Adrian Roosevelt McDaniel v. State ( 2016 )

AFFIRMED; Opinion Filed December 29, 2016.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01086-CR
ADRIAN ROOSEVELT MCDANIEL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F-14-57440-H
MEMORANDUM OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Lang
Following a plea of not guilty, appellant Adrian Roosevelt McDaniel was convicted by a
jury of aggravated assault. Appellant pleaded not true to two enhancement paragraphs which the
jury found to be true. Punishment was assessed by the jury at fifty years’ imprisonment.
Appellant raises two issues. His first issue asserts that the trial judge made comments and
exhibited conduct that constitute fundamental error because they reflect bias and partiality.
Appellant’s second issue asserts that he received ineffective assistance of counsel.
We decide both issues against him. The trial court’s judgment is affirmed. Because the
law to be applied in this case is well settled, we issue this memorandum opinion. See TEX. R.
APP. P. 47.2, 47.4.
I. Factual and Procedural Context
Appellant was originally indicted and tried for aggravated assault with a deadly weapon
and possession of marijuana. He entered a plea of not guilty to the charges. The State provided
appellant notice of its intent to enhance the punishment ranges through proof of appellant’s two
prior felony convictions. The original jury convicted appellant of the marijuana possession
charge, but was unable to reach a verdict as to the aggravated assault charge. A mistrial was
declared as to the aggravated assault charge. During the second trial for the aggravated assault
charge, appellant again entered a plea of not guilty.
The State presented seven witnesses, one of whom was the person who was assaulted.
Appellant was presented as the sole defense witness.
Testifying for the State, Corporal R. Villalba related the facts of the investigation and
arrest of appellant. He said he received a call from Parkland Hospital on the evening of the
assault. The hospital reported the admission of an individual (referred to here as S.P.) into the
intensive care unit (ICU) who claimed he had been assaulted. Corporal Villalba responded to the
call and went to the hospital to interview S.P. The injuries were described by Corporal Villalba
to the jury. Villalba testified S.P. identified appellant as his assailant and that his injury occurred
at appellant’s apartment. Then, Villalba went to appellant’s apartment along with other officers
to investigate. There, appellant refused entry by the officers. So, they waited for a warrant. Later,
with warrant in hand, Villalba and the other officers entered appellant’s apartment. Villalba
arrested appellant for aggravated assault, transported appellant to jail, and prepared the arrest
report. In concluding his testimony, Villalba identified a picture of appellant as the same person
at the apartment that night. Appellant was the only person in the apartment.
Also testifying for the State was Detective Marshall McLemore. He took photographs of
the crime scene at appellant’s apartment. McLemore also collected evidence from appellant’s
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apartment: a dumbbell; a guitar; a blood-stained towel; and samples of blood stains from the
couch, the bathroom floor, and living room wall. When McLemore finished collecting evidence,
he went to Parkland Hospital and photographed S.P.’s injuries. After that, he went to the Dallas
Police Department headquarters and photographed appellant’s hands, back, and face. He also
collected the blood-stained tennis shoes that appellant was wearing at the time appellant was
arrested.
Michelle Sharp, a forensic biologist at the Southwestern Institute of Forensic Scientists
(SWIFS), then testified she had analyzed the evidence brought to her from appellant’s apartment
and person. Specifically, she analyzed blood on appellant’s shoes, a sample of fabric taken from
appellant’s couch, and a towel taken from appellant’s apartment. Then, Courtney Ferreira,
another forensic biologist for SWIFS, testified that it was in fact S.P.’s blood found on the items.
Next, Detective Rudy Contreras testified that, when the appellant was brought to the
police station for an interview after his arrest, he saw appellant wearing the blood-splattered
tennis shoes analyzed by SWIFS. Detective Contreras directed McLemore to collect the tennis
shoes from appellant at the police station. Contreras also had a blood sample collected from S.P.
to send to SWIFS, in order to compare to the blood collected from the appellant’s tennis shoes.
S.P. then testified. S.P. identified appellant as the person who assaulted him by beating
him with a dumbbell and then a guitar. He explained he and appellant were at appellant’s
apartment when appellant accused S.P. of taking appellant’s marijuana. S.P. denied this, but
appellant continued to beat him. After the assault, appellant took S.P.’s blood-soaked shirt from
him and “walked” S.P. out of the apartment. Appellant told S.P. to bring him $500 to pay for the
marijuana that he thought S.P. had taken. S.P. said he “ran down the street” to “some empty
apartments.” There he “just sat down for a minute to get [himself] together.” When S.P. returned
to his apartment, his roommate at that time, Cynthia Pouncey, called an ambulance. S.P. was
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transported to Parkland Hospital where he remained in the ICU for six days. He sustained
numerous injuries, including a subdural hematoma, facial fractures, and bruising. S.P. could not
walk for over a month.
At this point, Roy Jenkins testified. He was an investigator for the Dallas District
Attorney. Jenkins authenticated recordings of calls made between appellant and others while
appellant was in jail. In many of these calls appellant asked friends and family members to help
dissuade S.P. from testifying. On one call, appellant’s sister told appellant she did not think S.P.
would show up to testify. In response, appellant said, “It would be better if we knew he wouldn’t
come.”
Appellant testified on his own behalf. He named another man, who went by the name
“West Dallas,” as the one who assaulted S.P. According to appellant, when S.P. started fighting
with West Dallas, appellant just “got up and left.” When appellant returned to the apartment,
people in the neighborhood were telling him that somebody got hurt. Appellant said he had
nothing to do with this assault and had never assaulted anybody. Upon cross-examination,
appellant admitted that he had been previously convicted of a Class A assault, among other
convictions. Appellant also denied owning the shoes on which S.P.’s blood was found. However,
appellant admitted that he was wearing those shoes during the day in question. He said the shoes
had blood on them because people were “fighting over” him.
As stated above, the jury convicted appellant of aggravated assault with a deadly weapon
and appellant was sentenced to fifty years’ imprisonment. The jury also found appellant had been
convicted of two prior felony offenses. This appeal followed.
II. Judicial Bias
In his first issue, appellant complains that the trial judge was “biased” and, as
demonstrated by his comments and actions, “expressly and implicitly conducted [himself] as an
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adversarial advocate against appellant.” Appellant did not raise this complaint at trial. He
acknowledges that generally a complaint not raised at trial is not preserved for appellate review.
See TEX. R. APP. P. 33.1 (requiring objection at trial to preserve error for appellate review).
However, he argues no objection was necessary because the judge’s comments and actions
constituted fundamental error. See Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000)
(plurality op.) (noting Texas Rule of Evidence 103(d) allows appellate courts to take “notice of
fundamental errors affecting substantial rights although they were not brought to the attention of
the court.”).
