                             NUMBER 13-14-00135-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

JOSE ALFREDO GALLEGOS,                                                         Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


                    On appeal from the 92nd District Court
                         of Hidalgo County, Texas.


                          MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
             Memorandum Opinion by Justice Benavides

       Appellant, Jose Alfredo Gallegos, challenges his conviction for the offense of

assault against a family member, a third-degree felony. See TEX. PENAL CODE ANN. §

25.11 (West, Westlaw through Chapter 46 2015 R.S.). By three issues, which we treat

as two, Gallegos asserts that: (1) his trial counsel provided ineffective assistance; and (2)

he was harmed by cumulative error. We affirm.
                                       I. BACKGROUND

       Two separate incidents within a 12-month period led to Gallegos being charged

with third degree felony assault of Maria Garcia, whom he dated for five years. The first

incident occurred on July 2, 2012, during a cookout at Garcia’s residence. Several

members of Garcia’s family and friends attended the cookout.          On three separate

occasions that evening, Gallegos engaged in arguments with Garcia. Gallegos left the

cookout, along with Garcia’s guests, which left Garcia alone with her two children. Later

that evening, Gallegos entered Garcia’s residence through the kitchen door, walked

towards Garcia in the kitchen, and confronted her. Gallegos grabbed Garcia, struck her,

and caused her to fall on her face. As Garcia attempted to defend herself, her children

intervened, which prompted Gallegos to leave the scene. Two days later, Garcia filed

criminal charges against Gallegos. Officer Troy Williams of the Elsa Police Department

took Garcia’s initial report, which started the investigation.

       The second incident occurred on August 23, 2012, under similar facts as the July

2nd incident. Garcia hosted a cookout at her residence, and Gallegos showed up twice

uninvited.   Again, later that evening, Gallegos returned, broke Garcia’s residence’s

window, entered the house, and hit Garcia with his hand. Gallegos was arrested for this

incident three months later.       The State indicted Gallegos the following year for

intentionally, knowingly, or recklessly causing bodily injury to Garcia on July 2nd and

August 23rd, 2012. See Id.

       During Gallegos’ trial, the State introduced testimony from fact witnesses, police

officers, investigators, and Garcia. Garcia’s thirteen-year old daughter testified that she

attempted to restrain Gallegos at the time of the July incident. Garcia’s eleven-year-old



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son testified that he had also attempted to aid Garcia. Additionally, the State submitted

photographs of Garcia’s injuries from both assaults into evidence.

       The jury found Gallegos guilty as charged and assessed Gallegos’ punishment at

fifteen years’ imprisonment in the Texas Department of Criminal Justice—Institutional

Division with a $5,000.00 fine. This appeal followed.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

   By two issues, which we treat as one, Gallegos asserts that his trial counsel was

ineffective.

   A. Standard of Review

       To prevail on a claim for ineffective assistance of counsel, the defendant must

meet two prongs: (1) appellant must show that his counsel rendered a deficient

performance; and (2) that as a result of his counsel’s deficient performance, his defense

was prejudiced. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77

S.W.3d 828, 833 (Tex. Crim. App. 2002). Specifically, an appellant must show that his

counsel's representation fell below the objective standard of professional norms. Id.

Appellant “must show a reasonable probability that, but for his counsel's unprofessional

errors, the result of the proceeding would have been different.” Mitchell v. State, 68

S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc). A “reasonable probability” is one

sufficient to undermine confidence in the outcome. Id. It is not sufficient for an appellant

to show “that the errors had some conceivable effect on the outcome of the proceeding.”

Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (citing Strickland, 466

U.S. at 693). Rather, an appellant must show that “there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id.



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(quoting Strickland, 466 U.S. at 695). Therefore, the “benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so undermined the proper functioning

of the adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland, 466 U.S. at 686.

       In evaluating the first prong of Strickland, counsel’s competence is presumed and

the defendant must rebut this presumption by proving that his attorney’s representation

was unreasonable under prevailing professional norms and that the challenged action

was not sound strategy. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). If the

appellant fails to prove one prong of the test, we need not evaluate the other prong. See

Strickland at 697; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). A

defendant's failure to satisfy one prong of the Strickland test negates the court's need to

consider the second prong of the analysis. Cueva v. State, 339 S.W.3d 839, 857 (Tex.

