Opinion issued March 10, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NOS. 01-13-00775-CR
                                  01-13-00776-CR
                           ———————————
                       RALEIGH JORDAN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                  On Appeal from the 209th District Court
                           Harris County, Texas
                  Trial Court Case Nos. 1329597 & 1329598


                         MEMORANDUM OPINION

      After a jury convicted appellant, Raleigh Jordan, of two charges of

tampering with a government document, the trial court assessed punishment in

each case at two years’ confinement, which it suspended, placing appellant under

two years’ community supervision. In six issues on appeal, appellant contends (1)
the evidence is legally insufficient; the trial court erred in (2) admitting extraneous

offense evidence, and (3) denying appellant a hearing on his motion for new trial;

(4) the State failed to turn over exculpatory evidence; (5) appellant was denied due

process because he was unaware of the charges against him until his arraignment

immediately before trial; and (6) appellant received ineffective assistance of

counsel because counsel did not seek a limiting instruction for extraneous offense

evidence. We affirm.

                                 BACKGROUND

Grand jury subpoenas raise questions

      In July 2011, Harris County Assistant District Attorney Erin Epley was

contacted by a financial institution about a grand jury subpoena the company had

received that had been signed by Epley. The financial institution was concerned

because the subject of the subpoena, Lisa Heath Jordan, was married to appellant,

the police officer to whom the financial institution was ordered to direct its reply to

the subpoena.

      Epley recalled authorizing the grand jury subpoena, and several others at the

same time, because she did not herself prepare the subpoenas, and it was only the

second time she had been called upon to sign a grand jury subpoena that someone

else had prepared. Before signing the grand jury subpoenas, she had checked to

make sure that each had an offense report listed to show that they were being


                                          2
issued as a part of an ongoing investigation. She would not have authorized the

subpoenas for a closed investigation, nor did she know that appellant, the officer

requesting the subpoenas, was married to Lisa Jordan, the subject of the subpoenas.

      Because of her concerns and those of the financial institution that had

received the grand jury subpoena, Epley contacted Internal Affairs at the Houston

Police Department [“HPD”], which began an investigation.

The 2009 Police Report

      Officer M. Monte was assigned to investigate the situation. He began by

looking at the offense reports used to obtain the grand jury subpoenas. Offense

report number 11548609T [“the 2009 report”] was initiated as a forgery

investigation on August 7, 2009, the same day appellant’s wife obtained a

temporary restraining order against appellant because she had filed for divorce.

The complainant on the 2009 report was listed as “Chase Bank,” but the

information in the narrative portion of the report was supplied by appellant.

      Data entry clerk C. Johnson from the Burglary/Theft division of HPD

testified that she took the initial information from appellant for the 2009 report, in

which he alleged that his wife was committing fraud in connection with

government student loans. Appellant verbally described what he believed to be the

offense, and the initial report lists 15 items of evidence. Johnson, however, did not

recall that appellant had any evidence at the time she met with him, and the


                                          3
recovery date of the evidence listed was September 19, 2010. Johnson did not

recall meeting with appellant at any time other that the one time in 2009.

      The 2009 report contains several supplements in addition to the initial report

recorded by Johnson. The first two supplements are by Officer C. Graves1, the

officer who was assigned to investigate the financial fraud that appellant alleged

his wife had committed. Graves set up a meeting with appellant, to which he said

he would bring evidence of his wife’s crimes. However, appellant never produced

any documents to Graves. Graves wrote in her final supplement, which is dated

August 13, 2009, “I explained [to appellant] that because the suspect was his

spouse that he could not file charges on her. I explained to him that this is a

community property state and that any monies taken, spent or charged was both of

their responsibility. I told him that this is a civil matter and he needed to speak to

his attorney about the matter.” Graves’s supplement concluded, “This case will be

cleared unfounded because no crime was committed.”

      Graves was unaware of any further activity in the case until questioned

about it by Officer Monte as a part of his investigation of appellant in 2011. She

testified that she never authorized or was aware of any further supplements to the

2009 report, but when she reviewed it at Officer Monte’s request she determined


1
      We will refer to this witness as Lt. Graves, as that is how her name appears in the
      documentary evidence. By the time of trial, she had married and her name appears
      in the reporter’s record as Lt. Southwell.
                                           4
that it had been altered and added to. Specifically, evidence was added in 2010.

