                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00285-CR

                                        Jason Clay DOTSON,
                                              Appellant

                                                  v.
                                                 The
                                         The STATE of Texas,
                                               Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR10439
                              Honorable Ron Rangel, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: July 15, 2015

AFFIRMED

           A jury found appellant, Jason Dotson, guilty of aggravated sexual assault, and the trial

court assessed punishment at forty-five years’ confinement. In three issues on appeal, Dotson

asserts he was denied effective assistance of counsel and the trial court erred in admitting the

testimony of a trial witness under Texas Rule of Evidence 612. We affirm.
                                                                                                  04-14-00285-CR


                                               BACKGROUND 1

           The complainant was eighteen years old and living with two roommates, Lisa and Mike, at

the time of the assault. Complainant testified that at around 10:00 p.m. on October 23, 2012, she

decided to go to her mother’s house for a visit. Complainant said her mother lived in a rural area

on Peaceful Lane, and the house sat back from the road. Because complainant did not have her

own car, Mike drove her to her mother’s house. Complainant discovered her mother was not at

home, and, because Mike had already driven away, complainant decided to walk to a nearby

convenience store on Pleasanton Road to call her mother. 2 Complainant described Peaceful Lane

as “very dark.” As she was walking, a truck pulled alongside her and the male driver—later

identified as Dotson—said she “looked like someone else.” Complainant said she laughed and

said “no, I’m not the person that he thought I was.” Dotson then drove away, only to reverse back

to her and ask if she needed a ride, to which she responded “no.” Instead of driving away, Dotson

asked again if she needed a ride, and the complainant told him “no, because I don’t know if he’s

going to hurt me or if something would happen. And then he tried to tell me that nothing would

happen, if he looked like that kind of person.” Complainant eventually decided to accept the offer

of a ride, threw her backpack into the back of Dotson’s truck, and got into the truck on the front

passenger side.

           Complainant testified the convenience store was closed when they arrived, but Dotson told

her he knew about another store. As they drove to the second store, Dotson asked complainant if

she wanted any methamphetamine, and Dotson told her to remove the top from a flashlight from

which she pulled a baggie containing a crystallized substance. Complainant said Dotson’s mood


1
  Although Dotson does not challenge the sufficiency of the evidence on appeal, we set forth the factual background
to the extent it provides a context for his issues on appeal.
2
    On cross-examination, complainant said she wanted to call Mike.

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changed and he asked for either money or “sexual favors” to take her to the second store or to the

house she shared with her roommates. Complainant refused, and the two continued to drive along

Pleasanton Road until Dotson turned onto Neal Road, another rural road. Complainant stated

Dotson then asked twice “Do you think I’m playing,” and he pointed a small silver handgun at her

face. Complainant said Dotson cocked the gun twice. Dotson eventually pulled the truck to the

side of Neal Road, and told complainant to remove her pants and underwear. Dotson then exited

the truck, still pointing the gun at her, and walked around to where complainant was sitting in the

front seat.

        The complainant said Dotson had her spread her legs, pulled her toward him, and vaginally

raped her. He also sucked on one of her breasts. Complainant said she did not consent, she was

scared, and she cried the entire time. Complainant said when Dotson was finished with her, he

returned to his side of the truck and tried to start the truck. When the truck did not start because it

had run out of gas, Dotson and complainant began to walk down Neal Road until they arrived at

Pleasanton Road where they encountered a “hobo,” and Dotson told her to follow the “hobo” and

not him. Complainant said she then ran to a nearby house and asked the man who answered the

door to call the police.

        After the sheriff’s deputies arrived, one of the deputies interviewed complainant and then

took her back to the truck and to another location where Dotson was being detained for a field

identification. Complainant was eventually taken to a hospital where she underwent a physical

examination. Complainant testified she told the nurse her last sexual encounter had been about a

month earlier, but she admitted she lied because she was embarrassed. At trial, complainant

identified the gun as the one Dotson pointed at her and a baggie containing drugs as the one she

saw in the truck.



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       On cross-examination, complainant said she arrived at her mother’s house between 9:00

p.m. and 10:00 p.m. She also said she was surprised the convenience store was closed because it

was only a little before 10:00 p.m.