The State asserts appellant waived his complaint about any such error because he failed
to timely object and obtain a ruling. The State also maintains, inter alia, that the judge’s
comments and actions were proper. Even if improper, the State argues, the statements were not
“so egregious as to deem the judge biased” and do not constitute fundamental error. See
Hernandez v. State, 268 S.W.3d 176, 184 (Tex. App.—Corpus Christi 2008, no pet.) (issue of
judicial bias may be raised for first time on appeal only if trial judge’s conduct was so egregious
as to deem him biased); McIntosh v. State, 855 S.W.2d 753, 760 (Tex. App.—Dallas 1993, pet.
ref'd) (fundamental error must be so egregious and create such harm that the defendant was
denied fair and impartial trial).
A. Error Preservation
In this situation, the court of criminal appeals directed us to apply the test for dealing
with unassigned error stating, “when deciding whether a Texas appellate court may address
unassigned error, the applicable test is set forth in Marin v. State.” Brumit v. State, 206 S.W.3d
639, 644 (Tex. Crim. App. 2006) (citing Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim.
App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App.
1997)); see Sanchez v. State, 120 S.W.3d 359, 365–66 (Tex. Crim. App. 2003).
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In Marin the court of criminal appeals identified three categories of rights belonging to
litigants: “(1) absolute requirements and prohibitions; (2) rights of litigants which must be
implemented by the system unless expressly waived; and (3) rights of litigations which are to be
implemented upon request.” 851 S.W.2d at 279. Appellant argues the facts of this case fall
within the first category, concerning “absolute requirements and prohibitions.” Appellant
contends these rights are not subject to the preservation requirements of rule of appellate
procedure 33.1. See Sanchez, 120 S.W.2d at 366; Aldrich v. State, 104 S.W.3d 890, 895 (Tex.
Crim. App. 2003); Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002); see also
Williams v. State, 273 S.W.3d 200, 220 (Tex. Crim. App. 2008) (failing to object at trial
generally waives complaint for appeal) (citing Marin, 851 S.W.2d at 279). A violation of a non-
waivable, absolute, systemic right constitutes fundamental error. See Saldano, 70 S.W.3d at 887–
88; Marin, 851 S.W.2d at 278 (“Some rights are widely considered so fundamental to the proper
functioning of our adjudicatory process as to enjoy special protection in the system. TEX. R.
CRIM. EVID. 103(d). A principle characteristic of these rights is that they cannot be forfeited.”).
In Blue v. State, a plurality1 of the Texas Court of Criminal Appeals concluded2 that a
trial judge’s comments during jury selection, which indicated the trial judge would have
preferred for the defendant to plead guilty, constituted fundamental error because the statements
tainted the presumption of innocence. Blue, 41 S.W.3d at 132. On that record, the court of
criminal appeals concluded no objection was required to preserve error for appellate review. Id.
1
“A ‘plurality opinion’ is that opinion in a fractured decision that was joined by the highest number of judges or justices. Plurality opinions
do not constitute binding authority. But a fractured decision may constitute binding authority if, and to the extent that, a majority holding can be
ascertained from the various opinions in the case. Even if the rationales seem disparate, if a majority of the judges agree on a particular narrow
ground for or rule of decision, then that ground or rule may be viewed as the holding of the court.” Unkart v. State, 400 S.W.3d 94, 100–101
(Tex. Crim. App. 2013).
2
In Blue, “[a] plurality of the Court decided that the trial judge's remarks vitiated the defendant's presumption of innocence.” Unkart v.
State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013). “Judge Mansfield, who was part of the plurality, also filed a concurring opinion, in which he
concluded that the doctrine of procedural default ‘does not apply to statements made by a trial judge that rise to the level of fundamental error.’”
Id. “Judge Keasler concluded that the trial judge's remarks were so egregious as to show that he was biased.” Id. “Judge Meyers concurred in the
judgment without stating a rationale” Id.
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Later, in Jasper v. State, the court of criminal appeals concluded that, even if it were bound to
follow the plurality opinion in Blue, the trial judge’s comments on the record in Jasper did not
constitute fundamental error. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). In
Jasper the trial judge’s comments consisted of: correcting defense counsel's misrepresentation of
previously admitted testimony, showing irritation toward the defense attorney, and clearing up a
point of confusion on whether the State had in their possession a written statement made by a
particular witness. Id. According to the court of criminal appeals, these comments failed to rise
to “such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury”
and therefore, were not fundamental error. Id.; see also Murchison v. State, 93 S.W.3d 239, 262
(Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (stating that trial court may interject to correct
misstatement or misrepresentation of previously admitted testimony).
Then in Brumit, though recognizing the plurality in Blue, the court of criminal appeals
concluded that it need not reach the issue of whether the judge’s comments during sentencing
constituted fundamental error because the judge’s comments did not reflect bias or partiality.
Brumit, 206 S.W.3d at 644–45 (distinguishing Blue, 41 S.W.3d at 132). In Brumit the trial judge
made several comments during sentencing. Id. at 640. One comment made by the trial judge was
that previous cases he had been involved with “made [him] think that anybody that ever harmed
a child should be put to death.” Id. Comments such as this were made after the judge had heard
extensive evidence of the defendant's repeated sexual abuse of two children. Id. at 644–45. The
defendant had six prior convictions for child sexual assault. Id. Therefore, the court of criminal
appeals concluded this comment did not demonstrate the trial judge had failed to consider the
full range of punishment and the comments did not violate due process stating, “Due process
requires a neutral and detached hearing body.” Id. at 645. However, “[a]bsent a clear showing of
bias, a trial court's actions will be presumed to have been correct.” Id.; see also Gordon v. State,
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191 S.W.3d 721, 726–27 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that when
judge had not commented on defendant's guilt or innocence, his comments during voir dire did
not constitute fundamental error); Davis v. State, 651 S.W.2d 787, 790 (Tex. Crim. App. 1983)
(holding that judge's comment to veniremen, although not proper instruction, did not imply that
defendant would be convicted, was not reasonably calculated to benefit or prejudice defendant,
and thus was not reversible error).
B. Standard of Review
“Absent a clear showing of bias, a trial court’s actions will be presumed to have been
correct.” Brumit, 206 S.W.3d at 645. Courts enjoy a “presumption of judicial impartiality.”
Abdygapparova, 243 S.W.3d at 198. In determining on appeal whether a clear showing of bias
has been made, we review the entire record. See Avilez, 333 S.W.3d at 673–75; see also
Dockstader, 233 S.W.3d at 108.
