                                     NUMBER 13-08-00594-CR

                                     COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


JOSE MIGUEL VASQUEZ JR.,                                                                         Appellant,

                                                        v.

THE STATE OF TEXAS,                                                                                Appellee.


                          On appeal from the 107th District Court
                               of Cameron County, Texas.


                                 MEMORANDUM OPINION

                     Before Justices Yañez, Garza, and Benavides
                       Memorandum Opinion by Justice Yañez

        A jury found appellant, Jose Miguel Vasquez Jr., guilty of murder, and the trial court

sentenced him to life imprisonment.1 Appealing pro se,2 appellant contends, by five issues,


        1
            See T EX . P EN AL C OD E A N N . § 19.02(b), (c) (Vernon 2003), § 12.32 (Vernon Supp. 2010).

        2
          On January 8, 2009, this Court abated this appeal and instructed the trial court to determ ine whether
appellant: (1) desired to prosecute his appeal; (2) had been denied effective assistance of counsel; and (3)
was indigent and entitled to court-appointed counsel. On February 12, 2009, the trial court held a hearing.
At the hearing, appellant asserted that his trial counsel had rendered ineffective assistance and advised the
court that he wished to proceed with his appeal pro se. Appellant specifically rejected the assistance of court-
that: (1) the trial court erred in admitting DNA evidence against him because the State

failed to establish the reliability of the procedures used to test the DNA evidence;3 (2) the

State engaged in “prosecutorial misconduct” by refusing to release DNA evidence to the

defense’s expert for re-testing; (3) the State’s failure to release DNA evidence for re-testing

constituted a Brady violation;4 (4) his trial counsel rendered ineffective assistance; and (5)

the reporter’s record is incomplete because it fails to include some matters that appellant

“clearly recalls” from trial. We affirm.

                                           I. Background

        At trial, the State presented the testimony of Ana Ayala and Andres Garcia, among

others. Ayala testified that on the evening of May 15, 2006, she was “getting high” on

crack cocaine with appellant, George Garza (the murder victim), and several others at the

home of Pablo Cortez. While at Cortez’s home, Ayala heard appellant tell Garza that he

(appellant) would kill Garza in less than two hours. Shortly thereafter, Ayala, Garza, and

appellant went to Garcia’s house. Garcia, in his own vehicle, drove Garza to a local park.

Appellant and Ayala followed, with Ayala driving Garza’s truck. When they arrived at the

park, appellant instructed Ayala to wait; he drove away with Garza and Garcia. A short

while later, only Garcia and appellant returned. According to Ayala, appellant was covered

in blood. Appellant showed her Garza’s knife (which he had borrowed earlier in the

evening), licked the knife, and told Ayala that he had killed Garza with his own weapon.

Ayala and appellant then drove to Garcia’s house. Ayala waited in the car while appellant


appointed counsel. The trial court declined to m ake any finding regarding appellant’s claim s of ineffective
assistance because of appellant’s intent to raise such issues on appeal. The trial court granted appellant’s
request to proceed pro se and ordered that he be provided with a free copy of the record.

        3
         In a sub-issue, appellant also com plains that the State failed to release DNA sam ples to the
defense’s DNA expert for re-testing. W e note that this sub-issue is also raised in appellant’s second issue.


        4
            See Brady v. Maryland, 373 U.S. 83, 87 (1963).

                                                     2
removed his bloody clothing and gave it to Garcia’s father. Appellant rinsed off with a hose

and put on clean clothes. Ayala and appellant then went to eat at a coffee shop. Later

that day, appellant and Ayala rented a room at a motel. They left the motel in a friend’s

car to obtain some drugs. Appellant sat in the back seat behind the driver’s seat.

According to a police officer’s testimony, the murder weapon was later recovered from

beneath the vehicle’s cushion where appellant was seated.

       Garcia testified that appellant asked him to drive appellant and Garza into the park.

Garcia testified that, at the park, Garza and appellant were outside the vehicle arguing.

He saw appellant “hitting” Garza with both hands. Appellant returned to the car, leaving

Garza behind. Appellant was breathing fast and told Garcia to take him back to the truck.

                                      II. Discussion

       By his first issue, appellant complains that: (1) the State failed to release DNA

evidence to the defense for re-testing; and (2) the State’s DNA evidence was

“inadmissible” because the State “failed to establish the general acceptance or inherent

rationality of the process” of its DNA-testing procedures, which resulted in a finding that

DNA on the murder weapon was consistent with appellant’s DNA. The State responds

that: (1) testimony by the defense’s DNA expert, Aliece Watts, established that the State

did, in fact, release DNA evidence to the defense for further testing; (2) Watts testified that

she generally accepted the methodology of the State’s expert; and (3) the defense did not

preserve any challenge to the State’s DNA-testing procedures because it did not object to

the admission of the State’s DNA evidence.

