      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00716-CR
                                      NO. 03-12-00717-CR
                                      NO. 03-12-00718-CR



                                   Courtney Trapp, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
                    NOS. CR-05-796, CR-11-0974, & CR-11-0983
             THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Courtney Trapp appeals three trial court judgments:          a judgment

adjudicating him guilty of aggravated assault, a judgment of conviction for aggravated assault, and

a judgment of conviction for family violence assault, repeat offender. See Tex. Code Crim. Proc.

art. 42.12, § 5(b); Tex. Penal Code §§ 22.01, 22.02. In four points of error on appeal, appellant

complains about the admission of hearsay evidence and ineffective assistance of counsel. Finding

no reversible error, we affirm the trial court’s judgments.
                                         BACKGROUND1

                In October 2006, pursuant to a plea bargain, appellant pled guilty and judicially

confessed to the offense of aggravated assault. See Tex. Penal Code § 22.02. In February 2007, in

accordance with the plea agreement, the trial court deferred a finding of guilt and placed appellant

on community supervision for a period of ten years.2 See Tex. Code Crim. Proc. art. 42.12, § 5.

                In November 2011, the State filed a motion to adjudicate alleging several violations

of appellant’s deferred-adjudication community supervision, including the commission of new

criminal offenses. In December 2011, appellant was charged in two indictments with two new

assault offenses: family violence assault, repeat offender, alleged to have been committed against

Angelica Calderon on September 26, 2011, and aggravated assault causing serious bodily injury

alleged to have been committed against Angelica Calderon on October 9, 2011. The assault cases

were consolidated for trial, and the motion to adjudicate was carried forward to trial.

                At trial, the jury heard evidence that on the night of September 26, 2011, appellant

and his girlfriend, Angelica Calderon, were driving with a friend in San Marcos when appellant and

Calderon began arguing. Eventually they pulled up to the friend’s house, and the friend went inside.



       1
         Because the parties are familiar with the facts of these cases, their procedural histories, and
the evidence adduced at trial, we provide only a general overview of the facts and procedural
background of these cases. We provide additional facts as necessary to advise the parties of the
Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.74. The facts recited are
taken from the testimony and other evidence presented at trial.
       2
          The record reflects that at the same proceeding, as part of the same plea bargain, appellant
pled guilty to five additional counts: four counts of aggravated assault and one count of burglary of
a habitation. In accordance with the plea bargain, he was sentenced to five years’ imprisonment on
each of those counts. Also during that proceeding, appellant pled guilty to the offense of retaliation
in a companion case and was sentenced to four years’ imprisonment.

                                                   2
Appellant and Calderon stayed outside, and the argument continued. At some point, Calderon

attempted to walk away. She began knocking on doors in the neighborhood trying to find someone

who could provide her with a phone so she could call for a ride back home to Austin. Appellant

followed Calderon and grabbed her and “body slam[med]” her to the ground. He then dragged her

by the hair scraping her knees on the concrete causing them to bleed.

               The jury also heard evidence that approximately two weeks later, on October 9, 2011,

Calderon was again with appellant, this time at his uncle’s home in San Marcos, when they again

argued. During the altercation, appellant pushed Calderon, spit on her, pulled her hair, and ripped

her clothes. After repeated attempts to leave the room that were hindered by appellant blocking the

door, Calderon eventually escaped the room. Appellant followed, and a confrontation in the kitchen

with knives ensued. Calderon then kicked appellant in his genitals and ran out of the residence. She

ran to a neighbor’s house to seek help. Appellant pursued her and, outside the door she was

knocking on, repeatedly struck Calderon in the face with his fists, continuing to punch her even after

she fell to the ground. Appellant ran off, and the neighbor answered the door. Calderon was

subsequently transported to the hospital where she received treatment for facial injuries, including

a nasal bone fracture and right medial orbital (eye socket) fracture.

