                                 NUMBER 13-12-00666-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI – EDINBURG

RYLAND SHANE ABSALON,                                                                    Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                      Appellee.


                       On appeal from the 297th District Court
                             of Tarrant County, Texas.


                                         OPINION
                  Before Justices Rodriguez, Garza, and Perkes
                            Opinion by Justice Garza
      In 1984, eighteen-year-old Ginger Hayden was found stabbed to death in her

bedroom. Twenty-six years later, appellant Ryland Shane Absalon was arrested and

charged with the offense. In 2012, a Tarrant County jury convicted Absalon of capital

murder and sentenced him to life imprisonment. See TEX. PENAL CODE ANN. § 19.03(a)(2)

(West 2011). On appeal,1 Absalon argues that: (1) the trial court erred by admitting


      1   This appeal was transferred from the Second Court of Appeals pursuant to a docket equalization
evidence of confessions he allegedly made during the course of substance abuse

treatment; (2) the trial court erred by admitting into evidence a towel found at the murder

scene; (3) the properly-admitted evidence was insufficient to support his conviction; (4)

the affidavit supporting the arrest warrant was insufficient; (5) he received ineffective

assistance of trial counsel; and (6) the cumulative effect of various errors resulted in an

unfair trial. We affirm.

                                        I. BACKGROUND

A.      Murder of Ginger Hayden

        In the early morning hours of September 5, 1984, Sharon Hayden returned home

from her post office job to the Fort Worth, Texas apartment she shared with her daughter

Ginger. When Sharon went into the bathroom, she noticed “something like water on the

floor with red around it.” She was too tired to clean it up, so she just put a blue towel over

it. She then went to sleep in her bed. A few hours later, Sharon woke up to the sound of

Ginger’s alarm clock. When she went into Ginger’s room, she found her daughter’s

lifeless body slumped beside her bed. Ginger was covered in blood and was wearing

only underwear. Sharon felt that Ginger’s leg was cold, and she realized Ginger was

dead.

        In a state of panic, Sharon left her apartment and went upstairs to the apartment

of her neighbor, Ryland Shane Absalon, in order to call her boyfriend. Absalon, then

seventeen years old, was a friend of Ginger and Ginger’s boyfriend, Jeff Green.

According to Sharon, despite the fact that his neighbor and friend was just found dead,

Absalon “was laying on the couch like he didn’t give a crap about anything, just laying



order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).

                                                2
there.”

B.        Initial Investigation

          Detective Brad Patterson of the Fort Worth Police Department investigated the

scene. He noticed no signs of forced entry. However, a sliding glass door leading from

Ginger’s bedroom to the apartment’s back patio was unlocked. Police collected various

items for forensic testing, including a bent steak knife found near Ginger’s body, two red-

stained socks found in the bathroom, and a blue towel found on the bathroom floor.

          An autopsy was performed on Ginger’s body later that day. A total of 57 stab and

cut wounds were identified on her scalp, face, neck, chest, breasts, upper arms, forearms,

hands, and legs. One of the stab wounds, on Ginger’s neck, was four and a half inches

deep. Mark Krouse, M.D., the physician who performed the autopsy, testified that Ginger

died of blood loss and that all of the injuries—even ones that would not be considered

lethal by themselves—contributed to her death. Dr. Krouse testified that the bent steak

knife found at the murder scene was the likely murder weapon. The autopsy report noted

that Ginger was in the early first trimester of pregnancy.

          Detectives contacted Jeff Green, Ginger’s boyfriend at the time of her death.

Green stated that he was with Ginger the night before her murder until about 11:30 p.m.,

when Ginger dropped him off at his home. Green stated that he later left his residence

for about thirty minutes to go for a walk after he got into an argument with his father; he

then returned home and went to sleep. Green was aware of Ginger’s pregnancy and

believed that he was the father. He stated that Ginger intended to abort the pregnancy. 2

Green stated that he was with Absalon the previous day and that he told Absalon to come


      2 Detectives located, in Ginger’s room, a card stating that Ginger had an appointment at Southlake

Women’s Clinic, a family planning clinic, set for September 6, 1984.

                                                   3
down to Ginger’s apartment when he saw Ginger’s car return. At trial, Green testified that

he and Ginger had intimate relations in Ginger’s bedroom on the night before her murder.

He testified that Absalon knew that he and Ginger were in a romantic relationship.

        Mike Garvin, then a Fort Worth Police Department detective, contacted Absalon

and his father, Ralph. Ralph indicated to the detective that, the morning after the murder,

Absalon was wearing a white shirt with a red stain on it. Absalon stated that the stain

was caused by spilled “strawberry soda,” but the detective believed it might actually be

blood. Detective Garvin obtained consent of the Absalons to search their apartment for

the stained shirt. The detective was unable to locate the stained shirt; however, he

recovered an unstained shirt, a pair of shorts, a pair of shoes with apparent blood stains,

and a towel. Detectives interviewed Absalon again at Arlington Heights High School

several days later. Absalon stated that he had, in the past, been in Ginger’s apartment

and in her bedroom on several occasions. Once, he climbed over Ginger’s patio fence in

order to obtain a dropped knife. Absalon stated that, on the night of Ginger’s murder, he,

Green, and Ginger were hanging out at Ginger’s apartment until around 9:00 p.m. During

the interview, the interviewing officer observed a small red dot on Absalon’s shoe;

Absalon stated that it was blood from when he cut his finger while camping. 3

        Police concluded their investigation without making an arrest. The case remained

cold for the next quarter century.


        3  According to an affidavit filed with the application for an arrest warrant, police also spoke to the
Haydens’ neighbor Daniel Schwertner. Schwertner told police that, at around 2:00 a.m. on the night of the
murder, he heard a noise coming from the general direction of the Haydens’ back patio. He looked out his
window and saw a white male wearing a dark baseball cap and white t-shirt climb over the fence into the
back patio area. Schwertner observed the man “knocking numerous times on Ginger Hayden’s back patio.”
The man then climbed back over the fence and went around the building. Several minutes later, the man
came back and again climbed over the fence into the Haydens’ back patio and started knocking. When
there was no answer at the door, the man walked away from the building. This statement was not presented
to the jury at trial but was made part of the application for a warrant to arrest Absalon in 2010.