       Watts testified that, although the State did provide DNA evidence to a defense-

designated laboratory for additional testing, no additional testing was done because of a

“communications breakdown.” Watts also testified that appellant could not be excluded


                                              3
as a contributor to the DNA that was found on the murder weapon. We disagree with

appellant’s assertion that the State failed to establish the reliability of its DNA-testing

procedures. The State’s DNA expert, Dr. Laura Gahn, testified that she was the laboratory

director at Identigene, the laboratory where the State’s DNA testing was conducted in this

case. Dr. Gahn described the testing methods used on the evidence samples and the

reference samples in this case. As the State notes, the defense did not object at trial to

the DNA-testing procedures utilized by the State’s expert.5 Dr. Gahn testified that the

“major contributor” to the DNA found on the knife was Garza, the victim. According to Dr.

Gahn, additional DNA was found on the knife from a “lower level contributor”; this DNA is

consistent with appellant’s DNA.

         We hold that: (1) the State did release DNA evidence to the defense for re-testing;

and (2) the defense failed to preserve any challenge to the reliability of the State’s DNA-

testing procedures by failing to object on that basis.6 We overrule appellant's first issue.

         By his second issue, appellant contends that the State engaged in “prosecutorial

misconduct” by failing to release DNA evidence to the defense for re-testing. As noted, the

record shows that the State did release the DNA evidence to the defense-designated

laboratory for re-testing. Accordingly, we overrule appellant's second issue.


        5
          Appellant’s counsel objected to the State’s evidence only on the basis of “hearsay”; the objection
was overruled. The State elicited testim ony from Dr. Gahn that her “statistics and analysis” were based on
“[a]ccepted scientific m ethod” and that her laboratory had the proper accreditation and certification.
Appellant’s counsel did not object to this testim ony.

         6
           See T EX . R. A PP . P. 33.1; T EX . R. E VID . 103; Martinez v. State, 91 S.W .3d 331, 335 (Tex. Crim . App.
2002) (stating, under Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103, “the party
com plaining on appeal . . . about a trial court’s adm ission, exclusion, or suppression of evidence, ‘m ust, at
the earliest opportunity, have done everything possible to bring to the judge’s attention the evidence rule or
statute in question and its precise and proper application to the evidence in question.’”); see also W hatley v.
State, No. 13-07-568-CR, 2009 Tex. App. LEXIS 556, at **24-25 (Tex. App.–Corpus Christi Jan. 29, 2009,
pet. ref’d) (m em . op., not designated for publication) (noting that “[t]he court of crim inal appeals has
‘consistently held that the failure to object in a tim ely and specific m anner during trial forfeits com plaints about
the adm issibility of evidence. This is true even though the error m ay concern a constitutional right of the
defendant.’” (quoting Saldano v. State, 70 S.W .3d 873, 889 (Tex. Crim . App. 2002))).

                                                           4
       By his third issue, appellant complains that the State's failure “to turn over DNA

discovery evidence to the defense constituted a Brady violation on the part of the State.”7

Again, the State did turn over DNA evidence to the defense for re-testing.                     Thus,

appellant’s contention is not supported by the record, and we overrule his third issue.

       By his fourth issue, appellant contends that his trial counsel was ineffective

because, even though the State refused to release the DNA samples for re-testing, his

counsel “abandoned attack of the DNA evidence used to convict the appellant knowing the

evidence was questionable.” In sub-issues, appellant contends his counsel was ineffective

for: (1) failing to request a stay in the trial proceedings until questions regarding the DNA

evidence were resolved; and (2) failing to object to the State’s suggestion that appellant

was a member of a gang and was motivated by gang activity.

       Ineffective assistance of counsel claims are evaluated under the two-part test

articulated by the United States Supreme Court in Strickland v. Washington.8                     The

Strickland test requires the appellant to show that counsel's performance was deficient, or

in other words, that counsel’s assistance fell below an objective standard of

reasonableness.9 Assuming appellant has demonstrated deficient assistance, he must

then show that there is a reasonable probability that, but for counsel’s errors, the result

would have been different.10 In determining the validity of appellant's claim of ineffective

assistance of counsel, “any judicial review must be highly deferential to trial counsel and




       7
           See Brady, 373 U.S. at 87.

       8
         See Goodspeed v. State, 187 S.W .3d 390, 392 (Tex. Crim . App. 2005) (citing Strickland v.
W ashington, 466 U.S. 668, 687 (1984)); Thompson v. State, 9 S.W .3d 808, 812 (Tex. Crim . App. 1999).

