Carell, Michael Dewayne ( 2015 )

IMIS
NO. PD-
ORIGINAL IN THE
3ECHMR
COURT OF CRIMINAL APPEALS
OCT 29 2015
FOR THE STATE OF TEXAS
Absi Acr. „ w.wi
From Cause No. 11-13-00220-CR
11th Court of Appeals, Eastland, Texas
MICHAEL DEWAYNE CARELL ,
PETITIONER FILED IN
COURT OF CRIMINAL APPEALS
v- 0CT29 2.;5
the state of Texas, Abel Acosta, Clerk
APPELLEE
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
PETITIONER PRO-SE: MICHAEL DEWAYNE CARELL #1863720
ALLRED UNIT
2101 FM 369 N.
Iowa Park, Tx. 76367
; TABLE OF CONTENTS
Names of all interested parties 2
Statement regarding Oral Argument 4
Statement of Procedural History 5
Statement of the Case 5
Questions For Review 8
I. DID THE 11th COA ERROR IN AFFIRMING THE APPELLANT'S
CONVICTION BASED ON A DECISION THAT CONFLICTS WITH THE
DECISION WITH ANOTHER COA'S ON THE SAME MATTER?
II. WHETHER THE 11th COA DECIDED AN IMPORTANT QUESTION OF STATE
OR FEDERAL LAW THAT HAS NOT BEEN, BUT SHOULD BE SETTLED BY
THE COURT OF CRIMINAL APPEALS?
III. WHETHER THE 11th COA DECIDED AN IMPORTANT QUESTION OF
STATE OR FEDERAL LAW IN CONFLICT WITH THE APPLICABLE.
DECISIONS OF THE COURT OF CRIMINAL APPEALS OR THE
UNITED STATES SUPREME COURT?
IV. WHETHER THE DECISION RENDERED BY THE 11th COA IS IN
CONFLICT WITH THIS HON. COURT'S RULING SET FORTH
IN: MENDEZ V. STATE, 138 S.W.3d 334 (Tex.Crim.App.2004),
THAT THE ISSUANCE OF AN ORDER OF REFERRAL TO A MAGISTRATE
UNDER TEX.GOV'T CODE ANN. § 54.657, IS A SYSTEMIC RIGHT
THAT ACCORDING TO THE TEXAS COURT OF CRIMINAL APPEALS
CANNOT BE WAIVED OR FORFEITED?
[Tex.R.App.Proc. Ann. 66.3 (a), (c) and (f) (Vernon Pam. 2012)]
Reasons For Review 8
Prayer For Relief 1°
Certificate of Service 11
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3.
NO. PD-
IN THE
COURT OF CRIMINAL APPEALS
FOR THE
STATE OF TEXAS
MICHAEL DEWAYNE CARELL,
PETITIONER
V.
THE STATE OF TEXAS,
APPELLEE
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now-Appellant, Michael Dewayne Carell, TDC#1863720,
Pro-Se, and respectfully urges this Court to GRANT discretionary
review in the above-numbered cause.
STATEMENT REGARDING ORAL ARGUMENT
The disposition of this case could have a substantial impact
on the appellate review of alleged errors. Should the Court desire
oral argument, Appellant requests that this Court appoint counsel
for such matters and to appear and discuss the issues with the Court.
STATEMENT OF PROCEDURAL HISTORY
Appellant, Michael Dewayne Carell, was indicted by a Grand
Jury for Tarrant County, Texas, for the offense of Aggravated
Robbery. See Tex.Penal Code Ann. § 29.03(a)(2) (West 2011). Appellant
with counsel, entered a plea of not guilty to the charge in the
indictment and the case was tried to a jury. The jury heard the
evidence and argument of counsel and found Appellant guilty as .
charged. Appellant pleaded true to the enhancement allegation and
the court sentenced Appellant to (50) fifty-years confinement in
the Texas Department of Criminal Justice, Institutional Division,
with no fine.
Appellant gave notice of appeal and the parties filed briefs.
