Opinion issued May 2, 2013




                                   In The

                             Court of Appeals
                                  For The

                       First District of Texas
                       ————————————
                             NO. 01-12-00322-CR
                             NO. 01-12-00323-CR
                        ———————————
                   ALFREDO GONZALES, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee




                 On Appeal from the 212th District Court
                         Galveston County, Texas
              Trial Court Case Nos. 10CR0862 and 10CR0863
                            MEMORANDUM OPINION

         Appellant Alfredo Gonzales pleaded guilty to two offenses of aggravated

robbery. 1 A jury assessed appellant’s punishment at 17 years in prison for the first

offense and 12 years in prison for the second offense, with the sentences to be

served concurrently. Presenting the same issue in each appeal, appellant contends

that he received ineffective assistance of counsel during the punishment phase of

trial.

         We affirm the judgment of conviction in each appeal.

                                Background Summary

         On March 16, 2010, Vernon and Sherrie Whitehead, along with their 15-

year-old son Dakota, and his best friend, Reed, were traveling on Interstate 45

through downtown Houston on their way home to Texas City.                 They were

returning from a spring break trip to the Whitehead’s vacation home. Vernon was

driving the family’s pickup truck, which was pulling a trailer loaded with four-

wheelers they had used on vacation. Sherrie was in the passenger seat and Dakota

and Reed were in the backseat.

         Appellant was also on the freeway, driving a stolen pickup truck. Two of

appellant’s friends were in the truck with him. Appellant began tailgating the

Whitehead’s vehicle. Appellant then got in front of the family’s truck and slowed


1
         See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2011).
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down. Appellant also drove alongside the Whitehead’s vehicle. The Whiteheads

were concerned about appellant’s erratic driving and also thought that appellant

was following them.     Eventually, the family no longer saw appellant.      They

believed that appellant had turned off the freeway.

      When they were close to their home, the Whiteheads noticed that appellant

was still behind them. Vernon decided to pull over to ask appellant why he was

following them. Vernon got out of the truck, followed by Dakota, and approached

appellant, who was sitting in the driver’s seat. Appellant and the two other men in

the vehicle tried to pull bandanas up over the bottom portion of their faces.

Vernon saw that appellant had grabbed a rifle from inside the truck.

      Meanwhile, Sherrie had called 9-1-1. Vernon yelled to her that appellant

had a gun. Vernon and Dakota got back in their pickup. Vernon tried to drive

away, but appellant blocked the Whitehead’s vehicle. Appellant and his two

companions approached the Whiteheads, who were trying unsuccessfully to lock

their doors. Appellant was on the driver’s side of the Whitehead’s vehicle pointing

the rifle at Vernon. One of the men got Dakota’s door open. While Dakota was on

the ground, one of the men kicked him in the head. Vernon decided to get out of

the truck. Appellant demanded his keys, but Vernon refused to comply. One of

the men was pulling Sherrie out of the truck. Sherrie was still on the telephone

with 9-1-1 while the events unfolded.

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      A man who lived nearby heard Sherrie’s screams. He came outside with his

gun and fired four warning shots. Appellant and his companions took off in the

stolen truck. The police soon arrived.

      When the police tried to stop him, appellant continued to drive, and a chase

ensued. Several local law enforcement agencies eventually took part in the pursuit.

Appellant refused to stop even after two spike strips were deployed, and he was

driving only on the vehicle’s rims. Appellant hit a civilian vehicle during the

pursuit. He stopped only when the stolen truck became disabled. Appellant then

fled on foot but was apprehended by police and arrested. Appellant gave three

statements to the police over the next few days. He admitted to being the driver of

the truck, to intending to steal the four wheelers, and to fleeing from the police.

Appellant denied that he brandished the gun, maintaining that it was one of his

friends who had the weapon.

      Appellant was indicted for two offenses of aggravated robbery.          One

indictment identified Vernon as the complainant and the other identified Sherrie as

the complainant. Appellant pleaded guilty to each offense, requesting that a jury

determine his punishment.

      The Whiteheads and Reed each testified at the punishment hearing regarding

the events surrounding the robberies and how each had been affected by the

crimes. A number of police officers also testified, describing the high speed

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pursuit of appellant, his arrest, and the investigation of the robberies. The State

also introduced the testimony of a street gang expert, who concluded appellant was

a member of a gang. The expert reached this conclusion based on appellant’s

tattoos and on his association with known gang members.

