Alexis Limon v. the State of Texas ( 2023 )

Opinion issued August 1, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00022-CR
———————————
ALEXIS LIMON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1627432
MEMORANDUM OPINION
Alexis Limon appeals his conviction for aggravated robbery. See TEX.
PENAL CODE § 29.03. Limon pleaded not true to an enhancement and proceeded to
a jury trial. A jury found him guilty, found the enhancement true, and assessed
Limon’s punishment at 40 years’ imprisonment and a $5,000 fine.
On appeal, he argues the evidence was insufficient to support his conviction,
the evidence was insufficient to support the enhancement paragraph, and he
received ineffective assistance of counsel during the punishment hearing. We
affirm.
Background
Limon was charged with aggravated robbery. He pleaded not guilty and
proceeded to a jury trial.
A. Guilt/Innocence Testimony
At trial, Irineo Monjarez, Jr. (“Irineo Jr.”) testified that in April 2019, he saw
a white Silverado truck next to his father’s truck outside their house. It was about
one in the morning, and several streetlights were on. The dome light on his father’s
truck was also on. Irineo Jr. saw a person inside of his father’s truck on the driver’s
side. Irineo Jr. confronted the person in the truck, and a struggle ensued. The
person got into the running Silverado. Irineo Jr. held onto him, and the truck
crashed into a ditch. Irineo Jr. blacked out and suffered damaged discs in his back
from the crash. When he regained consciousness, he realized his neighbor and
friend, Jose Andres Almazan, had come outside. Almazan and Irineo Jr. continued
to fight with the man. The man pulled out a gun and shot Almazan in the ankle.
Irineo Jr.’s brother ran out and grabbed the gun, unloaded it, and pointed it at the
unknown man. Irineo Jr. called 911, but the man ran away on foot before first
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responders arrived. Irineo Jr. provided a description to the responding law
enforcement officers.
Irineo Jr. testified that he asked around the neighborhood to investigate who
the robber could have been. That same day, he heard it could have been Alexis
Limon, so he looked Limon up on Facebook. He forwarded a photograph of Limon
to detectives. He also identified Limon in a photo array. Irineo Jr. also identified
Limon in court.
Jose Andres Almazan testified that shortly after midnight he heard a crash,
looked out a window, and saw two people fighting in the street. When he saw it
was his friend, Irineo Jr., he went to assist. He attempted to put the man fighting
with Irineo Jr. in a chokehold. The man pulled a gun from his waistband and shot
two or three times. Almazan was shot in the ankle. He was treated at the hospital,
where he spoke to a detective. He identified Limon in a photo array, stating that he
was 90% sure Limon was the person who had shot him. Later, Irineo Jr. showed
him a photograph from the internet of a possible suspect. Almazan then told law
enforcement that he was 100% sure of his identification from the photo array.
Almazan identified Limon in court.
The Houston Police Officer who responded to the scene testified that he
arrived when Almazan was being treated by paramedics in an ambulance. He
secured the scene until a detective from the robbery division arrived. He noticed
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that Irineo Monjarez, Sr.’s (“Irineo Sr.”) truck had damage consistent with popping
out the lock and prying the door open, and the radio had been removed. There was
also a screwdriver or prying tool in the truck. The stereo from Irineo Sr.’s truck
was found in the Silverado.
The police officer collected the firearm, ammunition, a jacket, and a cell
phone. The phone was found in the Silverado and believed to belong to the
suspect. The jacket was found in a ravine about thirty feet away, in the direction
that the suspect had fled. Inside the jacket, the officer found a live round and a
fired bullet casing. The officer testified that similar ammunition was recovered
from the firearm.
The robbery division detective who responded to the scene testified at trial.
He learned that the Silverado truck had been reported stolen. The owner lived a
few blocks away from the scene of the robbery. The detective had a patrol officer
pick up the owner of the Silverado and bring him to the scene to identify his truck.
The Silverado was then towed to a processing facility.
The detective also talked to Almazan at the hospital. Almazan described the
suspect as about 5’6” tall, 140 to 150 pounds, with tattoos covering his face and
neck. The detective testified that he received an email later in the day from
Almazan with a photo of a person he believed had shot him. Once he found the
suspect’s name, the detective searched and realized that the suspect, Alexis Limon,
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lived next door to the owner of the Silverado truck. The detective created a photo
array with Limon and five similar looking individuals. He gave the array to another
detective who was unaware which of the individuals in the array was the suspect.
That detective presented the array to Irineo Jr. and Almazan, who both identified
Limon as the suspect.
The jury found Limon guilty and proceeded to a punishment hearing.
B. Punishment Testimony
Limon pleaded not true to the enhancement paragraph alleging a prior felony
conviction for evading arrest in a motor vehicle in 2015. The State then presented
punishment evidence. In addition to evidence to link Limon to the prior conviction
alleged in the enhancement paragraph and evidence of Limon’s prior criminal
history, the State presented evidence of unadjudicated extraneous offenses
allegedly committed by Limon after the aggravated robbery. The State also
presented evidence regarding Limon’s gang affiliation. Limon’s mother was a
mitigation witness.
1. Adjudicated Extraneous Offenses
The State presented evidence of offenses committed by Limon before the
aggravated robbery. This evidence included numerous judgments of conviction or
orders for deferred adjudication. The State used one of the prior judgments to
support the enhancement paragraph alleged in the indictment. The State alleged
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that in 2015 Limon was convicted of evading arrest in a motor vehicle and was
sentenced to three years’ imprisonment. Limon pleaded “not true” to this
enhancement paragraph.
