                                  NO. 07-04-0021-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                 MARCH 15, 2005
                         ______________________________

                              EDUARDO CERVANTEZ,

                                                             Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

               FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

              NO. B15312-0401; HON. ROBERT KINKAID, PRESIDING
                      _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

      Eduardo Cervantez appeals from his conviction for aggravated assault via two

issues. The first involves the admission of various items of bloody clothing worn by his

victim. The second involves the effectiveness of trial counsel. We affirm the judgment.

      Issue One – Admission of Bloody Clothes

      Appellant contends that several items of clothing worn by the victim whom he had

shot were inadmissible because 1) he had pled guilty to the offense and 2) the evidence

resolved no issue before the court. Furthermore, he cites Hunter v. State, 275 S.W.2d 803

(Tex. Crim. App. 1954) in support of the contention. While the Court of Criminal Appeals
did state in Hunter that bloody clothes were not admissible unless they tended to solve a

disputed issue, Hunter was overruled in Bradford v. State, 608 S.W.2d 918 (Tex. Crim.

App. 1980). Now, their admissibility depends upon whether a verbal description of the

scene and body are admissible; if they are, then the clothes may also be received into

evidence. Id. at 920-21; accord, Griffin v. State, 665 S.W.2d 762, 769-70 (Tex. Crim. App.

1983) (reaffirming the rule announced in Bradford).

       Here, a detective investigating the shooting scene appeared as a witness at trial.

The prosecutor had him describe the scene and appearance of the victim when he arrived.

No one objected to that testimony; nor can anyone reasonably suggest that such verbal

testimony would have been inadmissible. But, once it was admitted then the condition

described in Bradford, and upon which admission of the clothing was dependent, had been

satisfied.

       Moreover, the extensive blood loss depicted on the clothing could well have been

used by the jury in determining not only the risk of death confronting the victim but also the

gravity of appellant’s crime. This is especially so when that evidence is coupled with other

evidence indicating that appellant shot his victim when her back was turned and as she

tried to run away. The gravity to depravity of the crime are indeed relevant factors which

a jury could consider in assessing punishment.

       So too can it be said that evidence of the extensive blood loss served to discredit

appellant’s contention that the shooting was accidental and that he did not intend to hurt

the woman (i.e. his girlfriend). Indeed, the jury could have concluded that had the shooting

been accidental, appellant would have attempted to render her aid rather than simply leave

as the victim cried and bled from the wound.

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       In short, the clothing was admissible and its admission did not serve only to inflame

the minds of the jurors. Consequently, we hold that the trial court did not abuse its

discretion in admitting the items.

       Issue Two – Effectiveness of Counsel

       Next, appellant contends that he received ineffective assistance of counsel. This

purportedly occurred when his trial attorney incorrectly informed appellant that appellant

could eschew appearing as a witness yet personally make a closing argument. The

inaccurate advice allegedly resulted in appellant being “prevented from providing any

statement or testimony.” We overrule the issue.

       We need not discuss the pertinent standard of review for it is well-settled and amply

described in Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We refer the

litigants to that opinion.

       Next, though the record discloses that defense counsel informed the trial court that

appellant wished to make part of the closing argument, nothing of record illustrates what

appellant’s counsel actually told appellant about his ability to do so. Nor does evidence of

record illustrate that appellant would have testified at trial had he known that his attorney’s

supposed advice was wrong. This is problematic because authority requires the supposed

misconduct of counsel to be “firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d at 813.

       Similarly absent is evidence suggesting that defense counsel either would have

encouraged or dissuaded appellant from testifying irrespective of whether the trial court

allowed appellant to participate in the closing argument. Indeed, one cannot doubt that

influencing a defendant to remain silent during trial is an oft used trial strategy. It could well

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be that appellant never intended to testify, but rather, wanted a way to speak to the jury

while avoiding the rigors of cross-examination. In other words, the defendant and his

attorney may have been engaging in a strategic maneuver hoping all the while to do that

which they knew they could not. Yet, whatever the case may be, we are left only to

speculate on the matter given the dearth of evidence in the record before us. And,

because of that missing evidence, we have no choice but to overrule the issue.

      Having overruled each issue, we affirm the trial court’s judgment.



                                                Brian Quinn
                                                  Justice

Do not publish.




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