                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-268-CR

JULIS EDWARD PERALES                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

                                    ------------

           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                I. INTRODUCTION

      A jury found Appellant Julis Edward Perales guilty of capital murder, and

the trial court assessed his punishment at life imprisonment. In five points,

Perales contends that the trial court erred by admitting a video recording of his

confession into evidence and by failing to appoint two attorneys to assist him

and that he received ineffective assistance of counsel. We will affirm.




      1
          … See Tex. R. App. P. 47.4.
                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      One night Perales and two other individuals—Darryl Quinones and Jared

Birmingham—decided to rob a convenience store. While Quinones kept lookout

in the getaway car, the other two men entered the store. As Perales attempted

to steal a large television in the store, Birmingham approached the cashier, held

a loaded gun to his head, and shot and killed him. At trial, the State presented

the store’s surveillance videotape showing the robbery and shooting, a video

of Perales’s confession to the police, and the testimony of Quinones and other

witnesses. Perales did not call any witnesses. The jury returned a verdict

finding Perales guilty of capital murder, and the trial court sentenced him to life

imprisonment. Perales now appeals.

              III. A DMISSION OF P ERALES’S V IDEOTAPED C ONFESSION

      In his first point, Perales contends that the trial court erred by denying his

motion to suppress a video of his confession because the confession was

involuntarily given in violation of the United States and Texas constitutions and

Texas statutory law. See U.S. Const. amends. V, VI, XIV; Tex. Const. art. 1,

§ 10; Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). Perales grounds

this point on two contentions: (1) he was too young and inexperienced to

intelligently waive his rights, and (2) his confession was induced by promises

                                         2
of benefits that he would receive if he confessed and by lies that the

investigating detective told him during the interrogation.

      Although Perales claims that admission of the video violates the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution, and

Article I, section 10 of the Texas Constitution, he does not separately brief

each issue. Therefore, in our resolution of this point, we will treat the state and

federal constitutions as providing the same protections. See Heitman v. State,

815 S.W.2d 681, 690–91 n. 23 (Tex. Crim. App. 1991).

                         A. The Videotaped Interrogation

      We have reviewed the video and the transcript of the video admitted at

trial. The video reveals that Detective Dishko, the investigating detective, read

Perales his rights—as set forth in the code of criminal procedure article 38.22,

section 2(a)2 —within the first minutes of the interrogation. He asked Perales

if he understood his rights, and Perales indicated that he did.      Perales then

signed a form to further verify that he understood his rights. The following

exchange then occurred:

      Dishko:       Knowing your rights, do you want to talk to me about
                    what’s going on?

      Perales:      Nah, I’m asking you what’s—what is going on?


      2
          … Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a).

                                        3
      Dishko:     Well, I need to know if you’re willing to talk to me
                  before we start talking.

      Perales:    Ah, yeah.

      Dishko:     Okay. So you—you do want— at least want to start
                  talking to me?

      Perales:    I mean, I just want to see what the situation is. Yeah.

      Dishko:     Okay. In law enforcement, we gotta be very formal
                  about things sometimes . . . . One of your rights is you
                  have the right to terminate the interview at anytime.

      Perales:    Yeah.

      Dishko:     Okay. I want you to remember that. So you do want
                  to start talking to me?

      Perales:    Yeah.

      Dishko:     Find out what’s going on[] and if you want to stop,
                  you understand you can stop?

      Perales:    (shaking head up and down)

      The detective told Perales that he was “implicated in a murder.” When

Perales asked what “implicated” meant, the detective explained that it meant

that Perales’s name had been “brought into the investigation” and that evidence

showed that Perales was “part of this situation.”

      Detective Dishko proceeded to interrogate Perales for approximately forty

minutes. During that time, Detective Dishko told Perales, “You don’t have to

talk to me if you don’t want to,” and “You make your own decisions. Okay?

                                       4
Do you want to talk to me?” Perales reassured the detective that he wanted

to talk.

      During the interrogation, Detective Dishko told several lies, as he candidly

admitted during the suppression hearing. Although Detective Dishko knew that

Perales could not receive the death penalty because of his age (he was

seventeen at the time of the offense), he told Perales that he possibly could

receive the death penalty.        At the suppression hearing, Detective Dishko

admitted that he had lied about the use of the death penalty and explained that

he had done so because he “wanted to plant that seed in [Perales’s] head” to

encourage Perales to cooperate.