                                                      4
C.      DNA Analysis

        Detective Jose Hernandez of the Fort Worth Police Department stated that, in

2008, his agency received a grant from the United States Department of Justice “to go

through cold cases and identify which ones could benefit most from DNA testing.” The

unsolved murder of Ginger Hayden was one of the cases he assessed.                              Detective

Hernandez reviewed the evidence on file and submitted several items for DNA analysis,

including the socks and towel found in Ginger’s apartment and the shoes recovered from

Absalon’s apartment.

        Forensic analyst Yin Zhang examined the items. With respect to the blue towel, a

“presumptive test” was positive for blood. Zhang then performed a “confirmatory test” on

the blue towel which was negative for blood. Although the confirmatory test on the blue

towel was negative for blood, a DNA profile was obtained from the towel.

        Orchid Cellmark (“Cellmark”), a private DNA testing laboratory, analyzed items

recovered in the investigation.4 The DNA profile obtained from a cutting of the blue towel

was a mixture, with the major profile originating from an unknown male. 5 The same

unknown male was identified as a likely contributor of DNA obtained from the shoe found

in Absalon’s apartment. Based on these findings, Detective Hernandez applied for a

search warrant for a direct sample of Absalon’s DNA. The following day, officers located

Absalon at his residence in Sierra Vista, Arizona, and obtained DNA samples via buccal



        4 Cellmark’s supervisor of forensics, Mark Quartaro, testified that Cellmark had originally received
items related to Ginger Hayden’s murder in 2002. At that time, Cellmark was asked to perform analyses
on a knife handle and a light switch. Those analyses revealed no DNA profiles.

        5 Quartaro testified that Cellmark compared the DNA profiles to profiles of Ginger Hayden and Jeff

Green which were acquired in 2002. Ginger could not be excluded as a contributor to the minor DNA profile
obtained from the blue towel. Quartaro testified that the DNA profile obtained from the blue towel would be
expected in approximately one out of 8.475 quadrillion unrelated individuals in North America.

                                                     5
swabs.

        Scrapings from the blue towel showed a mixture of DNA consistent with Ginger

Hayden and Jeff Green. The major DNA profile obtained from the cutting of the blue

towel matched Absalon’s DNA, as did the profile obtained from the shoe found in

Absalon’s apartment.6 Subsequently, Cellmark analyzed a hair that was situated on one

of the socks found at the murder scene. A partial DNA profile obtained from the hair was

consistent with Abaslon’s DNA.7 Armed with the DNA testing results, police applied for

and obtained a warrant to arrest Absalon and he was taken into custody.

D.      Group Therapy Confessions

        After Absalon’s arrest was publicized in local media, several individuals stepped

forward claiming to have information about the crime.                    All of these individuals had

attended an intensive substance abuse treatment program known as Straight, Inc. with

Absalon in 1985 and 1986.8 They testified at trial over the objection of defense counsel.

        Robert Shawn Garrett testified that he attended Straight, Inc. at the same time as

Absalon. Garrett was twenty years old at the time. Because Garrett was more advanced

in the program, he was assigned to host Absalon at his home during nights. Garrett had

observed police investigators temporarily pull Absalon out of group sessions at the



        6  Cellmark also analyzed the following items: swabs from a bent knife handle, which revealed a
partial DNA profile consistent with Ginger Hayden; scrapings from a light blue sock, which revealed a major
DNA profile consistent with Ginger Hayden; a cutting from a gray sock, which revealed a complete DNA
profile consistent with Ginger Hayden; a cutting from a striped pillowcase, which revealed a partial DNA
profile consistent with Ginger Hayden; cuttings from two other pillowcases which revealed no DNA profile;
a cutting from a bedsheet which contained semen consistent with Jeff Green’s DNA profile; and swabs from
a closet door which revealed a partial DNA profile consistent with Ginger Hayden.

        7Quartaro testified that the partial profile would be expected in approximately one in 805.8 trillion
unrelated individuals in North America.

        8 Absalon had pleaded guilty to an unrelated criminal mischief charge in 1985 and the terms of his

probation included, among other things, participation in and completion of the Straight, Inc. program.

                                                     6
Straight, Inc. treatment center on several occasions; so, one evening Garrett decided, out

of curiosity, to ask Absalon why that was. Absalon was at first reluctant to answer but,

over the course of a few weeks, he gradually revealed to Garrett that he had stabbed and

killed a girl. Absalon told Garrett that the girl had embarrassed him—he wanted to have

a romantic relationship with the girl, but the girl refused. Absalon told Garrett that this

made him angry. Absalon told Garrett that he got in the girl’s apartment through her

bedroom window and that he hid in her bedroom closet with the intent to kill her. Absalon

told Garrett that it was around 9:00 or 10:00 p.m. and there was no one in the apartment

at the time he entered the apartment. Absalon told Garrett that he had a knife and that

he waited in the closet until the girl got home, took a shower, got into bed, and fell asleep.

Once he thought the girl was asleep, Absalon emerged from the closet and stood next to

the bed. He then started stabbing her. She woke up, but he put his hand over her mouth

and continued stabbing her. According to Garrett, Absalon said that “he stabbed her until

he thought she was dead and he was—he was tired. . . . He heard her moan, and so he

started—he stabbed some more.” Garrett testified that Absalon told him that he counted

the number of times he had stabbed the girl—“Fifty-two, 54, or 57” times. According to

Garrett, Absalon was concerned that police would arrest him for the murder, but he was

confident he would not be charged, saying: “‘They'll never find out. They'll never know.’

Because he covered it up too well. ‘They'll never know.’”

       Garrett had never reported what Absalon told him. That was in part because, as

Garrett explained, all Straight, Inc. participants were instructed that everything revealed

during the course of treatment must be kept confidential. However, when Garrett saw

Sharon Hayden on television “crying tears of excitement” at the news of Absalon’s arrest,

he felt he had “no choice but to call” the Fort Worth Police Department to report what he
                                              7
had been told twenty-five years earlier.

