                          NUMBER 13-14-00335-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


BENNY TORRES MEDRANO,                                                       Appellant,

                                         v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 92nd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
           Memorandum Opinion by Chief Justice Valdez
      A jury convicted appellant Benny Torres Medrano of injury to a child by criminally

negligent conduct, a state-jail felony. See TEX. PENAL CODE ANN. § 22.04(g) (West,

Westlaw through 2017 1st C.S.). The trial court sentenced Medrano to two years in state

jail. By two issues, Medrano contends: (1) the jury charge allowed the jury to convict on

less than a unanimous verdict; and (2) trial counsel was ineffective. We affirm.
                                            I.      BACKGROUND

A.      The Accusation

        The State charged Medrano with one count of first-degree injury to a child, alleging

that Medrano “intentionally or knowingly cause[d] serious bodily injury to [M.M. 1], a child

14 years of age or younger, by a manner and means unknown or unknowable to the

Grand Jury.” The following evidence was adduced at trial.

B.      State’s Case-in-Chief

        Medrano lived with his girlfriend Christi Garza and their three-month old daughter,

M.M., in a mobile home. One morning, Medrano’s aunt noticed swelling on M.M.’s

forehead while babysitting the child. By noon that day, Medrano and Garza took M.M. to

the hospital where X-rays uncovered a total of thirteen fractures: three on the skull, nine

on the ribs, and one on the femur. 2 Dr. Adeyinka Adebayo, the treating doctor, testified

that M.M. also had a severe diaper rash indicating possible neglect.

        At trial, Dr. Adebayo testified that M.M.’s condition was “highly suggestive of a

nonaccidental trauma.” Dr. Adebayo elaborated that the skull fracture could have been

caused by M.M. falling to the ground from a height between three and five feet or by

someone “bang[ing] [the child’s] head against something”; the femur fracture could have

been caused by “pulling” or “twisting” M.M.’s leg, though the amount of force had to be

“significant” because femur bones almost never fracture; and the rib fractures could have

been caused by “squeezing” or “compressing” M.M.’s chest area, though a “lot of force”




        1 We use initials throughout this memorandum opinion to protect the child’s identity. See generally

TEX. R. APP. P. 9.8.

        2   The femur or thigh bone is found in the upper leg of the human body.

                                                      2
had to be applied. Dr. Adebayo testified that M.M. showed none of the symptoms

associated with osteogenesis imperfecta—a genetic disorder that causes brittle bones.

      Dr. Adebayo testified that the fractures were at various stages of healing. He

elaborated that the rib fractures were at least one month old based on cartilage formation,

but some rib fractures were older than others—indicating that the ribs were probably not

fractured at the same time; the femur fracture was “relatively new”; and the skull fracture

was the “most recent.”

      The day after M.M. was admitted to the hospital, a police investigator interviewed

Medrano about M.M.’s injuries. In a written statement, Medrano admitted that, two days

earlier, M.M. accidentally fell off the bed while he turned to grab a diaper. Medrano and

Garza’s bed measured approximately two feet off the ground. Medrano elaborated:

      [M.M.] was in her crib, I was on the bed and [Garza] was in the kitchen
      making dinner. [M.M.] started to cry and I noticed she was wet (soiled
      pamper) so I picked her up and placed her on the bed, towards the foot of
      the bed. I was sitting on the edge of the bed and when I turned to my right
      to reach for the pampers, [M.M.] fell off the bed. I turned immediately and I
      saw [M.M.] fall to the wooden floor. I know there was a pillow on the floor
      which her body landed on. [M.M.] was crying but cried only for about a
      minute but I calmed her down.

Medrano also admitted that he did not tell Garza about the incident until Dr. Adebayo

informed them that M.M.’s skull had been fractured. Medrano stated that he kept the

information about the fall from Garza because he “didn’t think it was serious.”

      During the police interview, Medrano learned for the first time that M.M. also

sustained rib fractures that were “old.” To explain these fractures, Medrano described an

incident that happened approximately one month before the more recent diaper-changing

incident. Medrano elaborated that he and Garza engaged in a physical tug-of-war over

possession of M.M., during which he admitted that he “pulled” M.M. while Garza clung

                                            3
“tight[ly]” to the child. Medrano did not specify in his statement which part of M.M.’s body

he pulled.

