                                      NO. 12-17-00105-CR

                             IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

 VICTOR ALVARADO,                                       §      APPEAL FROM THE 272ND
 APPELLANT

 V.                                                     §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                               §      BRAZOS COUNTY, TEXAS

                                     MEMORANDUM OPINION1
        Victor Alvarado appeals his conviction for assault on a public servant. In his sole issue,
Appellant contends that he received ineffective assistance of counsel. We affirm.


                                              BACKGROUND
        On November 19, 2014, Appellant entered the Foxhole Lounge at the Veterans of Foreign
Wars Hall (VFW) in Bryan, Texas. Appellant frequently patronized the bar. Appellant had an
argument with another bar patron, and Rene Rudd, the bar manager, asked him to leave. He
initially left, but returned and demanded his change from drinks he ordered. Rudd believed
Appellant was intoxicated and again asked him to leave. Appellant became aggressive and Rudd
called the police. Bryan Police Department Officer William Dunford arrived.
        According to Rudd and Officer Dunford, the officer asked Appellant to step outside.
Instead, Appellant shouted an expletive at Officer Dunford. Rudd believed that Appellant then
punched the officer several times. According to Officer Dunford though, Appellant unsuccessfully
attempted to strike him. Michael and Martha Bilford, witnesses and acquaintances of Appellant




        1
          Pursuant to a docket equalization order issued by the Supreme Court of Texas on March 28, 2017, this
appeal has been transferred to this Court from the Tenth Court of Appeals in Waco, Texas.
who would later testify on his behalf, believed that Officer Dunford entered the bar and slammed
Appellant into a wall without warning, causing eye and other facial injuries.2
        Officer Dunford attempted an arm bar maneuver to take Appellant to the ground, but was
unsuccessful. During the melee, Appellant grabbed the officer’s jacket, pulling him to the ground.
Officer Dunford heard a popping sound, and later felt intense pain in his shoulder. Appellant
grabbed at the officer and pulled out his ear piece and body mic, which prevented him from calling
for assistance. Officer Dunford then attempted to deploy his taser, but it struck his own jacket. 3
Sensing the elevated danger, the officer disengaged Appellant, and the two stood up. According
to Officer Dunford, Appellant took an attack position, and the officer performed a palm strike on
Appellant’s chest.
        Concerned that Appellant was overpowering the officer, Rudd called 911 again for further
police assistance. At that time, Nathanael Chapman, another witness at the bar, also believed that
Appellant might overpower the officer. Therefore, he assisted Officer Dunford and they restrained
Appellant until Bryan Police Department Officer Stephen Davis arrived.                                 Appellant was
handcuffed and later taken to a medical facility for an injury assessment and treatment. He
mentioned that he had lip and mouth injuries, but never complained of any other facial or eye
injuries, nor did his booking photo show any such injuries. Officer Dunford injured his knee, and
tore a muscle in his shoulder, necessitating physical therapy and two months of light duty. At the
time of the ensuing jury trial, he still had pain and lacked full functionality in the injured shoulder.
        Appellant was indicted for assault on a public servant, enhanced to the punishment level
of a second degree felony due to a prior felony conviction. Appellant pleaded “not guilty” to the
offense, but the jury subsequently found Appellant “guilty” of the offense. Appellant pleaded
“true” to the indictment’s enhancement allegation. After a punishment hearing, the trial court
sentenced Appellant to ten years and one day of imprisonment. This appeal followed.


                                    INEFFECTIVE ASSISTANCE OF COUNSEL
        In his sole issue, Appellant contends that he received ineffective assistance of counsel on
twenty-two grounds. These grounds can be categorized in six broad classifications: (1) counsel’s


        2
            The Bilfords did not provide a statement to the authorities on the night of the incident in question.
        3
         The Bilfords believed that the officer deployed his Taser against Appellant after he had been handcuffed,
which was refuted by Officer Dunford.


