Timothy Wayne Dodds v. State

NUMBER t3-13-00288-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TIMOTHYWAYNE DODDS, Appellant,
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of DeWitt County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Appellant Timothy Wayne Dodds appeals his conviction of retaliation, a third-
degree felony. See Tex. PENAL CoDE ANN. S 36.06(axlXn), (c) (West, Westlaw through
2013 3d C.S.). A jury found appellant guilty and assessed punishment at two years'
imprisonment, the sentence to be suspended with appellant being placed on community-
superv¡sion probation for a period of two years. By three issues, appellant argues: (1)
the evidence was insufficient; (2) the trial court improperly excluded an impeachment
witness; and (3) he received ineffective assistance of counsel. We affirm.
L BACKGRoUND
Two of appellant's grandchildren lived with their mother Adrianna Zunigal and her
boyfriend Antonio M. Longoria lll. Zuniga is appellant's son's ex-wife, and she had
custody of their two children-appellant's grandchildren. Zuniga's and Longoria's
neighbor was Police Sergeant Ernesto Garcia Jr.2
On the night of the alleged offense, a police dispatcher called Sergeant Garcia at
home and asked him to see if Zuniga and Longoria had left children alone at their house.
The dispatcher was responding to a "welfare call" from someone concerned that children
were left at home alone. Longoria and Zuniga were at home when Sergeant Garcia
arrived. While Sergeant Garcia was at their house, the police dispatcher called him and
told him Zuniga's ex-husband (appellant's son), "was en route to kill [Longoria]."
Zuniga called a friend, Alex Campbell, and asked him to "please come get the kids
because [she] didn't want the kids there while the cops were there, or [she] didn't know
what his intentions were, being the father, when he got to [her] house . . . ." Campbell
arrived, but appellant and his wife arrived at about the same time. Appellant's wife
approached the house, and Sergeant Garcia remembered her "yelling in an aggressive
1 By the time of tr¡al, Adrianna Zuniga married Antonio M. Longoria lll and changed her last name
to Longoria. We refer to her as Adrianna Zuniga because the parties at trial and on appeal use that name.
2 At trial and in the briefs, Sergeant Ernesto Garcia Jr. is called Sergeant Garcia. We use that
name for cons¡stency.
2
voice in reference to wanting to see the children." Appellant exited his vehicle and
approached the house.
Sergeant Garcia identified himself to appellant as a police officer and told him to
"stop right there." Appellant allegedly responded, "l don't care who you are," pushed
past him, and began arguing with Zuniga. Sergeant Garcia observed that "[a]ggression
came from" appellant. Zuniga began crying. She and Longoria repeatedly asked
appellant to leave. Sergeant Garcia testified that he told appellant seven or eight times
he was a police sergeant and "approximately flve times" to leave or he would arrest him.
Sergeant Garcia heard Campbell say something that made appellant "tense up."
Sergeant Garcia saw appellant walk toward Campbell with clenched fists and "ready to
fight," so Sergeant Garcia pointed a Taser at appellant and yelled, "Stop, Police, Taser.
Stop, Police, Taser." According to Sergeant Garcia, "He stopped. He looked at me, he
grinned, took another step towards [Campbell] and I yelled a third time, 'Stop, Police,
Taser."'
Sergeant Garcia "[p]ulled the [Taser]trigger and two needlelike projectiles eject[ed]
from the [T]aser handle." One of the projectiles "went through [appellant's] shirt" but "did
not make contact" with his body. Sergeant Garcia testified that appellant "stopped,
looked down atthem, looked at me, looked at [Campbell], took a step" towards Campbell.
Appellant, however, then turned to Sergeant Garcia and walked towards him with
clenched fists and grinning-"[h]e was still red and he was still showing his teeth."
Sergeant Garcia considered appellant's advance on him with clenched fists to be a threat.
Sergeant Garcia recalled that as appellant advanced, he "stopped, looked, grinned and
reached down," and grabbed the Taser wires, which closed the Taser's circuit "and the
[T]aser took effect on him."