        Garza spoke to a CPS investigator and a police investigator at the hospital

regarding M.M.’s injuries. At trial, the CPS investigator testified that Garza said Medrano

pulled M.M.’s leg during the tug-of-war and that M.M. cried. Medrano’s counsel did not

object to this testimony on hearsay or other grounds.                      Unexpectedly, the police

investigator testified that, after Medrano’s trial, he intended to arrest Garza for her part in

this case. 3 This revelation prompted the learned trial judge to inform Garza, outside the

presence of the jury, that she had become a criminal suspect and that she did not have

to testify at Medrano’s trial.

        The State called Garza as its last witness.                       Heeding the trial judge’s

admonishment, Garza refused to testify. The State rested.

C.      Medrano’s Rebuttal Evidence

        After the State rested, Medrano testified in his defense. Based on his testimony

on direct and cross examination, Medrano’s defense was that: (1) M.M.’s skull probably

fractured at some point before the diaper-changing incident; (2) M.M.’s ribs probably

fractured during the tug-of-war incident, but it was Garza who “squeezed” M.M.’s rib cage,

so she is to blame for any ribs that may have fractured during that incident; and (3) M.M.’s

femur probably did not fracture during the tug-of-war incident because he pulled M.M.

from her arms (or underarms), but not from her legs.




         3 The investigator provided no cogent explanation for why he waited so long (one year, four months)

to decide to arrest Garza—other than to say the investigation was still pending and the ten-year statute of
limitation had not yet expired.


                                                     4
         On cross examination, the prosecutor attempted to cast doubt on Medrano’s

assertions with respect to each incident. Regarding the diaper-changing incident, the

prosecutor asked Medrano if he was sure M.M. fell from the bed—which stood two feet

from the ground—considering Dr. Adebayo’s testimony that the fracture was likely caused

by a three-to-five foot drop or by someone “bang[ing] [the child’s] head against

something.” Medrano responded that he did not know whether M.M.’s skull fractured at

that time and could only say that M.M. accidentally fell off the bed while under his care. 4

Regarding the tug-of-war incident, Medrano denied that he pulled on M.M.’s legs or rib

cage, maintaining only that he pulled under (or around) M.M.’s arms.

D.       The Jury Charge and Verdict

         After both sides closed, the charge was submitted to the jury. The application

portion of the charge asked the jury to consider whether the Medrano committed at least

one of the following offenses in descending order:

         1. injury to a child by intentional or knowing conduct, as alleged in the
            indictment; 5

         2. injury to a child by reckless conduct; 6 or

         3. injury to a child by criminally negligent conduct. 7


         4 The prosecutor then countered by intimating that Medrano may be hiding conduct more sinister
in nature because the fall had to be from at least three feet, according to Dr. Adebayo. The prosecutor
suggested that Medrano may have concocted the diaper-changing incident, highlighting Medrano’s one-
time use of the word “dropped” rather than “fell” while testifying about the incident, which the prosecutor
suggested was more than an innocent slip-of-the-tongue. In response to this line of questioning, Medrano
clarified: “I dropped her because I left her on the bed. . . . I'm sorry. I dropped out of school. I don't know
how to speak much English.”

         5   A first-degree felony. See TEX. PENAL CODE ANN. § 22.04(e) (West, Westlaw through 2017 1st
C.S.).

         6   A second-degree felony. See id.

         7   A state-jail felony. See id. § 22.04(g).


                                                        5
       The application portions of the charge grafted the “serious-bodily-injury-by-

manner-means-unknown” language in the indictment, substituting only the applicable

culpable mental state for each offense. Consequently, the application portion did not

specify which conduct provided the basis for Medrano’s guilt—i.e., the month-old tug-of-

war incident or the two-day-old diaper-changing incident—and the application portion did

not specify which injuries resulted from those incidents—i.e., the skull fracture, the femur

fracture, and/or the rib fractures.      Nevertheless, the charge contained a general

boilerplate unanimity instruction, stating:

       Your verdict must be unanimous, and after you have reached a unanimous
       verdict, the Presiding Juror will certify thereto by signing the appropriate
       [verdict] form attached to this charge.