      The jury also heard evidence that appellant had committed the robberies

while he was on community supervision for the offense of possession of a

controlled substance.     Appellant also had a previous conviction for the

misdemeanor offense of evading arrest.

      Appellant offered the testimony of his sister, his fiancée, and his father.

They each testified that appellant had become more mature in the nearly two years

since he had committed the offenses. They requested that appellant be placed on

community supervision. They asserted that this would permit appellant to be a

father to his two-year-old daughter and to help his father who had suffered a series

of strokes. During closing argument, in addition to emphasizing the testimony of

these witnesses, defense counsel requested the jury to take into consideration that

appellant was only 18 years old when he committed the robberies.

      During its closing argument, the State emphasized the nature of the crimes,

the high speed chase that followed, and the fact that appellant was already on

community supervision for another offense when he committed the crimes. The

State requested the jury to assess punishment at 40 years in prison.

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      The jury assessed appellant’s punishment at 17 years in prison for the

aggravated-robbery offense in which Vernon is the complainant.           Appellant

received a sentence of 12 years in prison for the offense in which Sherrie is

identified as the complainant.    The sentences are to be served concurrently.

Appellant did not file a motion for new trial in either case.       These appeals

followed.

                        Ineffective Assistance of Counsel

      In each appeal, appellant raises one issue, complaining that he received

ineffective assistance of counsel at the punishment hearing.

A.    Applicable Legal Principles

      To prevail on a claim of ineffective assistance of counsel, an appellant must

show the following: (1) counsel’s performance fell below an objective standard of

reasonableness, and (2) a reasonable probability exists that, but for counsel’s

errors, the result would have been different. See Strickland v. Washington, 466

U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068, (1984); Andrews v. State, 159

S.W.3d 98, 101 (Tex. Crim. App. 2005). Failure to make the required showing of

either deficient performance or sufficient prejudice defeats the ineffectiveness

claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009);

Andrews, 159 S.W.3d at 101.




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      Appellant bears the burden of proving by a preponderance of the evidence

that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.

Id. “In making an assessment of effective assistance of counsel, an appellate court

must review the totality of the representation and the circumstances of each case

without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.

App. 2011).

      Demonstrating ineffective assistance of counsel on direct appeal is “a

difficult hurdle to overcome.” Id. Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct fell within a wide range of reasonable representation. Salinas v. State, 163

S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63 (Tex.

Crim. App. 2001). Counsel “should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective.” Menefield v. State, 363

S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Rylander v. State, 101 S.W.3d

107, 111 (Tex. Crim. App. 2003)). If trial counsel is not given that opportunity,

then the 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.

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2001)). In short, “the record must demonstrate that counsel’s performance fell

below an objective standard of reasonableness as a matter of law, and that no

reasonable trial strategy could justify trial counsel’s acts or omissions, regardless

of his or her subjective reasoning.” Lopez, 343 S.W.3d at 143.

B.    Analysis

      Appellant identifies a number of ways that he contends that his counsel’s

performance was deficient. It is significant that appellant did not file a motion for

new trial. Without counsel’s testimony in conjunction with a new trial motion, we

are left to speculate what counsel’s trial strategy was with respect to each

complaint appellant raises against him. Because the record does not offer an

explanation for his actions, we presume that trial counsel made all significant

decisions in the exercise of reasonable professional judgment. Jackson v. State,

877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v. State, 68 S.W.3d 197,

199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Without testimony from

trial counsel, we cannot meaningfully address trial counsel’s strategic reasons for

the actions that appellant alleges constitute ineffective assistance. See Crawford v.

State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)

(citing Davis v. State, 930 S.W.2d 765, 769 (Tex. App.—Houston [1st Dist.] 1996,

pet. ref’d)). Against this backdrop, and with the applicable legal principles in




                                         8
mind, we determine whether appellant has shown, by a preponderance of the

evidence, that his counsel was ineffective.

