AFFIRMED; Opinion Filed March 19, 2015.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-00443-CR

                              DAVID GUTIERREZ, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 199th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 199-81872-2013

                                         OPINION
                        Before Justices Bridges, Lang-Miers, and Myers
                                   Opinion by Justice Myers
       Appellant David Gutierrez was convicted of assault family violence, a class A

misdemeanor, following a trial before the court. He was sentenced to confinement for one year

in county jail, suspended for two years’ community supervision, and a $250 fine. In two issues,

he argues that he received ineffective assistance of counsel and that the trial court erred by

refusing to allow appellant to question the complainant regarding motive. We affirm.

                                         BACKGROUND

       On the night of Friday, November 16, 2012, appellant and his wife, complainant Julie

Gutierrez, married since June of 2008, got into an argument. According to the complainant, the

disagreement arose over her unwillingness to have sex with appellant. Appellant left the house

at around 10:00 p.m., returning a few hours later. The complainant testified that, when appellant

returned to the house, he attempted to force her to have sex with him. While he was doing this,
he grabbed the complainant’s wrist and caused it to hit the night stand next to their bed. The

complainant went to the hospital the following day, November 18, 2012. She told a nurse what

had happened, and the police were called. The complainant gave an oral statement, but she told

the police she did not want to press charges.

       The complainant met with a divorce attorney on December 7, 2012. That evening, she

and appellant were lying in bed talking about separating. Their two-year-old son, Antonio, was

sitting on the edge of the bed watching television. The complainant testified that appellant, who

she believed was intoxicated, grabbed her left breast and told her “he wanted to get a piece of

this before” she slept with another man. When the complainant told him no, appellant slapped

her face twice. The complainant went to the children’s room and called the police. When the

police arrived, Gutierrez denied slapping the complainant. He told them that he and his wife

were discussing separating and that he merely “tapped” her in the face so that she would pay

attention to him. The responding officer testified that he saw a red mark on the complainant’s

cheek. Appellant was placed under arrest.

       Appellant was indicted for the offense of continuous violence against the family. See

TEX. PENAL CODE ANN. § 25.11. The indictment alleged that on or about November 18, 2012,

he intentionally, knowingly, or recklessly caused bodily injury to the complainant, a member of

the defendant’s family, by grabbing, throwing and pushing her with his hands, and that on or

about December 7, 2012, appellant intentionally, knowingly, or recklessly caused bodily injury

to the complainant by striking her with his hand, and that this conduct occurred during a period

that was twelve months or less in duration. See id. § 25.11(a).

       Appellant denied the allegations. He testified that, when he returned home at around

midnight on November 17, 2012, the complainant was asleep, and that he also went to sleep. He

testified that he never touched or even contacted his wife in any kind of offensive or harmful

                                                –2–
way, and that he believed she was coached to fabricate, or even orchestrated, the allegations in

order to gain an advantage in the ongoing divorce proceedings.

       Appellant was convicted of the lesser-included offense of assault family violence, a class

A misdemeanor, after a trial before the court. See id. § 22.01(a)(1), (b). The trial court

sentenced appellant to confinement for one year in county jail, suspended for two years’

community supervision, and a $250 fine. This appeal followed.

                                           DISCUSSION

                              1. Ineffective Assistance of Counsel

       In his first issue, appellant contends trial counsel was ineffective for failing to object to

“multiple witnesses’ testimony that the complainant was truthful.” Appellant’s complaint is

based on five specific instances of testimony introduced by the State, to which there was no

objection from defense counsel. The first occurred during the testimony of Officer Silvestre

Moura of the Plano Police Department, who was dispatched to the hospital shortly after the

complainant went there for medical treatment on November 18, 2012. He testified in part as

follows:

       Q. [PROSECUTOR:] And how did you take that in conjunction with the training
       and experience we’ve already talked about and her demeanor?

       A. Well, it seemed to me that she was afraid to make the report. She said
       repeatedly that she didn’t want anything to happen to her husband; she didn’t
       want to make the report.

              But, again, I––I see that a lot, so I tried to explain to her that, you know,
       usually these cases tend to get worse before they ever get better.

               I gave her all the information, the pamphlet that we had, that I could, and I
       tried to see if she would reconsider, but she was very much against giving a
       written statement.

               And I told her that, you know, despite her not wanting to press charges,
       that I was going to have to at least put everything down in a report and that it was
       going to be made.