The State called the supervisor of the latent print section of the Houston
Forensic Science Center regarding the fingerprints on the judgments. She testified
that she took fingerprints of Limon and compared them to fingerprints on the prior
judgments. All the judgments contained Limon’s name and state identification
number. The fingerprint examiner was able to match most of them by fingerprint
as well. The fingerprint on three of the judgments was either inconclusive or did
not have a “print of value.” One of the inconclusive judgments was the judgment
underlying the enhancement paragraph. The fingerprint examiner testified that
while she could not conclusively match Limon to three judgments, she could not
conclude that the fingerprints on them did not belong to Limon either.
2. Limon’s Gang Affiliation
A Houston Police Sergeant with the gang division testified that Limon was
placed in a database for tracking gang members because he was a self-admitted
member of Houstone Tango Blast. He also had gang-related tattoos.
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3. Unadjudicated offenses
The State presented evidence of several unadjudicated offenses allegedly
committed by Limon. Each of these offenses occurred either right before the
aggravated robbery or in the years after it but before Limon’s trial.
(1) Felon in possession of a firearm
Harris County Deputy P. Manickas testified that in March 2019 he
responded to a call that a man in all-black clothing, possibly holding a gun, was
walking around vehicles in a residential driveway. When he arrived on the scene,
the deputy viewed the caller’s surveillance video. The deputy testified that the
suspect could be seen pulling on car handles, consistent with burglarizing vehicles
and theft. The deputy used his radio to relay a description of the suspect. When an
officer responded that a suspect matching the description was at a nearby gas
station, the deputy went to that location. He observed the same person he had seen
in the surveillance video, who he later identified as Alexis Limon.
Another officer testified that he heard the radio description and then saw
someone, later identified as Limon, standing in a grassy area near the air pump in a
nearby gas station. As the officer approached, Limon started to run away. The
officer detained Limon, then walked over to the grassy area where he had been
standing. The officer found a firearm. Though the officer did not see Limon drop
the firearm, the officer testified that he knew it had not been there long because it
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was not covered in condensation. The officer testified that Limon had a Houston
Astros star tattooed on his neck and that the officer knew this to be gang related.
Limon was arrested for felon in possession of a firearm. A ballistics examiner
tested the firearm and determined it was operational.
(2) Evading in a motor vehicle, failure to stop and render aid,
unauthorized use of a motor vehicle, and burglary of a motor
vehicle
A patrol officer testified that he was in a residential area when he saw
parked taillights in the middle of the street in July 2019. He pulled up to the
vehicle and saw that the driver’s side door was open, but nobody was inside.
Limon was in a parked car next to it. The officer believed that Limon was either
trying to steal or burglarize the car. As the officer and his partner approached,
Limon disobeyed their commands, got into the running vehicle in the middle of the
roadway, and drove away. A chase ensued. Limon’s vehicle was hit when he ran a
redlight. He did not stop. Eventually, he got out of the car and fled on foot. The
officer’s partner apprehended Limon in a driveway. The officers learned that the
car Limon had been driving was stolen. The stereo had been pulled out, and the
ignition in the parked car had been damaged.
The patrol officer testified that the driver of the vehicle that hit Limon’s as
he was fleeing sustained injuries and went to the hospital. Limon was charged with
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four felony cases: evading in a motor vehicle, failure to stop and render aid,
unauthorized use of a motor vehicle, and burglary of a motor vehicle.
(3) Evading on foot and failure to identify as a fugitive
In December 2020, an officer initiated a traffic stop when he saw a car
driving the wrong way down the road. The car stopped temporarily and then drove
away. A chase ensued. The car turned and crashed into a utility area. The driver
and another suspect fled on foot. The officer pursued the suspect through a trailer
park and eventually apprehended him. Meanwhile, the officer radioed a description
of the other suspect, including that the suspect was wearing a black coat and black
pants. After an extensive search, Limon was apprehended under an outdoor pool
table when the homeowner flagged law enforcement down. Limon had discarded
his shirt, pants, and shoes. The officer saw the clothes nearby on a fence.
Limon told law enforcement that he was riding his dirt bike and passing
through to get to his residence. He gave law enforcement a false name and date of
birth. Law enforcement used Limon’s fingerprints to identify him and determine
that he had six open felony warrants. The officer testified that Limon was charged
with felony evading on foot and could have been charged with the misdemeanor
offense of failure to identify as a fugitive.
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(4) Possession of controlled substances and public intoxication
An officer testified that he was dispatched to an apartment complex
regarding an intoxicated man who had broken a car window in April 2021. Law
enforcement split up to locate the suspect. From across the courtyard, the officer
saw Limon. The officer watched as Limon started running when he saw the other
officers. The officer chased and detained Limon.
The officer determined that Limon was not the suspect described in the call
about the broken window, but he believed that Limon was intoxicated. Limon had
watery eyes, droopy eyelids, and slow, slurred speech. He was confused and had
difficulty following basic instructions. The officer arrested Limon for public
intoxication.
The officer searched Limon and found ecstasy, cocaine, Adderall, and
marijuana. A forensic chemist tested the ecstasy tablets and found that they
contained methamphetamine and eutylone. Limon was charged with felony
possession of a controlled substance for the ecstasy.