       Stephanie Knight testified that she was sixteen years old when she participated in

the Straight, Inc. program in 1985 and 1986. She recalled that Absalon was in the

program with her. Knight testified that, at one group session, Absalon admitted that “he

killed a girl” by stabbing her a “bunch” of times “when he was high on heroin.” She recalled

that Absalon said “he had a knife, he waited in a closet for her to come into the bedroom,

and then he stabbed her on the bed.” She recalled that Absalon said he did it because

“he wanted to know what it was like” to kill someone. Straight, Inc. staff then stopped

Absalon from speaking and said that the matter would be discussed later. Knight said

that Absalon’s admission shocked her “[b]ecause that’s not the penny ante stuff the other

people were talking about.”

       Knight later graduated from the program and subsequently became a staff

member. Knight testified that, after she and Absalon had graduated the program, Absalon

lived with her and her mother for less than a year. During that time, Knight never told her

mother about what Absalon had said at the group session, because that would have been

a violation of Straight, Inc.’s confidentiality rule.

       Michelle Valencia testified that she was fifteen years old when she started the

Straight, Inc. treatment program in 1985. She stated that Absalon admitted during a group

session that he had stabbed and killed a girl. She recalled:

       He was very quiet and somber, I guess is a good word. He was very
       hesitant to speak and just—it took him a long time to say it. His face was
       very red. I didn’t see a lot of emotion. And he was very—not medicated,
       but he was just kind of standing there.

She did not tell authorities about Absalon’s confession until 2010, when she saw on

television that he had been arrested.

                                                 8
       Teresa Patterson and Chuck Donaldson testified as defense witnesses. Both

participated in the Straight, Inc. program with Absalon.9 Donaldson recalled Absalon

stating in a group session that he had killed a girl.10 When Absalon made the statement,

“his face got real red” and he was crying. Donaldson had “never seen anything like it

before or since.” According to Donaldson, prior to Absalon’s statement, Straight, Inc.

counselors “told us, gave us, you know, there’s a federal law of—federal confidentiality

law and explained it to us and how what we hear in there has to stay there, we can’t speak

it outside of the group or whatever. Something along those lines.”

E.     Conditions at Straight, Inc.

       Garrett, Knight, Valencia, Patterson, and Donaldson each testified in detail as to

the extreme methods employed by Straight, Inc. Participants in the Straight, Inc. program

were classified in five categories depending on what phase of treatment they had

successfully completed. When a participant first arrived at the program, he or she would

be considered a “first-phaser.” The first phase of treatment could be as short as two

weeks or as long as two years, depending on how well the participant performed. First-

phasers were not allowed to go home, but instead had to spend nights at the home of a

more advanced participant. Patterson stated: “We were locked in rooms with alarms on


       9   Patterson, who did not witness Absalon’s confession, testified over the State’s relevancy
objection. She corroborated the other witnesses’ testimony regarding the conditions and methods used at
Straight, Inc. The relevance of her testimony is not at issue in this appeal.

       10   Specifically, Donaldson testified:

       I don’t remember all the details. But he did talk about sneaking into a girl’s apartment and
       hiding in the closet. And, you know, he had a knife and then that he stabbed her multiple
       times, you know. I don’t remember if there was—all I know is I had the impression that it
       was a lot, he stabbed her a lot.

       And he was under the influence of drugs or alcohol. I don’t remember exactly what. And
       he also, you know, whoever it was that he said he killed, you know, it was someone he
       knew. And there was, you know, there was some kind of jealousy or some kind of romantic
       thing going on or something like that that kind of precipitated it.
                                                    9
the doors, windows, and closets with mattresses on the floor so that there wouldn’t be

anything in there for us to hurt ourselves or others with because not every kid in there

was like every other kid.”

        Each first-phaser was required to be led around the treatment center by a more

advanced participant who would do so by physically holding on to the first-phaser’s belt

loop. Garrett testified:

        I guess . . . the whole point is to make you feel like a dog on a leash. . . . [A]s
        much as I disliked a 15-year-old toting me around by the back of my
        britches, the main reason was to humble me and put me in a position to
        where I could talk about the things that I needed to talk about.

If an underage participant attempted to leave the treatment center or otherwise

misbehaved, staff would physically restrain the participant by “four-pointing” him or her—

i.e., by having each of four staff members pin down one of the participant’s limbs so that

the participant was immobilized.

        Once a participant completed all five phases of the program, he or she would

graduate from the program.11 Garrett told police that the goal of every participant at

Straight, Inc. was “just to get out.”

        Throughout the treatment program, participants were not allowed access to any

television, radio, books, newspapers, or other media, and they were not allowed to

communicate to anyone outside the treatment center via telephone or any other means.

They were required to join in group therapy sessions at the treatment center for sixteen

to twenty hours every day, seven days a week. During the group sessions, participants

were required to sit in chairs with “perfect” posture—“with your feet flat on the floor and



        11 At the time of Absalon’s alleged confession to Garrett, Garrett was a “fifth-phaser” and Absalon

was a “first-phaser.”

                                                   10
hands on your knees and your back erect.” More advanced participants were responsible

for monitoring the newer participants and were permitted to stand around the circle of

chairs during the group sessions. At times, staff members and advanced participants

would physically correct other participants’ imperfect posture.

        The group sessions each had a particular theme—for example, as Garrett testified,

“humility, lying, patience, thieving, robbing, that kind of stuff”—but the primary focus was

on the participants’ substance abuse issues. Participants were strongly encouraged to

speak at the group sessions and would not be permitted to advance to the next phase of

treatment if they did not speak. However, in order to get called on by the group leader,

participants were required to engage in an activity staff called “motivating.” According to

Garrett:

        [I]f you wanted to get called on in group, if you—really, whether you wanted
        to talk or not, I am not going to motivate in here. They called it—they called
        it motivating. And the more you sat in your chair and you flailed your arms
        and you couldn’t make any noise, but you just moved your arms
        sporadically, and, you know, 127 kids or whatever it was at the time,
        depending on how hard you’re motivated, you know, it was your privilege to
        stand up and talk.