      Detective Dishko told Perales during the interrogation, “How was it an

accident? I want you to explain it to me so I—convince me. ‘Cause if you

want me to believe that Julis, I’ve got to convince a jury.” At the suppression

hearing, Detective Dishko admitted that this was also inaccurate. The detective

also told Perales, “It would benefit you to speak to me about your involvement

because I know that [Birmingham] was the one that pulled that trigger.” At the

suppression hearing and at trial, Detective Dishko maintained that he never

promised Perales anything in return for Perales’s statements. Detective Dishko

testified in front of the jury:




                                         5
      Q.    Did you ever make [Perales] any kind of promise or say, if
            you tell me X, Y, and Z, I’ll give you A, B, and C?

      A.    No, I did not promise him anything.

      Q.    Did you ever threaten him or coerce him into giving a
            statement?

      A.    No, ma’am.

      At the end of the suppression hearing, the trial court concluded that

Perales’s statements were the result of a custodial interrogation, that Perales

received the statutorily required warnings, and that “under subsection 2B

[Perales] waived those rights and proceeded to answer the officer’s questions.” 3


                            B. Standard of Review

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

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review.   Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.




      3
       … In his brief to this court, Perales contends that the trial court never
made a specific finding that his statements were voluntary. We note, however,
that by finding that subsection 2(b)—which requires that an accused, prior to
and during the making of the statement, knowingly, intelligently, and voluntarily
waived his rights—was satisfied, the trial court impliedly found that Perales
voluntarily made the statements.

                                       6
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W .3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).            Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W .3d 101, 108–09 (Tex. Crim. App. 2006);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

                                         7
determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 819.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.

Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).

              C. Determining the Voluntariness of a Confession

      An accused must give his confession voluntarily before it can be used

against him. Tex. Code Crim. Proc. Ann. art. 38.22 § 2(2)(b); see Penry v.

State, 903 S.W.2d 715, 744 (Tex. Crim. App.), cert. denied, 516 U.S. 977

(1995). Under federal due process principles, a statement is involuntary if the

defendant was offered inducements of such a nature or coerced to such a

degree that the inducements or coercion—not his own free will—produced the

statement. Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 521–22

(1986); Gomes v. State, 9 S.W.3d 373, 377 (Tex. App.—Houston [14th Dist.]

1999, pet. ref’d).   Article 38.22 of the Texas Code of Criminal Procedure

                                        8
provides that a defendant’s recorded verbal confession to a crime cannot be

used against him unless he first receives a series of statements regarding his

rights and knowingly, intelligently, and voluntarily waives those rights. Tex.

Code Crim. Proc. Ann. art. 38.22 § 2(a)(1)–(2). In determining the question of

voluntariness, a court should consider the totality of circumstances under which

the statement was obtained. Creager v. State, 952 S.W.2d 852, 856 (Tex.

Crim. App. 1997).    The ultimate issue is whether the appellant’s will was

overborne. Id.

      Once the accused contests the admission of his statement on the ground

of “voluntariness,” the due process guarantee and article 38.22, section 6

require the trial court to hold a hearing on the admissibility of the statement

outside the presence of the jury. Alvarado v. State, 912 S.W.2d 199, 211

(Tex. Crim. App. 1995) (citing Jackson v. Denno, 378 U.S. 368, 380, 84 S.

Ct. 1774, 1783 (1964)); see also Tex. Code Crim. Proc. Ann. art. 38.22, § 6.

At this hearing, the State must prove voluntariness by a preponderance of the

evidence. Alvarado, 912 S.W.2d at 211.

      In determining whether the suspect’s will was overborne, courts look at

circumstances such as the length of the detention, denying family access to the

suspect, and refusing the suspect’s request to telephone family or an attorney,

along with the suspect’s age, experience, intelligence, and mental and physical

                                       9
condition. Oursbourn v. State, 259 S.W.3d 159, 173 (Tex. Crim. App. 2008);

Bell v. State, 169 S.W.3d 384, 391 (Tex. App.—Fort Worth 2005, pet. ref’d).

Youth is usually not enough, by itself, to render a statement inadmissible; it is

merely a factor to consider in determining the voluntariness of the confession.

See Oursbourn, 259 S.W.3d at 173.           Furthermore, a suspect could be

uneducated and illiterate and yet still understand the nature of the rights he is

waiving and voluntarily give a confession. Peacock v. State, 819 S.W.2d 233,

235 (Tex. App.—Austin 1991, no pet.); Martinez v. State, 131 S.W.3d 22, 35

(Tex. App.—San Antonio 2003, no pet.).