       9
           Thompson, 9 S.W .3d at 812; see Strickland, 466 U.S. at 687.

       10
            Thompson, 9 S.W .3d at 812; see Strickland, 466 U.S. at 694.

                                                     5
avoid the deleterious effects of hindsight.”11

        The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence.12 Appellant must overcome the strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance and that

his actions could be considered sound trial strategy.13                      A reviewing court will not

second-guess legitimate tactical decisions made by trial counsel.14 Counsel’s effectiveness

is judged by the totality of the representation, not by isolated acts or omissions.15

        An allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness.16 Here, the record is silent

regarding trial counsel’s reasons for failing to: (1) pursue a strategy of attacking the State’s

DNA evidence; (2) request a stay in the trial proceedings until resolution of issues

regarding the DNA evidence; and (3) object to the State’s suggestion that appellant

belonged to a gang and was motivated by gang activity. Appellant has not overcome the

strong presumption that counsel’s conduct fell within the wide range of reasonable


        11
             Thompson, 9 S.W .3d at 813.

        12
             Id.

        13
          See Strickland, 466 U.S. at 689; Jaynes v. State, 216 S.W .3d 839, 851 (Tex. App.–Corpus Christi
2006, no pet.).

        14
          State v. Morales, 253 S.W .3d 686, 696 (Tex. Crim . App. 2008) (“[U]nless there is a record sufficient
to dem onstrate that counsel's conduct was not the product of a strategic or tactical decision, a reviewing court
should presum e that trial counsel's perform ance was constitutionally adequate ‘unless the challenged conduct
was so outrageous that no com petent attorney would have engaged in it.’”).

        15
             Thompson, 9 S.W .3d at 813; Jaynes, 216 S.W .3d at 851.

        16
            Bone v. State, 77 S.W .3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W .3d at 814 (setting
out that “in the vast m ajority of cases, the undeveloped record on direct appeal will be insufficient for an
appellant to satisfy the dual prongs of Strickland”); see Jackson v. State, 877 S.W .2d 768, 771 (Tex. Crim .
App. 1994) (en banc) (stating that “we m ust presum e that counsel is better positioned than the appellate court
to judge the pragm atism of the particular case, and that he m ade all significant decisions in the exercise of
reasonable professional judgm ent” and that “[d]ue to the lack of evidence in the record concerning trial
counsel’s reasons” for the alleged ineffectiveness, the court was “unable to conclude that appellant’s trial
counsel’s perform ance was deficient.”) (internal citations om itted).

                                                       6
professional assistance and that his actions could be considered sound trial strategy.17

Furthermore, appellant does not contend with proper citation to authority and a clear and

concise argument that there is a reasonable probability that but for trial counsel’s alleged

errors, the result would have been different.18 Therefore, appellant has not met his burden

to prove ineffective assistance of counsel by a preponderance of the evidence.19 We

overrule appellant’s fourth issue.

        By his fifth issue, appellant contends that the reporter’s record is neither accurate

nor complete. Specifically, appellant contends that volumes 12 and 16 of the reporter’s

record are incomplete because he recalls that his counsel advised the trial court that the

State had not released DNA samples to the defense’s DNA expert. According to appellant,

this exchange is not included in the reporter’s record, and the record is therefore

incomplete.

        Volume 12 of the reporter’s record comprises a transcript of a pre-trial hearing, held

on April 10, 2008, approximately four months before trial. At the hearing, the trial court

granted defense counsel’s motion for a continuance to postpone trial until after the defense

was given an opportunity to conduct its own testing of the DNA evidence.

        Volume 16 of the reporter’s record reflects a pre-trial hearing on the State’s motion

for the defense to produce documents. The hearing took place on August 6, 2008, six

days before the beginning of trial. At the hearing, the State complained that it had turned

over DNA samples and other evidence, including the knife, to the defense-designated


        17
             See Strickland, 466 U.S. at 689; Jaynes, 216 S.W .3d at 851.

        18
            Thompson, 9 S.W .3d at 812; see Strickland, 466 U.S. at 694; see also T EX . R. A PP . P. 38.1(i).
Appellant asserts, without argum ent or citation to the record, only this sentence: “Trial records show the
deficient perform ance of appellant[’]s attorney and but for counsel[’]s errors[, the] probability exist[s] that the
ultim ate result would have been different.”

        19
             Thompson, 9 S.W .3d at 813.

                                                         7
laboratory, and the evidence had still not been returned. Moreover, the State complained

that defense counsel had not provided any documents or reports from the defense-

designated laboratory regarding DNA testing. Defense counsel explained that there were

no documents or reports pertaining to DNA testing because the defense-designated

laboratory had not conducted any DNA testing. Defense counsel advised the court that

the defense-designated laboratory did not conduct any DNA testing of the evidence

because the laboratory had recently moved its headquarters to another state.

         Appellant complains that he is “prejudiced” because the record does not reflect his

counsel’s statement to the trial court that the State never released the DNA evidence to

the defense for testing. The record, however, clearly reflects that the DNA evidence was

provided to the defense for testing, but that such testing did not occur.          We are

unpersuaded that the record is incomplete or inaccurate, and we overrule appellant’s fifth

issue.

                                      III. Conclusion

         We affirm the trial court’s judgment.


                                                         LINDA REYNA YAÑEZ,
                                                         Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the
4th day of November, 2010.




                                                 8