Knight described “motivating” as “flap[ping] our arms kind of like drunk geese.” Garrett

agreed with defense counsel’s suggestion that “you had to do it [‘motivate’] because if

you never talk in group, you never got out of first phase.” After a participant spoke, the

other group members would be able to “confront” the participant if they believed he or she

was being dishonest.12 Confidentiality was paramount. Garrett told police that counselors

at Straight, Inc. “worked” Absalon, “tighten[ed] the screws” on him and “wore him out” so



       12 Garrett stated that the “fifth-phasers” and other staff members would know if the participants

were being dishonest because they would, prior to the group sessions, inform themselves of the details of
each participant’s individual situation with regard to substance abuse issues.

                                                   11
that he would talk about his past and his problems. Garrett said that every participant at

Straight, Inc. was subject to this type of treatment.                               According to Garrett,

“[h]onesty . . . was the most important policy.”

        When asked what was necessary to advance out of the first phase, Garrett replied:

“Share and talk, talk about feelings, things that had happened, things you had done.

Seeing as that alcohol, drug abuse is a disease of the feelings, that’s what we talked

about more than anything else.” Knight stated that the counselors “wanted to hear the

admission of wrongdoings and a plan or a goal of how you were going to make amends.”

She agreed that “you have to say what they want you to say or you don’t move on.”

Patterson stated that she falsely admitted to being an alcoholic just in order to advance

out of the first phase.13 Valencia stated that she suffered “mental abuse” at Straight, Inc.

and that the program was “cult-like.” She elaborated:

        I mean, there was some brainwashing going on. I don’t believe I was an
        alcoholic or addict, and they, you know, kind of made me believe that I
        was . . . . [T]hey kept telling you over and over and over, you wouldn’t be
        here if you're not an alcoholic or addict, and normal people don’t do this.
        And, you know, just over and over, you just begin to believe it.

        Garrett testified that he believed the Straight, Inc. program was “the toughest in

the country” but that it worked for him because he has been clean and sober since he

graduated from the program. A year after he graduated the program, he came back to

work at Straight, Inc. as a staff member.14 Valencia agreed with defense counsel that


        13
         Knight also stated she falsely admitted to being an alcoholic in order to advance out of the first
phase. She later clarified that this did not occur at Straight, Inc., but rather, at a different treatment program.

        14   Defense counsel asked Garrett:

        Do you know—you’re aware that a lot of people that went through this program later
        developed psychological problems, there’s been a number of suicides, and there’s been
        lawsuits. You’re aware of all of the activity that’s occurred since 1993 when these programs
        were shut down. You’re aware of that, aren't you?

                                                       12
Straight, Inc. eventually “got shut down by the authorities” in part because of “abuse going

on” at the treatment centers. She denied ever being physically abused at the program.

F.      Verdict

        The jury found Absalon guilty and he was sentenced to life imprisonment.15

Absalon then filed a motion for new trial alleging in part that he received ineffective

assistance of trial counsel. The motion was overruled by operation of law. See TEX. R.

APP. P. 21.8. This appeal followed.

                                              II. DISCUSSION

A.      Substance Abuse Treatment Privilege

        Prior to trial, Absalon moved to suppress evidence of his confessions made at

Straight, Inc. on grounds that they were statements made in the course of voluntary

substance abuse treatment. See TEX. CODE CRIM. PROC. ANN. art. 38.101 (West 2005);

TEX. R. EVID. 509(b). Garrett and Valencia testified at the suppression hearing. After the

hearing, the trial court took the motion in abeyance. The following day, prior to voir dire,

the trial court pronounced its ruling as follows:

        [T]he evidence in this case is that [Absalon] was not being treated
        voluntarily but was under a court order, court-ordered condition of probation
        to attend and comply with the Straight[, Inc.] program[. T]he problem word
        is “voluntarily,” and the word must be there for a reason or as an important
        distinction on whether or not a communication is confidential when given by
        one person as opposed to another. It might seem important for all patients

Garrett replied, “No.”

        15  Because Absalon was under eighteen years of age at the time of the offense, he was not eligible
for the death penalty. See Roper v. Simmons, 543 U.S. 551, 568, 578 (2005) (holding that the imposition
of the death penalty on offenders who committed a crime before turning eighteen years old is
unconstitutional). Moreover, the section of the penal code requiring that defendants convicted of capital
felonies for whom the death penalty is not sought must be sentenced to life without parole, see TEX. PENAL
CODE ANN. § 12.31(a) (West 2011), is not applicable because the offense took place before September 1,
2005. See Act of June 17, 2005, 79th Leg., R.S., ch. 787, § 17, 2005 TEX. GEN. LAWS 2705, 2709; see also
Miller v. Alabama, 132 S.Ct. 2455, 2463, 2469 (2012) (holding that mandatory life sentence without
possibility of parole for defendants under the age of eighteen at the time of their crimes violates the Eighth
Amendment’s prohibition of cruel and unusual punishment).
                                                     13
        to communicate freely to aid in the treatment. On the other hand, it seems
        that the purpose may be for patients to seek treatment voluntarily when they
        might not otherwise do so. A patient who is being treated involuntarily or by
        court order does not need encouragement because he is already being
        compelled to attend, and so his communication is not protected as
        would . . . a voluntary communication by a patient. . . .

        Because [Absalon] was not being treated voluntarily, but rather was court-
        ordered to attend, the Court rules that his communication to the group was
        not confidential, and is therefore admissible . . . through the testimony of
        Michelle Valencia and the other two witnesses who may be called to testify.
        However, the Court is somewhat troubled and concerned in its ruling
        because while it may be the correct ruling, the correct legal ruling, it does
        not seem to be or to lead to the proper or fair result. If the State is as
        concerned as the Court is, it may not wish to use the testimony of the group
        members.[16]

Absalon argues by his first two issues that this ruling was erroneous.17

        1.       Standard of Review

        We review a trial court’s ruling on a motion to suppress evidence for abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial court abuses

its discretion when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d

435, 439 (Tex. Crim. App. 2005). The trial court’s ruling on the motion to suppress will

be affirmed if it is reasonably supported by the record and is correct under any theory of

law applicable to the case. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).

At the suppression hearing, the trial court is the sole trier of fact and exclusive judge of

the credibility of the witnesses and the weight to be given to their testimony. See St.

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).

