Affirmed and Memorandum Opinion filed April 12, 2016.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00397-CR
                              NO. 14-14-00398-CR

                 CEASAR LAKENDRICK RUSSI, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 178th District Court
                            Harris County, Texas
                   Trial Court Cause Nos. 1307885, 1307886

                  MEMORANDUM OPINION

      Appellant, Ceasar Lakendrick Russi, appeals his convictions for aggravated
robbery and aggravated assault, contending (1) the trial court erred in denying
appellant’s motion for new trial, (2) the trial court improperly commented on the
weight of the evidence, and (3) appellant received ineffective assistance of counsel
during the punishment phase. We affirm.



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                                    I.   BACKGROUND

       According to the State’s evidence, around 5:30 a.m. on May 25, 2011,
appellant approached Zoila Quintanilla’s vehicle as she was pulling into her
driveway. Appellant had a gun and pulled Zoila out of the vehicle. She began
screaming for help, and her brother, husband, and son came out of the house.
Zoila’s husband, Pedro German, pulled appellant out of the vehicle, and appellant
fled on foot. German got into the driver’s seat, Isaias Quintanilla, Zoila’s brother,
got into the passenger seat, and Sergio Zacarias, Zoila’s son, got into the backseat.
They followed appellant and spotted him hiding in some brush near their home.
As they drove up, appellant came out of the brush, grabbed onto the vehicle, and
fired multiple shots, striking Isaias once in the forehead.

       Then, appellant crossed the street, and German again followed him. While
Zacarias ran home to call the police, German attempted to stop appellant, but he
ran away. After the police arrived at the scene and Isaias was taken away in an
ambulance, a forensic sketch artist met with Zoila, German, and Zacarias
separately. The police then canvassed the neighborhood with the resulting sketch,
receiving tips that led them to the apartment complex where appellant resided.
Once the police had identified appellant as a suspect, they placed his photo into a
photo lineup. When presented with the photo lineup separately on the day after the
incident, Zoila and German each positively identified appellant, and Zacarias
tentatively identified appellant.

       Isaias survived his wound but suffered severe, and likely permanent,
injuries.   At trial, Zoila, Zacarias, and German described the event, again
identifying appellant. Appellant called Carlesha Rossi, appellant’s sister, as his
sole witness. Rossi testified that at the time of the charged offenses, appellant was
at Rossi’s apartment.

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      A jury convicted appellant of both aggravated robbery and aggravated
assault. The jury assessed punishment at sixty years’ confinement for aggravated
robbery, twenty years’ confinement for aggravated assault, and a $10,000 fine.

      Appellant filed a motion for new trial arguing, among other things, that he
received ineffective assistance of counsel. The trial court held a hearing and
denied appellant’s motion for new trial.

                      II.   DENIAL OF MOTION FOR NEW TRIAL

      In appellant’s first issue, he contends the trial court erred in denying his
motion for new trial based on ineffective assistance of counsel. In the motion,
appellant alleged that counsel rendered ineffective assistance by failing to call an
available alibi witness to testify during the guilt-innocence phase.

      We review a trial court’s denial of a motion for new trial under an abuse-of-
discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014).
A trial judge abuses its discretion in denying a motion for new trial when no
reasonable view of the record could support its ruling. Id. To determine whether
the trial court abused its discretion, we view the evidence in the light most
favorable to the trial court’s ruling, and defer to the trial court’s credibility
determinations. State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014).

      To establish ineffective assistance of counsel, a criminal defendant must
prove by a preponderance of the evidence that (1) his trial counsel’s representation
was deficient in that it fell below the standard of prevailing professional norms and
(2) there is a reasonable probability that, but for counsel’s deficiency, the result of
the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 687 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).




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Failure to show either deficient performance or sufficient prejudice defeats the
claim of ineffectiveness. Strickland, 466 U.S. at 697.