       Although the charge included this boilerplate language, it did not instruct the jury

that, should it decide to convict Medrano under any grade of injury to a child, it had to be

unanimous as to the incident and injury for which Medrano would be held criminally

responsible. This instruction is known as an incident-specific unanimity instruction. See

Cosio v. State, 353 S.W.3d 766, 776 (Tex. Crim. App. 2011) (observing that, depending

on the State’s evidence, it is sometimes appropriate to instruct the jury that it must

unanimously agree on one incident of criminal conduct (or unit of prosecution) that meets

all of the essential elements of the single charged offense beyond a reasonable doubt).

       Attached to the jury charge was a verdict form, which provided the following four

options in descending order:

       1. GUILTY of injury to a child by intentional or knowing conduct;

       2. GUILTY of injury to a child by reckless conduct;

       3. GUILTY of injury to a child by criminally negligent conduct; or



                                              6
         4. NOT GUILTY

         The jury retired to deliberate with the charge in hand. Sometime thereafter, the

jury sent a note. The trial court described the contents of the note in open court, but the

note itself is not included in the clerk’s or reporter’s record. The trial court stated: “I have

a note that came in at 10:05 from the Presiding Juror. . . . [The question] is do we have

to have a unanimous or majority decision? That’s an easy one, unanimous.” There is no

indication that an incident-specific instruction was given or explained to the jury at that

time.

         After deliberating for a period, the jury found Medrano guilty of injury to a child by

criminally negligent conduct, and the trial court sentenced him to two years in a state-jail

facility. This appeal followed.

                                       II.    JURY CHARGE

         By his first issue, Medrano contends that the general boilerplate unanimity

instruction was not sufficient to inform the jury that its verdict had to be unanimous.

According to Medrano, the general instruction was not sufficient in this case because the

State charged one count of injury to a child and presented evidence that the charged

offense occurred on multiple but separate occasions, necessitating an incident-specific

unanimity instruction.

         We review an allegation of jury-charge error in two steps: first, we determine

whether error exists; if so, we then evaluate whether sufficient harm resulted from the

error to require reversal. See Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App.

2017).

A.       Step One: Did Error Occur?



                                               7
       The State candidly concedes that the jury charge erroneously omitted an incident-

specific unanimity instruction. We agree with the State.

       The Texas Constitution requires that a jury verdict in a felony case be unanimous.

See TEX. CONST. art. V, § 13. As applicable here, “non-unanimity may occur when the

State charges one offense and presents evidence that the defendant committed the

charged offense on multiple but separate occasions.” Ansari v. State, 511 S.W.3d 262,

265 (Tex. App.—San Antonio 2015, no pet.) (quoting Cosio, 353 S.W.3d at 772). In such

a case, “it is the trial court’s responsibility to ensure unanimity by instructing the jury in

the charge that its verdict must be unanimous as to a single incident of the offense among

those presented by the State.” Id.; see Cosio, 353 S.W.3d at 773–74 (concluding that the

jury charge erroneously omitted an incident-specific unanimity instruction because, based

on the State’s evidence, the jury could have relied on separate incidents of criminal

conduct, which constituted different offenses or separate units of prosecution, to find the

defendant guilty). Injury to a child is a result-oriented offense, meaning the essential

element or focus of the offense “is the result of the defendant’s conduct (in this case,

serious bodily injury to a child).” See Villanueva v. State, 227 S.W.3d 744, 748 (Tex.

Crim. App. 2007). Thus, the injury itself forms the gravamen of the offense or allowable

unit of prosecution. Id.

       In view of the evidence presented, the State’s alternate theories of guilt, and the

vague “serious-bodily-injury-by-manner-means-unknown” language used in application

portions of the charge, we agree with the State that a potential danger exists in this case

that the jury convicted Medrano without necessarily agreeing unanimously on which

incident—i.e., the month-old tug-of-war incident or the two-day-old diaper-changing



                                              8
incident—caused which of the various fractures found on M.M.’s body. Without an

incident-specific unanimity instruction, it is conceivable that some jurors may have

premised a finding of guilt on fractures to M.M.’s femur or the child’s ribs, which arguably

correlate with Medrano’s conduct during (and the timing of) the tug-of-war incident, while

other jurors may have convicted based on the skull fracture, which arguably correlates

with Medrano’s conduct during (and the timing of) the more recent diaper-changing

incident. It is undisputed that these incidents were separated in time and that each,

standing alone, could support a conviction for injury to a child if proven beyond a

reasonable doubt. 8

        Because the State charged one count of injury to a child but presented evidence

indicating that the offense may have occurred on separate occasions, the trial court was

required to include an incident-specific unanimity instruction to ensure that all twelve

jurors agreed upon a single and discrete incident that would constitute the commission of

the offense alleged. See Cosio, 353 S.W.3d at 773–74. Therefore, we find error. See

id.

