                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00379-CR


CHRISTOPHER RYAN SIMONEK                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                    TRIAL COURT NO. 1309515D

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                         MEMORANDUM OPINION1

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      A jury convicted Appellant Christopher Ryan Simonek of one count of

injury to an elderly individual and of one count of assault on a family member with

a previous conviction and, thereafter, assessed punishment at imprisonment for

two years and six years, respectively. In two points of error, Appellant contends



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       See Tex. R. App. P. 47.4.
trial counsel rendered ineffective assistance and the trial court committed a

double jeopardy violation. We affirm.

                                  I.   The Indictment

      In count one, the State alleged that on or about January 1, 2013, in Tarrant

County, Appellant intentionally or knowingly caused bodily injury to E.S., an

elderly person, by striking him with Appellant’s fist. This is the offense of injury to

an elderly individual. Tex. Penal Code Ann. § 22.04(a)(3) (West Supp. 2014).

As alleged, the offense is a third degree felony.           Tex. Penal Code Ann.

§ 22.04(f).

      In count two, the State alleged that on or about January 1, 2013, in Tarrant

County, Appellant intentionally or knowingly caused bodily injury to E.S., a

member of Appellant’s family or household, by striking him with his hand, and the

State further alleged that before the commission of this offense, Appellant had

been previously convicted of an assault with bodily injury against a member of

Appellant’s family or household on December 31, 2010, in County Criminal Court

Number Ten of Dallas County. This is the offense of assault on a family or

household member with a previous conviction.               Tex. Penal Code Ann.

§ 22.01(a)(1), (b)(2)(A) (West Supp. 2014). This offense is also a third degree

felony.   Tex. Penal Code Ann. § 22.01(b)(2)(A).         Third degree felonies are

punishable by imprisonment for any term of not more than ten years or less than

two years and fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34 (West

2011).


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      The indictment also contained a repeat offender notice. The State alleged

that before the commission of the above offense or offenses, Appellant was

finally convicted of the felony offense of burglary of a habitation in the 372nd

District Court of Tarrant County in February 2011.     If found true, Appellant’s

range of punishment increased from a third degree to a second degree felony.

Tex. Penal Code Ann. § 12.42(a) (West Supp. 2014). A second degree felony is

punishable by imprisonment for any term of not more than twenty years or less

than two years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33

(West 2011).

                          II. The Evidence and Verdicts

      The complainant was Appellant’s grandfather (Grandfather), who was

sixty-nine at the time of the offense. Appellant was living with Grandfather. On

New Year’s Day 2013, Appellant and Grandfather got into an argument after

Grandfather instructed Appellant to return home to clean his room. When they

confronted each other, Appellant initially bumped Grandfather’s chest with his

hands.   Grandfather responded by slapping Appellant’s cheek with the open

palm of his one good hand. Grandfather’s other hand had been amputated years

earlier. At some point Grandfather said, “Come on, boy, if you want to hit me, go

ahead, get it over with.” Appellant then hit Grandfather on the side of the head

with his fist. This time Grandfather responded by telling Appellant he hit like a

girl. Appellant then hit Grandfather near the eye and drew blood. Grandfather

said he did not see the hit coming, and he said it hurt. The State also introduced


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into evidence State’s Exhibit 6—a December 31, 2010, judgment out of County

Criminal Court Ten of Dallas County showing Appellant’s conviction for assault

family violence, a Class A misdemeanor, committed on December 16, 2010, and

containing an affirmative finding of family violence.

      The jury found Appellant guilty of count one—causing bodily injury to an

elderly individual. The jury also found Appellant guilty of count two—assault on a

family member after having been previously convicted of assault against a family

member. Appellant does not attack the sufficiency of the evidence to support

these convictions.

      After hearing additional evidence, the jury found the repeat offender notice

true and assessed punishment on the first count at imprisonment for two years

and on the second count at imprisonment for six years. The jury assessed no

fine on either offense. The trial court ordered the sentences to run concurrently.

           III. Appellant’s First Point of Error / Ineffective Assistance

      In his first point of error, Appellant complains that trial counsel rendered

ineffective assistance by failing to voir dire the veniremembers regarding whether

they could give him a fair trial notwithstanding the fact he had been previously

convicted of an assault on a family member. Appellant notes that the second

count required not only the commission of an assault on a family member but

also a previous conviction for an assault on a family member.            Appellant

contends trial counsel should have questioned the veniremembers about whether

the prior conviction would prejudice them.


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      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). In

other words, for a claim of ineffective assistance of counsel to succeed, the

record must demonstrate both deficient performance by counsel and prejudice

suffered by the defendant. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim.

App. 2012).   An ineffective-assistance claim must be “firmly founded in the

record,” and “the record must affirmatively demonstrate” the meritorious nature of

the claim. Id. (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999)).

      In evaluating the effectiveness of counsel under the deficient-performance

prong, we look to the totality of the representation and the particular

circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether

counsel’s assistance was reasonable under all the circumstances and prevailing

professional norms at the time of the alleged error. See Strickland, 466 U.S. at

688–89, 104 S. Ct. at 2065.      Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct fell within a wide range of reasonable representation. Salinas v. State,




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163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001).