One of Zuniga's and Longoria's neighbors, Robert Ludwick, saw the altercation.
He confirmed that Sergeant Garcia told appellant three times that he was a police
sergeant and repeatedly asked appellant to leave. Ludwick testified that after appellant
ignored Sergeant Garcia and approached the house, Sergeant Garcia deployed his
Taser. Ludwick recalled appellant turning toward Sergeant Garcia and moving "with a
purpose" towards him. Ludwick testified that appellant "was threatening" Sergeant
Garcia, but that appellant then grabbed the Taser "leads" and "he got tased."
ll. SuFFrcrENCY oF rHE EvTDENGE
By his first issue, appellant contends the evidence was insufficient to convict him
of retaliation. Specifically, appellant argues the evidence was insufficient to show that
he threatened Sergeant Garcia or acted w¡th a retaliatory motive.
A. Standard of Review
"The standard for determining whether the evidence is legally sufficient to support
a conviction is 'whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt."' Johnson v. State,364 S.W.3d 2g2,2g3-g4 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia,443 U.S. 307, 319 (1979)) (emphasis in original);
see Brooks v. State,323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010) (plurality op.).
"The jury is the exclusive judge of the credibility of the witnesses and of the weight to be
given testimony, and it is also the exclus¡ve province of the jury to reconcile conflicts in
the evidence." Wesbrookv. State,29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc)
(citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). Juries are
permitted to make reasonable inferences from the evidence presented at trial, and
circumstantial evidence is as probative as direct evidence in establishing the guilt of an
acfor. Hooper v. Súafe, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State,286 S.W.3d 321,327
(Tex. Crim. App. 2009) (citing Malik y. Sfafe, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State's burden of proof or unnecessarily
restrict the State's theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id. The elements of retaliation under section
36.06(a)(1)(A) are: (1) the defendant (2) intentionally or knowingly (3) harms or
threatens to harm (4) another person (5) by unlawful act (6) in retaliation for or on account
of (7) the service or status of another (8) as a public servant, witness, prospective witness,
or informant. Cada v. Sfafe, 334 S.W.3d 766, 77Q (Tex. Crim. App. 201 1); see Tex.
PENAL CoDE ANt't. $ 36.06(a)(1XA). A pol¡ce officer is a public servant. See Cariere v.
Sfafe, 84 S.W.3d 753,757 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd); Helleson v.
Sfafe, 5 S.W.3d 393, 395 (Tex. App.-Fort Worth 1999, pet. ref'd). "Retaliatory intent
may be inferred from the accused's acts, words, or conduct." Stewaft v. State, 137
S.W.3d 184, 188 (Tex. App.-Houston [1st Dist.] 2004,pet. ref'd) (citing Dues v. State,
634 S.W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982)); In re B.P.H.,83 S.W.3d 400,
407 (Tex. App.-FortWofth2002, no pet.).
The term "threatens" is not defined in the statute. See Tex. PENAL CoDE ANN. S
36.06. The term is thus given its ordinary meaning. See Tex. Gov'r CoDE ANN. S
311.011(a) (West, Westlaw through 2013 3d C.S.); Medford v. State, 13 S.W.3d 769,
771-72 (Tex. Crim. App. 2000); see a/so Schmidt v. Sfaúe, No. 07-04-0480-CR, 2006 WL
249987, at *2 (Tex. App.-Amarillo Feb.2,2006) (mem. op., not designated for
publication) (noting "threatens" is undefined and given its plain and ordinary meaning),
rev'd on othergrounds,232 S.W.3d 66, 69 (Tex. Crim. App. 2007)', Hayes v. Sfafe, No.
14-00-00299-CR, 2001 WL 930874, at *3 (Tex. App.-Houston fl 4th Dist.l Aug. 16, 2001 ,
no pet.) (mem. op., not designated for publication) (same). Black's Law Dictionary
defines "threat" as "[a] communicated intent to inflict harm or loss on another or another's
property." BLAcK's LAWDtcÏoNARy 1618 (gth ed.2009). Nothing in the statute or in
Black's definition limits a threat to verbal communication. See TEX. PENAL CoDE ANN. S
36.06(aX1XA); BLAcK's Lnw Drclo¡lnRy 1618. Where relevant, we address nonverbal
communication, such as body language.
