                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION

                                         No. 04-17-00524-CR

                                       Lloyd Ray MCKINNEY,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                    From the County Court at Law No. 2, Guadalupe County, Texas
                                   Trial Court No. CCL-16-1094
                              Honorable Frank Follis, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Irene Rios, Justice

Delivered and Filed: June 13, 2018

AFFIRMED

           Lloyd Ray McKinney was charged with the misdemeanor offense of assault causing bodily

injury-family violence. After a jury trial, he was found guilty and sentenced to 365 days of

confinement in jail and assessed a $4,000 fine. On appeal, he argues he was denied effective

assistance of counsel. We affirm.

                                             BACKGROUND

           At trial, the complainant, Graciela P., testified that she lived with McKinney, had been in

a long-term relationship with him, and had two children with him. According to Graciela P., on
                                                                                       04-17-00524-CR


October 6, 2016 at approximately 10:00 p.m., as she and McKinney were going to bed for the

night, they got into an argument because she told him she wanted to end their relationship. Graciela

P. testified McKinney “choked” her, grabbed her by the neck, lifted her off the bed, and threw her

to the tile floor, causing her head to hit the ground. According to Graciela P., McKinney told her

she was “stupid” and called her “the ‘B’ word.” McKinney then lifted her “off of the floor” and

“threw [her] to the restroom” where “he proceeded to choke [her] and kick” her legs, stomach, and

chest. Graciela P. testified the back of her head hit the tub. The prosecutor then noted that Graciela

P. had testified McKinney had “choked” her twice. The prosecutor asked, “So can you describe

for the jury what that was like?” Graciela P. responded, “It was painful. I was in shock because I

didn’t expect it.” (emphasis added). Graciela P. explained McKinney had used both of his hands

to choke her in the restroom. She was “at the point of blacking out” when he let go. McKinney

then began kicking her in the legs, stomach, and chest as she was lying on the ground. He stopped

and walked away while yelling at her. McKinney then came back, picked her up by her hair, and

threw her on the bed. Graciela P. testified she is five feet one-and-a-half inches tall and weighed

ninety-two pounds at the time of the incident. She testified McKinney is five feet eight inches tall

and weighed approximately 160 to 180 pounds at the time of the incident.

       Graciela P. testified that during this incident, she was never physically aggressive towards

McKinney. She “just wanted him to stop.” She testified she was crying and in pain, “asking him

to stop.” McKinney “was just pacing back and forth.” “He finally stopped; then he said sorry and

that he wasn’t like that and he went to bed.” Graciela P. testified she waited for him to go to sleep

and then eventually fell asleep herself. According to Graciela P., the children remained asleep

during the incident. The next morning, which was a Friday, Graciela P. woke up in a lot of pain

and called in sick to work. She suffered from bruises, scrapes, and a bump on her head. She testified

“everything” hurt. On Saturday, she left the house to go to the grocery store and then she went to
                                                 -2-
                                                                                                         04-17-00524-CR


the police station to make a report. According to Graciela P., she did not immediately call the

police after the incident:

           I was scared and I know he would have noticed if I did. And I was in so much pain
           the next day it was just, I was just in shock. . . . I left with the kids in the morning
           to go to the grocery store and I rushed so I can try to make time to try to go report
           him at the police station but I had to rush or he would get angry at me if I took too
           long.

           Graciela P. was then asked to look at photographs taken at the police station that depicted

her injuries. The photographs were introduced in evidence.

           On cross-examination, defense counsel began trying to pick apart Graciela P.’s testimony

about the sequence of events. Defense counsel then asked why Graciela P. waited two days to go

to the police:

           Q: So, when you woke up the morning after October the 6th and you were in this
              terrible pain that you didn’t – that caused you not to be able to go to work?
           A: Yes.
           Q: Was the pain worse on that morning or was it worse the night before?
           A: It was worse that morning.
           Q: It was worse that morning? Okay. So, Ms. Graciela P., my question, if the –
              Why not – why not go to the – the doctor – to the hospital if the pain was as
              excruciating as you say?
           A: Because I could hardly move and I know he didn’t want to take me because he
              would get in trouble.
           Q: Okay. Why—So, help me understand, why the grocery store before medical
              attention if you were in so much pain?
           A: Because after you go through something like that, you’re sore. So the next day
              after I was in pain but after that, I was still a little sore but I was able to move.

           Defense counsel then referred to Graciela P.’s testimony during direct examination where

she testified she was “shocked” that the incident happened:

           Q: Okay. You said, “when things like this happen.” 1 From your testimony you
              were shocked that this happened. So, this has never happened before because
              you were shocked; correct?
           A: It happened before. But this is the one that I reported.
           Q: But your – your testimony – You testified earlier that you were shocked that
              this happened; correct?