B.      Step Two: Was the Error Harmful?

        Having found error, we now ask whether sufficient harm resulted from the error to

require reversal. See Arteaga, 521 S.W.3d at 333. At the jury-charge conference,

Medrano did not object to the charge on the basis that it omitted an incident-specific



        8 The State does not argue that the injuries were so inextricably intertwined in terms of time and
type as to constitute only one injury for purposes of determining the number of units of prosecution
presented to the jury. Johnson v. State, 364 S.W.3d 292, 296 (Tex. Crim. App. 2012) (observing that courts
are frequently called upon to determine the “allowable unit of prosecution” in cases involving jury-unanimity
jurisprudence).




                                                     9
unanimity instruction. This impacts our harm analysis because defendants who do not

object to charge error must be “egregiously” harmed by the error to obtain a new trial.

See Cosio, 353 S.W.3d at 777. Egregious harm must be based on a finding of actual

rather than theoretical harm. Id. For actual harm to be established, the charge error must

have affected “the very basis of the case,” “deprive[d] the defendant of a valuable right,”

or “vitally affect[ed] a defensive theory.” Id. (quoting Almanza v. State, 686 S.W.2d 157,

171 (Tex. Crim. App. 1984)). When assessing harm based on the particular facts of the

case, we consider: “(1) the [jury] charge; (2) “the state of the evidence[,] including

contested issues and the weight of the probative evidence”; (3) the parties’ arguments;

and (4) all other relevant information in the record.” Id. (quoting Hutch v. State, 922

S.W.2d 166, 171 (Tex. Crim. App. 1996)).

1.     The Jury Charge

       As explained above, the jury charge did not eliminate the danger of a non-

unanimous verdict. Although the charge contained a boilerplate unanimity instruction, it

is well-settled that such an instruction does not rectify the type of error involved here. See

id. at 774 (concluding that boilerplate unanimity instruction did not rectify the error in failing

to include an incident-specific unanimity instruction when such instruction was required

based on the evidence). Therefore, “[n]othing in the charge[] [itself] militates against [the

conclusion that the charge permitted a non-unanimous verdict.]” Id. at 777.

2.     State of the Evidence

       We next consider whether and to what extent contested issues in the case

interacted with the charge error.




                                               10
        Here, the dispute concerned who did what to M.M. and when. The State pointed

to the fact that Medrano admitted to both the tug-of-war incident and the diaper-change

incident, arguing M.M. sustained at least one of thirteen fractures because of one or both

incidents. 9    Medrano responded that his conduct during the two incidents was not

sufficient to cause any of the thirteen fractures, and that, if Garza had nothing to hide, she

would have testified at trial like he did. Thus, Medrano’s defense was that the jury had

enough reason to doubt that he was guilty of any criminal offense.

        As the State aptly points out, the jury apparently was not persuaded by Medrano’s

all-or-nothing defense because, if it was, the logical verdict would have been to acquit in

whole rather than to convict on a lesser offense, as happened here. See id. (finding no

egregious harm where, among other things, the jury’s implicit rejection of the defendant’s

all-or-nothing defense made it “highly likely” that its verdict was unanimous as to each

count). As in Cosio, we believe the likelihood of a unanimous verdict in this case was

sufficiently high based on the state of the evidence and the contested issues. See id.

        Finally, we find it significant that Medrano does not urge on appeal that the

evidence was legally insufficient to prove one of the two theories advanced by the State

to support a conviction. This is important because the Texas Court of Criminal Appeals

found egregious harm where one of two theories on which the State sought a conviction

lacked sufficient evidence, thus creating an impermissible risk that some jurors convicted

based on the invalid theory. See Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007).




        9 Regarding the culpable mental state, the State argued that Medrano was at least reckless in
causing the injuries, but he probably intended the result as evidence by the severity of some of the fractures.


                                                     11
That issue, however, is not before us. See TEX. R. APP. P. 47.1. We conclude this factor

weighs against a finding of egregious harm.

