                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00179-CR

MICHAEL R. LOPEZ                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                         MEMORANDUM OPINION 1

                                     ----------


      In one point, appellant Michael R. Lopez appeals his conviction for

aggravated assault. 2 Appellant argues that his trial counsel provided ineffective

assistance. We affirm.




      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
                                Background Facts

      In the summer of 2009, Cornesha Kendrick lived at the Collins Park

Apartments in Arlington. One afternoon while she and her friend were walking

back to her apartment from a convenience store, Cornesha crossed paths with

Payton Williams and Bernard Brooks. The men taunted her, and she called her

brother, Jerome Hardy, to report the incident. Ismael Haros (Izzy), who had

known Cornesha for several years, went to her apartment complex with Jerome

that evening.

      When they arrived, Payton, Bernard, and appellant were standing outside. 3

Eventually, Jerome and Izzy began individual fights with Payton and Bernard.

Cornesha testified that ten to twelve people were in the parking lot during the

fights. Izzy won his fight with Bernard, and Bernard backed away in surrender.

At that point, appellant exhorted Bernard to restart the fight.         Izzy began

challenging appellant to fight. According to Cornesha, after the two exchanged

words, appellant pulled out a “little pistol.” Izzy turned and began to run away,

and appellant shot Izzy in the back. Izzy testified that he turned his back to

appellant before seeing a gun; he conceded that he did not know who shot him.

      After the gunshot, appellant, Payton, and Bernard ran upstairs to

appellant’s apartment.    According to Cornesha, as appellant ran up to the


      3
       In her testimony, Cornesha did not identify appellant by name. Instead, in
open court, she initially pointed at him while describing him as a “tall black dude.”
She later identified appellant as the defendant in the case.


                                         2
apartment, he still had the gun in his hand. Cornesha helped Izzy get into a car

and rode with him to a hospital. Eventually, surgeons removed the bullet from

his body. He survived.

      Arlington Police Department Officer Michael Wheatley went to the

apartment complex after Glen Haut had called 911 to report the shooting. When

Officer Wheatley arrived, he spoke with Haut, who directed him to apartment 215

and said that “several suspects” had run in there. By this time, other officers had

joined Officer Wheatley, and the officers announced their presence and knocked

on the door of apartment 215. After they saw movement within the apartment but

received no answer, the officers declared a barricade situation. As a result, as

many officers as possible came to the scene to set up a perimeter around the

complex and to wait for a SWAT team to arrive.           Simultaneously, the police

obtained a search warrant to search the apartment for a gun. As the SWAT team

was preparing to enter appellant’s apartment, appellant, Payton, Bernard, Tranda

McKinnley (appellant’s girlfriend), and her children all left the apartment. 4

      The police put appellant, Bernard, and Payton in three separate patrol cars

and began to search the apartment.            Even though the police conducted a

thorough search aided by a dog trained in firearms detection, they never found a

gun. The next day, Detective Bill Pino went to the scene of the shooting and



      4
       Tranda lived in apartment 215 with appellant and her four children.
Appellant is the father of two of her children.


                                          3
showed Cornesha a photo lineup of suspects. Cornesha identified appellant as

the man who had shot Izzy.

      A grand jury indicted appellant with aggravated assault with a deadly

weapon; the indictment included an allegation that appellant had been previously

convicted of that same offense. The trial court appointed counsel to represent

appellant, and counsel filed several pretrial motions on appellant’s behalf, many

of which the trial court granted.     Appellant elected the jury to assess his

punishment in the event of a conviction, and he pled not guilty.

      During the opening statement given by appellant’s counsel, he conceded

that appellant was present at the scene of the fight but urged that reasonable

doubt existed to pinpoint appellant as Izzy’s shooter, particularly considering that

the police had not found a gun connecting appellant to the crime.          Counsel

conducted cross-examinations of each witness called by the State and lodged

objections during the State’s questioning of those witnesses.

      After hearing all of the evidence and arguments from the parties, the jury

found appellant guilty, and after listening to evidence concerning his punishment

(including evidence about prior convictions), the jury assessed seventy-five

years’ confinement. 5 Appellant brought this appeal.