B. Discussion
Appellant first asserts the evidence fails to show that he harmed or threatened to
harm Sergeant Garcia because he neither vocalized a threat nor physically assaulted
him. lt is undisputed that appellant did not hit Sergeant Garcia. Although appellant did
not vocally articulate a threat, we do not read the statute to require the "threat of harm"
be communicated by verbal communication. For example, a person drawing his finger
across his neck with the intent of threatening an onlooker communicates a non-verbal
threat. Here, a rational jury could find that grinning and walking "with purpose" and
clenched fists towards Sergeant Garcia was a threat by unlawful act. See Johnson,364
S.W.3d at 293-94.
Appellant next asserts the evidence fails to show that he acted with a retaliatory
motive. Appellant again emphas¡zes that he did not say anything when he advanced on
Sergeant Garcia. Appellant argues, "Without any words accompanying those actions
the jury is left with mere suspicion and speculation." We disagree because words are
unnecessary to prove retaliatory intent; a jury can infer it from the accused's acts and
conduct. See Sfewaft 137 S.W.3d at 188; /n re B.P.H.,83 S.W.3d at407. The jury
heard that appellant turned and advanced "with purpose," clenched fists, a "red" face, and
in a "threatening" manner towards Sergeant Garcia in response to Sergeant Garcia
deploying the Taser.
Appellant recommends that we interpret this determined advance as a reaction to
the Taser's electricity, but Sergeant Garcia's and Ludwick's testimony show one Taser
wire was unconnected at that time. During oral argument, appellant referenced evidence
that he could have been electrocuted with an unconnected wire, but appellant did not
present this argument or evidence at trial. Regardless, appellant's response once he
closed the electrical circuit did not resemble his grinning and fist-clenched advance on
Sergeant Garcia. A rational jury could find appellant grinned because the Taser
seemingly failed, advanced on Sergeant Garcia for attempting to stun him, and was
electrocuted after he grabbed the Taser wire. Appellant also suggests his threatening
approach was just a reaction to being struck by the Taser barb or constituted angry
gesticulations directed toward Sergeant Garcia. But, viewing the evidence in the light
most favorable to the verdict, we conclude the jury could rationally find appellant's
conduct was focused, determined, and communicated a threat of harm by unlawful act in
response to Sergeant Garcia deploying his Taser. See Johnson, 364 S.W.3d at 293-
94; Hooper,214 S.W.3d at 14; see a/so Tex. PENAL CoDE ANru. S 36.06(a)(f XA).
Appellant relies on In re M.M.R.,932 S.W.2d 1'12, 115 (Tex. App.-El Paso 1 996,
no pet.) and R¡leyv. State,965 S.W.2d l,2 (Tex. App.-Houston [1st Dist.] 1997, pet.
ref'd) for the principle that evidence in a retaliation case must show more than that a
public servant is harmed while discharging off¡cial duties. ln ln re M.M.R., a supervisor
in a juvenile half-way house attempted to intervene in a fight between the juvenile
defendant and another by grabbing the defendant and taking "him to the floor." In re
M.M.R., 932 S.W.2d al 114. The In re M.M.R. Couft held that the evidence was
insufficient to prove a retaliatory intent because the defendant hit the supervisor "not for
the purpose of retaliating against [him] for restra¡ning him, but in order to escape and
continue" fighting. ld. a|115.
ln Riley, the defendant, a prison inmate, hit a guard while the guard secured him.