                                                            2
failure to object to inadmissible and harmful hearsay evidence; (2) counsel’s introduction of
extraneous acts of Appellant’s misconduct; (3) counsel’s failure to object to the erroneous jury
charge; (4) his failure to object to improper veracity questions asked by the State on cross-
examination of defense witnesses; (5) counsel opened the door to inadmissible testimony
concerning questions of law; and (6) he failed to object to a variance between the prior conviction
alleged and used to enhance punishment. Appellant also argues that the cumulative effect of these
errors caused a breakdown in the adversarial process and undermines confidence in the outcome
of his trial.
Standard of Review and Applicable Law
        In reviewing an ineffective assistance of counsel claim, we apply the United States
Supreme Court’s two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App.
1986). To prevail on an ineffective assistance of counsel claim, an appellant must show that (1)
trial counsel’s representation was deficient, and (2) the deficient performance prejudiced the
defense to the extent that there is a reasonable probability that the result of the proceeding would
have been different but for trial counsel’s deficient performance. Strickland, 466 U.S. at 687, 104
S. Ct. at 2064. An appellant must prove both prongs of Strickland by a preponderance of the
evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2002). Failure to make the required
showing of either deficient performance or sufficient prejudice defeats an appellant’s
ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
        To establish deficient performance, an appellant must show that trial counsel’s
representation fell below an objective standard of reasonableness under prevailing professional
norms. See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064–65. “This requires showing that
[trial] counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Id., 466 U.S. at 687, 104 S. Ct. at 2064. To establish
prejudice, an appellant must show that there is a reasonable probability that, but for counsel’s
deficient performance, the result of the proceeding would have been different. Id., 466 U.S. at
694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. When a reviewing court may more efficiently dispose of
an ineffective assistance of counsel claim on the prejudice prong without determining whether




                                                 3
counsel’s performance was deficient, the court should follow that course. See id., 466 U.S. at 697,
104 S. Ct. 2069.
       Review of trial counsel’s representation is highly deferential. See id., 466 U.S. at 689, 104
S. Ct. at 2065. In our review, we indulge a strong presumption that trial counsel’s actions fell
within a wide range of reasonable and professional assistance. Id. It is the appellant’s burden to
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, “[a]ny allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813 (citation omitted). When
the record is silent regarding the reasons for counsel’s conduct, a finding that counsel was
ineffective would require impermissible speculation by the appellate court. Gamble v. State, 916
S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).
       When, as here, no record specifically focusing on trial counsel’s conduct was developed at
a hearing on a motion for new trial, it is extremely difficult to show that counsel’s performance
was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9
S.W.3d at 814. Absent an opportunity for trial counsel to explain the conduct in question, 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) (citation omitted).
Hearsay
       In his first five grounds, Appellant argues that trial counsel failed to object to the following
alleged inadmissible and harmful hearsay evidence: (1) Rudd’s testimony that she heard Officer
Dunford tell Appellant to step outside the bar so that he could speak with him; (2) Rudd’s 911 call,
which contains statements by a multitude of unidentified speakers; (3) Officer Dunford’s
testimony that his doctor told him he had a torn rotator cuff; (4) Officer Dunford’s testimony that
his doctor told him that he had reached his maximum level of recovery; and (5) the presentence
investigation report (PSI) during the punishment hearing.
       The record is silent regarding the reasons for counsel’s conduct, and consequently, finding
that counsel was ineffective would require impermissible speculation. Gamble, 916 S.W.2d at 93.
Moreover, Appellant did not meet his burden to show how the outcome would have been different
had counsel objected.



                                                  4
       In any event, the State showed that any objections would have been properly overruled or
were harmless. For example, Appellant expected that not only would Rudd testify that she heard
Officer Dunford ask him to leave the bar, but that the officer would testify similarly as non-hearsay.
Since both testified to the same or similar facts without objection, there was no reversible error.
See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998).
       With respect to the 911 call, there are several unidentified voices, but we cannot discern
what they say.      The trial court could have properly admitted the 911 call recording as
a present sense impression or a statement regarding the declarant’s then-existing mental,
emotional, or physical condition. See TEX. R. EVID. 803(1), (3); Reyes v. State, 314 S.W.3d 74,
77 (Tex. App.—San Antonio 2010, no pet.).
       With regard to Officer Dunford’s testimony concerning his injuries, the offense of assault
on a public servant, as indicted here, required the State to show that Appellant caused bodily
injuries to him. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West Supp. 2017); Bryant v.
State, 47 S.W.3d 80, 81 (Tex. App.—Waco 2001, pet. ref’d). Bodily injury includes physical pain
or impairment of a physical condition. TEX. PENAL CODE ANN. § 1.07(8) (West Supp. 2017).
Testimony that a victim suffered physical pain is sufficient to establish bodily injury. See Laster
v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009); Crow v. State, 500 S.W.3d 122, 129 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d). Prior to his testimony concerning his doctor’s
statements, Dunford testified to similar facts concerning the injury without objection, and any error
would have been harmless. See Leday, 983 S.W.2d at 717.
       Finally, the parties may offer evidence on any matter the court deems relevant to
sentencing. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2017). A PSI is
required when a defendant, as in the present case, seeks community supervision from the trial court
in a felony case without a plea agreement. See id. art. 42A.252(a), (c) (West 2018). Appellant
requested the PSI, which the trial court granted. The PSI process resulted in a delay in the
sentencing process, allowing Appellant to remain out of jail on bond. Moreover, the fact that
contents of the PSI contain hearsay is inapposite. See Fryer v. State, 68 S.W.3d 628, 631 (Tex.
Crim. App. 2002) (stating that the rules of evidence generally do not apply to the contents of a PSI
report and that the trial court can consider the contents of a PSI report, even if the contents
are hearsay or would not have been admissible if offered into evidence at the punishment hearing).