      5
       Appellant had rejected a plea-bargain offer from the State for a term of
five years’ confinement.


                                         4
        Appellant’s Complaints of Ineffective Assistance of Counsel

      In his sole point, appellant contends that he received ineffective assistance

of counsel in the trial court. Specifically, appellant claims that his trial counsel

committed numerous “catastrophic blunder[s]” by failing to adequately investigate

the case or request the appointment of an investigator, failing to present an

expert witness, making numerous alleged tactical errors during the guilt phase of

the trial, choosing to have punishment assessed by the jury instead of the trial

court, and failing to produce any compelling mitigating witnesses during the

punishment phase of the trial.        Appellant asserts that his trial counsel’s

representation was “so substandard that it [was] ineffective on its face.”

      To establish ineffective assistance of counsel, the appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009);

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).              In other

words, for a claim of ineffective assistance of counsel to succeed, the record

must demonstrate both deficient performance by counsel and prejudice suffered

by the defendant. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App.

2012). An ineffective assistance claim must be “firmly founded in the record,”

and “the record must affirmatively demonstrate” the meritorious nature of the


                                         5
claim. Id. (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999)).

      In evaluating the effectiveness of counsel under the deficient-performance

prong, we look to the totality of the representation and the particular

circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether

counsel’s assistance was reasonable under all the circumstances and prevailing

professional norms at the time of the alleged error. See Strickland, 466 U.S. at

688–89, 104 S. Ct. at 2065.      Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct fell within a wide range of reasonable representation. Salinas v. State,

163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001).

      Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.

Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813. This statement

is true with regard to the deficient-performance prong of the inquiry when

counsel’s reasons for failing to do something do not appear in the record.

Menefield, 363 S.W.3d at 593; Thompson, 9 S.W.3d at 813. To overcome the

presumption   of   reasonable   professional   assistance,   “any   allegation   of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Salinas, 163 S.W.3d at

740 (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate


                                       6
court to simply infer ineffective assistance based upon unclear portions of the

record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      Trial counsel “should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 593

(quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial

counsel is not given that opportunity, then the appellate court should not find

deficient performance unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001)).

      The prejudice prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair and reliable trial.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant must

show there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Id. at 694, 104

S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id. The ultimate focus of our inquiry must be on the

fundamental fairness of the proceeding in which the result is being challenged.

Id. at 697, 104 S. Ct. at 2070.

Alleged failure to investigate

      Appellant argues that his trial counsel was ineffective because he failed to

adequately investigate the case or to file a motion for the appointment of an

investigator.   Counsel for defendants in criminal cases must independently


                                        7
examine facts. See Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986).

A claim of ineffective assistance based on trial counsel’s alleged failure to

adequately investigate the case, however, fails unless appellant can show what

the investigation would have revealed that reasonably could have changed the

result of the case. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App.

1994); Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.]

2009, pet. ref’d) (op. on remand). The record is silent as to the extent of trial

counsel’s investigation. Even if we were to assume that trial counsel made a

deficient investigation, appellant has not specified, and the record does not

reveal, how further investigation or appointment of an investigator would have

produced mitigating evidence that could have changed the outcome of the case.

Thus, appellant fails to meet the second prong of Strickland. See Strickland, 466

U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Stokes, 298 S.W.3d at 432; see also

Cedillos v. State, 250 S.W.3d 145, 153–54 (Tex. App.—Eastland 2008, no pet.);

Kirby v. State, No. 01-04-00603-CR, 2005 WL 3494960, at *3–4 (Tex. App.—

Houston [1st Dist.] Dec. 22, 2005, no pet.) (mem. op., not designated for

publication) (holding that an ineffective assistance claim could not be sustained

when the defendant did not establish how trial counsel’s alleged failure to

adequately investigate and failure to obtain an appointed investigator caused

prejudice).




                                       8
Failure to present expert and fact witnesses

      Next, Appellant contends that his trial counsel should have called an

expert witness “to rebut the State’s evidence” and should have located and called

fact witnesses who could have testified that Cornesha was biased against

appellant or that someone other than appellant shot Izzy. Trial counsel’s failure

to call witnesses at the guilt and punishment stages cannot justify reversal on an

ineffective assistance claim absent showings that such witnesses were available

and that appellant would have benefitted from their testimony. See King v. State,

649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Garza v. State, 298 S.W.3d 837, 842

(Tex. App.—Amarillo 2009, no pet.). The record is silent regarding trial counsel’s

strategy in not calling an expert witness or the types of fact witnesses now

suggested by appellant. Furthermore, appellant does not specify what evidence

an expert witness could have rebutted, show that an expert witness would have

been available, or demonstrate that other fact witnesses who would have testified

in his favor actually existed. Thus, we would have to speculate to hold that trial

counsel gave deficient assistance by failing to call an expert witness or other fact

witnesses, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994); see also Kaba v. State, No. 02-06-00250-CR, 2007 WL

1776078, at *2 (Tex. App.—Fort Worth June 21, 2007, pet. ref’d) (mem. op., not

designated for publication).   Consequently, appellant has failed to rebut the

strong presumption that his trial counsel’s decision to not call an expert witness




                                         9
or other fact witnesses fell within the wide range of reasonable representation.

