                                  IN THE
                          TENTH COURT OF APPEALS

                                    No. 10-17-00240-CR

JOSE ANGEL ROJAS-MELITON,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 361st District Court
                               Brazos County, Texas
                         Trial Court No. 16-03565-CRF-361


                           MEMORANDUM OPINION

       A jury found Appellant Jose Rojas-Meliton guilty of the aggravated sexual assault

of his sister-in-law, a child younger than fourteen years old when the offense occurred,

see TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (a)(2)(B), and assessed his punishment at

seventy-five years’ imprisonment, see id. §§ 12.32, 22.021(d). This appeal ensued. In his

sole issue, Rojas-Meliton contends that he was denied reasonably effective assistance of

counsel at trial. We will affirm.
                                        Applicable Law

          To prevail on an ineffective assistance of counsel claim, the familiar Strickland v.

Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156

L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,

80 L.Ed.2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005)

(same). Under Strickland, the appellant must prove by a preponderance of the evidence

that (1) counsel’s performance was deficient, and (2) the defense was prejudiced by

counsel’s deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466

U.S. at 687, 104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. Absent both showings, an

appellate court cannot conclude that the conviction resulted from a breakdown in the

adversarial process that renders the result unreliable. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999).

          The appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel. Id. There is a strong

presumption that counsel’s actions and decisions were reasonably professional and

motivated by sound trial strategy. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.

App. 2005); Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref’d).     To overcome the presumption of reasonably professional assistance, any

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

affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. When

the record is silent regarding the reasons for counsel’s conduct, a finding that counsel

was ineffective would require impermissible speculation by the appellate court. Gamble

Rojas-Meliton v. State                                                                  Page 2
v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (citing Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). Therefore, absent specific explanations

for counsel’s decisions, a record on direct appeal will rarely contain sufficient information

to evaluate an ineffective-assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002).

                                Rojas-Meliton’s Argument

        Rojas-Meliton argues that his trial counsel’s performance was deficient in the

following ways: (1) his trial counsel failed to preserve for appellate review a meritorious

challenge for cause of Prospective Juror 27; (2) his trial counsel failed to make a single

objection, including failing to object to “innumerable” leading questions during both the

guilt-innocence and punishment phases of trial; (3) his trial counsel failed to object to the

legal opinions given by Detective Chris Loup in his testimony during the guilt-innocence

phase of trial; (4) his trial counsel failed to object to several instances of hearsay during

the punishment phase of trial; and (5) his trial counsel failed to object to evidence of two

extraneous offenses that were introduced during the punishment phase of trial.

        No motion for new trial was filed in this case. The record is therefore silent as to

trial counsel’s reasons for his actions and decisions. Rojas-Meliton argues, however, that

his trial counsel’s deficiencies were so significant that no reasonable trial strategy could

justify them, making his counsel’s subjective reasons for his actions and decisions

irrelevant.    Furthermore, while Rojas-Meliton concedes that the second prong of

Strickland is not met with regard to the guilt-innocence phase of trial, he argues that his



Rojas-Meliton v. State                                                                  Page 3
defense was prejudiced by his trial counsel’s deficient performance during the

punishment phase of trial.

                                     The Court’s Analysis

  1.    Failing to preserve for appellate review a challenge for cause of Prospective Juror 27

        During voir dire of the entire prospective jury panel, Prospective Juror 27 asserted

that she could not consider probation in this type of case. When questioned by Rojas-

Meliton’s trial counsel outside of the presence of the prospective jury panel, Prospective

Juror 27 affirmed that she was absolutely certain that she could not consider probation in

this type of case. She also volunteered that she was a victim of sexual abuse as a child.

        When questioned by the State outside of the presence of the prospective jury panel,

however, the following exchange took place:

               [Prosecutor]: Now, the question I have to ask you is, if you’re on the
        jury would you be able to follow the law and base your verdict just on the
        facts and circumstances of this case and not based on what happened to
        you?