      Apart from youth and education level, a confession may be involuntary

if it was induced by the promise of some benefit to the defendant.           See

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

the confession involuntary, such promise must be (1) positive, (2) made or

sanctioned by a person in authority, and (3) of such an influential nature that

it would cause a defendant to speak untruthfully. Id. In contrast to these

impermissible promises, trickery or deception can be used in obtaining a

confession unless the trickery or deception was calculated to produce an

untruthful confession or was offensive to due process. Creager, 952 S.W.2d

at 856.




                                       10
                D. The Voluntariness of Perales’s Confession

      Although Perales claims that his confession was not voluntary because

he was seventeen years old at the time and only had a ninth grade education,

he points to no evidence that his will was actually overborne because of his

youth or intelligence level, nor do we find any in our review of the record. The

total length of time between Perales’s arrest at his house and the end of the

interrogation was less than two hours. Perales was never denied access to

family or legal counsel or denied access to the restroom, food, or water.

Perales’s young age or low intelligence, standing alone, does not render his

statements inadmissable as involuntary. See Oursbourn, 259 S.W.3d at 173;

see also Martinez, 131 S.W.3d at 35 (holding that the confession of a fifteen-

year-old boy with the reading, spelling, and math abilities of a second or third

grader was voluntary); In re V.M.D., 974 S.W.2d 332, 346 (Tex. App.—San

Antonio 1998, pet. denied) (holding that the confession of a twelve-year-old girl

was voluntary); Peacock, 819 S.W.2d at 235 (holding that the trial court did

not abuse its discretion by finding the confession of an uneducated and illiterate

man voluntary).    Additionally, our review of the record demonstrates no

evidence of coercion or threats made by the detective. See Bell, 169 S.W.3d

at 391.




                                       11
       Perales argues that the detective’s statement that it would benefit Perales

to speak to him was like a promise for a benefit upon his confession. Perales

seems to argue that because shortly after making this statement, the detective

said that Perales could receive the death penalty, the overall assertion was that

Perales would not receive the death penalty if he confessed.           This very

attenuated reasoning, requiring us to piece together different parts of what the

detective said at different times during the interrogation, is a far cry from the

affirmative promise for a benefit disallowed by case law. See Creager, 952

S.W.2d at 856; see also Bonham v. State, 680 S.W.2d 815, 821 (Tex. Crim.

App. 1984), cert. denied, 474 U.S. 865 (1985) (holding that a police officer’s

statement to a defendant that if he did not give a statement, the officer would

make sure that he received the death penalty was not an affirmative promise).

       Contrary to Perales’s assertions, we have been unable to find in the video

or transcript of the video any affirmative promise made by the detective to

Perales in exchange for his confession. See Bonham, 680 S.W.2d at 820.

Regarding the detective’s other false statements of which Perales complains to

this court, Perales never presented any evidence that Detective Dishko

purposefully made any false statements in an effort to produce an untruthful

confession or otherwise offended due process. See Creager, 952 S.W.2d at

856.

                                       12
      Viewing the evidence in the light most favorable to the trial court’s ruling,

we cannot say that the trial court committed an abuse of discretion.           See

Wiede, 214 S.W.3d at 24; Kelly, 204 S.W.3d at 818. Having considered all

of the above factors together with all other circumstances, we hold that the

trial court did not abuse its discretion by concluding that the State proved by

a preponderance of the evidence that Perales’s statements were voluntary. See

Creager, 952 S.W.2d at 855; Bell, 169 S.W.3d at 391.             Accordingly, we

overrule Perales’s first point.

              IV. E DITORIAL S TATEMENTS OF INTERROGATING D ETECTIVE

      In his second point, Perales complains that the trial court violated rules

of evidence 402 and 403 by allowing the jury to view certain portions of the

videotaped interrogation in which the detective made “editorial comments”

about the crime and punishment. Perales argues that these statements were

irrelevant and highly prejudicial.

                     A. The Relevant Portions of the Video

      Toward the end of the interrogation of Perales, the following exchange

took place:

      Dishko:       I hope you change your attitude for court. ‘Cause
                    sitting there acting disgusted isn’t gonna help you any
                    in court. You need to show remorse and act like you
                    are—are sorry that this man died for a . . . TV. He
                    died because of a TV. He lost his life for a . . . TV.

                                        13
      Perales:    So you think I don’t care?

      Dishko:     You’re acting like you don’t.