               The jury convicted appellant of aggravated assault and family violence assault, repeat

offender, as alleged in the indictments3 and assessed prison time and a fine as punishment for each

offense: 55 years and a $10,000 fine for the aggravated assault, 20 years and a $10,000 fine for the


       3
          As proof of the “repeat offender” portion of the family violence assault indictment,
the State offered evidence of appellant’s prior conviction for family violence assault against his
previous girlfriend.

                                                  3
family violence assault. The trial court pronounced sentence in accordance with the jury’s verdict.

Having carried the State’s motion to adjudicate, the trial court made its findings regarding the alleged

violations of appellant’s community supervision based on the evidence presented during the jury

trial. The court found the allegations to be true, adjudicated appellant guilty, and assessed his

punishment at 20 years in prison and a $10,000 fine. The court ordered the adjudication sentence

to be served consecutive with the two sentences assessed by the jury.4


                                           DISCUSSION

                                         Hearsay Evidence

                Dustin Slaughter, a patrol officer with the San Marcos police department, was

dispatched in the early morning hours of September 26, 2011, on a “delayed assault” call and

responded to the scene where Calderon was found. During his testimony, the State offered a video

recording from the dash-cam of the patrol car of the first responding officer showing Calderon

talking to the police officers about the assault.5 Also during his testimony, the State offered the

statement Calderon wrote out on the hood of the patrol car at the scene. In his first point of error,

       4
           During the oral pronouncement of sentence, the trial judge initially ordered the two
sentences assessed by the jury to be served consecutively. However, after the jury was discharged,
the State indicated that because the cases had been joined for trial and prosecuted in the same
criminal action, cumulative sentences were not authorized. See Tex. Penal Code §§ 3.01(2), 3.02(a),
(b), 3.03(a). The judge expressed uncertainty about the court’s ability to cumulate the sentences but
stated, “Well, if we can’t do it, we can’t do it.” The written judgments of conviction reflect that the
two sentences assessed by the jury are to be served concurrently with each other but consecutive to
the adjudication sentence.
       5
          Officer Slaughter testified that another officer located Calderon standing in the middle of
the road about a half block away from where Officer Slaughter was. Though the video was not from
his patrol car, he immediately went to their location and was present for the conversation recorded
on the video which takes place outside the viewing frame of the camera.

                                                   4
appellant argues that the trial court erred in admitting Calderon’s recorded statement from the

dash-cam video recording (State’s Exhibit #18) and Calderon’s written statement (State’s Exhibit

#19) because they were inadmissible hearsay. Specifically, he asserts that the State failed to

establish the predicate demonstrating that either statement was an excited utterance.

               Preservation of error is a systemic requirement on appeal. Blackshear v. State,

385 S.W.3d 589, 590 (Tex. Crim. App. 2012). A reviewing court should not address the merits of

an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473–74 (Tex.

Crim. App. 2010). To preserve a complaint for appellate review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds for the desired

ruling if they are not apparent from the context. Tex. R. App. P. 33.1(a)(1); Clark v. State,

365 S.W.3d 333, 339 (Tex. Crim. App. 2012). At trial, when the State offered the dash-cam video

recording of Calderon’s statement, appellant’s counsel briefly questioned the officer about whether

the recording had been altered or modified. After the officer indicated it had not, appellant’s counsel

asserted that he had “[n]o objection” to the admission of the video. Consequently, appellant’s

complaint about the admission of the dash-cam recording, State’s Exhibit #18, has not been

preserved for appellate review.6




       6
         In his brief, appellant asserts that after the dash-cam recording was admitted but before it
was published to the jury, he objected to the exhibit as hearsay “which the trial court treated as a
timely objection.” However, the record reflects that after the recording was admitted the State
attempted to publish it to the jury but encountered technical difficulties. As those were addressed,
the prosecutor began questioning Officer Slaughter about the content of the video. Appellant
objected to the officer’s testimony about what Calderon told him as hearsay. He did not object to
the video recording itself. Appellant does not complain about the admission of the officer’s
testimony on appeal.

