                                            /Y7S-/S
                              COURT    OF    CRIMINAL         APPEALS
                                                                                             O D '
                                                                                             UKi       NAL
                       PETITION       FOR    DISCRETIONARY            REVIEW

                                      WITH    A    PETITION




                           HENRY    DORSEY,        Appellant         Pro   S'e
                                                   V.                                        NOV 20 2015
                                    THE   STATE         OF   TEXAS

                                                                                       Abel ^costa, Clerk
                            Trial   Case     No.        137DB6B
                           •182nd   Judicial        District         Court
                            of Harris       County       Texas

                            Appellate No.  14-14-0071B-CR
                            Appellate Court - Fourteenth
                            District Court of Appeals




                                                   Trial      Judge:       The    Honorable
                                                                     Jeahhine         Barr




PARTIES:

Henry Dorsey        #1950821                                   The    State      of    Texas
Connally Unit                                                                                  FILED IN
899
Kenedy,
       FM   632
             TX   781-19
                                                                                      COURT OF CRIMINAL APPEALS
      APPELLANT
                                                                                             U'OV 20 2015

                                                                                          Abel Acosla, Clerk




                                             Page 1 of'17
                                   TABLE   OF   CONTENTS

                                                           PAGE

-IDENTITY     OF    PARTIES


INDEX    OF   AUTHORITIES                                  !'</
STATEMENT      OF    THE   CASE


STATEMENT      OF    FACTS                                  7-9
PRAYER
                                                           JL
CERTIFICATE         OF   SERUICE                           it




                                           Page 2 of 17
                                           INDEX   OF   AUTHORITIES


                                                                      PAGE


Bullcoming              v.    H.M.                                     JO
Anderson           v.     Sirmons
                                                                      jjL
Battenfileld                 v.   Gibson                              js_
Eads    v.       State                                                JL
Md . v . Craig
                                                                      U°
Pointer          v.     Tex                                           JL
Gerstein          v.      Pugh
                                                                       JL
Ky.    v.    Stincer                                                   JL
U.S.    v.       Car then


Del.    v..Fensterer
                                                                      JL
Olden       v.     KY .                                               JL
Davis       v.     Ala.,                                              JL
U.S.    v.       Treacy
                                                                      JL
U.S.    v.       Vegamolina                                           jL
U.S.    v.       Ramos-Cruz                                            JL
Herrera          v.     State
                                                                      //JL
Strickland              v.    Washington                              jyi
Rompilla           v.     Beard                                       JL
Sonnier          v.     Quarterman                                    JL
Harries          vi.    Bell                                          JL
Hook    v.       Workman


Outten       v . Kearney                                              H
Miller       v.        Martin


Anderson           v.     Sirmons




                                                    Page 3 of 17
                              INDEX   OF   AUTHORITIES      -   cont


                                                                       PAGE


Robinson       v.    Schriro
                                                                       Jl
Lauhorn       v .   Allen                                              Jl
Williams       v.    Taylor                                            Jl
Jones    v.    Ryan                                                    JL
U.S.    v.    Rodriguez                                                JL
U.S.    v.    Stevens                                                  is

STATUTES


Article       37.05                                                    Jl




                                             Page k of 17
                                  STATEMENT         OF   THE   CASE



Henry Demond Dorsey, Defendant/Appellant

1.   Mr.   Dorsey was         indicted for the first degree                     felony offense

of murder on         April 11,        2013.     The State alleged that the offense

occurred on      December 9,           2012.      Clerk's      Record     p.11.

2.   The jury returned a guilty verdict on August 22,                               2013 for

murder.       C.R.    p.459;     RR    Vol.5,     p.62,     In 13-19.

3.   Punishment went to               the   jury,     which    assessed     a 55    year TDCJ

sentence.       C.R.    p.479;        RR Vol.7 p.4,         In 11-16.       An affirmative

finding of a deadly weapon,                   namely a gun,        was entered onto the

judgment.       CR    p .479.

4.   The   trial      court certified           Mr.      Dorsey   right    to    appeal   on

April   26,    2014.     CR     p.4B2.

5.   Notice of Appeal was timely filed on April 26, 2014.                                  CR p.483




                                                Page 5 of 17
                                  ISSUES      PRESENTED




1.   Whether    the   trial   court     erred     by    violating       Mr.    Dorsey1s

right   to   confrontation       of   the   medical         expert witness       who   act

ually the autopsy of the decedent under                       applicable       Federal    and

Texas   Confrontation      Clause       provisions,          rather    than    her   super

visor who merely        attended      the   autopsy,         although the       supervisor

reviewed and approved the             final report?