The remaining four instances when trial counsel allegedly failed to object to testimony that the
                                            –3–
complainant was truthful occurred when the State called Officer Mary Jung, who responded to

the December 7, 2012 disturbance call at the complainant’s home. Jung testified in part:

       Q. [PROSECUTOR:] When you say that she was nervous to talk to you, was it
       also your understanding that she was the one who had called 911?

       A. Yes. Yes.

       Q. So how did [sic] take that in evaluating the situation?

       A. Some people in domestic violence, they are––they’re just afraid to give the
       information. Sometime you got to talk to ‘em a little bit longer. They’re just
       afraid of the situation; maybe the aftereffects of everything going on.

       ***

       Q. [PROSECUTOR:] And, Officer, out of all of the domestic violence
       dispatches you have responded to, and in your training and experience, you’ve
       probably seen a wide range of injuries. Correct?

       A. Correct.

       Q. In this instance when somebody has said that they have been slapped, is what
       you saw, what she was describing, consistent with that?

       A. It was.

       ***

       Q. [PROSECUTOR:] I want to ask you a few more just general questions about
       domestic violence victims, both based on your training and experience.

       Is it common for them to hide what has happened from––to them from friends and
       family?

       A. Absolutely.

       Q. Is it common for them to put on a brave face when they are out in social
       gatherings for people who don’t know what’s going on?

       A. Yes.

       Q. Have you ever seen a difference between someone who has called the police
       for an assault that has just occurred and it’s the first time it’s ever happened,
       versus someone who’s reported a history of domestic violence?

       A. I’ve seen a pattern here and there with––sometimes people who it first
       happens to, they just are kind of baffled. They really don’t know what––what’s
       going on yet. It––they haven’t seen it before, so sometimes they don’t want to
                                               –4–
       press charges, because they––they just––they just want to, basically, see if this
       happens again.

       ***

       Q.     [PROSECUTOR:] And everything you personally observed about
       [complainant’s] demeanor on that night, what did––what conclusions did that lead
       you to?

       A. That there may––it––she said, you know, it’s not the first time that this has
       happened to her; um, but––but I––I concluded that she actually wanted––wanted
       to get out of the situation.

       To be entitled to a new trial based on the ineffective assistance of counsel, appellant must

show by a preponderance of the evidence that counsel’s performance was deficient and that the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte

Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). The first prong requires the appellant to

show counsel’s performance fell below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. 687–88; Lane, 303 S.W.3d at 707. The second prong

requires the appellant to show there is a reasonable probability that, but for his counsel’s errors,

the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Lane,

303 S.W.3d at 707. An appellant’s failure to satisfy one prong negates a court’s need to consider

the other prong. Strickland, 466 U.S. at 697; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009).

       In determining whether an appellant has met his burden, we consider the totality of

representation and the particular circumstances of each case. Lane, 303 S.W.3d at 707. We

strongly presume counsel’s conduct fell within the wide range of reasonable professional

assistance, and we do not judge counsel’s actions in hindsight. Strickland, 466 U.S. at 689;

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The fact that another attorney

might have pursued a different strategy at trial is not sufficient to prove counsel was ineffective.

Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004). “[U]nless there is a record

                                                –5–
sufficient to demonstrate that counsel’s conduct was not the product of strategic or tactical

decision, a reviewing court should presume that trial counsel’s performance was constitutionally

adequate ‘unless the challenged conduct was so outrageous that no competent attorney would

have engaged in it.’” State v. Morales, 253 S.W.3d 686, 696–97 (Tex. Crim. App. 2008)

(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

        Appellant did not file a motion for new trial. When there is no proper evidentiary hearing

on a motion for new trial, it is extremely difficult to show counsel’s performance was deficient.

See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The court of criminal appeals

has stated that it should be a rare case in which an appellate court finds ineffective assistance on

a record that is silent as to counsel’s trial strategy. See Andrews v. State, 159 S.W.3d 98, 103

(Tex. Crim. App. 2005). When faced with such a silent record, we “should not find deficient

performance unless the challenged conduct was ‘so outrageous that no competent attorney would

have engaged in it.’” Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436,

440 (Tex. Crim. App. 2001)). We do not speculate on what counsel’s strategy may have been

with regard to the alleged error. Scott v. State, 392 S.W.3d 684, 687 (Tex. App.—Dallas 2010,

no pet.).