See Salinas, 163 S.W.3d at 740.

Alleged mistakes during the guilt phase of the trial

      Appellant also argues that trial counsel made several tactical errors during

the guilt phase of his trial.   First, appellant contends that his trial counsel

provided ineffective assistance because he conceded appellant’s presence at the

scene of the shooting during his opening statement yet later elicited testimony

from Tranda that appellant had remained in the apartment that night. On trial

counsel’s direct examination, Tranda gave the following testimony:

            Q. Okay. Let me back up just a little bit. When you went to
      sleep, the people you named[6] were in your apartment.

            A. Uh-huh.

            Q. And when you woke up, were the same people there --

            A. Yeah, they were still in there.

            ....

             Q. . . . Okay. And when you woke up after your mom called
      you, the same people were in there?

            A. Yeah.

            Q. And you don’t know whether they left or came back in
      during the interim, do you?

            A. Nah.


      6
      Tranda had stated that appellant and three other men were in her living
room when she went to sleep on the night of the shooting.


                                        10
            Q. Anytime in between?

            A. Nah.

            Q. So you don’t know if they stayed there the whole time?

            A. I’m pretty sure they stayed there. They never was outside.

      Although Tranda testified that she was “pretty sure” appellant never left the

apartment, trial counsel’s question may have merely attempted to establish the

fact that Tranda did not know whether appellant went outside while she slept.

Furthermore, trial counsel never argued to the jury that appellant had been inside

and not at the scene of the fight. Instead, in closing argument, he focused on

alleged weaknesses in Cornesha’s testimony, suggested that someone else at

the scene might have shot Izzy, and highlighted Tranda’s testimony that she did

not allow guns in her house.

      It appears, from our review of the record (and particularly the parts of trial

counsel’s closing argument that highlighted Tranda’s testimony), that trial

counsel called Tranda primarily to produce evidence that the police never found

the assault weapon and that she had never seen a gun in the apartment, not to

offer an alibi. 7 Thus, we conclude that trial counsel executed a reasonable trial

strategy when he conceded during his opening statement that appellant had

been in the parking lot because he never subsequently argued that appellant had

      7
       Even if trial counsel had intended to call Tranda as an alibi witness, we
note that Texas authority entitles defendants to present conflicting defensive
theories. See Booth v. State, 679 S.W.2d 498, 501 (Tex. Crim. App. 1984);
Whipple v. State, 281 S.W.3d 482, 497 (Tex. App.—El Paso 2008, pet. ref’d).


                                        11
been in his apartment during the shooting. See Labonte v. State, 99 S.W.3d

801, 803 (Tex. App.—Beaumont, pet. ref’d) (holding that there was nothing

inappropriate about an attorney’s concession in an opening statement that the

defendant was a drug dealer because the concession may have been part of a

strategy to be honest with the jury and to mitigate the effects of harmful

evidence), cert. denied, 540 U.S. 927 (2003); Thompson v. State, 915 S.W.2d

897, 904 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (op. on reh’g) (“It is

plausible that counsel, after reviewing the evidence to be presented, decided that

the best strategy would be to appear open and honest to the jury . . . .”); see also

Kennedy v. State, 402 S.W.3d 796, 798–99 (Tex. App.—Fort Worth 2013, no

pet.) (mem. op.) (holding that defense counsel’s decision to play a potentially

damaging video “frame by frame” was a reasonable trial strategy because it

allowed him to argue that a collision between the defendant and a Wal-Mart

employee was an accident).

      Appellant next contends that trial counsel provided ineffective assistance

when he failed to object to the following alleged “triple hearsay” testimony offered

by Tranda upon cross-examination by the State:

            Q. And would it be possible that either CPS or Alliance for
      Children --

            A. CPS, yeah.

            Q. They might have talked to your children?

            A. They talked to my momma. They wouldn’t talk to my kids.



                                        12
            Q. Would it be possible that [one of Tranda’s children] might
      have talked to someone with Alliance for Children?