2.   Whether    trial counsel         provided     ineffective          assistance of

counsel during        the punishment phase             of    the    trial by    resting      and

closing and not presenting              any mitigation             evidence?

3.   Whether    the    verdict    was    truely    unanimous.




                                            Page 6 of 17
                                        STATEMENT             OF   FACTS


Mr.    Dorsey     offers       the    following          statement          of facts       in    narrative

form,     with    necessary record                references          contained          later in          this

brief .


        In the     early morning hours of December 9, 2012 a fight

occurred inside           an    after       hours       night club.              This    fight later

spilled out in           the parking             lot of       the    club.        There was       a general

melee     going on.           Lots    of    pushing and shoving,                   name    calling,          and

the    like.      At    one    point,       an    african-american                male    with    hair       braids

allegedly pulled a gun from his waist band area and began shooting

into the crowd.               One person,          Timothy Powell,                was    apparently shot

multiple       times,     and    died       at    the    scene.        Other       persons       were       also

injured.         The appellant Mr.                Dorsey,          also received an             apparent

gunshot       wound.

        At trial,        the State         introduced a surveillance or                          scene video

which     supposedly captured                the    shooting.              The    video    showed an

african-american              male    with       hair braids          shooting multiple                times

into    the    crowd     fighting          outside       the       club.     An    arresting          officer

testified        that    he    believed          that    Mr.       Dorsey's       appearance          at    that

time    was    consistent        with       "that       of    the    person       shown    on    the       video

shooting.         Several       eyewitnesses             to    the    shoot.ing         said    that       Mr.

Dorsey     "looked       like"       the    shooter,          and    one    witness       even    offered

a 50% level        of certainty             of identification.                    Although       no    witness

testified that he/she actually saw Mr.                                Dorsey shoot anyone that

early morning.

        The    5tate     introduced the             surveillance or                scene       video,       multiple

alleged eyewitnesses,                 detective,             crime    scene unit investigators,

and the medical           examiner's testimony and report to                               support its
belief that Mr.           Dorsey was the shooter and that Mr.                                  Powell had


                                                    Page 7 of 17
died.        No gun was ever recovered,                   No DNA,       No Fingerprints.

        Over    trial       counsel's      objection,           the   trial   court   admitted

the autopsy report,                even though the testifying witness did not

actually perform the                autopsy.        Although she was           present during

the autopsy and made corrections to and signed off on the final

report.

        On    the   basis     of    this   evidence,        the       jury returned    a guilty

verdict.        The    jury        poll following the             guilty verdict does not

appear to be conclusive,                   as two jurours did not directly affirm

their respective verdicts.                       However,       neither party objected,           and

the trial judge continued on towards the punishment hearing.

        Trial       counsel    offered       no mitigation             evidence   during      punish-. >

ment.        Following the closing arguments of each party,                             the    jury

then    retired       for    deliberation.           Later,       the    jury returned with

a punishment verdict of                55 years TDCJ.


ISSUE    ONE    UITH    AUTHORITY

        Whether       the    trial    court       erred    by    violating      Mr.   Dorsey's

right to confrontations of the medical expert witness who actually

the autopsy of the             decedent under applicable Federal and                          Texas

Confrontation Clause provisions,                         rather than her          supervisor who

merely attended the autopsy.                       Although the supervisor reviewed

and    approved       the    final    report?

        In the       case at bar,          the    State called Dr.            Mary Auzalone,

Assistant Medical             Examiner       of    the    Harris       County Institute of

Forensic Sciences, to testify at trial.                                (RR Vol .3 , p.23B , In 12).

She did not actually perform the__au_t opsy of the decedent in this




                                                  Page B of 17
case,    although the autopsy was                     conducted        under her          direct super

vision.        She   testified          she    was    present        during       the    autopsy,    made

various corrections               to    the    report,      and      then       co-signed    the    autopsy

report as the          supervisor/reviewer when the report was completed.

(RR Vol•       3, p .242;ln 1 -7) .

        Trial    counsel         properly       objected       to     the       admission    of    the

autopsy report,            the related photos,                and to the expert testimony

of    this witness         under Mr.          Dorsey's      confrontation               clause    rights.

(RR Vol.3,       p.248,       ln23 thru p.252,              In 22).             The trial judge over

ruled    trial counsel's               objections,         and noted for            the    record that

Dr.    Auzalone      was    present during the autopsy,                          though she did not

actually perform the autopsy.                         (RR Vol.3,           p.    250,    In 23-25;       p.25.2,

In 5-7,       12-13;    and      21 -22) .