       After the complainant testified, several Bexar County Sheriff’s deputies and detectives

testified about their involvement after the assault was reported to the police. Deputy Amy Tamayo

testified her patrol duties took her to the Pleasanton Road area where the assault occurred. She

said she was familiar with a convenience store close to the intersection of Peaceful Lane and

Pleasanton Road, and she thought it was usually closed by about 10:30 p.m. Deputy Tamayo was

dispatched to the residence from which complainant’s outcry call was made. Tamayo described

the complainant as more excited than distraught. Deputy Tamayo, along with the complainant,

left the house and located the truck on Neal Road, which Tamayo said was not lit by any lights

and dead-ended at the gate to a ranch. When they arrived at the truck’s location, other officers

were already present. Deputy Tamayo stayed in her patrol car with the complainant until other

deputies came to speak with her, at which point Tamayo went to look into the truck through the

passenger side. She saw a clear plastic baggie containing a crystallized substance. Tamayo then

drove to another location where Dotson was being held, while complainant rode with another

deputy to the same location. Once complainant identified Dotson as the man who sexually

assaulted her, Dotson was placed in custody and transported to the hospital for an examination,

after which he was taken before a magistrate judge. On cross-examination, Deputy Tamayo stated

complainant did not tell her the first convenience store was closed or that she and Dotson were

going to a second convenience store. Tamayo also said complainant told her the first time she saw

the handgun was when Dotson pulled onto Neal Road.

       Deputy Joe Castellano testified next. He stated that, while on patrol, he received a dispatch

for an aggravated sexual assault, which described what the suspect was wearing. While on patrol
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Deputy Castellano saw an individual who matched the description at a gas station putting fuel into

a red fuel can. In addition to fitting the description provided by dispatch, Deputy Castellano said

he also noticed that the man—later identified as Dotson—“gave me this look, Like, Is he looking

at me? Did he catch me[?] The same look that when you store an animal and you spotlight them

and they stay looking at you[.]” Deputy Castellano said that Dotson quickly got into the back seat

of a car, but he did not take the fuel can with him. As the vehicle started to drive away, Castellano

blocked it with his patrol car. Castellano asked Dotson to exit the car, and placed Dotson in the

back of his patrol car. On cross-examination, Deputy Castellano admitted he did not state in his

written report, which he prepared on or near the date of the assault, that Dotson left behind the fuel

can. Castellano admitted Dotson could have taken the fuel can with him, but later removed it from

the car.

           Deputy James Gillespie testified he also was on patrol when he was dispatched to the

location of the gas station where Dotson was being detained by Deputy Castellano. After obtaining

consent from the owner to search the car, Deputy Gillespie found a handgun under the rear seat

floorboard. Gillespie said he saw the fuel can next to the car, which was about thirty yards from

the gas pumps. Detective Teresa Christiansen testified she was called by Deputy Tamayo to the

house from which complainant’s outcry was made. Christiansen described complainant as “a little

shaken up” and “in shock.” Detective Christiansen later went to the location of the truck where

she requested a crime scene investigator, and then she went to the location where Dotson was being

detained. Complainant accompanied Detective Christiansen to this location and identified Dotson

as the man who sexually assaulted her. According to Detective Christiansen, complainant was

“shaking, screaming, very, very upset, [and] emotional” during the field identification. Detective

Christiansen then returned to the location of the truck. Complainant told Christiansen that Dotson

ejaculated on and near the truck, but Christiansen said no ejaculate was found.
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       Detective Rey Salinas, who was a crime scene investigator at the time, testified he went to

the location of both the truck and the convenience store where Dotson was detained. Salinas

photographed the complainant, the truck, and the scene where the truck was parked. Salinas also

took custody of the handgun, which had live ammunition in the chamber. Detective Salinas also

went to the hospital where he took photographs and custody of clothing taken from both

complainant and Dotson. Salinas also stated no biological fluid was found at the scene of the

truck, the grass was not crushed or “bedded down” and no tread marks from Dotson’s boots were

found on the ground in the area where Dotson would have stood outside the passenger door while

he assaulted complainant.

