Affirmed and Memorandum Opinion filed August 23, 2016.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00726-CR

                           RUBEN VELA, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 248th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1477381

                 MEMORANDUM                      OPINION


      A jury convicted appellant Ruben Vela of aggravated robbery, and the trial
court sentenced him to fifty years in prison. Appellant challenges his conviction in
a single issue, arguing that his trial counsel rendered ineffective assistance of
counsel for failing to object to testimony offered in violation of the best evidence
rule. Because the record is silent as to why counsel failed to object and appellant
has not shown that the failure was so outrageous that no competent attorney would
have failed to object, we overrule his sole issue on appeal and affirm the trial
court’s judgment.

                                   Background

      Appellant was convicted of aggravated robbery with a deadly weapon.
Breeann Woodland testified that appellant approached her in her driveway on the
morning of the robbery. He pointed a black automatic handgun at her and told her
to go into the house. Appellant followed Woodland into the house and began
going through it for valuables. After fifteen to twenty minutes, appellant left with
Woodland’s computer, wedding band, and costume jewelry.
      After appellant left, Woodland called 9-1-1. Deputy Sheriffs John Frazier
and David Janhuowski responded. Janhuowski testified he found a neighbor’s
house with security cameras on the same dead-end street as complainant’s. On the
neighbor’s security footage, Janhuowski observed a dark sedan drive down the
street several times, including driving towards Woodland’s home around the time
of the reported robbery and then leaving the street approximately fifteen to twenty
minutes later.   Sergeant Scott Ashmore testified law enforcement later made
repeated attempts to obtain the neighbor’s security footage, but were not able to
download it.
       The day after the robbery, appellant was stopped in a black sedan for
expired tags. The car contained Woodland’s stolen computer and a BB gun.
Appellant was arrested and gave a statement to law enforcement admitting he had
robbed Woodland.

                                     Analysis

      In his sole issue, appellant contends he was denied effective assistance of
counsel because his trial counsel failed to object to testimony by David
Janhuowski and Scott Ashmore regarding the content of the neighbor’s
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surveillance video recording. Appellant contends this testimony was given in
violation of Texas Rule of Evidence 1002, the “best evidence rule.” Appellant has
failed to overcome the strong presumption that counsel’s decision not to object fell
within the wide range of reasonable professional assistance.

I.    Standard of review
      We review a claim of ineffective assistance of counsel under the two-
pronged standard of Strickland v. Washington, 466 U.S. 668, 687 (1984).
Appellant must first establish that counsel’s performance was deficient. Id. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” the Sixth Amendment guarantees.           Id.   Second,
appellant must show that the deficient performance prejudiced the defense. Id.
This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial. Id.
      Appellant has the burden to prove ineffective assistance of counsel by a
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999).      To defeat the strong 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.
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.1996).
      An appellate court looks to the totality of the representation, rather than an
isolated act or omission, in evaluating the effectiveness of counsel. Ex Parte
Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). Although it is possible that
a single egregious error by counsel can constitute ineffective assistance, Texas
courts have been hesitant to “designate any error as per se ineffective assistance of
counsel as a matter of law.”     Thompson, 9 S.W.3d at 813 (quoting Jackson v.
State, 766 S.W.2d 504, 508 (Tex. Crim. App.1985)). An appellate court should be

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especially hesitant to declare counsel ineffective based upon a single alleged
miscalculation during what amounts to otherwise satisfactory representation,
especially when the record provides no discernible explanation of the motivation
behind counsel’s actions—whether those actions were of strategic design or the
result of negligent conduct. Id. at 814.     Ordinarily, counsel should have an
opportunity to explain his or her actions before being held ineffective. Rylander v.
State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
II.   Appellant has not shown that the record is sufficient to overcome the
      presumption of competence.
      Appellant’s claim is based on his trial counsel’s failure to object to
testimony regarding the content of a video recording under Texas Rule of Evidence
1002. To demonstrate that trial counsel's failure to object amounted to ineffective
assistance, appellant must first show that the trial judge would have erred in
overruling such an objection. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim.
App. 2011). We need not decide here whether the trial court would have erred in
overruling the omitted objection. Assuming it would have been error for the judge
to overrule the objection, trial counsel’s failure to object alone does not overcome
the presumption of competence.
      Rule 1002 provides that “an original writing, recording or photograph is
required in order to prove its content unless these rules or other law provides
otherwise.” Tex. R. Evid. 1002. Other evidence of the content of a writing,
recording or photograph is admissible in lieu of the original, however, if “an
original cannot be obtained by any available judicial process.” Tex. R. Evid. 1004.
The purpose of Rule 1004 is to allow the admission of the “best obtainable
evidence of [a document’s] contents, if the document cannot as a practical matter
be produced.” Johnson v. State, 846 S.W.2d 373, 376 (Tex. App.—Houston [14th
Dist.] 1992), rev’d on other grounds, 853 S.W.2d 574 (Tex. 1993) (quoting Ortiz

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v. State, 651 S.W.2d 764, 766 (Tex. Crim. App. 1983)).
       Because appellant did not file a motion for new trial, the record is silent as to
why appellant’s trial counsel chose not to object or failed to object. To satisfy the
first prong of Strickland on a silent record, 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,
regardless of his or her subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143
(Tex. Crim. App. 2011); see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005) (conduct “so outrageous that no competent attorney would have
engaged in it”).
       This is not such a case. There are plausible reasons for not objecting to
inadmissible testimony. See Thompson, 9 S.W.3d at 814 (holding the presumption
of strategy was not rebutted when record was “silent as to why appellant’s trial
counsel failed to object to the State’s persistent attempts to elicit inadmissible
hearsay”). In this case, the record shows that law enforcement was unable to
obtain or copy the video recording despite several attempts. Trial counsel may
have concluded that because the State likely could have met its burden to admit the
testimony under Rule 1004, raising an objection to the testimony under Rule 1002
would have been futile. On this record, therefore, we conclude appellant has failed
to prove his claim of ineffective assistance under Strickland.                  We overrule
appellant’s sole issue.1




       1
          This disposition does not affect appellant’s entitlement to submit his ineffective-
assistance complaints or other appropriate constitutional complaints for review on the merits in
an application for a writ of habeas corpus. Rylander, 101 S.W.3d at 111 n. 1; Bone v. State, 77
S.W.3d 828, 837 n. 30 (Tex.Crim.App.2002).

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                                  Conclusion

      Having overruled the appellant’s sole issue, we affirm the trial court’s
judgment.




                                     /s/       J. Brett Busby
                                               Justice



Panel consists of Justices Busby, Donovan, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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