation.6 Id.

        In Pecina v. State, the Texas Court of Criminal Appeals considered how the Fifth

and Sixth Amendment rights to counsel are invoked and how they apply to custodial

interrogation. See id. at 74–75. The Fifth Amendment prohibits the government from

compelling a criminal suspect to incriminate himself. Id. (citing U.S. CONST. amend. V

which states, “No person . . . shall be compelled in any criminal case to be a witness

against himself.”). Before questioning a suspect who is in custody, police must give the

suspect Miranda warnings. Id. at 75 (citing Miranda v. Arizona, 384 U.S. 436 (1966)).


        6
            This objective standard applies to a child’s invocation of his constitutional right to have counsel
present during custodial interrogation. In re H.V., 252 S.W.3d 319, 333 (Tex. 2008) (citing Davis v. U.S.,
512 U.S. 452, 459 (1994)). The federal Miranda rights “apply to juveniles just as they do to adults.” Id. at
325. In Texas, a person who is seventeen at the time of making a statement to law enforcement is
treated as an adult. See Ramos v. State, 961 S.W.2d 637, 639 (Tex. App.—San Antonio 1998, no pet.)
(citing Griffin v. State, 765 S.W.2d 422, 427 (Tex. Crim. App. 1989) and applying TEX. FAM. CODE ANN. §
51.095).

                                                     10
Only if the person voluntarily and intelligently waives his Miranda rights, including his

right to have an attorney present during interrogation, may his statement be introduced

into evidence against him at trial. Id. Under Edwards, once a person has invoked his

right to have counsel present during custodial interrogation, police may not re-initiate

interrogation; police may not badger a person into waiving his previously asserted

Miranda rights. Id. (citing Edwards, 451 U.S. at 485). But Miranda rights can only be

invoked within the context of custodial interrogation. Id. at 75–76. The Supreme Court

of the United States has never accepted anticipatory invocation of Miranda rights (1)

given by someone other than law-enforcement officers or other state agents; or (2)

outside the context of custodial interrogation. Id. at 76 (citing McNeil v. Wisconsin, 501

U.S. 171, 182 n.3 (1991)).

       The Sixth Amendment right to counsel attaches once the adversary judicial

process has been initiated, and it guarantees a defendant the right to have counsel

present at all critical stages of the criminal proceedings, including custodial

interrogation. Id. at 77 (citing Montejo, 556 U.S. at 786). Under Montejo, if an accused

who requested counsel at an arraignment or other initial appearance also wishes to

invoke his Sixth Amendment right to counsel during post-arraignment custodial

interrogation, he may do so by invoking his Miranda rights at the outset of custodial

interrogation. Id. at 78. A defendant’s invocation of his right to counsel at the time of

magistration says nothing about his possible invocation of his right to counsel during a

subsequent police-initiated custodial interrogation. Id.

       In Pecina, paramedics responded to a 911 call and found Pecina and his wife in

their apartment bleeding from stab wounds. Id. at 71. Pecina’s wife died before the



                                            11
paramedics arrived and police believed Pecina had killed his wife, then stabbed himself.

Id.   While Pecina was still in the hospital, an arrest warrant was obtained and a

magistrate visited Pecina in his room. Id. The magistrate arraigned Pecina and then

asked him if he wanted a court-appointed attorney and if he wanted to talk to the

Arlington Police Department detectives who were waiting outside his hospital room. Id.

at 72. Pecina stated he wanted a court-appointed attorney. Id. Pecina also responded

that he wanted to speak with the detectives and never indicated to the magistrate that

he wanted an attorney present when he spoke with the detectives. Id. The magistrate

then exited the room. Id. The detectives entered Pecina’s hospital room, and after

Pecina received his Miranda warnings and waived his Miranda rights, he gave the

police a recorded statement. Id. Later, trial counsel was appointed to represent him.

Id. at 73. The Court of Criminal Appeals concluded that because the defendant never

invoked his right to counsel during the custodial interrogation, the trial court properly

denied his motion to suppress the admission of his statement into evidence at trial. Id.

at 81.