965 S.W.zd at 2. The Rr'/ey Court held that the defendant's assault was not retaliatory.
/d. Expanding on In re M.M.R., the Riley Court held that evidence proving retaliation
must show that "the harm inflicted resulted from a retributive attack for duties already
performed." /d (emphasis added). Riley did not explain how far in the past the
performance must be to be "already performed," but the same appellate court has since
concluded that a retaliatory act can arise in a single encounter between an arresting
officer and the accused. See Crecy v. State, No. 01-99-00386-CR, 1999 WL 1208518,
at *2 (Tex. App.-Houston [1st Dist.] Dec. 16, 1999, pet. ref'd) (mem. op., not designated
for publication) (finding retaliatory intent where the defendant "made threats almost
simultaneously with his arrest" that he was going to "hunt [the anesting officers] down
and kill" them if they took him to jail); see also ln re K.A., 420 S.W.3d 172, 176 (Tex.
App.-Amarillo 2012, no pet.) (adopting Rl/ey but holding the evidence sufficient to prove
a retaliatory motive where juvenile threatened to stab a juvenile detention officer with a
pencil in response to the officer requesting the juvenile relinquish the pencil).
Several appellate courts have declined to follow R/ey, holding that a retaliatory act
can be contemporaneous with the public servant's performance of the servant's official
duties. See, e.g., Nand¡n v. State,402 S.W.3d 404,408 (Tex. App.-Austin 2013, pet.
refd) ("We find nothing in section 36.06(aX1XA) that requires a defendant's action be in
response to duties 'already performed' by a public servanl."); Wright v. Sfafe, 979 S.W.2d
868, 869 (Tex. App.-Beaumont 1998, pet. ref'd) ("The penal statute does not require the
threat or harm be in retaliation for pasf service as a public servant."); Stafford y. Sfafe,
948 S.W.2d 921 , 924 (Tex. App.-Texarkana 1 997, pet. ref d) (holding evidence sufficient
where defendant threatened police officer upon being arrested and transpoÍed in police
unit); McCoy v. Sfafe, 932 S.W.2d 720,724 (Tex. App.-Fort Worth 1996, pei. ref'd)
(holding defendant's assault of police officer while officer arrested him was retaliatory).
This Court has followed these cases. See Garcia v. State, No. l3-05-00291-CR, 2006
WL 1493250, at *3 (Tex. App.-Corpus Christi June 1,2006, no pet.) (mem. op., not
designated for publication) (applying Stafford to hold that retaliatory act can arise ¡n
"single meeting."). Under this approach, appellant's aggressive response to Sergeant
Garcia's Taser is sufficient to prove retaliatory intent beyond a reasonable doubt. See
Nandin,402 S.W.3d at 408 (holding evidence was sufficient to prove retaliatory intent
because it showed defendant using an "aggressive posture, putting up his fists, and
advancing towards the deputy who then peppeÊsprayed him in the face," which prompted
defendant to charge deputy and try to hit him); McCoy, 932 S.W.2d at 724 (holding
defendant's act of hitting and attempting to kick an arresting officer in response to being
arrested was sufficient to prove retaliatory intent).3
Viewing the evidence in the light most favorable to the jury's verdict, we conclude
the jury was rational in finding all the elements of retaliation beyond a reasonable doubt.
See Johnson, 364 S.W.3d at 293-94. We overrule appellant's first issue.
III. EXGLUDED WITNESS
By his second issue, appellant argues the trial court erred in refusing to admit the
testimony of Paul Hoang, M.D. The State objected to Dr. Hoang's testimony, anticipating
3 Moreover, the evidence is sufficient even under the str¡cter approach taken in R/ey. Unlike Ri/ey
and ln re M.M.R., appellant did not harm or threaten to harm Sergeant Garcia in an attempt to escape from
Sergeant Garc¡a. Cf. R¡ley v. Sfafe, 965 S.W.2d 1, 2 (Tex. App.-Houston [1st Dist.] '1997, pet. refd)i /n
re M.M.R.,932 S.W.2d 112,115 (Tex. App.-El Paso l996, no pet.). Had that been appellant's ìntent, he
would have accepted Sergeant Garcia's repeated invitations to leave the property. This is not a situation
in wh¡ch appellant struck Sergeant Garc¡a during a scuffle or in the heat of the moment. Appellant was
several feet away and could have run; instead, he looked down at the unconnected Taser wìre, grìnned,
cont¡nued his advance on Campbell, stopped, faced Sergeant Garcìa, and walked towards him grinning
and with clenched fists. Under Rlley and ln re MMR., the evidence is sufficient to prove retal¡atory intent
beyond a reasonable doubt. See ln re K.A.,420 S.W.3d 172, 176 (Tex. App.-Amarìllo 2012, no pet.)
