Affirmed and Opinion Filed August 10, 2015




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-01710-CR

                        ERRINGTON CHARLES HATCH, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 4
                                   Dallas County, Texas
                           Trial Court Cause No. F-1159284-K

                             MEMORANDUM OPINION
                           Before Justices Bridges, Francis, and Lang
                                   Opinion by Justice Francis
       After a jury convicted Errington Charles Hatch of aggravated robbery with a deadly

weapon, the trial court assessed punishment at forty years in prison. In fifteen issues, appellant

brings complaints about the jury charge, the affirmative deadly weapon finding, extraneous

offense evidence, the trial court’s partiality, and his counsel’s representation of him. Having

reviewed his complaints, we conclude they are without merit and affirm the trial court’s

judgment.

       On the night of August 28, 2011, Breyshia Thomas was at home with her younger

siblings, twelve-year-old Jamyra and five-year-old Bryan. Breyshia was in her bedroom, Jamyra

was in her bedroom, and Bryan was in the living room. At about 11:15 p.m., Breyshia heard a

“loud boom,” realized someone had kicked in the door to their apartment, and knew they were
being robbed. Three black men entered her room. Two of the men were darker skinned, and the

third was “bright” or light skinned and had a cross tattoo on his face. The light-skinned robber,

ultimately identified as Dominic Edwards, pointed a gun in Breyshia’s face and demanded

money or he would shoot her. The two other robbers went into her sister’s room.

       Edwards pulled Breyshia into the living room so that she could turn off the security

alarm, but Breyshia pretended she did not know the code. Bryan was crying, and Edwards

threatened to shoot both of them if he did not stop. Breyshia and her brother went with Edwards

to their mother’s bedroom, where Breyshia found a safe in the closet. Edwards took the safe and

left the room.

       When Breyshia thought the men had left the house, she and her brother went into the

living room, but the men returned and continued to remove property. The men were talking

among each other, and all of them were carrying property out of the apartment. They took

several electronic items, the safe, and an unopened surround sound system. Although she only

saw Edwards handling a gun, she saw a second gun on the floor of the living room. Breyshia

said she had never seen any of the men before that night.

       Jamyra testified that when she heard the “loud boom,” she hid in her closet. From there,

she watched a short, fat black man with a gun and a mask or hat come into her room and go

through her belongings. This robber, ultimately identified as Michael Lockett, took her laptop,

iPad, and other things and left her room. After that, Jamyra ended up in the living room, where

she saw a tall, darker-skinned man who told them to be quiet and asked for “the dope.” In all,

Jamyra said she saw three robbers: the short, fat black man; the tall, darker-skinned man, and a

light-skinned man with a tattoo on his face. Two had guns: the short, fat black man and the tall,

darker-skinned man. Jamyra said it was clear the men were working together to rob them.




                                               –2–
       Senior Corporal Cathy Blanchard of the Dallas Police Department was on patrol when

she received a call for a burglary in progress. As she headed to the scene, she passed a vehicle

matching the description of the suspect vehicle and turned around. From behind, she could see it

was occupied by three black males as had also been described in the call. Blanchard stopped the

vehicle and identified the occupants: appellant was driving, and Edwards and Lockett were

passengers.   Items taken in the burglary were found inside.           In addition, a revolver,

semiautomatic handgun, and ski mask were found under the rear passenger seat cushion.         The

three men were arrested.

       Hours after the robbery, Breyshia and Jamyra were shown photographic lineups, and

Edwards and Lockett were identified as two of the robbers. Appellant was not identified by

either Breyshia or Jamyra, but his fingerprints were found inside the apartment.

       At trial, appellant was charged as a co-conspirator under the law of parties, and the jury

found him guilty of aggravated robbery with a deadly weapon. Appellant elected to have the

trial court determine his punishment. At the punishment hearing, the State presented evidence of

appellant’s involvement, two months before this offense, in a capital murder/attempted murder

that left one man dead and another injured.