        In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated


        16   Evidently, the State did not share the trial court’s concern as to the propriety of the evidence, as
it called all three group members to testify at the guilt-innocence phase of trial.

       17 At the suppression hearing, the trial court also considered Absalon’s motion to suppress certain

statements he made to police officers after being arrested in Arizona. The trial court granted that motion
and suppressed those statements. The issue is not raised on appeal.
                                                      14
standard of review. Wilson v. State, 311 S.W.3d 452, 457–58 (Tex. Crim. App. 2010).

Although we give almost total deference to the trial court’s determination of historical

facts, we conduct a de novo review of its application of the law to those facts. See id. at

458. We afford almost total deference to the trial court’s rulings on mixed questions of

law and fact when the resolution of those questions depends on an evaluation of credibility

and demeanor. See State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011). We

review de novo mixed questions of law and fact that do not depend on an evaluation of

credibility and demeanor. Id. All purely legal questions are reviewed de novo. Id.

       2.     Applicable Law

             A communication to any person involved in the treatment or
       examination of drug abusers by a person being treated voluntarily or being
       examined for admission to voluntary treatment for drug abuse is not
       admissible.     However, information derived from the treatment or
       examination of drug abusers may be used for statistical and research
       purposes if the names of the patients are not revealed.

TEX. CODE CRIM. PROC. ANN. art. 38.101.

              There is no physician-patient privilege in criminal proceedings.
       However, a communication to any person involved in the treatment or
       examination of alcohol or drug abuse by a person being treated voluntarily
       or being examined for admission to treatment for alcohol or drug abuse is
       not admissible in a criminal proceeding.

TEX. R. EVID. 509(b).

       3.     Analysis

       By his first issue, Absalon contends that evidence of his confessions should have

been suppressed under article 38.101 of the code of criminal procedure and rule of

evidence 509(b). There is no dispute that the statements were made during the course

of substance abuse treatment, and there is no suggestion that they were made while

Absalon was “being examined for admission” to treatment. See TEX. CODE CRIM. PROC.

                                            15
ANN. art. 38.101; TEX. R. EVID. 509(b). The issue therefore turns on whether Absalon was

“being treated voluntarily.” See TEX. CODE CRIM. PROC. ANN. art. 38.101; TEX. R. EVID.

509(b).18

        We agree with the trial court that Absalon was not “being treated voluntarily” at

Straight, Inc. The record establishes that, on July 7, 1986, Absalon pleaded guilty to an

unrelated criminal mischief charge; that the trial court adjudicated Absalon guilty and

sentenced him to one year in the Tarrant County Jail; that the trial court suspended the

sentence and rendered an order placing Absalon on probation for one year; and that one

of the conditions of Absalon’s probation was to participate and fully complete the Straight,

Inc. program.      The record further reflects that Absalon entered into a plea bargain

agreement which provided that the State would recommend a sentence of one year of

probation, restitution, and participation in the Straight, Inc. program. If Absalon had failed

to participate in and fully complete the Straight, Inc. program pursuant to the court’s order,

he would have been subject to arrest and imposition of the original jail sentence. See

TEX. CODE CRIM. PROC. ANN. art. 12.42, § 21(b) (West Supp. 2011) (“At any time during

the period of community supervision the judge may issue a warrant for violation of any of

the conditions of the community supervision and cause the defendant to be arrested.”).

        Absalon contends that he was “being treated voluntarily” because he entered into



         18 The State argues that the statute is not applicable because Garrett, Knight, and Valencia are not

“person[s] involved in the treatment or examination” of substance abuse. See TEX. CODE CRIM. PROC. ANN.
art. 38.101 (West 2005); TEX. R. EVID. 509(b). We assume for purposes of this argument, but do not decide,
that those witnesses are, in fact, “person[s] involved in the treatment or examination” of substance abuse.

         The State further argues that any error in admitting the testimony was harmless because Absalon
called Donaldson—who testified as to Absalon’s confession at Straight, Inc.—as a witness. See, e.g.,
McNac v. State, 215 S.W.3d 420, 425 (Tex. Crim. App. 2007) (noting that improper admission of evidence
is not reversible error if the same facts are shown by other evidence which is not challenged). Because we
have found no error in the admission of the evidence, we need not decide whether any error was harmless.

                                                    16
the plea bargain agreement voluntarily; he notes that he could have declined the plea

bargain offer and instead proceeded to trial. But that does not change the fact that, after

Absalon voluntarily entered into a plea bargain agreement, he was ordered by a court to

participate and complete the Straight, Inc. program. In light of this central fact, we cannot

say that Absalon was participating “voluntarily” in the program.19 See In re G.K.H., 623

S.W.2d 447, 448 (Tex. App.—Texarkana 1981, no writ) (holding, in a juvenile delinquency

case, that article 38.101 did not apply because the juvenile “did not voluntarily submit

himself for treatment” but was rather ordered by a court to receive treatment).

Accordingly, the trial court did not abuse its discretion in denying Absalon’s motion to

suppress statements he made during the course of the program under article 38.101 of

the code of criminal procedure and rule of evidence 509(b).

        By his second issue, Absalon argues that evidence of his confessions should have

been excluded because the witnesses “effectively were acting . . . as state agents, eliciting

testimony in violation of [Absalon]’s Fifth Amendment rights while assuring him that his

statements were absolutely confidential and could not be used against him.” Absalon did

not make this argument before the trial court20; accordingly, it is waived. See TEX. R. APP.

P. 33.1. Even if the issue were preserved, a confession does not violate due process or

the Fifth Amendment in the absence of “police overreaching,” see Oursbourn v. State,



         19 Absalon notes that Garrett testified that both he and Absalon were “there [i.e., at Straight, Inc.]

by choice.” However, it is not clear whether Garrett actually knew that Absalon was ordered by a court to
participate in the program. In any event, considering the clear documentary evidence of Absalon’s
conviction and the terms of his probation, Garrett’s testimony does not render the trial court’s decision
erroneous.

        20 Absalon did raise the issue of his Fifth Amendment right against self-incrimination, but only with

regard to statements he made to officers when he was apprehended in Arizona. As noted, the trial court
granted Absalon’s motion to suppress that evidence and the issue is not raised on appeal. Absalon did not
raise any Fifth Amendment or due process issue with regard to the Straight, Inc. witnesses.

