                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00037-CR



        STEVEN SETH ROSEWELL, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 115th District Court
               Upshur County, Texas
               Trial Court No. 17617




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                MEMORANDUM OPINION
       Steven Seth Rosewell pled guilty to aggravated assault with a deadly weapon. After a

punishment trial, an Upshur County jury sentenced Rosewell to fifteen years’ imprisonment. On

appeal, Rosewell argues that the trial court erred in admitting testimony about his post-arrest

silence and that counsel rendered ineffective assistance in failing to preserve the issue for our

review. Rosewell also argues that counsel rendered ineffective assistance by allowing the State to

cross-examine him about bullet trajectory because the State’s questions essentially amounted to

unqualified expert testimony.

       We affirm the trial court’s judgment because we conclude that the trial court sustained

counsel’s objection on Rosewell’s post-arrest silence, and ineffective assistance of counsel is not

shown by the record.

I.     Background

       After Rosewell pled guilty to the offense in the jury’s presence, his victim, Rachael

Catherine Whetstone, testified that Rosewell shot her while they were on the way to a mutual

friend’s house to purchase methamphetamine. Whetstone said she had a change of heart and asked

Rosewell to let her out of the car before they reached their friend’s home. According to Whetstone,

Rosewell refused and shot her as she was trying to escape his vehicle. Whetstone testified that the

bullet went through her arm, shoulder, elbow, chin, and exited through her eye. Rosewell denied

Whetstone’s initial requests for assistance, threatened her life, and kept her hostage in the car for

twelve hours until Whetstone managed to convince him to take her to the hospital.




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        Timothy Don Hall, a criminal investigator with the Upshur County Sheriff’s Office,

testified that he met with Whetstone in the hospital and witnessed the extent of her injuries.

According to Hall, Whetstone said she was shot by Rosewell after attempting to exit his vehicle.

Hall executed a search warrant on Rosewell’s home, found a gun that was similar to the one

described by Whetstone, and discovered Whetstone’s blood on the passenger seat of Rosewell’s

car. Rosewell was arrested.

        During the trial on punishment, Rosewell admitted that he shot Whetstone while he was

high on methamphetamine. However, he claimed that he reacted by pulling the trigger when

Whetstone reached for the gun and that he did not intend to hurt her. Yet, Rosewell admitted that

he purposefully pointed the gun at Whetstone and that the act was reckless. Rosewell also testified

that he did not take Whetstone to the hospital because he feared the consequences of his actions.

Rosewell told the jury that he was remorseful and asked that they consider his request for

community supervision.

II.     The Trial Court Sustained Rosewell’s Objection on Post-Arrest Silence

        Rosewell argues that the trial court erred in allowing testimony related to his post-arrest

silence. 1 His complaint is related to the following portion of the transcript from Hall’s direct

examination:

                 Q        [BY THE STATE]:            Okay. Did you interview Mr. Rosewell?

                 A        I attempted to, yes.


1
 The State argues that Rosewell signed a stipulation of evidence stating that he “waived [his] Federal and State
constitutional right against self-incrimination.” However, a defendant does not automatically waive his right against
self-incrimination at sentencing when pleading guilty and entering written waivers and stipulations during
guilt/innocence. Carroll v. State, 42 S.W.3d 129, 132 (Tex. Crim. App. 2001).
                                                         3
       Q       And he did not want to speak to you about the case?

       A       Correct.

        Q      At any time when he was telling you that he wanted to -- that he
didn’t want to speak to you, did he ever express any remorse?

                 [BY THE DEFENSE]: Your Honor, I’m going to object to that. I
think that’s -- can we approach?

               THE COURT: Yes.

       (At the bench, on the record.)

                [BY THE DEFENSE]: Your Honor, I didn’t object to past stuff, but
I think that’s an illegal comment on his right not to testify. And he invoked his
right. He wanted to speak to an attorney. You know, there wasn’t any opportunity
for him to apologize or anything like that. . . .

               [BY THE STATE]: Okay. I’ll rephrase it.

               [BY THE DEFENSE]: Okay.

       (End of bench conference.)

         Q       [BY THE STATE] I’ll have to rephrase my question. Many times
when you interview a subject before you’re even able to read them their rights, they
start talking; is that correct?