(5) Unauthorized use of a motor vehicle and felon in possession of a
firearm
An officer testified that he initiated a traffic stop on a stolen GMC Yukon in
May 2021. During the stop, the officer observed the driver making furtive
movements towards the back seat. The officer identified Limon as the driver. The
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owner of the vehicle confirmed that Limon did not have permission to drive the
Yukon.
A search of the Yukon revealed a firearm on the back right passenger
floorboard. A ballistics examiner tested the firearm and confirmed it was
operational. Limon was charged with unauthorized use of a motor vehicle.
(6) Aggravated assault with a deadly weapon
An investigator with the Harris County Sherriff’s Office testified that she
investigated an assault on two inmates in the Harris County jail that occurred in
September 2021. The investigator viewed surveillance video from the time of the
assault. She described the video, and it was shown to the jury. The assault occurred
in the evening when lights were off in the cell block. Inmates propped sheets,
towels, and blankets to attempt to block the camera’s view shortly before the
assault. The investigator testified that this typically happens when an assault,
sexual intercourse, gambling, or dice games are happening. Next, several inmates
went into the cell block. Their feet are visible moving around while a broomstick is
being tossed. The blankets attempting to cover the camera flare as the assault is
happening. People’s hands with closed fists can be seen as one complainant is
pulled from the top bunk. Another person can be seen side-punched. The lights
turn on in the cell block, and all the inmates run out except for one complainant.
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Limon was later identified in the video and can be seen throwing a gang sign as he
left the cell block.
The investigator testified that she reviewed a roster of the men in the cell
block on that date and time and obtained intake photos of each of them. She then
used a snipping tool to take screenshots from the video of each inmate as he leftthe
cell block after the assault. She compared the intake photos to the screenshots and
identified six inmates who were part of the assault. One of the individuals the
investigator identified was Limon. The investigator created a photo array that was
shown to one complainant. The investigator explained that she later interviewed
Limon and charged him, and four other people, with aggravated assault with a
deadly weapon.
4. Mitigation testimony
Appellant’s mother testified that he began using drugs around age 15 and
that he dropped out of school in the ninth grade. She tried to parent him to not use
drugs, but drugs had changed him. She testified that his family supported him and
that he is a better person when not using drugs.
***
The jury found the enhancement paragraph true and recommended a 40-year
sentence and $5,000 fine. The court sentenced Limon accordingly.
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Sufficiency of the Evidence
Limon first challenges the sufficiency of the evidence to support his
aggravated robbery conviction.
A. Standard of Review
Every criminal conviction must be supported by legally sufficient evidence
as to each element of the offense that the State is required to prove beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 (1979); Adames v. State,
353 S.W.3d 854, 859 (Tex. Crim. App. 2011). In a legal sufficiency review, we
consider all the evidence in the light most favorable to the verdict, and we decide
whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323
S.W.3d 893, 902 (Tex. Crim. App. 2010).
The evidence may be circumstantial or direct, and juries may draw multiple
reasonable inferences from the evidence presented at trial. Hooper v. State, 214
S.W.3d 9, 14–15 (Tex. Crim. App. 2007). The jury is the sole judge of witness
credibility and of the weight given to any evidence presented. Merritt v. State, 368
S.W.3d 516, 525 (Tex. Crim. App. 2012). A jury may believe or disbelieve some
or all a witness’s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim.
App. 1981). We presume that the jury resolved any conflicting inferences in favor
of the verdict, and we defer to that determination. Merritt, 368 S.W.3d at 525–26.
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B. Aggravated Robbery
Limon does not argue that the evidence is inadequate to demonstrate that the
crime of aggravated robbery was committed. Instead, he contends there is
insufficient evidence identifying him as the perpetrator.
“A person commits [robbery] if, in the course of committing theft . . . and
with intent to obtain or maintain control of the property, he . . . intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death.”
TEX. PENAL CODE § 29.02(a)(2). “A person commits [aggravated robbery] if he
commits robbery . . . and he . . . uses or exhibits a deadly weapon . . . .” Id. §
29.03(a)(2).
A conviction for aggravated robbery may be based on the testimony of a
single eyewitness. Smith v. State, 421 S.W.3d 161, 164 (Tex. App.—San Antonio
2013, no pet.) (citing Johnson v. State, 176 S.W.3d 74, 77–78 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d); see also Sosa v. State, 177 S.W.3d 227, 230
(Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding evidence legally sufficient
where witness identified defendant based on build, clothing, and height).
Additionally, “circumstantial evidence alone can be sufficient to establish guilt.”
Hooper, 214 S.W.3d at 13.
“Identity may be proven by direct evidence, circumstantial evidence, or by
reasonable inferences from the evidence.” Ingerson v. State, 559 S.W.3d 501, 509
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(Tex. Crim. App. 2018) (citing Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim.
App. 2009)). Proof by circumstantial evidence is equally as probative as proof by
direct evidence. See McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989).
“[A]n inference is a conclusion reached by considering other facts and deducing a
logical consequence from them.” Whatley v. State, 445 S.W.3d 159, 166 (Tex.
