Opinion filed October 25, 2018




                                       In The

        Eleventh Court of Appeals
                                    __________

                                 No. 11-16-00320-CR
                                     __________

                       EMMANUEL DIAZ, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 104th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 20388B


                      MEMORANDUM OPINION
      The jury convicted Appellant of murder and deadly conduct and assessed his
punishment at confinement for life and a $10,000 fine for the murder conviction and
at confinement for ten years and a $10,000 fine for the deadly conduct conviction.
In a single issue on appeal, Appellant contends that he received ineffective assistance
of counsel at trial for three reasons: (1) trial counsel failed to properly support a
motion to suppress, (2) trial counsel failed to preserve error when a veniremember
was struck for cause, and (3) trial counsel failed to protect Appellant’s confrontation
right in the punishment stage of the trial. We affirm.
                                 Background Facts
       The record shows that Appellant was sixteen years old at the time of the
offenses but was certified to stand trial as an adult. On October 31, 2014, after
Appellant and his friends were asked to leave a Halloween party being held at Joe
Reyes’s house, Appellant drove past Reyes’s house so that one of his passengers,
codefendant Joseph Carrillo, could “shoot at the party.” At least three shots were
fired from Appellant’s vehicle toward Reyes’s house. Appellant then drove to a
convenience store, where he and Carrillo asked Jesse Cortinez to buy them some
beer. Cortinez refused, and an argument ensued. Cortinez walked away, toward a
vacant lot. Appellant backed his vehicle up, then drove forward, turned in the
direction of the vacant lot, and accelerated directly toward Cortinez. Appellant ran
over Cortinez and then fled. Cortinez died at the scene as a result of a “crush injury”
to his chest.
                                       Analysis
       In his sole issue, Appellant alleges that he received ineffective assistance of
counsel. The standard of review for Appellant’s complaint of ineffective assistance
of counsel is whether counsel’s conduct “so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).
       We review a claim of ineffective assistance of counsel under the Strickland
standard, which is a two-part analysis that includes a performance prong and a
prejudice prong. Id. at 687. For the performance prong, Appellant must show that
trial counsel’s performance was deficient. Id. For the prejudice prong, Appellant
must show that there is a reasonable probability that the outcome would have
differed but for trial counsel’s errors. See Wiggins v. Smith, 539 U.S. 510, 534
                                           2
(2003); Strickland, 466 U.S. at 694. A failure to make a showing under either prong
of the Strickland test defeats a claim of ineffective assistance of counsel. Perez v.
State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). Appellate review of defense
counsel’s performance is highly deferential, and we presume that counsel’s actions
fell within the wide range of reasonable and professional assistance. Strickland, 466
U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Walker v.
State, 406 S.W.3d 590, 594 (Tex. App.—Eastland 2013, pet. ref’d).
      To overcome this presumption, Appellant’s claim of ineffective assistance
must be firmly founded in the record, and the record must affirmatively demonstrate
the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.
1999). In most cases, a silent record that provides no explanation for counsel’s
actions will not overcome the strong presumption of reasonable assistance. Id. at
813–14. Appellant must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy. Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648
(Tex. App.—Eastland 2005, pet. ref’d).
      If trial counsel has not had an opportunity to explain the challenged actions,
then we will not conclude that those actions constituted deficient performance unless
they were so outrageous that no competent attorney would have engaged in them.
See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Rylander v.
State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). We note that, although
Appellant filed a motion for new trial, the motion, which was filed by trial counsel,
does not assert ineffective assistance. Consequently, the appellate record does not
contain an explanation from trial counsel concerning his actions. Because trial
counsel has had no opportunity to explain his reasoning for his actions or lack
thereof, we must assume that he had a strategic motivation for his conduct if any