      Appellant first asserts that counsel’s performance was deficient because he

failed to adequately prepare appellant’s fiancée to testify. His fiancée testified that

she believed that appellant should be given probation. On cross-examination, the

State asked the fiancée whether she knew certain details about the robberies, which

she admitted that she did not know.      Appellant now argues that this shows that

counsel failed to prepare his fiancée to testify.

      The record is silent with respect to what efforts counsel made to prepare the

fiancée to testify. It is possible that counsel did not prepare her to testify, and it is

also possible that the fiancée did not remember the specific details of the offenses

when under the pressure of cross-examination. In the absence of direct evidence to

the contrary, we must strongly presume that counsel’s conduct fell within a wide

range of reasonably professional assistance. See Andrews, 159 S.W.3d at 101; see

also Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (holding

record was insufficient to support ineffective assistance of counsel claim when

record was silent regarding reason counsel failed to call expert witness, failed to

file pre-trial motions, and failed to adequately prepare witnesses).

      Appellant next contends that counsel’s performance was deficient because

he did not object when the State elicited testimony from the fiancée indicating that

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she had been convicted of misdemeanor theft.           Appellant asserts that such

questioning was in violation of an in limine order requiring a party to approach the

bench before eliciting extraneous offense evidence to impeach a witness.

Appellant contends that counsel’s failure to object or to ask for an instruction to

cure once the testimony was elicited amounted to ineffective assistance of counsel.

      Misdemeanor theft is a crime of moral turpitude; thus, it is admissible for

impeachment purposes. See Rodriguez v. State, 129 S.W.3d 551, 558–59 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d); see also TEX. R. EVID. 609(a). Here,

any objection requiring the State to comply with the in limine order would have

ultimately proven to be a futile act because evidence of the fiancée’s conviction

was admissible for impeachment purposes. See Rodriguez, 129 S.W.3d at 558–59.

Counsel is not ineffective for failing to undertake futile actions. See Mooney v.

State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991); see also Ex parte Chandler,

182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably competent counsel

need not perform a useless or futile act[.]”).

      In any event, the record is silent regarding trial counsel’s strategy or reasons

for not objecting to the evidence. Thus, appellant has not rebutted the presumption

that counsel’s performance was reasonable. See State v. Morales, 253 S.W.3d 686,

696–97 (Tex. Crim. App. 2008).




                                          10
      Appellant also contends that his counsel was ineffective because, during

cross-examination of the State’s witnesses, counsel emphasized testimony that was

damaging to the defense while failing to question certain witnesses regarding

weaknesses in his or her testimony. In particular, appellant points out that counsel

asked the Whiteheads the frightening nature of the incident.

      The defense’s strategy was to argue that appellant should receive probation

because he had matured in the two years since the offenses, he was needed by his

family, and he was young when he committed the crimes. It is conceivable that

counsel questioned the Whiteheads about the frightening nature of the crimes to

appear sympathetic to their experience. In any event, the record is not sufficient to

address appellant’s ineffective-assistance-of-counsel claim because it does not

adequately show that counsel’s representation was lacking in tactical and strategic

decision making. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

      Lastly, appellant contends that counsel’s performance was deficient because

he referred to a fact during closing argument that was not supported by evidence.

Specifically, counsel twice mentioned that appellant had gotten one of his tattoos

when he only 13 years old. Appellant contends that defense counsel should have

introduced evidence to support the remark.       Although no evidence had been

introduced to support this fact, the State did not object to the remarks. Counsel




                                         11
made these remarks in conjunction with arguing that appellant had a difficult

childhood and a “rough life” growing up.

      We do not know why counsel did not introduce the evidence cited by

appellant but then chose to mention it during closing statement. Given the silent

record, we presume that counsel had a tactical reason for doing so. Morales, 253

S.W.3d at 696 (“[U]nless 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 . . . .”). We further presume that counsel’s actions and decisions were

reasonable and motivated by sound trial strategy.        See Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994).

      We hold that appellant has not met his burden to satisfy the first Strickland

component by demonstrating that his counsel’s performance fell below an

objective standard of reasonableness. See Strickland, 466 U.S. at 687–88, 694, 104

S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101–02. We overrule appellant’s

sole issue in each appeal.




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                                      Conclusion

      We affirm the judgment in each appeal.




                                            Laura Carter Higley
                                            Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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