Opinion issued November 20, 2014




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-13-00234-CR
                            ———————————
                   TERRENCE BRENT MCNEIL, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Case No. 1362563


                                  OPINION

      A jury convicted appellant Terrence McNeil of felony murder for causing

the death of a child in the course of committing the offense of injury to a child and

assessed his punishment as life in prison. On direct appeal, appellant argues that

he received ineffective assistance from his trial counsel. We affirm.
                              TRIAL TESTIMONY

      Anita Washington’s 19-month old daughter Alycia was small for her age

because she suffered from a congenital heart-defect condition. When she was

about a year old, Alycia underwent two successful open-heart surgeries to correct

the defects in her heart. Despite her health issues, Alycia recovered from her

surgeries and functioned as a normal and otherwise healthy toddler, but with some

developmental delays.

      Beginning in July 2010, when Alycia was about 17-months old, Anita hired

Ruby Cantu to take care of Alycia at Cantu’s home while Anita was at work. By

early September of that year, Cantu began to notice bruises on Alycia’s legs, head,

chest, stomach, and arm. At one point, Anita admitted to Cantu that she had

spanked Alycia and caused a bruise on her thigh. When Cantu told Anita that she

would not be able to keep Alycia one day, Anita told her that was okay because

Anita’s live-in boyfriend, appellant, wanted to do a “baby boot camp on her”

because Alycia rolls her eyes and “gets an attitude.” Cantu testified that, on

September 8, 2010, Alycia had a bruise down the side of her head and a fractured

arm. On September 11, 2010, Cantu noticed red dots in Alycia’s eyes. Cantu did

not believe Anita’s excuses about Alycia’s injuries. Suspecting abuse, Cantu took

pictures of Alycia’s injuries, notified CPS, and told Anita that she would no longer

keep Alycia.


                                         2
      Appellant then agreed to care for Alycia while Anita was at work. After

walking Anita to the bus stop on the morning of September 14, 2010, appellant

returned to the apartment with Alycia. According to appellant, Alycia—who had

just recently begun to walk—fell and hit her head on a toy piano in the apartment.

Appellant later admitted to also having dropped Alycia that morning, causing her

to hit her head on the wall. Appellant soon noticed that Alycia was slouching and

having trouble breathing.

      At Anita’s suggestion, appellant called his friend David to drive them to a

hospital. Appellant explained to David that, because Alycia held her breath when

he tried to feed her, he had “popped” her on the stomach, causing her to flail back

and hit her head. After she started crying, appellant said that he tried to feed her

again, and again she fell back, again hitting her head. At that point she stopped

crying, causing appellant to be alarmed and eventually call David. By the time

David and appellant arrived at West Houston Hospital, Alycia was no longer

breathing. She was life-flighted to Texas Children’s Hospital.

      The staff at West Houston Medical Center and Texas Children’s Hospital

found Alycia unresponsive and noticed bruises on her body. Although Alycia was

officially pronounced dead on the morning of September 15, she had already been

brain dead for some time. Dr. Lopez reviewed Alycia’s prior medical records and

performed her autopsy. Apart from the various injuries Alycia had suffered over


                                         3
the course of the past month and her small size due to her chromosomal

abnormality, he testified that she appeared to be “functioning normally and was

otherwise healthy.”

      Lopez identified bruises on Alycia’s head and scalp.        There were also

bruises on her abdomen, legs, and the arm that was fractured a week before.

Internally, Alycia had hemorrhages in her abdomen, internal organs, head, arm,

and eyes. She also had a detached retina. Many of the hemorrhages, including

those on Alycia’s head and abdomen, were acute, meaning that they had occurred

within 48 hours of the autopsy, and these hemorrhages were the cause of death.

The hemorrhages on Alycia’s head and abdomen were consistent with being

caused by severe blunt force trauma, and Lopez determined that the manner of

death was homicide.      Dr. Love, a forensic anthropologist, also performed a

pediatric skeletal exam and determined that there had been trauma to Alycia’s ribs

and her broken arm.