On July 30, 2015 the 11th Court of Appeals affirmed Appellant's
conviction and sentence. Carell v. State, (not designated for
publication). No Motion-for-Rehearing was filed. This Petition
is being filed with the Texas Court of Criminal Appeals within
the statutory time limits and deadline set for October 30, 2015.
STATEMENT OF THE CASE
The Court of Appeals summarized the record regarding the offense
as follows:
Background Facts
Cody Dale Smith is an acquaintance of Appellant. Smith
testified that he, Appellant and others were up all night doing
drugs, including methamphetamine. Smith said that he drove Appellant
to a home around 6:30a.m. purportedly to borrow money from
Appellant's aunt so that Smith and Appellant could rent a motel
room. Smith testified that he and Appellant entered the home through
an unlocked door. After he saw Appellant pull out a gun, Smith
returned to his car. The home actually belonged to C.B. C.B.'s
neighbor's home surveillance video showed Smith's car drive past
C.B.'s home several times before the robbery. The video also
showed Smith and Appellant walk by.
5.
C.B. testified that a black male wearing jeans and a "blue
and striped" dress shirt entered her bedroom with a gun while
she was asleep. He woke her up and demanded cash and other
valuables. C.B. gave the man three rings from her bathroom because
she had no cash. C.B. then led a man to a bedroom where S.B.,
her son, was still in bed. The man again demanded valuables,
and he threatened to shoot C.B. and S.B. They collected additional
items from around the house because they feared for their lives.
The man took the rings, several firearms and C.B.'s purse from
the house. He subsequently abandoned the purse and firearms
in a park across the street.
Roger Soto, was interviewed and the police examined his
phone and found the numbers that had been called by the man
who approached him. Those numbers were to a number on the account
of Stacy McMillan, who informed the police that her son, Cody
Smith, his father.
A homeowner with a security camera system had recorded
video that morning that showed two men walking in the neighborhood
and showed a gold Taurus circling the block that morning.
Dtective Frizzell of the Grand Prairie police interviewed
Cody Smith, who admitted his involvement. Smith testified that
he had driven a person he said was Michael Carell to the area:
where the robbery occurred because Carell had told him that
his aunt lived in the house, that Smith had gone into the house
witlv Carell, that Smith saw pictures in the house of a white
family/ causing him to think that Carell's aunt did not live
there, that Smith saw Carell pull a gun before they encountered
anyone in the house and that Smith left the house at that time.
Smith testified that he had gone back to the gold Taurus
and had driven around for a while until he got a call from Carell
asking him to meet Carell at a nearby elementary, which he did,
and they then drove away from the area.
6.
After Dtective Frizzell interviewed Smith he obtained a
search warrant for the gold Taurus and in the trunk he found
a checkbook with checks containing the printed name of Michael
Carell.
Frizzell arrested Michael Carell, pursuant to an arrest
warrant he had obtained, and after the arrest, examined the
contents of Carell's wallet and found a business card of Amy's
Gold and Silver Exchange. Frizzell went to the business and
obtained records showing that a man claiming to be Michael Carell
had sold two rings to the business on the day of the robbery.
C.B. viewed a photo line-up identification procedure conducted
by lead investigator of the case-Detective Frizzell, but did
not identify Carell's photo as the robber. S.B. viewed the photo
spread, and identified Carell's photo, and the record of the
procedure indicated that a "tentative ID" was made and 80% sure
he was the person who came into the house.
Roger Soto viewed a phcito array, also made a "tentative
ID," and placed his level of certainty at 90%.
S.B. and Soto each identified a different photograph as
the person they saw that morning, and Frizzell testified that
both photographs were of Carell. S.B. could not identify anyone
in open court as his assailant, but Soto identified Carell in
open court as the man whom he talked with the morning of the
robbery.
QUESTIONS PRESENTED FOR REVIEW
I. Did the 11th Court of appeals error in affirming the appellant's
conviction based on a decision that conflicts with the decision
with another Court of Appeals on the same matter?
II. Whether the 11th Court of Appeals decided an important question
of state or federal law that has not been/ but should be settled
by the Court of Criminal Appeals?