      A criminal defense lawyer has the responsibility to conduct a legal and
factual investigation and to seek out and interview potential witnesses. Ex parte
Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).             An appellant who
complains about trial counsel’s failure to call witnesses must show the witnesses
were available and that appellant would have benefitted from their testimony.
King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Perez v. State, 403
S.W.3d 246, 252 (Tex. App.—Houston [14th Dist.] 2008), aff’d 310 S.W.3d 890,
897 (Tex. Crim. App. 2010). The decision to call a witness is generally a matter of
trial strategy. Joseph v. State, 367 S.W.3d 741, 744 (Tex. App.—Houston [14th
Dist.] 2012, pet. ref’d). However, an attorney is ineffective if the failure to seek
out and interview potential witnesses precludes the accused from advancing a
viable defense. State v. Thomas, 768 S.W.2d 335, 336–37 (Tex. App.—Houston
[14th Dist.] 1989, no pet.).

      In the motion for new trial, appellant asserted that his trial counsel was
ineffective because counsel failed to call an available alibi witness, but appellant
did not identify any such witness.      However, in support, appellant submitted
affidavits from his sister, Carlesha Rossi, and his girlfriend, LeSadia Harden,
relative to the complaint about failure to call an alibi witness. At trial, Rossi
testified as an alibi witness, while Harden was present but not called to testify. In
an affidavit submitted in response to this motion, trial counsel explained that he
considered the testimony of the two witnesses (Rossi and Harden) to be
inconsistent and made a strategic decision in choosing whom to call. After a
hearing, the trial court found that counsel’s decision not to call Harden was
strategic and did not qualify as deficient performance.

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       The affidavits submitted by appellant reflect that Harden was a potential
alibi witness and would have testified that appellant was at his sister’s apartment at
the time of the charged offenses. However, we defer to the trial court’s decision to
believe that trial counsel made a strategic determination that Harden’s testimony
would not benefit appellant. Further, trial counsel’s failure to call Harden as a
witness did not preclude appellant from advancing a viable defense; trial counsel
was still able to advance appellant’s defense that he did not commit the offense and
was elsewhere at the time through Rossi’s testimony. 1 See Joseph, 367 S.W.3d at
744. We conclude the trial court did not abuse its discretion in finding that trial
counsel was not ineffective and denying appellant’s motion for new trial. We
overrule appellant’s first issue.

           III.    ARGUMENT REGARDING ALLEGEDLY IMPROPER COMMENT

       In appellant’s second issue, he contends the trial court erred when it
responded to a jury question during punishment deliberations. The jury sent a note
asking about concurrent sentencing, and the trial court responded in accordance
with the applicable section of the Texas Penal Code. The jury’s note said “explain
concurrent sentencing.” The trial court answered:

       Dear Jurors,
       Our law provides that when an accused is found guilty of more than
       one offense arising out of the same criminal episode — prosecuted in
       a single trial, a sentence for each offense for which he has been found
       1
          Appellant relies on Shelton v. State, arguing that it “stands for the clear and unequivocal
proposition that when an alibi witness is available to testify at a trial but is not called to testify
that such a failure constitutes ineffective assistance of counsel.” See Shelton v. State, 841
S.W.2d 526, 527 (Tex. App.—Fort Worth 1992, no pet.). However, appellant misinterprets
Shelton, and the facts of the present case are distinguishable. In Shelton, counsel had neglected
to call the one witness who could present alibi testimony, thus failing to advance any defensive
theory. See id. In the present case, counsel called an alibi witness and advanced a defensive
theory through her testimony. Therefore, counsel’s decision not to call a second alibi witness did
not prevent appellant from presenting a defense.

