                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


  CHARLES LEVI MORROW,                                §
                                                                    No. 08-16-00040-CR
                        Appellant,                    §
                                                                      Appeal from the
  v.                                                  §
                                                                    394th District Court
  THE STATE OF TEXAS,                                 §
                                                                 of Brewster County, Texas
                        Appellee.                     §
                                                                         (TC# 4410)
                                                      §

                                           OPINION

       Charles Levi Morrow was convicted of murder and sentenced to a term of fifty-five years’

imprisonment. In six issues, he contends: (1) the trial court erred when it qualified the jury

without having a transcript of the proceedings taken by a court reporter; (2) the trial court erred in

denying his motion to suppress his recorded interview because he unequivocally invoked his right

to counsel at the beginning of that interview; (3) the trial court erred in failing to include an

instruction on the lesser-included offense of criminally negligent homicide; (4) the evidence was

legally insufficient for the jury to convict him of murder; (5) the trial court erred in failing to

include an instruction on sudden passion during the punishment phase of the trial; and (6) he



                                                  1
received constitutionally ineffective assistance of counsel. We affirm.

                                       BACKGROUND

       This case arises from a murder that took place after a night of heavy drinking and drug use.

The day before Halloween in 2014, sometime after 4:00 p.m., Appellant Charles Morrow arrived

at the American Legion lodge in Terlingua, Texas. There, he began drinking with an acquaintance

he had met at the lodge on a prior occasion, Rhonda Bloom. They were joined later that evening

by Keith McWilliams and the victim, Walter Sands. The four drank and reveled until the lodge

closed, at which time they adjourned to the parking lot and continued drinking there until around

4:30 a.m. They were also smoking marijuana. Sands and McWilliams claimed they had been

out camping before coming to the lodge and had no place to stay, so Bloom offered to let the men

come back to her home and sleep there. Bloom also invited Appellant to stay the night. The four

then drove to Bloom’s home, but instead of sleeping they all continued drinking beer and whiskey

in Bloom’s garage. At some point in the early morning, Bloom went into the kitchen to make

coffee and breakfast. While making breakfast, Bloom heard yelling and what sounded to her like

fighting coming from the garage. She ran to the garage and found McWilliams and Appellant

attacking Sands. Appellant was beating Sands with a two-by-four and McWilliams was striking

him with a pistol. Bloom did not intervene, but later estimated the fight lasted for about ten

minutes.

       The altercation stopped when Sands disentangled himself from the other men and fell

backward onto a compost pallet. Sands screamed, “You stabbed me, Keith, you stabbed me! Why

did you stab me?” He had been stabbed in the sternum and was bleeding profusely from multiple

cuts on his head and body. Bloom helped him outside and demanded the other men explain why


                                                2
they had been fighting. Appellant and McWilliams claimed Sands had started the altercation.

Bloom realized that Sands was seriously injured and urged the others to take him to the hospital.

Due to the way the vehicles had been parked, however, their vehicles were blocked in by

McWilliams’s truck, and McWilliams claimed he could not find his keys. The three carried Sands

to the bathroom where Bloom had an emergency kit containing bandages and a stapler. Bloom

used the stapler to staple shut some of Sands’s head wounds. Sands then vomited on himself.

With the help of Appellant and McWilliams, Bloom undressed Sands and placed him in the

bathtub. Appellant then left the room. While Bloom was cleaning the vomit and blood off

Sands, McWilliams pistol whipped him again. Bloom took Sands to one of the bedrooms and

retrieved fresh clothes and a blanket for him. She then took McWilliams to the garage and forced

him to sit down on a spare cot.

       Bloom returned to the house, intending to retrieve her shoes and somehow get Sands off

the property. When she returned to the garage, she found McWilliams and Appellant beating

Sands. The men were pummeling Sands with their fists. At some point, Appellant grabbed the

two-by-four and began beating him with it, while McWilliams resumed pistol whipping him.

Sands was knocked to the floor, and while on the floor began convulsing. McWilliams walked

over to Sands, raised his pistol, and shot him in the head. Appellant then struck Sands in the head

multiple times with the two-by-four. Appellant turned to the others and stated he needed to cut

off Sands’s finger tips and remove his teeth because Sands was a United States Marine and his

corpse could be identified if found. After saying this, Appellant and McWilliams began stomping

and kicking Sands’s body.