        The    autopsy      report was          testimonial           in    nature.        There is       no

contention       that      the    medical       doctor      who      actually       performed       the

autopsy was unavailable:,• (though she resided and worked in the

Chicago,       Illinois area at the time of trial).                                The trial court

erred by allowing this report in as evidence as well as Court of

Appeals abused its discretion by denying this error.


STANDARD


The appellant didn't have the right to cross-examine the expert

who    actually done the test.)).

        The    sixth    amendment's            confrontation           clause       provides       a crim

inal defendant the right to directly confront adverse witnesses.

See Md. v. Craig, 497 U.S. 836, B46 (1990) "[F]ace -to-Face confront

ation enhance the accuracy of factfinding by reducing the risk that




                                                     Page 9 of-,17
a witness will wrongfully implicate an innocent person.")                                     See

also Bullcoming v . H.M. ,1 31              S .Ct. 2705,          2716 (2011)       [The] clause

does not tolerate dispensing with confrontation simply because the

court believes that questioning one witness about another's testi-j-

monial statements provides fair enough opportunity for cross-

examination) .      The    sixth       amendment provides               in   pertinent part

that "in" all criminal prosecutions,                       the     accused shall enjoy the

right to be confronted with the witness against him.                                  See [pointer

v. Tex.,      3B0 U.S. 400,          403   (1965).

      The     Confrontation Clause               applies only to that portion of a

criminal proceeding classified as the trial.                                 See Gerstein v. Pugh

420 U.S. 103,      119-20 (1975)             (adversary).

      See case Craig , 498 U.S. at B45; see also Ky. v.                               Stinger, 4B2

U.S. 730,      737 (19B7)       (Confrontation right designed to promote

truth-finding function of trial).-

      See case U.S. v. Carthen, 6B1 F.3d 94, 99 (2nd Cir. 2012)

('Confrontation Clause prohibition against hearsay do not strictly

apply" in proceedings not part of criminal prosecution).

      The     Confrontation          Clause       protects       a defendant's       right    to

cross-examine      adverse witnesses,                  because         the clause    only provides

for the     "opportu n.i ty;     [to]       cross examin[e]."                See cases   Del.      v.

Fensterer,      474 U.S.       15,    20    (1985)     (per curiam)           "The Confrontation

Clause guarantees         an    opportunity for             effective         cross-examination

not   cross-examination          that       is    effective       in    whatever way,     and      to

whatever extent,       the      defense          might wish).

       When    cross-examining             a witness,       the    defendant must        be   permit

ted to test both the witness's credibility and the witness's know-



                                                 Page 10 of 17
ledge    of   the    material       facts    in    the       case.

        See   cases Olden v . Ky . , 4B8 U.S.' 227,                     231    (19BB)    (per curiam)

(Confrontation Clause violated when defendant accused of kidnapping

and rape not         permitted to cross-examine complainant regarding co

habitation with boyfriend).

        See   case    Davis    v.    Ala.,    415       U.S.    30B,    316-17       (1974)    (Confront

ation Clause violated when defendant not permitted to cross-examine

witness regarding possible prejudice and bias that may have caused

faulty identification of defendant).

        See case      U.S.    v.    Vega Molina,             407 F.3d 511,       523-24 (1st Cir.

2005)    (Confrontation            Clause    violated          because       district    court's

refusal to allow defendant to cross-examine co-conspirator about

possibility of being framed prevented defendant from presenting

defense).

        See case U.S.         v.    Treacy , 639 F.3d 32,               44-45    (2nd Cir.          2011)

(Confrontation Clause violated when court precluded cross-examin

ation    refused      to   show credibility              of witness's.)

        See case      U.S.    v.    Ramos-Cruz,          667 F3d       4B7,    503    (4th    Cir.      2012)

(Confrontation right allows defendant to                              "ferret out falsehoods

and expose inconsistencies in                     a witness's          testimony).

        The 14th      Court of       Appeals       of    Houston       in    appellant's       case      in

its opinion on         October 27,          2015 on          page 4 stated appellant has not

argued    that      Herrera    is    incorrect          or   should     be    revisited       in    light

of more recent authority.                   See Herrera v.             State,    367 SW3d 762,            773

(Tex.    App. Houston 14th Dist.                  2012,      No pet.).

        Appellant      Dorsey       ask   this     Court       to    revisited       Herrera       v.   5tate

with the more recent authority because the cases he                                    used in this



                                              Page 11 of-17
petition is against what the constitution requires.                                       He ask this

Court to use its power to give                           its opinion on this ground.