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      guilty shall be pronounced.
      The sentences in these two cases shall run “concurrently”—that is,
      they run together.
      They do not run “consecutively,”—that is, they are not “stacked”
      which means that a person who is sentenced to consecutive sentences
      has to complete serving one sentence before he begins serving the
      next.
Appellant contends that the trial court’s note was an impermissible comment on
the weight of the evidence in violation of Article 38.05 of the Texas Code of
Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979).
However, at trial, appellant did not raise any complaint about the trial court’s
communication, let alone that it was an improper comment on the evidence. In
fact, the record reflects that counsel affirmatively stated he had no objection to the
trial court’s response to the jury’s question. “Ordinarily, a complaint regarding an
improper judicial comment must be preserved at trial.”         Unkart v. State, 400
S.W.3d 94, 99 (Tex. Crim. App. 2013). Accordingly, appellant failed to preserve
error on his appellate complaint. See Tex. R. App. P. 33.1(a); see also Lyle v.
State, 418 S.W.3d 901, 904 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We
overrule appellant’s second issue.

            IV.    INEFFECTIVE-ASSISTANCE-OF-COUNSEL CONTENTION

      In appellant’s third issue, he contends trial counsel provided ineffective
assistance during the punishment phase by failing to cross-examine any of the
State’s witnesses. Appellant did not make this argument in his motion for new
trial, and therefore we have no explanation from trial counsel as to why he did not
cross-examine the witnesses. During the punishment phase, the State called three
witnesses—Zoila, Zacarias, and Daisy Escobar, Isaias’s wife. Appellant’s trial
counsel did not cross-examine any of these witnesses, but he did call appellant’s
mother, Lisa Jones, to testify on appellant’s behalf. Appellant argues that he was

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unable “to lessen the brunt of the conviction decision by the jury” because trial
counsel did not ask the State’s witnesses any questions or explore alternative
explanations for the witnesses’ medical conditions.

      We apply the same two-prong Strickland standard of review for a claim of
ineffective assistance of counsel during the punishment phase of trial. Hernandez
v. State, 988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999). In the first prong of
this test, reviewing courts must not second-guess legitimate strategic or tactical
decisions made by trial counsel in the midst of a trial, but instead “must indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance[.]” State v. Morales, 253 S.W.3d 686, 696
(Tex. Crim. App. 2008) (quoting Strickland, 466 U.S. at 689). This means that
unless there is a record sufficient to demonstrate that counsel’s conduct was not the
product of a strategic 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.”
Id. at 696–97 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005)).

      Cross-examination is inherently risky, and a decision not to cross-examine a
witness is often the result of wisdom acquired by experience in the combat of trial.
Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). Not attacking
a sympathetic eyewitness without very strong impeachment is often a sound trial
strategy, as such an attack can offend jurors. Id.; Dannhaus v. State, 928 S.W.2d
81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). Thus, unless there is a
good basis on which to cross-examine, which appellant has not shown here, it can
be more effective to refrain from cross-examining a damaging witness to minimize



                                          7
the impact of the witness’s testimony.2 Furthermore, trial counsel cross-examined
the State’s witnesses during the guilt-innocence phase and presumably made a
calculated decision not to aggressively cross-examine these three at the punishment
phase.

         The record does not show whether counsel intentionally declined to cross-
examine the State’s witnesses because additional testimony might not have been
beneficial. See Bone, 77 S.W.3d at 834 n. 21. We may not assume a lack of sound
trial strategy on the part of defense counsel merely because we are unable to
discern any particular strategic or tactical purpose in counsel’s trial presentation.
See id. at 836 (“A vague, inarticulate sense that counsel could have provided a
better defense is not a legal basis for finding counsel constitutionally
incompetent. . . . [A] defendant must prove, by a preponderance of the evidence,
that there is, in fact, no plausible professional reason for a specific act or
omission.”).     Accordingly, appellant has failed to satisfy the first prong of
Strickland. We overrule his third issue.




         2
          Appellant argues that counsel should have cross-examined the witnesses to explore
alternative explanations for the witnesses’ medical conditions, citing specifically to Zoila’s
testimony about her weakened medical condition and mention of diabetes. However, she did not
testify that she actually had recent onset diabetes, but vaguely that she could possibly face it.
Cross-examination would have had little effect in impeaching or “lessen[ing] the brunt of the
conviction.”

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                                V. CONCLUSION

      Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.




                                      /s/       John Donovan
                                                Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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