Crim. App. 2014) (alteration in original) (quotation omitted). “[I]dentity may be
proven by inferences.” Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin
2000, pet. ref’d); see also Greene v. State, 124 S.W.3d 789, 792 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d) (“Identity of a perpetrator can be proved by
direct or circumstantial evidence; eyewitness identification is not necessary.”). In
reviewing historical facts that support conflicting inferences, we must presume that
the jury resolved any such conflicts in the State’s favor, and we must defer to that
resolution. Whatley, 445 S.W.3d at 166. When identity is at issue, we must
consider the combined and cumulative force of all evidence. See Merritt, 368
S.W.3d at 526.
C. Analysis
Considering the combined and cumulative force of all the evidence, we
conclude that there is sufficient evidence to prove Limon’s identity as the
perpetrator.
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The evidence shows that Irineo Jr. saw a man get into his father’s truck,
which was parked outside their house, in the middle of the night. The truck’s dome
light turned on. Irineo confronted the man and fought with him for several minutes.
He testified that three streetlights were on. The fight continued when the man got
into his own truck. The truck crashed into a ditch. Almazan heard the struggle and
came outside to join the fight. Irineo Jr. saw the man pull out a gun from his
waistband and shoot Almazan in the ankle. Irineo Jr. called 911 and the man fled
the scene. Irineo Jr. described the suspect as a Hispanic male, with multiple tattoos
on his face and neck, and maybe 140 to 150 pounds.
The detective also spoke with Almazan in the hospital who described the
suspect as “5’6”, 140, 150” and described that his face and neck were covered in
tattoos. Almazan testified at trial that he saw a “full frontal face view” of Limon
while engaged in the fight. He testified that he would not forget the face of the
person who shot him.
Irineo Jr. testified that after the incident he found a photograph on Facebook
that he believed to be the suspect. He sent the photograph to the lead detective. The
detective created a photo array, containing a different photograph of Limon as well
as five other individuals with similar characteristics. Irineo Jr. identified Limon in
the array. Almazan also identified Limon, stating he was 90% sure of his
identification. Both men also positively identified Limon in court. At trial, Irineo
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Jr. testified that he had shown the Facebook photograph of Limon to Almazan
before Almazan viewed a photo array. Almazan testified that Irineo Jr. showed him
the Facebook photograph after he had identified Limon in the photo array.
Limon contends the evidence is insufficient to support the conviction in this
case because the eyewitnesses’ identifications from a photo lineup were unreliable.
He argues that the eyewitnesses had seen a Facebook photograph of Limon before
they saw the array, and they had already decided that he was the perpetrator. He
also argues that two of the five photographs in the arrays were of individuals who
had large face tattoos that were dramatically different than Limon’s. Finally, he
argues that there is no physical evidence connecting him to the crime.
Here, the jury had the opportunity to assess Irineo Jr.’s and Almazan’s
credibility and to make reasonable inferences from their testimony. The jury also
had the opportunity to view the photo arrays that were shown to both men. Though
Irineo Jr. and Almazan testified differently about whether Almazan saw the
Facebook photo before he identified Limon in an array or after, it is the jury’s
function to resolve any conflicts in the evidence. See Merritt, 368 S.W.3d at 525–
26. The jury was likewise entitled to decide whether the identifications of appellant
from the photo array were reliable. Considering all the evidence in the light most
favorable to the verdict, we conclude that the jury was rationally justified in
finding guilt beyond a reasonable doubt and that the evidence is sufficient to
17
support Limon’s conviction for aggravated robbery. See Brooks, 323 S.W.3d at
895, 899.
We overrule Limon’s first issue.
Sufficiency of the Evidence to Support Enhancement Paragraph
Limon next argues that the evidence is legally insufficient to link him to the
prior felony offense used to enhance his punishment. In the indictment, the State
alleged one enhancement paragraph. This paragraph alleged that in 2015, Limon
was convicted of evading arrest and detention in a motor vehicle. On appeal,
Limon argues that the State did not offer sufficient evidence of identity.
Specifically, Limon argues that the State did not prove the prior conviction beyond
a reasonable doubt because the fingerprint examiner could not match the
fingerprint on the 2015 judgment to him. He also contends that the State did not
provide additional identity evidence nor did the State cross-examine his mother,
who testified at punishment, regarding his criminal history. We disagree and hold
that the evidence was sufficient for the jury to find the enhancement true.
A. Standard of Review
To establish that the defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists, and
(2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919,
921 (Tex. Crim. App. 2007). There is no specific document or mode of proof
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required to prove either that a prior conviction exists or that the defendant is linked
to that conviction. Id. The Court of Criminal Appeals has stated:
There is no “best evidence” rule in Texas that requires that the fact of
a prior conviction be proven with any document, much less any
specific document. While evidence of a certified copy of a final
judgment and sentence may be a preferred and convenient means, the
State may prove both of these elements in a number of different ways,
including . . . documentary proof (such as a judgment) that contains
sufficient information to establish both the existence of a prior
conviction and the defendant’s identity as the person convicted.
Id. at 921–22. “Any type of evidence, documentary or testimonial, might suffice”
to prove a conviction. Id. at 922. The factfinder looks at the totality of evidence
admitted concerning the prior conviction to determine (1) whether there was a
prior conviction, and (2) whether the defendant was the person convicted. Id. at
923; see Henry v. State, 509 S.W.3d 915, 919 (Tex. Crim. App. 2016) (stating that
factfinder “must look at the totality of the evidence adduced” and “must consider
the evidence as a whole, as each piece of evidence may provide little meaning if
considered in isolation”).