      A. Appellant’s Videotaped Statements

      Anita, David, and appellant all voluntarily went from the Texas Children’s

Hospital to the police station for interviews with homicide detectives. On that day,

appellant gave Sergeant Torres a videotaped statement. After his arrest ten months

later, appellant gave additional videotaped statements: one to Detective Johnson




                                         4
and two to Sergeant Chandler. Appellant’s four videotaped statements to officers

totaled about five hours.

      At a pretrial hearing, the State and defense counsel agreed to several

redactions to the videotaped statements to remove references to appellant’s

polygraph examination and some comments about race. Defense counsel conceded

appellant made all four statements voluntarily and with appropriate warnings.

Counsel argued, however, that a few of the statements and questions by officers on

the tapes were improper because they cast doubt on appellant’s credibility,

expressed the officers’ opinions on the strength of the State’s case, and suggested

to the jury that there was additional evidence that the jury was not hearing

implicating appellant. The court overruled those objections.

      During the guilt/innocence phase of trial, Sergeants Chandler and Torres and

Detective Johnston testified about the making of the tapes and the police

investigation. Appellant did not testify, but his videotaped statements were played

before the jury without additional objection from his counsel.

      The jury found appellant guilty of felony murder and assessed a sentence of

life imprisonment.

                 INEFFECTIVE ASSISTANCE OF COUNSEL

      In three points of error, appellant contends that his trial counsel was

ineffective because, during the guilt/innocence phase, counsel: (1) failed to request


                                         5
a burden-of-proof instruction and limiting instruction on extraneous offenses; (2)

failed to raise key objections to portions of appellant’s videotaped statements; and

(3) provided such deficient representation that, which viewed in its totality, caused

the trial’s result to be unreliable.

   A. Standard of Review and Applicable Law

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

test adopted in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on

an ineffective assistance of counsel claim, appellant must show that (1) counsel’s

performance was deficient, meaning it fell below an objective standard of

reasonableness, and (2) the deficiency prejudiced the defendant, meaning there was

a reasonable probability that, but for the counsel’s deficient performance, the

results of the trial would have been different. Id.; Ex parte Napper, 322 S.W.3d

202, 246, 248 (Tex. Crim. App. 2010). The burden is on appellant to prove by a

preponderance of the evidence that counsel was ineffective. See McFarland v.

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

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

of counsel fall below the objective standard of professional competence under

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

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

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


                                          6
(Tex. Crim. App. 1984). Thus, courts must “indulge a strong presumption that

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

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

circumstances, the challenged action might be considered sound trial strategy.”

Strickland, 466 U.S. at 689.

      The second prong of Strickland requires a reasonable probability that the

outcome of the case would have been different.          Id. at 694. A reasonable

probability is a probability sufficient to undermine confidence in the outcome,

meaning that counsel’s errors must be so serious that they deprive appellant of a

fair trial. Smith v. State, 286 S.W.3d 333, 340–41 (Tex. Crim. App. 2009).

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

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

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

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

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

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

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

reasonable sound strategic motivation can be imagined.” Id. See also Garcia v.

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

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


                                         7
conclude the challenged conduct constituted deficient performance unless the

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

   B. Jury Charge Instructions

      In his first issue, appellant argues that defense counsel was ineffective

because he failed to request that a burden-of-proof instruction and a limiting

instruction about extraneous offenses be included in the jury charge. Specifically,

he contends that the court should have instructed the jury during the

guilt/innocence phase that (1) it could not consider evidence of extraneous offenses

unless the offenses were proven beyond a reasonable doubt (burden-of-proof

instruction), and that evidence of extraneous offenses could only be used for

limited purposes, and not as evidence of appellant’s character (limiting

instruction).

      Following the jury’s guilty verdict—and during a discussion with the court

about the punishment-phase jury charge—the court asked appellant’s counsel

whether he wanted extraneous-offense instructions in the jury charge for the

penalty phase. Counsel responded that, as in the guilt/innocence phase, he wished

to exclude any extraneous-offense instructions in the penalty phase. He explained

his reasoning during the following exchange:

      The Court: There’s been, with regard to the guilt/innocent stage of
      trial, specifically, [defense counsel], you have requested that there not
      be an extraneous instruction at that phase, and it’s my understanding


                                         8
      that you are asking that that instruction also be removed from the
      Court’s Charge [for the penalty phase].

