Affirmed and Majority and Concurring Opinions filed June 30, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00373-CR

                        AARON GONZALES, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 183rd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1429774

                      MAJORITY OPINION

      Appellant Aaron Gonzales appeals from his conviction for possession of a
controlled substance. Appellant presents two issues: (1) that the trial court erred in
denying his motion for mistrial; and (2) that trial counsel was ineffective. We
affirm.

                      Factual and Procedural Background

      On the morning of May 26, 2014, Jonathan Vacek witnessed appellant
Aaron Gonzales attempting to open the doors of several cars in the Food Town
parking lot in north Houston. After checking eight or nine car doors, appellant
found a car with an unlocked driver’s side door and proceeded to enter the car.
When Vacek saw appellant digging around inside the car, he approached appellant
and asked what he was doing. Appellant exited the vehicle and began rambling
incoherently to Vacek.     An unidentified person called the police to report a
suspicious person and Officer Z. Zopfi responded to the Food Town parking lot.
Zopfi approached appellant and asked him for identification. Zopfi also asked
appellant if he had any drugs or weapons on him. Appellant responded that he did
not. Zopfi then asked if he could search appellant, and appellant gave his consent.
Zopfi searched appellant’s pants pocket. In the right coin pocket of appellant’s
pants, Zopfi found a small bag with a crystalline substance that a field test
identified as methamphetamine, as well as two pills Zopfi identified as Xanax.
Appellant told Zopfi that he did not “do meth” and that the meth was not his, but
that the Xanax pills belonged to him. Appellant was charged with possession of a
controlled substance, methamphetamine, in an amount less than one gram.

      After jury selection, prior to trial on the merits, the trial judge notified
attorneys for the defendant and the State that he had observed appellant speaking to
two jurors in the lunchroom of the courthouse. The trial judge asked the attorneys
if they agreed that a hearing should be held to question the jurors about what
occurred in the lunchroom. Both the defense and the State agreed. The trial judge
questioned appellant about his interaction with the jurors. The following exchange
took place in open court, before the jury returned from its lunch break:

      THE COURT: What were y’all talking about down there?
      THE DEFENDANT: Oh, I was just passing by and I said, “Excuse
      me.” That’s it. We were all in the same line getting a burger, but I
      didn’t say anything else.

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      THE COURT: Now that’s not what I observed. I didn’t observe—
      what I observed is them talking to you and laughing and carrying on.
      That’s what I observed. That’s what bothered me. I didn’t see a
      situation where you just walked by them and said “excuse me.”
      THE DEFENDANT: Yes, sir. I was passing by and said, “Excuse
      me.” That’s it.
      THE COURT: Did you say anything to them about this case?
      THE DEFENDANT: No, I didn’t. No sir.

The trial judge then asked the attorneys if they had any questions for appellant.
One of the prosecutors said that she wanted to know exactly what appellant had
said to the jurors. The trial judge again asked appellant what he said to the jurors
in the lunchroom.

      THE COURT: What did you say, sir?
      THE DEFENDANT: I told them, “Excuse me, I’m trying to get
      through,” because they were in my way, or whatever. I went to go get
      me a soda.
      THE COURT: And that’s all you said?
      THE DEFENDANT: Uh-huh.
Another prosecutor continued the questioning, asking appellant again what
appellant may have said to the jurors to make them laugh.

      MR. WAKEFIELD [prosecutor]: All you said was, “Excuse me”?
      And the Judge had seen you—
      THE DEFENDANT: I said, “Excuse me. How are y’all doing?”
      MR. WAKEFIELD: You said, “Excuse me. How are y’all doing?”
      THE DEFENDANT: Yes.
      MR. WAKEFIELD: So you actually asked them how they were
      doing?
      THE DEFENDANT. Yeah. I didn’t even notice that they were jury
      girls. I didn’t even notice that.
      THE COURT: For the record, they had jury badges on.

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      MR. WAKEFIELD: They did have juror badges on.