B. Testimony and evidence
The supervisor of the latent print section of the Houston Forensic Science
Center testified during punishment. She testified that she took a record of all ten of
Limon’s fingerprints. She identified him in court as the same person who provided
the prints. She also testified that she reviewed the State’s exhibits 91 through 99,
which were prior orders for deferred adjudication or judgments of conviction. She
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told the jury of her findings regarding whether the fingerprints on these exhibits
matched the ones she took from Limon. Several of the exhibits contained Limon’s
name, state identification number, and a fingerprint match.
The supervisor testified that “no print of value” was found on two of the
exhibits: State’s exhibit 96 and 97. State’s exhibit 96 was a judgment of conviction
for evading arrest and detention with a vehicle. This is the conviction the State
alleged in the enhancement paragraph. The trial court judgment states that the
offense was committed on January 13, 2015 and that on January 15, 2015, the
defendant was sentenced to three years in jail. State’s exhibit 97 was a judgment of
conviction for burglary of a motor vehicle. The offense was committed on the
same date as exhibit 96, January 13, 2015. The sentencing date was February 5,
2015, and the defendant was sentenced to 46 days in jail, with 23 days credit.
State’s exhibits 96 and 97 both contained Limon’s name and state identification
number.
The supervisor testified that “no print of value” meant that there was no
ridge detail to compare between the prints she had taken and the thumbprint on the
prior judgments.
C. Analysis
Considering the totality of the evidence, there was sufficient evidence to
prove beyond a reasonable doubt that Limon committed evading arrest in a motor
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vehicle. See Flowers, 220 S.W.3d at 921. In proving prior convictions, identity
often includes a combination of identifiers, with each case judged on its own
merits. Henry v. State, 466 S.W.3d 294, 301 (Tex. App.—Texarkana 2015), aff’d,
509 S.W.3d 915 (Tex. Crim. App. 2016) (quoting Littles v. State, 726 S.W.2d 26,
30–32 (Tex. Crim. App. 1984) (op. on reh’g)). “[T]he proof that is adduced to
establish that the defendant on trial is one and the same person that is named in an
alleged prior criminal conviction or convictions closely resembles a jigsaw
puzzle.” Flowers, 220 S.W.3d at 923 (quotation omitted).
The evidence at trial established Limon’s birthdate and state identification
number. The record established that Exhibits 92–99, which were either orders for
deferred adjudication or judgments of conviction, each contained Limon’s name
and state identification number. “No print of value” was found on exhibit 96, the
judgment for evading arrest with a motor vehicle, but Limon’s name and state
identification number were on the document. The Houston Forensic Science Center
supervisor testified that “no print of value” meant that there were no ridge details
on the fingerprint on the judgment to compare to the ten-print card she had taken
from Limon. She did not testify that her conclusion excluded Limon as the person
whose fingerprint appeared on the judgment. The dates of the offense and
judgment, January 13, 2015 and January 15, 2015, also fall chronologically within
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the criminal history established by the orders for deferred adjudication and
judgments that did contain Limon’s fingerprints.
A judgment with the defendant’s name and state identification number is
sufficient for the jury to determine beyond a reasonable doubt that the offense in
question was committed, and that Limon committed it. See Flowers, 220 S.W.3d at
923; see also Barnes v. State, 585 S.W.3d 643, 650 (Tex. App.—Texarkana 2019),
(holding sufficient a prior conviction linked by name and state identification
number considering the surrounding judgments and identifying information also
admitted), rev’d on other grounds, PD-1072-19, 2021 WL 476483 (Tex. Crim.
App. Feb. 10, 2021) (not designated for publication).
We overrule Limon’s issue related to the sufficiency of the evidence to
prove his prior conviction that enhanced his sentence.
Ineffective Assistance of Counsel During Punishment Hearing
In his third issue, Limon contends that he received ineffective assistance of
counsel during the punishment phase of trial. Each of his ineffective assistance of
counsel complaints relates to either (1) the evidence supporting additional criminal
offenses that the State alleged Limon committed between the underlying
aggravated robbery and trial, or (2) the evidence to support prior adjudicated
offenses committed by Limon. Limon has not met his burden to establish that he
received ineffective assistance of counsel during the punishment hearing.
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A. Standard of Review
The Sixth Amendment to the United States Constitution and the Texas
Constitution guarantee a criminal defendant the right to reasonably effective
assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see Lopez
v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The right to effective
assistance of counsel requires objectively reasonable representation, not errorless
performance. Id. (citing Strickland v. Washington, 466 U.S. 668, 686 (1984), and
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)).
To establish that trial counsel provided ineffective assistance, an appellant
bears the burden to demonstrate by a preponderance of the evidence that
(1) counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142. An
appellant must establish both prongs before an appellate court will find counsel’s
representation to be ineffective. Lopez, 343 S.W.3d at 142 (citing Strickland, 466
U.S. at 687); see Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009)
(“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s
need to consider the other prong.”).
To satisfy the first prong, an appellant must show that his trial counsel’s
performance fell below an objective standard of reasonableness under the
prevailing professional norms. Strickland, 466 U.S. at 687–88; Lopez, 343 S.W.3d
23at 142. Under the second prong, an appellant must demonstrate prejudice or “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694; see Lopez, 343
S.W.3d at 142. A reasonable probability is one sufficient to undermine confidence
in the outcome. Lopez, 343 S.W.3d at 142.
