                                      NO. 12-10-00057-CR

                           IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

EDUARDO VALENCIA VIDALES,                                §              APPEAL FROM THE 114TH
APPELLANT

V.                                                       §              JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                 §              SMITH COUNTY, TEXAS

                                        MEMORANDUM OPINION
       Eduardo Valencia Vidales appeals his conviction for aggravated assault with a deadly
weapon, for which he was sentenced to imprisonment for fifteen years. In two issues, Appellant
argues that the trial court erred in admitting hearsay testimony and that he received ineffective
assistance of counsel. We affirm.


                                                 BACKGROUND
       Appellant was charged by indictment with aggravated assault with a deadly weapon and
pleaded “not guilty.” The matter proceeded to a jury trial. The evidence introduced at trial1
reflects that in February 2009, Appellant was driving a car in which his two minor children and
two other adults were passengers. Appellant stopped his vehicle at a stoplight next to a vehicle
driven by Lance Phillips, who had previously been “tailgating” Appellant’s car. According to
Phillips, he looked over at the car next to him and saw a sudden flash, heard a loud noise, and felt
a bullet graze his jeans. Phillips called 9-1-1 while he attempted to flee in his vehicle. Police
later detained Appellant on the suspicion that he was involved in the shooting. Upon a search of
Appellant’s vehicle, officers discovered spent shell casings and multiple firearms. At trial,

       1
           Appellant has not challenged the sufficiency of the evidence underlying his conviction.
investigating officers Stephen Lockhart and Thomas Guerrero testified that Appellant’s son told
his mother, who had arrived on the scene after Appellant was detained, that Appellant had “shot
the gun.”2
        Ultimately, the jury found Appellant guilty as charged. The matter proceeded to a bench
trial on punishment, after which the trial court sentenced Appellant to imprisonment for fifteen
years. This appeal followed.


                                                    HEARSAY
        In his first issue, Appellant argues that the trial court erred in permitting Lockhart and
Guerrero to testify concerning his son’s statement that Appellant had fired a gun at someone. The
State argues that Appellant has waived the issue.
        With two exceptions not indicated by the record in the instant case, a party is required to
continue to object each time inadmissible evidence is offered. See Martinez v. State, 98 S.W.3d
189, 193 (Tex. Crim. App. 2003); Leday v. State, 983 S.W.2d 713, 717–18 (Tex. Crim. App.
1998). Here, Appellant’s trial counsel objected when the State sought to elicit the testimony
concerning Appellant’s son’s statement from Lockhart. The trial court overruled Appellant’s
objection. Subsequently, the State introduced evidence of essentially the same statement made by
Appellant’s son through Guerrero’s testimony without objection from Appellant. Accordingly,
we hold that by his failure to continue to object each time the allegedly inadmissible evidence was
offered, Appellant failed to preserve error. See Martinez, 98 S.W.3d at 193. Appellant’s first
issue is overruled.


                                 INEFFECTIVE ASSISTANCE OF COUNSEL
        In his second issue, Appellant argues that his trial counsel was ineffective because he
declined to object to the hearsay testimony elicited from Guerrero.
        Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires the appellant to demonstrate that trial counsel=s representation fell below an