                                                  5
                Officer Slaughter testified that on the morning of September 26, 2011, at

approximately 4:02, he was dispatched for a “delayed assault” call where a female was being

followed by her attacker.7 When Officer Slaughter arrived on the scene, he encountered Calderon

speaking to another responding officer. He testified that Calderon was “scared, crying” and “her hair

[was] in disarray.” She had abrasions on both of her knees that were visibly bleeding and “look[ed]

to be in pain.” Further, the officer indicated that Calderon was “fearful” and “looking around [for

appellant].” Officer Slaughter agreed that Calderon was “still under the stress and the excitement

of the event that just occurred to her” when she told the police officers about what had happened.

Officer Slaughter also testified about the circumstances under which Calderon made her written

statement shortly after his arrival. He indicated that they were still on the scene, the medics had just

finished their assessment of Calderon’s injuries, and she wrote out the statement on the hood of the

patrol car. He testified that she began writing the statement at 4:30 a.m. and reported that she was

“still upset, nervous.” She had “calmed down somewhat” but it was “obvious that she was still

fearful.” He agreed that she was “still under the effects of the emotion and the excitement from what

had just happened to her” when she wrote out the statement.

                Appellant objected to the admission of Calderon’s written statement, State’s

Exhibit #19, as hearsay. The trial court admitted it under the excited-utterance exception to the

hearsay exclusion. See Tex. R. Evid. 803(2). This exception allows the admission of out-of-court

statements relating to a startling event or condition made while the declarant is under the stress of




       7
         The officer explained that a “delayed assault” call refers to an assault which has already
occurred, was not currently ongoing, and where the parties were possibly separated.

                                                   6
excitement caused by the event or condition. See id. Appellant contends that the trial court erred

in admitting the written statement as an excited utterance because the court lacked a sufficient basis

from which to determine that the State “made a predicate showing that [Calderon] was incapable of

reflection.” We disagree.

               For the excited-utterance exception to apply, (1) the exciting event must be startling

enough to evoke a truly spontaneous reaction from the declarant, (2) the reaction to the startling

event must be quick enough to avoid the possibility of fabrication, and (3) the resulting statement

should be sufficiently “related to” the startling event to ensure the reliability and trustworthiness of

that statement. McCarty v. State, 257 S.W.3d 238, 241–42 (Tex. Crim. App. 2008). Here,

Calderon’s written statement was undoubtedly related to a startling event—Calderon had just been

body slammed to the ground, dragged by her hair, and sustained injuries to her knees. The statement

was made approximately 30 minutes after the assault occurred (within 20 minutes of when officers

made contact with her); therefore, a relatively short amount of time had elapsed. Finally, the record

reflects that Calderon was still under the stress of excitement caused by the assault and dominated

by the emotions of the event, particularly fear and pain. Indeed, after describing Caldron’s distraught

demeanor upon his arrival, Officer Slaughter testified that Calderon was “obviously still fearful” at

the time she wrote the statement. Based on these factors, the trial court could conclude that the

statement qualified as an excited utterance. See Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim.

App. 2003) (statements made 20 hours after incident by individual who was “scared to death” and

“tired” were excited utterances); Reyes v. State, 48 S.W.3d 917, 920 (Tex. App.—Fort Worth 2001,

no pet.) (witness’s statements made 15 minutes after assault were excited utterances because witness



                                                   7
was “dominated by the emotion, fear, pain, and excitement resulting from appellant’s assault, and

that her statement was related to the startling occurrence of the assault”).

               Appellant argues in his brief, as he did at trial, that the act of writing is a deliberative

act and therefore cannot qualify as an excited utterance. An excited utterance is a statement that

relates to a startling event or condition, that is made when the declarant is still under the stress of

excitement caused by the event or condition. Coble v. State, 330 S.W.3d 253, 294 (Tex. Crim. App.

2010); see Tex. R. Evid. 803(2). “A ‘statement’ is an oral or written verbal expression.” Tex. R.