App.—Corpus Christi 2011, pet. ref'd) (citing Strickland, 466 U.S. at 697). Moreover,

counsel’s performance is deficient when his representation falls below an objective

standard of reasonableness, unless a defendant can show in the record that counsel’s

conduct was not the product of a strategic decision. Id. 858.

   B. Discussion

       Gallegos first argues that his trial counsel was ineffective because he failed either

through a motion in limine or an objection to the State’s characterization of Garcia as “the

“victim” a total of fifteen times throughout the trial.

       Gallegos cites a Connecticut decision for support. See State v. Cortez, 276 Conn.

241, 249 (2005). In Cortez, the court held the phrase “the victim” had prejudiced the

defendant. Id. at 250. The complainant in Cortez was referred to as “the victim” a total



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of 76 times. In contrast, in this case, Garcia was referred as the victim fifteen times.

However, Cortez was explicitly overruled by a later decision by the Connecticut Supreme

Court. See State v. Ciullo, 314 Conn. 28, 54-55, 100 A.3d 779, 796 (2014) (concluding

that even if the reference to the laborers as “the victims” was improper, the outcome of

the case would have remained unaltered).

       Considering that a decision from an out of state court has no precedential value in

a Texas court, Gallegos’s reliance on these cases are unpersuasive. Instead, we look to

Texas case law for guidance. Gallegos argues that use of the phrase “the victim” by the

prosecutor and witnesses should have prompted objections by trial counsel. A similar

issue was dealt with in Weatherly v. State, 283 S.W.3d 481, 486 (Tex. App.—Beaumont

2009, pet. ref’d). In Weatherly, the court held that use of the word “victim” was found not

to be inflammatory or prejudicial as to necessarily cause harm to the defendant when

used occasionally in trial by the attorneys or witnesses. Id. Gallegos cites various

portions of the record where the State’s witnesses referred to Garcia as the victim. In

view of the totality of counsel’s representation and the totality of the record, the failure to

object to the use of the word “victim” in the cited instances in the trial was not an error.

Id. at 487. Additionally, in Cueva, counsel’s performance did not fall below the objective

standard of reasonableness by not objecting to the phrase “the victim.” Cueva, 339

S.W.3d at 864. The court in Cueva held that testimony regarding references to the

complainant as “victim” was: (1) credible; (2) did not cause prejudice; (3) and found that

such terms are commonly used at trial in a neutral manner to describe the events in

question. Id. This analysis is appropriate in this case. In our case, reference to Garcia

as “the victim” was credible because it identified her as the victim of the assault in



                                              5
question. The testimony by the witnesses did not cause prejudice because the use of

“the victim” identified Garcia as a victim to an assault and not that Gallegos was the

aggressor.

       Next, Gallegos argues that his trial counsel was ineffective for failing to object to

Officer Williams’s testimony on hearsay grounds. See TEX. R. EVID. 801(a). Gallegos

asserts that prior consistent statements or “backdoor” hearsay through inferences to out-

of-court statements should have been preempted through a motion in limine or an

objection. Officer Williams testified that Garcia had requested a protective order and

asked that Garcia be charged for the assault. Gallegos claims that Williams’s testimony

was “hearsay”, but does not argue how Gallegos’s trial counsel’s failure to object was not

strategic in order to rebut the presumption that his counsel’s performance was proper.

See Kimmelman, 477 U.S. at 384.            Furthermore, even if Gallegos rebutted the

presumption that his trial counsel’s performance was proper, he nevertheless fails to

show that as a result of his counsel’s alleged deficient performance for failing to object to

this testimony, his defense was prejudiced. See Strickland, 466 U.S. at 687. Thus, his

argument fails. We overrule Gallegos’ first issue.

                                  III. CUMULATIVE ERROR

       By his second issue, Gallegos asserts that he was harmed by cumulative error

related to his arguments based on ineffective assistance of counsel. Gallegos argues

that the “aforementioned errors” rendered the trial fundamentally unfair. Additionally,

Gallegos alleges that even if none of the errors alone rose to the magnitude of

constitutional breach, their cumulative effect does.




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       While it is conceivable that a number of errors may be found harmful in their

cumulative effect, no authority holds that non-errors may in their cumulative effect cause

error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (en banc).

Because we have found no error in this appeal, we overrule Gallegos’s second issue. Id.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                       GINA BENAVIDES,
                                                       Justice

Do Not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
2nd day of July, 2015.




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