                                                     17
259 S.W.3d 159, 169 (Tex. Crim. App. 2008), and Absalon does not cite any authority

establishing that fellow Straight, Inc. participants may be considered agents of police in

this context. We overrule Absalon’s first two issues.21

D.      Sufficiency of Warrant Application and Admissibility of Towel

        Absalon argues by his fourth issue that the affidavit supporting the warrant for his

arrest was insufficient to show probable cause because the officer affiant mentioned the

results of the “presumptive test” showing the presence of blood on the blue towel

recovered at the murder scene, but not the results of the “confirmatory test” which seemed

to show the contrary. By his fifth issue, he argues that evidence of the “presumptive test”

was inadmissible.

        1.      Standard of Review and Applicable Law

        In determining the sufficiency of an affidavit supporting an arrest warrant, a

reviewing court is limited to the “four corners” of the affidavit. McFarland v. State, 928

S.W.2d 482, 509 (Tex. Crim. App. 1996), disavowed on other grounds by Mosley v. State,

983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998). The affidavit is viewed in a common-

sense, not hypertechnical, fashion. Id. “Even in close cases we give great deference to

a magistrate’s determination of probable cause to encourage police officers to use the

warrant process rather than making a warrantless search and later attempting to justify

their actions by invoking some exception to the warrant requirement.” Rodriguez v. State,

232 S.W.3d 55, 59 (Tex. Crim. App. 2007).

               [W]here the defendant makes a substantial preliminary showing that
        a false statement knowingly and intentionally, or with reckless disregard for
        the truth, was included by the affiant in the warrant affidavit, and if the
        allegedly false statement is necessary to the finding of probable cause, the
         21 We express no opinion on the trial court’s statement that denial of the motion to suppress, while

“the correct legal ruling, . . . does not seem to be or to lead to the proper or fair result.” We merely hold
that the ruling was not an abuse of discretion under the law applicable to the case.
                                                    18
       Fourth Amendment requires that a hearing be held at the defendant’s
       request. In the event that at that hearing the allegation of perjury or reckless
       disregard is established by the defendant by a preponderance of the
       evidence, and, with the affidavit’s false material set to one side, the
       affidavit’s remaining content is insufficient to establish probable cause, the
       search warrant must be voided and the fruits of the search excluded to the
       same extent as if probable cause was lacking on the face of the affidavit.

Franks v. Delaware, 438 U.S. 154, 155–56 (1978). Under Franks, the false statement in

the affidavit must have been either intentional or made with reckless disregard for the

truth, and must have been necessary to the finding of probable cause, in order to render

the warrant invalid. Dancy v. State, 728 S.W.2d 772, 782 (Tex. Crim. App. 1987) (citing

Franks, 438 U.S. at 155–56). A misstatement in an affidavit that is merely the result of

simple negligence or inadvertence, as opposed to reckless disregard for the truth, will not

render invalid the warrant based on it. Id. at 783 (citing Franks, 438 U.S. at 171).

       2.     Analysis

       The affidavit supporting the application for arrest warrant stated, in relevant part:

       [T]he blue towel that was collected from the bathroom floor (put there by
       Sharon Hayden who laid the blue towel over a puddle of water that had what
       she described as red stuff inside the water) was screened by the Fort Worth
       Police Lab. A cutting collected from the towel that tested presumptive
       positive for blood was sent for DNA testing. The report reads that the DNA
       profile obtained from the cutting of the blue towel is a mixture. The major
       profile originated from an unknown male and Ginger Hayden cannot be
       excluded as a possible contributor to the mixture. The same unknown male
       appears to be a contributor of DNA to the cutting of the blue towel and the
       tan leather shoes belonging to [Absalon].

The affidavit said nothing about the “confirmatory test” or its results.

       Detective Thomas O’Brien of the Fort Worth Police Department was the affiant.

He testified that, prior to executing the affidavit, he asked forensic technicians about the

result of the “presumptive test” and they informed him that the results of that test showed

the presence of blood but that they were unable to determine whether it was human blood.

                                             19
Detective O’Brien testified that he asked the technicians whether that result meant the

towel contained no human blood. According to the detective, he was informed that “that's

not what it means . . . in fact, it wouldn't be abnormal for blood that is old and degraded

to not necessarily be positive on a confirmatory test or a human blood test.” Detective

O’Brien testified: “I guess in relation to the human blood test and the confirmatory test, I

understood that as the same thing.”

         When the State sought to admit evidence of the “presumptive test” on the blue

towel, defense counsel objected and took forensic analyst Zhang on voir dire. Zhang

characterized the “presumptive test” as “a quick and easy test . . . to screen the evidence

and using a chemical reagent based on the color change.” She explained that the positive

result on the presumptive test could mean that the blue towel contained human blood or

animal blood, or it could be a false positive generated by something like a vegetable

product. Zhang further explained that the “confirmatory test” on the same towel resulted

in a negative finding for blood. Zhang indicated that the result of the confirmatory test

could indicate that there was no actual blood on the sample, but it could also indicate that

there was not enough blood—or that any blood was too old—to be detected. Crucially,

the evidence established that, although the confirmatory test was negative for blood, a

DNA profile was nevertheless retrieved from the towel, and, as stated in the affidavit, the

DNA profile on the towel was consistent with the DNA profile obtained from Absalon’s

shoes.

         The affidavit mentions the positive presumptive test and it mentions that a DNA

profile was obtained from the towel, but it neglects to mention that a confirmatory test was

done and resulted in a negative finding for blood. In that regard it can arguably be

described as misleading. But Detective O’Brien’s testimony establishes that he did not
                                            20
omit information about the confirmatory test intentionally or with reckless disregard for the

truth. See Dancy, 728 S.W.2d at 782. Instead, he believed that the crime lab’s finding

that it could not confirm the presence of human blood was the confirmatory test. At worst,

Detective O’Brien’s omission of the confirmatory test result was the product of negligence

or inadvertence; therefore, it does not constitute grounds to invalidate the warrant. See

id. at 783. We note, moreover, that inclusion of the confirmatory test results in the affidavit

would likely not have changed the magistrate’s decision to issue the warrant. It is

undisputed that a DNA profile was, in fact, obtained from the towel, despite the negative

confirmatory test finding for blood. That is, the magistrate likely would have found

probable cause and approved the warrant application even if he or she had known about

the negative confirmatory test result because, as Detective O’Brien averred, the DNA

profile obtained from the towel was consistent with the profile obtained from blood on

Absalon’s shoes.