       McWilliams and Appellant eventually stopped and began discussing what to do with the


                                                3
body. With Bloom’s help, they began cleaning up the blood using a mix of water, bleach, and

detergent. Appellant and McWilliams took Sands’s body and put it in the back of the vehicle

Sands had driven to the party, a U-haul truck. The men initially decided they would dump the

corpse in a well on McWilliams’s property. Although Bloom did not want to go with them,

McWilliams stated, “You are in it just as much as we are; you are going with us.” Bloom

accompanied them, and the three drove out to a ravine located in the Terlingua Ranch. With

Bloom serving as lookout, Appellant and McWilliams threw Sands’s body into the ravine and

threw rocks and dirt on top of him to conceal the body. They laughed as they did so, shouting

“trick or treat,” and “happy Halloween.” After covering the body to their satisfaction, the three

left the area. They lost their way multiples times on the drive out of the ranch and even managed

to get a flat tire before finally returning to Bloom’s home.

       Once back at Bloom’s, the three disposed of Sands’s bloody clothing and other evidence

that had been left at the house by burning it in an incinerator on the property. They then attempted

to repair the flat tire with a tire sealant one of them had. While repairing the tire, McWilliams

asked Bloom and Appellant to look for his knife because he had lost it during the fight and did not

find it during their initial cleanup of the property. Bloom and Appellant looked for over an hour

but were unable to locate it. The trio then drove the vehicles to McWilliams’s home, which was

located on a nearby property, and left Sands’s vehicle there.

       After a few days had passed, Sands’s family became concerned because they could not get

in touch with him. They called the local sheriff’s office and reported him missing. A few weeks

passed without progress. Sands’s sister eventually called the local Texas ranger, Jeffrey Vajdos,

and told him that her brother was not answering calls, had missed family events, and had last been


                                                 4
seen in Terlingua. Through his investigation, Vajdos’s discovered that Sands had last been seen

at the lodge with McWilliams. Vajdos went to McWilliams’s home to investigate, and there

discovered Sands’s vehicle still parked in the driveway. He spoke with McWilliams and asked

him whether he knew where Sands was. McWilliams claimed he had not seen Sands for several

weeks. Vajdos asked why Sands’s truck was in his driveway but McWilliams did not have an

answer for this. After continued questioning, McWilliams broke down and confessed to killing

Sands and implicated Bloom and Appellant in the murder. He then led Vajdos to Sands’s body

in the ravine. All three were arrested and charged with murder.

       Appellant filed a pretrial motion to suppress a video interview he gave to Ranger Vajdos

in which he admitted to killing Sands, claiming he had invoked his right to counsel but that the

request was ignored by Vajdos. The trial court denied the motion and the case proceeded to trial.

After deliberations, a jury found Appellant guilty of murder and sentenced him to fifty-five years’

imprisonment and assessed a fine of $10,000. This appeal followed.

                                          DISCUSSION

                                        Jury Qualification

       In his first Issue, Appellant contends the trial court erred when it qualified the jury without

having a transcript of the proceedings taken by a court reporter. Appellant claims this denied him

the opportunity to challenge the trial court’s disqualification of venirepersons on appeal because

there was no record from which to determine whether any challengeable conduct had occurred.

The State counters that jury qualification is not considered part of trial proceedings and thus does

not require a transcript. Alternatively, the State contends Appellant was present during voir dire

and participated by using for-cause challenges during the proceedings, thus rendering any error


                                                 5
harmless.

                                        Standard of Review

       It is the duty of an appellate court to first ensure a claim was properly preserved in the trial

court before addressing the merits of an issue.          Wilson v. State, 311 S.W.3d 452, 473

(Tex.Crim.App. 2010). Error preservation is a systemic requirement on appeal, and if an issue

has not been preserved the court of appeals should not address the merits of that issue. Ford v.

State, 305 S.W.3d 530, 532 (Tex.Crim.App. 2009). To preserve a claim that the court reporter

has failed to record a certain proceeding, the Appellant must object to the failure before the trial

court. Williams v. State, 937 S.W.2d 479, 487 (Tex.Crim.App. 1996)(citing Walthall v. State, 594

S.W.2d 74, 81 (Tex.Crim.App. 1980)).