Evid. 801(a). Appellant cites to no authority, and we find none, excluding written statements from

the excited utterance exception.8 Here, Officer Slaughter expressed that although Calderon had

“calmed down somewhat” since his initial contact with her, she kept looking around as she wrote

the statement and was obviously still fearful. Further, as the trial court noted, the officer affirmed

that she was still under the stress and excitement of the assault. In light of the preceding, we cannot


       8
          We find appellant’s reliance on Moon v. State, 44 S.W.3d 589 (Tex. App.—Fort Worth
2001, pet. ref’d), a case out of our sister court of appeals in Fort Worth, to be misplaced. In Moon,
the appellate court approved the admission of evidence of the victim’s oral statements made to the
officer shortly after the officer arrived on scene because those statements were made while the victim
was dominated by the excitement from the assault. Id. at 594. In contrast, the court concluded that
when the testimony of the officer who took the assault victim’s written statements, 45 minutes after
the officer’s arrival, was viewed in the context of the entire record, the victim’s written statements
were not excited utterances. Id. Thus, the court held that the trial court erred in admitting the
victim’s written statements. Id. However, the officer’s testimony outside the presence of the jury
indicated that the victim was no longer under the stress of the assault when the written statements
were given. The officer explicitly stated that the victim “was not excited at the time she made these
statements” and indicated that “she had a little time to gather her thoughts about what had
happened.” Id. He described the victim’s state of mind as “[a]bnormal” but explained that he
“wouldn’t consider her calm or normal day-to-day state of mind, a little agitated maybe, but I
wouldn’t use the word excited or upset.” Id. No such testimony was given here.



                                                   8
say that the trial court erred in determining that Calderon was still under the stress of excitement

caused by the assault. See Tex. R. Evid. 803(2). Thus, the trial court did not abuse its discretion

by admitting Calderon’s written statement under the excited-utterance exception to the

hearsay-exclusion rule. See Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006) (review of

trial court’s determination of whether evidence is admissible under excited-utterance exception to

hearsay rule is for abuse of discretion).

               Moreover, even assuming the trial court erred in admitting Calderon’s written

statement, we would nevertheless conclude that the error did not constitute reversible error. See Tex.

R. App. P. 44.2(b). The erroneous admission of evidence is non-constitutional error. Kirby v. State,

208 S.W.3d 568, 574 (Tex. App.—Austin 2006, no pet.); see Coble, 330 S.W.3d at 280; Casey

v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Non-constitutional error is reversible only

if it affects the substantial rights of the accused. See Tex. R. App. P. 44.2(b); Barshaw v. State,

342 S.W.3d 91, 93 (Tex. Crim. App. 2011). We will not overturn a criminal conviction for

non-constitutional error if, after examining the record as a whole, we have fair assurance the error

did not influence the jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Kirby,

208 S.W.3d at 574.

               In assessing potential harm, our focus is not on whether the outcome of the trial was

proper despite the error but on whether the error had a substantial or injurious effect or influence on

the jury’s verdict. Barshaw, 342 S.W.3d at 93–94. We review the entire record to ascertain the

effect or influence on the verdict of the wrongfully admitted evidence. Id. at 93; see Coble,

330 S.W.3d at 280 (in conducting harm analysis “we examine the entire trial record and calculate,



                                                  9
as much as possible, the probable impact of the error upon the rest of the evidence”); see also Moon

v. State, 44 S.W.3d 589, 595 (Tex. App.—Fort Worth 2001, pet. ref’d). We consider all the

evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character

of the alleged error, and how the evidence might be considered in connection with other evidence

in the case. Barshaw, 342 S.W.3d at 94. We may also consider the jury instructions, the parties’

theories of the case, closing arguments, voir dire, and whether the State emphasized the error. Id.;

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

               In her testimony at trial, Calderon described the events of that night, providing details

of appellant body slamming her to the ground and dragging her by her hair. Her testimony was

consistent with the statement recorded on the dash-cam of the patrol car immediately after the assault

happened (which was admitted without objection). Further, her testimony was corroborated by

photographic evidence and medical evidence as well as the officer’s testimony describing visible

injuries and “drag marks” consistent with her testimony. The prosecutors did not mention

the written statement in closing argument, nor did the State overly emphasize the written

statement otherwise.