For an appellate court to find that counsel was ineffective, “counsel’s
deficiency must be affirmatively demonstrated in the trial record; the court must
not engage in retrospective speculation.” Id. “It is not sufficient that appellant
show, with the benefit of hindsight, that his counsel’s actions or omissions during
trial were merely of questionable competence.” Id. at 142–43. (quoting Mata v.
State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)). Furthermore, a claim of
ineffective assistance of counsel also requires proof of prejudice. Bone v. State, 77
S.W.3d 828, 836–37 (Tex. Crim. App. 2002).
In most cases, the record on direct appeal is undeveloped and thus
inadequate to prove a claim of ineffective assistance.1 See Menefield v. State, 363
S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999) (“A substantial risk of failure accompanies an
appellant’s claim of ineffective assistance of counsel on direct appeal.”). The Court
1
Claims of ineffective assistance of counsel rejected on direct appeal “due to lack
of adequate information may be reconsidered on an application for a writ of
habeas corpus.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
24
of Criminal Appeals has repeatedly stated that trial counsel “should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective.” Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005)). When trial counsel is not provided an
opportunity to explain his actions, we will not find that counsel’s performance was
deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Id. (quoting Goodspeed, 187 S.W.3d at 392).
B. Analysis
1. Counsel was not ineffective for failing to secure a preliminary
ruling on judgments that did not contain an identifiable
fingerprint match.
Limon argues that his counsel was ineffective for failing to secure a
preliminary hearing on the State’s fingerprint evidence used to link Limon to prior
judgments of conviction. Specifically, he argues that the State could not prove
beyond a reasonable doubt that he committed the crimes listed in three judgments,
State’s exhibits 96, 97, and 99. Exhibit 96 was a judgment for evading arrest in a
motor vehicle. This is the prior felony conviction that the State alleged should
enhance Limon’s sentence.
During punishment, the State produced several prior judgments as State’s
exhibits 92–99, which were either orders for deferred adjudication or judgments of
conviction. Each exhibit contained Limon’s name and state identification number.
25
Several of the exhibits also contained a fingerprint match. A fingerprint expert was
unable to identify the fingerprint on three of the judgments, exhibits 96, 97, and 99.
She testified that her inability to identify the fingerprint on these three judgments
did not mean that the fingerprint could not belong to Limon.
The judgments without identifiable fingerprints fit chronologically among
the judgments identified with Limon’s fingerprint. Considering the totality of the
evidence presented regarding Limon’s criminal history, the factfinder could
reasonably decide beyond a reasonable doubt that Limon committed the offenses
listed in the judgments. See Flowers, 220 S.W.3d at 923. Counsel was not
ineffective for failing to secure a preliminary ruling on the admissibility of the
judgments because the trial court would not have abused its discretion in admitting
the evidence. Limon has failed to meet his burden to prove that his counsel’s
performance fell below an objective standard of reasonableness. See Lopez, 343
S.W.3d at 142.
2. Counsel was not ineffective for failing to ask for a preliminary
ruling on an unadjudicated offense for felon in possession of a
firearm.
Limon contends that his trial counsel was ineffective for failing to request a
preliminary ruling on an alleged unadjudicated offense. He argues that the State
could not prove beyond a reasonable doubt that Limon was a felon in possession of
26
a firearm in March 2019, and therefore, the trial court abused its discretion in
putting the evidence before the jury.
To establish unlawful possession of a firearm by a felon, the State must
show that the accused was previously convicted of a felony offense and possessed
a firearm after the conviction and before the fifth anniversary of his release from
confinement, or from community supervision, parole, or mandatory supervision,
whichever date is later. TEX. PENAL CODE § 46.04(a)(1); James v. State, 264
S.W.3d 215, 218 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Possession is a
voluntary act if the possessor knowingly obtains or receives the thing possessed or
is aware of his control of the thing for a sufficient time to permit him to terminate
his control. TEX. PENAL CODE § 6.01(b).
“If the firearm is not found on the defendant or is not in his exclusive
possession, the evidence must affirmatively link him to the firearm.” James, 264
S.W.3d at 219. The State may establish possession by proving an “affirmative
link,” which demonstrates that the defendant was conscious of his connection with
the weapon and knew what it was. Id. Some factors that may establish an
affirmative link include that the defendant was in close proximity and had ready
access to the contraband; the defendant attempted to flee; and conduct by the
defendant indicating consciousness of guilt. Id. The evidence used to satisfy these
elements can be either direct or circumstantial. Id.27
During the punishment phase, the State presented evidence that while out on
bond for the underlying offense, Limon committed the offense of felon in
possession of a weapon. A deputy from the Harris County Sheriff’s Office testified
that on March 13, 2019 he was dispatched to a call that a suspicious man in all
black clothing, possibly holding a gun, was walking around pickup trucks in a
driveway. When the deputy arrived, the reportee showed him surveillance video. In
the video, the deputy saw a man in all-black clothing walking around two pickup
trucks while looking in the windows and shaking the door handles. The man ran
off when a security light in the driveway turned on.
The deputy relayed what he saw over the dispatch radio. Another patrol
officer less than a mile away observed a person that matched the same description.
The deputy went to that location and observed the same person he’d seen in the
surveillance video, who he later identified as Alexis Limon.