(holding evidence was sufficient to prove retaliatory motive under R,/ey where juvenìle threatened to stab
juvenile detention officer with a pencil); see also Crecy v. Sfafe, No. 01-99-00386-CR, 1999 WL 1208518,
at -2 (Tex. App.-Houston [1st Dist.] Dec. 16, 1999, pet. refd) (mem. op., not designated for publication)
(distinguishing R¡ley and ln re M.M.R. because defendant threatened to hunt down and kill arresting offìcers
upon being arrested but "not simply lasl part of resisting arrest, restraìnt, or transport to jail.").
10
his description of appellant's physical condition, which the State argued was "not relevant
as to the charges that are before ihis Court and this jury . . . ." Defense counsel insisted
the testimony would show that appellant lacked the "physical attributes of being able to
attack someone" and undermined the State's witnesses who portrayed appellant as a "big
strapping man ." The trial court ruled "that the doctor's testimony about Mr.
Dodds'[s] physical condition on [the day of the incident] is not relevant to the issues of
this case" because retaliation does not require "the actual execution of physical assault
or the ability to execute a physical assault, it's the impression of the people who were
involved...."
ln an offer of proof, Dr. Hoang testified that he had overseen appellant's care for
over ten years and that eight months before the incident between appellant and Sergeant
Garcia, he had recorded on appellant's "chart" that appellant was "severely disabled."
When asked by defense counsel about appellant's posture and stance, Dr. Hoang said
appellant has "always been lethargic," had a pained walk or limp accompanied by
crouching, and appeared weak and in severe pain.
A. Standard of Review
We review the trial court's decision to exclude Dr. Hoang's testimony under an
abuse of discretion standard. See Miller v. Sfafe,36 S.W.3d 503,507 (Tex. Crim. App.
2001) (en banc). A trial court abuses its discretion when it acts without reference to any
guiding rules or principles. Montgomery v. Sfafe, 810 S.W.2d 372, 380 (Tex. Crim. App.
1990) (en banc). "[Wle uphold the trial court's ruling if it is correct under any theory of
law and as long as the kial court's ruling is within the zone of reasonable disagreement."
Gonzalez v. State, l17 S.W.3d 831, 839 (Tex. Crim. App. 2003).
At issue is whether Dr. Hoang's testimony was relevant. "All relevant evidence is
admissible, except as otherwise provided by Constitution, by statute, by [the Texas Rules
of Evidencel, or by other rules prescribed pursuant to statutory authority." TEX. R. EvD.
402. "Evidence which is not relevant is inadmissible." /d. "'Relevant evidence'means
evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence." Tex. R. Evro. 401.
B. Discussion
Appellant does not allege that he was incapable of walking with clenched fists and
a grin; rather, appellant claims that Dr. Hoang's testimony "would go to whether it was
reasonable for [the State's witnesses] to perceive him to be threatening [Sergeant]
Garcia." Retaliation, however, does not require the threatened audience be intimidated.
See Tex. PENAL CoDE ANr'r. $ 36.06; Cada,334 S.W.3d at 770. Whether it is reasonable
to fear the person intentionally or knowingly communicating a threat is inelevant to the
actor's intent and conduct. See Tex. PENAL CoDE Aru¡¡. S 36.06; Cada, 334 S.W.3d at
770.