      Defense Counsel: That is correct.

      The State: Judge, we just want to make sure that the record is clear.
      We think out of an abundance of caution the extraneous charge should
      be in there given all the other injuries attributed to this child that are
      not necessarily date specific and attributed to the defendant. So we
      want the record to be clear that it is his trial strategy to not have it in
      there because he believes it’s going to draw more attention to it.
      Because I think the more cautious thing would be for it to be in the
      Charge. So we need the record to reflect that.

      Defense Counsel: It is my decision, based on the fact, I do not want
      any further attention attracted to any other injuries or any other
      possible misconduct that I wish to have the extraneous charge
      removed or not included.

      The Court: Okay. Based upon that request then, the Court will
      remove it based upon [defense counsel’s] stated reasons and request.

      A criminal defendant is “entitled to be tried on the accusations made in the

State’s pleading and he should not be tried for some collateral crime or for being a

criminal generally.” Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App.

1987). Thus, evidence of other crimes, wrongs, or acts is not admissible to prove

the character of the defendant, but may be admissible for other legitimate purposes.

TEX. R. EVID. 404(b). “The general standard or test for the admission of an

extraneous offense is whether the prosecution can show (1) that the offense or

transaction is relevant to a material issue in the case, and (2) that the probative




                                          9
value of the evidence to the trier of fact outweighs its prejudicial or inflammatory

nature.” Wilkerson, 736 S.W.2d at 659.

      If evidence has only been admitted for a specific purpose, then the trial court

must—upon request—include a limiting instruction that the jury may only consider

the evidence within its proper scope. TEX. R. EVID. 105(a). When requested, the

court must also include an instruction not to consider evidence admitted for a

limited purpose unless the jury finds beyond a reasonable doubt that the defendant

committed the extraneous offenses. George v. State, 890 S.W.2d 73, 76 (Tex.

Crim. App. 1994).

      Appellant relies primarily on the Court of Criminal Appeals’ opinion in Ex

parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001) (orig. proceeding) in

contending that his counsel provided ineffective assistance in failing to request jury

instructions about extraneous offenses. Similarly to this case, the State’s murder

case against the defendant in Varelas was built on evidence of physical abuse that

his murdered stepdaughter sustained over the six weeks leading up to her death. 45

S.W.3d at 629–30. And, as in this case, trial counsel in Varelas failed to request

burden-of-proof or limiting instructions with regard to extraneous offenses. Id. at

631. The Court of Criminal Appeals reversed the defendant’s murder conviction,

concluding that trial counsel’s performance was deficient in failing to request




                                         10
appropriate jury instructions, and that defendant was prejudiced by his counsel’s

deficient performance. Id. at 633–34.

      There are important differences, however, between this case and Varelas. In

Varelas, the Court of Criminal Appeals refused to grant relief on direct appeal

from the defendant’s conviction, stating:

             In light of the number of ways and the degree to which a
      defendant can suffer harm from the admission of extraneous offense
      evidence, we have trouble understanding why trial counsel did not
      request a burden of proof or limiting instruction regarding these
      offenses. However, the bare record does not reveal the nuances of trial
      strategy. Further, to hold trial counsel’s actions (or inaction)
      ineffective in the instant case would call for speculation and such
      speculation is beyond the purview of this Court. Rather, because of
      the strong presumptions that trial counsel’s conduct falls within the
      wide range of reasonable professional assistance and that such
      conduct might be sound trial strategy, we must conclude, in light of an
      otherwise silent record, that appellant failed to meet his burden of
      showing that his trial counsel’s assistance was ineffective.

Id. at 632.      On subsequent habeas corpus review, trial counsel proffered an

affidavit stating that “failure to request these instructions was not the result of trial

strategy. It was simply an oversight.” Id. Because the “trial could would have

been required to give the instructions had counsel requested them” and given the

evidence that the counsel’s failure to request was not the “product of trial

strategy,” the Court of Criminal Appeals held that trial counsel’s performance was

deficient. Id.