3.      Arguments of the Parties

        We next consider whether and to what extent the arguments of the parties

exacerbated the charge error. Here, the prosecutor in closing argument toggled between

the two incidents and the injuries in making the case for injury to a child, but he never

actually told jurors they could be non-unanimous with respect to the incident/injury and

still convict. This aspect of the prosecutor’s argument does not support a finding of

egregious harm. See Cosio, 353 S.W.3d at 777 (holding that omission of unanimity

instruction did not cause egregious harm where, among other things, the parties did not

add to the charge error by telling the jury that it did not have to be unanimous about the

specific instance of criminal conduct in rendering its verdict). Having said that, we cannot

ignore the following statements the prosecutor made during closing, which treaded the

line:

        [Y]ou are to consider all the injuries that went into play. The law provides
        that you only have to find that one of the serious bodily injuries were caused
        by [Medrano]. We have 13 fractures all of which are serious bodily injuries.

        ...

        Now let’s go through each of the injury types we have here. First the ribs,
        okay. Now, we're not asking you to find that he is more or less guilty than
        [Garza] at least for that one circumstance when they were tugging at the
        baby because if he is guilty of breaking at least one rib, he is still guilty. It
        doesn't matter if he had help or not. Guilty is guilty. If he thought he broke
        one of the ribs, he is guilty. If he thought he broke the skull, he is guilty. If
        he thought he broke her leg, he is still guilty.

        ...

        Thirteen fractures—if you believe he caused even one, he is guilty.



                                               12
As we understand these statements, the prosecutor emphasized that the evidence

provided jurors thirteen different options on which to find the predicate serious bodily

injury to support a conviction. 10 Although it is theoretically possible that jurors understood

they need only agree that Medrano caused a fracture without agreeing on which fracture,

we do not believe the jury construed the prosecutor’s statements in that way; notably, the

prosecutor never told jurors they could mix and match the incidents and injuries in arriving

at their verdict. In this sense, we believe the statements are distinguishable from other

statements made by prosecutors where courts have found egregious harm meriting

reversal. See Ngo v. State, 175 S.W.3d 738, 752 (Tex. Crim. App. 2005) (holding that

omission of unanimity instruction caused egregious harm where, among other things, the

prosecutor misadvised jurors that they could mix and match three different acts even

though, under the law, each act constituted a separate unit of prosecution of credit card

abuse requiring unanimity); Gomez v. State, 498 S.W.3d 691, 698 (Tex. App.—Houston

[1st Dist.] 2016, no pet.) (finding egregious harm where, among other things, the

prosecutor’s closing encouraged a non-unanimous verdict by stating: “If four of you think

that oil incident is beyond a reasonable doubt and four of you think that bed incident is

beyond a reasonable doubt and the other four think that some other incident was beyond

a reasonable doubt, then we have proved our case”); Clear v. State, 76 S.W.3d 622, 624



        10Though not entirely clear, the prosecutor appeared to make the argument that the jury could
base a verdict on the diaper rash too, stating:

        And as far as the diaper rash is concerned, it’s on both of them. Both parents need to take
        care of the baby. If he is changing the diaper ever so often, he’s going to notice this and
        it's an ongoing issue. So, like I said, don’t be [misled]. They’re both responsible. We’re
        not asking for you to figure out who is more or less responsible. We’re asking you to find
        out if he is responsible at all.



                                                   13
(Tex. App.—Corpus Christi 2002, no pet.) (finding egregious harm where, among other

things, the prosecutor misadvised the jurors that: “As long as we have proven to each

and every one of you at least one of these manners, we are entitled to a guilty verdict.

You don’t all have to agree on which manner we’ve proven it to you, as long [as] we’ve

proven one of these. So we only have to convince you of one, but there’s three different

ways that you can find this man guilty, Okay?”). Because the prosecutor here did not go

as far as the prosecutors in the above cases, we believe this factor weighs slightly against

a finding of egregious harm. 11

4.     Other Relevant Information

       Finally, we consider any other relevant information in the record. In making the

argument for egregious harm, Medrano directs our attention to the jury’s mid-deliberation

note, where the jury inquired whether its decision had to be “unanimous or majority,” and

the trial court answered “unanimous.”

       According to our research, courts have considered the existence (and content) of

jury notes in determining whether the erroneous omission of an incident-specific

unanimity instruction caused actual rather than theoretical harm. Compare Smith v.

