Opinion filed October 31, 2017




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-15-00271-CR
                                     __________

                     JUSTIN BRYAN BELL, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                             Taylor County, Texas
                         Trial Court Cause No. 26444A


                      MEMORANDUM OPINION
      The jury convicted Justin Bryan Bell of aggravated kidnapping (Count I),
sexual assault (Count II), and assault family violence (Count III) and assessed his
punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for a term of sixty years for Count I, ten years for Count II, and ten
years for Count III. The jury also assessed a fine of $5,000 for Count I, a fine of
$3,000 for Count II, and a fine of $10,000 for Count III. The trial court sentenced
Appellant accordingly and ordered that the three sentences be served concurrently.
In a single issue on appeal, Appellant asserts that he received ineffective assistance
of counsel. We affirm.
                                 Background Facts
      This case arises from a domestic dispute between Appellant and M.B., the
victim.   For six years, Appellant and M.B. were involved in a tumultuous,
intermittent dating relationship. M.B. testified that on May 20, 2013, she was living
in Lewisville but traveled to Abilene to make a loan payment. M.B. arranged to
meet with Appellant because he promised to help her with the payment. M.B. stayed
two nights with Appellant—at two different motels.
      On the morning of May 22, M.B. told Appellant that she was going home.
M.B. testified that Appellant became so enraged that he started choking her on the
bed. M.B. screamed for Appellant to stop, but he put his hand over her mouth and
continued the assault. Appellant then began removing M.B.’s clothes. Appellant
continued the assault by digitally penetrating M.B. A knock on the motel room door
by housekeeping staff interrupted the assault.
      John McFarland, an employee of the motel where Appellant and M.B. were
staying, testified that, around 9:30 a.m., he knocked on the motel door to inquire if
the occupants were staying another night. At that time, John heard a woman say
that, “everything is not ok.” Then at 11 a.m., John went with another employee,
Susan McFarland, and knocked on the motel room door to give a second reminder
of the checkout time. Both John and Susan testified that the woman inside the room
slapped on the window and screamed, “[H]elp me.”
      At some point, M.B., “grabbed what [she] could,” and “ran out the door.”
Appellant followed her. M.B. testified that she threw her keys across the parking lot
“[t]o get [Appellant] away from [her]” and jumped into her vehicle to lock the doors.
However, Appellant returned with the keys, got into the driver’s seat, and drove
away. M.B. tried to exit the vehicle, but she was unsuccessful because Appellant
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pulled her back into the van. One of the housekeepers testified that M.B. looked like
she was trying to exit the van.
       After Appellant passed his usual exit, he told M.B. that “[h]e was going to
take [her] out and finish what he started. This caused M.B. to secretly dial 9-1-1 and
hide her phone behind her. M.B. testified that she was naming roads aloud, hoping
emergency personnel could find her. They ended up out in the county on a dead-
end, dirt road where M.B. again tried to escape. M.B. testified that she did not know
where she was, but she tried to get help by running to a house located on the road.
However, Appellant came up behind her and dragged her “by the hair” back to the
van.
       M.B. testified that the 9-1-1 call abruptly ended when Appellant found the
phone and took the battery out of it. Eventually, Appellant drove M.B. back into
town to his mother’s house. Once there, Appellant said that he would leave her alone
if she did not call the police. While they were loading M.B.’s belongings into her
van, Appellant suddenly hit himself on the head with a picture and told M.B., “It’s
not going to go down like you think it is.” Appellant then called 9-1-1 alleging that
M.B. had broken into his house. M.B. took off in her vehicle and called 9-1-1.
Officer Tim Pipes, of the Abilene Police Department, responded and transported
Appellant to the law enforcement center.
       Officer Stacey Cisneros, a detective with the Abilene Police Department,
interviewed Appellant at the law enforcement center. Appellant did not testify
during the guilt/innocence phase of trial, but the trial court admitted his voluntary
interview into evidence. In the interview, Appellant admitted that M.B. requested
him to get off of her and that he did not immediately comply with her request.
Additionally, Detective Cisneros testified that Appellant told him that Appellant
wished he would have let M.B. out of the van.


