                         NUMBER 13-11-00688-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JONATHAN OZUNA,                                                             Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 130th District Court
                       of Matagorda County, Texas.


                         MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
                Memorandum Opinion by Justice Perkes
      Appellant, Jonathan Ozuna, appeals his conviction for one count of theft from a

human corpse, a state-jail felony. See TEX. PENAL CODE ANN. § 31.03(e)(4)(B) (West

2011). Appellant stole a wedding ring from the body of a decedent stranger whose body

was lying in a casket in a chapel at a funeral home. After appellant pleaded guilty in the

presence of the jury, the trial court held a jury trial on punishment. In accordance with
the jury’s verdict, the trial court sentenced appellant to eighteen months of confinement in

the Texas Department of Criminal Justice, State Jail Division, and assessed a $7,500

fine. By his sole issue, appellant argues that his counsel provided ineffective assistance

during the punishment phase of trial by not further objecting to the admission of certain

testimony. We affirm.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

       After appellant pleaded guilty, the State presented additional evidence concerning

appellant’s guilt. The State presented testimony from the funeral-home director and the

decedent’s son. The jury also viewed a video that showed appellant standing over the

decedent’s body for more than a minute, removing the decedent’s wedding ring, placing it

in his waistband, and concealing the decedent’s hand with fabric that was inside the

casket. The decedent was approximately eighty years old, and the theft occurred before

her funeral service.

       The State further presented evidence that approximately seven days later, when

law-enforcement officers came to arrest appellant at his home, he ran to his backyard and

hid in tall grass. Appellant initially denied that he stole the ring, but after officers showed

a photograph of the decedent in her casket, he hid his face and confessed. Appellant led

officers to a store at a mall where he sold the ring for $150. The ring was recovered and

returned to the decedent’s family.

       Appellant testified at length in his defense during the punishment phase of the trial.

Appellant testified that while he was physically present, he was not mentally present

when he took the wedding ring. He testified that he suffered from Crohn’s disease,


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rheumatoid arthritis, and pancreatitis.    He testified that his Crohn’s disease was so

severe and painful that he could not finish college or hold a stable job. As a result, he

essentially became a stay-at-home dad to his four children, who were ages twelve and

older. Appellant testified that he received $420 per month in disability income.

       Appellant testified that over the course of several years, he became addicted to the

prescription medications that he took for his Crohn’s disease and rheumatoid arthritis,

and that his addiction compelled him to steal the ring. Appellant testified that he started

taking increased amounts of medication to get pain relief, but that he also started using

the medications to escape life’s daily problems. He testified that he was high on Lortab,

Lorcet, and Norco when he stole the ring and that he had been high for months leading up

to the theft. Appellant testified that as he became sober, he started to feel remorse for

stealing the ring, but conceded on cross-examination that he did not turn himself in or

even confess when he was initially confronted by law-enforcement officers. Appellant

testified that he was not really guilty of theft, because his addiction to medications caused

him to take the ring.

       Appellant testified that he did not hide in the backyard when officers arrived at his

home. Rather, his prescription medications made him feel paranoid and afraid, so he

went outside. He did not get up because he did not feel well enough. Appellant testified

that he has been rehabilitated of his prescription-drug addiction because stealing the ring

caused him to “hit rock bottom” and to recognize the severity of his addiction.

       Appellant testified that he has been arrested in the past for a marihuana offense

and for stealing a rental video.      Appellant admitted that he had viewed decedent


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strangers on other occasions.       He said that he was “not normal” because of the

medications. The State further elicited testimony from appellant that he was serving

probation for an offense that arose in Brazoria County and that he violated the terms of his

Brazoria County probation during the month before trial.

       The State called Deputy Bill Orton as a rebuttal witness. Deputy Orton testified

that he was a deputy constable for the trial court and that he also suffered from Crohn’s

disease. He stated that he previously battled addiction to the prescription medications

he took for the disease, but never felt that Crohn’s disease compelled him to commit a

crime. In relevant part, Deputy Orton testified as follows:

       Q.     Deputy Orton, do have you currently, excuse me, have you
              previously been diagnosed as having Crohn’s Disease?

       A.     Yes, sir, in [‘]95.

       Q.     So, you are aware that you had Crohn’s Disease for some 16 years?

       A.     Yes, sir.

       Q.     And during the time that you have been suffering from Crohn’s
              Disease have you been taking some pain medications?

       A.     Yes, sir.

       Q.     What are they?

       A.     Everything that the defendant had told you that he was on and more.

       Q.     And during that time have you been taking these same drugs for 16
              years?

       A.     Yes, sir.

       Q.     When did you begin taking this these particular drugs?

       A.     During the times that I had flare ups with the Crohn’s Disease when I

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      was hospitalized, which was a period of about 9 months. I was in
      the hospital.