       The next witnesses to testify were the medical professionals and Bexar County forensic

scientists. Emma Caballero testified she conducted the sexual assault nurse examination on the

night complainant was taken to the hospital. Caballero said complainant told her that her last

sexual encounter was one month before the assault. Kindra Clark, a registered nurse, testified she

conducted the forensic examination of Dotson. Jamie Pomykal, a forensic scientist with the Bexar

County Criminal Investigation Laboratory, tested the samples taken from both complainant and

Dotson for foreign material. Catherine Haskins-Miller, also a forensic scientist with the Bexar

County Criminal Investigation Laboratory, conducted the DNA testing on the samples on which

Pomykal found foreign material. Miller testified the genetic profile of the sperm taken from

complainant’s vaginal swab was not consistent with Dotson’s genetic profile; therefore, according

to Miller, the sperm inside complainant belonged to another person. Miller said the unknown

male’s sperm was also found on the tip of Dotson’s penis. Both Pomykal and Miller testified that

sperm will stay inside someone’s body for only about two to three days. Miller thought the sperm

found in complainant’s vagina probably had not been there longer than seventy-two hours.

Dotson’s sperm was not found inside complainant; however, complainant’s genetic profile was
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consistent with the female genetic profile found on the penile swab taken from Dotson. Miller

testified the genetic profile of the saliva found on complainant’s left breast was consistent with

Dotson’s genetic profile; therefore, Dotson was not excluded as the contributor of the saliva.

                        INEFFECTIVE ASSISTANCE OF COUNSEL

       After the jury found him guilty and the trial court assessed punishment, Dotson’s trial

counsel filed a motion for new trial and then withdrew. Dotson obtained new counsel, who

represented him at the hearing on the motion for new trial. Immediately following the hearing, the

trial court denied Dotson’s motion for new trial. In his first and second issues on appeal, Dotson

asserts his federal and state constitutional right to effective assistance of counsel was violated.

       Because Dotson claimed ineffective assistance of counsel as part of his motion for new

trial and he received a hearing on his motion, our ultimate task is to determine whether the trial

court erred in denying that motion. See Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App.

2012); see also Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013) (citing to Riley).

Accordingly, we consider his claim using the abuse of discretion standard of review applicable to

denials of motions for new trial. Riley, 378 S.W.3d at 457. This standard requires us to show great

deference to the trial court, reversing only if the trial court’s decision was clearly erroneous and

arbitrary. Id. An “appellate court must not substitute its own judgment for that of the trial court

and must uphold the trial court’s ruling if it is within the zone of reasonable disagreement.” Id.

As to determinations of fact, we must view the evidence in the light most favorable to the prior

ruling: a trial court abuses its discretion only if no reasonable view of the evidence could support

its holding. Id. at 457-58.

       We review an appellant’s claim of ineffective assistance of counsel under the well-

established standard of review.      See Strickland v. Washington, 466 U.S. 668, 690 (1984);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The appellant must show (1) that
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                                                                                       04-14-00285-CR


counsel’s performance was deficient, i.e., counsel’s assistance fell below an objective standard of

reasonableness; and (2) prejudice, i.e., a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Thompson, 9 S.W.3d

at 812. The fact that another attorney may have pursued a different tactic at trial is insufficient to

prove a claim of ineffective assistance. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App.

2004); Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983).

       Generally, the trial record will not suffice to establish an ineffective assistance of counsel

claim. Thompson, 9 S.W.3d at 813-14. However, in this case, the trial court conducted a hearing

on Dotson’s motion for new trial at which his trial counsel testified. Although counsel offered

insight into his actions, an ineffective-assistance-of-counsel claim must be analyzed from the

perspective of counsel at the time he acted and without the “deleterious effects of hindsight.” Id.

at 813. Nevertheless, we may evaluate the strategic and tactical considerations behind counsel’s

actions based on his testimony. See Depena v. State, 148 S.W.3d 461, 469 (Tex. App.—Corpus

Christi-Edinburg 2004, no pet.) (testimony at new trial hearing “is one of the appropriate methods

of developing an ineffective assistance of counsel claim for appellate review”).

A.     Failure to Investigate

       Dotson first asserts trial counsel was ineffective because he failed to interview the

complainant, he did not investigate the alleged facts of the case that would have revealed

inconsistencies in the complainant’s testimony, and he did not interview potential witnesses.

       Trial counsel has a duty to make an independent investigation into the facts of the case.