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                                       Analysis
      In a single issue, Appellant asserts that he received ineffective assistance of
counsel at trial.    Specifically, he contends that his trial counsel failed to
(1) investigate and present exculpatory evidence, (2) call witnesses to contradict the
State’s case, and (3) effectively cross-examine witnesses with prior inconsistent
statements.
      In order to establish that trial counsel rendered ineffective assistance at trial,
Appellant must show that counsel’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687
(1984); Ex parte Bryant, 448 S.W.3d 29, 39 (Tex. Crim. App. 2014). Courts must
indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance, and Appellant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy. Strickland, 466 U.S. at 689. “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. Strickland, 466 U.S. at 690.
      “[A]ny allegation of ineffectiveness must be firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v.
State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (quoting McFarland v. State, 928
S.W.2d 482, 500 (Tex. Crim. App. 1996)). Under normal circumstances, “[d]irect
appeal is usually an inadequate vehicle for raising such a claim because the record
is generally undeveloped.” Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim.
App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005)). The Court of Criminal Appeals has said that “trial counsel should ordinarily
be afforded an opportunity to explain his actions before being denounced as
ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If
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trial counsel did not have an opportunity to explain his action, we will not find
deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001).
       Appellant first contends that his trial counsel was ineffective by not
investigating potential exculpatory evidence on Appellant’s cell phone. He asserts
that this deficiency precluded him from presenting an adequate defense. “In any
ineffectiveness case, a particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure of deference
to counsel’s judgments.” Strickland, 466 U.S. at 691; see Ex parte Bowman,
No. PD-0208-16, 2017 WL 2799976, at *10 (Tex. Crim. App. June 28, 2017).
However, when the record is silent as to the scope of the attorney’s investigation,
we may not assume that no such investigation was made. Hernandez v. State, 726
S.W.2d 53, 57 (Tex. Crim. App. 1986).
      Appellant alleges on appeal that the call log from his cell phone would show
that M.B. called Appellant on the day of the assault. He asserts that those calls would
have proved that he did not detain M.B. against her will and left her in a safe
environment. The cell phone was booked into evidence in a separate case almost
two years after the offense at issue. After the State rested its case-in-chief in the
underlying trial, Appellant’s trial counsel requested access to the phone “[t]o see if
[M.B.] called . . . on that day, May 22, between the hours of . . . 12:22 [and] 2:30.”
Outside the presence of the jury, the trial court initially permitted Appellant to access
the phone, but he was unsuccessful in remembering the password for it. The trial
court then allowed Deputy Craig Griffis of the Taylor County Sheriff’s Office to
conduct a forensic examination of the phone in an attempt to retrieve the call log.
The record does not indicate what results, if any, this forensic examination yielded.


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      Appellant asserts that, under prevailing professional standards, his trial
counsel should have requested the cell phone evidence and forensic examination
prior to trial. However, Appellant has not provided a record on appeal showing the
existence of exculpatory evidence in the call log, and the record is devoid of any
explanation of his trial counsel’s actions or strategy. See Rylander, 101 S.W.3d at
111; Thompson, 9 S.W.3d at 814. Without such evidence on direct appeal, we cannot
conclude that Appellant’s trial counsel was deficient or that the result of the
proceeding would have been different.
      Next, Appellant briefly contends that his trial counsel failed to call witnesses
to contradict the State’s case. The decision to call a witness is generally a matter of
trial strategy. Lopez v. State, 462 S.W.3d 180, 185 (Tex. App.—Houston [1st Dist.]
2015, no pet.) (citing Lair v. State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st
Dist.] 2008, pet. ref’d)). The Court of Criminal Appeals has held that the “failure to
call witnesses at the guilt-innocence and punishment stages is irrelevant absent a
showing that such witnesses were available and appellant would benefit from their
testimony.” Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting
King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)).
      In this case, Appellant has failed to make such a showing. Appellant makes
no argument on appeal regarding the identity, availability, or benefit of particular
witness testimony. See Strickland, 466 U.S. at 690 (“A convicted defendant making
a claim of ineffective assistance must identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable professional judgment.”); see
also Bowman, 2017 WL 2799976, at *10. Therefore, we cannot conclude that trial
counsel’s decision not to call additional witnesses was not a matter of sound trial
strategy. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (“Even if
such evidence existed, defense counsel could have reasonably determined that the


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potential benefit of additional witnesses . . . was outweighed by the risk of
unfavorable counter-testimony.”).
      Appellant also contends that his trial counsel failed to effectively cross-
examine testifying witnesses. Specifically, he asserts that trial counsel failed to
impeach “some witnesses” on cross-examination with inconsistent prior recorded
statements. The record shows that Appellant’s trial counsel cross-examined each of
the State’s witnesses, but it is silent regarding trial counsel’s reasons for cross-
examining the witnesses in the manner that he did. Furthermore, Appellant has not
cited to any prior recorded statements of witnesses that are inconsistent with their
trial testimony.
      The absence of trial counsel’s reasoning in conducting cross-examination
precludes a finding that counsel was “objectively deficient.” Ex parte McFarland,
163 S.W.3d 743, 754 (Tex. Crim. App. 2005). “Cross-examination is inherently
risky, and a decision not to cross-examine a witness is often the result of wisdom
acquired by experience in the combat of trial.” Id. at 756. “[C]ross-examination is
an art, not a science, and it cannot be adequately judged in hindsight.” Id.
      All of Appellant’s claims of ineffective assistance of counsel are inherently
matters of trial strategy. The record before us does not demonstrate that trial
counsel’s representation fell below an objective standard of reasonableness because
there has been no inquiry into trial counsel’s trial strategy. See Thompson, 9 S.W.3d
at 812–13. Even without such an inquiry, the record before us does not show that
trial counsel was deficient because Appellant has not cited to any exculpatory
evidence that trial counsel failed to adduce at trial.      Finally, the absence of
exculpatory evidence supporting his ineffective assistance claim precludes us from
finding that the result of the proceeding would have been different but for trial
counsel’s alleged deficiencies. We overrule Appellant’s sole issue.


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                                   This Court’s Ruling
      We affirm the judgments of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


October 31, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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