               After examining the record as a whole, including the strength of the State’s case, we

have fair assurance that the erroneous admission of Calderon’s written statement regarding the

September 26th assault, if it was error, did not influence the jury or had but a slight effect.

Therefore, any error in admitting the complained-of evidence was harmless.

               For the foregoing reasons, we overrule appellant’s first point of error.




                                                  10
                                   False or Misleading Predicate

                In his second point of error, appellant asserts that the State presented false or

misleading testimony when establishing the predicate for admitting Calderon’s hearsay statements

about the September 26th assault—the recorded and written statements complained about in

appellant’s first point of error—as excited utterances. He argues that the prosecutor created a false

impression about Calderon’s opportunity to reflect upon her statements at the time she made her

statements to the officers by failing to inform the trial court that prior to Officer Slaughter’s arrival

at the scene Calderon called her mother and 911.

                In his brief, appellant asserts that the State revealed this information during trial but

only after the court had ruled on the admissibility of the statements. He appears to argue that the

failure to inform the court that Officer Slaughter was not the first person Calderon told about the

assault was a “withholding” of “material evidence” that violated his right to due process and due

course of law. However, appellant never objected to the purported misinformation concerning the

timing of the statements to the officer, even when, as appellant acknowledges in his brief, it became

apparent later in trial. Even constitutional rights—including the right of due process and due course

of law—may be waived if the proper request, objection, or motion is not asserted in the trial court.

Saldano v. State, 70 S.W.3d 873, 886–87 (Tex. Crim. App. 2002); see Mendez v. State,

138 S.W.3d 334, 342 (Tex. Crim. App. 2004). If a party fails to properly object to constitutional

errors at trial, these errors can be forfeited.         Clark, 365 S.W.3d at 339; Briggs v. State,

789 S.W.2d 918, 924 (Tex. Crim. App. 1990). Here, appellant never objected to the purported

misinformation or lack of information in the State’s predicate at all (at any point in the trial), let



                                                   11
alone on the basis of the now asserted constitutional violations. Accordingly, appellant forfeited any

complaint about the alleged misinformation violating his constitutional rights to due process and due

course of law.

                 More importantly, appellant has wholly failed to demonstrate that the State presented

false or misleading information in establishing the predicate for the excited-utterance exception by

failing to inform the trial court that Officer Slaughter was not the first person to whom Calderon

made statements. The predicate for establishing that a statement meets the excited-utterance

exception requires a showing that the statement is a “statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the event or

condition.” See Tex. R. Evid. 803(2); Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001).

There is no requirement that the statement be the first statement made by the declarant about the

event. The statement must simply have been made before the declarant’s excitement caused by the

startling event or condition has abated. Zuliani, 97 S.W.3d at 596. Here, as we discussed in the first

point of error, Officer Slaughter’s testimony established that Calderon was still under the stress of

excitement caused by appellant’s assault when she made the statements to the officers. Thus, it is

irrelevant that Calderon told others about appellant’s assault before telling Officer Slaughter about

it when he arrived on the scene.

                 We overruled appellant’s second point of error.


                                 Ineffective Assistance of Counsel

                 In his final two points of error, appellant contends that his trial counsel, the third

attorney appointed to represent him, rendered ineffective assistance during both the guilt-innocence

                                                  12
and punishment phases of trial. Appellant complains of multiple actions or inactions on the part of

trial counsel, including the failure to engage in particular pretrial discovery, the “inept questioning”

of appellant during his testimony, the failure to request a curative instruction, and the failure to

object to the admission of various types of evidence.9

               To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by the

defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307

(Tex. Crim. App. 2013). The appellant must first demonstrate that counsel’s performance fell below

an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687–88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable

probability—one sufficient to undermine confidence in the outcome—that the result of the

proceeding would have been different absent counsel’s deficient performance. Strickland, 466 U.S.

at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;

see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

               Appellate review of counsel’s representation is highly deferential; we must indulge

a strong presumption that counsel’s representation falls within the wide range of reasonable

professional assistance—that is, we must presume that trial counsel’s decisions were reasonably




       9
         The majority of appellant’s complaints (16 of 19) involve trial counsel’s failure to object,
or to make the “appropriate” objection, to purportedly inadmissible evidence, including
opinion testimony, hearsay evidence, victim impact evidence, character evidence, and extraneous
conduct evidence.