       Terrance Robertson, the surviving witness in the prior offenses, testified he and a friend,

Geoffrey Sowels, were sitting in a truck outside his apartment on June 5, 2011 when two black

men approached them asking for drugs. Robertson said one of the men was slim and light

skinned and the other was heavy set and dark skinned. The dark-skinned man pulled a gun,

reached in the truck, patted Sowels’s pockets, and demanded everything he had. Sowels said he

did not have anything, and the man shot Sowels and told his cohort to “[r]un around there and

shoot him,” referring to Robertson. The light-skinned man shot Robertson in the side, and then

both men fled. Sowels died, and Robertson was hospitalized for a week.

                                               –3–
       During his testimony, Robertson did not identify appellant as one of the assailants, and

after the defense cross-examined him, the trial judge asked some questions to clarify which

robber shot which person:

       THE COURT: So when all this is happening, you saw the guy with the tattoo on
       his face?

       [ROBERTSON]: I didn’t see no guy with a tattoo on his face.

       THE COURT: Which one shoots, the light skinned one, right?

       [ROBERTSON]: The dark skinned one. The heavy set one.

       THE COURT: The dark skinned one.

       [PROSECUTOR]:        Just, let me clear it up.   The dark skinned one shoots
       Geoffrey, correct?

       [ROBERTSON]: Right.

       THE COURT: And the light skinned one shoots you?

       [ROBERTSON]: Shoots me.

       [THE COURT]: All right. So the dark skinned one shoots [Sowels]?

       [ROBERTSON]: Yes.

       [THE COURT]: And the light skinned one shoots him?

       [PROSECUTOR]: Yes.

       [THE COURT]: The dark skinned one is Mr. Lockett?

       [PROSECUTOR]: Judge, at this point there hasn’t been any evidence of any
       identification, but if you are asking me, the State tenders to the Court that Mr.
       Hatch was the dark skinned shooter.

       [THE COURT]: Okay. That’s what I’m trying to figure out, who is the dark
       skinned one. Is it Hatch or Lockett?

       [PROSECUTOR]: It’s Hatch.

After this exchange, Robertson asked to be allowed to show the trial court how the shootings

occurred, and the trial court agreed. Robertson then described how the shootings occurred in

more detail.

                                             –4–
          Following Robertson’s testimony, the investigating detective testified about how he

identified appellant as the dark-skinned shooter in the June 5 offenses.                                          According to the

detective, the bullet recovered from Sowels’s body was fired from one of the guns found in the

back seat of the getaway vehicle in the aggravated robbery at issue here. As a result, the

detective began investigating the three suspects in this offense, including appellant. He learned

appellant’s cell phone number and obtained his cell phone records, which showed appellant

made and received several calls in the area both before and after the shooting. The detective also

learned from a witness that Edwards (the light-skinned suspect) and appellant were at the

location that night before the shootings.

          The State attempted to call the medical examiner to explain the autopsy report on Sowels,

but the trial court refused, saying the court could read the autopsy report. Thereafter, the autopsy

report, firearms report, National Integrated Ballistics Information Network (NIBIN)1 hit reports,

and autopsy photographs were admitted without objection. After hearing the evidence and

argument of counsel, the trial court assessed punishment at forty years in prison and indicated its

decision was impacted by Robertson’s testimony.

          In his first, second, and third issues, appellant contends he is entitled to reversal because

of errors in the jury charge. Specifically, he argues the trial court erred by (1) instructing the jury

on the unindicted offense of conspiracy, (2) failing to include the element of a deadly weapon in

the application paragraph, and (3) denying his request to include the specific acts of party

liability in the application paragraph.

          Appellate review of claims of jury charge error involves a two-step process. Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). We first determine whether error exists in the

     1
        NIBIN is a ballistics database that stores the imaging of bullet and casing signatures and allows law enforcement agencies to compare
bullets and casings found at different crime scenes for connections between crimes. Kathryn E. Carso, Comment, Amending the Illinois
Postconviction Statute to Include Ballistics Testing, 56 DEPAUL L. REV. 695, 701–01 (2007).



                                                                   –5–
charge; if not, our analysis ends. Id. If error occurred, then we analyze that error for harm, with

the standard of review for harm being dependent on whether error was preserved for appeal. See

id. When the defendant fails to object, we will not reverse for jury charge error unless the record

shows “egregious harm” to the defendant. Id.