                                              Analysis

       Here, Appellant complains that the trial court’s failure to transcribe the jury-qualification

proceedings was error because it denied him the opportunity to determine whether the court

improperly dismissed venirepersons sua sponte without finding they were “absolutely

disqualified” under Article 35.19 of the Texas Code of Criminal Procedure. Appellant does not

allege that he objected to this error before the trial court. Although there is no record of the

qualification proceedings, voir dire was transcribed and there is no indication that Appellant ever

objected to the alleged failure during any part of that proceeding. And before seating the jury, the

trial court asked whether either the State or the defense had any objections to the selected jury, and

both the State and Appellant stated, “No, Your Honor.” Because Appellant did not preserve this

issue for our review, the issue is waived. Williams, 937 S.W.2d at 487. Issue One is overruled.

                               Invocation of the Right to Counsel


                                                  6
       In his second issue, Appellant contends the trial court erred in denying his motion to

suppress his recorded interview with Ranger Vajdos because he unequivocally requested an

attorney at the start of the interview. Because Vajdos continued questioning him after this

request, he contends the trial court erred in admitting the video.

                                        Standard of Review

       We review claims of alleged Miranda violations and the admission of statements made

during custodial interrogation under a bifurcated standard of review. Pecina v. State, 361 S.W.3d

68, 78–79 (Tex.Crim.App. 2012). We afford nearly complete deference to the trial court on

questions of historical fact and credibility and review de novo questions of law and mixed

questions of law and fact that do not turn on credibility and demeanor. Guzman v. State, 955

S.W.2d 85, 89 (Tex.Crim.App. 1997).

                                          Applicable Law

       When a suspect invokes his Fifth Amendment right to counsel, law enforcement must

immediately cease interrogation until counsel has been provided or the suspect reinitiates a

dialogue. Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). But merely mentioning the word

“attorney” or “lawyer,” without more, does not automatically invoke the right to counsel.

Etheridge v. State, 903 S.W.2d 1, 18 (Tex.Crim.App. 1994). A suspect must clearly indicate a

desire to speak to an attorney or have an attorney present during questioning. Lucas v. State, 791

S.W.2d 35, 45 (Tex.Crim.App. 1989). An ambiguous or equivocal reference to an attorney does

not require cessation of questioning if a reasonable officer would have only understood that the

suspect might be invoking the right to counsel.         Dinkins v. State, 894 S.W.2d 330, 351

(Tex.Crim.App. 1995). For example, the phrase, “maybe I should talk to a lawyer,” has been held


                                                  7
to be too equivocal to constitute an invocation of the right to counsel. Id., at 352. While it may

be “good police practice for the interviewing officers to clarify whether or not [the suspect]

actually wants an attorney,” officers are not required to ask clarifying questions. Davis v. U.S.,

512 U.S. 452, 461 (1994).

                                             Analysis

       Here, Appellant filed a motion to suppress a video interview he gave in which he implicated

himself in the murder, claiming the video itself shows he unambiguously invoked his right to

counsel. As the video begins, the following exchange occurs between Appellant and Ranger

Vajdos:

       [APPELLANT]:           Can I like have some sort of lawyer present or something?

       [VAJDOS]:              We’re gonna . . . you have that option.

       [APPELLANT]:           Okay.

       [VAJDOS]:              Okay?

       [APPELLANT]:           I mean, I don’t wanna be . . .

       [VADJOS]:              You tell us what you want to do.

       [APPELLANT]:           I don’t want to be noncompliant, I just wanna, you know,
                              cover my ass, whatnot.

       [VADJOS]:              We’ll turn [the camera] off and we can walk right out of here.
                              You’ve been read your rights, you’ve been magistrated and
                              stuff?

       [APPELLANT]:           Yeah.

       [VADJOS]:              Like I said when you walked in, there’s some admin stuff we
                              have to get to, we have to read you your rights, we have to
                              explain to you why you’re here. So if you want a lawyer,
                              dude, we’ll get up and walk right out now and we’ll deal with
                              it that way. You have that right. You’re the one who said you

                                                8
                              wanted to cooperate.

       [APPELLANT]:           Yeah, yeah I want to cooperate. Yeah. Let’s do it.