Graves felt harmed by the alterations and additions to the report because it caused

HPD to question her credibility. She was aware of no one other than appellant

who would have benefited from the altered report. Graves also testified that, had

the investigation remained closed, as she intended it to be, appellant could have not

used the report to obtain his wife’s financial records via grand jury subpoenas

because a police report is necessary for issuing a grand jury subpoena.

      There were several other supplements to the 2009 report made after it was

closed by Graves. One supplement was made by Officer Karavantos, a patrol

officer who had worked some extra jobs with appellant, but who had moved to

Florida by the time of trial. Four of these supplemental reports appeared to have

been made by Officer R.T. Lewis. Lewis’s name is on the supplemental reports, as

well as his employee payroll number identifying him as the officer making the

report. The first of Lewis’s supplemental reports is dated September 20, 2010, and

the last of his supplemental reports is dated June 10, 2011.              Each of the

supplements adds information or articles of evidence relating to Lisa Jordan’s

alleged crimes.

      Officer Lewis was appellant’s partner at HPD at the time of the supplements,

and he testified at trial that he never investigated appellant’s wife or wrote any of

the supplemental reports about appellant’s wife.       Lewis further testified that


                                         5
appellant knew his payroll number, which was used to identify Lewis as the officer

writing the supplement.     Lewis never authorized appellant to use his payroll

number and enter the supplemental reports. In fact, Lewis testified that he advised

appellant not to investigate his wife himself.

The 2011 Police Report

      In the course of his investigation regarding the grand jury subpoenas, Officer

Monte also discovered that police report 023382611T [“the 2011 report”] had been

used to support appellant’s request for issuance of the grand jury subpoenas. This

police report was dated April 12, 2011, listed appellant as the complainant, and

alleged that Douglas Ray York and Stephen Kent Leatherman, attorneys who

represented appellant and his wife in their pending divorce proceeding, had

“intentionally and knowingly passed [] fraudulent court documents for the sole

purpose to defraud and deceive [appellant].”         Again, Officer R.T. Lewis,

appellant’s partner at HPD, was listed as the officer making the report and his

employee payroll number appears on the report.

      At trial, Officer Lewis denied making this report, giving appellant the

authority to use his name and payroll number in making this report, or conducting

any investigation relating to appellant’s wife.




                                          6
The Computer Forensics

      HPD Officer Matthew Lezak, a computer forensic specialist, was asked to

examine the hard drive on appellant’s work computer as a part of the internal

affairs investigation. Lezak testified that each time an officer would upload a

report, the system would create a report receipt. Appellant’s computer had 48

report receipts. Of those 48 receipts, 40 of them were to appellant’s own payroll

number. However, four of the receipts—three supplements to the 2009 report and

the initial 2011 report—had Officer Lewis’s payroll number. Thus, the forensic

computer evidence showed that those four entries were made from appellant’s

computer using Lewis’s payroll number. Additionally, the face of the reports

themselves indicate that three supplements purportedly made by Lewis to the 2009

report and the 2011 report were made from appellant’s computer—HP DC6005

319808.

      Lezak also found letters on HPD City of Houston letterhead, which were

addressed to 10 different financial institutions and were meant to accompany the

grand jury subpoenas. The letters stated, “Please direct your reply to the personal

attention of Officer Jordan; as stated on the face of this Subpoena.”

Other Evidence

      F. Quinn, appellant’s sergeant in the Major Offender’s division at HPD,

testified that appellant’s pending divorce “seemed to kind of consume him.”


                                          7
Quinn never gave appellant permission to investigate his wife, but told him to have

the financial crimes unit investigate it instead. Quinn stated, “I told him, I gave

him a direct order not to conduct that investigation, not to use a computer to obtain

information about her or any kind of city equipment involving that investigation.”

      Quinn also testified about the importance of maintaining the integrity of

police reports: “Well, the integrity has to be maintained. There shouldn’t be any

exception. It’s critical, it’s critical we be able to rely on those reports and those

reports be truthful and reflect nothing other than the truth.”

      Finally, Quinn testified that after the investigation began he received at least

seven envelopes addressed to appellant at the Major Crimes Division containing

financial records relating to Lisa Jordan.

Appellant charged with tampering with government records

      As a result of the internal affairs investigation, appellant was arrested and

charged with tampering with government records, specifically, the 2009 and 2011

police reports. The State alleged that appellant made false entries in the reports by

entering information in the reports using Officer Lewis’s name and employee

payroll number.