       Appellant was indicted on a charge of aggravated robbery that alleged he used or

exhibited a deadly weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). The

abstract portion of the charge defined party liability and party liability as a co-conspirator under

penal code section 7.02 and further defined conspiracy under penal code section 15.02. See id.

§§ 7.02(a)(2),(b) (criminal responsibility for the conduct of another) & 15.02(a)(1)(2),(b)

(criminal conspiracy) (West 2011).      The application paragraph then authorized appellant’s

conviction for aggravated robbery on the conspiracy theory of party liability and read as follows:

               Now, therefore, if you believe from the evidence beyond a reasonable
       doubt that, the defendant, ERRINGTON CHARLES HATCH, acting as a party,
       entered into a conspiracy to rob BREYSHIA THOMAS, on or about the 28th day
       of August, A.D., 2011, in DALLAS COUNTY, Texas, while in the course of
       committing theft of personal property, from BREYSHIA THOMAS, by
       intentionally or knowingly, while in the course of committing theft of property
       and with intent to obtain or maintain control of said property, and the defendant,
       ERRINGTON CHARLES HATCH, pursuant to said conspiracy, if any, with the
       intent to promote or assist DOMINIC EDWARDS or MICHAEL LOCKETT in
       the commission of said robbery, BREYSHIA THOMAS was threatened or placed
       in fear of imminent bodily injury or death, and at the time of the robbery, if any,
       was acting or and aiding the said DOMINIC EDWARDS and MICHAEL
       LOCKETT of said robbery of BREYSHIA THOMAS, and was done in
       furtherance of the conspiracy to rob BREYSHIA THOMAS, if any, and was an
       offense that should have been anticipated as a result of the carrying out of the
       conspiracy, then you will find the defendant, ERRINGTON CHARLES HATCH,
       guilty of Aggravated Robbery.

               Unless you so find beyond a reasonable doubt, or if you have a reasonable
       doubt thereof, you will acquit the defendant of Aggravated Robbery and consider
       the lesser offense of Robbery.

       In his first issue, appellant argues the trial court improperly included the definition of

conspiracy in the abstract and application paragraphs of the charge when appellant was not


                                                –6–
indicted on a conspiracy charge. By doing so, he asserts the trial court authorized conviction for

an offense––criminal conspiracy––not alleged in the indictment.          The State counters that

appellant “confuses” an instruction on the separate offense of criminal conspiracy with the

instruction actually given, criminal responsibility under the conspiracy theory of law of parties.

We agree with the State.

        A person may be convicted as a party to an offense if the offense is committed by his

own conduct, by the conduct of another for which he is criminally responsible, or both. See TEX.

PENAL CODE ANN. § 7.01(a) (West 2011). The law of parties, as set out in section 7.02, may be

applied to a case even though no such allegation is contained in the indictment. Montoya v.

State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989).           Under section 7.02(a), a person is

criminally responsible as a party if, acting with intent to promote or assist the commission of the

offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense. TEX. PENAL CODE ANN. § 7.02(a)(2). Section 7.02(b) provides another theory of party

liability as a co-conspirator:

        If, in the attempt to carry out a conspiracy to commit one felony, another felony is
        committed by one of the conspirators, all conspirators are guilty of the felony
        actually committed, though having no intent to commit it, if the offense was
        committed in furtherance of the unlawful purpose and was one that should have
        been anticipated as a result of the carrying out of the conspiracy.

Id. § 7.02(b). The abstract portion of the court’s charge included instructions from both (a) and

(b) of section 7.02.

        At the charge conference, appellant objected that the charge did not contain a definition

of conspiracy and urged the court to include the penal code definition. Although the court

initially balked at appellant’s request, it ultimately included the following section 15.02(a)

definition:

        A person commits criminal conspiracy if, with intent that a felony be committed:


                                                –7–
         (1) he agrees with one or more persons that they or one or more of them engage in
         conduct that would constitute the offense; and

         (2) he or one or more of them performs an overt act in pursuance of the
         agreement.