             A. Nah.

             Q. Or talked to someone with CPS?

             A. Not about anything that got nothing to do with this.

             Q. Did you ever tell [the child] that you threw the gun away?

             A. Why would I tell my daughter that? No.

             Q. And so you never told her that you threw it in the green
      trash can outside?

             A. Nah. That’s crazy, like -- they’re kids.

      To prove ineffective assistance of counsel for the failure to object to the

admission of evidence during trial, appellant must show that the trial court would

have committed error by overruling the objection.          See Ex parte White, 160

S.W.3d 46, 53 (Tex. Crim. App. 2004); Vaughn v. State, 931 S.W.2d 564, 566

(Tex. Crim. App. 1996). In his brief, appellant does not cite a single rule of

evidence or case to show that the trial judge would have erred by overruling an

objection to these questions or answers. 8       Thus, because appellant has not

adequately briefed this ground for alleged ineffectiveness and because trial

counsel’s reasons for not objecting do not appear in the record, we conclude that

trial counsel did not render ineffective assistance by failing to object. See Tex. R.

App. P. 38.1(i) (requiring a brief to contain “appropriate citations to authorities”);

      8
       The State contends that its questions to Tranda in the trial court were
permissible because the purpose of them was to impeach her testimony that she
did not see appellant with a gun.


                                         13
Lucio v. State, 353 S.W.3d 873, 877–78 (Tex. Crim. App. 2011) (concluding that

a court of appeals properly declined to address the merits of an issue that was

not properly briefed); Schwarzer v. State, No. 02-07-00192-CR, 2008 WL

2404231, at *3 (Tex. App.—Fort Worth June 12, 2008, no pet.) (mem. op., not

designated for publication) (“With regard to his bolstering claim, [the

appellant] . . . offers no argument or citation to any authority whatsoever. . . . We

therefore overrule Appellant’s third point for inadequate briefing.”); Nolan v.

State, 102 S.W.3d 231, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)

(“Conclusory statements which cite no authority present nothing for appellate

review.”); see also Hernandez v. State, No. 02-05-00243-CR, 2006 WL 563247,

at *2 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.) (mem. op., not designated for

publication) (holding that a failure to object to alleged hearsay was not ineffective

assistance because the record did not provide any evidence to rebut the

presumption in favor of effective assistance). 9

      Next, appellant contends that trial counsel “demonstrated ineptitude” while

cross-examining Cornesha. As part of that complaint, appellant appears to argue

that for the first time on his cross-examination of Cornesha, trial counsel asked

questions that particularly identified appellant as Izzy’s shooter.      We cannot

agree. On the State’s initial direct examination, Cornesha testified in part,


      9
       We also note that generally, an isolated failure to object to “improper
evidence does not constitute ineffective assistance of counsel.” Rasmussen v.
State, 822 S.W.2d 707, 713 (Tex. App.—Fort Worth 1991, pet. ref’d).


                                         14
      Well, after him and Izzy have their word, Izzy said, [“]If you want it,
      you can get it too.[”] He take off his shirt and takes two steps toward
      the defendant, and the defendant pulls out a gun. Izzy turns around
      to run and the defendant shoots. And so I get stuck because I can’t
      believe what just happened, I’m just staring.

Appellant characterizes this testimony as “quite vague” with regard to identifying

him as the shooter. However, it would not have been “quite vague” to the jury

because Cornesha had already identified appellant as the defendant in open

court. Thus, to the extent that appellant argues that his trial counsel connected

him to the shooting before the State did or in a more specific way than the State

did, we overrule that argument.

