Opinion issued February 20, 2014




                                   In The

                           Court of Appeals
                                   For The

                       First District of Texas
                        ————————————
                           NO. 01-12-00121-CR
                        ———————————
                 ROBERT ALVER LANSINK, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



         On Appeal from the County Criminal Court at Law No. 6
                          Harris County, Texas
                      Trial Court Case No. 1647651



                     MEMORANDUM OPINION
       Found guilty by the jury of Class B misdemeanor theft 1 and sentenced by the

trial court,2 Robert Alver Lansink contends that the trial court erred by denying his

motion for new trial that argued that his trial counsel’s failure to cross-examine the

arresting officer about the complainant’s account of the incident was ineffective

assistance. We affirm.

                                     Background

       During the December 2009 Christmas shopping season, appellant went into

a Fry’s Electronics store carrying a Fry’s shopping bag that contained two boxes.

Without removing the boxes from the bag, he obtained a Personal Merchandise

Tag (“PMT”) for the bag from Frances Leal, a store employee, and walked onto

the sales floor. 3

       At some point later, security officer Roderick Farrulla, who was watching

the audio-video department’s high-end merchandise aisle via closed circuit

television surveillance, observed appellant kneel down and remove a Fry’s


1
       See TEX. PENAL CODE ANN. § 31.03(e)(2) (West Supp. 2005) (theft of property
       valued at $50 or more but less than $500).
2
       Appellant was sentenced to 180 days’ confinement and fined $2,000. The court
       suspended the sentence and placed appellant on community supervision for two
       years.
3
       A Personal Merchandise Tag (“PMT”) identifies merchandise/property that a
       customer brings into the store and typically includes the customer’s name, the date
       and time of entry, property identifiers from the product itself (including model
       number, serial number, and color or other description of the property), and the
       name and associate number of the issuing employee.
                                            2
shopping bag from two boxes that were on a display shelf. Farrulla notified Thai

Vang, the store’s loss prevention manager, about what he had witnessed. Vang,

too, had seen appellant crouch down, remove a bag from the boxes, put the bag in

his jacket pocket, and push the boxes further back onto the display shelf. 4 Soon

thereafter, Vang saw a store employee, Timothy DeAngelo, roll up with a shopping

cart with two new speakers in it. After placing several other items in the cart,

appellant removed the Fry’s bag from his jacket and placed it over the two new

speakers.    Appellant then went to the customer service department seeking a

refund. Upon presentation of the PMT, the two unopened boxed speakers that

DeAngelo had given him, and a Fry’s sales receipt for two speakers appellant had

previously purchased from another Fry’s store, his credit card was credited

$173.18. Once outside the store, Vang, Farrulla, and another service manager

identified themselves, handcuffed appellant, and took him to the loss prevention

office.     While there, appellant refused to answer any questions and never

4
      The exact sequence of events is unclear from the record. However, the jury heard
      evidence that appellant entered the sales floor with a shopping bag containing two
      speaker boxes and that Farrulla and Vang subsequently observed him crouched in
      the aisle as he removed a bag from boxes that were on a display shelf and then
      return the boxes to the shelf. Further, Farrulla testified that the following day he
      located the two empty boxes on the shelf in the aisle where he had observed
      appellant. From this evidence, the jury could have reasonably inferred that
      appellant had placed the bag in one of the boxes and put the empty boxes on the
      shelf before Farrulla and Vang first observed him. See Hooper v. State, 214
      S.W.3d 9, 14–15 (Tex. Crim. App. 2007) (noting juries are permitted to make
      reasonable inferences from evidence presented at trial and circumstantial evidence
      is as probative as direct evidence in establishing guilt). Further, we note that
      appellant does not challenge the sufficiency of the evidence on appeal.
                                           3
mentioned bringing merchandise into the store. Appellant did, however, tell Vang

that his time was important and asked him how much it would cost to “fix the

problem” or for the “allegations to be dropped.” The loss prevention officers

subsequently called the Webster Police Department.