1
    Graciela P. did not testify “when things like this happen.” She testified, “I was in shock because I didn’t expect it.”

                                                            -3-
                                                                                        04-17-00524-CR


       A: Yes, because it was unexpected. He – he had – We got into an argument and we
          were about to go to bed. You don’t expect somebody to just get angry and start
          choking you and throwing you around.
       Q: Not even if – if they’ve done it before?
       A: He’s off the wall. You don’t know when he’s going to do it or when he’s not.
       Q: But your testimony was that you were shocked.

       Defense counsel then began questioning Graciela P. about differences in the police report

and her testimony at trial:

       Q: Ms. Graciela P., would it shock you at all if I told you that this is the very first
          time I’ve ever heard of your face hitting the cement, like that is not in this report,
          would that surprise you at all?
       A: No.
       Q: That would not? Why not?
       A: Because I know what I remember.

Defense counsel then questioned why the police report mentioned nothing about Graciela P. being

thrown in the bed and whether the omission from the police report surprised her. Graciela P.

replied, “No.” Defense counsel asked, “Why not?” Graciela P. replied, “Because I know you’re

kind of making it seem like my whole statement is false.”

       After defense counsel finished his cross-examination, the prosecutor approached the bench

and asked to go into prior incidences of domestic violence between McKinney and Graciela P.,

arguing that defense counsel “opened the door” by his questioning of Graciela P. The trial judge

granted the request and permitted the State “to present evidence concerning previous similar

incidents of violence between the defendant and the victim, limited to what is listed on the State’s

Second Amended Notice of Extraneous Offenses.”

       The prosecutor then questioned Graciela P. about the first time McKinney “put his hand

on [her].” Graciela P. testified it was in 2012 when they got into an argument and McKinney

choked her until she blacked out and woke up on the floor. She did not report this incident, because

she “was confused” and “didn’t expect that from him.” Graciela P. testified the next “few times”

involved “choking scuffles.” She testified that one time, McKinney “slammed [her] head on the
                                                 -4-
                                                                                      04-17-00524-CR


cement floor while he was choking [her].” She got a “mild concussion” and went to the hospital.

On cross-examination, Graciela P. admitted that she had told the medical staff at the hospital she

had slipped on a ball while playing with her kids. She testified she gave this excuse because

McKinney had told her to do so.

       Graciela P. also testified in late 2015 to early 2016, while she was pregnant, she and

McKinney “were arguing” and “he threw [her] on the bed, like pushed [her] on the bed.” After her

son was born, there was an incident where they were having an argument in the kitchen “about

infidelity and he got angry so he came at [her], choked [her], threw [her] on the ground, and put

his foot on [her] face while putting all of his weight against [her] head.”

       On cross-examination, defense counsel asked why she did not report all these other

incidents to the police. Graciela P. replied that she reported the last incident because she realized

McKinney was not going to stop. Defense counsel asked why she did not come to that realization

after the second alleged incident. According to Graciela P., McKinney “kept convincing [her] that

he wouldn’t do it again.”

       Q: Okay. Ms. Graciela P., I want to rewind a little. So, in 2012 there were two
          incidents; 2015, at least one; 2016; at least one. You never reported this to
          anybody? To the police? Anybody? I’m trying to wrap my brain around why.
          You – you testified earlier that you were shocked but this has happened,
          according to your testimony, it’s happened several times. Why are you
          shocked?
       A: Because he catches you off guard. You don’t know when he’s going to do it
          and when he is.
       Q: Wouldn’t that be more of a reason to get away because he’s so – he’s so
          unpredictable?
       A: When you’re in love you do stupid things.

       After Graciela P. testified, the trial court admonished the jury about these other incidents

of alleged domestic violence:

       [Y]ou have just heard some evidence that there may have been some other previous
       incidents occurring between Ms. Graciela P. and Mr. McKinney prior to the one
       that is on trial. I’m going to admonish you that Mr. McKinney is on trial for the
                                                 -5-
                                                                                         04-17-00524-CR


        offense that’s alleged to have occurred on October the 6th of 2016. He is not on
        trial for any previous offense. Those previous incidents were introduced for the
        purpose of letting you – help you decide the defendant’s motive, intent, knowledge,
        or lack of accident involving the incident on October 6th. They are not introduced
        for you to determine Mr. McKinney’s character. Mr. McKinney’s character is not
        on trial in this case. So your consideration of those extraneous, as we call them, or
        extra offenses occurring before October 6, 2016 will be limited to you using those
        to determine if it helps you to determine the defendant’s motive, intent, knowledge,
        or lack of accident concerning events on October 6th of 2016.

        The only other witness was Officer Joe Brown, who testified about taking Graciela P.’s

statement at the police station and taking pictures of her injuries. McKinney did not testify in his

own defense. The jury returned a guilty verdict.

