Affirmed and Memorandum Opinion filed June 25, 2019.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-17-00623-CR

                          TRAVIS E. SCOTT, Appellant
                                          V.

                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1457350

                   MEMORANDUM OPINION
      Appellant Travis E. Scott was indicted for burglary with the intent to commit
assault, convicted at trial, and (after a mistrial at the punishment phase) sentenced to
30 years’ imprisonment by a separate jury. Appellant timely filed this direct appeal
alleging he was deprived of effective assistance of counsel at his criminal trial. We
find Appellant failed to meet his burden and affirm his conviction.


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I.    Summary of Appellate Argument

      Appellant argues he was deprived of his right to effective assistance of counsel
because:

      1.      his defense attorney failed to both (a) timely acquire purportedly
              exculpatory text messages and (b) attempt to introduce same at
              trial; and
      2.      a police officer improperly testified concerning the credibility of
              a witness and his counsel failed to preserve the error.
      Appellant also argues the cumulative effect of his trial counsel’s ineffective
representation deprived him of due process and a fair trial. We analyze these
contentions below.

II.   Standard of Review and Applicable Law

      We review a trial court’s ruling on a motion for new trial under an abuse of
discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
Where, as here, the motion for new trial alleges ineffective assistance of counsel, we
must determine whether the trial court’s resolution of the ineffective-assistance
claim and denial of the motion for new trial were clearly wrong and outside the zone
of reasonable disagreement. Smith v. State, 286 S.W.3d 333, 339-40 (Tex. Crim.
App. 2009).

      The Sixth Amendment to the United States Constitution guarantees an
individual the right to effective assistance of counsel in a criminal prosecution. See
U.S. Const. amend. VI; see also Strickland v. Washington, 466 U.S. 668, 687-88
(1984); and Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). To prevail
on a claim for ineffective assistance of counsel, an appellant must satisfy the two-
pronged test established by Strickland and show (1) counsel’s representation fell
below the objective standard of reasonableness and (2) the deficient performance

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prejudiced the defense. Strickland, 466 U.S. at 687; see also Lopez, 343 S.W.3d at
142; and Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). Failure to
make the required showing of either deficient performance or sufficient prejudice
defeats an ineffective-assistance claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). The appellant bears the burden of proof in an ineffective-
assistance claim and we review the effectiveness of counsel in light of the totality of
the representation and the particular circumstances of each case. Lopez, 343 S.W.3d
at 143; see also Bullock v. State, 473 S.W.3d 857, 860 (Tex. App.—Houston [14th
Dist.] 2015, no pet.).

      To satisfy the first prong, the appellant must prove by a preponderance of the
evidence that the trial counsel’s performance fell below the objective standard of
reasonableness under the prevailing professional norms. Lopez, 343 S.W.3d at 142.
We “must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Hernandez, 726 S.W.2d at 79. When the record is
silent regarding trial counsel’s strategy, we will not find deficient performance
unless the challenged conduct was “so outrageous that no competent attorney would
have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005).

      For the second prong, counsel’s deficient performance prejudiced the
appellant if there is a reasonable probability that, but for counsel’s deficiency, the
result of the proceeding would have been different. Strickland, 466 U.S. at 694; see
also Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Cox,
389 S.W.3d at 819 (internal quotation omitted).

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III.   Relevant Facts

       The following facts are undisputed: Appellant had a relationship with the
complaining witness “Martha”, he went to her apartment on the night of February 8,
2015, he got into an argument with her brother, a disruption occurred inside Martha’s
apartment, and Appellant kicked in the apartment door (and injured at least one
person inside).    Appellant was indicted for burglary (with two enhancement
paragraphs), pled not guilty, and proceeded to trial.

       At trial, Martha testified (1) she was assaulted by her brother inside her home
after Appellant’s non-consensual entry and (2) she had ended her dating relationship
with Appellant before said entry.        Martha’s brother and a Houston Police
Department officer also testified Martha was assaulted after Appellant’s entry.
Appellant (against the advice of his counsel) elected to testify in his own defense.

       Appellant testified Martha was assaulted before he entered her home. On
cross-examination, the State asked Appellant if Martha was lying when she testified
she had told him she “didn’t want to see [him] anymore[.]” Appellant responded
with, “I have pictures and texts, like, up to the birthday party.” These texts were not
introduced (until the motion for new trial) and the jury never saw them.

       At closing, the State accused Appellant of lying when he claimed (1) Martha’s
brother assaulted her before Appellant kicked in her door, (2) he was in a dating
relationship with Martha at the time, and (3) he had texts and photos from Martha to
prove the nature of their relationship. The jury found Appellant guilty, Appellant
timely appealed, and we have jurisdiction to hear his appeal.

IV.    Analysis

       A.    Text Messages

       Appellant first argues his attorney acted deficiently when he failed (1) to
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acquire text messages between him and Martha before trial and (2) to proffer same
at trial.1 Appellant and his counsel materially disagree as to when the existence of
these texts was revealed; Appellant’s attorney testified he did not know about the
texts until after the guilt/innocence phase of the trial while Appellant testified he had
informed his attorney about the texts months beforehand. We have been presented
with no evidence to suggest Appellant’s attorney mislead the trial court (or was
mistaken) or that the trial court abused its discretion when it (as the relevant finder
of fact) believed Appellant’s attorney over him. Under these facts, we lack authority
to disturb the trial court’s determination.