The patrol officer also testified that he heard the deputy’s radio call and
observed a person that fit the description at a gas station nearby. The officer
thought that the person was suspicious because he was in a Tahoe truck near an air
pump but not adding air to his tires. Two other people were near the truck, about
30 feet away. The officer testified that the suspect was standing in a grassy area,
and when the officer approached him, the person started to walk away. The officer
noticed that the individual had tattoos on his face and an Astros star tattoo on his
28
neck. In the officer’s experience, that meant that the individual was tied to the
Houstone Tango Blast gang. After arresting the person, the officer located in the
grassy area a pistol with an extended magazine containing several rounds. The
officer identified the person he detained as Alexis Limon and arrested him for
felon in possession of a firearm. The officer identified Limon in the courtroom.
There were sufficient circumstantial links to connect Limon as the felon in
possession of the firearm during this incident. The jury heard testimony that a
deputy responded to a call of a suspicious person walking around trucks, checking
their windows and doors. The deputy testified that he went to a gas station nearby
and identified the same person from the surveillance video at the gas station.
Another officer testified that he responded to the gas station and saw a person
standing near an air pump but not putting air in his tires. The person was standing
in a grassy area. When the officer approached, the person began to walk away.
After the officer arrested the person, he found a pistol in the grass. Though he did
not see the man drop the gun, it was apparent that it had been freshly dropped in
the grass.
The evidence was legally sufficient to prove that Limon was the person in
possession of a firearm during this incident. Because the circumstantial evidence is
sufficient to identify Limon, even if trial counsel had requested a preliminary
hearing, the trial court would not have abused its discretion in admitting the
29
evidence. Trial counsel’s performance did not fall below an objective standard of
reasonableness. See Strickland, 466 U.S. at 687–88; see also Lopez, 343 S.W.3d at
142.
3. Counsel was not ineffective for failing to seek a pretrial
determination of the legality of Limon’s arrest for public
intoxication.
During the punishment hearing, the State presented evidence that while on
bond in April 2021, Limon was arrested for public intoxication. Limon argues that
trial counsel was deficient for failing to request a preliminary hearing regarding
this incident because his initial detention was illegal, the search of his person was
not justified by reasonable suspicion, and the evidence discovered as a result
should have been suppressed. Limon argues that without the evidence, the State
could not have proved that Limon possessed various controlled substances, and the
trial court would have abused its discretion in admitting the evidence.
During the punishment phase, a police officer testified that he was
dispatched in the early hours of the morning to an apartment complex regarding an
intoxicated man who had broken a vehicle’s window. Responding law enforcement
split up to search for the suspect. The officer saw Limon run when Limon spotted
another police officer. The officer chased and detained Limon. The officer
observed that Limon had watery eyes, droopy eyelids, and slow, slurred speech.
Limon appeared to be confused and had difficulty following directions and
30
answering the officer’s questions. Though the officer determined that Limon was
not the suspect from the call regarding the broken window, the officer believed that
Limon was intoxicated and arrested him for public intoxication. The officer
believed that Limon was a danger to himself due to his intoxication. Limon was
searched and found in possession of ecstasy, cocaine, Adderall, and marijuana.
A police officer may arrest an individual without a warrant only if probable
cause exists with respect to the individual in question, and the arrest falls within
one of the exceptions set out in the Code of Criminal Procedure. Torres v. State,
182 S.W.3d 899, 901 (Tex. Crim. App. 2005). Article 14.01(b) of the Code of
Criminal Procedure states that an officer may arrest an individual without a
warrant for an offense committed within the officer’s presence or view. TEX. CODE
CRIM. PROC. art. 14.01(b). The ultimate question under article 14.01(b) is whether
the officer’s knowledge is sufficient “to warrant a prudent man in believing that the
arrested person had committed or was committing an offense.” State v. Woodard,
341 S.W.3d 404, 412 (Tex. Crim. App. 2011) (internal quotation omitted). A
person commits public intoxication if he appears in a public place while
intoxicated to the degree that he may endanger himself or another. TEX. PENAL
CODE § 49.02(a). Public places include apartment buildings. Id. § 1.07(40).
Here, there was evidence that Limon was in a public place, he attempted to
flee law enforcement, and he appeared intoxicated. The officer testified that
31
Limon’s eyes were glassy, his speech was slowed, and he had trouble following
commands. The officer also opined that Limon was a danger to himself. He was in
an apartment complex parking lot in the early hours of the morning. See State v.
Martinez, 569 S.W.3d 621, 629 (Tex. Crim. App. 2019) (stating intoxicated person
was potential danger to himself in parking lot of public place “where it is
reasonable to assume that cars would travel in and out”). Since the officer had
probable cause to arrest Limon for public intoxication, trial counsel was not
ineffective for failing to request a preliminary hearing on the legality of Limon’s
arrest. Limon has not established the first prong of the Strickland test that his
counsel’s performance was deficient. Strickland, 466 U.S. at 687–88.
4. Counsel was not ineffective for failing to attempt to exclude
evidence of drugs found during the public intoxication arrest.
Limon further alleges that his counsel was ineffective for failing to attempt
to exclude evidence of drugs found on Limon when he was arrested for public
intoxication in April 2021. The officer who arrested Limon for public intoxication
testified during punishment that he found cocaine, ecstasy, Adderall, and marijuana
on Limon. Limon argues that his trial counsel should have objected to admission of
testimony that he possessed Adderall, cocaine, and marijuana. He contends that
only the ecstasy was tested by a forensic chemist, and therefore, the other
32
substances were not proven beyond a reasonable doubt.2 The State responds that if
appellant’s counsel had objected, only the cocaine and Adderall would have been
excluded because the ecstasy was tested, and marijuana can be visually identified
by an officer. The State contends that trial counsel’s decision did not fall below
professional norms because it can be trial strategy to be transparent about criminal
history and drug use during punishment. The State also alleges that Limon cannot
demonstrate prejudice, as the admission of two of four substances would not have
significantly changed his sentence.