       With regard to admissibility of the presumptive test at trial, Absalon argues that the

trial court “fail[ed] in its gatekeeper mission as to scientific evidence.” See Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (holding that when the subject of expert

testimony is scientific knowledge, the basis of the testimony must be grounded in

accepted scientific methods and procedures); E.I. du Pont de Nemours & Co., Inc. v.

Robinson, 923 S.W.2d 549, 557 (Tex. 1995) (“Scientific evidence which is not grounded

in the methods and procedures of science is no more than subjective belief or

unsupported speculation.”). We disagree. There was no evidence indicating that the

presumptive test was improperly performed or was inaccurate.22 Zhang’s testimony



       22   Absalon does not argue that evidence of the presumptive test was irrelevant or unfairly
prejudicial. See TEX. R. EVID. 401, 403.
                                                21
established that both the presumptive and confirmatory tests are scientifically accepted

and regularly used; that the tests are different; that the confirmatory test is more sensitive;

and that the two tests may have resulted in seemingly contradictory findings if, among

other things, the tested item contained blood that was too old. It is noteworthy that the

trial court admitted evidence of the positive presumptive test on the express condition that

the jury be made aware of the subsequent negative confirmatory test. Evidence of both

tests was before the jury and defense counsel had the opportunity to cross-examine

Zhang and other witnesses about the test results. Under these circumstances, we cannot

say the trial court abused its discretion by admitting evidence of the presumptive test.

See Crain, 315 S.W.3d at 48. Absalon’s fourth and fifth issues are overruled.

C.     Evidentiary Sufficiency

       By his sixth issue, Absalon contends that, without the allegedly inadmissible

forensic evidence and evidence of his confessions, the evidence adduced at trial was

insufficient to support his conviction.

       In reviewing the sufficiency of evidence supporting a conviction, we consider the

evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson, 443 U.S. at 318–19). When faced with conflicting evidence, we

presume that the trier of fact resolved any such conflict in favor of the prosecution, and
                                              22
we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

        Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. Here, a hypothetically correct jury charge would state

that Absalon is guilty of the indicted offense if he intentionally caused Ginger Hayden’s

death while in the course of committing or attempting to commit burglary. TEX. PENAL

CODE ANN. § 19.03(a)(2). A person commits burglary if, without the effective consent of

the owner, the person:

        (1) enters a habitation, or a building (or any portion of a building) not then
            open to the public, with intent to commit a felony, theft, or an assault;
            or

        (2) remains concealed, with intent to commit a felony, theft, or an assault,
            in a building or habitation; or

        (3) enters a building or habitation and commits or attempts to commit a
            felony, theft, or an assault.

Id. § 30.02(a) (West 2011).             A person commits assault if the person “intentionally,

knowingly, or recklessly causes bodily injury to another.” Id. § 22.01(a) (West 2011).23

        We have already determined, contrary to the assumption made in Absalon’s

discussion of his sixth issue, that the trial court did not err by admitting evidence of


        23 A person acts “intentionally” with respect to the result of his conduct when it is his conscious
objective or desire to cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2011). A person acts
“knowingly” with respect to the result of his conduct when he is aware that his conduct is reasonably certain
to cause the result. Id. § 6.03(b). A person acts “recklessly” with respect to the result of his conduct when
he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Id. §
6.03(c).

                                                      23
Absalon’s confessions at Straight, Inc. or evidence of the positive presumptive blood test

on the blue towel. Even if the evidence were improperly admitted at trial, we must still

consider it in evaluating evidentiary sufficiency. See Moff v. State, 131 S.W.3d 485 (Tex.

Crim. App. 2004) (“[A]n appellate court must consider all evidence actually admitted at

trial in its sufficiency review . . . . [A]n appellant is not entitled to have an appellate court

first consider the appellant’s complaints concerning improper admitted evidence and, if it

resolves any of those in favor of the appellant, to then, second, consider the sufficiency

of the properly-admitted evidence to support the conviction.”). And, considering that

evidence, we conclude that a rational trier of fact could have found the elements of the

crime beyond a reasonable doubt.          Garrett, Knight, Valencia, and Donaldson each

testified that Absalon confessed to the crime in one of the Straight, Inc. group sessions.

The witnesses recounted that Absalon stated that he waited in the victim’s closet until she

went to bed, then he emerged from the closet and began stabbing her. According to

Garrett, Absalon stated that he stabbed the girl “[f]ifty-two, 54, or 57” times, which is

chillingly consistent with the autopsy results showing 57 stab and cut wounds. Garrett

and Donaldson each testified that Absalon killed the girl out of jealousy. See Guevara v.

State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Motive is a significant circumstance

indicating guilt.”). Detective Garvin testified that, the morning after the murder, Absalon

was seen wearing a white shirt with a red stain on it. Sharon Hayden testified that, when

she informed Absalon of the murder, he acted as if “he didn’t give a crap about anything.”

Finally, Absalon’s DNA was found on the blue towel recovered from Ginger Hayden’s

apartment, and his DNA is consistent with a partial profile obtained from a hair located on

a sock found at the scene. From all of this evidence, the jury could have reasonably

concluded that Absalon intentionally caused Ginger Hayden’s death and that he did so
                                               24
while “remain[ing] concealed, with intent to commit . . . an assault, in a building or

habitation.” TEX. PENAL CODE ANN. § 30.02(a)(2); see Guevara, 152 S.W.3d at 50 (noting

that intent may be inferred from circumstantial evidence such as acts, words, and the

conduct of the appellant).

       Absalon’s sixth issue is overruled.

E.     Ineffective Assistance of Counsel

       By his third issue, Absalon argues that his Sixth Amendment right to counsel was

violated because his trial counsel provided ineffective assistance.