At this time, appellant’s trial counsel advised appellant to remain silent. The
prosecutor, Wakefield, responded, “He’s invoking his right to the Fifth.          He
doesn’t want to talk anymore.” The trial judge then asked for the jurors involved
in the incident to be brought out to testify. Before he began questioning the jurors,
the trial judge reiterated what he observed in the lunchroom.

      THE COURT: Just for the record, from what I observed, it appeared
      they were carrying on a conversation. It did not appear it was just a
      passing “excuse me, how are you doing.”
      ...
      THE COURT: I may be wrong about that, but I’m just saying from
      what I observed, it didn’t appear to be that way.
      The first juror questioned gave the following account of her interaction with
appellant in the lunchroom:
      JUROR: He said something to us. I don’t know what he said. I had
      said, “What,” and did this (indicating). And then I had said to her,
      “Do you want to get a bag of chips?” And then that’s when I turned
      away because I knew we weren’t supposed to be talking to him. So I
      said “what” out of surprise that he had even spoke to us.
      THE COURT: Okay. Did he say anything to you about the case or —
      JUROR [1]: No.
      JUROR [2]: No.
      THE COURT: What did he say to you?
      JUROR [1]: I have no clue.
      JUROR [2]: Yeah. Actually, the noise around was pretty loud, so we
      didn’t really hear anything that —

The trial judge again offered his version of the events:

      THE COURT: Okay. What I observed when I turned around, I saw
      him and it appeared to me that y’all were carrying on a conversation
      together and that’s why I admonished him not to be talking to y’all.

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The bailiff then informed the trial judge that there was another male juror who said
that appellant had spoken to him about a drink in the lunchroom. Before the juror
was questioned, appellant interjected to comment on that situation.

      THE DEFENDANT: I was in line and his Coke—I thought it was mine. I
      said, “Is that mine?” He was, like, no, it was his. I thought it was mine.
      ...
      THE DEFENDANT: When we were in line, I was behind him and there was
      a Coke and —
      ...
      THE COURT: Who else did you talk to?
      THE DEFENDANT: Those are the only two. I talked to a couple of people.
      I’m friendly. I mean, I talk to everybody. I didn’t know it was going to be
      like escalated to this.
The juror corroborated this account of the interaction. After the juror’s testimony,
appellant’s trial counsel moved for a mistrial.

      MR. CLAY: At this point, the defense would move for a mistrial for the
      very simple reason that it would appear to the three jury members that were
      brought out here that the defendant, Mr. Gonzales, did violate the Judge’s
      instructions and it could taint his trial going forward.
The court denied the motion.
      Appellant was convicted and sentenced by the jury to seven years in the
Texas Department of Criminal Justice, Institutional Division. Appellant timely
filed this appeal.
                                      Analysis

      Appellant presents two issues on appeal: (1) that the trial court erred in
denying appellant’s motion for mistrial following the hearing on his potential
improper contact with jurors; and (2) that trial counsel was ineffective in not
presenting a defense consistent with counsel’s opening statement. We discuss each


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in turn.

I. Motion for Mistrial
       In his first issue, appellant argues that the trial court erred in denying his
motion for mistrial for two reasons: (1) that the trial judge’s questions and
comments during the hearing regarding contact between jurors and appellant,
displayed impermissible judicial bias; and (2) that appellant’s Fifth Amendment
right to remain silent was infringed by the trial judge’s questioning during the
hearing. As an initial matter, the State argues that the first point of error should not
be considered because it is multifarious. We agree that the first point of error
addresses two distinct legal arguments, but decline to deem the error waived and
proceed with our analysis “in the interest of justice.” Davis v. State, 329 S.W.3d
798, 803 (Tex. Crim. App. 2010) (citing Tex. R. App. P. 38.1)).

       A mistrial is “an extreme remedy for prejudicial events that occur at trial and
should be exceedingly uncommon.” Hudson v. State, 179 S.W.3d 731, 738 (Tex.
App.—Houston [14th Dist.] 2005, no pet.). We review the trial court’s denial of
appellant’s motion for mistrial for abuse of discretion and determine whether the
trial judge’s conduct was “clearly calculated to inflame the minds of the jury and is
of such a character to suggest the impossibility of withdrawing the impression
produced on the minds of the jury.” Id. (internal citations omitted).