Q.    And as a result of having taking these particular drugs did you
      develop addictions to these drugs?

A.    Yes, sir, I was.

DEFENSE COUNSEL: Objection. Relevance.

TRIAL COURT: You have a response to that?

PROSECUTOR: I believe the relevance is to how his addiction is the
causation for his committing this crime. Inquiring about this addiction is
very relevant.

TRIAL COURT: Overruled.

Q.    And are there some addictions to the pain medications?

A.    Yes, sir, there is.

Q.    And as a result of the addictions did they in turn cause you then to
      commit various crimes?

A.    No, sir, they did not.

Q.    Were you required—was it necessary for you to go through some
      rehabilitation to resolve the addictions?

A.    I went through counseling with my doctor over the addiction. The
      addiction that I was—was primarily on IV pain medication, which was
      I believe somewhat stronger than some of the stuff that he was on.

Q.    So, the addictions you suffered from were from the pain medications
      when you were actually hospitalized for the Crohn’s.

A.    Both hospitalized and when I would go home I was still on them. I
      was bed ridden at home.

Q.    And during the course of your disease and the study of your disease,
      are you familiar were other folks, some of the other studies that
      involve people with Crohn’s Disease?


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A.   Yes, sir, I am.

Q.   Is the commission of crime something that we can commonly expect
     from people with Crohn’s Disease?

A.   Not to my knowledge that it would be an explanation that I would go
     through—

DEFENSE COUNSEL: Objection. Move to strike. He’s not been proved
up as an expert nor is this response.

TRIAL COURT: Agreed. Then jurors, disregard any purported expert
testimony coming from this witness.

Q.   In your experience that your [sic] aware of have people committed
     these types of crimes?

A.   No, sir.

Q.   And during the time that you were—you had been diseased have
     you been able to hold a steady job?

A.   Yes, sir.

Q.   Are you on disability?

A.   No, sir.

Q.   Do you find life so overwhelming that you lay down on the couch all
     day long?

A.   No, sir.

Q.   Do you find yourself in times when you’re trying to determine whether
     or not to steal jewelry from dead people?

A.   No, sir.

Q.   Have you ever during your time with Crohn’s disease, considered the
     idea that you needed to steal jewelry from a dead person?

A.   No, sir.



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                                     II. DISCUSSION

       In his sole issue, appellant contends the record shows that his trial counsel

provided ineffective assistance because “he failed to further object to Deputy Orton’s

entire testimony.”   Specifically, appellant argues that defense counsel should have

further objected under Texas Rules of Evidence 401 (“Definition of ‘Relevant Evidence’”),

402 (“Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible”), and

403 (“Exclusion of Relevant Evidence on Special Grounds”).

       Both the United States and Texas Constitutions 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 2010). This right necessarily includes the right

to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

686 (1984). In order to prove an ineffective assistance of counsel claim, a defendant

must show (1) by a preponderance of the evidence, that counsel’s performance was so

deficient that he was not functioning as acceptable counsel under the Sixth Amendment,

and (2) there is a reasonable probability that, but for counsel’s error or omission, the result

of the proceedings would have been different.            Strickland, 466 U.S. at 687–96;

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

overcome the strong presumption that the challenged action might have been sound trial

strategy.   Thompson, 9 S.W.3d at 813.         We will not speculate to find trial counsel

ineffective when the record is silent as to counsel’s reasoning or strategy. Godoy v.

State, 122 S.W.3d 315, 322 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

       When, as in this case, there is no evidentiary record developed at a hearing on a


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motion for new trial, it is extremely difficult to show that trial counsel's performance was

deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); see also

Aldaba v. State, No. 14-08-00417-CR, 2009 WL 1057685, at *5 (Tex. App.—Houston

[14th Dist.] April 16, 2009, pet. ref’d). If there is no hearing, or if counsel does not appear

at the hearing, an affidavit from trial counsel becomes almost vital to the success of an

ineffective-assistance claim.     Stults v. State,      23   S.W.3d 198, 208–09          (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d). The Texas Court of Criminal Appeals has

stated that it should be a rare case in which an appellate court finds ineffective assistance

on a record that is silent as to counsel’s trial strategy. See Andrews v. State, 159 S.W.3d

98, 103 (Tex. Crim. App. 2005). On a silent record, this Court can find ineffective

assistance of counsel only if 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).