Walker v. State, 195 S.W.3d 250, 255 (Tex. App.—San Antonio 2006, no pet.). “A natural

consequence of this notion is that counsel has the responsibility to seek out and interview potential

witnesses.” Diaz v. State, 905 S.W.2d 302, 307 (Tex. App.—Corpus Christi 1995, no pet.). “That

duty cannot be sloughed off to an investigator, nor may counsel rely exclusively upon either the
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prosecutor’s representations of the facts or the veracity of the defendant’s version of the facts.”

Id. at 307-08. The independent investigation must be reasonable or reflect reasonable decisions

that make particular investigations unnecessary. See Strickland, 466 U.S. at 691.                         In any

ineffectiveness case, a particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s

judgments. Wiggins v. Smith, 539 U.S. 510, 521-22 (2003).

        To obtain relief on a failure to investigate claim, Dotson must show what evidence would

have been obtained by the investigation and that it would have helped him. See Ex parte White,

160 S.W.3d 46, 52 (Tex. Crim. App. 2004) (to obtain relief on ineffective assistance claim based

on failure to call a witness “applicant must show that [the witness] had been available to testify

and that his testimony would have been of some benefit to the defense.”); Pinkston v. State, 744

S.W.2d 329, 332 (Tex. App.—Houston [1st Dist.] 1988, no pet.) (“An attorney’s failure to

investigate or present witnesses will be a basis for establishing ineffective assistance of counsel

only where it is shown that the witnesses would have been available and that the presentation of

the evidence would have benefitted appellant.”).

        During the new trial hearing, Dotson said he and complainant took drugs together and the

sex was consensual and “she wanted to have sex because she was mad at her boyfriend because he

cheated on her.” 3 Dotson also said he wanted to testify, but toward the end of trial he changed his

mind because his attorney told him the State would “tear me up on the stand.” Trial counsel also

testified the defensive theory was that the sexual intercourse was consensual. On appeal, Dotson

contends trial counsel should have investigated complainant’s motive for the consensual

intercourse, which, according to Dotson, was that complainant “was getting back at her boyfriend.”


3
  In his brief on appeal, Dotson states he “had a defense—that he had consensual sex with complainant who had no
interest in using the telephone at [the convenience store] but instead was having trouble with her boyfriend Mike.”

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        In addition to complaining that counsel did not interview the complainant, Dotson also

contends that if trial counsel had conducted an investigation, he would have discovered various

inconsistencies in complainant’s testimony regarding whether she walked rather than was driven

by Mike to her mother’s house on Peaceful Lane and whether the convenience store was actually

open when Dotson and complainant drove up to the store. Finally, Dotson contends counsel should

have interviewed Quentin Lewis, who was one of the men in the car when Dotson was detained.

According to an affidavit filed by Dotson’s father, Lewis would have testified that the fuel can was

inside the car. At the new trial hearing, Dotson also stated he told counsel to interview Lewis, but

he did not explain what information would have been gained from such an interview.

        Michelle Hughes Woodward, an investigator retained by appellate counsel, also testified

at the new trial hearing. Woodward testified that she spoke to the complainant who told her she

walked from a friend’s house to her mother’s house, which Woodward estimated to be about a two

hour walk. Woodward also said complainant told her that she had intercourse with Mike the day

before the assault. The manager/cashier of the convenience store, Cathy Bridges, testified that on

Tuesdays (the day of the assault) the store closes at 10:00 p.m. She stated that on the evening of

the assault, various machines in the store were shut down at 9:58 p.m., 10:12 p.m., and 10:13 p.m.

She said that after closing, lights on the canopy over the gas pumps are turned off, the outside

lights around the store stay on, and half of the lights inside the store stay on. Although Bridges

stated she was not subpoenaed to testify, she was not asked nor did she state she would have been

available to testify if called at trial.

        When asked why he did not request an investigator or visit the scene of the assault, trial

counsel replied, “what were we going to find? I mean, seriously, it’s been cold for 18 months.” 4


4
 The assault occurred on the evening of October 23, 2012 and trial commenced almost fifteen months later, on March
25, 2014.