      Perales:    Hmm, just ‘cause my feelings don’t get expressed
                  don’t mean I care [sic].

                  ....

      Dishko:     If you don’t express your feelings. If you don’t express
                  say what you mean, people don’t understand that.
                  You’re not acting like you’re scared to go to jail.
                  You’re not acting like you’re scared about what’s going
                  on. You’re not acting like you could spend the rest of
                  your life in prison.

      Perales:    (unintelligible)

      Dishko:     That you could be put to death for this.

      Perales:    You want me to sit here and cry?

      Dishko:     No, I want you to sit here and at least [say] you’re
                  sorry—if you are.

                  ....

      Dishko:     You know what. I talked to the victim’s family. You
                  don’t have to. You didn’t have to tell those people
                  that—that he got killed for a TV. I did. I had to watch
                  his sister ball . . . . For what? . . . For a TV. That’s
                  cool with me, Julis.         If you wanna act hard,
                  that’s—that’s your decision.

      In response to such statements, Perales asked what kind of evidence the

police had against him. After Detective Dishko listed the evidence, Perales said

that he participated in the robbery in the hopes of stealing the TV and selling

                                      14
it so that he could buy Christmas presents for his family. The detective noted

how it was “cold blooded” to kill someone who was not resisting and who

could not identify Perales and Birmingham as the robbers because they were

wearing masks.

      Later in the interrogation, Perales demonstrated how he saw Birmingham

(the shooter) point the gun at the victim and detailed how he saw the victim

slump over after Birmingham pulled the trigger. The detective asked Perales

what he thought his punishment should be, to which Perales responded that he

did not want the death penalty. Not long after that, the detective concluded

the interrogation. At trial and on appeal, Perales contends that the portions of

the video in which Detective Dishko discussed the nature of the act and

Perales’s reaction to it were irrelevant and more prejudicial than probative.

                            B. Standard of Review

      We review a trial court’s decision to admit evidence under an abuse of

discretion standard. Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App.

1996), cert. denied, 520 U.S. 1200 (1997); Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1991) (op. on reh’g). As long as the trial court’s

ruling falls within the zone of reasonable disagreement, we will affirm its

decision. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The

trial court’s decision must be reasonable in view of all the relevant facts.

                                      15
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). The mere

fact that a trial court may decide a matter within its discretionary authority in

a different manner than an appellate court would in a similar circumstance does

not demonstrate that an abuse of discretion has occurred. Manning v. State,

114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

                            C. Rules 401 and 403

      Evidence is relevant when it has a tendency to make the existence of any

fact more probable or less probable than it would have been without the

evidence. Tex. R. Evid. 401. Rule 403 allows for the exclusion of otherwise

relevant evidence when its probative value is substantially outweighed by the

danger of unfair prejudice. Tex. R. Evid. 403; Shuffield v. State, 189 S.W.3d

782, 787 (Tex. Crim. App.), cert. denied, 127 S. Ct. 664 (2006). The trial

court is in a superior position to gauge the impact of relevant evidence in

evaluating its determination under rule 403. See Mozon v. State, 991 S.W.2d

841, 847 (Tex. Crim. App. 1999).

           D. Admission of Detective’s Statements was Harmless

      Even if we assume that the trial court erred by overruling Perales’s

objections to Detective Dishko’s statements, the admission of those statements

was harmless.    Texas Rule of Appellate Procedure 44.2(b) provides that a

nonconstitutional error “that does not affect substantial rights must be

                                       16
disregarded.” Tex. R. App. P. 44.2(b). A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s

verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing

Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946));

Coggeshall v. State, 961 S.W.2d 639, 643 (Tex. App.—Fort Worth 1998, pet.

ref’d.). In making this determination, we review the record as a whole. See

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      Here, the jury watched the videotaped interrogation at trial.            The

statements at issue occurred near the end of the interrogation, and the jury had

already witnessed Perales’s conduct during the interrogation and his confession

to Detective Dishko. The jury also witnessed Perales at trial and could draw

their own conclusions about whether Perales appeared remorseful.               The

detective’s statements added little, if any, weight to the State’s case. Thus,

in the context of the entire case against Perales, any error in admitting the

detective’s statements did not have a substantial or injurious effect on the

jury’s verdict and did not affect Perales’s substantial rights. See King, 953

S.W.2d at 271. Accordingly, we overrule Perales’s second point.