         An agreement constituting a conspiracy may be inferred form the acts of the
         parties.

         Under the doctrine of invited error, if a party requests or moves the court to make an

erroneous ruling, and the court rules in accordance with the request or motion, the party

responsible for the court’s action cannot take advantage of the error on appeal. Prystash v. State,

3 S.W.3d 522, 531 (Tex. Crim. App. 1999); Willeford v. State, 72 S.W.3d 820, 823–24 (Tex.

App.—Fort Worth 2002, pet. ref’d). Here, appellant urged the court to include in the charge the

penal code definition of conspiracy. Having done so, he is now in no position to complain about

the definition in the charge when he requested it. See Willeford, 72 S.W.3d at 823–24.

         Regardless, the court of criminal appeals addressed a similar complaint in Montoya,

rejecting the argument that including the theory of conspiracy in the court’s charge erroneously

allowed the jury to consider whether the defendant was guilty of the separate offense of criminal

conspiracy under section 15.02. 810 S.W.2d at 165. The court held the charge, which defined

the term “conspiracy,” “merely contained an alternative ‘parties’ charge as provided” in section

7.02(b). Id.; see Murkledove v. State, 437 S.W.3d 17, 22–23 (Tex. App.—Fort Worth 2014, pet.

dism’d, untimely filed). Likewise, in this case, the charge contained a parties charge with the

statutory definition of conspiracy requested by appellant. We overrule the first issue.

         In his second issue, appellant contends the trial court erred when it charged the jury on

aggravated robbery with a deadly weapon but omitted the deadly weapon element from the

application paragraph. He argues he was egregiously harmed by the omission because he was

denied his right to have a jury determine every element of the offense beyond a reasonable

doubt.

                                               –8–
       A jury charge must distinctly set out the law applicable to the case and all the essential

elements of the offense. Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App. 2006). When

an element of an offense has been omitted, there is jury charge error, and it is subject to harm

analysis. Olivas v. State, 202 S.W.3d 137, 143 (Tex. Crim. App. 2006).

       Here, the indictment alleged aggravated robbery with a deadly weapon; thus, use or

exhibition of a deadly weapon was an element of the offense. Because the application paragraph

omitted the deadly weapon element, it was incomplete and constituted error.

       Having so concluded, we next decide whether sufficient harm was caused by the error to

require reversal. Because appellant did not object, we consider whether the error was egregious.

Warner v. State, 245 S.W.3d 458, 461–62 (Tex. Crim. App. 2008). To determine egregious

harm, we examine the entire jury charge, the state of the evidence, including contested issues and

weight of probative evidence, the arguments of counsel, and other relevant information revealed

by the record of the trial as a whole. Id. Errors that result in egregious harm are those that

deprive appellant of a valuable right, affect the very basis of the case, or vitally affect a defensive

theory. Id.

       A jury charge is adequate if it contains an application paragraph specifying all of the

conditions to be met before a conviction under such theory is authorized, contains an application

paragraph authorizing a conviction under conditions specified by other paragraphs of the jury

charge to which the application paragraph necessarily and unambiguously refers, or contains

some logically consistent combination of such paragraphs. Plata v. State, 926 S.W.2d 300, 304

(Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239

(Tex. Crim. App. 1997).

       Looking at the charge as a whole, the abstract portions accurately stated the substantive

law on aggravated robbery, thus informing the jury of what the State had to prove. The first

                                                 –9–
sentence of the charge informed the jury that appellant was charged by indictment with

aggravated robbery.    The abstract portion then defined aggravated robbery as a robbery

committed with the use or exhibition of a deadly weapon. See TEX. PENAL CODE ANN. §

29.03(a)(2). Robbery and deadly weapon were both correctly defined. See id. §§ 29.02(a)(1)

(robbery) & 1.07(a)(17)(A),(B) (deadly weapon). The application paragraph then referred to

aggravated robbery. In the verdict form, the jury found appellant guilty of aggravated robbery

“as charged in the indictment.” We conclude the instructions and verdict form, read together,

communicated to the jury that it had to find appellant was aware a deadly weapon was being

used in the commission of the offense before it could convict him of aggravated robbery.