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However, counsel stated he acquired satellite maps of the area and asked Dotson to point out where

everything was located. Counsel agreed he did not subpoena any witnesses, nor did he ask anyone

in his office to interview the complainant or other witnesses. When asked why he did not mention

consent at trial or question the complainant about whether she consented, counsel responded:

               Well, I didn’t want her to repeat saying I was raped and raped again. Part
       of my strategy with her was that I didn’t want to try to beat her up; otherwise, the
       jury would — I was afraid the jury would dislike me or dislike [Dotson] for trying
       to beat up a witness.
       ...
               . . . Look, here’s the things that scare me, okay, and that we’re going to
       have 12 people [on the jury] over here look at you and say, Oh, you [the
       complainant] just met this guy and they just had sex just right then and there and
       that was it? And that was a big fear of mine. Like are 12 people just going to
       believe that?

       When asked about his not interviewing Lewis, counsel said he and Dotson talked about

what the other men in the car would say, but Dotson was adamant about testifying; therefore,

counsel intended to bring certain evidence in through Dotson’s testimony. Counsel stated he was

worried that the other men’s testimony might be inconsistent with Dotson’s testimony and he was

concerned about “any baggage that they bring along to the case.”

       We first note Dotson has not shown that either Bridges or Lewis would have been available

to testify at trial. Further, Lewis did not submit an affidavit or testify at the new trial hearing.

Because the only evidence about what Lewis may have said came from Dotson’s father’s affidavit

and testimony, the trial court was within its right to disbelieve the assertions about whether Lewis

should have been interviewed. See Kober v. State, 988 S.W.2d 230, 234 (Tex. Crim. App. 1999)

(witness’ unwillingness to support an affidavit with live testimony could itself be considered

evidence that the affidavit is untrue).

       We conclude counsel could have reasonably determined further investigation was

unnecessary. Moreover, even if an error in trial strategy was made, it would constitute inadequate


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representation only if counsel’s actions were without any plausible basis. See Wright v. State, 223

S.W.3d 36, 43 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). That is not the case here. The

record shows counsel made a considered decision not to “beat up on” the complainant by asking

her whether sexual intercourse with Dotson was consensual or pressing her on minor

inconsistencies in her testimony. As to these inconsistencies, whether the first convenience store

was closed when Dotson and complainant arrived at the store shortly before 10:00 p.m. was

brought into question by Deputy Tamayo’s testimony that she was familiar with the store and it

usually closed by 10:30 p.m. The evidence also showed the complainant lied about the last time

she had sex. Thus, we cannot conclude counsel was defective for not investigating the case as

Dotson believes he should have. See Scheanette, 144 S.W.3d at 509; Hawkins, 660 S.W.2d at 75.

B.     Failure to Seek Expert Assistance and a Continuance

       Dotson next asserts trial counsel was ineffective because he did not consult a DNA expert

to verify the analysis conducted by the State’s experts, counsel did not request a pharmacologist

to evaluate his claims about the complainant’s drug-use symptoms, and counsel did not request a

continuance even though counsel was appointed only three months before trial commenced. At

the new trial hearing, Dotson claimed he told counsel that he and complainant took drugs together

and then had consensual sex. Dotson’s sister speculated, during her testimony at the new trial

hearing, that if someone had given her brother and complainant a drug test, “they would have

noticed, okay, maybe she is jumpy because she was just doing meth . . . .” However, Dotson fails

to explain how consulting a DNA expert or a pharmacologist could have aided him given his

defensive theory that he had consensual sexual intercourse with the complainant, and given the

fact that there was no testimony at trial that he or complainant took any drugs.

       When counsel was asked to explain his strategy for not retaining an expert, counsel replied

as follows:
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       . . . The strategy was consent. There was medical evidence that he did have sex
       with her. There was DNA that wasn’t his, that was somebody else[’s], that was on
       him and on her.
       ...
               So that showed somebody else’s. So that went along with our defense that
       it was somebody else, that she just got upset, that he didn’t do it, that it was just
       consent.
       ...
               So we didn’t really have a problem — it’s not like they found her — his
       ejaculate. In fact, they didn’t find his ejaculate in her or on the ground where she
       said it was.
       ...
               So it kind of — it kind of fell in line with our defense.

       Counsel also stated he believed the DNA evidence presented by the State helped the

defensive theory that the sex was consensual because it demonstrated the complainant lied about

the date of her last sexual encounter. When asked why he did not request a continuance, counsel

responded that he and Dotson discussed a continuance, but Dotson wanted to go to trial and he

[counsel] felt comfortable going forward because they had “a pretty good defensive theory” and

Dotson was “pretty consistent throughout . . . what he was saying.”