Dr. Hoang was not present at the t¡me of the incident and did not witness
appellant's physical state or conduct that day. His testimony suggesting that appellant
looked more pained or less threatening when he walked toward Sergeant Garcia does
not make more or less probable the fact that appellant intentionally or knowingly took his
12
steps with clenched fists. See Tex. R. Evro. 401 (defining relevant evidence); Tex. PeruRr
CoDE ANN. S 36.06 (providing retaliation elements); Cada,334 S.W.3d at 770 (same).
Moreover, as the trial court explained, the actor's ability to execute the threat is irrelevant
to retaliation. See Tex. PENAL CoDE ANru. $ 36.06; Cada,334 S.W.3d at 770. The trial
court's decision was within the zone of reasonable disagreement, and we overrule
appellant's second issue. See Gonzalez, 1 17 S.W.3d at 839.
lV, INEFFEcflvE AssrsrANcE oF CouNsEL
By his third issue, appellant argues he received ineffective assistance of counsel
because trial counsel allegedly "failed to cross examine any of the State's witnesses
concerning their motivations to lie about Mr. Dodds'[s] actions."
A. Standard of Review
To prevail on his ineffective assistance claim, appellant must show: (1) counsel's
representation fell below an objective standard of reasonableness, and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689
(1984)', Lopez v. Súafe, 343 S.W.3d 137,142 (Tex. Crim. App. 2011); Jaynes v. State,
216S.W.3d839,851 (Tex.App.-CorpusChristi 2006,nopet.). Ourreviewof counsel's
representation is highly deferential, and we will find ineffective assistance only if appellant
rebuts the strong presumption that his counsel's conduct fell within the wide range of
reasonable professional assistance. Strickland,466 U.S. at 689', Lopez,343 S.W.3d at
142; Jaynes, 216 S.W.3d at 851 . The record must contain evidence of counsel's
reasoning, or lack thereof, to rebut the presumption. Moreno v. State, 1 S.W.3d 846,
865 (Tex. App.-Corpus Christi I 999, pet. ref'd). We review the totality of representation
l3
rather than isolated ¡nstances in determining whether trial counsel was ineffective. See
Robe¡tson v. Sfaúe, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Lopez, 343 S.W.3d at
143.
We assume trial counsel's strategy was reasonable unless a reasonable strategy
cannot be imagined or if counsel's performance "was so outrageous that no competent
attorney would have engaged init." Andrew v. Sfafe, 159 S.W.3d 98, 101 (Tex. Crim.
App. 2005). To the extent appellant relies on evidence outside the record, we conclude
he failed to overcome with record evidence the presumption that trial counsel's
performance fell within the wide range of reasonable professional assistance. See
Moreno, 1 S.W.3d at 865 (requiring record evidence of counsel's reasoning or lack
thereoO; see a/so Menefield v. Sfaúe,363 S.W.3d 591,592-93 (Tex. Crim. \pp.2012)
("Direct appeal is usually an inadequate vehicle to raise such a claim because the record
is generally undeveloped.").
B. Discussion
Appellant's trial counsel thoroughly contested the State's motions in limine,
effectively conducted voir dire, aggressively cross-examined the State's w¡tnesses, made
proper objections with favorable rulings, examined a defense witness, made an offer of
proof with the test¡mony of two witnesses whom the trial court disallowed to testify, moved
for a judgment notwithstanding the verdict, delivered a compelling closing argument, and
presented a viable defensive theory. Appellant nevertheless argues that several alleged
deficiencies deprived him of constitutionally effective counsel.
14
Appellant appears to argue that his trial attorney was constitutionally deficient for
failing to inquire "into the background of any of [the State's] witnesses, their relationships
to each other, and how that might influence their testimony in an effort to convict Mr.
Dodds." A review of the record reveals the opposite. The State had four witnesses:
Zuniga, Longoria, Sergeant Garcia, and Ludwick. In closing argument, defense counsel
emphasized that the witnesses knew each other and had jointly prepared their testimony.
Appellant does not elaborate on how Zuniga's and Longoria's backgrounds or relationship
to each other or with their neighbors tainted their testimony; instead, appellant focuses
on Ludw¡ck and Sergeant Garcia.