III. Whether the 11th Court of Appeals decided an important question
of state or federal law in conflict with the applicable
decisions of the Court of Criminal Appeals or the United
States Supreme Court?
IV. Whether the decision rendered by the 11th Court of Appeals is
in conflict with this Hon. Court's ruling set forth in; Mendez
V. State, 138 S.W.3d 334 (Tex.Crim.App.2004), that the issuance
of an order of referral to a magistrate under Tex.Gov't Code
Ann. § 54.657, is a systemic right that cannot be waived or
forfeited?
[Tex.R.App.Proc. Ann. 66.3 (a), (c) and (f) (Vernon Pam.1012)].
REASONS FOR REVIEW [TRAP 66.3]
The 11th Court of Appeals (hereinafter 11th COA), affirmed
this conviction finding that appellant has waived his complaint under
Sectiin 54.657 of the Tex.Gov't Code because he did not object
to the magistrate presiding over jury selection. This case was
transferred to the 11th COA from the 2nd COA in Fort Worth pursuant
to an order of the Texas Supreme Court under the authority of section
73.001 of the Tex.Gov't Code. Gov't § 73.001. By which the 11th COA
states that in accordance with rule 41.3 of the Tex.Rules App.Proc.,
they [11th COA] are required to follow the precedent of the 2nd COA
unless, it appears that the transferor court itself would not be
bound by that precedent. [TRAP 41.3].
Section 54.651 of the Texas Government Code authorizes
the criminal district court judges of Tarrant County to appoint
magistrates who are empowered to carry out the duties set out
in 54.658, which includes the power to "select a jury." Presumably
our lawmakers intended by this that the magistrates may preside
over jury selection, since judges do not select juries.
Section 54.657 states as follows:
" (a) To refer one or more cases to a magistrate, a judge
must issue an order of Referral specifying the magistrate's
duties."
In the instant case, Honorable Gene Grant, A Tarrant County
Magistrate, presided over jury selection. The Clerk's Record
and the Reporter's Record do not include any order of referral
from Honorable Mollee Westfall, elected Judge of the 371st
District Court of Tarrant County.
The gist of the issues raised to the 11th.COA is that jury
selection conducted by an unelected magistrate without the
constitutional authority of a district judge, violated the appellant's
right to be tried in accordance with the Constitution and Laws
of the State of Texas.
Here, appellant asserts that the 11th COA rendered a decision
that is in conflict with another COA on the same mater and has
not been, but should be settled by this Honorable Court respectively.
Following its previous holding requiring a referral order
in Ex Parte Pardun, 727 S.W.2d 131 (Tex.Crim.App.-Dallas 1987),
the Dallas 5th District COA in Ex Parte Oscar Lopez DeLeon,
No. 05-11-00594, (Ct.App. Dallas 2011)-ruled that because there
was no order of referral the magistrate did not have the authority
Further, the established precedent decided by this Honorable
Court in: Mendez V. State, 138 S.W.3d 334, 342 (Tex.Crim.App.
2004) Held; "That because the Magistrate's duty to issue an
order of referral is not optional, it is a systemic right, and
therefore cannot be waived or forfeited."
Appellant's contention here is that the controlling caselaw
precedent should be that of this Honorable Court of Appeals
of Texas which is clearly established in the Mendez court, decided
in 2004 [emphasis added] and not that of the NASH court, infra,
decided by the lower court in 2003. (See; Nash v. State, 123
S.W.3d 534 (Tex.App.-Fort Worth 2003 pet.ref'd)).
In sum, the 11th COA incorrectly applied the controlling
caselaw authority on appeal by rejecting this Honorable Court's
precedent and replacing it with £Hat of the lower courts opinion.
Such assumptions are not contemplated by the law which requires
the issuance of an order of referral to a magistrate*is a "systemic
right" that cannot be waived or forfeited. In making this decision
the 11th COA DENIED appellant his right to a full and fair
review of his point of error raised in this appeal. Appellant
also has not been aforded the right to have his matters squarely
adjudicated.