State, 515 S.W.3d 423, 431 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (finding no

egregious harm where, among other things, “[t]he record reveal[ed] no jury notes or any

other indication that the jury sought any clarification regarding unanimity”), with Gonzales

v. State, No. 03-16-00541-CR, 2017 WL 6756812, at *10 (Tex. App.—Austin Dec. 21,

2017, pet. filed) (mem. op., not designated for publication) (finding egregious harm where,

among other things, the record indicated that, although the jury’s note expressed “serious”



       11   During closing, Medrano’s counsel did not reference the unanimity issue.

                                                    14
confusion regarding unanimity, the trial court’s response merely referred the jury back to

the boilerplate unanimity instruction, which did not adequately instruct the jury on

unanimity).

       Here, the jury sent a note inquiring about unanimity. Considering that the trial

judge had already provided a boilerplate unanimity instruction, it is somewhat concerning

that the jury found it necessary to seek further clarification regarding unanimity. However,

nothing the trial court described in the note indicates that the jury was confused regarding

whether unanimity was required as to a specific incident or injury. Given the content of

the note, we believe it would be speculative to assume that it evidenced the jury’s

confusion in that regard.    Consequently, we do not believe the note itself provides

competent proof of actual (as opposed to theoretical) harm. See Cosio, 353 S.W.3d at

777; see also Gomez, 498 S.W.3d at 699 (rejecting appellant’s argument that jury note

sought clarification on the unanimity issue when a review of its content showed that the

jury sought clarification on a different issue—namely, whether the date in the indictment

was a necessary element of the charge). Furthermore, even if we were to assume that

the note evidenced the jury’s confusion regarding whether unanimity was required as to

a specific incident or injury, we are confident that the trial court’s answer to that inquiry

was adequate to clarify any confusion when the trial court stated “unanimous.”

5.     Summary

       When examining all four factors to determine egregious harm, we believe only the

first factor supports reversal—because nothing in the jury charge itself alleviated the

danger of a non-unanimous verdict; the other three factors do not. The state of the

evidence (second factor) is against reversal—because Medrano pursued an all-or-



                                             15
nothing defense, making it highly likely that the jury’s verdict was unanimous. The

arguments of the parties (third factor) is slightly against reversal—because the prosecutor

did not overtly misstate the law regarding unanimity, as did the prosecutors in Ngo,

Gomez, and Clear, which resulted in reversals. Finally, we are not persuaded that the

jury note (fourth factor) evidences actual rather than theoretical harm. Although this is a

close call, we conclude that actual harm has not been shown, and therefore, we cannot

say that Medrano was denied a fair and impartial trial. We overrule Medrano’s first issue.

                        III.   INEFFECTIVE ASSISTANCE OF COUNSEL

      By his second issue, Medrano contends his trial counsel made errors before and

during trial which prejudiced his defense.

A.    Standard of Review

      Strickland v. Washington sets forth a two-prong test for reviewing a claim of

ineffective assistance of counsel. See 466 U.S. 668, 687 (1984). Under Strickland's first

prong, a defendant must demonstrate that his counsel’s performance was deficient in that

it fell below an objective standard of reasonableness. See id. To make this showing, the

defendant must identify the “acts or omissions of counsel that are alleged not to have

been the result of reasonable professional judgment.” Id. at 690. The reviewing court

must then determine “whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.” Id.

      Generally, if the record is silent as to why trial counsel engaged in the action being

challenged as ineffective, there is a “strong presumption” that counsel’s conduct was the

result of sound trial strategy, falling within the wide range of reasonable professional

assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Ingham



                                             16
v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). To overcome this presumption,

a claim of ineffective assistance must be firmly demonstrated in the record. Id. at 814.

Direct appeal is usually an inadequate vehicle for raising an ineffective-assistance claim

because the record is frequently undeveloped. See Menefield v. State, 363 S.W.3d 591,

592–93 (Tex. Crim. App. 2012). Counsel usually must be afforded an opportunity to

explain his challenged actions before a court concludes that his performance was

deficient. Id. at 593. If trial counsel has not had such an opportunity, we will not find

deficient performance unless the 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).