        In this case, the record is silent as to counsel’s reasons for not objecting to the testimony

quoted above. In the face of a silent record, we must presume counsel had a plausible reason for

his actions. Johnson v. State, 432 S.W.3d 552, 557 (Tex. App.––Texarkana 2014, pet. ref’d)

(citing Tong v. State, 25 S.W.3d 707, 713–14 (Tex. Crim. App. 2000)). Counsel may have

concluded that, even if the statements were inadmissible at least in part, he did not wish to

highlight the statements by objecting. See Alberts v. State, 302 S.W.3d 495, 506 n. 7 (Tex.

App.––Texarkana 2009, no pet.) (concluding that counsel’s decision to withhold objection to

testimony concerning victim’s truthfulness may have been tactical decision to avoid calling

                                                –6–
jury’s attention to objectionable testimony). Alternatively, he could have thought that, since any

testimony the officers may have given regarding the complainant’s truthfulness was, at most,

implied or indirect and relatively brief, it did not damage his case enough to object. In addition,

the trial court had previously admonished defense counsel, toward the end of his cross-

examination of the complainant, that “I’m not trying the divorce” and “to move it along.” Based

on the record before us, we therefore cannot conclude that counsel’s failure to object was so

outrageous that no competent attorney would have declined to object. We conclude appellant

has not shown his trial counsel was ineffective. We overrule appellant’s first issue.

               2. Restricting Appellant’s Cross-Examination of the Complainant

       In his second issue, appellant contends the trial court erred by refusing to allow appellant

to question the complainant as to her motive. The State responds that appellant did not preserve

his argument for appellate review, the trial court properly excluded irrelevant testimony, and that

any error the trial court may have made was harmless because the testimony was otherwise

admitted without objection.

       Appellant’s complaint concerns two specific occasions during defense counsel’s cross-

examination of the complainant when the trial court sustained the State’s objection regarding the

relevance of the testimony. The first occurred when defense counsel attempted to explore the

complainant’s prior behavior in the divorce case by asking whether the trial court had granted

her motion for a protective order. The relevant portion of the record reads as follows:

       Q. [DEFENSE COUNSEL:] And December the 18th, before Judge Roach––by
       the way, he didn’t grant that protective order, did he?

       A. He granted the ex parte protective order.

       Q. But he also gave y’all a––basically, divided up the house, access to the
       children; after hearing these things from you, he agreed that he––David could
       come in on certain days, into the home; you stayed in an apartment. And vice
       versa; when you were there, he had to stay in an apartment. Is that right?


                                               –7–
       A. What––what is your question again?

       Q. So, in other words, he didn’t—he heard your evidence, whatever was shared
       about any domestic violence allegations, and he did not grant the protective order
       did he?

       [PROSECUTOR]: Object to relevancy.

       THE COURT: Sustained.

       Assuming, without deciding, that appellant’s complaint was preserved for appellate

review, we review the trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial

court does not abuse its discretion unless its decision to admit or exclude the evidence lies

outside the zone of reasonable disagreement. See Martinez, 327 S.W.3d at 736; De La Paz v.

State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009). We will uphold the trial court's

evidentiary ruling if it was correct on any theory of law applicable to the case. See De La Paz,

279 S.W.3d at 344.

       Only relevant evidence is admissible. See TEX. R. EVID. 402. Rule 401 defines relevant

evidence as evidence having any tendency to make the existence of any fact that is of

consequence in determining the action more or less probable than it would be without the

evidence. TEX. R. EVID. 401.

       Appellant cites, among other authorities, Shelby v. State, 819 S.W.2d 544 (Tex. Crim.

App. 1991), where the Court of Criminal Appeals found that the trial court’s limitation on the

scope of the defense’s cross-examination as to a witness’s pecuniary interest in the outcome of

the trial was harmful error. But the facts in Shelby are quite different from the facts of this case.

In Shelby, the trial court refused to allow the defense to cross-examine the complainant’s mother,

the State’s outcry witness in that sexual assault case, regarding a pending lawsuit she brought

against the owners of the apartment complex where the assault occurred. Id. at 545. The court

of criminal appeals held that the trial court erroneously excluded the mother’s testimony about
                                                –8–
her lawsuit because it was apparent from the record that the appellant wanted to question the

complainant’s mother about a $125,000 lawsuit she had brought about two months after she

reported the offense to the police against the corporate owners of the property and the appellant–

–a groundskeeper at the apartment complex. Id. at 545, 550. The court added, “It defies reason

and logic to argue that the court did not understand the purpose or scope of the inquiry.” Id. The

court further concluded that the refusal to allow the questioning violated the defendant’s Sixth

Amendment rights. Id. But the defendant in that case made an offer of proof in which the

complainant’s mother testified that she filed the lawsuit against the landlord where the assault

occurred approximately two months after she reported the offense to the police. Id. at 550. The

issue of the mother’s bias was, thus, apparent from the questions asked of her. See id. In this

case, by contrast, appellant made no such showing. The trial court could have found that the

question defense counsel asked the complainant had no bearing on any fact of consequence in

this criminal action. Therefore, we cannot say the trial court abused its discretion by sustaining

the State’s objection.