                PROSPECTIVE JUROR 27: Yes.

                ....

              [Prosecutor]: So before you know the facts, can you come in with an
        open mind that probation may be appropriate, life may be appropriate, and
        you can wait until you start hearing the first fact before you start closing off
        potential punishments? Can you do that?

                PROSPECTIVE JUROR 27: I think I could, yes, sir.

              [Prosecutor]: You said you think you can. Can you promise the
        Court that you can?

                PROSPECTIVE JUROR 27: Yes, yes.


Rojas-Meliton v. State                                                                       Page 4
Rojas-Meliton’s trial counsel then asked Prospective Juror 27, “So I go back to when you

told me absolutely not. It’s not absolutely?” Prospective Juror 27 replied, “It’s - - I have

an open mind. I can hear both sides. It would be hard, but I’m able to do it, and, yes, I

can do it.”

        Rojas-Meliton’s trial counsel challenged Prospective Juror 27 for cause. The trial

court denied the challenge. Rojas-Meliton’s trial counsel did not thereafter exercise a

peremptory challenge against Prospective Juror 27 and did not preserve his challenge for

cause against her for appellate review. Prospective Juror 27 served as a juror.

        In State v. Morales, 253 S.W.3d 686 (Tex. Crim. App. 2008), the Court of Criminal

Appeals “reject[ed] the court of appeals’s conclusion that, because the appellant’s trial

attorneys failed to exercise a peremptory challenge against [a prospective juror] and

thereby failed to preserve their challenge for cause against her for appeal, they necessarily

performed deficiently in contemplation of Strickland.” Id. at 368. The Court of Criminal

Appeals explained that “the decision to retain [the prospective juror] in spite of the earlier

challenge for cause could well have been a reasonable tactical choice, albeit a difficult

one.” Id. Thus, assuming in the instant case that Prospective Juror 27 was challengeable

for cause, without evidence as to trial counsel’s reasons for his actions and decisions, we

must conclude that Rojas-Meliton has not overcome the presumption that his trial

counsel’s decision not to preserve for appellate review his challenge for cause of

Prospective Juror 27 was reasonably professional and motivated by sound trial strategy.

See Salinas, 163 S.W.3d at 740; Gamble, 916 S.W.2d at 93.



Rojas-Meliton v. State                                                                  Page 5
  2.    Failing to make a single objection, including failing to object to “innumerable” leading
        questions during both the guilt-innocence and punishment phases of trial

        “Despite the general rule disfavoring the use of leading questions on direct

examination, ‘it is sound trial strategy for opposing counsel to choose not to object to

leading questions when the evidence will come in anyway.’” Wheeler v. State, 433 S.W.3d

650, 655 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (quoting Young v. State, 10

S.W.3d 705, 713 (Tex. App.—Texarkana 1999, pet. ref’d)). Here, assuming that the State

did ask “innumerable” leading questions, Rojas-Meliton has not established that the

testimony sought in the questioning was inadmissible or would not have otherwise come

into evidence if his trial counsel had objected, the trial court had sustained the objection,

and the State had rephrased its questions. Without evidence as to trial counsel’s reasons

for his actions and decisions, we must therefore conclude that Rojas-Meliton has not

overcome the presumption that his trial counsel’s decision not to object was reasonably

professional and motivated by sound trial strategy. See id. at 655-56.