PRAYER
Wherefore, Appellant prays that the Honorable Court of Criminal
Appeals GRANT review in this matter, that the case be set for
submission, and that after submission, this Hon. Court reverse the
judgement of the 11th COA and remand the case back to the Appeals
Court for Reconsideration.
Respectfull
ectruily Submitted,
/s//
(Appellant, Pro-Se
Michael Dewayne Carell #1863720
Allred Unit
2101 FM 369 N.
Iowa Park, Tx. 76367
10,
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 26th day
of October, 2015, the following have been completed:
(1) A legible copy of appellant's Petition for Discretionary
Review in the above cause number has been sent by U.S. Mail by
placing the Petition in the prison mailbox system on the above
date forwarde to:
Clerk of the
Texas Court of Criminal Appeals,
Attn: Abel Acosta
P.O. BOX 12308
Capitol Station
Austin, Tx. 78711
(Appellant, Pro-Se
(Abbellant, Pro-Sel^
Michael Dewayne Carell #1863720
Allred Unit
2101 FM 369 N.
Iowa Park, Tx. 76367
CC/File MDC 11.
Opinion filed July 30,2015
In The
Clekientf) Court of appeal*
No. 11-13-00220-CR
MICHAEL DEWAYNE CARELL, Appellant
. . , V.-
THE STATE OF TEXAS, Appellee
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court Cause No. 1295039D
MEMORANDUM OPINION
Michael Dewayne Carell appeals his jury conviction for aggravated robbery.
See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011). The trial court assessed his
punishment at confinement for a term of fifty years in the Institutional Division of
the Texas Department ofCriminal Justice. Appellant raises three issues on appeal.
We affirm.
Background Facts
Cody Dale Smith is an acquaintance of Appellant. Smith testified that he,
Appellant, and others were up all night doing drugs, including methamphetamine.
Smith saidthathe drove Appellant to a home around 6:30 a.m. purportedly to borrow
money from Appellant's aunt so that Smith and Appellant could rent a motel room.
Smith testified that he and Appellant entered the home through an unlocked door.
After he saw Appellant pull outa gun, Smith returned to his car. The home actually
belonged to CB. C.B.'s neighbor's home surveillance video showed Smith's car
drive past C.B.'s home several times before the robbery. The video also showed
Smith and Appellant walk by.
CB. testified that a black male wearing jeans and a "blue and striped" dress
shirt entered her bedroom with a gun while she was asleep. He woke her up and
demanded cash and other valuables. C.B. gave the man three rings from her
bathroom because she had no cash. C.B. then led the man to a bedroom where S.B.,
her son, was still in bed The man again demanded valuables, and he threatened to
shootC.B. and S.B. Theycollected additional items from around the house because
they feared fortheir lives. The man took therings, several firearms, andCB.'s purse
from the house. He subsequently abandoned the purse and firearms in a park across
the street.
Shortly after the robbery occurred, Appellant approached Rogelio Javier Soto
at a nearby construction site where Soto worked. Appellant asked Soto for a job,
and when Soto declined, Appellant asked to use Soto's cell phone to call for a ride.
Soto noticed that Appellant had a gun inhis waistband. Soto testified that Appellant
wore a "gray wife beater ... and jeans" and held "a Polo-looking shirt that was
striped, two color in tone." Appellant called Smith and asked him for a ride. Smith
testified that, when he picked up Appellant, Appellant showed him three rings and
told him that he had just robbed a woman.
Around 10 a.m., Smith and Appellant went to Amy's Gold and Silver, where
Appellant sold two rings. The store clerk testified that he bought two rings from
"Dewayne Carell," and his description of the two rings corresponded with C.B.'s
and Smith's description of two of the rings that had been stolen. The receipt of the
sale bears Appellant's signature. Appellant bought gas for Smith's car and rented a
motel room with the money from the sale of the rings. Smith testified that he later
talked with one of his friends and discovered that Appellant had obtained more
methamphetamine, which Smith thought Appellant purchased with the money from
the sale of the rings.