C. Applicable Law–Judicial Bias, Generally
The Fourteenth Amendment provides that the State may not “deprive any person of life,
liberty, or property, without due process of law.” U.S. CONST. amend. XIV. Due process requires
a neutral and detached hearing body or officer. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim.
App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). A defendant is entitled to a
fair trial “before a judge with no actual bias against the defendant or interest in the outcome of
his particular case.” Bracy v. Gramley, 520 U.S. 899, 904–05 (1997); Avilez v. State, 333 S.W.3d
661, 673 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). Accordingly, a judge should not act
as an advocate or adversary for any party. Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref'd). When an appellant claims judicial bias, we review the
record to see if it shows the judge's bias denied due process of law. Armstrong v. State, No. 05–
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10–01246–CR, 2011 WL 6188608, at *5 (Tex. App.—Dallas Dec. 14, 2011, no pet.) (not
designated for publication).
The terms “bias” and “prejudice” do not include all unfavorable rulings towards an
individual, but instead must “connote a favorable or unfavorable disposition or opinion that is
somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon
knowledge that the subject ought not to possess . . . or because it is excessive in degree.”
Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref'd) (citing
Liteky v. United States, 510 U.S. 540, 550 (1994)). Judicial remarks during the course of a trial
that are critical or disapproving of, or even hostile to counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge. Dockstader, 233 S.W.3d at 108. “Such
remarks may constitute bias if they reveal an opinion deriving from an extrajudicial source.” Id.
“However, when no extrajudicial source is alleged, such remarks will constitute bias only if they
reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Id.
Moreover, “expressions of impatience, dissatisfaction, annoyance, and even anger” do not
establish bias or partiality. Liteky, 510 U.S. at 555–56. A “judge's ordinary efforts at courtroom
administration—even a stern and short-tempered judge's ordinary efforts at courtroom
administration—remain immune.” Garcia v. State, 246 S.W.3d 121, 147 (Tex. App.—San
Antonio 2007, pet. ref'd) (quoting Liteky, 510 U.S. at 556).
D. Analysis of First Issue
We address appellant’s first issue by analyzing each of six comments and actions of the
trial judge which appellant claims demonstrate the trial judge’s bias: (i) the trial judge’s
statement about “beyond a reasonable doubt” during voir dire and the statement about “beyond a
reasonable doubt” in the jury charge; (ii) the trial judge’s statement about the potential sequence
of events during voir dire; (iii) the trial judge’s statement to appellant about how the State would
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likely proceed in his absence; (iv) the trial judge shaking his head “no” after defense counsel told
appellant he would have a limited right to appeal issues raised pretrial if he pled guilty pursuant
to a plea agreement; (v) the trial judge’s admonishment of defense counsel during defense
counsel’s opening statement; and (vi) the trial judge’s rulings on defense counsel’s objections.
1. Statements about “Reasonable Doubt”
Appellant argues that the combination of the trial judge’s purportedly biased statements
to the venire along with the written jury charge, constituted fundamental error. The State
contends that the trial court’s statements “provided the prospective jurors with the lawful
parameters of reasonable doubt” and “did not advocate against appellant’s presumption of
innocence or shift or lower the State’s burden of proof.” We agree with the State.
The trial court’s written charge to the jury included the following sentence: “It is not
required that the prosecution prove guilt beyond all possible doubt; it is required that the
prosecution's proof excludes all ‘reasonable doubt’ concerning the defendant's guilt.” Both
parties affirmatively stated that they had no objections to the written jury charge.3
Additionally, in addressing the venire the trial judge made the following statements:
In a criminal case the Defendant starts out winning. . . The State has to prove
this case by beyond a reasonable doubt. . .
Okay. So the scales are tipped in the Defendant's favor, and the State has to move
their scales all the way, pretty much all the way the other way to beyond a
reasonable, beyond a doubt based on reason and common sense. There's not
really any other definition that I can give you of what beyond a reasonable doubt
means; it's really kind of personal to each juror. But it is the highest burden in
our legal system. It's beyond a doubt based on reason and common sense,
what's been alleged in the Indictment, which you will hear read to you if you're
picked as a juror, and it will all be in the Court's charge and in the evidence, that
3
The reporter’s record reads as follows:
The Court: We’re on the record. We’re outside the presence and hearing of the jury. The Court has tendered charges to both parties. Is there any
objection from the State?
Mr. McMillin: No, Your Honor.
The Court: From the Defense?
Mr. Schopmeyer: There’s no objection from the Defense.
The Court: All right.
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the State has to prove their case beyond a reasonable doubt. So does everybody
understand that? Beyond a reasonable doubt is the measuring stick that you
evaluate all the evidence. You evaluate all the evidence. Am I convinced beyond
a reasonable doubt based on reason and common sense that the Defendant
done what he's charged with. So can everybody understand that and follow that
instruction? Everybody good with that? . . .
(emphasis added).
a. Applicable Law–Reasonable Doubt
“In the Texas adversarial system, the judge is a neutral arbiter between the advocates; he
is the instructor in the law to the jury, but he is not involved in the fray.” Brown v. State, 122
S.W.3d 794, 797 (Tex. Crim. App. 2003). In Texas, jurors must decide for themselves what
“proof beyond a reasonable doubt” means. Murphy v. State, 112 S.W.3d 592, 597 (Tex. Crim.
App. 2003). According to the court of criminal appeals, jurors must supply the precise meaning
of it for themselves “according to their own common-sense understanding of the words.” Fuller
v. State, 363 S.W.3d 583, 587 (Tex. Crim. App. 2012). It is important to “foster the selection of
jurors who will not impose a standard of proof upon the State that they know for sure to be either
too lenient (preponderance or even clear and convincing) or too burdensome (all doubt).” Id.
In Geesa v. State the court of criminal appeals had expressly adopted a jury instruction on
“reasonable doubt” that included the following sentences:
It is not required that the prosecution prove guilt beyond all possible doubt; it is
required that the prosecution's proof excludes all “reasonable doubt” concerning
the defendant's guilt.
A ‘reasonable doubt’ is a doubt based on reason and common sense after a careful
and impartial consideration of all the evidence in the case. . . .
Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991), overruled by Paulson v. State, 28
S.W.3d 570, 573 (Tex. Crim. App. 2000). The court held that this instruction had to be submitted
to the jury in all criminal cases. Id. In Paulson v. State the court of criminal appeals “specifically
overrule[d] that portion of Geesa which require[d] trial courts to instruct juries on the definition
of ‘beyond a reasonable doubt,’” concluding that the instructions mandated by Geesa were
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“redundant, confusing, and logically-flawed.” Paulson, 28 S.W.3d at 573. Referring specifically
to the portion stating that “[a] reasonable doubt is a doubt based on reason and common sense”
the court found that the instruction was “useless” and circular. Id. In overruling Geesa, the court
found that the “better practice is to give no definition of reasonable doubt at all to the jury.” Id.