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

assistance-of-counsel claim because the record is generally undeveloped.

Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813. This statement

is true with regard to the deficient-performance prong of the inquiry when

counsel’s reasons for failing to do something do not appear in the record.

Menefield, 363 S.W.3d at 593; Thompson, 9 S.W.3d at 813. To overcome the

presumption    of   reasonable   professional   assistance,   “any   allegation   of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Salinas, 163 S.W.3d at

740 (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate

court to simply infer ineffective assistance based upon unclear portions of the

record.   Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).          Trial

counsel “should ordinarily be afforded an opportunity to explain his actions before

being denounced as ineffective.”       Menefield, 363 S.W.3d at 593 (quoting

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial counsel

is not given that opportunity, then the 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), cert. denied, 537 U.S. 1195 (2003)).

      The prejudice prong of Strickland requires a showing that counsel’s errors


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were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

an appellant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

      Appellant correctly asserts trial counsel did not address the effect the

introduction of the prior conviction would have on the veniremembers should they

become jurors.     Our review of the voir dire shows, however, that the State

questioned the veniremembers extensively about the prior conviction. Some of

the veniremembers balked at the idea that a second offense against a family

member constituted a third degree felony whereas a second offense against a

neighbor remained a misdemeanor.              Other jurors agreed with the added

protection. Defense counsel started his voir dire by stating that the prosecutor

had already covered the majority of what he wanted to go over. This may explain

defense counsel’s failure to address the prior family violence conviction during

his own voir dire. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005) (“[W]e cannot conclude that the failure to ask any questions in voir

dire constitutes conduct so outrageous that no competent attorney would have

engaged in it.     Defense counsel’s articulated reason for declining to ask


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questions—that the prosecution’s questioning adequately covered the defense’s

concerns—could     be   a   legitimate   trial   strategy   under   the   appropriate

circumstances.”); cf. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d) (“An appellate court will not speculate about the

reasons underlying defense counsel’s decisions.”).          In any event, defense

counsel then covered a number of topics, including the presumption of

innocence, reasonable doubt, self-defense, why family violence was treated

differently, consent or assent to contact, whether the veniremembers would be

prejudiced against Appellant because the offenses involved an elderly person,

and whether any of the venire would have a problem if the case resulted in a

hung jury and had to be tried over by a different jury.         Given the fact the

prosecutor and the veniremembers addressed the prior family violence

conviction, which defense counsel would have necessarily observed, and given

the fact defense counsel raised other issues that probed for prejudices against

his client, we conclude that on this record, in the absence of defense counsel

having been given an opportunity to defend himself, his failure to further address

the prior family violence conviction was not outrageous, much less “so

outrageous that no other competent attorney would have engaged in it.” See

Menefield, 363 S.W.3d at 593; see also Goodspeed, 187 S.W.3d at 391 (“We

must determine whether the failure to ask any questions during voir dire and the

exercise of two peremptory challenges on jurors who had already been excused

constitute performance that is so obviously deficient that inquiry into the reasons


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for counsel’s conduct becomes unnecessary. We hold that an inquiry into the

reasons for counsel’s conduct is still needed.”)

      Because Appellant has not shown his trial counsel’s representation was

deficient, we need not address whether any perceived deficiency prejudiced

Appellant’s case. We overrule Appellant’s first issue.

            IV. Appellant’s Second Point of Error / Double Jeopardy

      In his second point of error, Appellant contends the trial court erred by

convicting him twice for the same conduct. Appellant contends the evidence for

both the injury-to-the-elderly offense and the assault-family-member offense was

identical—Appellant assaulted his sixty-nine year old grandfather by punching his

face, causing bodily injury.       Appellant complains that he received two

punishments for the same assaultive conduct and that the multiple punishments

violated his Fifth Amendment protection against double jeopardy. U.S. Const.

amend. V.

      The question of multiple punishments in one trial is entirely an issue of

legislative intent. Missouri v. Hunter, 459 U.S. 359, 368–69, 103 S. Ct. 673, 679

(1983); Ex parte Hawkins, 6 S.W.3d 554, 558 (Tex. Crim. App. 1999). When the

legislature specifically authorizes cumulative punishments under two statutes,

regardless of whether the two statutes proscribe the same conduct, a court’s task

of statutory construction is at an end, and the prosecutor may seek and the trial

court and jury may impose cumulative punishments under such statutes in a

single trial. Hunter, 459 U.S. at 368–69. Section 22.04(h) plainly authorizes


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multiple punishments when the defendant engages in conduct that violates

section 22.04 (the injury-to-the-elderly offense) and another penal code section;

therefore, there is no double jeopardy violation.       Tex. Penal Code Ann.

§ 22.04(h); see Hunter, 459 U.S. at 368–69; Johnson v. State, 208 S.W.3d 478,

510–11 (Tex. App.—Austin 2006, pet. ref’d). We overrule Appellant’s second

point of error.

                                  V. Conclusion

      Having overruled both of Appellant’s points of error, we affirm the trial

court’s judgment.

                                                 /s/ Anne Gardner
                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 6, 2014




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