Alan Frizzell, a police officer for the city of Grand Prairie, checked Soto's
phone records. Frizzell was able to connect the phone calls that Appellant made
from Soto's phone to Smith. Detective Frizzell asked Smith to meet with him under
false pretenses. When Detective Frizzell confronted Smith about the robbery, Smith
told him that he thought he was taking Appellant to his aunt's house to borrow
money. Smith later admitted to Detective Frizzell that he went with Appellant for
the purpose of burglarizing the house.
Detective Frizzell prepared photo lineups to show C.B. and S.B. in order for
them to identify their assailant. Soto also viewed a photo lineup to identify the
person that approached him and used his cell phone. CB. could not identify the
assailant from the photographs, but S.B. and Soto made tentative identifications of
Appellant. S.B. and Soto each identified a different photograph as the person they
saw that morning, and Detective Frizzell testified that both photographs were of
Appellant. S.B. could not identify anyone in open court as his assailant, but Soto
identified Appellant in open court as the man whom he talked with the morning of
the robbery; Detective Frizzell obtained an arrest warrant for Appellant, and after
Appellant's arrest, Detective Frizzell searched him and found a business card for
Amy's Gold and Silver in Appellant's wallet. Detective Frizzell obtained the
records forthesale ofthetwo rings from Amy's Gold andSilver, and the sales clerk
provided receipts. i
[Analysis
Inhis first issue, Appellant contends that the magistrate who presided over the
jury selection was not authorized to| do so because the trial court did not issue an
order of referral to the magistrate. |ln his second issue, Appellant asserts that he
received ineffective assistance ofcounsel. In his final issue, Appellant contends that
the evidence was insufficient to support his conviction.
We will address Appellant's sufficiency issue first. We review a sufficiency
of the evidence issue under the standard of review set forth in Jackson v. Virginia,
443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893,912 (Tex. Crim. App. 2010);
Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. refd).
Underthe Jackson standard, we reviewall ofthe evidence in the light most favorable
to the verdict and determine whether any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider allthe evidence admitted
at trial, including evidence that may have been improperly admitted. Winfrey v.
State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d
772,778 (Tex. Crim. App. 2007). We defer tothe factfinder's role asthe sole judge
of thewitnesses' credibility andtheweight theirtestimony is to be afforded. Brooks,
323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at
778. When the record supports conflicting inferences, wepresume that the factfinder
resolved the conflicts in favor of the prosecution, andwe deferto thatdetermination.
Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
The indictment alleged that, while in the course of committing theft of
property and with intent to obtain or maiiitain control of said property, Appellant
intentionally or knowingly threatened or placed CB. in fear of imminent bodily
injury or death and that Appellant used or exhibited a deadly weapon, to-wit: a
firearm, indoing so. See Penal §§ 29.02(a)(2), 29.03(a)(2) (West 2011), §31.03(a),
(b)(1) (West Supp. 2014). Appellant acknowledges that there is no dispute that CB.
was the victim of a robbery on the date in question. He directs his challenge to the
sufficiency ofthe evidence on the purported lack ofphysical evidence linking him
to the robbery and purported deficiencies in the witnesses' identification of him as
the assailant.
As noted previously, Smith testified that he and Appellant traveled to C.B.'s
home and that they entered it without C.B.'s consent. Smith further testified that
Appellant had a gun at the home. Smith later picked up Appellant after Appellant
called him. Smith testified that Appellant possessed three rings at that time that he
said he had juststolen from a woman. C.B. testified that she gave her assailant three
rings. C.B.'s neighbor's home surveillance video showed Smith's car pass by
several times and also showed Smith along with a black male walking by that
location. Smith identified Appellant as the person with him in the video, and S.B.
said the personaccompanying Smith on the video looked similar to his assailant.
The clerk from Amy's Gold and Silver testified that hebought two rings from
"Dewayne Carell" and that the rings he purchased fit C.B.'s and Smith's description
of the stolen rings. The clerk bought the rings at the same approximate time that
Smith said that he and Appellant went to sell the rings. Furthermore, the receipt for
the transaction bears Appellant's signature. Additionally, Detective Frizzell found
a business card in Appellant's wallet from the business that bought the riigs.