       A       Sometimes, yes.

       Q       And did Mr. Rosewell do that in this case?

       A       No, he did not.

       Q       What did he immediately do?

               [BY THE DEFENSE]: Your Honor, again, I’m -- I’m going to
object. I think that’s -- for the reason I stated earlier, I think that’s an improper
question.

               THE COURT: I’m going to sustain that.
                                         4
        To preserve error, an objection must be “pursued to an adverse ruling.” Geuder v. State,

115 S.W.3d 11, 13 (Tex. Crim. App. 2003). “It is well settled that when an appellant has been

given all the relief he or she requested at trial, there is nothing to complain of on appeal.” Kay v.

State, 340 S.W.3d 470, 473 (Tex. App.—Texarkana 2011, no pet.) (citing Nethery v. State, 692

S.W.2d 686, 701 (Tex. Crim. App. 1985); Lasker v. State, 573 S.W.2d 539, 543 (Tex. Crim. App.

[Panel Op.] 1978)). “Failure to request additional relief after an objection is sustained preserves

nothing for review.” Id. (citing Caron v. State, 162 S.W.3d 614 (Tex. App.—Houston [14th Dist.]

2005, no pet.)). Here, because the trial court sustained the only objection made by Rosewell, there

is no adverse ruling about which he can complain. Accordingly, we overrule Rosewell’s first point

of error.

III.    Ineffective Assistance of Counsel Is Not Shown by the Record

        Citing to the above-excerpted portion of Hall’s examination, Rosewell argues that his

counsel rendered ineffective assistance by failing to (1) timely object to comments about his post-

arrest silence and (2) request a mistrial or limiting instruction when the trial court sustained his

last objection. Rosewell also argues that counsel failed to object to the State’s cross-examination

after he claimed to have shot Whetstone as she reached for his gun.

        A.     Standard of Review

        As many cases have noted, the right to counsel does not mean the right to errorless counsel.

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In order to prevail on a claim

of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). See Ex parte Imoudu, 284 S.W.3d 866,
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869 (Tex. Crim. App. 2009) (orig. proceeding). A failure to make a showing under either prong

defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim.

App. 2003).

         The first prong requires a showing “that counsel’s performance fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688. This requirement can be difficult to

meet since there is “a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. Accordingly, the Texas Court of Criminal Appeals

has said that “[t]rial counsel ‘should ordinarily be afforded an opportunity to explain his actions’

before being denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App.

2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

         Where an appellate record is silent as to why trial counsel failed to take certain actions, the

appellant has “failed to rebut the presumption that trial counsel’s decision was in some way—be

it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007);

see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). This is because allegations of

ineffectiveness “must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 833 n.13

(Tex. Crim. App. 2002) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).

Essentially, when a party raises an ineffective assistance of counsel claim for the first time on

direct appeal, the defendant must show that “under prevailing professional norms,” Strickland, 466

U.S. at 688, no competent attorney would do what trial counsel did or no competent attorney would

fail to do what trial counsel failed to do. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.

2005).

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       B.      The Record Does Not Support Rosewell’s Claim of Ineffective Assistance With
               Respect to Comments About His Post-Arrest Silence

       It is not apparent from the record why counsel chose to forego an objection to Hall’s

testimony that Rosewell did not wish to speak with him. It is possible that counsel believed it best

not to call attention to the testimony by voicing an objection. Counsel could have also believed

that Rosewell’s plea of guilty to the offense “diminished the force of [his] assertion that his silence

constituted an exercise of his right against self-incrimination.” Williams v. State, 607 S.W.2d 577,

579 (Tex. Crim. App. 1980). Considering these reasons, we find that Rosewell has not met his

burden to demonstrate counsel’s ineffectiveness for choosing to forego timely objections to Hall’s

testimony about Rosewell’s post-arrest silence.