         It has been determined by this Court that an autopsy photo

graph     is    not    a testimonial           statement.             Herrera    v.   State    Id.

         This ground of error should be granted for relief.


ISSUE     TUP    hllTH    AUTHORITY


         Whether trial counsel                 provided ineffective assistance of

counsel during the punishment phase of the trial by resting and

closing and not presenting any mitigation evidence?

Facts     in    the    Record


         After the conclusion of the State's punishment case,                                       the

State rested.             (RR vol.6,          p.162,       In 1-2).          The trial court then

turned to the            defense and remarkably,                  trial counsel then also

rested     (RR Vol.6,           p.164,    In 16-17).             Trial counsel called no

witnessed during the punishment phase of the trial (by they

either fact based to contradict the State's witnesses alleging the

impact     of    the     victim's     death         or    to   show    the   limitations       on    their

claimed knowledge of the                  deceased,            gang related testimony,               or even

merely     character        witnesses          to    humanize         and to    support the         defend

ant).      Bottom line:            there was             absolutely no mitigation evidence

presented        by    trial    counsel.

As a hole in the record see                        (RR vol.      6, p.166,       In 14-15;         RR Vol.   6,

p.166,     In    2 thru p.175,           In    3;    RR Vol.6,p.175 In            2-3).

         Trial counsel's failure to emphasize                            the defendant's good

character traits during closing argument at the                                   punishment phase

of   a   trial    has    been     found       to    be   ineffective         assistance       of    counsel.

         How can this Court overlook Strickland v. Washington,                                       466 U.S.

                          • '     "                 Page 12 of 17        '
688    (1984)     the    defendant must                   prove       that his         trial conunsel's

representation           was       deficient          and       that       the    deficient         performance

.was so      serious     that       it    deprived             him    of    a fair      trial.           Id.    at   687 .

Counsel's        representation is                   deficient if                it   falls below an             object

ive    standard of        reasonableness.                       Id    at    6 BB.      A deficient perform

ance    will     only    deprive          the       defendant          of    a fair         trial       if it    prejud

ices    the     defense.           Id    at    691-92.


        Appellant        is    clearly             saying       had    counsel         brought          in mitigation

witnesses        the    outcome          may       have    been       different,            he    may    not have       got

ten    the     same    judgment sentence.                       Every       person under            the    constitut

ion has        a right    to       effective          assistance             of counsel            at    every stage.

        The     failure       to    present          mitigation             evidence         at    the    punishment

phase     of    the    trial       has    been       held       by    numerous         courts       to    be    a classic

example        of ineffective             assistance             of counsel.                See    Rompilla v.

Beard,       545 U.S.     374 (2005).

        See     case Sonnier v. Quarterman,                            476 F3d         349,       358 (5th Cir.

2007)(Counsel's           failure             to    undertake          more       extensive         discussions

with    defendant's           family and acquaintance was                              ineffective assistance

despite        defendant's objection                      to    further          discussions.

        See     case Harries v. Bell,                      417 F3d          631,      638    (6th Cir.          2005)

(Counsel's failure                 to    investigatevand present mitigating                                    evidence

of    defendant's        mental          illness          was    ineffective            assistance.

        See     case Hooks v. Workman,                         6B9 F3d 1148, 1207-OB (10th Cir.

2012)(Counsel's failure to investigate reasonably available family

history evidence that might have mitigated defendant's sentence

was    unreasonable.)




                                                      Page 13 of 17
        See case       Outten   v.    Kearney,          464    F3d    401,    419-23      (3rd Cir.

2006)(But for counsel's failure                      to    present mitigating              evidence of

defendant's excruciating life history,                              reasonable probability of

different       sentence.)

        Similarly,       if counsel         "entirely fails             to    subject the prosecu

tion's    case    to    meaningful         adversarial          testing,       the    adversarial

process       itself becomes         presumptively             unreliable.

        See   case     Miller   v.   Martin,         481      F3d    468,    473   (7th   Cir.      2007)

(Counsel's choice not to present any mitigating factors or object

ion and to       remain silent at            sentencing hearing for no                    apparent

reason warranted presumption of                      prejudice).

        See case       Anderson v. Sirmons,                476 F3d 1131,           1148 (10th Cir.

2007)(Counsel's failure               to    present mitigating                evidence       at    sentenc

ing    of death penalty trial was ineffective assistance because

failure       allowed prosecution            to    successfully argue                there was       nothing

to    diminish    defendant       moral      culpability             eventhough       such    evidence

was readily available.)