         In this case, as in Pecina, there is no evidence appellant ever invoked his right to

counsel in the context of a custodial interrogation. Neither appellant’s own testimony

(that in June 2008, he told law enforcement and the magistrate he did not want to talk)

nor Lieutenant Castañeda’s testimony (that an attorney arrived at the Harlingen police

station and stated no one could speak to appellant) showed that appellant invoked his

Miranda rights during a custodial interrogation. Therefore, the trial court properly denied

appellant’s motion to suppress his written statement because the record did not show

that appellant’s statement was obtained in violation of his rights under the Fifth and



                                              12
Sixth Amendments to the United States Constitution. See id. (citing Montejo); see also

Montejo, 556 U.S. at 689 (explaining the Sixth Amendment does not categorically

prohibit law-enforcement officers from approaching a defendant and asking him to

consent to custodial interrogation solely because he is represented by counsel);

Montelongo v. State, 681 S.W.2d 47, 53–54 (Tex. Crim. App. 1984) (explaining the trial

court may reject the accused’s testimony at a suppression hearing and believe the

police officers’ testimony instead; holding that absent an accused’s clear invocation of

the right to counsel during custodial interrogation, an attorney’s unsolicited advice to not

give a statement is not an invocation of the right to have counsel present during

custodial interrogation). Accordingly, we overrule appellant’s first issue.

      3. Admissibility of the Statement under the Code of Criminal Procedure

        By his second issue, appellant argues that his written statement was

inadmissible under article 38.21 of the Texas Code of Criminal Procedure because it

was induced by Lieutenant Castañeda’s alleged promise to help appellant if he made a

statement to the law-enforcement officers.7 See TEX. CODE CRIM. PROC. ANN. art. 38.21

(West 2005). We disagree.

        Article 38.21 provides that a statement of an accused may be used in evidence

against him if it appears that the same was freely and voluntarily made without

compulsion or persuasion. Id. To decide whether a statement meets this standard, a

court of appeals must examine the totality of the circumstances surrounding the

        7
          In the trial court, appellant cited Texas Code of Criminal Procedure article 38.22 in support of
his contention that a promise may have rendered his statement involuntary, but on appeal he cites article
38.21. See TEX. CODE CRIM. PROC. ANN. arts. 38.21, 38.22 (West 2005). Notwithstanding this
discrepancy, we will address the merits of appellant’s second issue because under both articles, the
Texas Court of Criminal Appeals has used the same test in determining whether a promise rendered a
confession involuntary. Compare Joseph v. State, 309 S.W.3d 20, 26 n.8 (Tex. Crim. App. 2010)
(analyzing the voluntariness of a statement under article 38.22), with Martinez v. State, 127 S.W.3d 792,
794 (Tex. Crim. App. 2004) (analyzing the voluntariness of a statement under article 38.21).

                                                   13
acquisition of the statement to determine whether it was given voluntarily. Delao v.

State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007); Creager v. State, 952 S.W.2d 852,

856–57 (Tex. Crim. App. 1997). For a promise to render a confession invalid under

article 38.21, the promise must be: (1) positive; (2) made or sanctioned by someone in

authority; and (3) of such an influential nature that it would cause a defendant to speak

untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004) (citing

Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997)).           However, the

relevant inquiry under state law is not whether the defendant spoke truthfully or not, but

whether the officially sanctioned, positive promise would be likely to influence the

defendant to speak untruthfully. Id. at 794–95.

      In Masterson, the Court of Criminal Appeals held that a police officer’s statement

to a defendant that he would “pass along” information if the defendant admitted to

owning certain drugs, did not amount to a positive promise. Masterson v. State, 155

S.W.3d 167, 171 (Tex. Crim. App. 2005). Similarly, in Martinez, the Court of Criminal

Appeals concluded that no positive promise was made when a police detective testified

that he made no promises to the defendant, he told the defendant he needed to know

who owned the drugs, and that the defendant “could have gathered” from that statement

that his brother and father would not be charged if the defendant accepted responsibility

for the drugs. Martinez, 127 S.W.3d at 793, 795.