      When Webster Police Officer Clyde Pray arrived, appellant was seated and

handcuffed in the loss prevention office.      Officer Pray testified that the loss

prevention employees told him that they had observed appellant remove something

from the shelf, place it into a Fry’s bag, and then seek credit for the item. 5

Appellant declined to give his account of the incident and Pray arrested appellant

based on the information of the store personnel. The following day, Farrulla

retrieved the two empty boxes from the store shelf and put them in the store’s

evidence locker.

      After being found guilty at trial, appellant filed a motion for new trial which

was denied after an evidentiary hearing.

                                        Discussion

      Appellant’s sole issue contends that the trial court erred in denying his

motion for new trial because trial counsel’s failure to cross-examine Officer Pray

about Vang’s account of the incident was ineffective assistance.           The State

contends that appellant failed to meet his burden to prove either that his trial

5
      During cross-examination, Vang denied telling Officer Pray that he saw appellant
      taking merchandise off the shelf and returning it.
                                           4
counsel’s performance was deficient or that he was prejudiced by it because the

facts he alleges his trial counsel failed to elicit in her cross-examination of Officer

Pray were shown by other evidence in the record.

                                  Applicable Law

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

meet the two-pronged test established by the U.S. Supreme Court in Strickland v.

Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984), and adopted

by Texas two years later in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.

App. 1986). Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Under

this test, appellant must show that (1) counsel’s representation fell below an

objective standard of reasonableness, and (2) the deficient performance prejudiced

the defense. Lopez, 343 S.W.3d at 137. Unless appellant can prove both prongs,

trial counsel’s representation will not be found ineffective. Id.

      “[T]o satisfy the first prong, appellant must prove by a preponderance of the

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

reasonableness under the prevailing professional norms.” Id. To prove prejudice,

appellant must show that there is a reasonable probability, or a probability

sufficient to undermine confidence in the outcome, that the result of the proceeding

would have been different. Id. The constitutional right to counsel does not mean

the right to errorless counsel. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim.

                                          5
App. 1983). In determining whether counsel was ineffective, we consider the

totality of the circumstances of the particular case. Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999).

      We must make a “strong presumption that counsel’s conduct [fell] within the

wide range of reasonably professional assistance.” Robertson v. State, 187 S.W.3d

475, 483 (Tex. Crim. App. 2006).        In order for us to find that counsel was

ineffective, counsel’s deficiency must be affirmatively demonstrated in the trial

record. Thompson, 9 S.W.3d at 813.      When such direct evidence is not available,

an appellate court “will assume that counsel had a strategy if any reasonably sound

strategic motivation can be imagined.” Lopez, 343 S.W.3d 143. While a single

error will not typically result in a finding of ineffective assistance of counsel, an

egregious error may satisfy the Strickland prongs on its own. Id.

      The standard of review for the denial of a motion for new trial based on an

ineffective assistance claim is abuse of discretion. Riley v. State, 378 S.W.3d 453,

457 (Tex. Crim. App. 2012). Under that standard, we examine whether the trial

court’s determinations were clearly wrong and outside the zone of reasonable

disagreement. See id. Our review of the evidence at the hearing on a motion for

new trial is made in the light most favorable to the trial court’s ruling, presumes

that all reasonable findings that the trial court could have made against the losing

party were made, and we will reverse only if no reasonable view of the record

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could support the trial court’s ruling. See Rodriguez v. State, 329 S.W.3d 74, 81

(Tex. App.—Houston [14th Dist.] 2010, no pet.).

                                      Analysis

      Appellant’s particular contention is that because the officer’s testimony

regarding the account Vang gave him prior to appellant’s arrest (i.e., that Vang saw

appellant remove two speakers from the shelf and return them for a refund)

differed from Vang’s trial testimony (i.e., he saw appellant remove a Fry’s bag

from the boxes that he had brought into the store, put the bag in his pocket, and

push the boxes back onto a display shelf), the failure to explore the inconsistent

accounts was a deficient performance.

      At the hearing on the motion for new trial, appellant, Officer Pray, and

appellant’s trial counsel, Monique Sparks, testified. Officer Pray stated that his

arrest was based on the information told to him by the store’s loss prevention

officers on the night of the incident, and they never told him that appellant entered

the store with boxes. Asked at the hearing why she did not question the officer on

the employees’ account to him about the boxes, she testified:

      Q:    There wasn’t any strategic reason for you not to ask Officer
      Pray those questions, right?