  3.    Failing to object to the legal opinions given by Detective Loup in his testimony during the
        guilt-innocence phase of trial

        Rojas-Meliton identifies three specific instances where his trial counsel failed to

object to alleged legal opinions during the guilt-innocence phase of trial. First, Rojas-

Melton notes that his trial counsel did not object when the State asked Detective Loup,

“Now, investigating these crimes, did - - are you familiar with what penetration means?”

to which Detective Loup replied, “Yes,” and then explained what it meant. Second,

Rojas-Meliton points out that his trial counsel did not object when the State asked, “And

you’re aware that we don’t have to prove a precise date, correct?” to which Detective

Rojas-Meliton v. State                                                                      Page 6
Loup replied, “Correct.” Finally, Rojas-Meliton noted that his trial counsel did not object

to the alleged legal opinion given by Detective Loup in the following exchange with

Rojas-Meliton’s trial counsel:

                Q.       Did you ever discuss with [the victim] the roughhousing?

                A.       No.

                Q.       So you never discussed with her the details?

              A.      After I spoke with him the second time and he confessed to
        having sex with her, she was underage and in my point of view it didn’t
        matter if they were roughhousing or not.

                Q.       So you - - basically at that point you - -

                A.       I met the elements of the crime and I had enough.

        Because the record is silent as to trial counsel’s reasons for his actions and

decisions, however, to conclude that trial counsel was ineffective based on his failing to

object would call for speculation, which we will not do. See Jackson, 877 S.W.2d at 771;

Gamble, 916 S.W.2d at 93. Moreover, the instances that Rojas-Meliton has identified

occurred during the guilt-innocence phase of trial, and Rojas-Meliton has conceded that

the second prong of Strickland is not met with regard to the guilt-innocence phase of trial.

See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

  4.    Failing to object to several instances of hearsay during the punishment phase of trial

        Rojas-Meliton identifies the following specific instances of his trial counsel failing

to object to alleged hearsay during the punishment phase of trial. Rojas-Meliton first

notes that his trial counsel did not object when the State asked J.J., a friend of Rojas-

Meliton’s daughter, what Rojas-Meliton’s daughter had said to her, and J.J. replied, “That

Rojas-Meliton v. State                                                                       Page 7
her dad had touched her.” Rojas-Meliton also argues that his trial counsel did not object

to the hearsay statements made by J.J. in the following exchange with the State:

                Q.       Why is that?

               A.     Because [Rojas-Meliton’s daughter] told me if I had any food
        - - then she asked me to give her it and I did.

                Q.       Did she not have food at home?

                A.       She said she didn’t.

Finally, Rojas-Meliton asserts that his trial counsel did not object when the State asked

Rojas-Meliton’s daughter’s teacher, “And what else did she tell you in that specific - - in

that specific question, what did she ask you?” and the teacher replied, “She asked me

what [sex] was. And I was uncomfortable answering it and I answered it the best I could.

And she told me that her dad had sex with her.”

        The State asserts, however, that after J.J. and the daughter’s teacher testified,

United States Secret Service Special Agent Louis Wright testified that during an interview

of Rojas-Meliton, Rojas-Meliton confessed to touching his daughter inappropriately,

which makes the first hearsay statement by J.J. cumulative.1 See Darby v. State, 922 S.W.2d

614, 624 (Tex. App.—Fort Worth 1996, pet. ref’d) (“The failure to object to cumulative

evidence is harmless and will not support a claim of ineffective assistance of counsel.”).

The State also argues that Rojas-Meliton has not shown how his defense was prejudiced

by J.J.’s statement about the food. Under these circumstances and without evidence as to




1Rojas-Meliton’s daughter later testified that Rojas-Meliton had not touched her inappropriately and that
she had never said that he did.
Rojas-Meliton v. State                                                                            Page 8
trial counsel’s reasons for his actions and decisions, we must therefore conclude that

Rojas-Meliton has not overcome the presumption that trial counsel’s decision not to

object was reasonably professional and motivated by sound trial strategy. See Salinas, 163

S.W.3d at 740; Gamble, 916 S.W.2d at 93.