                         SUFFICIENCY OF THE EVIDENCE

      In issue one, appellant contends the evidence is legally insufficient.

Specifically, appellant argues that because the author of the supplemental reports is


                                             8
unknown and no witness “testified as to who actually made the entries,” the

evidence is legally insufficient to show that appellant altered the police reports.

Standard of review and applicable law

      We review the legal sufficiency of the evidence by considering all of the

evidence “in the light most favorable to the prosecution” to determine whether any

“rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,

2788–89 (1979). The standard is the same for both direct and circumstantial

evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (en

banc) (citing McGoldrick v. State, 682 S.W.2d 573, 577 (Tex. Crim. App. 1985)).

Our role is that of a due process safeguard, ensuring only the rationality of the trier

of fact’s finding of the essential elements of the offense beyond a reasonable

doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give

deference to the responsibility of the fact finder to fairly resolve conflicts in

testimony, weigh evidence, and draw reasonable inferences from the

facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). However,

our duty requires us to “ensure that the evidence presented actually supports a

conclusion that the defendant committed” the criminal offenses of which he is

accused. Id.




                                           9
      Section 37.10 of       the   Texas   Penal       Code,    titled   “Tampering   With

Governmental Record,” states in relevant part, “A person commits an offense if he:

(1) knowingly makes a false entry in, or false alteration of, a governmental

record.” TEX. PENAL CODE ANN. §37.10(a)(1) (Vernon Supp. 2013). Apart from

exceptions not applicable here, an offense under section 37.10 is a Class A

misdemeanor unless the actor’s intent is to defraud or harm another, in which event

the   offense     is     a     state   jail        felony.     See TEX.     PENAL     CODE

ANN. § 37.10(c)(1) (Vernon Supp. 2008). The term defraud is not defined, and

“undefined statutory terms are to be understood as ordinary usage allows, and

jurors may freely read statutory language to have any meaning which is acceptable

in common parlance.” Hunter v. State, No. 14-13-00847-CR, 2014 WL 6923116,

at *3 (Tex. App.—Houston [14th Dist.] Dec. 9, 2014, pet. filed) (mem. op, not

designated for publication) (citing Clinton v. State, 354 S.W.3d 795, 800 (Tex.

Crim. App. 2011)).

Analysis

      Appellant contends the evidence does not support his convictions because

“Karavantos was not present to deny that he did not make the entries in the [2009]

report[,]” and neither Lewis “nor the other witnesses testified as to who actually

made the entries.”     The State responds that there is sufficient circumstantial

evidence to support the jury’s verdict. We agree with the State.


                                              10
      Lewis testified that he did not investigate appellant’s wife, he did not make

the entries into either police report, and he did not authorize appellant to do so

using Lewis’s name and employee payroll number. Additionally, several of the

reports and supplements attributed to Lewis were made from appellant’s work

computer, which was password protected. No other person, including the absent

Karavantos, had a motive to enter supplements or reports and falsely attribute them

to Lewis. Appellant, however, had the motivation to file such reports by reopening

the closed investigation and starting a new investigation against the divorce

lawyers in his case so that he could obtain his wife’s financial records through a

grand jury subpoena, which requires an active investigation. And, by using Officer

Lewis’s payroll number to make the supplements and reports, appellant created the

appearance that an impartial investigator was working on the case.           Indeed,

Assistant District Attorney Epley testified that she would not have signed the grand

jury subpoenas had she known they were for appellant’s wife’s records.

         Based on this evidence, the jury could have reasonably concluded that

appellant made a false entry in a government document by making entries in both

reports after the first case had been closed and falsely attributing those entries to

Lewis.

      We overrule issue one.




                                         11
                              EXTRANEOUS OFFENSES

      In issue two, appellant argues that the Court’s decision to admit evidence of

extraneous acts, namely of the filing of the grand jury subpoenas, was reversible

error. Specifically, appellant argues that “[t]he admittance of [evidence relating to

the grand jury subpoenas] greatly influenced the jury into finding [appellant] guilty

on both counts, although the evidence of filing grand jury subpoenas [was]

irrelevant to the charges of tampering with a governmental record, especially since

the State approved the grand jury subpoenas.”

Standard of review and applicable law

      We review a trial court’s admission or exclusion of extraneous-offense

evidence for abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.