                     V. INEFFECTIVE A SSISTANCE OF C OUNSEL

      In his third and fourth points, Perales contends that he received

ineffective assistance of counsel. Specifically, Perales posits that he received

                                        17
ineffective assistance when his trial attorney (1) failed to raise hearsay and

Confrontation Clause objections to those statements made by Detective Dishko

at the end of the interrogation that we detailed in section IV above and (2)

failed to object to the prosecutor’s characterization of the offense as “capital

murder.”

              A. Determining Ineffective Assistance of Counsel

      To establish ineffective assistance of counsel, the appellant must show

by a preponderance of the evidence that his counsel’s representation fell below

the standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms

at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065. Review of counsel’s representation is highly deferential, and the

                                       18
reviewing court indulges a strong presumption that counsel’s conduct fell within

a wide range of reasonable representation.            Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim.

Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.”       Salinas, 163 S.W .3d at 740 (quoting Mallett, 65

S.W.3d at 63).           To overcome the presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly founded in the

record,      and   the     record   must   affirmatively   demonstrate   the     alleged

ineffectiveness.”         Id. (quoting Thompson, 9 S.W.3d at 813).             It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432

(Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial

whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In

other words, appellant must show there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.    Id. at 694, 104 S. Ct. at 2068.          A reasonable probability is a

                                            19
probability sufficient to undermine confidence in the outcome. Id. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.

   B. Failure to Object to Admission of Detective Dishko’s Statements on
                 Hearsay and Confrontation Clause Grounds

      We will first address Perales’s contention that he received ineffective

assistance of counsel when his trial attorney failed to raise hearsay and

Confrontation Clause objections to Detective Dishko’s comments detailed in

section IV above.

      Hearsay is a “statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Tex. R. Evid. 801(d). The Confrontation Clause of the Sixth

Amendment provides: “In all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.”       U.S. Const.

amend. VI. Even when hearsay offered against a defendant is admissible under

evidentiary rules, that evidence may implicate the Confrontation Clause of the

Sixth Amendment if the defendant is not afforded the opportunity to confront

the out-of-court declarant. Gonzalez v. State, 195 S.W.3d 114, 116 (Tex.

Crim. App.), cert. denied, 127 S. Ct. 564 (2006).




                                       20
      As we held in section IV above, any error in the admission of the

statements at issue—that the detective hoped Perales changed his attitude for

court, that Perales needed to show remorse, that Perales “could be put to death

for this,” that Perales’s accomplice acted in a “cold blooded” manner, and that

Perales was “acting hard” about the murder—was harmless. See Tex. R. App.

Proc. 44.2(b); King, 953 S.W.2d at 271. Consequently, Perales’s trial counsel

did not ineffectively represent Perales by failing to object to such statements

on hearsay grounds. See Tex. R. Evid. 801(d); Strickland, 466 U.S. at 687,

104 S. Ct. at 2064.

      Furthermore, there was no Confrontation Clause objection to be made

because the detective testified at trial—giving Perales a chance to confront him

and eliminating any potential Confrontation Clause claim.      See U.S. Const.

amend. VI; Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354,

1369 n.9 (2004). Consequently, Perales’s trial counsel was not ineffective by

failing to object to the admission of the detective’s statements on Confrontation

Clause grounds.    See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Because Perales’s counsel was not deficient, we overrule Perales’s third point.

See id.




                                       21
    C. Failure to Object to Characterization of Act as a “Capital Murder”

      In his fourth point, Perales contends that he received ineffective

assistance of counsel because his trial attorney failed to object to the

prosecutor’s characterization of the act as a capital murder.

      During the prosecutor’s direct examination of Detective Dishko, she asked

the detective, “And then at some point later in the tape, do you see the men

who commit the capital murder of Shekhar Regmi on the tape?” [Emphasis

added.]   The detective responded, “Yes, you do.”         Later, the following

exchange took place:

      [Prosecutor:]           The video [of the robbery] starts with
                              Darryl Quinones and goes through. But
                              the PowerPoint just starts when the two
                              people who rob and kill Mr. Regmi come
                              in; is that right?

      [Dishko:]               Yes, it is.

      [Defense Counsel]:      W ell, objection to [the prosecutor]
                              characterizing this as — that’s invading the
                              province of the jury with him answering
                              that question about who is killing whom on
                              this question, Judge.       That’s a jury
                              question.