However, the court did not prohibit the practice. Id. Further, the court stated that if both parties
agree to the instruction, it is not reversible error. Id.
i. Reasonable Doubt–Alleged Error in the Jury Charge
Appellate review of an alleged error in the jury charge involves two steps. Kirsch v. State,
357 S.W.3d 645, 649 (Tex. Crim. App. 2012). The first step is to determine if the jury charge
was erroneous. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Price v. State, 457
S.W.3d 437, 440 (Tex. Crim. App. 2015). If erroneous, the next step is to determine whether the
error caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex.
Crim. App. 2005). When no objection was made at trial, the error must be fundamental and is
reversible “only if it was so egregious and created such harm that the defendant ‘has not had a
fair and impartial trial.’” See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App.
2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)).
Egregious harm exists when the record shows that a defendant has suffered actual, rather than
merely theoretical, harm from jury-charge error. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.
App. 2013). This court assesses harm in light of the entire record. Id.
ii. Reasonable Doubt–Alleged Error in Statements to the Venire
“Ordinarily, a complaint regarding an improper judicial comment must be preserved at
trial.” Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013). However, the court of
criminal appeals has reviewed a complaint alleging an improper judicial comment that was not
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preserved at trial. See Blue, 41 S.W.3d at 134–38. In Blue a plurality4 of the court of criminal
appeals found that the trial judge’s remarks “‘vitiated the presumption of innocence’ before the
venire, adversely affecting [the] appellant’s right to a fair trial”, which was reversible error, as
either fundamental error or because the comments were so egregious as to demonstrate judicial
bias. Id. at 132, 134–38. There the trial judge expressed his own personal views about the
appellant’s guilt and decision to exercise his right to trial. Id.
In contrast with the decision in Blue is the holding in Haro v. State. 371 S.W.3d 262, 264
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). There, the trial judge made the following
statement to the venire: “But ultimately, you, individually, g[e]t to decide what beyond a
reasonable doubt means to you. I've heard people say that it is an intellectual exercise based on
reason, common sense and logic.” Haro v. State, 371 S.W.3d 262, 264 (Tex. App.—Houston [1st
Dist.] 2011, pet. ref’d). The court of appeals found this comment did not taint the presumption of
innocence owed to the defendant or improperly apply the beyond-a-reasonable-doubt standard to
the case before it. Id. at 266. Similarly, in McEuen the trial judge gave the following written
instruction to the jury: “A ‘reasonable doubt’ is a doubt based on reason and common sense after
a careful and impartial consideration of all the evidence in the case.” McEuen v. State, No. 14–
08–00941–CR, 2009 WL 2476540, at *2 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (mem.
op., not designated for publication). There, the court of appeals noted that this specific language,
taken from a portion of Geesa, was determined by the Paulson court to be “useless” rather than
“erroneous.” Id. Therefore, its inclusion was not error, much less fundamental error and did not
demonstrate judicial bias. Id.
4
See footnote 1 supra, for the definition of “plurality.”
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b. Application of Law to the Facts
After Paulson, courts were split as to whether the inclusion of a portion of the former
Geesa instructions in a jury charge constituted error. See Burrows v. State, 492 S.W.3d 398,
407–10 (Tex. App.—Houston [1st Dist.] 2016, no pet. h.) (summarizing the split). This Court
concluded in O’Canas that the specific language used,5 which appellant complains of in this
case, did not define reasonable doubt and thus, its inclusion in the jury charge is not error.
O’Canas v. State, 140 S.W.3d 695, 701–02 (Tex. App.—Dallas 2003, pet. ref’d). Since O’Canas
this court has rejected the opportunity to reconsider that holding. Bates v. State, 164 S.W.3d 928,
931 (Tex. App.—Dallas 2005, no pet.); Chapin v. State, No. 05–15–01009–CR, 2016 WL
4421570, at *6 (Tex. App.—Dallas Aug. 19, 2016, no pet.) (mem. op., not designated for
publication). The court of criminal appeals in Woods v. State held that a trial court did not “abuse
its discretion” in giving this same instruction. Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim.
App. 2004); see also Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010) (affirming
Woods). Accordingly, we conclude it was not error for the trial court to include the sentence of
which appellant complains in the jury charge, much less fundamental error.
Additionally, the trial judge’s comments neither tainted the presumption of innocence nor
clearly reflected bias. Cf. Blue. Indeed, when read in context, it is clear the trial judge made it
clear that the beyond-a-reasonable-doubt standard is the highest in the legal system. Appellant
has not cited any case law, nor can we find any, where a trial judge’s statements during voir dire
regarding the meaning of reasonable doubt tainted the presumption of innocence. See Latson v.
State, 440 S.W.3d 119, 121–22 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Wilkerson v.
State, 347 S.W.3d 720, 725–26 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). We conclude
5
As indicated above, appellant complains that the written jury charge contained the sentence: “It is not required that the prosecution prove
guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” This
is paragraph three from the Geesa instructions, the same paragraph that this Court addressed in O’Canas. See O’Canas, 140 S.W.3d at 699–702.
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these comments do not rise to the level of fundamental error. See TEX. R. APP. P. 33.1; Brumit,
206 S.W.3d at 644–45; Jasper, 61 S.W.3d at 421; Fuentes v. State, 991 S.W.2d 267, 273 (Tex.
Crim. App. 1999). Accordingly, we further conclude appellant waived error by failing to object
to the trial court’s comments.
2. Statement to Venire about Potential Sequence of Events
During voir dire the trial judge made the following statements regarding the range of
punishment:
Okay. So remember that question is, if I heard facts that justified the minimum,
could I do it? If I heard facts that justified the maximum, could I do it? And I'm
kind of -- I'm being kind of purposefully. I can't -- the lawyers can't give you any
of the facts.
All right. The reason I mentioned that is because if the Defendant's convicted, it
will be the jury's duty to assess punishment. . . . So, now, if it’s an acquittal,
then, obviously, we all go home. But if the Defendant is convicted as charged, it
will be the jury’s duty to set his punishment. And that’s why I mentioned to you
the range of punishment.
(emphasis added).