       As for the state of the evidence, it supported the conclusion that appellant either used or

exhibited a deadly weapon or was aware his co-conspirators did. Jamyra testified she saw two

men with guns, one of whom was tall and dark skinned, and the jury could have concluded that

man was appellant. At the very least, the evidence shows appellant was aware his cohorts were

using guns during the robbery. Breyshia testified three men came into her room, and one of the

men, identified as Edwards, had a gun. From this, a jury could have concluded appellant was

aware a gun was being used to commit the robbery.

       With regard to the jury arguments, defense counsel argued appellant should be acquitted

because the State had not identified any “overt act” by appellant and had shown nothing more

than appellant’s presence at the scene. In response, the State pointed out evidence to show the

three men were working together in the commission of the aggravated robbery. Beginning with

Breyshia’s testimony, the State detailed how the robbers kicked in the door and entered her

room, and the “ringleader” Edwards pointed a gun at her “while the other two are standing right

behind him. Errington Hatch and Michael Lockett.” The State also recalled Jamyra’s testimony

that the tall, dark robber, who jurors could reasonably conclude was appellant, asked for “the

                                              –10–
dope.” The State pointed out that appellant was driving the getaway car, where the stolen

property, ski mask, and guns were found, and also reminded jurors that appellant’s fingerprints

were found in the apartment.

       Finally, we consider other relevant information revealed by the record of the trial as a

whole. The record shows the indictment was read to the jury at the commencement of trial, and

alleged appellant “used and exhibited a deadly weapon, to-wit: A FIREARM.” Because the jury

found appellant guilty as charged in the indictment, it necessarily found the commission of

aggravated robbery also involved the use or exhibition of a deadly weapon.

       Having considered the error in light of the entire jury charge, the state of the evidence,

the arguments of counsel, and other relevant information, we conclude the error did not cause

egregious harm. We overrule the second issue.

       In his third issue, appellant argues the trial court erred by denying his request to set out in

the application paragraph the specific acts upon which party liability was based. He argues the

trial court was required, upon his request, to “specifically include in the charge what [a]ppellant

did ‘to solicit, encourage, direct, aid, or attempt to aid that person in his threatening Breyshia

Thomas.’” We disagree.

       A defendant, upon request, is entitled to a narrowing of the specific statutory modes of

conduct that constitute party liability––whether he solicited, encouraged, directed, aided or

attempted to aid another specified person to commit the offense. Vasquez v. State, 389 S.W.3d

361, 368 (Tex. Crim. App. 2012). Here, the charge alleged appellant “was acting . . . or aiding”

Edwards and Lockett in the robbery of Breyshia; thus, the charge narrowed the specific statutory

mode of conduct that constituted party liability. Appellant has not cited us to any law, nor have

we found any, that requires the trial court to set out the “specific acts” constituting the statutory




                                               –11–
mode of conduct. Because the trial court did not err in denying appellant’s request, we overrule

the third issue.

        In his fourth and fifth issues, appellant argues the trial court erred by entering a deadly

weapon finding in the judgment because it is not supported by an express jury finding.

Additionally, he asserts the trial court did not make a specific finding that appellant, who was

convicted under the law of parties, knew the firearm would be used during the commission of the

crime. He argues that when the law of parties is applied, an affirmative finding of a deadly

weapon may only be entered when the court finds the appellant knew the deadly weapon would

be used in the commission of the offense.

        If the use of a deadly weapon is an element of the charged offense and is alleged in the

indictment, and the jury finds the defendant guilty as alleged in the indictment, then that finding

necessarily supports entry of an affirmative finding in the use or exhibition of a deadly weapon

in the judgment. Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.]

2002, pet. ref’d).

        Here, appellant was charged with aggravated robbery, and the indictment included, as

one of the elements, the allegation that he “used and exhibited a deadly weapon, to-wit: A

FIREARM.” The jury found appellant guilty “as charged in the indictment.” Thus, before the

jury was authorized to find appellant guilty, even as a party, it first had to believe beyond a

reasonable doubt that he knew a deadly weapon would be used in the commission of the offense.