App. 2003). A trial court’s decision regarding admissibility of evidence will be

sustained if correct on any theory of law applicable to the case, even when the

court’s underlying reason for the decision is wrong. Romero v. State, 800 S.W.2d

539, 543–44 (Tex. Crim. App. 1990). Rule 404(b) provides that evidence of “other

crimes, wrongs or acts” is inadmissible to prove a defendant’s character in order to

show action in conformity therewith. TEX. R. EVID. 404(b). This type of evidence

may be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation,   plan,   knowledge,     identity,   or   absence    of   mistake    or

accident. Id.; Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st


                                         12
Dist.] 2003, pet. dism’d). This list is not exclusive. Turner v. State, 754 S.W.2d

668, 672 (Tex. Crim. App. 1988). Also, “events do not occur in a vacuum[,]” and

evidence of extraneous offenses may be admissible “[t]o show the context in which

the criminal act occurred.” Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App.

1972); see also Rogers v. State, 853 S.W.2d 29, 32–33 (Tex. Crim. App.

1993) (discussing admissibility of same transaction contextual and background

evidence).

Analysis

      The State contends that the evidence regarding the issuance of the grand jury

subpoenas was admissible for two reasons: (1) to show appellant’s motive in

falsifying the police reports, and (2) as “same transaction contextual evidence.”

We agree with both arguments.

      Regarding motive, there was testimony that appellant needed a police report

to obtain a grand jury subpoena. The ADA testified that she would not issue a

grand jury subpoena unless there was a valid police investigation. The State

showed that his motivation for falsifying the reports using Lewis’s information was

to reopen the 2009 case and to initiate the 2011 case so that appellant could then

use grand jury subpoenas to obtain his wife’s financial information for use in his

pending divorce. Without showing evidence of appellant’s motive, i.e., that he

needed valid police investigations to obtain grand jury subpoenas, the evidence of


                                        13
his falsifications of the police reports would have made little sense. As such, the

evidence of the grand jury subpoenas was admissible to show appellant’s motive in

falsifying the government records. See TEX. R. EVID. 404(b).

      For the same reason, the evidence regarding the grand jury subpoenas was

admissible as “same transaction contextual evidence.”

      Same transaction contextual evidence is deemed admissible as a so-
      called exception to the propensity rule where “several crimes are
      intermixed, or blended with one another, or connected so that they
      form an indivisible criminal transaction, and full proof by testimony,
      whether direct or circumstantial of any one of them cannot be given
      without showing the others.” The reason for its admissibility “is
      simply because in narrating the one it is impracticable to avoid
      describing the other, and not because the other has any evidential
      purpose.” Necessity, then, seems to be one of the reasons behind
      admitting evidence of the accused’s acts, words and conduct at the
      time of the commission of the offense. Necessity, then is an “other
      purpose” for which same transaction contextual evidence is
      admissible under Rule 404(b). Only if the facts and circumstances of
      the instant offense would make little or no sense without also bringing
      in the same transaction contextual evidence, should the same
      transaction contextual evidence be admitted.

Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993) (citations omitted).

As we stated above, without showing that appellant needed valid investigations to

obtain grand jury subpoenas, the evidence of his falsifications of the police reports

would have made little sense. As such, the evidence regarding the issuance of the

grand jury subpoenas was also admissible as “same transaction contextual

evidence.”

      We overrule issue two.
                                         14
                                MOTION FOR NEW TRIAL

      In issue three, appellant “asserts that his constitutional rights were denied by

not having a hearing on his Motion for New Trial.”

Background

      The trial court imposed judgment on July 26, 2013, and appellant timely

filed a Motion for New Trial on August 23, 2013, which alleged ineffective

assistance of counsel, among other claims. See TEX. R. APP. P. 21.4(a) (stating

motion for new trial must be filed no later than 30 days after the court imposes

sentence). However, appellant’s motion did not include any affidavit in support of

the allegations made therein.

      The docket sheet shows that the Motion for New Trial hearing was reset

several times, twice by agreement of both parties and once at appellant’s request.

No hearing was ever held. Instead, on December 8, 2013, appellant filed a Bench

Brief in Support of his Motion for New Trial, which for the first time contained an

affidavit by appellant in support of the allegations set forth in his motion. The

State also filed the affidavit of appellant’s trial counsel, refuting the ineffective

assistance of counsel allegations in appellant’s motion.