                                             DISCUSSION

        On appeal, McKinney argues his trial counsel was ineffective because he “opened the

door” to the admission of extraneous conduct between Graciela P. and McKinney by asking

Graciela P. the following question: “You said, ‘when things like this happen.’ From your testimony

you were shocked that this happened. So this has never happened before because you were

shocked; correct?” McKinney argues trial counsel had prior notice from the State of extraneous

conduct; the extraneous conduct was highly prejudicial to McKinney; there was no plausible basis

in strategy or tactics for trial counsel’s actions; and there is a reasonable probability that the result

of the trial would have been different if trial counsel had not opened the door to the extraneous

conduct.

        We measure a claim of ineffective assistance of counsel against the two-prong test

established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See

Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test). A

person claiming that counsel was ineffective must prove, by a preponderance of the evidence, that

(1) counsel’s performance was deficient, falling below an “objective standard of reasonableness,”

and (2) the deficient performance prejudiced the defense such that “there is a reasonable
                                                  -6-
                                                                                        04-17-00524-CR


probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) (quotation

omitted). Further, we “indulge in a strong presumption that counsel’s conduct fell within the wide

range of reasonable assistance and that the challenged action might be considered sound trial

strategy.” Id. (quotation omitted). “The mere fact that another attorney might have pursued a

different tactic at trial does not suffice to prove a claim of ineffective assistance of counsel.” Id.

        “The Strickland test is judged by the ‘totality of the representation,’ not by counsel’s

isolated acts or omissions, and the test is applied from the viewpoint of an attorney at the time he

acted, not through 20/20 hindsight.” Id. Thus, “[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, 813 (Tex. Crim. App. 1999) (emphasis added). “Under normal

circumstances, the record on direct appeal will not be sufficient to show that counsel’s

representation was so deficient and so lacking in tactical or strategic decisionmaking as to

overcome the presumption that counsel’s conduct was reasonable and professional.” Bone v. State,

77 S.W.3d 828, 833 (Tex. Crim. App. 2002). “[R]arely will the trial record contain sufficient

information to permit a reviewing court to fairly evaluate the merits of such a serious allegation.”

Id.; Thompson, 9 S.W.3d at 813. In the “majority of cases, the record on direct appeal is simply

undeveloped and cannot adequately reflect the failings of trial counsel.” Id. (quoting Thompson, 9

S.W.3d at 813). “Trial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App.

2012) (quotation omitted). “If trial counsel is not given that opportunity, then the appellate court

should not find deficient performance unless the challenged conduct was so outrageous that no

competent attorney would have engaged in it.” Id. (quotation omitted).



                                                  -7-
                                                                                        04-17-00524-CR


        Here, McKinney did not file a motion for new trial on ineffectiveness or request a hearing

on ineffectiveness. There is simply nothing in the appellate record to reflect trial counsel’s reasons

for asking Graciela P. the question he did. And, trial counsel has not been given an opportunity to

explain his actions. See id. We thus consider whether trial counsel’s conduct “was so outrageous

that no competent attorney would have engaged in it.” Id.

        In looking at the question posed by trial counsel in context, it is possible trial counsel was

attempting to limit Graciela P.’s testimony to one occasion and then cross-examine her about

inconsistencies and inaccuracies in her testimony about that occasion. In reading trial counsel’s

entire cross-examination of Graciela P., we cannot conclude the question posed by defense counsel

was so outrageous that no attorney would have engaged in it. We judge a claim of ineffectiveness

by the totality of the representation, and the record reflects that trial counsel’s strategy was showing

Graciela P. was not being truthful about her accusations against McKinney. Trial counsel advanced

this strategy through his questioning of Graciela P. and attempted to show the jury members

inconsistencies and inaccuracies in her testimony. In considering the totality of the representation

as shown in the appellate record, we cannot conclude ineffectiveness is firmly founded in the

record. In such a situation, the issue is better presented within the framework of a post-conviction

writ of habeas corpus under article 11.07 of the code of criminal procedure. TEX. CODE CRIM.

PROC. ANN. art. 11.07 (West 2015); Ex parte Torres, 943 S.W.2d 469, 475-76 (Tex. Crim. App.

1997); see also Thompson, 9 S.W.3d at 813 (“A substantial risk of failure accompanies an

appellant’s claim of ineffective assistance of counsel on direct appeal. Rarely will a reviewing

court be provided the opportunity to make its determination on direct appeal with a record capable

of providing a fair evaluation of the merits of the claim . . . .”).




                                                  -8-
                                                                          04-17-00524-CR


       We therefore affirm the judgment of the trial court.


                                                Karen Angelini, Justice

Do not publish




                                               -9-