                                          3
such motivation can be imagined. Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim.
App. 2001).
      Motion to Suppress
      In his first claim of ineffective assistance, Appellant contends that his trial
counsel was ineffective by not subpoenaing a witness or obtaining an affidavit to
support Appellant’s motions to suppress, which included an assertion that the
warrant was illegal pursuant to Franks v. Delaware, 438 U.S. 154 (1978). In Franks,
the United States Supreme Court held that, if a defendant established by a
preponderance of the evidence that a false statement made knowingly, intentionally,
or with reckless disregard for the truth was included in a probable cause affidavit
and if the statement was material to establish probable cause, the questioned
information must be excised from the affidavit. 438 U.S. at 164–65; Harris v. State,
227 S.W.3d 83, 85 (Tex. Crim. App. 2007). If the remaining content of the affidavit
does not establish sufficient probable cause, the search warrant must be voided, and
the evidence resulting from that search excluded. Franks, 438 U.S. at 155–56;
Harris, 227 S.W.3d at 85.
      Appellant argues that he suffered ineffective assistance because his trial
counsel “poorly argued” the motion to suppress and failed to present evidence to
support the claim under Franks. In the context of a complaint that trial counsel failed
to properly pursue a motion to suppress evidence, the burden is on the defendant to
prove that a motion to suppress would have been granted. See Jackson v. State, 973
S.W.2d 954, 957 (Tex. Crim. App. 1998). Nothing in the appellate record indicates
that Appellant’s motion had merit and would have been granted.
      The record shows that the magistrate issued a search warrant for Appellant’s
vehicle on November 4, 2014. The search warrant sought “evidence of the murder
including but not limited to: bodily fluids and tissue including human blood, skin
cells, sweat, and other fluids and tissue that contain DNA; hair; clothing including
                                          4
clothing fibers; and finger prints.” The search yielded, among other things, DNA
and blood swabs taken from the vehicle and from a beer bottle and beer can found
inside the vehicle. Appellant’s trial counsel filed a motion to suppress, alleging in
part that the affiant officer made statements that were false or were made with
reckless disregard for the truth. After a hearing, the trial court denied the motion.
      Furthermore, even if we were to assume that trial counsel was deficient in
presenting his motion to suppress, we would not hold that trial counsel’s
performance prejudiced Appellant. If the trial court had granted Appellant’s motion,
the proper remedy would have been to void the search warrant and exclude all
evidence resulting from the search. See Franks, 438 U.S. at 155–56. The warrant
authorized officers to search Appellant’s vehicle for evidence related to the murder.
The evidence from the search warrant included tree bark, cell phones, debit cards,
as well as DNA and blood swabs taken from the vehicle and from a beer bottle and
beer can found inside the vehicle. Appellant has not shown that the result of the
proceeding would have been different if the trial court had granted the motion to
suppress and excluded the evidence obtained from the search warrant.               See
Strickland, 466 U.S. at 694.
       In this regard, we note that one witness testified at trial that she was in the
vehicle when Appellant struck and drove over the victim. Other witnesses testified
about the argument between Appellant and the victim, the vehicle jumping the curb,
and finding the victim between tire tracks as the vehicle drove away. Another
witness described seeing the victim in the lot pleading with the driver not to hit him,
hearing the vehicle’s occupants yelling at the victim, and the driver taunting the
victim by repeatedly jerking the vehicle forward and stopping. Appellant also
instructed his nephew in a birthday card: “When you hit middle school everyone
gonna hate on you because your [sic] going to have all the girls but this is what you
tell them: ‘My Tio Manny a killa he will run you over.’” Appellant has not shown
                                           5
that he received ineffective assistance of counsel with respect to his motion to
suppress.
      Voir Dire
      In his second claim of ineffective assistance, Appellant contends that the trial
court wrongfully excused a prospective juror and that Appellant’s trial counsel failed
to preserve error. An appellate court gives “considerable deference” to a trial court’s
ruling on a challenge for cause “because the trial court is in the best position to
evaluate the veniremember’s demeanor and responses.” Cardenas v. State, 305
S.W.3d 773, 776 (Tex. App.—Fort Worth 2009), aff’d, 325 S.W.3d 179 (Tex. Crim.
App. 2010) (citing Newbury v. State, 135 S.W.3d 22, 32 (Tex. Crim. App. 2004)).
The Texas Court of Criminal Appeals further notes that a veniremember can be
properly challenged for cause when the veniremember is “so vacillating in his
responses as to create the impression that he would be ‘unable to faithfully and
impartially’” follow the law. Cooks v. State, 844 S.W.2d 697, 720 (Tex. Crim. App.
1992) (quoting Foster v. State, 779 S.W.2d 845, 851 (Tex. Crim. App. 1989)).
      During voir dire, a veniremember gave conflicting answers as to whether he
could consider imposing a life sentence on a sixteen-year-old convicted of murder.
The veniremember also said that he could not consider the mandatory minimum
sentence of five years in prison for a murder conviction, stating that “[the defendant]
needs to serve more than five years.” The veniremember indicated that he was
unsure whether or not he could consider the full range of punishment. The State
challenged the veniremember for cause, and Appellant’s trial counsel objected and
explained why he thought the veniremember should not be excused. The trial court
sustained the State’s challenge for cause based on the veniremember’s “nonverbal
communication, his demeanor, his facial expressions, and also considering his
responses.”