        2
           The record reflects that the child spoke Spanish to his mother and that Guerrero understood the statement
and related it to Lockhart. According to Guerrero, the child stated that Appellant, who was driving the car, “leaned
over the passenger and shot a gun at somebody.”
objective standard of reasonableness under prevailing professional norms. See Strickland, 466
U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any
portion of trial counsel=s representation, but will judge the claim based on the totality of the
representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
        To satisfy the Strickland standard, the appellant is also required to show prejudice from the
deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.
App. 1999). To establish prejudice, an appellant must prove that but for counsel=s deficient
performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at
694, 104 S. Ct. at 2068.
        In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).           We must presume counsel=s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. Appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. Appellant cannot meet this burden if the record does not affirmatively support the
claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on
direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v.
State, 841 S.W.2d 928, 932 (Tex. App.–Corpus Christi 1992, pet. ref=d, untimely filed)
(inadequate record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d
265, 266 (Tex. App.–Amarillo 1998, pet. ref=d) (inadequate record for ineffective assistance claim,
citing numerous other cases with inadequate records to support ineffective assistance claim). A
record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation
of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston [1st
Dist.] 1994, pet. ref=d).
        Appellant=s burden on appeal is well established.          See Saenzpardo v. State, No.
05-03-01518-CR, 2005 WL 941339, at *1 (Tex. App.–Dallas 2005, no pet.) (op., not designated
for publication). Before being condemned as unprofessional and incompetent, defense counsel
should be given an opportunity to explain his or her actions. See Bone v. State, 77 S.W.3d 828,
836 (Tex. Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance
claim must usually be denied as speculative, and, further, such a claim cannot be built upon
retrospective speculation. Id. at 835.
       Here, Appellant sets forth in his brief that his attorney=s performance at trial fell below the
professional norm because he declined to object to the hearsay testimony elicited from Guerrero.
Yet, the record before us is silent about trial counsel=s strategy or why he declined to object to the
hearsay testimony elicited from Guerrero. Normally, a silent record cannot defeat the strong
presumption of effective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14
(Tex. Crim. App. 1999); but see Andrews v. State, 159 S.W.3d 98, 102-03 (Tex. Crim. App. 2005)
(reversing conviction Ain a rare case@ on basis of ineffective assistance of counsel when trial
counsel did not object to misstatement of law by prosecutor during argument).
       In Andrews, the same prosecutor who filed a motion to cumulate the sentences in four
counts of sexual abuse later argued to the jury, AYou give him 20 years in each case, it=s still just 20
years. It=s still not 80. You can give different amounts if you want. You can give 20, 10, 10,
five, it=s still just 20.@ Id. at 100. The appellant=s trial counsel did not object to the prosecutor=s
misstatement of the law. Id. The trial court ultimately granted the State=s motion to cumulate the
sentences and imposed a combined prison sentence of seventy-eight years. Id. The court
concluded that the argument left the jury with the incorrect impression that the appellant=s
sentences could not be stacked and that the appellant would serve no more than twenty years in
prison for all four counts. Id. at 103. Therefore, the court held that, under the Aextremely
unusual circumstances of [the] case,@ the record contained all of the information it needed to
conclude that there could be Ano reasonable trial strategy for failing to object@ to the prosecutor=s
misstatement of the law. Id.
       The “extremely unusual circumstances” present in Andrews are not present in the case at
hand. Failing to object to a misstatement of the law that is detrimental to one=s client when the
harm is so clearly presented by the record on appeal is quite different from declining to object to
hearsay evidence that the trial court had previously admitted through another witness over
objection. Counsel=s reasons in Andrews, if any, were unnecessary to resolve the ineffective
assistance of counsel claim. See Berry v. State, No. 05-04-01161-CR, 2005 WL 1515512, at *3
(Tex. App.–Dallas 2005, no pet.) (op., not designated for publication). In the instant case, it is
plausible that Appellant’s trial counsel believed that even if he were successful, the State would, in
response, call Appellant’s young child as a witness. Trial counsel also could have believed that
the testimony of a child witness that his father fired a handgun at a motorist while he was in the car
with two children could prove more inflammatory than Guerrero’s brief testimony concerning this
previous statement made by the child. Cf., e.g., Curtis v. State, No. 01-03-00687-CR, 2004 WL
2118487, at *4 (Tex. App.–Houston [1st Dist.] 2004, pet. ref’d) (mem. op., not designated for
publication) (when considering issue of ineffective assistance of counsel, court noted that trial
counsel might have suspected that State could call witness to testify about test result if counsel
objected to testimony concerning drug test).3
         Having reviewed the record in the instant case, we conclude that the facts before us are
distinguishable from the facts in Andrews. Thus, we decline to hold that the record before us
contains all of the information needed for us to conclude that there could be no reasonable trial
strategy for not objecting to Guerrero’s testimony. Therefore, we hold that Appellant has not met
the first prong of Strickland because the record does not contain evidence concerning Appellant=s
trial counsel=s reasons for choosing the course he did. As a result, Appellant cannot overcome the
strong presumption that his counsel performed effectively. Appellant=s second issue is overruled.


                                                      DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.


                                                                             SAM GRIFFITH
                                                                                     Justice



Opinion delivered August 3, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)




         3
          Prior to trial, the State informed the trial court that it did not anticipate calling either of Appellant’s children
as witnesses. However, the State did not foreclose the possibility that it could call them to testify. In fact, the
prosecuting attorney informed the trial court that he did not anticipate calling the children as witnesses “unless
something happens and I need to for some type of rebuttal purpose.”