The record is silent regarding counsel’s reasons for not objecting to the drug
testimony. Claims of ineffective assistance must be firmly rooted in the record.
Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). When counsel has
had no opportunity to explain his actions, we assume a strategic motive, if one can
be ascertained, and find counsel deficient only if his conduct was so outrageous
that no competent attorney would have engaged in it. Hart v. State, 667 S.W.3d
774, 782 (Tex. Crim. App. 2023). It is apparent from closing argument that defense
counsel’s overall strategy was to portray Limon as a person who had experienced a
“downward spiral” from using drugs from a young age. It is conceivable that trial
counsel did not object to the officer’s testimony regarding the drugs found on
2
Limon also argues that all the drug evidence should have been excluded because
his arrest was not supported by probable cause. Having held that the officer had
probable cause to arrest Limon for public intoxication, we do not address his
argument based on the exclusionary rule. See TEX. R. APP. P. 47.1.
33
Limon during the arrest because he wanted to be upfront and honest about Limon’s
past. It is also conceivable that counsel believed drawing attention to the testimony
by objecting, when only two of the substances could have possibly been excluded,
was not a worthwhile strategy for garnering leniency with the jury as it could
appear as though Limon did not take responsibility for his drug use. On this record,
we cannot say that no reasonable trial strategy justified counsel’s actions. See
Menefield, 363 S.W.3d at 593.
5. Counsel was not ineffective for failing to make a Confrontation
Clause objection to identification testimony regarding alleged
aggravated assault with a deadly weapon.
Limon next contends that his counsel was ineffective for failing to object
based on the Confrontation Clause to identification testimony from an unavailable
witness regarding an unadjudicated extraneous conduct that occurred in September
2021. The State alleged that Limon had committed aggravated assault with a
deadly weapon while in Harris County Jail in September 2021. The State responds
that the trial record is not sufficiently developed to firmly establish that counsel
was ineffective.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. CONST. amend. VI. The admission of a hearsay statement made by a non-
testifying declarant violates the Sixth Amendment if the statement was testimonial,
34
and the defendant lacked a prior opportunity for cross-examination. Crawford v.
Washington, 541 U.S. 36, 68 (2004). Testimonial statements are “statements that
were made under circumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a later trial.” Id. at 51–
52.
During the punishment phase, the State offered evidence that Limon
committed assault with a deadly weapon while in jail in September 2021. A Harris
County investigator testified that she watched surveillance video from the time of
the assault on two inmates. She described the video, and it was shown to the jury.
The video showed towels, sheets, and blankets propped up to block the camera’s
view. The investigator testified that inmates typically block the camera in this way
when inmates are having a fight, having sexual relations, playing dice, or
gambling.
In the video, several inmates go into one cell. Their feet are visible moving
around while a broomstick is being tossed. The blankets flare as they were causing
the assault. People’s hands with closed fists can be seen as the second complainant
is pulled down from a top bunk. The first complainant is seen side punched. When
the lights turn on in the cell block, all the inmates run out except for the
complainant. The investigator testified that she looked at a roster of who was in
which cell block at that date and time. She then pulled their photos from processing
35
into the jail. As she watched the video of the inmates leaving the cell block, she
used a snipping tool to take a picture and compared that picture to the intake
photos for the cell block. She believed she had positively identified six inmates
who were part of the assault. One of the individuals the investigator identified was
Limon. The investigator created a photo array that was shown to one complainant.
The investigator testified, “that’s how we positively Id’d the complain–, the
suspects or the defendants.” Defense counsel objected based on hearsay, and the
objection was overruled. The investigator testified that she later interviewed Limon
and charged him, and four other people, with aggravated assault with a deadly
weapon.
The record reflects that the substance of the victim’s identification was not
relayed to the jury. During her testimony, the investigating officer said that she had
administered a photographic array to the complainant, and that was how she
identified “the defendants.” The investigating officer did not testify that the victim
had specifically identified Limon.
Even if the statement about which Limon complains was testimonial, we
cannot say his counsel was ineffective for falling to object based on the
Confrontation Clause. Whether the Confrontation Clause applies during a
punishment hearing before a jury in Texas is an open question. See Stringer v.
State, 309 S.W.3d 42, 45–48 (Tex. Crim. App. 2010) (holding that when a pre-
36
sentence investigation report is used in non-capital case when judge determines
sentencing, Crawford does not apply and declining to address whether Crawford
applies when jury determines sentencing). Claims of ineffectiveness must be firmly
rooted in the record. Thompson, 9 S.W.3d at 814. “Because the law is not an exact
science and it may shift over time, the rule that an attorney is not liable for an error
in judgment on an unsettled proposition of law is universally recognized.” Ex parte
Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005) (internal quotation
omitted). We cannot say that counsel’s failure to object based on the Confrontation
Clause fell below objective standards of professional norms. See Lopez, 343
S.W.3d at 142.
We overrule Limon’s ineffective assistance of counsel issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
37