Although Soto only made atentative identification of Appellant injthe photo
lineup, he identified Appellant inopen court. Soto testified that Appellant had agun
and wore a striped shirt and jeans when he talked with him. Soto's description of
Appellant was similar to CB.'s description of her assailant. Soto's cell phone
records ofthe call Appellant made on his phone connected Appellant to Smith.
Although Smith gave two different versions of his involvement with the
robbery to Detective Frizzell, he never changed his story about Appellant's
involvement. Additionally, the trial court instructed the jury on the corroboration
requirement for accomplice witness testimony. See Tex. Code Crm. Proc. Ann.
art. 38.14 (West 2005). There was ample non-accomplice evidence to corroborate
Smith's testimony, and the non-accomplice evidence tended toconnect Appellant to
the offense. Viewing all of the evidence in the light most favorable to the verdict,
we hold that a rational trier of fact could have found that Appellant committed the
offense ofaggravated robbery as alleged in the indictment. Accordingly, sufficient
evidence supports Appellant's conviction. We overrule Appellant's third issue.
Appellant argues in his first issue that the magistrate who presided over jury
selection was unauthorized to do so. Chapter 54, Subchapter H of the Texas
Government Code provides for the use of magistrates in Tarrant County. Tex.
GOV'T Code Ann. § 54.651-663 (West 2013). The statute specifically permits the
referral of proceedings involving jury selection to magistrates. Id. §§ 54.656(d),
54.658(14). Section 54.657 requires the trial court to issue an order of referral in
order to refer a matter to a magistrate. Id. § 5.4.657.
Appellant contends that, inthe absence ofan order ofreferral as required by
Section 54.657, the magistrate had no authority to act. Appellant cites Ex parte
DeLeon, No. 05-11-00594-CR, 2011 WL 3690302 (Tex. App.—Dallas Aug. 24,
2011, no pet.) (not designated for publication), in support of this proposition. In
reviewing a similar statute, the Dallas Court ofAppeals held in DeLeon that the
issuance of an order of referral to a magistrate is a "systemic right" that cannot be
waived or forfeited. Id. at *2 (citing Mendez v. State, 138 S.W.3d 334, 342 (Tex.
CrimApp"O^)^ Accordingly, the court held in DeLeon that a party is not
required to preserve error in the trial court regarding the absence of an order of
referral to a magistrate. Id.
Appellant did not object to the magistrate presiding overjury selection. Citing
cases from the Fort Worth Court of Appeals, the State contends that Appellant's
failure to object constitutes a waiver of his complaint on appeal. We agree. This
case has been transferred to us from the Second Court of Appeals in Fort Worth
pursuant to an order of the Texas Supreme Court under the authority of Section
73.001 of the Texas Government Code. Gov't § 73.001. In accordance with Rule
41.3 of the Texas Rules of Appellate Procedure, we are required to follow the
precedent of the Fort Worth Court of Appeals unless it appears that the transferor
court itself would not be bound by that precedent. Tex. R. App. P. 41.3.
The Fort Worth Court of Appeals has held that a defendant must object to a
magistrate presiding over jury selection in order to preserve error for appellate
review. Nash v. State, 123 S.W.3d 534, 536-37 (Tex; App.—Fort Worth 2003, pet
refd); Lemasurier v. State, 91 S.W.3d 897, 900 (Tex. App.—Fort Worth 2002, pet.
refd); McKinney v. State, 880 S.W.2d 868, 870 (Tex. App.—Fort Worth 1994, pet.
refd); see Guerrerov. State, No. 02-13-00611-CR, 2015 WL 1407748, at *4 (Tex.
App.—Fort Worth April 30, 2015, no pet.) (mem. op., not designated for
publication) (holding "that in order to challenge a trialcourt's referral of voirdireto
a magistrate, the appellant must have preserved error inthe trial court"). The recent
opinion in Guerrero is particularly instructive because the Fort Worth Court of
Appeals expressly rejected the holding inDeLeon. Guerrero, 2015 WL 1407748, at
*4. The court held that its holding in Nash is controlling on the issue. Id.