       Rosewell next complains that counsel should have requested a limiting instruction or a

mistrial when the trial court sustained his last objection to the State’s question, “What did he

immediately do?” Hall never answered the State’s question. Therefore, it is reasonable for counsel

to have believed that requests for a limiting instruction or mistrial were unnecessary. It is also

reasonable that counsel may have believed that the State was entitled to address the issue of

whether Rosewell had expressed remorse since Rosewell pled guilty and, during opening

statement, informed the jury that he was sorry for his actions. See Price v. State, 640 S.W.2d 673,

675 (Tex. App.—Houston [14th Dist.] 1982, no pet.) (cross-examination on post-arrest silence was

proper “since [defendant] had already confessed his guilt” and “could be expected to speak out if

he were sincere in his sorrow”) (quoting Williams v. State, 607 S.W.2d 577, 579 (Tex. Crim. App.

1980)); Reyna v. State, 11 S.W.3d 401, 404 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); see

also Cisneros v. State, 692 S.W.2d 78, 83 (Tex. Crim. App. 1985).
                                                  7
         Because counsel’s position on Rosewell’s allegations of ineffectiveness relating to his

post-arrest silence are not apparent on the record, we overrule his second point of error.

       C.      The Record Does Not Support Rosewell’s Claim of Ineffective Assistance
               with Respect to the State’s Questioning

       Next, Rosewell asserts counsel’s ineffectiveness in failing to object to the following

questioning during his cross-examination:

              Q       [BY THE STATE]: Okay. Now, if you can show where somebody
       got shot, you can kind of understand where they were when they got shot. Does
       that make sense?

               A       Somewhat.

               Q       Okay. Can’t really fake -- can’t really make a bullet curve and come
               from somewhere other than the direction that it’s shot. Does that make
               sense to you?

               A       Right.

               Q       Well, they tend to travel in somewhat of a straight line, do they not?

               A       Right.

                       ....

               Q       Did you see the pictures of Rachael today?

               A       Yes.

               Q       Did you hear the investigator testify today?

               A       Yes.

               Q       Okay. Rachael got shot from here in the back of her arm. So the
               bullet went in right here behind her. It came out here. It went in here in the
               back of her ear and came out her eye. Do you understand how that cannot
               happen if she was reaching for your gun?

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               A      No.

               Q       Okay. Do you understand that if she was reaching for your gun and
               you shot her, it would have gone in her front and came out her back? But
               that’s not what happened. You shot Rachael in the back when she was
               leaning away from you and that’s what the scientific evidence shows. Did
               you look at those pictures?

               A      Yes.

               Q      Did you hear that testimony?

               A      Yes.

               Q     You understand that it makes no sense that she was reaching for your
               gun. Zero. . . . You’ve got to answer my question.

               A      I don’t know how it happened that way but it did.

               Q      So the laws of physics cease to apply in your truck; and someone
               who was leaning away from you, the bullet magically circled around and
               entered her face?

               A      Not magic.

               Q      Well, you understand that the scientific evidence does not line up
               with your version of the events. Does that make sense to you?

               A      No, it doesn’t.

       This questioning came after Whetstone testified that she had her back to Rosewell, turned

sideways when he called her name, and was shot while facing sideways. Photos of the bullet entry

and exit wounds were admitted into evidence. Given Rosewell’s testimony, the State’s cross-

examination was directed at impeaching Rosewell’s claim that he shot Whetstone because she

reached for his gun. Rosewell argues that counsel should have objected to this line of questioning




                                                9
because the State’s questions constituted “unqualified ‘expert testimony’” in violation of Rule 702

of the Texas Rules of Evidence. See TEX. R. EVID. 702. We disagree.

       Counsel could have decided that an objection on the ground argued on appeal was

unnecessary because the “prosecutor’s questions . . . are not evidence of any fact” and because the

trial court instructed the jury that the comments of counsel were not evidence. Stobaugh v. State,

421 S.W.3d 787, 832 n.238 (Tex. App.—Fort Worth 2014, pet. ref’d) (citing Madden v. State, 242

S.W.3d 504, 509–10 (Tex. Crim. App. 2007)). Therefore, based on this silent record, we cannot

conclude that counsel rendered ineffective assistance by failing to object on the ground that the

State’s questions amounted to unqualified expert testimony.

       We overrule Rosewell’s last point of error.

IV.    Conclusion

       We affirm the trial court’s judgment.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:       August 12, 2019
Date Decided:         August 16, 2019

Do Not Publish




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