                                            11
      Unlike Varelas, trial counsel’s strategy here is expressly reflected in the

record, which demonstrates that counsel chose to omit a request for inclusion of

extraneous-offense instructions because he did not want any further attention to be

drawn to potential extraneous offenses or misconduct committed by the defendant.

In light of this evidence of trial strategy, appellant has not met his burden under the

first Strickland prong of demonstrating that his trial counsel’s failure to request

jury instructions on extraneous offenses rendered his representation deficient.

Garcia v. State, 887 S.W.2d 862, 889 (Tex. Crim. App. 1994) (citing Strickland,

466 U.S. at 687–89); see also Agbogwe v. State, 414 S.W.3d 820, 838 (Tex.

App.—Houston [1st Dist.] 2013, no pet.) (“It is reasonable to conclude . . . [that]

defense counsel decided that seeking an instruction to disregard Ozoh’s testimony

would only bring further attention to it”); see also Delgado v. State, 235 S.W.3d

244, 250 (Tex. Crim. App. 2007) (“[T]he decision of whether to request a limiting

instruction concerning the proper use of certain evidence, including extraneous

offenses, may be a matter of trial strategy”).

      We overrule appellant’s first point of error.

   C. Failure to make objections

      In his second point of error, appellant asserts that his counsel was ineffective

for failing to object to statements made by investigating officers during appellant’s

videotaped statements because their probative value was allegedly outweighed by


                                          12
potential prejudice. Appellant also argues that his counsel was deficient for failing

to object to portions of his videotaped statements as either inadmissible hearsay or

improper opinion testimony. Finally, appellant contends that counsel’s failure to

object to the use of his videotaped statements allowed the State to improperly

convict him on “bad character” evidence. Appellant does not direct us to specific

statements in support of each of these arguments, but his brief quotes all the

following statements in support:

      (Second Interview – July 19, 2011)

      Q.      [Johnson] Well, I will tell you this: there’s injuries that are a
      little more significant that what you and Anita have explained. When I
      say “significant,” I mean significant. I mean, she’s got bleeding in her
      brain. She has a detached retina. And there’s only certain ways that
      those things happen. Those aren’t natural things that happen to a
      child, and they don’t happen by falling onto a piano.

      ....

      Q:    . . . Right, but keep in mind, I know what Texas Children’s has
      told you, okay, ‘cause I have their records here, okay? But I . . . an
      autopsy was done on her. I’m sure you’re aware of that.

      A.     Yes.

      Q:     Okay? Autopsy . . . That’s what it looks for. This is scientific
      stuff. Okay? And it’s a medical fact that the bleeding she has in her
      brain, the detached retina, the other things that she’s got going with
      her eyes . . . there’s only one way that gets there. Okay? And from
      what everything that’s been explained to us, you were the only one
      that was present when all this started happening.

      A.     So, me spending a few . . .


                                           13
Q:    Hold on. Hold on.

A:    Hours with her, you’re saying that, all of a sudden, all these
problems just came wrong with her?

Q:    It can happen [snaps] that quick. That quick. Like a light
switch shutting off. It’s acute. It happens immediately. Okay?

Q:     . . . Ten months ago last week this happened. If I was in a
hurry, I’d have arrested you that night. If I was just trying to put
something on somebody, I’d have arrested you that night. I’d have
arrested Anita that night, if I was just looking to put it on somebody.
But, that’s not how I work. I get all the facts – every one of ‘em – and
I have more than just those things.
....
A.     . . . Okay, but, you need to understand how I function. I love
Anita, and when she has that look . . . when she’s asking me, you
know, with tears almost coming out of her eyes, you know, “you think
that, uh, her arm was fractured ‘cause of how you handled her.” I’m
like “uh, baby, If . . . If I did hurt her by how I picked her up, I
apologize to you, baby.” That’s what I said” “If I did hurt her, I
apologize to you baby.” And that’s . . . that’s the . . . courteous thing
to do. If you hurt somebody by accident, you apologize. So you . . . .
but you’re asking me why would I apologize.