The trial court sustained the objection, instructed the jury to disregard the

question and answer, and denied Perales’s motion for a mistrial. At that point,

Perales’s counsel said,


                                      22
      Along that vein, Judge, I waived that objection, earlier, and I’m
      raising ineffective assistance of counsel on myself at this point
      because [the prosecutor] asked Detective Dishko, is this tape going
      to show Mr. Perales and Mr. Birmingham committing capital
      murder, I waived that error. And since I didn’t object timely, I’m
      raising ineffective assistance of counsel based on my
      misperformance . . . and ask for a ruling on that.

The trial court responded, “Based on your totality of representation thus far,

that objection is overruled.”

      Even assuming that the first prong of Strickland is satisfied based on

defense counsel’s concession that he inadvertently failed to object to the

prosecutor’s statement, Perales failed to demonstrate that the failure made the

jury’s verdict unreliable. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Given the volume of evidence against him, including the testimony of Quinones

and Perales’s own videotaped confession, and the isolated nature of this one

failure to object, we cannot say that a single instance of failing to object to a

comment by the prosecutor characterizing the act as a capital murder

constituted ineffective assistance of counsel. See id.; Ingham v. State, 679

S.W.2d 503, 509 (Tex. Crim. App. 1984) (“An isolated failure to object to

certain procedural mistakes or improper evidence does not constitute ineffective

assistance of counsel.”). Accordingly, we overrule Perales’s third and fourth

points.




                                       23
         VI. F AILURE TO T IMELY A PPOINT T WO A TTORNEYS FOR P ERALES

      In his fifth point, Perales complains that the trial court erred by failing to

timely appoint a second attorney to defend him. The State asserts that Perales

failed to preserve this complaint for appeal and, alternatively, that any error is

harmless. We agree.

      The trial court appointed defense counsel for Perales in January of 2006.

A grand jury indicted Perales for capital murder one week later. On March 16,

2007—fourteen months after the indictment, the trial court appointed a second

attorney to represent Perales.      The court’s order denoted the reason for

appointing a second attorney: “[Perales] charged with Capital Murder. Second

counsel required for assistance.” The State filed written notice of waiver of the

death penalty on June 15, 2007—one month before trial.             Both appointed

attorneys represented Perales at trial.

      Article 26.052(e) of the Texas Code of Criminal procedure provides:

      The presiding judge of the district court in which a capital felony
      case is filed shall appoint two attorneys, at least one of whom
      must be qualified under this chapter, to represent an indigent
      defendant as soon as practicable after charges are filed, unless the
      state gives notice in writing that the state will not seek the death
      penalty.

Tex. Code Crim. Proc. Ann. art. 26.052(e) (Vernon Supp. 2008) (emphasis

added). Failure to comply with article 26.052 is susceptible to a harmless error


                                          24
analysis under rule of appellate procedure 44.2(b). Hughes v. State, 24 S.W.3d

833, 838 (Tex. Crim. App.), cert. denied, 531 U.S. 980 (2000); Kirk v. State,

199 S.W.3d 467, 473 (Tex. App.—Fort Worth 2006, pet. ref’d).

      During the fourteen months between Perales’s indictment and the trial

court’s appointment of a second defense attorney, Perales did not object to the

trial court’s failure to appoint a second attorney for him. Consequently, he did

not preserve this point for appellate review. See Tex. R. App. P. 33.1(a)(1);

Wright v. State, 28 S.W.3d 526, 530 (Tex. Crim. App. 2000), cert. denied,

531 U.S. 1128, 121 S. Ct. 885 (2001); Toluao v. State, No. 02-04-00040-CR,

2005 WL 1994179, at * 2 (Tex. App.—Fort Worth Aug. 18, 2005, pet. ref’d)

(mem. op., not designated for publication).    We will, however, address his

complaint in the interest of justice.

      Although Perales was represented by only one attorney for fourteen

months after his indictment—during which time the State had not yet waived

the death penalty, Perales cannot show that the error affected his substantial

rights. See Tex. R. App. P. 44.2(b); Hughes, 24 S.W.3d at 838; Kirk, 199

S.W.3d at 473.     As we have explained in detail above, Perales does not

establish any specific instances of misconduct or ineffective assistance of

counsel committed by his attorney. See Wright, 28 S.W.3d at 530; Kirk, 199




                                        25
S.W.3d at 473. Additionally, the State waived the death penalty before trial.

Accordingly, we overrule Perales’s fifth point.

                               VII. C ONCLUSION

      Having overruled all of Perales’s five points, we affirm the trial court’s

judgment.




                                                  SUE WALKER
                                                  JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 9, 2008




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