                                                  5
Appellate counsel does not identify what specific information contained in the PSI is
objectionable. Therefore, any objection to the report would have been fruitless.
Extraneous Acts of Misconduct
           In the sixth through tenth grounds, Appellant argues that counsel improperly introduced
extraneous acts of Appellant’s misconduct. Specifically, Appellant claims that during counsel’s
cross-examination of Rudd, he questioned her concerning her previous trouble with Appellant in
the bar, having to cut him off from liquor sales on previous occasions, and Appellant’s altercation
with another bar patron shortly before his encounter with Officer Dunford. Appellant also argues
counsel introduced evidence in his direct examination of Michael and Martha Bilford concerning
Appellant’s earlier altercation with another bar patron.
           The State argues defense counsel asked these questions to advance his defensive theories
to show that (1) Appellant left the bar on previous occasions when asked and that he returned
during this incident only because he wanted his money back, (2) Rudd may have had an ulterior
motive for asking him to leave the bar, and (3) he did not seek to cause trouble in refusing to leave
the bar.
           As we explained above, the record is silent regarding the reasons for counsel’s conduct,
and consequently, finding that counsel was ineffective would require impermissible
speculation. Gamble, 916 S.W.2d at 93. Moreover, Appellant did not meet his burden to show
how the outcome would have been different had counsel not engaged in this line of questioning.
Erroneous Jury Charge
           In the eleventh ground, Appellant contends that counsel failed to object to the erroneous
jury charge. Appellant argues that counsel should have requested a jury instruction in the court’s
charge in accordance with Texas Penal Code Section 2.05(a)(2) that the statutory presumption
provided by Texas Penal Code Section 22.01(d) is a permissive presumption.
           A person commits assault against a public servant if the person intentionally, knowingly,
or recklessly causes bodily injury to a person the actor knows is a public servant while the public
servant is lawfully discharging an official duty. TEX. PENAL CODE ANN. § 22.01(a), (b)(1). The
actor is presumed to have known the person assaulted was a public servant if the person was
wearing a distinctive uniform or badge indicating the person’s employment as a public servant.
Id. § 22.01(d).