       Appellant specifically suggests his counsel’s stated conclusion that the texts
were irrelevant (and said irrelevancy was the reason why he did not attempt to admit
them) evidences his purported deficiency as counsel. However, Appellant’s brief
fails to demonstrate the manner in which said texts had any tendency to make any
identifiable material fact more or less probable than it would have been without
them; this is the clearly established standard for admissibility. See Tex. R. Evid.
401. Appellant’s arguments fail to address the proper and nuanced query: how were
the text messages relevant with respect to Appellant’s trial for burglary (particularly
in light of the complaining witness’s agreement that she and Appellant previously
had a relationship)?

       Appellant was charged with burglary under Texas Penal Code section
30.02(a)(1), which requires the State to prove:

       1.      A person;
       2.      Without the effective consent of the owner;

1
  Within his first issue, Appellant contends the “trial court erred by not admitting the texts during
the motion for new trial.” However, Appellant provides no argument how any alleged error in the
exclusion of the text messages during the motion for new trial hearing relates to or supports his
ineffective assistance claim before this court.
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      3.     Enters;
      4.     A habitation or a building (or any portion of a building) not then open
             to the public;
      5.     With intent to commit a felony, theft, or assault.

Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2019). It appears that for present
purposes, the first four elements are largely uncontested.

      Appellant argues the text messages support his theory of the case, i.e., “that
[Appellant] heard Martha being assaulted and that was why he busted down the
door.” Appellant’s theory, however, was contradicted via the testimony of Martha,
her brother, and a Houston Police Department officer, each of whom testified
Martha’s brother assaulted her after Appellant entered the habitation. Under these
facts, the texts evidencing the nature of Appellant’s relationship with Martha had no
tendency to prove any relevant fact concerning Appellant’s non-consensual entry,
particularly in light of Martha’s agreement that they had previously had a
relationship (thereby elevating their relationship beyond that of mere strangers and
providing a plausible justification to protect her). The jury had every right to believe
three people over Appellant in their role as factfinders in this case. Therefore, the
irrelevance of the texts precludes the finding of harm Appellant requires for a
successful appeal.

      While Appellant’s brief correctly cites many propositions of Texas law, none
permit us to find harm where counsel correctly concluded the rules prohibited
admission based on relevance, particularly where Appellant did not argue how his
relationship with Martha was relevant to a key question before the jury, i.e., when
was Martha assaulted by her brother? Therefore, we overrule Appellant’s first issue.

      B.     Credibility

      An officer who responded to the scene testified that he did not speak with

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other residents of the apartment community outside of Martha’s family. On cross-
examination, defense counsel suggested through his questioning that the officer’s
investigative techniques were inadequate because the officer did not attempt to
obtain impartial information from independent witnesses.

      The prosecutor addressed this line of questioning on redirect examination:

      Q.     Now, just because you didn’t speak to an independent witness,
             does that mean that the credibility of the witnesses you did speak
             to is called into question at all?
             DEFENSE: Objection, Your Honor. That calls for speculation.
             STATE:        Your Honor, the Defense counsel raised the
                           question of whether or not the credibility of those
                           witnesses is something that this witness was
                           speculative of.
             COURT:        Overruled.
      Q.     Let me rephrase the question. Did you doubt the credibility of the
             witnesses you did speak to?
      A.     No, sir.
      Q.     And would that credibility have changed had you been able to
             speak to an independent witness?
      A.     Not really.

      Appellant now argues that his counsel was ineffective because counsel did not
object to the officer’s opinion testimony about the credibility of other witnesses.

      The record does not reveal counsel’s reasons for not continuing to press his
objection to the officer’s opinion testimony. That issue was not raised in appellant’s
motion for new trial, or in the live hearing on that motion. Because the record does
not affirmatively demonstrate counsel’s alleged ineffectiveness, we must presume
that counsel’s performance was reasonable. See Thompson, 9 S.W.3d at 813.

      Even if we concluded that counsel’s performance was deficient, Appellant has


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not alleged or developed any argument as to how the outcome of his trial would have
been different but for counsel’s failure to object to the officer’s opinion testimony.
See Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 2000). And we do not
perceive how he could have suffered prejudice. This line of testimony was brief, and
the officer’s omission was not emphasized in closing arguments. Also, several
family members testified as witnesses, which meant that the jury was able to
determine for itself whether those witnesses were credible. Therefore, we overrule
Appellant’s second issue.

      C.     Cumulative Error

      Appellant argues that “the cumulative effect of Issues One and Two
deprive[d] [him] of due process and a fair trial.” In light of our conclusions in issues
one and two that Appellant was not denied effective assistance of counsel,
Appellant’s argument that he was deprived of due process and a fair trial because of
his trial counsel’s alleged ineffective assistance is without merit. Therefore, we
overrule Appellant’s third issue.

V.    Conclusion

      We overrule Appellant’s issues and affirm the judgment of the trial court.




                                               /s/    Meagan Hassan
                                                      Justice


Panel consist of Justices Christopher, Zimmerer, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).


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