See id.; Hurd v. State, 322 S.W.3d 787, 793 (Tex. App.—Fort Worth 2010, no pet.). By its

verdict, the jury necessarily made the factual finding to support entry of the affirmative finding

of the use or exhibition of a deadly weapon in the judgment. Accordingly, the trial court did not

err by entering the finding in the judgment. We overrule the fourth and fifth issues.




                                               –12–
       In his sixth issue, appellant contends the trial court erred by admitting evidence of the

extraneous offenses of capital murder/attempted murder during the punishment phase because

there was insufficient evidence to show he committed the offenses beyond a reasonable doubt.

       Although appellant couches his issue in terms of sufficiency, the only review possible of

the sufficiency of the proof of an extraneous offense offered at the punishment stage is a review

under an abuse of discretion standard of the trial court’s threshold ruling on admissibility.

Malpica v. State, 108 S.W.3d 374, 379 (Tex. App.—Tyler 2003, pet. ref’d); Garcia v. State, No.

05-05-00926-CR, 2006 WL 1738303, at *3 (Tex. App.—Dallas June 27, 2006, no pet.) (not

designated for publication). If the judge is satisfied there is evidence upon which a rational

factfinder could find beyond a reasonable doubt that the defendant committed the extraneous

misconduct, the defendant must object to the admissibility of the evidence to preserve error.

Malpica, 108 S.W.3d at 379; see Martinez v. State, No. 05-04-01491-CR, 2006 WL 1430060, at

*3 (Tex. App.—Dallas May 25, 2006, no pet.) (not designated for publication). Here, appellant

did not object below that the evidence was insufficient to establish that he committed the offense

and thus inadmissible. Consequently, he has forfeited his complaint. TEX. R. APP. P. 33.1(a);

Malpica, 108 S.W.3d at 379; Martinez, 2006 WL 1430060, at *3. We overrule the sixth issue.

       In his seventh, eighth, and ninth issues, appellant contends the trial judge failed to act as

an impartial tribunal in determining punishment. Specifically, he argues the trial court (1)

improperly considered “extrajudicial information such as the police report, autopsy report,

firearms examiner’s report, and autopsy photos” that were unauthenticated and hearsay, (2)

questioned the complaining witness in an extraneous offense and the prosecutor to obtain an in-

court identification of appellant, and (3) prevented two State’s witnesses––the medical examiner

and firearms examiner––from testifying. Appellant argues these issues together.




                                               –13–
       With respect to the first complaint, the autopsy report, firearms report, and autopsy

photos were all admitted into evidence without objection and therefore were not “extrajudicial

information.” As for the third complaint, the record shows the State indicated it wanted to call

the firearms examiner as a witness but never actually did so. When the trial judge indicated it

did not need to hear from the medical examiner, appellant did not object or indicate he wanted

the opportunity to cross-examine him on his report. The second complaint involves the trial

judge’s action, as set out previously, in attempting to clarify evidence presented to her at

punishment. Appellant did not complain below about any of the conduct at the time nor did he

raise the matters in a motion for new trial. Additionally, appellant has not argued that he was not

required to preserve error.

       Most appellate complaints must be preserved by a timely request for relief at the trial

court level. See TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App.

2013); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds

by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).             Even claims involving

constitutional error, including claims that due process rights have been violated, must be

preserved by objection or are waived. Hull v. State, 67 S.W.2d 215, 218 (Tex. Crim. App.

2002); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). More particularly, this

general rule applies to complaints regarding improper judicial comments, except when the

judicial comments rise to the level of fundamental error. See Unkart, 400 S.W.3d at 99; Jasper

v. State, 61 S.W.3d 413, 420–21 (Tex. Crim. App. 2001) (concluding several types of

comments––such as interjections by judge to correct misstatement or misrepresentation of

previously admitted testimony, comments showing judge’s irritation at defense counsel,

comments related to maintaining control and expediting trial, and comments aimed at clearing up




                                              –14–
points of confusion––do not rise to level of fundamental error and objection required to preserve

error).

          The Texas Court of Criminal Appeal has, however, granted relief on an improper judicial

comment complaint that was not preserved at trial. See Blue v. State, 41 S.W.3d 129 (Tex. Crim.