A. Judicial-Bias Argument
       Appellant first argues that the trial judge should have granted a mistrial
because the judge’s own conduct “failed to safeguard [a]ppellant’s presumption of
innocence.”    By questioning appellant and expressing disagreement with this
testimony, appellant argues, the trial judge was improperly acting as “an advocate
and an adversary.”      The State again urges that this argument should not be
considered because any error based on improper judicial conduct was not properly
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preserved at trial. Appellant counters that his oral motion for mistrial suggested
with sufficient clarity that it was the judge’s misconduct that could “taint his trial
going forward.”

      Appellant did not, through his motion for mistrial, object on the specific
ground that the trial judge’s comments had shown partiality, nor was it apparent
from his argument what he believed had specifically caused him harm—the
judge’s statements or his own. Ordinarily, this lack of specificity would mean a
failure to properly preserve error and would result in waiver. However, appellant
argues that the trial judge’s comments and questions undermined his presumption
of innocence. We presume that such an attack on the presumption of innocence
would constitute fundamental error, and nevertheless review the trial judge’s
actions. See Latson v. State, 440 S.W.3d 119, 121 (Tex. App.—Houston [14th
Dist.] 2013, no pet.).

      Because the trial court’s comments and questions did not indicate that
appellant was guilty of the charged crime of possession of methamphetamine or
apply to the specific facts of the case, they did not taint appellant’s presumption of
innocence. Id. at 121. Appellant cites no Texas cases in which a court has held
that the trial judge’s conduct with respect to a hearing on a matter unrelated to the
trial on the merits amounted to an attack on the presumption of innocence.
Appellant relies only on Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000)
(plurality op.), for the proposition that the trial court engaged in misconduct.
However, Blue is not binding precedent. Unkart v. State, 400 S.W.3d 94, 101
(Tex. Crim. App. 2013); Latson, 440 S.W.3d at 121. Nor is Blue factually similar.
In Blue, the trial judge disclosed to the jury as part of his instructions and
comments during voir dire that the defendant had been considering a plea
agreement. Blue, 41 S.W.3d at 130. The trial judge also stated that he would

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“prefer the defendant to plead” in order to save time. Id. A plurality of the Court
of Criminal Appeals concluded that this statement tainted the presumption of
innocence because it suggested to the jury that the defendant was likely guilty or
that the judge knew something about the guilt of the defendant that the jury did
not. Id. at 132.

       Unlike in Blue, the trial judge’s statements in this case did not convey any
knowledge or opinion that appellant was guilty of the charged crime—possession
of methamphetamine. While the trial judge’s bias toward his own version of
appellant’s interaction with the jurors—that they were “laughing and carrying
on”—was apparent throughout the hearing, the judge’s comments did not “bear on
the presumption of innocence or vitiate the impartiality of the jury.” Ganther v.
State, 187 S.W.3d 641, 650 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). In
fact, all parties aside from the trial judge—appellant, the State, and the jurors
involved—agreed that appellant’s encounter with the jurors in the lunchroom was
not problematic. Although we consider it ill-advised for the trial judge to have
become a fact witness in this particular proceeding, we hold that the judge’s
actions did not rise to a level that tainted appellant’s presumption of innocence.1

B. Fifth Amendment Right to Remain Silent
       Appellant next argues that, despite not specifically invoking the Fifth
Amendment during the hearing regarding contact between jurors and appellant, the
trial court should have granted a mistrial because the hearing violated his right to

       1
         The Texas Rules of Evidence expressly prohibit a presiding judge from testifying as a
witness at trial. Tex. R. Evid. 605. Where, as here, the presiding judge becomes a fact witness
in a proceeding prior to the trial on the merits, outside the presence of the entire jury panel, that
does not bear on the defendant’s guilt, the law is undeveloped. For the reasons articulated above,
we decline to hold that Rule 605’s express prohibition on judicial testimony encompasses this
unique situation, but we nevertheless emphasize the imprudent nature of the trial judge’s
comments.