Appellant argues that the “if it’s an acquittal, then, obviously, we all go home” statement
“incorrectly informed the eventual jurors that an acquittal of appellant would result in appellant’s
immediate release into the community, which—in addition to being inaccurate as a matter of
pure, objective fact—could have in no way accrued to appellant’s benefit.” Appellant argues that
this allegedly biased statement amounts to fundamental error. We disagree.
a. Applicable Law–Statements to Venire
Appellant relies on Abdygapparova v. State and Bethany v. State in support of his
contention that the trial judge’s explanation of a potential sequence of events was biased and
prejudicial. Abdygapparova, 243 S.W.3d at 208–10. (Tex. App.—San Antonio 2007, pet. ref’d);
Bethany v. State, 814 S.W.2d 455, 461 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d).
However, those cases are distinguishable.
–15–
In Abdygapparova, the trial judge engaged in numerous ex parte communications with
the prosecutor during voir dire, passing notes and providing guidance on how the State should
proceed. Abdygapparova, 243 S.W.3d at 208–10. Additionally “the record as a whole
demonstrated a bias” because of the “admission of damaging evidence that clearly should not
have been admitted” and the fact that the trial court did not allow an interpreter. Wilson v. State,
No. 05–12–00831–CR, 2013 WL 4399193, at *7 (Tex. App.—Dallas Aug.15, 2013, no pet.)
(mem. op., not designated for publication) (citing Abdygapparova, 243 S.W.3d at 199–204).
Similarly, the trial judge in Bethany also engaged in ex parte communications with the
prosecutors for the State. Bethany, 814 S.W.2d at 461. The trial judge in Bethany also: (i)
reviewed the evidence himself and brought to the attention of the prosecutors what he perceived
to be discrepancies in the evidence; (ii) interrogated defense counsel about the evidence; (iii)
disqualified a witness on his own motion; and (iv) suggested in front of the jury that the defense
was trying to mislead the jurors, among other acts. Id.
b. Application of Law to the Facts
Abdygapparova and Bethany are distinguishable from the case now before us. A review
of the record in this case reveals the trial judge’s statement explained a potential sequence of
events: either the jury would convict and assess punishment or it would acquit and, as the judge
put it, “we all go home.” The trial judge made this statement in the context of explaining to the
jury the range of punishment and that it would be their job as the jury, rather than his, to assess
punishment, should they choose to convict the appellant. The record demonstrates the trial judge
was referring to the jury and himself as the “we” in the statement and was not including the
appellant. On this record we conclude there was no attempt to mislead, or even inform, the jury
about appellant’s potential release status. Accordingly, the statement complained of does not rise
–16–
to the level of fundamental error. We conclude because no objection was made at trial by
appellant, this point is waived. See Unkart, 400 S.W.3d at 99; Jasper, 61 S.W.3d at 421.
3. Statement to Appellant about Potential Consequences of His Absence
from the Courtroom
Prior to the start of the trial and outside the presence of the jury the trial judge held a brief
hearing. During this hearing appellant expressed a desire to be absent during the proceedings.
Appellant asked the trial judge, “Can you explain to me what will take place if I’m out of the
courtroom, because I don’t know.” The judge responded, “We’ll have the trial, just like you’re
here, except the witnesses will have to identify you from the photograph.”
Appellant argues that this response from the trial judge constitutes fundamental error as
adversarial advocacy. Specifically, appellant argues that it “informed the State regarding what
the State needed to do in order to try to prove that Appellant committed the offense in the event
Appellant absented himself from the courtroom.” We disagree.
a. Applicable Law–Statements to Appellant
Appellant has not cited any case holding the above statement of the trial court constitutes
fundamental error. Instead, appellant again relies on Abdygapparova v. State and Bethany v.
State in support of his contention that the trial judge’s explanation of how the State would likely
proceed was biased and prejudicial. Abdygapparova, 243 S.W.3d at 208–10. (Tex. App.—San
Antonio 2007, pet. ref’d); Bethany v. State, 814 S.W.2d 455, 461 (Tex. App.—Houston [14th
Dist.] 1991, pet. ref’d). Again, those cases are distinguishable.
b. Application of Law to the Facts
Appellant argues this statement was biased and constituted adversarial advocacy because
it “informed the State regarding what the State needed to do in order to try to prove that
Appellant committed the offense in the event Appellant absented himself from the courtroom.”
However, the record shows this statement was in response to appellant’s question about the
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procedure and the trial judge simply responded that the trial would continue, despite appellant’s
absence. Given the presumption of impartiality that the trial court enjoys and on this record, the
trial judge was not “so entangled in the role of an advocate that [he] lost [his] ability to remain
neutral and detached.” Hill v. State, No. 05–14–01445–CR, 2016 WL 1554932, at *5 (Tex.
App.—Dallas Apr. 14, 2016, no pet.) (mem. op., not designated for publication).
Additionally, unlike the trial court’s comments in Blue, this comment was made outside
the presence of the jury. See Blue, 41 S.W.3d at 130 (the complained-of conduct occurred in
front of the jury and constituted clear bias). We conclude the trial court did not err in making the
statement.
4. Act of Shaking His Head “No” After Defense Counsel Told Appellant
He Would Have a Limited Right to Appeal
Just after the brief hearing that occurred prior to the start of trial, still outside the presence
of the jury, the State offered to waive a jury and permit appellant to plead guilty, in exchange for
appellant’s acceptance of a sentence of imprisonment for ten years. Appellant asked his trial
counsel, “Do I have a right to appeal?” Appellant’s trial counsel answered, “You have a right to
a limited appeal [sic] the issues that were ruled on prior to trial and heard by the Court. . . .”
(emphasis added). Before appellant’s trial counsel finished explaining his answer, appellant said,
“He’s shaking his head ‘no.’” The trial judge then stated, “Look. He knows the offer. If he’s
going to take it, he’s going to take it. If not, let’s get going.”
Appellant argues that the alleged act of shaking his head “no” constituted fundamental
error as bias on the part of the trial judge. We disagree.
a. Applicable Law–Conduct of, Gestures made by the Trial Judge
“A defendant in a criminal case has the right to appeal only those matters that were raised
by written motion filed and ruled on before trial.” TEX. R. APP. P. 25.2(a)(2)(A). Furthermore, to
constitute bias a comment must reflect a “deep-seated favoritism or antagonism.” Liteky, 510
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U.S. at 555. In Liteky, the Supreme Court of the United States gave an example of the type of
comment that displays bias. Id. For example, in a World War I espionage case against German-
American citizens the trial judge’s comment that German-Americans have hearts “reeking with
disloyalty” was biased and reflected partiality. Id. “Not establishing bias or partiality, however,
are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the
bounds of what imperfect men and women, even after having been confirmed as federal judges,
sometimes display.” Id. at 555–56.
b. Application of Law to the Facts
We note initially, the record is not clear that the appellant was referring to the trial judge
when he stated “He’s shaking his head ‘no.’” Furthermore, even assuming it was the trial judge
to whom appellant referred, we conclude this action does not rise to the level of “deep-seated ...
antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555.