       An attorney’s failure to call a medical expert is irrelevant absent a showing that an expert

witness was available to testify on a particular issue and the expert’s testimony would have

benefitted the appellant. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (defendant

complained counsel was ineffective because no witness testified on his behalf); Brown v. State,

334 S.W.3d 789, 803 (Tex. App.—Tyler 2010, pet. ref’d) (“[T]he failure to request the

appointment of an expert witness is not ineffective assistance in the absence of a showing that the

expert would have testified in a manner that benefitted the defendant.”); Cate v. State, 124 S.W.3d

922, 927 (Tex. App.—Amarillo 2004, pet. ref’d) (same). Nothing in the record here indicates an

expert had been contacted and was willing to testify or what the expert’s testimony would have

been. Therefore, we conclude Dotson has not satisfied his burden to show how any expert

testimony would have helped him. Further, the record reveals counsel had a plausible basis for
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relying on the State’s DNA evidence because he believed the evidence was consistent with their

defensive theory of consensual sex.

C.       Fingerprint Evidence and Admission of Handgun Into Evidence

         Next, Dotson asserts counsel was ineffective because he did not object to the admission of

the handgun when the State offered it into evidence and counsel did not question any witness about

the presence of fingerprints on the weapon. Dotson contends the issue of fingerprints was crucial

because, in part, the jury sent out a note during deliberations asking: (1) “How do we establish

ownership/possession of the firearm” and (2) “were Jason Dotson’s fingerprints found on the

firearm?” 5

         At the new trial hearing, Dotson testified counsel told him he would not move to suppress

the gun because complainant said Dotson had the gun and the gun was found in the car. Dotson

also denied telling counsel that the gun was his. Counsel testified Dotson told him the weapon

was his and, because Dotson intended to talk about the gun when he testified, counsel did not want

Dotson to perjure himself. When confronted with Dotson’s testimony that he did not admit to

owning the gun, counsel said he was “shocked” because Dotson told him where the gun was

located in the truck and that he pulled it from a vent in the truck and put it in his pocket, and he

told counsel he put the gun under the seat in the car where it was later found by the deputy. Counsel

said he did not ask for fingerprint information because he was afraid the evidence would show the

gun belonged to Dotson. Counsel said he did not file a motion to suppress the handgun because,

in part, he believed Dotson would testify and might perjure himself by denying ownership of the

gun, and, in counsel’s opinion, the complainant did a very good job of describing the gun Dotson

pointed at her.


5
 The trial court responded to these questions by informing the jury it had all the law and the court’s charge and all the
evidence, and the jurors should continue with their deliberations.

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       On this record, we conclude Dotson did not satisfy his burden of showing that trial

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

D.     Failure to Request Lesser-Included Offense

       Finally, Dotson asserts counsel was ineffective because he did not request an instruction

on the lesser-included offense of sexual assault. A defendant is entitled to a lesser-included-

offense instruction (1) if the lesser-included offense’s elements are included within the proof

necessary to establish the charged offense’s elements, and (2) if the record includes evidence that

could allow a rational jury to find the defendant guilty of only the lesser-included offense. State

v. Meru, 414 S.W.3d 159, 161-62 (Tex. Crim. App. 2013); Hall v. State, 225 S.W.3d 524, 535-36

(Tex. Crim. App. 2007).      To satisfy the second requirement, a defendant need only show

“[a]nything more than a scintilla of evidence” to support the lesser-included offense. Bignall v.

State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). However, merely undermining the charged

offense is not enough; the defendant must substantiate the requested lesser-included offense with

at least some evidentiary support. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App.

1996). “[T]he evidence must establish the lesser-included offense as a valid, rational alternative

to the charged offense.” Hall, 225 S.W.3d at 536.

       In this case, there is no evidence that would support a lesser-included offense. Although

the handgun was not found in or near Dotson’s truck, the complainant provided a detailed

description of the handgun Dotson pointed at her, and her description matched the handgun found

in the car under Dotson’s seat. Because we conclude Dotson was not entitled to a lesser-included

offense instruction, trial counsel was not ineffective for not requesting one.