                                                  13
professional and motivated by sound trial strategy. Strickland, 466 U.S. at 686; Salinas v. State,

163 S.W.3d 734, 740 (Tex. Crim. App. 2005); see Nava, 415 S.W.3d at 307–08 (“courts indulge in

a strong presumption that counsel’s conduct was not deficient”). To rebut that presumption, a claim

of ineffective assistance must be “firmly founded in the record” and “the record must affirmatively

demonstrate” the meritorious nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex.

Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will

the trial record by itself be sufficient to demonstrate an ineffective-assistance claim. Nava,

415 S.W.3d at 308; see Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). If trial counsel

has not been afforded the opportunity to explain the reasons for his conduct, we will not find him

to be deficient unless the challenged conduct was “so outrageous that no competent attorney would

have engaged in it.” Nava, 415 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593); Goodspeed,

187 S.W.3d at 392.

               In this case, appellant filed a motion for new trial. However, he did not raise a claim

of ineffective assistance of counsel in the motion. Thus, the record is silent as to why trial counsel

acted or failed to act in the manner that appellant now complains about on appeal. Consequently,

the record before this Court is not sufficiently developed to allow us to evaluate those supposed

improper actions or failures to act because “[n]either [his] counsel nor the State have been given an

opportunity to respond to” the claims of ineffectiveness. See Menefield, 363 S.W.3d at 593.

               The record is silent as to whether there was a strategic reason for counsel’s conduct.

Appellant’s repeated assertion that there was none is mere speculation. Such speculation does not

constitute a demonstration, founded in the record, that no reasonable trial strategy existed. See



                                                 14
Lopez, 343 S.W.3d at 142 (“[C]ounsel’s deficiency must be affirmatively demonstrated in the

trial record; the court must not engage in retrospective speculation.”); see also Villa v. State,

417 S.W.3d 455, 463 (Tex. Crim. App. 2013) (“[C]ounsel’s alleged deficiency must be affirmatively

demonstrated in the trial record.”). Counsel was not afforded an opportunity to explain his reasons

for the complained-of conduct. Absent record evidence regarding counsel’s strategy or reasoning,

we will presume he exercised reasonable professional judgment. See Hill v. State, 303 S.W.3d 863,

879 (Tex. App.—Fort Worth 2009, pet. ref’d); Poole v. State, 974 S.W.2d 892, 902 (Tex.

App.—Austin 1998, pet. ref’d); see also Lopez, 343 S.W.3d at 143. Appellant has failed to rebut

the strong presumption of reasonable assistance because without explanation for trial counsel’s

decisions, the complained-of conduct does not compel a conclusion that trial counsel’s performance

was deficient. We cannot say that “no reasonable trial strategy could justify” counsel’s decision to

engage in the complained-of conduct.10 See Lopez, 343 S.W.3d at 143. Nor can we conclude that

counsel’s conduct was “so outrageous that no competent attorney would have engaged in it.” See

Menefield, 363 S.W.3d at 592. Accordingly, we find that appellant has failed to demonstrate

deficient performance on the part of his trial counsel. See Frangias v. State, 392 S.W.3d 642, 653

(Tex. Crim. App. 2013) (“[U]nless there is a record sufficient to demonstrate that counsel’s conduct




       10
          For example, appellant complains about trial counsel’s failure to object to the admission
of Calderon’s hearsay statements about the assaults in the recordings of the 911 calls. An argument
can be made, however, that these statements were admissible as excited utterances, an exception to
the hearsay rule. More importantly, however, the defense strategy involved emphasizing
inconsistencies in Calderon’s statements and demonstrating that Calderon was falsely accusing
appellant. Thus, it may be that counsel felt that he received some benefit to the admission of the 911
recordings—from inconsistencies shown in her statements or the demeanor that she exhibited in
the recordings.