      Appellant also asserts that his trial counsel provided ineffective assistance

by eliciting the following testimony from Cornesha on cross-examination:

           Q. So the fight was over with, you testified that you saw Mr.
      Lopez here pull out a gun and [shoot] Izzy.

             A. Yes, sir.

            Q. Let’s break this down a little bit.     What was Mr. Lopez
      wearing that night?

             A. I don’t remember what he was wearing.

             Q. Do you remember where he pulled the gun from?

             A. From his left pocket.

             Q. His left pocket?

             A. Yes, sir.

Appellant argues that this exchange harmed him because the State had not

elicited the detail that appellant had pulled the gun out of his left pocket on direct


                                         15
examination and because trial counsel did not achieve the alleged “logical goal”

of such questioning because he did not later elicit evidence that appellant is right-

handed. 10 Although trial counsel elicited new information about the pocket from

which appellant pulled the gun, we cannot conclude that counsel rendered

ineffective assistance because the record is unclear as to his reasons for eliciting

the complained-of testimony (and not eliciting subsequent testimony) and

because although eliciting the detail of which pocket the gun came from may not

have helped appellant, we cannot discern how it harmed him. See Strickland,

466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Menefield, 363 S.W.3d at 592–

93; Mata, 226 S.W.3d at 432; Thompson, 9 S.W.3d at 813.

Alleged failures with respect to the punishment phase

      Appellant further contends that he received ineffective assistance because

his trial counsel allegedly failed to have punishment assessed by the trial court

instead of the jury. However, because the election as to punishment belongs to

defendants, and not to their counsel, any ineffective assistance would lie only in

not providing appellant with sufficient information to make an informed choice or

in failing to properly execute appellant’s election. See Tex. Code Crim. Proc.

Ann. art. 37.07, § 2(b) (West Supp. 2012); Redmond v. State, 30 S.W.3d 692,

698 (Tex. App.—Beaumont 2000, pet. ref’d); see also Hernandez v. State, No.


      10
         We note that Cornesha’s testimony that appellant pulled the gun out of
his left pocket did not necessarily indicate that he was left-handed and was not
necessarily inconsistent with possible evidence that appellant is right-handed.


                                         16
02-06-00363-CR, 2008 WL 344578, at *7 (Tex. App.—Fort Worth Feb. 7, 2008,

pet. ref’d) (mem. op., not designated for publication). Here, appellant signed a

motion to have punishment assessed by the jury, and the record is silent as to

the advice trial counsel gave appellant in making that election.     We will not

speculate that trial counsel gave appellant insufficient advice. See Jackson, 877

S.W.2d at 771. Thus, we conclude once again that appellant has not overcome

the presumption that trial counsel provided reasonable representation.       See

Salinas, 163 S.W.3d at 740.

        Next, appellant contends that his trial counsel demonstrated a lack of

understanding of hearsay rules in the punishment phase of the trial by attempting

to admit a written statement from appellant’s previous aggravated assault case.

Appellant does not explain, however, how he was harmed by his trial counsel’s

unsuccessful attempt to introduce evidence that would have apparently benefited

appellant 11 but that appellant now states was inadmissible. Thus, we hold that

appellant cannot satisfy the prejudice requirement of Strickland, and we overrule

that part of appellant’s point. See 466 U.S. at 687, 694, 104 S. Ct. at 2064,

2068.

        Finally, appellant argues that trial counsel gave ineffective assistance

because he failed to produce any compelling mitigating witnesses at the

        11
        From the context of the questions surrounding trial counsel’s offer of the
written statement into evidence, it appears that counsel was attempting to show
that appellant had taken responsibility for his previous offense and was
remorseful for it.


                                       17
punishment phase. Trial counsel called appellant’s mother and two aunts during

the punishment phase. In a conclusory fashion, appellant’s counsel dismisses

“sympathetic family members” as incapable of being “compelling mitigating

witnesses.” However, appellant’s counsel does not demonstrate, nor does the

record reveal, that more compelling witnesses would have been available or what

facts such witnesses would have testified to that could have helped appellant.

Therefore, appellant has failed to show that trial counsel’s decision to call three

family members as mitigating witnesses was ineffective assistance.               See

Ex parte McFarland, 163 S.W.3d 743, 757–58 (Tex. Crim. App. 2005) (holding

that an appellant failed to show ineffective assistance where he did not name any

specific witnesses his attorneys should have called or show that unnamed

witnesses would have been available to testify in a manner beneficial to him).

Appellant has failed to sustain his ineffective assistance claim

      For all of these reasons, we hold that appellant has failed to establish the

prongs of his ineffective assistance claim by a preponderance of the evidence,

and we overrule his only point. See Strickland, 466 U.S. at 687, 104 S. Ct. at

2064; Davis, 278 S.W.3d at 352.




                                        18
                                     Conclusion

         Having overruled appellant’s sole point, we affirm the judgment of the trial

court.



                                               PER CURIAM

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 19, 2013




                                          19