E.     Totality of the Circumstances

       Dotson also asserts that counsel’s performance as a whole cumulatively undermined the

outcome of the trial. Dotson relies on Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990),
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a habeas corpus proceeding, in which trial counsel gave detailed testimony about the reasons for

his conduct in representing the defendant at trial. Id. at 392-93. In light of counsel’s testimony,

the Welborn court concluded the numerous deficiencies in representation were not part of a trial

strategy; rather, they were the result of inexperience, lack of familiarity with the State’s case, and

failure to interview any of the State’s witnesses. Id. at 396.

        Here, unlike in Welborn, the record reveals counsel understood the prosecution’s theory

and made certain strategic decisions based upon the defensive theory that sexual intercourse with

the complainant was consensual and based upon his desire to not have Dotson perjure himself if

he testified.

F.      Conclusion

        Because a “reasonable view of the record could support the trial court’s ruling,” Riley, 378

S.W.3d at 457, we cannot say the court abused its discretion in denying Dotson’s motion for new

trial. See id.

                         WITNESS TESTIMONY UNDER RULE 612

        During trial, the State asked Detective Salinas if he wrote a report of his investigation of

the crime scene, and he responded that he did. On cross-examination, Detective Salinas was asked

whether he had any other notes because counsel had “notice[d] that on the roll of film that there

was a — notes that you had written on there.” Salinas explained his report was the only hard copy

because it was standard procedure that everything—in this case certain hand-written notes—be

destroyed once a report is written. Counsel then asked that all of Detective Salinas’ testimony be

stricken pursuant to Texas Rule of Evidence 612. The trial court denied his request. In his final

issue on appeal, Dotson asserts the trial court erred by not striking the testimony of Detective

Salinas pursuant to Rule 612, which provides as follows:



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       (a) Scope. This rule gives an adverse party certain options when a witness uses a
       writing to refresh memory:
               (1) while testifying;
               (2) before testifying, in civil cases, if the court decides that justice requires
       the party to have those options; or
               (3) before testifying, in criminal cases.

       (b) Adverse Party’s Options; Deleting Unrelated Matter. An adverse party is
       entitled to have the writing produced at the hearing, to inspect it, to cross-examine
       the witness about it, and to introduce in evidence any portion that relates to the
       witness’s testimony. If the producing party claims that the writing includes
       unrelated matter, the court must examine the writing in camera, delete any unrelated
       portion, and order that the rest be delivered to the adverse party. Any portion
       deleted over objection must be preserved for the record.

       (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not
       delivered as ordered, the court may issue any appropriate order. But if the
       prosecution does not comply in a criminal case, the court must strike the witness’s
       testimony or--if justice so requires--declare a mistrial.

TEX. R. EVID. 612.

       At trial, defense counsel asked Detective Salinas as follows:

       Q. All right. Let’s talk about the notes that you did make. Where did you write those
       notes?
       A. If I do write the notes, I usually put it on the —
       Q. Well, didn’t you say you made notes?
       A. If I did. That’s what I just said. If I did take notes, it would be on the incident
       case file, which is usually destroyed afterwards.
       Q. Okay. It’s a little pad of paper with notes on it?
       A. The pad of paper belonged to the patrolman.
       Q. It did not belong to you?
       A. (Moving head side to side)
       Q. Which patrolman?
       A. It was either David Ott or Joe Castellano.
       Q. Can we take a — can we pull that up? I don’t have that, but it — if you look at
       it, that is not your notes?
       A. No. I usually take photographs of the patrolman’s notes so I can refer to them
       when I’m making my reports. Just it’s a lot simpler that way.
       Q. Okay. And you said you’ve made notes and you try to transport it from those
       notes to here, right? Those — if you made notes, you said if you made notes.
       A. They wouldn’t make it here. They would be destroyed after the initial report’s
       done. That’s how we do our reports.
       Q. And you take these notes in order to help you here [sic] testify today, right?
       A. That’s what the report’s for.