App.) (plurality op.). There, the trial judge apologized to the jurors about the delay in the case,

telling them the defendant was still deciding whether to accept the State’s offer or go to trial.

The trial judge told the jurors he would “prefer the defendant to plead” because it would give

him “more time to get things done.” Id. at 130. A plurality of the Court decided the judge’s

remarks vitiated the defendant’s presumption of innocence and were fundamental error of

constitutional dimension that required no objection. Id. at 131–32. Since Blue, the Court has

explained it is without “precedential value” as a plurality opinion and may only be considered for

any persuasive value it may have. The complained-of comments and conduct in this case,

however, did not implicate appellant’s “presumption of innocence” and were not made to a jury,

so any “persuasive value” Blue could have is simply not present.

          Here, appellant did not object to any of the comments or conduct by the trial court that he

complains about on appeal. When the trial court asked if there was any reason why appellant

should not be sentenced, defense counsel said, “No, Your Honor.” Because the record does not

demonstrate the unique circumstances that would allow us to review the issues in the absence of

objection, we conclude appellant has failed to preserve these complaints for our review. We

overrule issues seven, eight, and nine.

          In issues ten through fifteen, appellant argues counsel provided ineffective assistance at

punishment by failing to object to evidence of the extraneous offense evidence. Specifically, he

argues counsel failed to object to the admission of unauthenticated, hearsay autopsy, firearms,

and NIBIN hit reports as well as fourteen autopsy photographs, all related to the extraneous

                                                 –15–
capital murder/attempted murder offenses. In addition, he complains counsel did not object

when the trial court barred two State’s witnesses––the medical examiner and the firearms

examiner––from testifying about the information in those reports, which he contends then

prevented counsel from cross-examining the witnesses about the reports. He argues that trial

counsel should have objected to all of the evidence as irrelevant because he was not identified by

the surviving victim as the perpetrator and there was no strategic reason not to object.

       To successfully assert an ineffective assistance of counsel challenge on direct appeal, an

appellant must show that (1) counsel’s representation fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced him; that is, but for the deficiency,

there is a reasonable probability that the result of the proceeding would have been different.

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). An ineffective assistance of

counsel claim must be “firmly founded in the record,” and the record must “affirmatively

demonstrate” the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005). We commonly assume a strategic motive if any can be imagined and find counsel’s

performance deficient only if the conduct was so outrageous that no competent attorney would

have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

       The court of criminal appeals has made clear that, in most cases, a silent record which

provides no explanation for counsel’s actions will not overcome the strong presumption of

reasonable assistance. Rylander, 101 S.W.3d at 110. Further, counsel should ordinarily be

accorded the opportunity to explain his actions before being denounced as ineffective. Menefield

v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Because the reasonableness of trial

counsel’s choices often involve facts that do not appear in the appellate record, an application for

writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel

claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

                                               –16–
       In this case, appellant did not file a motion for new trial addressing the reasons for trial

counsel’s actions and thus has not developed a record showing why counsel failed to object to

the admission of the various evidence. Appellant’s complaints may or may not be grounded in

sound trial strategy, but the record is silent as to trial counsel’s reasons for doing or failing to do

the things of which appellant complains.        Because the record provides no explanation for

counsel’s actions or inactions, appellant has not met his burden of overcoming the strong

presumption of reasonable assistance. We overrule issues ten through fifteen.

       We affirm the trial court’s judgment.



                                                     /Molly Francis/
                                                     MOLLY FRANCIS
Do Not Publish                                       JUSTICE
TEX. R. APP. P. 47.2(b)
131710F.U05




                                                –17–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

ERRINGTON CHARLES HATCH,                          On Appeal from the Criminal District Court
Appellant                                         No. 4, Dallas County, Texas
                                                  Trial Court Cause No. F-1159284-K.
No. 05-13-01710-CR       V.                       Opinion delivered by Justice Francis;
                                                  Justices Bridges and Lang participating.
THE STATE OF TEXAS, Appellee

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered August 10, 2015.




                                           –18–