       Appellant’s ineffective-assistance claim fails because he did not meet his burden

under either prong of the Strickland test. With respect to the first Strickland prong, to

argue successfully that trial counsel’s failure to object amounted to ineffective assistance

of counsel, appellant must demonstrate, at a minimum, that the trial court would have

committed error in overruling the objection in question. See Ex parte Martinez, 330

S.W.3d 891, 901 (Tex. Crim. App. 2011); Jagaroo v. State, 180 S.W.3d 793, 800 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d) (“Before this court may conclude counsel was

ineffective for failure to make an objection, appellant must show the trial court would have

erred in overruling the objection.”); see also Brambila v. State, No. 14-08-00371-CR,


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2009 WL 2356674, at *4 (Tex. App.—Houston [14th Dist.] July 28, 2009, pet. ref’d) (mem.

op., not designated for publication) (“the failure to object cannot form the basis of an

ineffective-assistance claim unless, at a minimum, the trial court would have erred in

overruling the objection”). Appellant has failed to make this showing.

      Appellant argues that trial counsel should have objected to all of Deputy Orton’s

testimony under Texas Rules of Evidence 401, 402, and 403 so that the testimony would

have been excluded or alternatively, so that error would have been preserved for

appellant to challenge the admissibility of the testimony under rules 401, 402, and 403 in

this direct appeal. See TEX. R. EVID. 401, 402, 403. However, appellant offers no

argument or authority to show that the trial court would have erred in overruling an

objection under rules 401, 402, or 403. See TEX. R. APP. P. 38.1(i); see also Stepp v.

State, No. 14-05-00371-CR, 2007 WL 608977, at *7 (Tex. App.—Houston [14th Dist.]

March 1, 2007, pet. ref’d) (mem. op., not designated for publication) (concluding

defendant waived ineffective-assistance claim premised on failure to object because he

did not identify the objection trial counsel should have made and did not provide

supporting argument or authority showing the trial court would have erred in overruling an

objection to the testimony). Moreover, the record shows that the trial court overruled

appellant’s relevance objection (rule 402) to Deputy Orton’s testimony. Appellant did not

raise this issue on appeal, though he argues that one reason defense counsel should

have lodged a relevance objection was to preserve the claim for appeal. See TEX. R.

EVID. 402.

      Further, the record shows that defense counsel’s failure to object may have been


                                            9
sound trial strategy. Deputy Orton’s testimony was very brief. The portion in question

spans less than four full pages of the reporter’s record. Defense counsel objected once

early during the testimony that Deputy Orton’s testimony was irrelevant. After allowing

the State to respond that Deputy Orton’s testimony was relevant to appellant’s claim that

appellant’s addiction to prescription medicine that he took for his Crohn’s disease caused

him to commit the crime, the trial court overruled appellant’s objection. Soon after,

defense counsel successfully and promptly objected that Deputy Orton could not give

expert testimony on whether “commission of crime [is] something that we can commonly

expect from people with Crohn’s disease.” The trial court instructed the jury to disregard

such testimony. Deputy Orton then proceeded to give very limited testimony based on

his own experience. Mindful that it may actually be good trial strategy to avoid objecting

to inconsequential testimony, to avoid antagonizing the jury with frequent objections, and

calling further attention to adverse testimony the trial court is likely to admit, on a silent

record, we cannot say that trial counsel’s failure to “object further” amounted to ineffective

assistance and that appellant satisfied his burden under the first prong of the Strickland

test. See Velasquez v. State, 941 S.W.2d 303, 310 (Tex. App.—Corpus Christi 1997,

pet. ref’d).

       With respect to the second Strickland prong, appellant fails to point to any

evidence in the record that shows a reasonable probability that his punishment would

have been decided differently if counsel had further objected to Deputy Orton’s testimony.

See Thompson, 9 S.W.3d at 812. Instead, appellant argues that this Court should find

that he was prejudiced because “reading the record in its totality, it is clear that Deputy


                                             10
Orton’s testimony which should have never been admitted caused the jury to elevate

defendant’s sentence.” Appellant further argues that “[a]lthough 18 months is not at the

highest end of the potential range 24 month range, 18 months is still overly severe

considering that the minimum state jail sentence is six months, and considering

defendant’s minimal criminal history.”

      We disagree that the record shows prejudice. As stated above, Deputy Orton’s

testimony in question spans only a small portion of the record. The reporter’s record

includes nearly sixty-five pages of testimony, of which approximately thirty pages is

testimony on punishment. The jury saw video footage of the actual crime and heard

appellant’s testimony that he was essentially not to blame for his own conduct in stealing

the ring. Appellant also admitted to a criminal history and that he had violated the terms

of his Brazoria County probation during the month before trial. On this record, we cannot

conclude that appellant met his burden to demonstrate a reasonable probability that but

for counsel’s alleged error, the outcome of his trial would have been different. See id.

Appellant’s sole issue on appeal is overruled.

                                  III. CONCLUSION

      We affirm the trial court’s judgment.


                                                   Gregory T. Perkes
                                                   Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
16th day of August, 2012.



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