      Appellant’s Motion for New Trial was overruled by operation of law two

days later on October 10, 2013. See TEX. R. APP. P. 21.8 (allowing trial court 75

days to rule on motion for new trial or deeming motion denied on 76th day).


                                         15
Standard of review and applicable law

      The trial court has a duty to hold an evidentiary hearing on a defendant’s

motion for new trial if the motion and accompanying affidavit raise an issue (1)

that is not determinable from the record, and (2) on which the defendant could be

granted relief. Lucero v. State, 246 S.W.3d 86, 94 (Tex. Crim. App. 2008). When

the motion raises matters that are not determinable from the record, to prevent

“fishing expeditions,” the motion must be supported by an affidavit that explicitly

sets out the factual basis for the claim. Smith v. State, 286 S.W.3d 333, 339 (Tex.

Crim. App. 2009). The affidavit does not need to establish a prima facie case or

even reflect every component to obtain relief on the claim, but must merely reflect

“reasonable grounds” for a court to hold that relief could be granted. Wallace v.

State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). Where a defendant asserts

that he is entitled to a hearing on a motion for new trial raising ineffective

assistance of counsel, the motion and affidavit “must allege sufficient facts from

which a trial court could reasonably conclude both that counsel failed to act as a

reasonably competent attorney and that, but for counsel’s failure, there is a

reasonable likelihood that the outcome of his trial would have been

different.” Smith, 286 S.W.3d at 341 (emphasis in original).

      We review the trial court’s decision on whether to hold a hearing on a

defendant’s motion for new trial for abuse of discretion. Lucero, 246 S.W.3d at 94.


                                        16
A trial court abuses its discretion only when its decision lies outside the zone of

reasonable disagreement. Smith, 286 S.W.3d at 339.

Analysis

      Here, appellant’s Motion for New Trial, though timely, did not have a

supporting affidavit. A motion for new trial alleging facts outside the record, as

here, is not a proper pleading and is defective; a trial court does not err in refusing

to grant a hearing on such a motion. Klapesky v. State, 256 S.W.3d 442, 454 (Tex.

App.—Austin 2008, pet. ref’d); see also Wallace, 106 S.W.3d at 108.

      Appellant’s affidavit in support of his Motion for New Trial was not filed

until December 8, 2013, several months after the time for filing amended Motions

for New Trial. See TEX. R. APP. P. 21.4 (“Within 30 days after the date when the

trial court imposes or suspends sentence in open court but before the court overrule

any preceding motion for new trial, a defendant may, without leave of court, file

one or more amended motions for new trial.”). Filing an affidavit in support of a

motion for new trial more than thirty days after sentencing is considered an

untimely attempt to amend the motion. Klapesky, 256 S.W.3d at 455 (citing

Dugard v. State, 688 S.W.2d 524, 529–30 (Tex. Crim. App. 1985), overruled on

other grounds by Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989);

Flores v. State, 18 S.W.3d 796, 798 (Tex. App.—Austin 2000, no pet.)).




                                          17
      Because appellant’s untimely affidavit was not properly before the trial

court, the trial court did not err in refusing to grant a hearing on appellant’s

unsupported motion.

      We overrule issue three.

                            EXCULPATORY EVIDENCE

      In his issue four, appellant contends the prosecution failed to disclose

exculpatory evidence—his own recorded statement—in violation of Brady v.

Maryland, 373 U.S. 83 (1963).

Applicable law

      In Brady, the United States Supreme Court held “‘that the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.’” Pena v. State, 353 S.W.3d 797, 809

(Tex. Crim. App. 2011) (quoting Brady, 373 U.S. at 87). “The scenarios to

which Brady applies ‘involve[ ] the discovery, after trial of information which had

been known to the prosecution but unknown to the defense.’” Id. at

810 (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). Consequently, the

State does not have a duty to disclose if the defendant is actually aware of

the exculpatory evidence. Id.




                                        18
Analysis

      In this case, the exculpatory evidence of which appellant complains is his

own recorded statement.      No disclosure was required because appellant was

actually aware of the contents of his own statement. Further, the record shows that

the State provided notice of its intent to offer the statement into evidence almost a

year before the trial, even though, ultimately it was not admitted.

      We overrule issue four.