In one line of his brief, appellant argues that the trial judge’s conduct “runs dangerously
close to the type of conduct that would amount to an outright violation of the law that expressly
prohibits trial courts from engaging in plea bargaining or plea negotiations.” Since appellant
concedes that it is “close to” unlawful conduct, but does not rise to the level of that conduct, we
have nothing to review. Furthermore, this Court does not look outside an appellate brief for
arguments in support of an issue when doing so would circumvent the briefing limitations that
we have previously extended in this case. See TEX. R. APP. P. 9.4(i); TEX. R. APP. P. 38.1(i).
5. Comment During Defense Counsel’s Opening Statement
Appellant’s trial counsel began his opening statement with the following words:
Ladies and gentlemen of the jury, you may be looking over here thinking this is
an unusual situation, and it is. But the law does not change. I just want to remind
you that as you sit through the witnesses the State presents to you over the next
day or so, the obligation, the burden . . . .
–19–
At this point the trial judge interrupted defense counsel and stated, “Mr. Schopmeyer, what do
you expect the evidence to show? It’s not about the evidence. This is not an opening argument.”
Defense counsel responded, “Oh, okay.” And continued with his statement.
Appellant argues that the trial judge’s interjection was biased. Appellant argues that, by
effectively objecting on his own initiative—at a time when the State had not yet objected to
defense counsel’s opening—it was fundamental error for the trial judge to make that comment.
We disagree.
a. Applicable Law–Comments made by the Trial Judge
As we previously indicated, remarks that are “critical or disapproving of, or even hostile
to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.”
Liteky, 510 U.S. at 555. “[E]xpressions of impatience, dissatisfaction, annoyance, and even
anger” do not establish bias or partiality. Id. at 555–56. Further, tone and demeanor are not
apparent from a cold record. Wilson v. State, No. 05–12–00831–CR, 2013 WL 4399193, at *7
(Tex. App.—Dallas Aug.15, 2013, no pet.) (mem. op., not designated for publication) (citing
Abdygapparova, 243 S.W.3d at 199–204). A “judge's ordinary efforts at courtroom
administration—even a stern and short-tempered judge's ordinary efforts at courtroom
administration—remain immune.” Id. at 556. The court of criminal appeals has stated, “We have
held that trial courts have broad discretion in determining the length of arguments during a trial.”
Dang v. State, 154 S.W.3d 616, 619 (Tex. Crim. App. 2005) (citing Hernandez v. State, 506
S.W.2d 884, 886 (Tex. Crim. App. 1974)). Similarly, the trial court has “the inherent power to
control the orderly proceedings in the courtroom. . . .” Alexander v. State, 282 S.W.3d 143, 146
(Tex. App.—Texarkana 2009, pet. ref’d). A defense counsel’s opening statement is limited to
“[t]he nature of the defenses relied upon and the facts expected to be proved in their support.”
TEX. CODE CRIM. P. ANN. art. 36.01(a)(5).
–20–
b. Application of Law to the Facts
Appellant again relies on Abdygapparova and Bethany in support of his contention that
the trial judge’s comment to defense counsel during his opening statement was biased and
prejudicial. Abdygapparova, 243 S.W.3d at 208–10. (Tex. App.—San Antonio 2007, pet. ref’d);
Bethany, 814 S.W.2d at 461. Again, those cases are distinguishable from the case before us. In
Abdygapparova the court of appeals concluded that the ex parte communications between the
judge and the prosecutor were “not simply ‘expressions of impatience, dissatisfaction,
annoyance, and even anger’ toward Abdygapparova or her counsel,” but were examples of the
trial court “providing guidance to the prosecutor on the presentation of his case” and
inappropriately discussing the “trial court’s initial ruling regarding Abdygapparova’s ongoing
request for an interpreter.” Abdygapparova, 243 S.W.3d at 208–09. Those communications
“extended beyond the realm of courtroom administration and etiquette” and “became strong
evidence of bias and partiality.” Id.
The record reflects defense counsel began his opening statement by referencing the law,
the burden, and the witnesses that the State would present. The trial judge may control the
courtroom by asking defense counsel to confine himself to what is supposed to be in an opening
statement. From the cold record we have before us, it is not apparent that the trial judge’s
statements even could be categorized as impatience or hostility. Compare with Hill v. State, No.
05–14–01445–CR, 2016 WL 1554932, at *5 (Tex. App.—Dallas Apr. 14, 2016, no pet.) (mem.
op., not designated for publication) (concluding that the trial judge’s comments were in fact
“critical of appellant” but concluding there was no bias).
6. Trial Judge’s Rulings
Appellant argues that four of the trial judge’s rulings on appellant’s objections were so
erroneous that they demonstrate bias and thus, fundamental error. Specifically he argues that the
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trial court exhibited bias by: (i) overruling defense counsel’s objection to speculative testimony
from a witness for the State; (ii) sustaining the State’s objection to testimony from appellant; (iii)
overruling defense counsel’s objection to two State witnesses during the punishment phase; and
(iv) overruling defense counsel’s objection to the State’s reference to appellant’s 1993
conviction. Again, we disagree.
a. Applicable Law–Rulings
“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Liteky, 510 U.S. at 555. They “can only in the rarest circumstances evidence the degree
of favoritism or antagonism required” to make a fair judgment impossible. Id. Further, the terms
bias and prejudice “do not encompass all unfavorable rulings towards an individual or her case,
but instead must ‘connote a favorable or unfavorable disposition or opinion that is somehow
wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge
that the subject ought not to possess ..., or because it is excessive in degree.’” Abdygapparova,
243 S.W.3d at 198 (citing Liteky, 510 U.S. at 550).
b. Application of Law to the Facts
Appellant points to these rulings generally arguing they demonstrate the trial judge’s
bias. Once again, appellant relies on Abdygapparova and Bethany and argues on this contention
that the cumulative nature of these rulings and the other instances mentioned above demonstrate
bias on the whole. However, appellant presents no independent issues on appeal assigning error
to each of these rulings. The remedy for unfair rulings is to assign error to the ruling itself rather
than to complain of bias. Charboneau v. State of Texas, No. 05–13–00340–CR, 2014 WL
7476392, at *4 (Tex. App.—Dallas Dec. 30, 2014, no pet. h.) (mem. op., not designated for
publication) (citing In re City of Dallas, 445 S.W.3d 456, 467 (Tex. App.—Dallas 2014, no. pet.
h.)).