        See case       Robinson      v. Schriro,           595 F3d 10B6,           1111-13 (9th Cir.

2010)(Counsel's          failure      to    presentmitigating                evidence     was      ineffec

tive    assistance       because      there       was     reasonable         probability          sentence

would have       been    different with mitigating                     evidence.)

        See case Lawhorn v.            Allen,        519 F3d 1272,            1292-93      (11th Cir.

2008)(Counsel's          failure      to    present significant mitigating                         evidence

of    defendant's       family history,            mental       health and drug           abuse at

sentencing was          ineffective assistance because reasonable chance

jury would not have received death penalty.) .




                                                  Page 14 of 17
        In the       State    brief   page   of   its   opinion    pg . 34,   the    record    is

devoid       of    anything    to   indicate that       any   mitigation      witnesses       exi

sted,       much less that such witnesses were                  available     or    would have

been helpful to the               defense on sentencing had trial counsel present

ed    them .


        This is the appellant argument no                     investigation took place at

all    in    his    behalf.


        Please       see   case     Battenfield    v.   Gibson,    236   F3d 1215,      1235

(10th Cir.          2001)(ineffective        assistance        because   counsel      failed       to

present mitigating evidence at penalty phase).

        Please see case Williams v. Taylor,                     529 U.S. 362,        396 (2000)

(Counsel's failure to                investigate and present substantial mitigat

ing evidence during sentencing phase of capital murder trial was

prejudicial.)

        Please see case Jones V. Ryan,                  583 F3d 626, 646-47 (9th Cir.

2009)(Counsel's failure to investigate and present mitigating

evidence prejudicial because it gave sentencing judge inaccurate

view    of     defendant's        life.)

        This honorable court can use                its    power to      review claims        of

ineffective counsel on appeal only in exceptional circumstances.

See    other       circuits    cases.


        U.S. Rodriguez, 675 F3d 48, 55-56 (1st Cir. 2012) (Claim of

ineffective counsel reviewed                 on   appeal      only in    exceptional circum

stances.)

        U.S. v. Stevens, 487 F3d 232, 245 (5th Cir. 2007) (Claim of.

ineffective counsel reviewed on appeal only in exceptional circum

stances .




                                             Page 15 of 17
        This       Honorable        Court        should       review       this   Error     and       Grant    relief.

ISSUE    NUMBER         THREE      UITH    ARGUMENT

        Whether         the   verdict        was       truely unanimous.

Facts    in       the   Record

        The jury was then properly polled.                                  However,       two jurors did

not answer affirmatively that the guilty verdict was indeed their

respective verdict.                      (RR Vol. 5, p.64, In 3-5; p.65, In 11-18).

        The jurors were not ;instructed to retire again to consider

their verdict as required by                           Art.    37.05,       to be fair,          no party

objected.           The trial judge also merely continued on with the stand

ard trial procedure.                     There appears to be no other reference to a

less than unanimous verdict anywhere in either the court clerk's
record or the court's reporter's record.
        A verdict must be certain, consistent, and definite, it may
not be conditional, qualified, speculative, inconclusive, or ambig-
uous.        See case         Eads v. State,             598 Sw2d 304,             306 (Tex.Crim.App.

19B0)        It is      the    duty       of the       trial    judge       to    reject    an      informal     or

insufficient            verdict,          call    to    the    attention of the             jury the          infor

mality       or    insufficiency,            and       have    the    same corrected             their consent,

or send them out again to consider their verdict.                                           _I_d.      The poll

ing was       inconclusive.                The    trial       judge should have             sent the jury

panel       out    again      to    consider       their       verdict,          but   clearly        failed    to

do   so .


        The Court of               Appeals       didn't even          go    into detail          on    this

ground       and    denied         it.     Article       37.05       was    not    followed.           This

ground should be               granted       on    the    merits.




                                                       Page 16 of 17
                                               PRAYER


    Petitioner           prays for       relief deem         just.




                                          DECLARATION


             "I, Henry Dorsey,             TDCJ #1950821,            presently incarcer

    ated in        the    TDCJ-CID at          the   Connally Unit in          Karnes County,
    Texas, declare under penalty of perjury under Chapter 132 of
    Texas Civil Practices and                    Remedies Code and 28 U.S.C.                 § 1746,
    that     the    facts       stated    in    this      Petition    for   Discretionary

    Review     are       true    and   correct       and    that   I placed     this    document

    in the prison mailbox on this date."
             "Executed on this             the       /J      day of November 2015."


