Opinion filed August 13, 2015




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-13-00290-CR
                                    __________

                    EDWARD LEE MEDINA, Appellant
                                 V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 70th District Court
                              Ector County, Texas
                        Trial Court Cause No. A-41,124


                      MEMORANDUM OPINION
      The jury found Edward Lee Medina guilty of the offenses of sexual assault
and assault-family violence. The jury assessed punishment at confinement for
twenty-five years and fifteen years, respectively, and the trial court sentenced
Appellant accordingly. Appellant raises two issues on appeal. We affirm.
                                 I. Evidence at Trial
      Appellant does not challenge the sufficiency of the evidence. Therefore, we
will give only a brief recitation of the facts. The victim’s neighbor heard Appellant
drive up to the victim’s home, saw him beat on the front door three times, and saw
him force the door open. When the neighbor heard the victim scream and then
abruptly stop, she called 9-1-1. In response to the 9-1-1 call, James Wesley Chance,
a deputy with the Ector County Sheriff’s Office, was dispatched to the victim’s
house.
      Deputy Chance knew from dispatch that a protective order existed against
Appellant. Deputy Chance arrived at the victim’s home, knocked on the door, and
announced himself. When the victim came to the door, Deputy Chance saw that she
had been crying. He also saw that the victim’s face appeared red and that she had a
mark on her back that looked like a bite mark or a place where she had been hit.
Deputy Chance subsequently arrested Appellant.
      On cross-examination, Appellant’s counsel questioned the neighbor about the
9-1-1 call. Counsel elicited testimony from the neighbor that she only assumed that
Appellant abused the victim. The State produced testimony from the neighbor, and
other witnesses, about additional times that Appellant had abused the victim.
Appellant’s counsel requested a limiting instruction on at least one extraneous
offense, but the trial court denied the request. In its charge to the jury, the trial court
instructed the jury that it was not to use the evidence of extraneous offenses as
evidence of guilt.
      The State offered into evidence a recording of a telephone conversation
between Appellant and the victim that took place while Appellant was in jail. In the
recording, the victim said that Appellant had attacked her. The recording also
contains Appellant’s admission that he had done so. Appellant’s counsel objected
to the recording on the grounds of authentication, relevance, and Rule 404(b). See
TEX. R. EVID. 404(b). The trial court overruled his objections and admitted the
recording.



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                                  II. Issues Presented
      Appellant argues in his first issue on appeal that the trial court erred when it
admitted the recording of the telephone call made while he was in jail because the
recording was hearsay. Appellant contends in his second issue that he received
ineffective assistance of counsel.
                                      III. Analysis
      A. Issue One: Hearsay Statements
      To preserve error on appeal, the record must show that the party made a
timely, specific objection to make the trial court aware of the complaint and obtained
a ruling from the trial court. TEX. R. APP. P. 33.1(a). An objection at trial that states
one legal theory cannot be used to support a different legal theory on appeal.
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting Johnson v.
State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)); Ellason v. State, 815 S.W.2d
656, 665 (Tex. Crim. App. 1991). A party does not preserve error if he objects to an
exhibit, part of which is admissible, without specifically pointing out what part is
inadmissible. Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. 1980) (op.
on reh’g).
      Hearsay is a statement that is not made by the declarant while testifying at the
current trial or hearing and that is offered in evidence “to prove the truth of the matter
asserted”; hearsay is generally inadmissible. TEX. R. EVID. 801(d), 802. An
opposing party’s statement offered against him is not hearsay. TEX. R. EVID.
801(e)(2). A statement against interest is an exception to the hearsay rule. TEX. R.
EVID. 803(24). “Inadmissible hearsay admitted without objection may not be denied
probative value merely because it is hearsay.” TEX. R. EVID. 802.
      Appellant’s counsel objected to the jailhouse recording on the grounds of
authentication, relevance, and Rule 404(b). Those objections do not comport with
his issue on appeal that the recording contained inadmissible hearsay, and Appellant