Q. Yeah. If you didn’t do anything, why would you need to
apologize?

A: ‘Cause I told her if her arm was fractured from how I picked her up
that one time [motioning with fists], I apologize for picking her up
that way .. That’s all I was saying.
....
Q.    [Chandler]. . . I worked child abuse . . .what? Twelve years
before I got here?
....
Q.    I want you to tell me what your concerns are and what’s going
through your head right now.

A.    Well, I’m looking at is, I’m a black male and a baby was hurt
and she died. . . . I’m not playing no race card, I’m just playing the
                                   14
reality card. . . . It’s the white detectives, white doctors, looking at a
black male, who, at the time, had no job, and they’re just looking for
somebody to hang for the baby being hurt and dying.
....
Q.      . . .The problem is the injury is acute . . . Acute means that . . .
Like . . . Like . . . it had to have happened, like . . . a more severe.
Acute just mean like very, very severe. . . Acute . . . Usually, right
before a child expires, that means passes away . . . if you have head
trauma, like, if something happens to your head, and it’s acute, which
is what she had . . . She had acute injury, then the child usually stop . .
. has . . . the child usually throws up, has some type of seizure activity,
and then the baby dies. Like [snaps] that.

A.    Well, she never threw up.

Q.    Well, you said she did.

A.    No. She spit up when I gave her CPR. She never threw up.

Q.     Right. But that’s the same thing. That whole stuff comes up . . .

(Third Interview – July 19, 2011)

Q.     [Chandler] . . . This is really serious when you have a baby,
and because she was so little, and she was so tiny, and she was so
fragile, it’s not likely that should would’ve . . . There’s no way she
could’ve inflicted those injuries on herself. So, something had to have
happened to her, be it an accident that these things happened, but
something had to have happened that these things occurred to her. It’s
not like she did ‘em to herself. You know how some kids do some . . .
something like that . . .
....
Q.     . . . You know what, when they go to the autopsy . . . I hate to
say this to you, but they have to take a chainsaw and they have to cut
across, so it has to cut across the cartilage to give her a brain injury.
That’s not gonna [slaps the table] happen like that. That’s . . . it’s
gotta be a whole lot more.

Q.    . . . I’m telling you is that particular day, shortly before she
died, she had an acute head injury. That’s what caused her death.
                                    15
      Now, yeah. There’s some other things that happened to her that may
      have aggravated that injury, like, maybe if none of this other stuff had
      happened to her the weeks ago, maybe she hadn’t fallen on the
      concrete, maybe if she hadn’t done this, maybe if she hadn’t done
      that, then this injury may not have been so bad, but when you have
      healing injuries, and then, you re-injure it more by something else,
      that injury, that day, made all this stuff react.
      ....
      Q.      . . . It’s the new hemorrhages that caused her to die. . . . wasn’t
      the old stuff. Was not the old stuff. So that’s what the problem is.
      ....
      Q.      So what I’m telling you is that this thing was so severe this
      time, on top of all this stuff that was healing, that she didn’t make it. .
      . . I have to make sure that I cover all the bases with you, because this
      is a fact. It’s a fact that she had a significant injury that day. That’s a
      fact. Now, how she got it, I don’t know. And the only person that
      was there was you, Anita, and the baby. The baby ain’t talking. She’s
      not here. She can’t talk anyway.
      ....
      Q.      . . . I’m just giving you an example, and then the baby . . . the
      baby’s dead. She’s dead, and she has significant trauma, but you say
      nothing happened. It don’t add up. Something should add up.
      You’re not communicating something. Maybe you forgot something.
      Maybe you’re not thinking.
      ....
      Q.      That autopsy is science. You can’t refute that. It’s pictures,
      measurement, dah-dah-dah-dah-dah. You not gonna refute that.
      That’s done. That’s science . . . Her death. That body. . . That’s
      evidence. That’s science. That happened. Now, how do you explain
      all that stuff.
      To demonstrate ineffective assistance of counsel for failure to object to the

admission of testimony, appellant must identify the specific objection and prove

that it would have been successful. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim.