Accordingly, Appellant has waived his complaint under Section 54.657 because he
did not object to the magistrate presiding over jury selection. We overrule
Appellant's first issue.
Appellant contends in his second issue that he received ineffective assistance
ofcounselbecausehis trial counselfailedto (1) objectto extraneous offenses ofdrug
possession and use, (2) challenge questionable jurors for cause, (3) object to items
seized from Appellant's wallet, and (4) vigorously cross-examine witnesses about
photo identification procedures. To determine whether Appellant's trial counsel
rendered ineffective assistance, we must first determine whether Appellant has
shown that his counsel's representation fell below an objective standard of
reasonableness and, if so, then determine whether there is a reasonable probability
that the result of the proceeding would have been different but for his counsel's
errors. Strickland v. Washington, 466 U.S. 668,687 (1984); Hernandez v. State, 726
S.W.2d 53,55-57 (Tex. Crim. App. 1986). A failure to make a showing under either
prong of the Strickland test defeats a claim of ineffective assistance of counsel.
Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
We must indulge a strong presumption that counsel's conduct fell within the
wide range ofreasonable professional assistance, and Appellant must overcome the
presumption that, under the circumstances, the challenged action could be
considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25
S.W.3d 707,712 (Tex. Crim. App. 2000). Anallegation of ineffective assistance of
counsel must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814
(Tex. Crim. App. 1999). With respect to allegations of ineffective assistance of
counsel, the record on direct appeal is generally undeveloped and rarely sufficient
to overcome the presumption that trial counsel rendered effective assistance. Bone v.
State, 11 S.W.3d828,833 (Tex. Crim. App. 2002); Thompson,*} S.W.3dat 813-14.
The Court of Criminal Appeals has said that "trial counsel should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective." Rylanderv. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003), If
trial counsel has not had an opportunity to explain his actions, we will not find
deficient performance unless the challenged conduct was "so outrageous that no
competent attorney would have engaged init." Garcia v. State, 57 S.W.3d 436,440
(Tex. Crim. App. 2001). We note at the outset ofour analysis that Appellant did not
file amotion for new trial. Accordingly, trial counsel has not had an opportunity to
explain his actions.
Appellant first contends that his trial attorneys were ineffective because they
failed to object to the introduction ofextraneous offenses pertaining to Appellant's
drug possession and drug use. In order to prevail on this contention, Appellant must
establish that the evidence was inadmissible because defense counsel's failure to
object to acEaissibTejyidence does not constitute meffective^ssisMceof.counsel,.
"See Exparte Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App. 2012). Rule 404(b)
incorporates the fundamental tenet of our criminal justice system that an accused
may be tried only for the offense for which he is charged, not for his criminal
propensities. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996); see
Tex. R. Evid. 404(b). For an extraneous offense to be admissible, itmust be relevant
apart from supporting an inference ofcharacter conformity. Montgomery v. State,
810 S.W.2d 372,387 (Tex. Crim. App. 1991). The State contends that the evidence
cited by Appellant had relevance apart from character conformity because it
constituted either same transaction contextual evidence or provided relevant
evidence about Appellant's drug-related motive to commit aggravated robbery.
As we stated in Greene v. State, 287 S.W.3d 277, 283 (Tex. App.—Eastland
2009, pet, refd):
Extraneous offense evidence may be admissible for purposes
other than those expressly listed in Rule 404(b). For example, such
evidence may be admissible as same transaction contextual evidence,
which has been defined as evidence of other offenses connected with
the offense charged. Wyatt v. State, 23 S.W.3d 18,25 (Tex. Crim. App.
2000); Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993);
Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.]
2003, pet. dism'd). "[I]t has long been the rule in this State that the jury
is entitled to know all relevant surrounding facts andcircumstances of
the charged offense; an offense is not tried in a vacuum." Moreno v.