                                                   6
       Mandatory presumptions are unconstitutional because they relieve the State of its
constitutionally-required burden of proving every element of the offense beyond a reasonable
doubt. Garrett v. State, 220 S.W.3d 926, 930 (Tex. Crim. App. 2007). A permissive presumption,
on the other hand, allows, but does not require, the fact finder to find the elemental fact on proof
of the predicate fact, and places no burden on the accused to disprove the elemental fact. Id. at
931 n.5. Instructions pursuant to Section 2.05(a)(2) of the Texas Penal Code—which require the
jury to be instructed on the permissive nature of any statutory presumption favorable to the State
and how the presumption relates to the State’s burden of proof—convert an otherwise
impermissible mandatory presumption into a permissive presumption. Id. at 931. A jury charge
containing a statutory presumption that benefits the State must also contain the instructions
required by Penal Code Section 2.05(a)(2). See Hollander v. State, 414 S.W.3d 746, 754 (Tex.
Crim. App. 2013) (Cochran, J., concurring).
       In the present case, the trial court included in its charge the Section 22.01(d) presumption
that Appellant knew that Officer Dunford was a police officer because he wore a distinctive
uniform or badge indicating his employment as a police officer. However, the jury charge did not
include the instructions from section 2.05(a)(2) of the Penal Code to explain to the jury how to
implement the submitted presumption. The trial court’s failure to include these instructions was
error. See Hollander, 414 S.W.3d at 749 n.9; McIlvennia v. State, No. 03-14-00352-CR, 2016
WL 3361185, at *7-8 (Tex. App.—Austin June 10, 2016, pet. ref’d) (mem. op., not designated for
publication) (concluding that failure to include Section 2.05 language in jury charge based on
presumption that defendant knew person was officer who wore uniform or badge was error).
       However, this error did not harm Appellant, because the evidence is overwhelming that
Appellant knew Officer Dunford was a police officer. See McIlvennia, 2016 WL 3361185, at
*11-12 (finding no egregious harm in similar circumstances). Rudd told Appellant she would call
the police if he did not leave. Shortly thereafter, Officer Dunford entered the bar. Rudd and
Chapman testified that the officer wore his uniform at the time. Officer Dunford also testified that
he wore a Bryan Police Department uniform and jacket. The jacket had sewn on patches and a
badge identifying him as a police officer. The officer asked Appellant to step outside, and
Appellant turned and faced him prior to the altercation. Moreover, during the altercation, Officer
Dunford attempted to deploy his taser, a common item used by police, to subdue him.




                                                 7
       Furthermore, Appellant did not show that he suffered prejudice due to trial counsel’s failure
to object to the absence of a Section 2.05(a)(2) instruction. In other words, the trial court would
not have abused its discretion in concluding that Appellant failed to prove that there was a
reasonable probability that, but for counsel’s failure to object to the alleged errors in the jury
charge, the result of the proceeding would have been different. See Griffin v. State, No. 03-15-
00398-CR, 2017 WL 2229869, at *8 (Tex. App.—Austin May 19, 2017, pet. ref’d) (mem. op.,
not designated for publication) (holding no ineffective assistance when trial counsel failed to object
to lack of Section 2.05 instruction based on Section 22.01 presumption because overwhelming
evidence showed that defendant knew person was public servant and therefore suffered no
prejudice).
Veracity Questions
       In his twelfth through seventeenth grounds, Appellant alleges that trial counsel failed to
object to improper veracity questions by the State asking Michael and Martha Bilford whether
three State’s witnesses who previously testified had lied under oath concerning their different
version of the events in question.
       It is well-settled that an attorney may not impeach one witness’s testimony with the
testimony of other witnesses. See Ex parte McFarland, 163 S.W.3d 743, 755 n.37 (Tex. Crim.
App. 2005). However, the Texas Court of Criminal Appeals has held that when the record is silent
as to why trial counsel failed to object to the improper opinion testimony on the veracity of another
witness’s testimony, a defendant generally fails to meet his burden to establish deficient
performance under the first prong of Strickland. See Lopez v. State, 343 S.W.3d 137, 143–44
(Tex. Crim. App. 2011).
       Even if we were to conclude that trial counsel’s performance was deficient, Appellant has
not satisfied the prejudice prong under Strickland. Improper veracity questions are generally held
harmless because they merely emphasize the obvious: that the defendant disagrees with the State’s
witnesses’ factual assertions. See Temple v. State, 342 S.W.3d 572, 615 (Tex. App.—Houston
[14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013) (reviewing improper veracity
question cases). In this case, although it was not proper for the State to ask the Bilfords questions
about the truthfulness of Officer Dunford, Rudd, and Chapman, counsel’s failure to object was not
harmful because it merely highlighted that they believed their version of events rather than the