App. 2002).     An isolated failure to object does not amount to deficient

representation because whether “counsel provides a defendant adequate assistance

                                          16
is to be judged by the totality of the representation rather than by isolated acts or

omissions.” Vasquez v. State, 819 S.W.2d 932, 938 (Tex. App.—Corpus Christi

1991, pet. ref’d) (finding counsel’s performance was not deficient, given the

totality of the circumstances, though he made the wrong objection to a jury

argument).

      1. Texas Rule of Evidence 403

      At the pretrial hearing, counsel objected to “the manner in which the

questioning was done by reference to outside materials or outside matters,” and to

certain comments by Sergeant Torres as impermissible medical expert testimony.

Additionally, he objected to the admissibility of one of the statements on both

statutory grounds and substantive grounds.

      On appeal, appellant argues that even if these pretrial objections were

properly overruled, trial counsel should have then objected under Rule 403 of the

Texas Rules of Evidence that the probative value of such evidence was outweighed

by the danger of unfair prejudice, confusion of the issues, and misleading of the

jury. See TEX. R. EVID. 403.

      Appellant does not cite supporting authority or identify specifically how the

probative value of any particular statement was outweighed by the dangers of

prejudice, confusion or misleading the jury under Rule 403. See Santellan v. State,

939 S.W.2d 155, 173 (Tex. Crim. App. 1997) (holding that “merely list[ing] these


                                         17
exhibits in a table with a brief phrase describing the content of the photographs . . .

is not enough information for this Court to adequately address appeallant’s

unarticulated Rule 403 complaints. . . . We decline to make appellant’s arguments

for him.”). Appellant likewise fails to articulate how, absent his counsel’s failure

to lodge a Rule 403 objection to these statements, a different outcome would have

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

      2. Hearsay and Opinion

      Next appellant argues that he was deprived of reasonably effective

assistance of counsel because counsel “failed to point out specific improper

hearsay and expert opinion testimony by police during the various statements.” He

acknowledges the State’s position that many of the questions the jury heard posed

by investigators on appellant’s videotaped statements were “contextual.” But he

contends that the statements went beyond acceptable background and contextual

purposes, such that an objection would have been sustained had his counsel made

such an objection. See Langham v. State, 305 S.W.3d 568, 580–82 (Tex. Crim.

App. 2010) (police officer’s testimony about confidential informant’s statements to

him “crossed the line” from any permissible “background” relevance, particularly

because the State relied on statements as evidence during closing arguments).

      Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter


                                          18
asserted.” TEX. R. EVID. 801(d). Thus, an out-of-court statement is admissible if it

is not offered to prove the truth of the matter asserted. See Jones v. State, 843

S.W.2d 487, 499 (Tex. Crim. App. 1992). Opinion testimony by a witness who is

not testifying as an expert may be admissible if it is based upon firsthand sensory

experience. Osbourn v. State, 92 S.W.3d 531, 539 (Tex. Crim. App. 2002). A

witness may testify in the form of opinions and inferences, but this testimony is

limited to inferences and opinions which are (1) “rationally based on the

perception of the witness” and (2) “helpful to a clear understanding of the witness’

testimony or the determination of a fact issue.” TEX. R. EVID. 701; Fairow v. State,

943 S.W.2d 895, 898 (Tex. Crim. App. 1997). An opinion is rationally based upon

perception if a reasonable person could draw the opinion based upon personal

knowledge or experience. Fairow, 943 S.W.2d at 899–900.

      Without offering specific arguments about specific statements, appellant

complains about the police interviewers’ recounting the contents of hospital and

autopsy documents during appellant’s videotaped interviews as being hearsay. We

agree with the State that many of the interviewers’ statements fall within the

bounds of admissible evidence because they were not offered for the truth of the

matter asserted; rather, they were designed to probe appellant into providing more

accurate information, given the disconnect between the severity of Alycia’s

injuries and appellant’s version of events. See Hernandez v. State, No. 01-08-


                                        19
00306-CR, 2009 WL 1331649, at *6–8 (Tex. App.—Houston [1st Dist.] May 14,

2009, pet. ref’d) (mem. op., not designated for publication) (holding that

“statements made by police officers during an interview are not hearsay if they are

offered only to give context to the interviewee’s replies, even if the officers accuse

the interviewee of lying and refer to the statements of unnamed witnesses”).