                                                                   -fey/ /*y^
                                                                   Henry    Dorsey,    pro   se




                                CERTIFICATION          OF   SERVICE



     I certify that on this the //' day of November 2015, I
served the following parties with a true and correct copy of
this PDR by mail (U.S. Postal) through the prison mailbox in a
postage paid package to the address-written below:

     Court    of    Criminal       Appeals
     P.O.    Box 12308,          Capitol Station
     Austin,       Texas    7B711
        Attn:        Abel       Acosta
                                                                   Sincerely    submitted;



                                                                   fenry^ov4ey ^#1 950B21




                                                 Page 17 of 17
Affirmed and Memorandum Opinion filed October 27, 2015.




                                     In The


                    ifiourteentfj Court of Appeals

                              NO. 14-14-00718-CR



                   HENRY DEMOND DORSEY, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 182nd District Court
                           Harris County, Texas
                        Trial Court Cause No. 1370868


                      MEMORANDUM OPINION


       We consider three questions in this appeal from a conviction for murder:
(1) whether the admission of evidence violated appellant's rights under the
Confrontation Clause; (2) whether the verdict was truly unanimous; and
(3) whether appellant was denied the effective assistance of trial counsel. Finding
no error in connection with any of these stated issues, we affirm the judgment of
the trial court.
                                 BACKGROUND


      A fistfight broke out near the entrance to an after-hours nightclub. One of
the men involved in the fight pulled out a gun and fired multiple shots into the
crowd. Two of the bullets struck and killed the complainant. Surveillance footage
showed that the complainant had played no role in the fight and had merely been
standing in the background. The shooter ran off, but he was later caught and
identified as appellant.

                           CONFRONTATION CLAUSE

      The complainant's body was sent to the medical examiner's office, where an
autopsy was performed by a new doctor participating in a forensics pathology
fellowship program. The fellow did not testify at appellant's trial. Testimony was
elicited instead from an assistant medical examiner who had supervised the fellow.
The assistant medical examiner testified that she was present for the complainant's
autopsy, she reviewed the fellow's autopsy report, and she co-signed the autopsy
report after making corrections to it.

      At trial, the State offered into evidence a collection of photographs that were
taken during the autopsy. Appellant objected to the admission of these
photographs, claiming that the absence of the fellow deprived him of his rights
under the Confrontation Clause. Continuing with the same reasoning, appellant
also argued that the autopsy report should be excluded in the event that the State
sought its admission. The trial court overruled the objection and admitted the
photographs, which were then published to the jury. The State never offered the
autopsy report into evidence.

       In his first issue, appellant contends that the admission of certain evidence
violated his rights under the Confrontation Clause. We review a trial court's ruling
admitting or excluding evidence for an abuse of discretion. See McCarty v. State,
257 S.W.3d 238, 239 (Tex. Crim. App. 2008). Under this standard, the trial court's
ruling will be upheld if it is reasonably supported by the record and correct under
any applicable theory of law. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.
App. 2006). We give the trial court almost complete deference in determining
historical facts, but we review de novo the trial court's application of law to those
facts. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

      The Sixth Amendment's Confrontation Clause provides that a defendant in a
criminal prosecution "shall enjoy the right... to be confronted with the witnesses
against him." See U.S. Const, amend. VI. This right applies not only to in-court
testimony, but also to out-of-court statements that are testimonial in nature. See
Crawford v. Washington, 541 U.S. 36, 50-51 (2004). Whether an out-of-court
statement is testimonial is a question of law for the court to decide. See De la Paz
v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008).

      Appellant styles this issue by asserting that "the trial court erred by violating
[his] right to confrontation of the [fellow] who actually performed the autopsy."
Appellant addresses several points within this issue, beginning with a complaint
about the supposed admission of the complainant's autopsy report. But, as we
stated above, the State did not offer the autopsy report into evidence, and the trial
court did not admit it. Thus, even assuming that the autopsy report contained
testimonial statements, there was no violation of the Confrontation Clause.

      Appellant then addresses the autopsy photographs, which were actually
admitted into evidence. But, in his own brief, appellant concedes that his trial
counsel's objection to the admission of these photographs "should fail upon
appellate review." "This is so," appellant explains, "because this Court has held
that an autopsy photograph is not a testimonial statement." See Herrera v. State,
367 S.W.3d 762, 773 (Tex. App.—Houston [14th Dist] 2012, no pet.) ("An
autopsy photograph, however, is not a testimonial statement.") (citing Wood v.
State, 299 S.W.3d 200, 214-15 (Tex. App.—Austin 2009, no pet.)). Appellant has
not argued that Herrera is incorrect or should be revisited in light of more recent
authority. Therefore, applying our prior precedent, we hold that appellant's rights
under the Confrontation Clause were not violated when the trial court admitted the

autopsy photographs.