                                                 15
was not the product of an informed strategic or tactical decision, a reviewing court should presume

that trial counsel’s performance was constitutionally adequate ‘unless the challenged conduct was

so outrageous that no competent attorney would have engaged in it.’”)

               Because appellant failed to meet his burden on the first prong of Strickland, we need

not consider the requirements of the second prong—prejudice. Lopez, 343 S.W.3d at 144; see also

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy

one prong of the Strickland test negates a court’s need to consider the other prong.”). Nevertheless,

we also find that appellant failed to demonstrate that he suffered prejudice.

               Even if an appellant shows that particular errors of counsel were unreasonable, he

must further show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at

693–95; Cochran v. State, 78 S.W.3d 20, 24 (Tex. App.—Tyler 2002, no pet.). It is not sufficient

that an appellant show, with the benefit of hindsight, that his counsel’s actions or omissions during

trial were of questionable competence. Lopez, 343 S.W.3d at 142–43. Further, merely showing that

the errors had some conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at

693; Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). The appellant must prove

that counsel’s errors, judged by the totality of the representation, not by isolated instances of error

or by a portion of the trial, denied him a fair trial. Strickland, 466 U.S. at 695.

               Appellant argues that this Court should find prejudice because the cumulative effect

of the alleged errors demonstrates that his trial counsel failed to subject the State’s case to a

meaningful adversarial challenge. He maintains that counsel’s performance resulted in a breakdown

of the adversarial process. We disagree. During voir dire, trial counsel extensively questioned the



                                                  16
jury panel regarding their ability to serve on the jury: he discussed important legal concepts such

as the State’s burden of proof, appellant’s Fifth Amendment right not to testify, and the applicable

punishment range; he explored possible bias or preconceptions relating to appellant; he discussed

issues factually relevant to the case such as dating relationships, troubled relationships, and

infidelity; he asked the jurors their opinions regarding government involvement in personal

relationships; he discussed possible reasons why an alleged victim might falsely accuse someone of

a crime; he talked about the credibility of law-enforcement witnesses and asked the panel members

about their prior interactions with law-enforcement personnel; he discussed the effect that a

defendant’s prior misconduct might have on decision making; and he challenged several panel

members for cause. Further, the record shows that counsel presented and developed a defense

strategy involving alternate perpetrators and a false accusation by Calderon against appellant

instigated by his infidelity in their relationship. In support of this defense, trial counsel emphasized,

through cross-examination of the State’s witnesses and in jury argument, the fact that Caldron

repeatedly gave inconsistent statements about the assaults. Also, during his closing argument, trial

counsel again discussed the State’s burden of proof and reminded the jury that even though there was

evidence of appellant’s prior misdeeds, the jury should only find him guilty if they conclude that he

was guilty of the offenses actually charged.

                An accused is not entitled to entirely errorless representation, and we look to the

totality of the representation in gauging the adequacy of counsel’s performance. Frangias,

392 S.W.3d at 653. The record in this case reveals that counsel’s trial strategy was to present

evidence of alternative perpetrators of the alleged assaults and a motive for Calderon to falsely



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accuse appellant. Counsel focused on the inconsistencies of Calderon’s descriptions of the assault

incidents, including the fact that she named someone else as the perpetrator of one of the assaults,

and her reason for falsely accusing appellant: appellant’s repeated infidelity. The fact that this

strategy ultimately proved unsuccessful does not render counsel’s assistance ineffective.

                On the record before us, appellant has failed to demonstrate deficient performance

on the part of his trial counsel or that he suffered prejudice because of the alleged errors of counsel.

Thus, he has not shown himself entitled to reversal based on ineffective assistance of counsel.

Accordingly, we overrule appellant’s third and fourth points of error.


                                           CONCLUSION

                Having overruled appellant’s four points of error, we affirm the trial court’s judgment

adjudicating guilt and judgments of conviction.



                                                __________________________________________
                                                Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: October 17, 2014

Do Not Publish




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