                                                  8
State’s version. See Cordero v. State, 444 S.W.3d 812, 823–24 (Tex. App.—Beaumont 2014, pet.
ref’d); Temple, 342 S.W.3d at 615.
Testimony on Questions of Law
       In the eighteenth through twenty-first grounds, Appellant argues that counsel improperly
opened the door when he asked questions during his cross-examination of Officer Dunford
concerning questions of law—namely whether Appellant’s actions constituted resisting arrest. On
redirect, the State asked questions on the law of resisting arrest and assault and at what point
Appellant’s conduct became an assault rather than merely resisting arrest.
       The State argued that this line of questioning was an attempt to advance Appellant’s trial
strategy that although he may have resisted arrest, an offense for which he was not indicted,
Appellant did not assault the officer. As we have stated earlier, the record is silent regarding the
reasons for counsel’s conduct, and consequently, finding that counsel was ineffective would
require impermissible speculation. Gamble, 916 S.W.2d at 93. Appellant did not meet his burden
to show how the outcome would have been different had counsel not opened the door to such a
line of questioning.
Variance
       As to the remaining twenty-second ground, Appellant argues that counsel failed to object
to a variance between the prior conviction alleged and used to enhance punishment. Specifically,
the indictment alleges an enhancement for a prior “burglary” conviction on June 25, 1992, cause
number 21,263-272, in the 272nd District Court of Brazos County, Texas. The actual offense used
to enhance his punishment level was for an “attempted burglary of a habitation.”
       The purpose of an enhancement allegation is to provide the accused with notice of the prior
conviction relied upon by the state. Coleman v. State, 577 S.W.2d 486, 488 (Tex. Crim. App.
1979). The object of the doctrine of variance is to avoid prejudicial surprise to the defendant.
Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986). A variance between the offense alleged
in an enhancement paragraph and the proof presented at trial is material and fatal only if the
variance was such as to mislead the appellant to his prejudice. Id.
       The conviction date, cause number, and district court number were all correct. Moreover,
Appellant pleaded true to the enhancement, and there was no evidence that he was surprised by it
or that the State intended to mislead him to his detriment. The enhancement paragraph in the
indictment contained all the correct information with the exception of the name of the offense—



                                                 9
an “attempted burglary of a habitation” as opposed to a “burglary.” This sort of variance has been
held to not be fatal. See id. at 42–43 (holding that variance not fatal when enhancement paragraph
alleged prior conviction for bank robbery while proof showed conviction was for conspiracy to
commit bank robbery); Williams v. State, 980 S.W.2d 222, 226–27 (Tex. App.—Houston [14th
Dist.] 1998, pet. ref’d) (holding that variance not fatal when enhancement paragraph alleged grand
theft auto while proof showed conviction for taking a vehicle without the owner’s consent); Barrett
v. State, 900 S.W.2d 748, 752 (Tex. App.—Tyler 1995, pet. ref’d) (holding that variance not fatal
when enhancement paragraph alleged prior conviction for burglary of a building while proof
showed conviction for attempted burglary of a building). Accordingly, even assuming that counsel
should have objected, an objection that would have been properly overruled, Appellant could not
have been prejudiced by his failure to object to the variance.
Cumulative Effect of Errors
       Appellant finally argues that the cumulative effect of counsel’s errors caused a breakdown
in the adversarial process sufficient to undermine our confidence in the outcome of his trial.
       The concept of “cumulative error” has been extended to ineffective assistance of counsel
claims. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (citing Stahl v.
State, 749 S.W.2d 826, 832 (Tex. Crim. App. 1988)). However, as the Chamberlain court noted,
there is no authority for the proposition that the cumulative effect of non-errors requires reversal.
Chamberlain, 998 S.W.2d at 238. Additionally, the mere existence of multiple errors does not
warrant reversal unless they operated in concert to undermine the fundamental fairness of the
proceedings. Estrada v. Smith, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010). Finally, if an
appellant’s individual claims of error lack merit, then there is no possibility of cumulative error.
Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009).
       Appellant identifies the alleged deficiencies in his brief, but he does not attempt to explain
how each individual deficiency prejudiced the outcome of the case. Rather, he simply argued that
the raw number of errors caused prejudice. We have addressed the complaints lodged against his
trial counsel. The alleged actions of ineffectiveness are either not deficient, the record has not
been developed to establish counsel’s strategy, or Appellant could not have been prejudiced by the
action. In other words, there is little or nothing to cumulate. Therefore, we cannot conclude that
this is one of those rare cases where the cumulative effect of the ineffective assistance warrants




                                                 10
reversal of the judgment on direct appeal. See Estrada, 313 S.W.3d at 311; see also Gamboa, 296
S.W.3d at 585.
         Appellant’s sole issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, the judgment of the trial court is affirmed.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered September 19, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                         11
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 19, 2018


                                         NO. 12-17-00105-CR


                                       VICTOR ALVARADO,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 272nd District Court
                    of Brazos County, Texas (Tr.Ct.No. 15-00995-CRF-272)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