      In considering appellant’s motion to suppress, the trial court was free to believe

the law-enforcement officers’ testimony and to disbelieve appellant’s testimony. See

Delao, 235 S.W.3d at 238; Masterson, 155 S.W.3d at 171. With regard to whether a

promise was made, Lieutenant Castañeda testified that he did not promise appellant



                                           14
anything, but testified that he probably did tell appellant he would talk to the district

attorney’s office and see what happened based on appellant’s cooperation. Lieutenant

Castañeda’s testimony also showed that while he could not recall the point in the

conversation at which he would have made this statement to appellant, it was not at the

beginning of the conversation or before appellant agreed to give a statement.

Conversely, Lieutenant Escalon and Detective Rolph testified respectively that they did

not recall any conversation about how the statement would affect appellant’s case and

that there was no such conversation with appellant. Considering the totality of the

circumstances, the evidence supports the trial court’s implied finding that no positive

promise was made to induce appellant to give his statement.           See Martinez, 127

S.W.3d at 795; Masterson, 155 S.W.3d at 170. We overrule appellant’s second issue.

B.   Appellant’s Claim of Ineffective Assistance of Trial Counsel

       By his third issue, appellant argues that his trial counsel rendered ineffective

assistance under the United States and Texas Constitutions because counsel failed to

request a psychological examination to “check [a]ppellant’s competency to stand trial;

and . . . [a]ppellant’s IQ to establish diminished capacity in [a]ppellant’s thought

process.” Appellant also argues that his trial counsel failed to object to the admission of

multiple extraneous offenses, but he does not provide record citations in support of this

argument. To the extent appellant has failed to support his ineffective-assistance claim

with citations to the record showing trial counsel’s failure to object to the alleged

admission of multiple extraneous offenses, appellant fails to present anything for

appellate review. See TEX. R. APP. P. 38.1(i); Castillo v. State, 186 S.W.3d 21, 24 (Tex.

App.—Corpus Christi 2005, pet. ref’d).



                                            15
       Both the United States and Texas Constitutions guarantee an accused the right

to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE

CRIM. PROC. ANN. art. 1.051 (West 2011). This right necessarily includes the right to

reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

686 (1984). To prove ineffective assistance of counsel, a defendant must show, (1) by

a preponderance of the evidence, that counsel’s performance was so deficient that he

was not functioning as acceptable counsel under the Sixth Amendment; and (2) there is

a reasonable probability that, but for counsel’s error or omission, the result of the

proceeding would have been different. Strickland, 466 U.S. at 687–96; Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The defendant must overcome the

strong presumption that the challenged action might have been sound trial strategy.

Thompson, 9 S.W.3d at 813. We will not speculate to find trial counsel ineffective when

the record is silent as to counsel's reasoning or strategy. Godoy v. State, 122 S.W.3d

315, 322 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

       When, as in this case, there is no evidentiary record developed at a hearing on a

motion for new trial, it is extremely difficult to show that trial counsel's performance was

deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Aldaba v.

State, No. 14-08-00417-CR, 2009 WL 1057685, at *5 (Tex. App.—Houston [14th Dist.]

April 16, 2009, pet. ref’d). If there is no hearing or if counsel does not appear at the

hearing, an affidavit from trial counsel becomes almost vital to the success of an

ineffective-assistance claim.   Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d). The Texas Court of Criminal Appeals has stated

that it should be a rare case in which an appellate court finds ineffective assistance on a



                                            16
record that is silent as to counsel’s trial strategy. See Andrews v. State, 159 S.W.3d 98,

103 (Tex. Crim. App. 2005). On a silent record, this court can find ineffective assistance

of counsel only if the challenged conduct was so outrageous that no competent attorney

would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005).

