Affirmed and Memorandum Opinion filed June 4, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00168-CR

                      LOUIS CHARLES KIRK, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 182nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1342735

                  MEMORANDUM                       OPINION


      A jury convicted appellant Louis Charles Kirk of aggravated assault of a
family member. Appellant pled true to an enhancement paragraph and the jury
sentenced him to confinement for six years in the Texas Department of Criminal
Justice, Institutional Division. Appellant filed a timely notice of appeal. In his sole
issue on appeal, appellant claims he received ineffective assistance of counsel. We
affirm.
                           STANDARD OF REVIEW
      We examine claims of ineffective assistance of counsel under the standard
set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). Under Strickland, appellant must prove that his trial counsel’s
representation was deficient, and that the deficient performance was so serious that
it deprived him of a fair trial. Id. at 687, 104 S.Ct. 2052. Counsel’s representation
is deficient if it falls below an objective standard of reasonableness. Id. at 688, 104
S.Ct. 2052. This deficiency will only deprive appellant of a fair trial when
counsel’s performance prejudices appellant’s defense. Id. at 691–92, 104 S.Ct.
2052. To demonstrate prejudice, appellant must show 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. 2052. Failure to make the required showing of
either deficient performance or sufficient prejudice defeats the claim of
ineffectiveness. Id. at 697, 104 S.Ct. 2052. This test is applied to claims arising
under both the United States and Texas Constitutions. See Hernandez v. State, 726
S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

      Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that the attorney’s actions were reasonably
professional and were motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to trial
counsel’s strategy, we will not conclude that appellant received ineffective
assistance unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005). Rarely will the trial record contain sufficient information
to permit a reviewing court to fairly evaluate the merits of such a serious
allegation. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the
majority of cases, the appellant is unable to meet the first prong of the Strickland
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test because the record on direct appeal is underdeveloped and does not adequately
reflect the alleged failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430
(Tex. Crim. App. 2007).

      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “[I]solated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for
examination.” McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992),
overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App.
1994). Moreover, “[i]t is not sufficient that appellant show, with the benefit of
hindsight, that his counsel’s actions or omissions during trial were merely of
questionable competence.” Mata, 226 S.W.3d at 430. Rather, to establish that the
attorney’s acts or omissions were outside the range of professionally competent
assistance, appellant must show that counsel’s errors were so serious that he was
not functioning as counsel. See Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.
App. 1995).

                                    THE TESTIMONY

      Appellant claims that he received ineffective assistance when defense
counsel failed to request an instruction to disregard hearsay testimony and failed to
object to opinion testimony during the State’s questioning of Officer Joseph
Lemelle. The record reflects Lemelle testified as follows:

      Q.     Now, upon your first contact with [the complainant] and you
      took these photos, what else did you talk to her about?
      A.      Well, I discussed what kind of relationship she had with the

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      defendant, Mr. Kirk. She informed me that they were married. Been
      married two years. They have a daughter together. At that time the
      baby was, I believe 18 months. She said that – she informed me that
      this wasn’t the first time it happened. This was the first time that she
      reported it. But she state that she was in fear for her life. She was
      scared that he would –
             [Defense counsel] Your Honor, I’m going to object at this
      point for hearsay at this point.
              THE COURT:        Objection sustained.
Defense counsel did not request the trial court to instruct the jury to disregard.
Appellant argues the answer was hearsay and violated defense counsel’s motion in
limine against any testimony regarding appellant’s previous felony convictions and
any extraneous offenses.

      Subsequently, the following exchange occurred during Lemelle’s testimony:

            Q.     And did that interview, did you take into consideration
      everything the Defendant was telling you?
              A.   Yes, Ma’am.
             Q.    And did that change your opinion of what happened in
      this case?
              A.   No, ma’am, not at all.
              Q.   And what was your opinion of what happened in this
      case?
            A.     I didn’t believe anything Mr. Kirk was telling me. I’m
      sorry he – actually – he wanted to – he acted like he wanted to talk to
      me, but he really just wanted to know how much I knew about the
      case. He made up stories about -
      Q.    Okay. Now, did that – what was your opinion? Looking at the
      big picture of this case, what was your opinion of what occurred that
      day?
             A.    In my opinion, Mr. Kirk and [the complainant] got into
      an altercation inside of the apartment. Got into a heated argument. Mr.
      Kirk assaulted [the complainant] inside of the bedroom while other
      people were inside of the apartment but in a separate room. They also
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      had her daughter inside of the apartment.
                    [Defense counsel]: Your Honor, a lot of this – I’m going
      to have to object. A lot of this comes from hearsay, and I would object
      to it in regard to that hearsay.
                    THE COURT:           Objection is sustained.
Appellant complains of defense counsel’s failure to request an instruction to the
jury to disregard the State’s questions and Lemelle’s answers.

      Q.     In your opinion, did this defendant assault [the complainant]?
      A.     Yes, ma’am.
Appellant argues defense counsel should have objected to this testimony because it
was impermissible bolstering of the complainant’s testimony.

                                          ANALYSIS

      The record does not reveal counsel’s reasons for failing to request an
instruction to disregard after his objections to hearsay were sustained or failing to
object to Lemelle’s testimony on other grounds. Appellant did not move for a new
trial, and his defense counsel did not file an affidavit.

      The record is silent with regard to defense counsel’s reasons for not making
an objection or requesting an instruction to disregard. On such a record, we cannot
determine that counsel provided ineffective assistance unless the challenged
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). Here, we
cannot conclude that no competent attorney would have acted as appellant’s
counsel did, because there may be strategic reasons for his decisions. For example,
defense counsel may have strategically determined that the likelihood of success,
and its potential benefits, was outweighed by the potential of drawing further
attention to the testimony. See Webb v. State, 995 S.W.2d 295, 301 (Tex. App.—
Houston [14th Dist.] 1999, no pet.); Duren v. State, 87 S.W.3d 719, 734 (Tex.—

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App.—Texarkana 2002, pet. struck). Thus, because the record does not compel a
conclusion that counsel was ineffective, appellant has failed to rebut the
presumption of effective representation. See Perez v. State, 56 S.W.3d 727, 731–32
(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

      We overrule appellant’s issue and affirm the trial court’s judgment




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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