      Appellant finally complains in very general terms about the testimony of the
assistant medical examiner, who observed the autopsy, but did not perform it. The
argument is without merit because appellant never objected to any portion of the
assistant medical examiner's live testimony. He objected instead to the admission
of certain exhibits. Without a timely and specific objection, appellant forfeited this
complaint. See Tex. R. App. P. 33.1; Thacker v. State, 999 S.W.2d 56, 61 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref d).

      Moreover, even if he had objected, the argument would still fail because the
assistant medical examiner was questioned about her own observations and
opinions, not those of the fellow who performed the autopsy. Thus, the trial court
did not erroneously admit testimonial hearsay in violation of appellant's rights
under the Confrontation Clause. See also Melendez-Diaz v. Massachusetts, 557

U.S. 305, 311 n.l (2009) (noting that the Confrontation Clause does not demand
"that everyone who laid hands on the evidence must be called").

                            UNANIMOUS VERDICT

      In his second issue, appellant complains about an irregularity during the jury
polling process.
      When the jury returned its verdict, the trial court asked the jurors to affirm
that they had all voted to find appellant guilty. Collectively, the jurors answered,
"Yes." Appellant then asked for the jurors to be polled individually. The poll
happened as follows:

      CLERK:       [J.L.], is this your verdict?
      JUROR:       It is.

      CLERK:       [J.R.], is this your verdict?
                   No [J.R.]?
                   [S.G.], is this your verdict?
      JUROR:       It is.

      CLERK:       [A.N.], is this your verdict?
      JUROR:       It is.

      CLERK:       [J.P.], is this your verdict?
      JUROR:       It is.

      CLERK:       [R.G.], is this your verdict?
      JUROR:       Yes.

      CLERK:       [D.V.], is this your verdict?
      JUROR:       Yes.

      CLERK:       [R.D.], is this your verdict?
      JUROR:       It is.

      CLERK:       [R.B.], is this your verdict?
      JUROR:       Yes.

      CLERK:       [K.P.], is this your verdict?
      JUROR:       Yes.

      CLERK:       [S.P.], is this your verdict?
      JUROR:       It is.

      CLERK:       And [S.M.], is this your verdict?
      JUROR:       Yes.
      COURT:       That's only 11.
                   Who did not answer? Who was not polled? What's your
                   name, sir?
      JUROR:       [R.V.].
      COURT:       What was your juror number in the panel?
      JUROR:       Fifty-five.
      CLERK:       Fifty-five, [R.V.], is this your verdict?
      COURT:       All right. So, members of the jury, we are going to recess
                   for the day and have you come back Monday morning.
                   We'll start on punishment on Monday morning. . . .

      Appellant contends that the trial court ran afoul of Article 37.05, which
provides that the jury must retire again to consider its verdict if any juror, when
polled, answers that the verdict is not his own. See Tex. Code Crim. Proc. art.
37.05. Instead of calling for a recess, appellant argues that the trial court should
have retired the jury because "two jurors did not respond affirmatively to the
polled question." Appellant appears to be referring to J.R., who was called second
by the clerk, and R.V., who was called last. It is clear, however, that J.R.'s name
was called inadvertently. His name is marked on the strike list and he could not
have been an actual member of the jury. Twelve other names were called,
including R.V.'s, and each of those twelve jurors spoke on the record.

      The court reporter did not record a verbal or nonverbal response from R.V.
when he was polled. However, the trial court continued the proceedings as though
R.V. had made an affirmative response, and appellant did not object to R.V.'s
response or nonresponse.

      A defendant must timely object to error in the jury polling process, as error
of this type is subject to forfeiture. See Barnett v. State, 189 S.W.3d 272, 277 (Tex.
Crim. App. 2006) (concluding that a defendant had forfeited any error by failing to
object when the trial court asked improper questions during the jury polling
                                           6
process). Because appellant did not object when R.V. was polled, he forfeited any
claim that the trial court failed to comply with Article 37.05. Id.

      Even if appellant had objected, his claim would still fail because the trial
court's obligation to retire the jury is triggered only when a juror answers that a
verdict is not his own. See Llorance v. State, 999 S.W.2d 866, 869 (Tex. App.—
Houston [14th Dist.] 1999, no pet.) (holding that a juror's procedural question did
not amount to an answer in the negative). Here, the record does not reflect that
R.V. gave a negative answer. The tenor of the trial court's closing remarks
suggests instead that R.V. gave an affirmative nonverbal answer that his verdict
was in accord with the other eleven jurors. We conclude that appellant's complaint
is without merit.