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       Q. Okay. That’s what the report — but you take the notes for the report for today,
       right?
       A. If they were taken, they’re no longer here, sir.
       Q. Okay. All I want you to do is listen to my question, okay? If you take notes
       down, your notes help you with your report which helps you today, right?
       A. They help me write the report, yes.
       Q. And the report is used to help you on — testify today, right?
       A. Yes, sir.
       Q. And you don’t have any notes today. You can’t bring any notes with you. You
       said they’re destroyed.
       A. I brought my report and I can remember the case just fine.
       Q. Okay. I — just that’s not the issue, not at issue. Were there notes taken for this
       case?
       A. If there were, they’re destroyed.
       Q. Earlier did you testify you did do it or not when I first asked you if you had any
       other notes?
       A. You asked if I used a note pad. I said I did not.
       Q. So we don’t know whether you used notes or not.
       A. Most of the time I do photographs.
       Q. Okay. So you used Officer Castellano’s to help you with this case today, those
       notes there, right?
       A. Possibly. I don’t remember which patrolman had the notes.
       Q. Okay. But who — but you took — you looked at those notes to help you today,
       right?
       A. I took the photograph of the notes, yes.

       The State then asked Salinas to confirm that every paragraph in his report began with the

word “I,” everything he wrote in the report was in conjunction with what he did personally, that

the report indicated all the actions he took at each crime scene, and the report was the only thing

he used to refresh his memory. The State then asked:

       Q. Do you have any independent recollection of whether or not you took any notes
       in this particular case?
       A. If I do — if I did, they would be at a case file at the office in the crime scene
       unit, but most of the time we were told to — once we make a hard copy, we destroy
       the notes.
       Q. And if you made — okay. But you don’t know in this case?
       ...
       A. Don’t know.
       Q. [Did you review any notes] for your testimony here today, any notes that you
       may have made? You said you don’t — I mean, if you don’t remember you made
       any —
       A. No.
       Q. — you didn’t review any for your testimony, did you?
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       A. No. No notes.
       Q. Okay. And in your practice in situations where you do make notes, do you then
       transcribe that information that are [sic] in your notes into a report?
       A. Yes, ma’am.
       Q. Do you make an effort to memorialize everything that you have taken a note of?
       A. Depending on the case, yes, ma’am. If it’s a homicide, we save everything.
       Q. Okay. But regardless, anything that you would have ever made a note on would
       have been memorialized in a report?
       A. In the report. Yes, ma’am.

       Defense counsel then asked:

       Q. You took a picture – in the roll of photos there’s a picture of a note pad, right?
       A. Yes, sir.
       Q. On there were some notes about this case, right?
       A. Where is the photo?
       ...

       After viewing the photographs he had taken, the State asked the following:

       Q. Okay. So with certainty, can you tell this Court whether or not you took any
       personal notes in this particular case?
       A. Not in this case, no.
       Q. Okay. And then did you look at the photo — outside of the Court’s presence
       [sic] action, did you look at the photo of a note pad at the defense [sic] request?
       A. Yes.
       Q. Okay. Had you looked at that photo before to help refresh your memory for
       testifying here in the courtroom today?
       A. No, ma’am.
       Q. Okay. And was that even — was that your note pad [in the photo]?
       A. No, ma’am.
       ...

       Detective Salinas was shown a photograph he took of a note pad on which was written

“Gun cocked twice.” Salinas stated he took the photograph but the note pad was not his, and he

did not know what happened to the note pad after he photographed it. He was then asked:

       Q. But you took that picture?
       A. Yes, sir.
       Q. On there it references facts about today. You took that picture to help you for
       today, right?
       A. I took it to write the report.




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       On appeal, the State argues Rule 612 was not implicated because Salinas testified he did

not use any notes, other than his own report, to refresh his memory. Dotson counters it is irrelevant

that Salinas’ report was the only thing he used to refresh his memory because his report contained

information from notes that were destroyed. We agree with the State. Rule 612 is implicated only

“when a witness uses a writing to refresh [his or her] memory.” TEX. R. EVID. 612. In this case,

the only “writing” Detective Salinas used to refresh his memory was his written report, which was

provided to Dotson’s attorney. We do not construe Rule 612 as applying to other documents that

may have been used to create the “writing,” and we will not add language to the rule requiring the

production of underlying documents.

                                         CONCLUSION

       For the reasons stated above, we overrule Dotson’s issues on appeal and affirm the trial

court’s judgment.

                                                   Marialyn Barnard, Justice

Do not publish




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