       The State’s second objection was asserted when the defense attempted to ask the

complainant about her familiarity with family law:

       Q. [DEFENSE COUNSEL:] You had––you––you had called the law office of
       John Wilson as early as November 30th of 2012. Is that correct?

       A. I scheduled the appointment.

       Q. On November 30th?

       A. I don’t remember what date.

       Q. Okay. And on––you scheduled, then, I––the appointment for December 7th?

       A. I scheduled––yeah. That’s––

       Q. Okay.

       A. ––first appointment.

                                               –9–
       Q. And how long were you at their offices on December 7th?

       A. I don’t remember exactly. Probably a couple hours.

       Q. Okay. And who did you meet with?

       A. Katrina Schroeder and Mr. Wilson.

       Q. Okay. And had you told them about the November allegation?

       A. Yes, sir. I took the week to reflect on the past family violence, and actually
       walked in with about a three-page document listing out all the past incidents.

       Q. And so you became a little bit more informed about the process, the way the
       divorce case would work, and what they would have to bring in to court to get
       maybe a protective order granted; those types of things. Right?

       A. I—your question is, I became more familiar with what?

       Q. Did they explain the process to you; how it worked in a divorce court?

       A. What process?

       Q. The—the whole entire family law process.         The divorce case, the—any
       temporary orders; those kinds of things.

       [PROSECUTOR]: Object to relevance.

       THE COURT: Sustained.

But after the State’s objection was sustained, defense counsel asked Gutierrez substantially the

same question, without objection from the State:

       Q. [DEFENSE COUNSEL:] In other words––and then on December the 7th,
       when the evening time comes up, before this call is made to the police
       department, you’re a little more educated than you were before the consultation.
       Right?

       A. Educated about what, sir?

       Q. You’re educated about the way the family law case would interact if there was
       a criminal filing Is that right?

       A. No, sir.

       Q. Okay.

       Assuming, without deciding, that appellant’s complaint concerning the State’s second


                                             –10–
objection was preserved for appellate review, and that the trial court erred by limiting appellant’s

cross-examination, any error in this instance was harmless. A violation of the Texas Rules of

Evidence is reviewed under the standard for nonconstitutional error contained in Rule 44.2(b) of

the Texas Rules of Appellate Procedure. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App.

2007); Smith v. State, 355 S.W.3d 138, 152 (Tex. App.––Houston [1st Dist.] 2011, pet. ref’d).

Error in the exclusion of evidence is rendered harmless where the same evidence is admitted

elsewhere without objection. See, e.g., Preston v. State, 481 S.W.2d 408, 409 (Tex. Crim. App.

1972) (“This Court has consistently held reversal is not required by exclusion of evidence where

same testimony was later admitted without objection.”); Montgomery v. State, 383 S.W.3d 722,

727 (Tex. App.––Houston [14th Dist.] 2012, no pet.) (“Although the trial court may have

initially excluded this evidence, the later admission renders harmless any possible error.”);

Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.––Dallas 2005, no pet.) (“Any error in

excluding evidence is harmless if the same evidence is subsequently admitted without

objection.”); Lenoir v. State, No. 05–92–01992–CR, 1994 WL 236348, at *5 (Tex. App.––Dallas

May 31, 1994, no pet.) (not designated for publication) (“Error in the exclusion of evidence is

harmless where the same evidence is admitted otherwise at trial.”). Accordingly, any error the

trial court may have made in sustaining the State’s second relevance objection was rendered

harmless beyond a reasonable doubt by the fact that the same evidence was admitted elsewhere

in the proceedings without objection. We overrule appellant’s second issue.

       The trial court’s judgment is affirmed.

                                                             / Lana Myers/
                                                             LANA MYERS
                                                             JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140443F.U05

                                                 –11–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DAVID GUTIERREZ, Appellant                         On Appeal from the 199th Judicial District
                                                   Court, Collin County, Texas
No. 05-14-00443-CR        V.                       Trial Court Cause No. 199-81872-2013.
                                                   Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee                       Bridges and Lang-Miers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 19th day of March, 2015.




                                            –12–