                     INEFFECTIVE ASSISTANCE CLAIM


      Appellant also contends that the assistance of his trial counsel was
constitutionally ineffective. In two separate issues, each relating to the punishment
phase of his trial, appellant complains that counsel presented no mitigation
evidence and counsel's closing argument merely recited the evidence produced by
the State.


       We review claims of ineffective assistance of counsel under the standard set

forth in Strickland v. Washington, 466 U.S. 688 (1984). Under Strickland, the
defendant must prove that his trial counsel's representation was deficient, and that
the deficient performance was so serious that it deprived him of a fair trial. Id. at
687. Counsel's representation is deficient if it falls below an objective standard of
reasonableness. Id. at 688. A deficient performance will only deprive the defendant
of a fair trial if it prejudices the defense. Id. at 691-92. To demonstrate prejudice,
there must be a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. Id. at 694. Failure to make
                                           7
the required showing of either deficient performance or sufficient prejudice defeats
the claim of ineffectiveness. Id. at 697. This test is applied to claims arising under
both the United States and Texas Constitutions. See Hernandez v. State, 726

S.W.2d 53, 56-57 (Tex. Crim. App. 1986).

      Our review of defense counsel's performance is highly deferential,
beginning with the strong presumption that counsel's actions were reasonably
professional and were motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to counsel's
strategy, we will not conclude that the defendant received ineffective assistance
unless the challenged conduct was "so outrageous that no competent attorney
would have engaged in it." See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). Rarely will the trial record contain sufficient information to
permit a reviewing court to fairly evaluate the merits of such a serious allegation.
See Bone v. State, 11 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of
cases, the defendant is unable to meet the first prong of the Strickland test because
the record on direct appeal is underdeveloped and does not adequately reflect the
alleged failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex.
Crim. App. 2007).

       A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Isolated
instances in the record reflecting errors of omission or commission do not render
counsel's performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel's performance for examination.
See McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled
on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).
Moreover, it is not sufficient that the defendant show, with the benefit of hindsight,
that his counsel's actions or omissions during trial were merely of questionable
competence. See Mata, 226 S.W.3d at 430. Rather, to establish that counsel's acts
or omissions were outside the range of professionally competent assistance, the
defendant must show that counsel's errors were so serious that he was not

functioning as counsel. See Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.
App. 1995).

      We begin with appellant's complaint that his trial counsel produced no
mitigation evidence during the punishment phase of trial. To prevail on such a
claim, the record must affirmatively demonstrate that mitigation witnesses were
available to testify and that their testimony would have benefited the defense. See
Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986); Wade v. State,
164 S.W.3d 788, 796 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The record
is silent on these points. Appellant did not file a motion for new trial or otherwise
establish that mitigation evidence existed. His complaint is therefore without merit.

      In a related issue, appellant also complains about counsel's performance in
closing arguments. During his argument to the jury, counsel openly confessed that
he "simply chose not to put on a case for you in punishment." Counsel then
sympathized with the complainant's family and expressed regret that the
complainant had been caught in the fray of a shooting. Counsel said that appellant
was still a human being though, not a monster, and counsel implored the jury to
choose its own sentence, without offering a recommended sentence.

      In his brief, appellant argues that counsel's performance was deficient
because counsel recited the State's evidence and never emphasized appellant's
own good character traits. But, as we mentioned earlier, the record does not
contain any mitigation evidence that counsel could emphasize. Furthermore, the
record is silent as to counsel's reasons and strategies during closing argument. We
could not deem counsel constitutionally ineffective without speculating as to his
motivations, which we are not permitted to do. See Lumpkin v. State, 129 S.W.3d
659, 665 (Tex. App.—Houston [1st Dist.] 2004, pet. ref d). Appellant has not
shown that his counsel's performance fell below the range of reasonable
professional judgment, or that he was prejudiced by his counsel's performance. See
Jagaroo v. State, 180 S.W.3d 793, 800 (Tex. App.—Houston [14th Dist.] 2005,
pet. ref d) (rejecting ineffective assistance claim where counsel sympathized with
the complainants during closing arguments); see also Martin v. State, 265 S.W.3d
435, 447 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (explaining that counsel
may reasonably choose to recite facts that the jury would have remembered
anyways so that counsel might convince the jury to put aside those facts with
rhetorical devices such as empathy).

                                 CONCLUSION


      The trial court's judgment is affirmed.




                                       /s/        Tracy Christopher
                                                  Justice




Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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