      A:     It was trial strategy.

      Q:     Okay. I’m sorry, what was the trial strategy?

      A:     I didn’t think he was a helpful witness.
                                          7
                                       ....

      Q:     And you didn’t – you didn’t establish that if something wasn’t
      in [his] report that he wasn’t told it?

      A:    I don’t remember. But I do remember him being nonchalant
      and unhelpful.

      Q:    All right. And so talk to me. Talking about the strategy, what
      was your concern that Officer Pray would do if you started to ask him
      about his practices in writing offense reports?

      A:   Well, it wasn’t his practice about writing offense reports. He
      seemed very uninvolved in this case.

      Appellant argues that Sparks’s decision not to cross-examine Officer Pray

regarding these facts because she did not think him to be a helpful witness is no

strategy at all, or alternatively, not a valid one. We disagree. The scope of trial

counsel’s cross-examination of an adverse witness is inherently a matter of trial

strategy. See Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005)

(“Cross-examination is inherently risky, and a decision not to cross-examine a

witness is often the result of wisdom acquired by experience in the combat of trial.

. . . Furthermore, cross-examination is an art, not a science and it cannot be

adequately judged in hindsight.”). A decision not to cross-examine a witness can

frequently be considered sound trial strategy. See Miniel v. State, 831 S.W.2d 310,

323–24 (Tex. Crim. App. 1992). Here, Sparks’s testimony that she determined that

the officer was not a helpful witness affirmatively demonstrates that counsel’s

                                         8
decision was a strategic one. See Lopez, 343 S.W.3d at 142 (noting that appellate

courts “must not engage in retrospective speculation”). As such, appellant has

failed to satisfy the first prong under Strickland.

      Further, appellant has failed to show that there is a reasonable probability

that the result of the proceeding would have been different. See Lopez, 343

S.W.3d at 137. The facts about which appellant complains trial counsel failed to

cross-examine Officer Pray were shown by other evidence in the record. At trial,

Officer Pray testified that when he arrived at the store, the loss prevention

employees advised him that appellant had removed something from the shelf,

placed it into his bag, and then returned it for a refund. Vang testified that he did

not initially tell Officer Pray that appellant entered the store with boxes because the

store employees did not discover the empty boxes until later and Vang determined

that these were empty boxes appellant had brought to the store. Vang conceded

that his report to the officer was never supplemented to inform him of the boxes.

      On cross-examination, and contrary to Officer Pray’s testimony, Vang

expressly denied telling the officer that he saw appellant remove boxes from the

shelf and return them. Further, during Vang’s cross-examination, trial counsel

asked him, “Because, according to your original story, [appellant] just took boxes

off the shelf and refunded them, then that’s one thing. If he brought in boxes of

speakers and returned them, that’s a whole other thing.” Thus, trial counsel made

                                           9
clear that Vang’s original account to Officer Pray differed from his testimony at

trial. Counsel is not ineffective for failing to present cumulative evidence. See

Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.—Tyler 1996, pet. ref’d) (concluding

that trial counsel’s failure to call witnesses at trial where their testimony would

have been cumulative of other witnesses’ testimony did not constitute ineffective

assistance of counsel claim); see also Meek v. State, No. 14-02-01024-CR, 2003

WL 22232670, at *3 (Tex. App.—Houston [14th Dist.] Sept. 30, 2003, pet. ref’d)

(not designated for publication) (finding ten letters and accompanying contracts

were cumulative evidence where trial counsel had submitted forty prior contracts

and thus would not support defendant’s ineffective assistance claim).

      Based on the record before us, appellant has not rebutted the strong

presumption that his trial counsel’s performance was within the range of

reasonable professional assistance. See Lopez, 343 S.W.3d at 142; Robertson, 187

S.W.3d at 483; Thompson, 9 S.W.3d at 813. Nor has appellant demonstrated that

but for his trial counsel’s alleged deficiency, there is a reasonable probability that

the result of the trial would have been different. See Lopez, 343 S.W.3d at 137.

We conclude that the trial court did not abuse its discretion when it denied

appellant’s motion for new trial. Accordingly, we overrule appellant’s sole issue.




                                         10
                                   Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Jennings, Sharp, and Brown.

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




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