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has not preserved error. See Broxton, 909 S.W.2d at 918. Even if Appellant’s
counsel had objected to the recording on hearsay grounds, he objected “to the whole
thing” without identifying the parts that were inadmissible hearsay. Furthermore,
even if Appellant’s counsel had preserved error, Appellant’s statements on the
recording were his own statements that the State used against him and were
statements against interest; therefore, Appellant’s statements either were not hearsay
or were an exception to the hearsay rule and were admissible. See TEX. R. EVID.
801(e)(2), 803(24). Furthermore, even if error was preserved and the victim’s
statements were inadmissible hearsay, no harm could have occurred because the
victim’s statements were cumulative of Appellant’s properly admitted statements.
See TEX. R. APP. P. 44.2(b); Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002); Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Anderson v.
State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986). We overrule Appellant’s first
issue.
         B. Issue Two: Ineffective Assistance of Counsel
         Appellant asserts that he received ineffective assistance from his trial counsel.
Appellant complains that his trial counsel’s performance was deficient because
counsel did not preserve error on his objections to the jailhouse recording and,
through his own questioning, allowed the State to introduce extraneous offenses.
         The benchmark for evaluating an ineffective-assistance-of-counsel claim 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). The Strickland test has two
prongs: (1) a performance standard and (2) a prejudice standard. Id. at 687. For the
performance standard, we must determine whether Appellant has shown that
counsel’s representation fell below an objective standard of reasonableness. Id. If
so, we then determine whether there is a reasonable probability that the outcome

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would have differed but for counsel’s errors. Wiggins v. Smith, 539 U.S. 510, 534
(2003); Strickland, 466 U.S. at 686; Andrews v. State, 159 S.W.3d 98, 102 (Tex.
Crim. App. 2005).
      The reasonable probability must rise to the level that it undermines confidence
in the outcome of the trial. Isham v. State, 258 S.W.3d 244, 250 (Tex. App.—
Eastland 2008, pet. ref’d). 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); Andrews, 159 S.W.3d at 101.
A reviewing court need not consider both prongs of the Strickland test and can
dispose of an ineffectiveness claim on either prong. Walker v. State, 406 S.W.3d
590, 594 (Tex. App.—Eastland 2013, pet. ref’d) (citing Cox v. State, 389 S.W.3d
817, 819 (Tex. Crim. App. 2012)); see Strickland, 466 U.S. at 697.
      The first prong of Strickland requires Appellant to establish that trial counsel
provided deficient assistance of counsel. There is a strong presumption that trial
counsel’s conduct fell within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689; Isham, 258 S.W.3d at 250. To overcome
this deferential presumption, an allegation 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 does not explain counsel’s actions will not overcome
the strong presumption of reasonable assistance. Id. 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). The record on direct appeal will rarely be sufficient to show that trial
counsel’s representation was so lacking as to overcome the presumption of
reasonable conduct. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

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      We do not inquire into trial strategy unless no plausible basis exists for trial
counsel’s actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel
Op.] 1981). When the record contains no evidence of the reasoning behind trial
counsel’s actions, we cannot conclude counsel’s performance was deficient unless
his actions 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 presume that
a jury will follow the judge’s instructions. Gamboa v. State, 296 S.W.3d 574, 580
(Tex. Crim. App. 2009).
      Whether Appellant’s counsel properly preserved error as to the jailhouse
recording is irrelevant because the victim’s statements in the recording were
cumulative of Appellant’s statements. As to counsel’s line of questioning that
allowed in extraneous offenses, a plausible basis exists for counsel’s actions:
counsel tried to show that the witness did not know of any abuse. Counsel elicited
testimony that the witness only made assumptions.
      Counsel subsequently asked for a limiting instruction on extraneous offenses,
but the trial court denied his request. The charge of the court, however, included a
limiting instruction that “[s]uch evidence [of other bad acts] cannot be considered
by you [the jury] against [Appellant] as any evidence of guilt in this case.” Counsel
mentioned this instruction in closing argument. There is no evidence to suggest that
the jury did not follow the court’s instructions. See id. We cannot conclude, as to
either allegation, that counsel’s actions were deficient or were so outrageous that no
competent attorney would do likewise. See Goodspeed, 187 S.W.3d at 392. Because
Appellant has not satisfied the first prong of Strickland, we do not reach the second
prong. See Perez, 310 S.W.3d at 893; Isham, 258 S.W.3d at 250. We overrule
Appellant’s second issue.



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                                   IV. Conclusion
      After a review of the record, we hold that Appellant failed to preserve the
contention made in his first issue and that, had he preserved error, no harm occurred.
See Broxton, 909 S.W.2d at 918; see also TEX. R. APP. P. 44.2(b); Motilla, 78 S.W.3d
at 355; Brooks, 990 S.W.2d at 287. We also hold that Appellant has not shown that
his counsel’s actions were deficient. See Goodspeed, 187 S.W.3d at 392.
                               V. This Court’s Ruling
      We affirm the judgments of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE


August 13, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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