       1.     Standard of Review and Applicable Law

       To obtain a reversal of a conviction for ineffective assistance of counsel, a

defendant must show that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) counsel’s deficient performance prejudiced the defense, resulting

in an unreliable or fundamentally unfair outcome of the proceeding. Davis v. State, 278

S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). “Deficient performance means that ‘counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting

Strickland, 466 U.S. at 687).     The prejudice prong requires showing “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 248 (citing Strickland, 466 U.S. at 694). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. (citing

Strickland, 466 U.S. at 694). “[E]ach case must be judged on its own unique facts.” Davis,

278 S.W.3d at 353.

       The burden is on Absalon to prove ineffective assistance of counsel by a
                                             25
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). He must overcome the strong presumption that counsel’s conduct fell within the

wide range of reasonable professional assistance and that counsel’s actions could be

considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing court will not

second-guess legitimate tactical decisions made by trial counsel. State v. Morales, 253

S.W.3d 686, 696 (Tex. Crim. App. 2008) (noting that, “unless there is a record sufficient

to demonstrate that counsel’s conduct was not the product of a strategic or tactical

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

constitutionally adequate”).     Counsel’s effectiveness is judged by the totality of the

representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes,

216 S.W.3d at 851.

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

record must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77

S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6. “[T]rial counsel

should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005).        “Absent such an opportunity, an appellate court should not find deficient

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

attorney would have engaged in it.’” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001)).

         2.       Ineffectiveness Allegations

         On appeal, Absalon complains of several actions and omissions by trial counsel.

First, he contends that his counsel was ineffective by failing “to develop fully the Straight
                                                26
story for the jury as to false confessions as a policy and practice, as well as the use of

‘peer counselors’ to intimidate and abuse participants.” Absalon claims that counsel

“called only two witnesses, both [of] who[m] were in the Dallas program with [Absalon],

but did not seek to present the jury with more pervasive accounts of the Straight program’s

brainwashing techniques.”

       Second, Absalon complains that his trial counsel “regularly failed to object to the

admission of evidence for which the State never established a chain of custody” and

“failed to insist on the right to confrontation of witnesses who actually performed the tests.”

In particular, Absalon argues that the State never established a chain of custody as to:

(1) the hair located on the sock found in Ginger Hayden’s apartment; (2) the socks

recovered from the apartment; (3) the bent steak knife identified as the likely murder

weapon by Dr. Krouse; (4) fingernail cuttings from Ginger Hayden, which contained a

DNA profile as to which Absalon and Green were excluded as possible major contributors

but could not be excluded as minor contributors; and (5) the buccal swabs obtained by

police in Arizona. Absalon further argues that trial counsel should have objected to the

qualifications of Detectives Patterson, Garvin, Hernandez, and O’Brien to testify regarding

evidentiary matters.

       Third, Absalon argues that his trial counsel should have retained experts to rebut

the State’s DNA evidence and Dr. Krouse’s testimony regarding the likely murder

weapon.

       Fourth, he contends that counsel erred by failing to request that the jury be

sequestered or that venue be transferred because of the publicity surrounding the case.

       Fifth, Absalon claims that counsel failed to argue that Absalon’s confessions were

false and that the detailed nature of the confessions can be explained by the fact that
                                              27
details of the crime were publicized contemporaneously.

         Finally, Absalon argues his trial counsel was ineffective because he failed to raise

the possibility that the crime was in fact committed by another suspect, Horace Cox,

whose shoes had a tread pattern similar to the patterns found in Ginger Hayden’s back

patio.

         3.      Analysis

         With respect to trial counsel’s alleged failure to call additional witnesses to testify

as to the Straight, Inc. program, we note that the failure to call a particular witness

constitutes ineffective assistance only if the appellant shows that such witness was

available for trial and would have given testimony that actually benefitted the defense.

Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010). Absalon has not identified

any particular witness that he believes should have been called by defense counsel. In

any event, the jury heard exhaustive, comprehensive testimony regarding the conditions

and methods of Straight, Inc. from five witnesses that participated in the program at the

same time as Absalon—not just the two called by defense counsel. Accordingly, Absalon

has not shown that counsel’s alleged failure in this regard was prejudicial.

         With respect to the remainder of Absalon’s complaints, the record does not contain

any indication as to trial counsel’s reasons for the challenged actions and omissions. 24

Moreover, the actions were not “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 at


         24  Absalon’s motion for new trial included affidavits by his appellate counsel and a DNA crime lab
director from Oklahoma, each cursorily alleging that trial counsel’s actions and omissions constituted
ineffective assistance. However, no hearing was held on the motion, and the trial court was not otherwise
presented with any evidence as to trial counsel’s strategy. We note that challenges requiring development
of a record to substantiate a claim, such as ineffective assistance of counsel, may be raised in an application
for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2011); Cooper v. State,
45 S.W.3d 77, 82 (Tex. Crim. App. 2001).
                                                     28
440). Therefore, we cannot conclude that counsel provided ineffective assistance on

those bases. See id. (“Direct appeal is usually an inadequate vehicle for raising such a

claim because the record is generally undeveloped.”); Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001) (“[W]hen the record is silent as to why counsel failed to object, it

is difficult for a defendant to overcome the first prong of Strickland.”); Thompson, 9 S.W.3d

at 813–14.

       Absalon’s third issue is overruled.

F.     Cumulative Error

       By his eighth issue, Absalon contends that, even if no error is found sufficient to

warrant reversal, the cumulative effect of various errors has resulted in an unfair trial. The

Texas Court of Criminal Appeals has recognized that “a number of errors may be found

harmful in their cumulative effect even if each error, considered separately, would be

harmless.” Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). However,

non-errors may not cumulatively produce harm. See Hughes v. State, 24 S.W.3d 833,

844 (Tex. Crim. App. 2000). Having found no error in our review of Absalon’s other

appellate issues, we conclude that the cumulative error doctrine does not apply.

Absalon’s eighth issue is therefore overruled.

                                          III. CONCLUSION

       We affirm the judgment of the trial court.


                                                    ________________________
                                                    DORI CONTRERAS GARZA,
                                                    Justice

Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
13th day of February, 2014.
                                             29