State, 121 S.W.2d 295,301 (Tex. Crim. App. 1986). Same transaction
contextual evidence is admissible under Rule 404(b) to the extent that
it is necessary to the jury's understanding ofthe charged offense, such
as when the charged offense would make little or no sense without it.
Wyatt, 23 S.W.3d at 25; Swarb, 125 S.W.3d at 681. The purpose of
admitting extraneous offense evidence as same transaction contextual
evidence isto place the instant offense in context. Nguyen v. State, 177
S.W.3d 659, 667 (Tex. App.—Houston [1st Dist.] 2005, pet. refd).
The evidence cited by Appellant concerns his drug possession and drug use with
Smith before and after the robbery. This evidence proyja^a^reason why Appellant_
committed the. robbery. Accordingly, Appellant has not establishedtiiat the trial
court would have erred in overruling the objections he contends trial counsel should
WelnadeTAdditionally, the record is silent concerning why Appellant's counsel
didnot object to this testimony. Perhaps trial counsel determined that the evidence
would have been admissible under the authority cited above. We cannot conclude
that Appellant's counsel's actions were so outrageous that no competent attorney
wouldhave done likewise. See Garcia, 57 S.W.3d at 440. Accordingly, Appellant
has not satisfied the first prong of Strickland. See Strickland, 466 U.S. at 687.
Appellant next argues that his trial attorneys were ineffective for not
challenging several potential jurors for cause. Appellant acknowledges that none of
these potential jurors sat on the jury panel. He contends that trial counsel's
performance caused him to "lose valuable strikes that should not have [had] to be
used on these panelists." In the absence ofarecord addressing the strategy oftrial
counsel in the exercise of challenges for cause and peremptory strikes, the record
does not establish that trial counsel's performance fell below the objective standard
of reasonableness.
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Appellant also claims ineffective assistance based onhistrial counsel's failure
to object.to the business card seized from Appellant's wallet after his arrest. "A
search incident to arrest permits officers to search a defendant, or areas within the
defendant's immediate control, to prevent the concealment or destruction of
evidence." McGee v. State, 105 S.W,3d 609, 615 (Tex. Crim, App. 2003). Thus,
even if Appellant's trial counsel had objected to the admission of the business card
based on an illegal search, the trial court would not have erred in admitting acopy
of the business card because Appellant had already been arrested and because
Detective Frizzell found the business card in a search incident to that arrest. See id.
Because counsel's actions were not deficient, Appellant has not satisfied the first
prong ofStrickland. SeeStrickland, 466 U.S. at 687.
Appellant also argues that his trial attorneys were ineffective because they
failed to "vigorously" cross-examine some witnesses about the photo identification
procedures. Appellant's trial counsel cross-examined Detective Frizzell about the
photo lineup procedures but did not cross-examine Soto or S.B. about the photo
lineup procedures. Appellant also contends that his trial attorneys did not make the
jury aware of the fact that Soto and S.B. tentatively identified State's Exhibit Nos.
48 and 54, respectively, as Appellant, but that the photographs appear to be oftwo
different people. We initially note that Defendant's Exhibit No. 1 showed that the
photograph in State's Exhibit No. 48was Appellant. Detective Frizzell also testified
that State's Exhibit Nos. 48 and 54 were both photographs ofAppellant. In this
regard, the jury had the pictures in evidence to look at and compare to Appellant's
physical appearance at trial.
We conclude that the absence oftrial counsel's reasoning in conducting cross-
examination precludes a rinding that counsel was "objectively deficient." Exparte
McFarland, 163 S.WJd 743, 754 (Tex. Crim. App. 2005). "Cross-examination is
inherently risky, and a decision not to cross-examine a witness is often the result of
11
wisdom acquired by experience in the combat of trial." Id. at 756. "[C]ross-
examinationis an art, not a science,and it cannot be adequatelyjudged in hindsight."
Id. Furthermore, Appellant has not shown Jhat a reasonable probability exists that
the result of the proceeding would have been different but for the alleged errors of
his.trial attorneys. Accordingly, Appellant has not satisfied either prong of
Strickland. We overrule Appellant's second issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE
July 30, 2015
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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