                                          6
      Appellant argues that his trial counsel was ineffective because he failed to
preserve error on the alleged wrongful excusal of the veniremember. Appellant
argues that his attorney was required to preserve error by showing “that he had used
all 10 of his peremptory strikes; that a juror was seated upon whom he would have
used a peremptory strike and [that counsel] failed to request another peremptory
strike.” We disagree. The standard that Appellant cites for preserving error would
apply if Appellant himself had asserted the challenge for cause and the trial court
had denied that challenge. See Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App.
2003) (stating the test to preserve error for the denial of a challenge for cause). Here,
however, Appellant did not assert the causal challenge; the State did. We note that,
to show error in the trial court’s grant of a State’s challenge for cause, Appellant
would have to “demonstrate one of two things: (1) the trial judge applied the wrong
legal standard in sustaining the challenge, or (2) the trial judge abused [his]
discretion in applying the correct legal standard.” Jones v. State, 982 S.W.2d 386,
388 (Tex. Crim. App. 1998) (alteration in original) (quoting Vuong v. State, 830
S.W.2d 929, 943 (Tex. Crim. App. 1992)). We hold that Appellant has not shown
that trial counsel failed to preserve error with respect to the excused veniremember.
      Confrontation
      In his third claim of ineffective assistance, Appellant contends that he received
ineffective assistance at the punishment phase of his trial. Specifically, Appellant
argues that his trial counsel rendered ineffective assistance by failing to object to
alleged violations of Appellant’s Sixth Amendment confrontation right at the
punishment stage of the trial. See generally Crawford v. Washington, 541 U.S. 36,
51 (2004). Appellant lists seventy-nine instances of alleged “extraneous conduct”
that he claims were admitted without trial counsel making the necessary objection.
Many of the seventy-nine instances comprised vulgarities, threats, drug tests,
bullying, truancy, school discipline issues, and probation. The complained-of
                                           7
extraneous conduct was contained in exhibits admitted during the punishment phase
of trial and discussed during the testimony of two witnesses: Allison Stafford (the
director of the juvenile probation department) and Sergeant Kevin Henry (the
custodian of records for the disciplinary reports at the county jail).
      The record shows that Appellant’s trial counsel objected on both hearsay and
confrontation grounds shortly after Stafford began testifying. Then, after reviewing
the exhibits offered during Stafford’s testimony, which consisted of a “Diagnostic
Study and Social History” and a psychological evaluation, trial counsel apparently
withdrew those objections. Trial counsel stated: “Judge, it’s a mixed bag, but after
consideration, I think we’re not going to object to the admission of these items.” We
note that the Diagnostic Study and Social History was prepared for Stafford by an
employee of the Taylor County Juvenile Probation Department and that it appears
to have been compiled for purposes of making the “recommendation . . . that this
case be transferred from the juvenile court to the appropriate adult court.”
      The record is silent as to the reason for trial counsel’s decision not to pursue
his earlier objection under the Confrontation Clause, and Appellant has not
overcome the presumption that trial counsel could have had a sound trial strategy for
his actions. See Thompson, 9 S.W.3d at 813–14; Jackson, 877 S.W.2d at 771. We
therefore conclude that Appellant has failed to show that trial counsel’s performance
was deficient with respect to Stafford’s testimony and the admission of the exhibits
that were admitted during Stafford’s testimony. See Strickland, 466 U.S. at 687.
      Appellant further argues that he received ineffective assistance when the State
admitted, and Sergeant Henry briefly testified about, a portion of Appellant’s
disciplinary record from the Taylor County Jail. Appellant again argues that counsel
was ineffective for failing to object on Confrontation Clause grounds. However, the
portion of the disciplinary record that was admitted into evidence in this case
contained only bare-bones recitations of infractions and did not violate the
                                           8
Confrontation Clause. See Smith v. State, 297 S.W.3d 260, 276–77 (Tex. Crim. App.
2009); Segundo v. State, 270 S.W.3d 79, 106–08 (Tex. Crim. App. 2008). Therefore,
trial counsel was not ineffective for failing to object on confrontation grounds.
        Because there has been no inquiry into counsel’s trial strategy and because
Appellant has not shown trial counsel’s actions to be so outrageous that no
competent attorney would have engaged in them, Appellant has not met the first
prong of Strickland. See Strickland, 466 U.S. at 687. Moreover, Appellant has also
failed to meet the second prong of Strickland in that he has not shown that the result
of the proceeding would have been different but for the complained-of actions of
trial counsel. See id. at 694. Accordingly, we overrule Appellant’s sole issue on
appeal.
                                         This Court’s Ruling
        We affirm the judgments of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE
October 25, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals1;
and Wright, S.C.J.2

(Willson, J., not participating)



        1
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

                                                      9
