Opinion filed October 3, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-17-00320-CR
                                    __________

                 CHRISTOPHER WILLIAMS, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                             Taylor County, Texas
                         Trial Court Cause No. 27021A


                      MEMORANDUM OPINION
      The trial court revoked Appellant’s community supervision and imposed a
sentence of confinement for six years. On appeal, Appellant claims that he received
ineffective assistance of counsel from the lawyer who represented him at the
revocation hearing. We affirm.
      On April 21, 2017, Christopher Williams entered a plea of guilty to the
second-degree felony offense of aggravated assault. The trial court found Appellant
guilty and, pursuant to the terms of a plea agreement, assessed Appellant’s
punishment at confinement for six years. The trial court suspended the imposition
of the sentence and placed Appellant on community supervision for a term of six
years. A few months later, on September 22, 2017, the State file a motion to revoke
Appellant’s community supervision. In that motion, the State alleged that Appellant
had committed eleven violations of the terms and conditions of his community
supervision. Approximately five weeks later, on October 30, 2017, the State filed
an amended motion to revoke community supervision and added a twelfth violation.
Appellant entered a plea of true to all but two of the allegations. He did not plead
true to Allegation No. 5 in which the State alleged that Appellant possessed
marihuana on three separate occasions, and neither did he plead true to Allegation
No. 6 in which the State alleged that Appellant possessed multiple firearms.
      After a hearing, the trial court found that all allegations, except Allegation
No. 6, were true; revoked Appellant’s community supervision; and imposed the
original sentence of confinement for six years. Appellant did not file a motion for
new trial after the trial court revoked Appellant’s community supervision.
      In his sole issue on appeal, Appellant alleges that he received ineffective
assistance of counsel in some fourteen different instances, all of which deal with trial
counsel’s failure to object to allegedly inadmissible evidence or his failure to
properly cross-examine witnesses. In the first of two subparts to his issue on appeal,
Appellant claims that trial counsel was ineffective in that counsel failed to properly
investigate the law and the facts and to properly inform Appellant of his rights and
options under the law. In the second subpart, Appellant claims that trial counsel was
ineffective because counsel did not file a “pre-trial motion to suppress blood
evidence obtained in violation of 4th Amendment under McNeely.” See Missouri v.
McNeely, 569 U.S. 141 (2013). We will consider only those claims that Appellant


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aims at trial counsel’s failure to object to inadmissible testimony or at counsel’s
failure to properly cross-examine witnesses. See TEX. R. APP. P. 38.1(i).
      Appellant directs his complaints toward trial counsel’s failure to object to
testimony in which the witnesses addressed the facts of the underlying assault;
discussed Appellant’s Twitter username and its relation to gang activity; referred to
social media posts of pictures in which Appellant is holding guns and cash; and
described the content of “tweets” posted by Appellant that related to his smoking,
his having expensive pants, and his drug dealing. Appellant also directs us to trial
counsel’s failure to object to testimony that Appellant was involved in a shooting
and that Appellant had been involved in a fight. Appellant additionally faults his
trial counsel for failing to properly handle the State’s introduction of various pictures
posted on Facebook.
      Even if we assume, without deciding, that the complained-of testimony was
inadmissible, Appellant has not shown that trial counsel rendered ineffective
assistance when trial counsel did not object to the allegedly inadmissible testimony.
The same is true as to Appellant’s complaints that his trial counsel did not effectively
cross-examine witnesses.
      To establish that trial counsel rendered ineffective assistance at trial,
Appellant must show that counsel’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
A reasonable probability is a probability that is sufficient to undermine confidence
in the outcome of the trial.      Strickland, 466 U.S. at 694.       There is a strong
presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance, and the defendant must overcome the presumption that the
challenged action could be considered sound trial strategy. Id. at 689.
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      A claim of ineffective assistance of counsel must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.
Thompson, 9 S.W.3d at 814 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a
claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005).          Trial counsel should ordinarily have an
opportunity to explain his actions before an appellate court denounces counsel’s
actions as ineffective. Id. Without this opportunity, an appellate court should not
find deficient performance unless the challenged conduct was “so outrageous that
no competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)).
      Appellant has failed to overcome the presumption that trial counsel’s decision
not to object to the evidence or more vigorously cross-examine certain witnesses fell
within the range of reasonable professional assistance. Appellant bears the burden
to overcome that presumption. See Thompson, 9 S.W.3d at 813. Here, the record is
silent as to why Appellant’s trial counsel did not object to the evidence or more
vigorously cross-examine various witnesses. Because the record is silent, it must be
apparent “that counsel’s performance fell below an objective standard of
reasonableness as a matter of law, and that no reasonable trial strategy could justify
trial counsel’s acts or omissions.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011).
      In this case, it is reasonable that trial counsel could have decided not to object
to the testimony because the hearing was before the trial court and, in ruling on any
objection, the trial court would already know the content of the evidence. It is further
reasonable to assume that trial counsel knew that he intended to call Appellant as a
witness and that Appellant would corroborate, accompanied by explanation, many
of the things about which Appellant now complains. It would also seem reasonable
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to assume that, as a trial tactic, trial counsel could have decided that to proffer
Appellant’s testimony in the face of numerous objections to some of the same
material about which he now complains would detract from any possible favorable
treatment from the trial court and would appear to be simply contentious. The
decisions not to object to the allegedly improper evidence and not to more vigorously
cross-examine witnesses would not have been “so outrageous that no competent
attorney would have engaged in it.” Garcia, 57 S.W.3d at 440; see Orellana v. State,
489 S.W.3d 537, 550 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (citing
Kuhn v. State, 393 S.W.3d 519, 539 (Tex. App.—Austin 2013, pet. ref’d)). We
overrule Appellant’s sole issue on appeal.
        We affirm the judgment of the trial court.


                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE
October 3, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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