Affirmed and Memorandum Opinion filed October 18, 2018.




                                      In The

                      Fourteenth Court of Appeals

                              NO. 14-17-00409-CR

                      ARNESIA WASHINGTON, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 248th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1509295

                  MEMORANDUM OPINION
      In this one-issue case appellant Arnesia Washington claims her trial counsel
rendered ineffective assistance by failing to object to victim-character and victim-
impact evidence. Asserting the evidence was unfairly prejudicial and resulted in
the trial court imposing an overly lengthy prison sentence, appellant urges this
court to reverse the trial court’s judgment and remand for a new sentencing
hearing. We affirm.
                  I. FACTUAL AND PROCEDURAL BACKGROUND

      While driving on a Houston freeway, appellant struck another vehicle. She
failed to stop after the collision. The other motorist called 911 and then, believing
appellant to be drunk or in distress, began to follow appellant’s vehicle. According
to the motorist, appellant was driving erratically and weaving back and forth across
lanes of traffic. Appellant struck a second vehicle, forced a third vehicle into an
emergency lane, and then swerved and struck a concrete barrier.              Shortly
thereafter, appellant accelerated into the back of a motorcycle operated by the
complainant, Steven Rudoff. The impact launched Rudolph from the motorcycle,
hurling him to an instant death.
       After the motorcycle collision appellant moved her vehicle onto the right
shoulder of the highway to await emergency responders. When police arrived,
they learned that appellant’s two young children were passengers in her vehicle
during the deadly episode. The officers saw that the children’s car seats were both
facing forward, without being strapped or secured to the car. In the course of their
investigation, the officers also discovered a white pill, later identified as
acetaminophen and hydrocodone bitartrate, in appellant’s back pocket and a pill
bottle containing 28 Paroxetine pills in appellant’s front-seat console. The officers
detained appellant and took her to the Houston Police Department “central intox”
facility, where another officer administered standardized field-sobriety tests and
conducted a drug evaluation. After concluding that appellant was intoxicated and
under the influence of a central nervous system depressant, and unable to operate a
motor vehicle safely, the officers arrested appellant for the offense of felony
murder, with the underlying offense of driving while intoxicated with a child
passenger.



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         Appellant was charged with felony murder in an indictment alleging that she
intentionally and knowingly committed the felony offense of driving while
intoxicated with a child passenger,1 and that while in the course of and in
furtherance of the commission of this offense, appellant committed an act clearly
dangerous to human life and thereby caused the death of Steven Rudoff.2 The
indictment also alleged that appellant used or exhibited a deadly weapon—a motor
vehicle—while committing the offense and during immediate flight from the
offense.
         Appellant entered an open plea of guilty to the offense, as charged, without
an agreement with the State as to a punishment recommendation. The trial court
accepted appellant’s “guilty” plea and called for a presentence investigation.
         At the punishment hearing, the State presented the testimony of eight of the
complainant’s friends and family members to describe the complainant’s character
and the impact of his death on their lives.                  Attached to the presentence
investigation report were many letters from the complainant’s friends and family.
The trial court read the presentence investigation report, although the report was
not admitted into evidence. The State also submitted photographs of the
complainant with loved ones that the trial court admitted into evidence. The
evidence included emotional accounts of the complainant’s contributions to the
lives of others, his good deeds and acts of kindness and generosity, his service to
his community and synagogue, his devotion to his faith, family, and friends, and
his positive life experiences. Appellant’s counsel voiced no objection to this
evidence.
         Appellant presented four witnesses who gave testimony about appellant’s
rough childhood, family struggles, traumatic events, health challenges, and other
1
    See Tex. Penal Code Ann. § 49.045 (West, Westlaw through 2017 1st C.S.).
2
    See Tex. Penal Code Ann. § 19.02(b)(3) (West, Westlaw through 2017 1st C.S.).

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difficult life experiences. Notes and letters from appellant’s friends and family
members in support of appellant were also included in the presentence
investigation report.
      At the conclusion of the punishment hearing, the trial court imposed a fifty-
year sentence. Appellant filed no motion for new trial.