       [VADJOS]:              You sure?

       [APPELLANT]:           Yeah.

       [VADJOS]:              Okay.

Vadjos then read Appellant his Miranda warnings. After reading the warnings, Vadjos again

reiterated that if Appellant wanted an attorney, that was his right and they would terminate the

interview and leave the room immediately if he requested one. Appellant replied, “[Y]eah, okay,

I’ll just talk with you guys.” He then proceeded to implicate himself in the murder.

       As noted, an invocation of the right to counsel must be unequivocal. Lucas, 791 S.W.2d

at 45. Appellant’s question, “Can I have some sort of lawyer present or something?” like the

phrase, “maybe I should talk to a lawyer,” is not an unequivocal invocation of that right. Dinkins,

894 S.W.2d at 352. The ambiguity of Appellant’s statement alone was sufficient for the trial court

to deny his motion to suppress. See Guzman, 955 S.W.2d 89. Moreover, even though he was

not required to do so, Ranger Vadjos asked clarifying questions and stated on three separate

occasions that if Appellant wanted an attorney, he would immediately terminate the interview and

get him an attorney. In response, Appellant stated he wanted to cooperate and wanted to speak

with Vadjos. Because Appellant did not unequivocally invoke his right to counsel, the trial court

did not err in denying his motion to suppress his recorded statements. Issue Two is overruled.

                            Instruction on Lesser-Included Offense

       In his third issue, Appellant contends the trial court erred in not including an instruction to

the jury on the lesser-included offense of criminally negligent homicide.          He contends the


                                                 9
evidence warranted that instruction, but that the trial court neglected to include it. He did not

object to this alleged error in the trial court.

                                          Standard of Review

        We review claims of jury-charge error by first determining whether an error exists in the

charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). If we determine error exists,

we then analyze that error for harm. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.

2003). The degree of harm required for reversal depends on whether the defendant objected to

the error at trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(op. on reh’g). If

a defendant fails to object to the lack of a jury instruction, or fails to present a proposed jury

instruction, any potential error in the charge is reviewed only for “egregious harm.” Oursbourn

v. State, 259 S.W.3d 159, 174 (Tex.Crim.App. 2008). Egregious harm deprives a defendant of a

fair and impartial trial and occurs where the error “affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affect[s] a defensive theory.”        [Internal quotations

omitted]. Trejo v. State, 313 S.W.3d 870, 871 (Tex.App.—Houston [14th Dist.] 2010, pet.

ref’d)(quoting Olivas v. State, 202 S.W.3d 137, 144 (Tex.Crim.App. 2006)). In reviewing for

egregious harm, we consider: (1) the charge itself; (2) the state of the evidence, including contested

issues and the weight of the probative evidence; (3) the arguments of counsel; and (4) any other

relevant information revealed by the trial record as a whole. Id.

                                            Applicable Law

        We determine whether an appellant was entitled to a charge on a lesser-included offense

by considering all of the evidence introduced at trial, whether produced by the State or the

defendant. Penry v. State, 903 S.W.2d 715, 755 (Tex.Crim.App. 1995)(citing Goodwin v. State,


                                                   10
799 S.W.2d 719, 740 (Tex.Crim.App. 1990)). We utilize a two-pronged test in our review.

Cavazos v. State, 382 S.W.3d 377, 382 (Tex.Crim.App. 2012). First, we determine whether the

proof necessary to establish the charged offense also included the lesser offense. Id., (citing Hall

v. State, 225 S.W.3d 524, 535–36 (Tex.Crim.App. 2007)). If the offense is in fact a lesser-

included offense, we move to the second step of the test and consider “whether there is some

evidence that would permit a rational jury to find that, if the appellant is guilty, he is guilty only

of the lesser offense. Id., at 383.

       A defendant commits the offense of criminally negligent homicide where:                (1) the

defendant’s conduct caused the death of an individual; (2) the defendant should have been aware

that there was a substantial and unjustifiable risk of death from his conduct; and (3) the defendant’s

failure to perceive the risk was a gross deviation from the standard of care an ordinary person

would have exercised under similar circumstances. Montgomery v. State, 369 S.W.3d 188, 192–

93 (Tex.Crim.App. 2012).