“Statements offered only to show their effect on the listener are not hearsay.” Id. at

*6.   Viewing the interviews as a whole, we conclude that the interviewers’

statements about the contents of the hospital and autopsy records gave context to

appellant’s answers and reactions.       Appellant has thus not demonstrated that

redaction of these statements would have been required even had his counsel

objected.   We therefore reject the argument that counsel’s failure to object

constituted ineffective assistance of counsel. Ex parte Jimenez, 364 S.W.3d 866,

887 (Tex. Crim. App. 2012) (“The failure to object to proper questions and

admissible testimony . . . is not ineffective assistance.”).

      To the extent that any of the statements went beyond context and amounted

to inadmissible hearsay, we also note that appellant’s argument ignores that the

majority of the complained-of statements about the medical nature of Alycia’s

injuries are cumulative of evidence introduced through the testimony of Lopez, an

assistant medical examiner, and Love, a forensic anthropologist.          Chandler’s

comments during appellant’s videotaped interview describing hemorrhaging in


                                           20
Alycia’s brain and her detached retina are supported by Lopez’s testimony that

Alycia had subscapular hemorrhages indicative of blunt trauma to her head,

bilateral retinal hemorrhages, and a partially detached retina.

      Chandler’s statement that subdural hemorrhaging is not a result of “natural

things that happen to a child, and [does not] happen by falling onto a piano,” and

that “there’s only one way that gets there,” is consistent with Love’s testimony that

Alycia’s injuries were not consistent with what she would expect to see from a

regular fall. Chandler’s statement was also consistent with Lopez’s testimony that

“[w]ith a normal toddler fall from a standing position to the ground, I would not

expect to see that severity of subdural and retinal hemorrhages.” According to

Lopez, it would take a “very severe, forceful blow to her abdomen” to cause the

injuries Alycia had.

      Similarly, Chandler’s description of what happens “right before a child

expires” is consistent with Lopez’s testimony that it would not be unusual for a

child suffering from a brain injury to exhibit seizure-like activity or vomit. While

not directly supported by testimony, Chandler’s comments were sufficiently

aligned with the experts’ testimony; as such, they cannot be held the basis for

harmful error.1    We thus conclude that the medical evidence discussed by


1
      While most of Chandler’s statements were medically accurate and supported by
      other testimony, appellant points out that her explanation of the term “acute” was
      not correct. During the third videotaped interview, Chandler tells appellant that
                                          21
interviewers during appellant’s videotaped statements was cumulative and its

admission was harmless. Appellant cannot show the lack of objection to these

statements constituted ineffective assistance. See Frohne v. State, 928 S.W.2d 570,

576 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d), cert. denied, Frohne v.

Texas, 522 U.S. 812 (1997); Marlow v. State, 886 S.W.2d 314, 318 (Tex. App.—

Houston [1st Dist. 1994, pet. ref’d); see also Jensen v. State, 66 S.W.3d 528, 537

(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (citing Matz v. State, 21 S.W.3d

911, 912–13 (Tex. App.—Fort Worth 2000, pet. ref’d)) (When statements in “a

videotape [are] cumulative of [another witness’s] properly admitted testimony on

the same issue, even if the trial court erred in admitting the videotape, we must

disregard the error because it could not have affected appellant’s substantial

rights.”).

       3. Character Evidence

       Finally, appellant contends that his counsel was ineffective for failing to

object that “[m]uch of the State’s use of [appellant’s] statement[s] was akin to

calling a witness for the purpose of impeaching him with evidence of bad

       “[a]cute means like very, very severe” and that an acute injury results in the
       child’s immediate death. Lopez and Love, however, correctly testified that the
       terms “acute” and “chronic” are used to refer to how recently an injury occurred,
       with an acute injury generally being one that has occurred in the last 48 hours.
       But the autopsy results and medical testimony overwhelmingly show that Alycia’s
       injuries were, in fact, both severe and acute. We are thus confident that
       Chandler’s misstatement that acute means severe could not have impacted the
       jury’s interpretation of the severity of the actual injuries, on which the jury heard
       extensive testimony from multiple witnesses.
                                            22
character.” In support, he cites Hughes v. State, 4 S.W.3d 1 (Tex. Crim. App.