                                II. ISSUE PRESENTED

      Appellant asserts her counsel rendered ineffective assistance when he failed
to object to the victim-impact and victim-character evidence. Appellant contends
admission of the evidence violated Texas Rule of Evidence 403 and appellant’s
rights to due process of law.
                                   III. ANALYSIS

      Both the United States Constitution and the Texas Constitution guarantee an
accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art.
I, § 10; see also Tex. Code Crim. Proc. Ann. art. 1.051 (West, Westlaw through
2017 1st C.S.). This right necessarily includes the right to reasonably effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.
Crim. App. 1997).       To prevail on her ineffective-assistance-of-counsel claim,
appellant must prove (1) counsel’s representation fell below the objective standard
of reasonableness, and (2) a reasonable probability that but for counsel’s
deficiency the result of the proceeding would have been different. Strickland, 466
U.S. at 687–88, 694, 104 S.Ct. 2052; see Hernandez v. State, 726 S.W.2d 53, 55
(Tex. Crim. App. 1986) (applying Strickland standard to ineffective-assistance
claims under the Texas Constitution). In considering an ineffective-assistance
claim, we indulge a strong presumption that counsel’s actions fell within the wide
range of reasonable professional behavior and were motivated by sound trial

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strategy. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994). To defeat this presumption, any allegation of ineffectiveness
must be firmly grounded in the record so that the record affirmatively shows the
alleged ineffectiveness. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App.
2017).

      Trial counsel generally should be given an opportunity to explain counsel’s
actions before being found ineffective. Id. In most cases, direct appeal is an
inadequate vehicle for raising an ineffective-assistance claim because the record
generally is undeveloped and cannot adequately reflect the motives behind trial
counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App.
2003); Thompson, 9 S.W.3d at 813–14. In the face of a silent record, we cannot
know trial counsel’s strategy, so we will not find deficient performance unless 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).

         A sound trial strategy may be executed imperfectly, but the right to
effective assistance of counsel does not entitle a defendant to errorless or perfect
counsel.    Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
Instead, we “review the totality of the representation and the circumstances of each
case without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.
Crim. App. 2011). Though counsel’s conscious decision not to object to evidence
is not insulated from review, unless a defendant overcomes the presumption that
counsel’s actions were based in sound trial strategy, counsel generally will not be
found ineffective. Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012).

      Appellant asserts the victim-impact and victim-character evidence presented
to the trial court surpassed permissible bounds and became overly prejudicial. She

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complains that the large volume of testimony and letters overshadowed the defense
presentation and that by failing to object to this evidence, her counsel rendered
ineffective assistance. According to appellant, without such a voluminous and
detailed presentation on the complainant’s life, the trial court would not have
sentenced a thirty-two year old, first offender to fifty years in prison.
      Appellant’s counsel did not object to the victim-impact and victim-character
evidence on any grounds. The record does not reveal counsel’s reasons for not
objecting. Decisions relating to objecting to evidence implicate strategy. Prine,
537 S.W.3d at 118. The decision not to object to a piece of evidence is the type of
strategic decision that requires courts to evaluate an attorney’s explanation before
finding counsel ineffective. Id.

      A motion for new trial would have provided the trial court with an
opportunity to hold a hearing on counsel’s performance and develop a record for
appeal. But, appellant did not move for a new trial, and her defense counsel did
not file an affidavit. Consequently, the record is completely silent as to counsel’s
strategy on this point. See DeLeon v. State, 322 S.W.3d 375, 381 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied). Because our record does not contain
counsel’s reasons for failing to object to the proffered evidence, to hold counsel
ineffective would require this court to speculate regarding counsel’s reasons. See
Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d) (“When the record is silent as to counsel’s reasons for his conduct, finding
counsel ineffective would call for speculation by the appellate court.”). We will not
speculate.

      In the face of a silent record, we cannot determine that counsel provided
ineffective assistance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392.

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We cannot conclude that no competent attorney would have acted as appellant’s
counsel did, because there may have been strategic reasons for counsel’s decisions.
For example, defense counsel may have determined as a matter of strategy that the
potential of drawing further attention to the testimony of a sympathetic witness or
being viewed as insensitive to the complainant’s widow and other family members
outweighed the likelihood of success, and any potential benefits that might have
been gained from voicing objections. See Webb v. State, 995 S.W.2d 295, 301
(Tex. App.—Houston [14th Dist.] 1999, no pet.); Duren v. State, 87 S.W.3d 719,
734 (Tex. App.—Texarkana 2002, pet. struck). Thus, because the record does not
compel a conclusion that defense counsel was ineffective, appellant has failed to
rebut the presumption of effective representation. See Perez v. State, 56 S.W.3d
727, 731–32 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

      In sum, our record does not affirmatively demonstrate counsel’s
ineffectiveness.   See Thompson, 9 S.W.3d at 814 (declining to find that
representation was ineffective where record did not explain counsel’s failure to
object). The record does not show that counsel’s failure to object to the victim-
character and victim-impact evidence was so outrageous that no competent
attorney would have failed to object to it. Without a more fully developed record,
we cannot conclude trial counsel rendered ineffective assistance. Therefore, we
overrule appellant’s sole issue.




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                                 IV. CONCLUSION
      Having found that appellant has failed to make the requisite showing for
appellate relief on the only issue presented, we affirm the trial court’s judgment.




                                       /s/       Kem Thompson Frost
                                                 Chief Justice



Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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