                                              Analysis

       Here, Appellant contends that when he hit Sands in the head with the two-by-four, he

“failed to perceive that his conduct was a gross deviation from what an ordinary person would do

in similar circumstances,” and he should have been aware that his actions posed a substantial and

unjustifiable risk of death. The State agrees criminally negligent homicide is a lesser-included

offense of murder. The State contends, however, that there is no evidence in the record that would

allow a rational jury to find Appellant guilty of only criminally negligent homicide.

       In the recorded interview, Appellant stated that after McWilliams shot Sands in the back

of the head, they began burning clothes and evidence. Sands, however, continued to wheeze,


                                                 11
“like snoring before it hits the loud part.” Appellant stated he knew Sands was dying, so he went

into the garage and hit Sands in the head four times with the two-by-for, “you know, just to end

it.” He stated they then finished cleaning everything up, wrapped Sands in plastic, placed him in

the back of the U-Haul, and then continued drinking whiskey and smoking marijuana before going

to sleep. Bloom’s testimony was that Appellant bludgeoned Sands in the head shortly after

McWilliam’s had shot him. She stated Appellant immediately turned to the others and claimed

he needed to cut off Sands’s finger tips and remove his teeth to prevent identification.

       While, Morrow’s actions may be properly characterized as a gross deviation from what an

ordinary person would do under similar circumstances, that does not entitle him to an instruction

on criminally negligent homicide. The evidence shows Appellant acted with the specific intent

to cause Sands’s death and with knowledge that his actions would cause Sands’s death. He has

pointed to no evidence in the record from which a rational jury could find he failed to perceive the

risk that his actions would cause Sands’s death, and we have found none. Accordingly, Appellant

was not entitled to an instruction on criminally negligent homicide. Cavazos, 382 S.W.3d at 383.

Issue Three is overruled.

                                Legal Sufficiency of the Evidence

       In his fourth issue, Appellant contends the evidence was legally insufficient to convict him

of murder, basing this contention entirely on reference to his assertion in the preceding issue that

the evidence showed he was only guilty of criminally negligent homicide.

                                        Standard of Review

       In a legal sufficiency challenge, we view the evidence in the light most favorable to the

verdict and will uphold the conviction if there is sufficient evidence to justify a jury to rationally


                                                 12
find the appellant guilty beyond a reasonable doubt on all essential elements of the offense.

Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The evidence is measured against

the hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App.

2009). A hypothetically correct jury charge lists all elements of the offense, is consistent with the

indictment, and does not unnecessarily increase the prosecution’s burden of proof. Id.

                                          Applicable Law

       A person commits the offense of murder if he: (1) intentionally or knowingly causes the

death of an individual; or (2) intends to cause serious bodily injury and commits an act clearly

dangerous to human life that causes the death of an individual.            TEX.PENAL CODE ANN.

§ 19.02(b).

                                             Analysis

       Under the hypothetically correct jury charge, the jury would need to find beyond a

reasonable doubt that: (1) Appellant; (2) intentionally or knowingly; (3) caused the death of

Sands. As discussed above, Appellant admitted in his confession that he bludgeoned Sands in the

head with a two-by-four. He stated that his reason for doing this was that he knew Sands was

dying from the gunshot wound—a fact he determined from Sands’s labored breathing—and he

wanted to end his suffering. Bloom’s testimony was that Appellant struck Sands in the head

multiple times after McWilliams had shot him, and that after striking him in the head he

immediately told the others they needed to remove Sands’s teeth and finger tips to prevent

identification of his body. From this evidence, a jury could have rationally found Appellant guilty

of murdering Sands beyond a reasonable doubt on all essential elements of the offense. Salinas,

163 S.W.3d at 737. Issue Four is overruled.


                                                 13
                                 Punishment-Phase Instruction

       In his fifth issue, Appellant contends the trial court erred in failing to include a sudden

passion or adequate cause instruction in its charge to the jury during the punishment phase.