1999). In that case, the State called a witness that it knew would offer no favorable

testimony in support of its case, as demonstrated by the witness’s unfavorable

testimony at two previous hearings. Id. at 4–5. The State then called a different

witness to impeach the first witness with testimony about the first witness’s prior

inconsistent statements. Id. at 4. The Court of Criminal Appeals held that the trial

court’s allowing the State to call a witness under the guise of impeachment to get

in otherwise highly prejudicial, inadmissible evidence was improper under the

circumstances and erroneous under Rule 403 of the Texas Rules of Evidence:

                While these maybe legitimate reasons for calling K.P. to testify
       at appellant’s trial, the State fails to offer this Court any explanation
       for why it expected K.P. to testify differently than she had at the
       pretrial hearing. More importantly, however, an examination of the
       record reveals the State elicited no favorable testimony from K.P. The
       lack of favorable testimony suggests the State was attempting to use
       K.P.’s prior inconsistent statements under the guise of impeachment
       for the primary purpose of placing before the jury evidence which was
       not otherwise admissible. Consequently, we conclude the State had
       little, if any, legitimate purpose in admitting K.P.’s prior inconsistent
       statements to impeach her testimony. Due to the highly prejudicial
       nature of this evidence we conclude any probative value it may have
       had was substantially outweighed by its prejudicial effect.

Id. at 7.

       Appellant insists this case is similar, and argues that because the State

played up during opening statement and closing arguments that his videotaped

interviews reflected that he was “a self-absorbed, self-centered liar,” the jury may


                                          23
have convicted him of murder because of “his alleged character as an insensitive

liar.” Accordingly, appellant contends that his counsel was ineffective for failing

to object that admission of his videotaped interviews “allowed the State to place

him on trial for bad character, in effect impeaching him through his statements

even though he elected not to testify.”

      Hughes is inapposite.     This case does not involve use of an otherwise

inadmissible prior statement to impeach a testifying witness.           Appellant’s

videotaped statements were admissible under the rule permitting an accused’s prior

statement be admitted if the statement was made “freely and voluntarily and

without compulsion or persuasion.” TEX. CODE CRIM. PROC. ANN. art. 38.21

(Vernon 2005). Appellant does not challenge the voluntariness of his statements to

police, and he cites us no authority for excluding an accused’s prior statement from

evidence because the State relies on that prior statement to argue that the accused

had been untruthful and not shown remorse about the accused alleged role in the

charged conduct.

      In addition, as the State points out, the general allegations in appellant’s

brief do not identify which statements amounted to inadmissible character

evidence for purposes of impeachment. See TEX. R. APP. P. 38.1(i). Appellant has

thus failed to demonstrate that his counsel rendered deficient performance by




                                          24
failing to object to admission of his videotaped statements as improper

impeachment and character evidence.

      We overrule appellant’s second point of error.

   D. Totality of the Representation

      In his third point of error, appellant contends that—when viewed in light of

the totality of the representation—trial counsel’s conduct deprived appellant of

reasonable effective assistance of counsel. See Frangias v. State, 392 S.W.3d 642,

653 (Tex. Crim. App. 2013) (“[A] reviewing court must look to the totality of the

representation in gauging the adequacy of counsel’s performance.”). Appellant has

not demonstrated, in light of the totality of the representation and the strength of

the evidence about which appellant has not complained, a reasonable probability

that the jury would have delivered a different verdict.

      We overrule appellant’s third point of error.

                                  CONCLUSION

We affirm the trial court’s judgment.




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                                             Sherry Radack
                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Justice Jennings, concurring.



Publish. TEX. R. APP. P. 47.2(b).




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