         Appellant’s ineffective-assistance claim fails because he has not met his burden

under either prong of the Strickland test. The record contains multiple psychological

evaluations of appellant and reflects that trial counsel was aware of appellant’s

intelligence quotient based on a professional evaluation. For example, the record shows

that on July 3, 2008, a psychological evaluation was performed on appellant to

determine whether he could be certified to stand trial as an adult. The psychologist

concluded and explained in his report that appellant could knowingly participate in the

judicial process, converse, and make agreements with full comprehension.             The

psychologist wrote appellant “is well aware of what he is doing” and recommended that

appellant was certifiable to stand trial as an adult.

         On this record we cannot conclude that appellant has shown by a preponderance

of the evidence that trial counsel’s performance was so deficient that he was not

functioning as acceptable counsel by not requesting further psychological or intelligence

evaluation.     See Strickland, 466 U.S. at 687–96.      Moreover, appellant offers no

explanation, let alone an explanation rooted in the record, of how the outcome of the

proceeding would have been different had trial counsel not been deficient as alleged and

thus, appellant has not met his burden to show prejudice. See id. Appellant’s third issue

is overruled.



                                              17
C. Appellant’s Remaining Issues

        Appellant’s remaining issues (issues four through eight) present nothing for

appellate review because appellant has failed to support these issues with appropriate

citations to the record.8 See TEX. R. APP. P. 38.1(i) (providing the brief must contain a

clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record); Castillo, 186 S.W.3d at 24; see also Cook v. State, 611

S.W.2d 83, 87 (Tex. Crim. App. [Panel Op.] 1981) (“This court with its tremendous

caseload should not be expected to leaf through a voluminous record hoping to find the

matter raised by appellant and then speculate whether it is that part of the record to

which appellant had reference.”); see also Rodriguez v. State, No. 13-05-00522-CR,

2006 WL 2382768, at *1 n.2 (Tex. App.—Corpus Christi, Aug. 17, 2006, no pet.) (mem.

op., not designated for publication) (concluding defendant’s sub-issue that the trial court

omitted extraneous-offense instruction from jury charge presented nothing for review

because it was inadequately briefed).               Appellant’s fourth through eighth issues are

overruled.

D. Response to Dissenting Memorandum Opinion

        The dissent argues that because the juvenile court had not yet signed its order

waiving jurisdiction and transferring appellant’s case to the trial court when appellant

gave his written statement, law-enforcement officers improperly obtained appellant’s

written statement and the trial court reversibly erred by failing to suppress the written

statement sua sponte. We cannot agree with the dissent’s analysis because it fails to
        8
           By his eighth issue, appellant argues the trial court erred by denying him a mistrial when the
State improperly argued that appellant failed to make a statement to law-enforcement officers at the time
of his arrest. In support of his eighth issue, appellant provides a single record citation to a portion of the
State’s closing argument during the punishment phase of trial. However, nowhere in the pages cited, nor
in the pages immediately preceding or following it, is there any argument concerning appellant’s failure to
make a statement at the time of his arrest or any denial of a request for a mistrial made on this basis.

                                                     18
explain why its transfer-order argument is not subject to waiver and because it does not

adequately address either the legal significance of appellant’s age (seventeen) when he

gave his written statement to law enforcement or the legal significance of appellant’s

physical transfer to an adult-detention facility prior to giving his statement. In addition,

the dissent’s reliance on dicta from Vasquez v. State is misplaced because Vasquez is

not about the signing or timing of a juvenile court’s transfer order. See 739 S.W.2d 37,

43 (Tex. Crim. App. 1987) (en banc).