                                       Standard of Review

       As noted above, we review claims of jury-charge error by first determining whether an

error exists in the charge. Ngo, 175 S.W.3d at 743. If error exists, we then analyze that error for

harm. Middleton, 125 S.W.3d at 453. If a defendant failed to object to the lack of a jury

instruction, any potential error in the charge is reviewed only for “egregious harm.” Oursbourn,

259 S.W.3d at 174.

                                         Applicable Law

       Section 19.02(d) of the Texas Penal Code provides that at the punishment phase of trial, a

defendant may raise the issue as to whether he caused the victim’s death under the immediate

influence of sudden passion arising from adequate cause. TEX.PENAL CODE ANN. § 19.02(d). To

be entitled to an instruction on sudden passion, there must be some evidence, however weak,

contested, or incredible, that could support a rational jury finding the defendant acted under the

immediate influence of sudden passion arising from an adequate cause. Benavides v. State, 992

S.W.2d 511, 526 (Tex.App.—Houston [1st Dist.] 1999, pet. ref’d); Davila v. State, 952 S.W.2d

872, 877 (Tex.App.—Corpus Christi 1997, pet. ref’d). The Penal Code defines “sudden passion”

and “adequate cause” as follows:

       (1) ‘Adequate cause’ means cause that would commonly produce a degree of anger,
           rage, resentment, or terror in a person of ordinary temper, sufficient to render
           the mind incapable of cool reflection.

       (2) ‘Sudden passion’ means passion directly caused by and arising out of
           provocation by the individual killed or another acting with the person killed

                                                14
           which passion arises at the time of the offense and is not solely the result of
           former provocation.

TEX.PENAL CODE ANN. § 19.02(a).

       Sudden passion is a mitigating circumstance, and if proven by a preponderance of the

evidence, reduces the offense of murder to a second-degree felony. TEX.PENAL CODE ANN.

§ 19.02(d). It is not sufficient for the evidence to merely show the defendant was angry; there

must be evidence the defendant was acting out of sudden passion. Davila, 952 S.W.2d at 877

(citing Owens v. State, 786 S.W.2d 805, 808 (Tex.App.—Fort Worth 1990, pet. ref’d)).

                                             Analysis

       Here, Appellant contends he was in a state of sudden passion because he was afraid of

McWilliams. Having just seen McWilliams shoot Sands in the head, he was terrified he could be

next and therefore was incapable of cool reflection before he smashed in Sands’s head with the

two-by-four. It would appear, as near as we can determine, that Appellant is arguing he was so

caught up in being afraid of McWilliams that he could not reflect on his actions. In support of

this assertion, he points to Bloom’s testimony where she stated, “I was terrified, sir. I just went

along with it. I though they were going to kill me. I thought I was next.” He contends he shared

this state of mind and therefore was in a state of sudden passion when he killed Sands.

       Even assuming his terror of McWilliams sufficed as adequate cause rendering him

incapable of cool reflection, the evidence must also show he was in a state of sudden passion

arising directly out of provocation by Sands that occurred at the time of the offense, and not from

some prior provocation. TEX.PENAL CODE ANN. § 19.02(a). There is nothing in the record that

shows why the second fight between Sands on the one hand and Appellant and McWilliams on the

other began, much less that the victim provoked the Appellant in some way during this second

                                                15
altercation.   The only evidence regarding why Appellant chose to kill Sands comes from

Appellant himself in his recorded interview when he stated he killed Sands to stop his suffering.

He did not claim a provocation caused him to kill Sands. Further, Bloom’s testimony was that

Appellant and McWilliams were already beating Sands when she entered the garage. Sands was

knocked to the floor and while on the floor began convulsing. While he was convulsing on the

floor, McWilliams shot him in the head. Appellant, having seen this, then bludgeoned him in the

head with the two-by-four. Bloom stated Appellant immediately turned to the others and stated

he needed to cut off Sands’s finger tips and remove his teeth to prevent identification. This

testimony does not reflect that Appellant “was in the throes of sudden passion,” but that he was

reflective and aware of his actions. Davila, 952 S.W.2d at 877. Because there was no evidence

that Appellant was acting out of sudden passion, there was no error in the charge. Issue Five is

overruled.

                                 Ineffective Assistance of Counsel

        In his sixth and final issue, Appellant contends he received ineffective assistance of

counsel. He claims his counsel’s performance fell below an objective standard of reasonableness

in three ways: (1) he failed to object that the trial court did not order a transcript made of the jury

qualification procedures; (2) he failed to object that the trial court did not include an instruction on

the lesser included offense of criminally negligent homicide; and (3) he failed to request an

instruction on sudden passion during the punishment phase. Appellant asserts he was prejudiced

by this allegedly deficient performance in that, but for counsel’s errors, he likely would have

received a not-guilty verdict, or alternatively would have received a much shorter sentence.