         Under Strickland’s second prong, the defendant must demonstrate that counsel's

deficient performance was so serious that it deprived him of a fair trial—i.e., a trial with a

reliable result. See 466 U.S. at 687. To demonstrate prejudice, the defendant must show

that but for his trial counsel’s deficient performance, there is a “reasonable probability”

that the outcome of the trial would have been different.          Id. at 694. A “reasonable

probability” in this context refers to a “probability sufficient to undermine confidence in the

outcome.” Id.

B.       Analysis

         By four allegations, which we construe as two, Medrano contends that his trial

counsel was ineffective: (1) by failing to require the State to allege in the indictment, or

elect at the end of its case-in-chief, the specific incident and injury on which the State

sought to base a conviction; and (2) by failing to object to the CPS investigator’s testimony

regarding what Garza said at the hospital. We address each below.



                                              17
1.      Failing to Require the State to Allege or Elect a Specific Incident and Injury

        Medrano’s ineffective assistance claim fails at Strickland’s first prong—i.e., the

performance prong. Because the record is silent regarding the reason for trial counsel’s

decision, we must presume that counsel’s failure to require the State to allege or elect a

specific incident and injury was strategic. See Thompson, 9 S.W.3d at 813; Goodspeed,

187 S.W.3d at 392. This presumption can be overcome only if trial counsel’s decision

was so outrageous that no competent attorney would have made it. In Cosio, the Texas

Court of Criminal Appeals observed that a defendant may be guided by trial strategy in

not requiring the State to elect a specific act on which to base a conviction. 353 S.W.3d

at 775. The Court explained that “[a] defendant may choose not to elect so that the State

is jeopardy-barred from prosecuting on any of the offenses that were in evidence.” Id.

We do not know whether trial counsel forewent an election to yield a favorable double-

jeopardy consequence in this case. For our purposes here, it matters only that the

decision may have been strategic, which means it could not fall within the category of

decision-making that we would consider so outrageous that no competent attorney would

have made it. 12 See Goodspeed, 187 S.W.3d at 392. Accordingly, we conclude that

Medrano failed to satisfy Strickland’s deficient-performance prong with respect to his first

allegation of ineffectiveness.

2.      Failing to Object to CPS Investigator’s Testimony




         12 We note that the defendant’s decision to forgo election does not absolve the trial court of the

responsibility to instruct the jury on the law applicable to the case. See Cosio v. State, 353 S.W.3d 766,
776 (Tex. Crim. App. 2011). Thus, even when a defendant forgoes an election, the trial judge must submit
a charge that does not allow for the possibility of a non-unanimous verdict. See id. For this reason,
defendants like Medrano may raise ineffective assistance claims stemming from the failure to elect while
also alleging jury-charge error regarding unanimity. See id.

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       Medrano contends that his counsel was ineffective in failing to object to the

investigator’s testimony regarding what Garza said at the hospital. As previously noted,

the investigator testified that Garza said that Medrano was a co-participant in the tug-of-

war incident and that he pulled M.M.’s legs. Garza. Medrano argues trial counsel should

have objected because the investigator’s testimony was hearsay and violated his

constitutional right to confront and cross examine Garza because she refused to testify.

       Again, Medrano’s ineffective assistance claim fails at Strickland’s first prong. The

record is silent regarding trial counsel’s failure to object, and Medrano has not shown that

counsel’s omission was so outrageous that no competent attorney in trial counsel’s shoes

would have done the same. See id. Additionally, as the State aptly points out, trial

counsel may have decided not to object to the complained-of testimony because counsel

expected to cross examine Garza later in the trial regarding what she told the investigator.

However, in an unexpected twist, the investigator revealed on the witness stand that

Garza would be arrested following Medrano’s trial, which prompted Garza to assert her

Fifth Amendment right against self-incrimination. Given the sequence of the complained-

of testimony, the surprise testimony regarding Garza’s impending arrest, and Garza’s

belated refusal to testify, we cannot say that trial counsel had any way of knowing, at the

time of the companied-of testimony, that this unexpected twist would later unfold and

prevent Medrano from cross examining Garza. We decline to find deficient performance

based on trial counsel’s failure to predict the future. We overrule Medrano’s second issue.

                                     IV.       CONCLUSION

       We affirm the trial court’s judgment.




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                                /s/ Rogelio Valdez
                                ROGELIO VALDEZ
                                Chief Justice



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

Delivered and filed this
28th day of June, 2018.




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