       Procedurally, we note that even if appellant’s statement was improperly obtained

because the juvenile court’s transfer order was not signed before appellant gave the

statement, the dissent fails to explain how this Court could consider the argument when

it was not raised in the trial court or on appeal. See TEX. R. APP. P. 33.1, 38.1. In the

trial court, there was no dispute about whether appellant was an adult at the time he

gave his written statement to law enforcement. Instead, appellant argued his motion to

suppress his written statement on the premise that he was an adult at the time he gave

the statement. At the outset of the suppression hearing, the State urged the trial court

to dismiss appellant’s motion because it was too vague.          In response, appellant’s

counsel explained his suppression argument to the trial court, stating, among other

things, that even though appellant had been certified to stand trial as an adult, had

turned seventeen, and had been transferred to an adult-detention facility before giving

his written statement, appellant lacked the intelligence to validly waive his rights and

voluntarily give law-enforcement officers a statement.

       On appeal, appellant has not changed his position concerning whether he was

an adult when he gave his written statement. In other words, even assuming for the



                                            19
sake of argument only that appellant was entitled to the protections of Family Code

section 51.095 when he gave his written statement, appellant waived this complaint by

not raising it in the trial court and by not briefing it on appeal. See Ponce v. State, 985

S.W.2d 594, 595 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (holding defendant

failed to preserve for appellate review her claim that her statement was taken in

violation of Family Code section 51.095 when she did not obtain a ruling on this claim in

the trial court); see also TEX. R. APP. P. 33.1, 38.1; Geter v. State, No. 05-95-00775-CR,

1996 WL 459767, at *3 (Tex. App.—Dallas July 31, 1996, no pet.) (not designated for

publication) (holding appellant failed to preserve for appellate review his complaint that

his confession was inadmissible because it was not given in accordance with the Family

Code requirements pertaining to admissibility of a child’s statement).

      We further note that there is no evidence in the record that law-enforcement

officers attempted to interrogate appellant on June 16, 2008, after appellant’s arrest. At

the suppression hearing, appellant testified as follows about his interaction with law-

enforcement officers at the time of his arrest. Appellant gave the following testimony on

direct-examination:

      Q.     Okay. Back in June of 2008, how old were you?

      A.     I was 16.

      Q.     Okay. On June 16th, 2008, were you arrested?

      A.     Yes, sir.

      Q.     Okay. At that time, were you approached by officers of the—well, law
             enforcement officers?

      A.     Yes, sir, I was.

      Q.     Okay. Did you at that time agree to speak with law enforcement officers?


                                            20
A.   No, sir, I did not. I refused.

Q.   Okay. Do you remember what the officers—did the officers speak to you
     at all?

A.   No, sir.

Q.   Okay.

A.   They just asked me if I wanted to speak to them, and I said no, I did not.

Q.   Okay. And where were you taken?

A.   To Harlingen PD.

Q.   Okay. And at Harlingen PD, were you placed in a cell?

A.   No, sir. It was in, I believe it was like a little office.

Q.   Okay.

A.   It was in a room, yeah.

Q.   Okay. And at that time what happened?

A.   I was there for a while, about an hour, and they told me if I wanted to
     speak to anybody. I said, “No, I don’t want to speak to anybody.” And
     then I believe it was a, Judge Sallie Gonzalez, she came and told me that
     if I want to speak to her. I said no, I refused, and I signed the paper.

Q.   Okay. And so when you spoke with the officers, you told them you didn’t
     want to speak to them; and then when you spoke, when Judge Gonzalez
     asked you about it, you told her you didn’t want to speak to the officers
     either?

A.   No, sir.

Q.   Okay. Between that time, between speaking with Judge Gonzalez and
     August 11th of 2008, did anyone attempt to speak with you or talk to you
     about this case?

A.   No, sir.

Q.   From law enforcement?

A.   No, sir.


                                      21
       Lieutenant Castañeda testified that there was no attempt to interrogate appellant

after his arrest on June 16, 2008, because an attorney arrived at the Harlingen Police

Station, stated he represented appellant and no one could speak to appellant. As the

sole fact finder at the suppression hearing, the trial court was free to believe Lieutenant

Castañeda’s testimony. See Wiede, 214 S.W.3d at 24.