–22–
Because appellant failed to preserver error by objecting to the trial judge’s comments and
actions at trial, this Court considers only if there was fundamental error. However, we need not
determine whether the alleged errors in this case were fundamental. After reviewing the record,
we conclude there was neither error nor any indication of bias or partiality by the trial court. See
Brumit v. State, 206 S.W.3d 639, 644–45 (Tex. Crim. App. 2006) (stating it need not decide
whether error is fundamental and instead resolving issue on basis that record did not reflect bias
or partiality).
Appellant’s first issue is decided against him.
III. Ineffective Assistance of Counsel
In his second issue, appellant complains he received ineffective assistance of counsel.
Initially, we note that in appellant’s motion for new trial he argued that his trial counsel was
ineffective in the following ways: (i) failing to take “any action to ensure that the jury was fully
informed regarding the context of the comments” made by the appellant, as recorded on jail calls
that the State introduced and played for the jury; and for (ii) failing “to object to the 50-year
sentence” as a grossly disproportionate punishment. However, on appeal appellant asserts that
his trial counsel was ineffective for different reasons: (i) the “failure to cross-examine S.P.
regarding S.P.’s prior inconsistent and contradictory testimony;” (ii) the “failure to inform the
jury regarding S.P.’s demonstrably false testimony;” and (iii) “the failure to object to the jury
charge.” Therefore, the record is silent as to the reasons for trial counsel’s complained-of
conduct.
Appellant acknowledges that generally a claim for ineffective assistance will not prevail
when the record is silent because of the strong presumption of reasonable assistance on the part
of trial counsel. However, appellant contends the record reflects there was no valid, strategic
rationale for trial counsel’s conduct and thus, the complained-of conduct constitutes ineffective
–23–
assistance. The State maintains that the record does not support appellant’s claims and that he
received reasonably effective assistance throughout the criminal proceedings. Also, the State
argues that appellant has not shown that counsel’s allegedly deficient performance prejudiced his
defense. We agree with the State.
A. Standard of Review
Review of trial counsel’s representation is highly deferential and there is a strong
presumption that trial counsel’s conduct fell within a wide range of reasonable representation.
See Ex parte Saenz, 491 S.W.3d 819, 826–27 (Tex. Crim. App. 2016); Villa v. State, 417 S.W.3d
455, 463 (Tex. Crim. App. 2013). In order for an appellate court to conclude that counsel was
ineffective, counsel’s alleged deficiency must be affirmatively demonstrated in the record. See
Villa, 417 S.W.3d at 463; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The
defendant must produce record evidence sufficient to overcome the presumption that, under the
circumstances, the challenged action was sound trial strategy. See Strickland v. Washington, 466
U.S. 668, 689 (1984); Villa, 417 S.W.3d at 463. It is not enough to merely show, through the
benefit of hindsight, that counsel’s actions were questionable. See Lopez, 343 S.W.3d at 142–43.
An appellate court will inquire into counsel’s trial technique only when there appears to be no
plausible basis in strategy or tactics for counsel’s actions. See Villa, 417 S.W.3d at 463. In
making the determination whether the specified errors resulted in the required prejudice, an
appellate court should presume that the judge acted according to the law. See Strickland, 466
U.S. at 694.
B. Applicable Law
To prevail on an ineffective assistance of counsel claim, a defendant must show by a
preponderance of the evidence that: (1) counsel’s representation fell below an objective standard
of reasonableness; and (2) there is a reasonable probability that the result of the proceeding
–24–
would have been different, but for counsel’s deficient performance. See Strickland, 466 U.S. at
687–88, 694; Villa, 417 S.W.3d at 462–63; Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App.
2012). The purpose of this two-part test is to assess whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be said to have been a
reliable result. See Strickland, 466 U.S. at 686; Villa, 417 S.W.3d at 463. A defendant’s failure to
satisfy either part of the test defeats the ineffective assistance claim. See Perez v. State, 310
S.W.3d 890, 893 (Tex. Crim. App. 2010); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999).
To satisfy the first part of the test, the defendant must show counsel’s performance fell
below “the range of competence demanded of attorneys in criminal cases as reflected by
prevailing professional norms [.]” Nava, 415 S.W.3d at 307. To defeat the strong presumption of
reasonable professional assistance, an appellant must prove by a preponderance of the evidence
that counsel’s representation was unreasonable according to prevailing professional norms and
that any alleged inaction was not sound legal strategy. Kimmelman v. Morrison, 477 U.S. 365,
384 (1986). An appellant must identify the specific acts or omissions that were not the result of
professional judgment. Strickland, 466 U.S. at 690.
Furthermore, “[a]ny allegation of ineffectiveness must be firmly rooted in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at
813; see Ex parte Bryant, 448 S.W.3d 29, 39 (Tex. Crim. App. 2014). Under normal
circumstances, the record on direct appeal is not sufficient to show that counsel’s representation
was so deficient and lacking in tactical or strategic decision to defeat the presumption that
counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833
(Tex.Crim.App.2002) (claims cannot be based on retrospective speculation). When the record is
silent regarding counsel’s reasons for his conduct, an appellate court should defer to counsel’s
–25–
decision if there is at least the possibility that the conduct could have been legitimate trial
strategy. Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002) (en banc). Trial counsel
should be afforded the opportunity to explain his actions before being denounced as ineffective.
See Goodspeed v. State, 187 S.W.3d 390, 393-94 (Tex. Crim. App. 2005); Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003) (en banc). Ordinarily, this type of record is best
developed in a hearing on an application for a writ of habeas corpus or a motion for new trial.
See Perez, 56 S.W.3d at 731.
It is a rare case in which the trial record will by itself be sufficient to demonstrate an
ineffective-assistance claim. See Nava, 415 S.W.3d at 308. Although it is possible for a single
egregious error of omission or commission by the defendant’s counsel to constitute ineffective
assistance of counsel, a single error will not typically result in a finding of ineffective assistance
of counsel. See Villa, 417 S.W.3d at 463.
To satisfy the second part of the test, appellant must show a reasonable probability that,
absent counsel’s errors, the result of the proceeding would have been different. See Strickland,
466 U.S. at 687, 694; Nava, 415 S.W.3d at 308. A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the trial. See Strickland, 466 U.S. at 694;
Villa, 417 S.W.3d at 463; Nava, 415 S.W.3d at 308. A defendant's failure to satisfy either prong
defeats the ineffective assistance claim. Thompson, 9 S.W.3d at 813.