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remain silent.
      “In order to preserve an issue for appeal, a timely objection must be made
that states the specific ground of objection, if the specific ground was not apparent
from the context.” Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015).
Appellant orally moved for mistrial because it may have appeared to the three
members of the jury present at the hearing that he did not follow the trial judge’s
instructions regarding contact with the jurors. Appellant did not articulate or
allude to what specific legal error precipitated the alleged taint. While “‘no hyper-
technical or formalistic use of words or phrases’ [was] required in order for an
objection to preserve an error,” there is no indication from the record that appellant
invoked his Fifth Amendment right to remain silent. Clark v. State, 365 S.W.3d
333, 339 (Tex. Crim. App. 2012) (quoting Pena v. State, 285 S.W.3d 459, 464
(Tex. Crim. App. 2009)). In fact, appellant volunteered potentially inculpatory
information—with respect to the collateral matter of improper contact with the
jury—without being directly questioned. Further, the only mention of the Fifth
Amendment right to remain silent came from the prosecution, not from appellant
or his lawyer. It is not apparent from the record that appellant attempted to invoke
the Fifth Amendment either during the hearing or in his post-hearing motion for
mistrial. We conclude that appellant failed to properly object and the error was
forfeited. See Clark, 365 S.W.3d at 339.

      Concluding there is no reversible error on the first ground and no
preservation of error on the second, we overrule appellant’s first issue.

II. Ineffective Assistance of Counsel Claim
      In his second issue, appellant asserts that he received ineffective assistance
of counsel. Appellant specifically argues that trial counsel was ineffective because
the defense that trial counsel presented to the jury did not conform to counsel’s

                                           9
opening statement. In his opening statement, trial counsel asserted that appellant
did not knowingly possess methamphetamine because, at the time of arrest, he was
wearing pants that were not his. Trial counsel said:
      Now, what the evidence is going to show is when he left the next
      morning, he did not put on his clothing. His clothing was filthy from
      being soiled by vomiting on himself the night before. So he put on
      other clothes that were in the house, not clothes that were his. The
      evidence is going to show he took two of his prescription Xanax and
      put them in his pocket and left when his girlfriend asked him to.

Despite making this statement about what the evidence was going to show, trial
counsel did not call appellant or appellant’s girlfriend to testify, nor did he offer
any other evidence to show that the pants did not belong to appellant.

      In order to demonstrate that his trial counsel was constitutionally ineffective,
appellant must show: (1) that counsel’s performance was deficient; and (2) that this
deficient performance prejudiced appellant’s defense. Strickland v. Washington,
466 U.S. 687 (1984). Counsel’s performance is deficient if it falls “below an
objective standard of reasonableness” as determined by “prevailing professional
norms.” Id. at 688. In order to demonstrate prejudice, an appellant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”            Id.   “Any
allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999).

      It is not apparent from the record on appeal why trial counsel chose not to
call any witnesses or put on any other evidence to establish the defensive theory
laid out in his opening statement. Trial counsel should “ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective.”
                                          10
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (internal citation
omitted). “In the majority of instances, the record on direct appeal is simply
underdeveloped and cannot adequately reflect the failings of trial counsel.”
Thompson, 9 S.W.3d at 813–14. Where, as here, the allegation of ineffectiveness
centers on an error of omission rather than a commission that can be plainly found
in the trial record, “collateral attack may be the vehicle by which a thorough and
detailed examination of alleged ineffectiveness may be developed and spread upon
a record.” Id. at 814. Without any detailed examination of trial counsel’s actions,
it is not apparent that trial counsel’s conduct was “so outrageous that no competent
attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Crim. App. 2001). We therefore hold that the record in this case is insufficient to
demonstrate whether trial counsel’s performance was deficient.        We overrule
appellant’s second issue.

                                    Conclusion
      Having overruled both of appellant’s issues, we affirm.




                                      /s/    Marc W. Brown
                                             Justice



Panel consists of Chief Justice Frost and Justices McCally and Brown (Frost, C.J.,
concurring).
Publish — TEX. R. APP. P. 47.2(b).




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