       The dissent would hold that section 54.02 of the Texas Family Code required the

juvenile court to sign its transfer order before appellant made his statement in order for

the statement to be admissible. Section 54.02 of the Family Code is titled “Waiver of

Jurisdiction and Discretionary Transfer to Criminal Court.” See TEX. FAM. CODE ANN. §

54.02 (West 2008). Section 54.02 addresses the circumstances under which a juvenile

court is authorized or required to waive its jurisdiction and transfer a case to a criminal

court. See id. § 54.02(a),(m); see also Miller v. State, 981 S.W.2d 447, 449 (Tex.

App.—Texarkana 1998, pet. ref’d) (discussing section 54.02). Section 54.02 also sets

forth certain required contents of an order waiving jurisdiction and transferring a person

to the appropriate court for criminal proceedings. See TEX. FAM. CODE ANN. § 54.02(h).

However, the Legislature has not made section 54.02 the legal standard for the

admissibility of a statement given by a seventeen year old incarcerated in an adult-

detention facility.

       Neither Family Code section 51.095 (“Admissibility of a Statement of a Child”)

nor section 54.02 (“Waiver of Jurisdiction and Discretionary Transfer to Criminal Court”)

makes the date the transfer order is signed dispositive of whether the admissibility of a

statement is governed by Family Code Section 51.095.          See id. §§ 51.095, 54.02.

Section 51.02 of the Family Code defines a “child” as someone who is “ten years of age



                                            22
or older and under 17 years of age.” See id. § 51.02. The protections of Family Code

section 51.095, pertaining to the admissibility of statements, apply only to “the

statement of a child.” See id. § 51.095. Appellant was not a child when he made his

written statement because he had already turned seventeen. See id.; see also Griffin v.

State, 765 S.W.2d 422, 427 (Tex. Crim. App. 1989) (explaining the admissibility of a

statement made at age sixteen and before juvenile court relinquished jurisdiction was

properly analyzed under the Family Code); Lovell v. State, 525 S.W.2d 511, 514 (Tex.

Crim. App. 1975) (same); Ramos v. State, 961 S.W.2d 637, 639 (Tex. App.—San

Antonio 1998, no pet.) (citing Griffin, 765 S.W.2d at 427 and applying TEX. FAM. CODE

ANN. § 51.095).

         Our interpretation is supported by the following language in section 54.02 which

the dissent did not include as pertinent to its analysis: “[o]n transfer of the person for

criminal proceedings, the person shall be dealt with as an adult and in accordance with

the Code of Criminal Procedure. . . . The transfer of custody is an arrest.” TEX. FAM.

CODE ANN. § 54.02(h). Appellant had been transferred to an adult-detention facility

when he made his statement. Without ruling on the issue of the precise timing of a

transfer order, the Court of Criminal Appeals has interpreted the arrest language in the

statute to mean that once a person is transferred to adult custody from juvenile custody,

he is arrested “as an adult suspect.” See Vasquez, 739 S.W.2d at 40.9 While the

Vasquez Court stated in dicta, “[u]ntil the moment transfer is ordered, the juvenile is

cloaked with the trappings of a non-criminal proceeding with attendant safeguards such


        9
           The issue before the Court of Criminal Appeals in Vasquez v. State was whether a defendant
arrested as a juvenile, but later certified to stand trial as an adult, was entitled to the protections of the
adult-arrest statute in Texas Code of Criminal Procedure article 14.04 at the time of his initial detention.
739 S.W.2d 37, 40 (Tex. Crim. App. 1987) (en banc). The court held he was not. Id. at 43.

                                                     23
as greater protections in the areas of confession law and notice requirements[,]”

Vasquez does not contemplate, in dicta or otherwise, the proper procedure and timing

for signing a transfer order under section 54.02 of the Family Code. See id. at 44.

Thus, the dissent’s emphasis on Vasquez is misplaced.

                                    IV. CONCLUSION

      We affirm the trial court’s judgment.

                                                   ______________________________
                                                   Gregory T. Perkes
                                                   Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
26th day of July, 2012.




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