                                     DUE PROCESS

      In issue five, appellant contends he was denied due process of law because

“he was arraigned on the same day as the trial,” and “was not aware until the trial,

of the charge against him.” However, the record shows that appellant was, in fact,

arraigned at a pretrial hearing the day before the trial started. An arraignment is

not a part of a trial by jury and is one of the proceedings that can be disposed of by

a pre-trial hearing. Wood v. State, 515 S.W.2d 300, 303 (Tex. Crim. App. 1974).

      To the extent that appellant is complaining that the indictment did not

provide him notice of the charged offense, we note that appellant never filed a

motion to quash or otherwise complained to the trial court that he was unaware of

the charges against him.        Article 1.14 of the Texas Code of Criminal

Procedure provides that a defendant waives the right to object to a defect, error, or

irregularity of form or substance in an indictment if he does not object before the


                                          19
date on which the trial on the merits commences. TEX. CODE CRIM. PROC. ANN. art.

1.14 (Vernon 2005. By failing to object or moving to quash the indictment before

the date of his trial, appellant has waived his complaint regarding lack of

notice. See TEX. CODE CRIM. PROC. ANN. art. 1.14.

      We overrule issue five.

                    INEFFECTIVE ASSISTANCE OF COUNSEL

      In issue six, appellant contends that he received ineffective assistance of

counsel because his trial attorney did not “request a limiting instruction concerning

the grand jury subpoena extraneous misconduct evidence[.]”

Standard of Review and Applicable Law

      We consider claims of ineffective assistance of counsel under the two-prong

test adopted in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984). To prevail on an ineffective assistance of counsel claim, appellant must

show that (1) counsel’s performance was deficient, meaning it fell below an

objective standard of reasonableness, and (2) the deficiency prejudiced the

defendant, meaning there was a reasonable probability that, but for the counsel’s

deficient performance, the results of the trial would have been different. Id.; Ex

parte Napper, 322 S.W.3d 202, 246, 248 (Tex. Crim. App. 2010). The burden is on

appellant to prove by a preponderance of the evidence that counsel was

ineffective. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).


                                         20
      The first prong of Strickland requires that the challenged acts or omissions

of counsel fall below the objective standard of professional competence under

prevailing professional norms. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.

App. 2010). Appellate courts are highly deferential to trial counsel and avoid

evaluating counsel’s conduct in hindsight. Ingham v. State, 679 S.W.2d 503, 509

(Tex. Crim. App. 1984). Thus, courts must “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial

strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

      The second prong of Strickland requires a reasonable probability that the

outcome of the case 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, meaning that counsel’s errors must be so serious that they deprive

appellant of a fair trial. Smith, 286 S.W.3d at 340.

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

record must affirmatively demonstrate the ineffectiveness. Mallett v. State, 65

S.W.3d 59, 63 (Tex. Crim. App. 2001). “In the rare case in which trial counsel’s

ineffectiveness is apparent from the record, an appellate court may address and

dispose of the claim on direct appeal.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.


                                          21
Crim. App. 2011). When the record is silent as to the reasoning behind an alleged

deficiency by trial counsel, “we will assume that counsel had a strategy if any

reasonably sound strategic motivation can be imagined.” Id.; see also Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[I]n the absence of evidence

of counsel’s reasons for the challenged conduct, an appellate court . . . will not

conclude the challenged conduct constituted deficient performance unless the

conduct was so outrageous that no competent attorney would have engaged in it.”).

Analysis

      Appellant argues that “Appellant’s attorneys [sic] failure to request a

limiting instruction concerning the extraneous offense evidence and testimony

concerning the grand jury subpoenas resulted in ineffective assistance of counsel.”

The State responds that no limiting instruction is required for same-transaction

contextual evidence. We agree with the State.

      “Same transaction contextual evidence” refers to those events and

circumstances that are intertwined, inseparable parts of an event that, if viewed in

isolation, would make no sense at all. Delgado v. State, 235 S.W.3d 244, 253

(Tex. Crim. App. 2007). We have already held that the grand jury subpoena

evidence was “same transaction contextual evidence.”           “When evidence is

admitted on this basis, Rule 404(b) is not implicated and the defendant is not

entitled to any limiting instruction concerning the use of that evidence. Id. Counsel


                                         22
was not ineffective for failing to request an improper limiting instruction regarding

same transaction contextual evidence.

      We overrule issue six.

                                     CONCLUSION

      We affirm the trial court’s judgments.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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