C. Application of Law to the Facts
As indicated above, on appeal appellant asserts that his trial counsel was ineffective for
different reasons than were raised in his motion for new trial. Therefore, his trial counsel has not
been afforded the opportunity to respond to the challenged conduct. As a result, nothing in the
record indicates defense counsel’s reasoning or strategy. See Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005) (“We have said that ‘trial counsel should ordinarily be afforded
–26–
an opportunity to explain his actions before being denounced as ineffective.’ Absent such an
opportunity, an appellate court should not find deficient performance unless the challenged
conduct was ‘so outrageous that no competent attorney would have engaged in it.’”).
First, appellant argues his counsel’s performance was deficient because he failed to cross-
examine the victim (S.P.) regarding the victim’s prior inconsistent testimony. Specifically,
appellant argues that trial counsel should have cross-examined S.P. on the following
inconsistencies: (i) which hours he typically worked and on the date in question; (ii) whether a
guitar was used or not used as part of the assault; and (iii) whether S.P. actually went inside of
the vacant apartment to which he claimed he fled after the assault or simply sat on the stairs
outside the vacant apartment.
The record is silent as to why trial counsel chose not to cross-examine S.P. on these
points. Because of this, we may not assume that his decisions are not attributable to sound trial
strategy. See Thompson, 9 S.W.3d at 814; see Tapia v. State, 933 S.W.2d 631, 634 (Tex. App.—
Dallas 1996, pet. ref’d); Weeks v. State, 894 S.W.2d 390, 391 (Tex. App.—Dallas 1994, no pet.).
Further, failure to cross-examine or impeach a witness has been recognized as a reasonable
strategy. See Davis v. State, 276 S.W.3d 491, 502 (Tex. App.—Waco 2008, pet. ref’d); Tadych v.
State, No. 01–06–00620–CR, 2007 WL 4465572, at *4 (Tex. App.—Houston [1st Dist.] Dec. 20,
2007, pet. ref’d) (mem. op., not designated for publication); Sims v. State, 807 S.W.2d 618, 624
(Tex. App.—Dallas 1991, pet. ref’d) (“[W]e cannot say that failure to attempt impeachment was
not sound trial strategy.”); Harris v. State, No. 01–88–00991–CR, 1990 WL 39468, at *4 (Tex.
App.—Houston [1st Dist.] Apr. 5, 1990, pet. ref’d) (not designated for publication) (holding that
failure to bring up inconsistent testimony and impeach witness may be sound trial strategy
because attempting to impeach may have been “more harmful” than beneficial to appellant). As
–27–
to the failure to cross-examine S.P., appellant fails to satisfy the first prong of Strickland and has
not shown his trial counsel’s performance was deficient.
Second, appellant argues that his counsel’s performance was deficient because he failed
to direct the jury’s attention to the victim’s inconsistent testimony. For the same reasons stated
above, we disagree. As to this alleged failure, appellant fails to satisfy the first prong of
Strickland.
Third, appellant argues that his counsel’s performance was deficient because he failed to
make appropriate objections to the jury charge. Specifically, appellant claims that there were
errors in the jury charge, i.e., improper language from Geesa, that should have been objected to
and that he was prejudiced by trial counsel’s failure to object. We have already concluded that
the jury charge, as written, was not error. Trial counsel could have reasonably determined that an
objection would have been frivolous. See Patrick v. State, 906 S.W.2d 481, 496 (Tex. Crim.
App. 1995) (en banc); Thompson, 9 S.W.3d at 814 (when the record provides no reference to
explain why counsel chose not to object to a line of questioning, the first prong of Strickland is
not met). As to the failure to object to the jury charge, appellant fails to satisfy the first prong of
Strickland. We conclude that appellant has not shown trial counsel’s performance was deficient.
However, even if we were to assume trial counsel’s performance was deficient, there is
no evidence in the record that appellant was prejudiced by trial counsel’s performance. Appellant
argues that the failure to cross-examine S.P. constituted a foregone opportunity to reveal to the
jury that S.P. could not “maintain a consistent story.” Because the “testimonial demeanor of a
victim” and the “failure of a witness to maintain a consistent story” is “some of the strongest
possible evidence upon which a jury can base its decision that the witness is unworthy of belief,”
appellant argues he suffered prejudice.
–28–
Hernandez v. State is instructive on this point. See 726 S.W.2d 53, 57–58 (Tex. Crim.
App. 1986). In Hernandez the court of criminal appeals examined a case in which a defendant
alleged that he suffered prejudice because his trial counsel failed to cross-examine a codefendant.
See id. at 57–58. There the court of criminal appeals concluded, “Given the options available to
trial counsel in a case where the evidence against his client was overwhelming, we cannot sit in
hindsight and find ineffectiveness due to an error such as this, involving a calculated risk in
examining a codefendant.” Id. at 58. “The right to effective counsel is not the right to error-free
counsel.” Id.
In the case before us we cannot conclude from a silent record that the choice not to cross-
examine S.P. and thereby possibly draw the jury’s attention to alleged inconsistencies was
prejudicial. Trial counsel could have calculated the risks of such an endeavor and reasonably
have come to the conclusion that, given the overwhelming evidence against his client, it would
be best not to do so.
Additionally, appellant argues that trial counsel’s failure to object to the jury charge
caused him to suffer prejudice. Appellant urges that “in light of how that improper definition
favored the State and disfavored Appellant” and “in light of how the case constituted a swearing
match between S.P. and Appellant, sufficient prejudice is shown” because failing to “make
certain that the jurors knew the reasonable doubt parameter that the State had to surmount (and
that favored Appellant) wholly undermines confidence in the existing outcome of the case.”
This Court has stated that the inclusion of the complained-of language was not error.
Bates, 164 S.W.3d at 931; Woods, 152 S.W.3d at 115 (court of criminal appeals concluding that
inclusion of the same complained-of language was not an abuse of discretion). Further, this
Court may presume that counsel is familiar with the applicable case law. See Patrick, 906
–29–
S.W.2d at 496. Trial counsel “could reasonably have determined that an objection would have
been frivolous.” Id.
Accordingly, we decide appellant’s second issue against him.
IV. Conclusion
All issues are decided against appellant. We affirm the trial court’s judgment.
/Douglas S. Lang/
Do Not Publish DOUGLAS S. LANG
TEX. R. APP. P. 47.2 JUSTICE
151086F.U05
–30–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ADRIAN ROOSEVELT MCDANIEL, On Appeal from the Criminal District Court
Appellant No. 1, Dallas County, Texas
Trial Court Cause No. F-14-57440-H.
No. 05-15-01086-CR V. Opinion delivered by Justice Lang. Justices
Myers and Evans participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 29th day of December, 2016.
–31–