  5.    Failing to object to evidence of two extraneous offenses that were introduced during the
        punishment phase of trial

        Rojas-Meliton first notes that his trial counsel failed to object when the State

presented the evidence that he had sexually assaulted his daughter. In addition to J.J.’s

and the daughter’s teacher’s testimony detailed above, Rojas-Meliton points out that J.J.’s

grandmother testified as follows when questioned by the State:

               Q.    Did you ever confront [Rojas-Meliton’s daughter] about those
        allegations?

                A.       Yes, I did.

                Q.       What did you say to her?

              A.     Well, I had said, I saw your dad on TV, and said something
        about he had molested you or something.

                Q.       How did she react to that?

               A.    Well, she just dropped her head and just looked at me. And I
        said, you don’t have to be ashamed. If it happened, you could tell someone.
        And I asked her, did it happen? And she didn’t say anything, she just
        dropped her head and started to cry.

        Evidence may be offered during the punishment phase concerning

        any matter the court deems relevant to sentencing, including but not
        limited to . . . evidence of an extraneous crime or bad act that is shown
        beyond a reasonable doubt by evidence to have been committed by the
        defendant or for which he could be held criminally responsible, regardless


Rojas-Meliton v. State                                                                    Page 9
        of whether he had previously been charged with or finally convicted of the
        crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a). The trial court makes the decision on the

threshold issue of admissibility and may not admit extraneous offense evidence unless

the evidence is such that a jury could rationally find the defendant criminally responsible

for the extraneous offense. Smith v. State, 227 S.W.3d 753, 759-60 (Tex. Crim. App. 2007).

Ultimately, the factfinder must decide whether the extraneous offense was proven

beyond a reasonable doubt. Id. at 760.

        Rojas-Meliton complains that his trial counsel was deficient because he failed both

“to object to the extraneous offense evidence and to request a threshold determination.”

As stated above, however, Special Agent Wright testified that during an interview of

Rojas-Meliton, Rojas-Meliton confessed to touching his daughter inappropriately. Under

these circumstances and without evidence as to trial counsel’s reasons for his actions and

decisions, we must therefore conclude that Rojas-Meliton has not overcome the

presumption that trial counsel’s decision not to object was reasonably professional and

motivated by sound trial strategy. See Salinas, 163 S.W.3d at 740; Gamble, 916 S.W.2d at

93.

        Rojas-Meliton next notes that his trial counsel failed to object when the State called

another of his sisters-in-law as a rebuttal witness and the following exchange occurred:

              Q.    I just have one question for you . . . : Did Jose Rojas sexually
        abuse you when you were a child - - when you were a teenager?

                A.       Yes.



Rojas-Meliton v. State                                                                 Page 10
Rojas-Meliton complains that his trial counsel did not object to the leading question or

that the question exceeded the scope of rebuttal.

        Code of Criminal Procedure art. 36.02 provides, however: “The court shall allow

testimony to be introduced at any time before the argument of a cause is concluded, if it

appears that it is necessary to a due administration of justice.” TEX. CODE CRIM. PROC.

ANN. § 36.02. Thus, even if the State’s question exceeded the scope of rebuttal, the State

could have requested to reopen the case to introduce the testimony. And, as stated above,

despite the general rule disfavoring the use of leading questions on direct examination,

it is sound trial strategy for opposing counsel to choose not to object to leading questions

when the evidence will come in anyway. Wheeler, 433 S.W.3d at 655. Without evidence

as to trial counsel’s reasons for his actions and decisions, we must therefore conclude that

Rojas-Meliton has not overcome the presumption that his trial counsel’s decision not to

object was reasonably professional and motivated by sound trial strategy.

        Considering the totality of Rojas-Meliton’s trial counsel’s representation, we

conclude that Rojas-Meliton has not proven by a preponderance of the evidence that (1)

his counsel’s performance was deficient, and (2) his defense was prejudiced by counsel’s

deficient performance. Based on the record before us, we therefore cannot conclude that

Rojas-Meliton has shown that he was denied reasonably effective assistance of counsel at

trial. We overrule Rojas-Meliton’s sole issue and affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Rojas-Meliton v. State                                                               Page 11
Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed July 31, 2019
Do not publish
[CRPM]




Rojas-Meliton v. State                      Page 12