                                         Standard of Review


                                                  16
       A criminal defendant is entitled to be represented by effective, competent counsel under

the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668,

687 (1984). But this right does not entitle a defendant to errorless or perfect representation as

judged by the benefits of hindsight; rather, it entitles him or her to reasonably effective assistance

of counsel. Cueva v. State, 339 S.W.3d 839, 858 (Tex.App.—Corpus Christi 2011, pet. ref’d)

(quoting Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App. 2003)).

       We review claims for ineffective assistance of counsel under the well-established standard

set by Strickland. We determine whether the appellant has shown by a preponderance of the

evidence that his counsel’s performance fell below an objective standard of reasonableness.

Cavitt v. State, 507 S.W.3d 235, 248 (Tex.App.—Houston [1st Dist.] 2015, pet. ref’d)(citing

Strickland, 466 U.S. at 687-88). That is, the appellant must prove that there was no plausible

professional reason for a specific act or omission by counsel. Bone v. State, 77 S.W.3d 828, 836

(Tex.Crim.App. 2002). If counsel was deficient, we determine whether there is a reasonable

probability that, but for counsel’s error, the outcome of the proceeding would have been different.

Id.; Adekeye v. State, 437 S.W.3d 62, 73 (Tex.App.—Houston [14th Dist.] 2014, pet. ref’d). The

two prongs of the Stickland test do not need to be analyzed in any particular order, and an

appellant’s failure to satisfy either prong defeats a claim of ineffective assistance of counsel.

Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)(citing Strickland, 466 U.S. at 697).

Absent evidence of counsel’s strategic motivations for his actions at trial, we indulge a strong

presumption that counsel rendered adequate assistance and that his actions were a result of a sound

trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Moreover, on

direct appeal the record is usually insufficiently developed to allow an appellate court “to fairly


                                                 17
evaluate the merits of such a serious allegation.” [Internal quotations omitted]. Lopez v. State,

343 S.W.3d 137, 143 (Tex.Crim.App. 2011)(quoting Bone v. State, 77 S.W.3d 828, 833

(Tex.Crim.App. 2002)). As the Court of Criminal Appeals has stated, claims of ineffective

assistance of counsel “are generally not successful on direct appeal and are more appropriately

urged in a hearing on an application for a writ of habeas corpus.” Id.

                                              Analysis

       Appellant’s first allegation of ineffective assistance is based on his trial counsel’s failure

to object to the trial court qualifying the jury outside the presence of the court reporter. This was

harmful, he contends, because it denied him the opportunity to determine whether the trial court

improperly dismissed prospective jurors sua sponte without first determining they were absolutely

disqualified. A trial court should not excuse a juror on its own motion unless that juror is

“absolutely disqualified” as that term is defined in Article 35.19 of the Texas Code of Criminal

Procedure. Pearce v. State, 513 S.W.2d 539, 541 (Tex.Crim.App. 1974). Even if Appellant

could show counsel’s performance was constitutionally deficient for failing to object to not having

a court reporter transcribe a routine jury-qualification proceeding, which Appellant attended, he

has not demonstrated how he was harmed by this failure. Appellant has made no showing that

any juror harbored bias or prejudice against him and did not object to the jury as seated.

Accordingly, having failed to show harm, Appellant has failed to satisfy the second prong of the

Strickland test on his attorney’s alleged failure to object to the absence of a court reporter. Bone,

77 S.W.3d at 836.

       Appellant next contends that he received ineffective assistance of counsel because his

attorney failed to object to the lack of instructions on criminally negligent homicide and sudden


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passion. Because, as we have already held, Appellant was neither entitled to an instruction on

criminally negligent homicide nor an instruction on sudden passion, he cannot show there was no

plausible professional reason for counsel’s failure to object in either instance. Bone, 77 S.W.3d

at 836. Accordingly, Issue Six is overruled.

                                        CONCLUSION

       Having overruled Issues One through Six, the judgment of the trial court is affirmed.



April 5, 2019
                                               YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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