Appellant incorrectly claims his attorney failed to cross-examine Ludwick "about
why he had only come forward as a witness" shortly before trial. Appellant overlooks
trial counsel's first quest¡on: "Mr. Ludwick, when did you come forward and give this
statement to the District Attorney's Office?" Ludwick answered that he appeared as a
witness one week before trial. Appellant implies that Ludwick's late appearance shows
that he was biased for the State, but such speculation is unsupported by the record. See
Menefield,363 S.W.3d at 592-93; Moreno, 1 S.W.3d at 865. To the extent appellant
suggests Ludwick's relationship with Sergeant Garcia motivated him to testify favorably
for the State, trial counsel inquired into that relationship. Ludwick denied being friends
with Sergeant Garcia, but trial counsel noted that Ludwick had given Sergeant Garcia a
ride in his vehlcle on the preceding day.
Appellant also incorrectly claims that defense counsel "failed to question the
State's principal witnesses about how they all met with the District Attorney's office to
15
prepare their testimony, and whether discussing their testimony together in any way
tainted their memories of the events." This assertion is bold given that trial counsel
repeatedly asked Zuniga, Longoria, and Sergeant Garcia about their meeting at the
district attorney's office and preparing their testimony, and trial counsel emphasized this
point in closing argument.
Appellant contends trial counsel was ineffective for noi questioning the State's
witnesses "to any degree about whether the¡r perceptions of Mr. Dodds's actions . . . were
overblown, unrealistic[,] and/or incredible." Contrary to appellant's assertion, trial
counsel thoroughly challenged the witnesses' credibility and testimony. Moreover, as
discussed supra, their perceptions of appellant's conduct was irrelevant, and counsel was
not deficient for not further eliciting irrelevant information. See Tex. PENAL CoDE ANN. S
36.06; Tex. R. EvrD. 401; see also Moore v. State, No. 07-010-0477-CR,2002WL
31627079, at.2 (f ex. Crim. App. Nov. 22, 2002) (not designated for publication) (holding
defense counsel was not ineffective for not eliciting inadmissible testimony that the trial
court had excluded in a motion in limine).
Appellant faúlts trial counsel for not inquiring into "several incidents in [Sergeant
Garcia'sl past history as a law enforcement officer that might cause a jury to question his
credibility." Trial counsel was not deficient in this regard because specific instances of a
witness's conduct "may not be inquired into on cross-examination of the witness nor
proved by extrinsic evidence." TEX. R. EvD. 608(b). Further, the instances are not
included in the record. See Moreno, I S.W.3d at 865 (requiring record evidence of
counsel's reasoning or lack thereof). Neither was trial counsel deficient for not inquiring
into the specific instances of Campbell's employment history. See TEX. R. EvD. 608(b);
Moreno, 1 S.W.3d at 865; see also Moore, 2002 WL 31627079, at *2 ("Exclusion of
inadmissible tesiimony does not render defense counsel's performance ineffective.").
Lastly, appellant complains, "Although trial counsel questioned [Sergeant] Garcia
about when he actually wrote the [police] report, he made no effort" to show the report
was a response to appellant's civil suit against the city for Sergeant Garcia's conduct in
the altercation. That information, however, was excluded by the trial court. Despite trial
counsel's resistance, the trial court granted the State's motion in limine, precluding
inquiries into Sergeant Garcia's or the State's motives in prosecuting appellant. The trial
court told defense counsel, "[Y]ou can go into the timing of the report but you can't go into
his motive for doing it." Appellant characterizes trial counsel as deficient for following the
trial court's ruling. We disagree. Trial counsel's decision to not elicit testimony or
request to elicit testimony that the trial court had previously ruled inadmissible fell within
the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689;
Lopez, 343 S.W.3d at 142; Jaynes,216 S.W.3d at 851; see also Moore,2002 WL
31627079, af-2.
ln reviewing the foregoing assertions, we conclude that appellant has failed to
present evidence sufficient to overcome the strong presumption that trial counsel's
performance fell within the wide range of reasonable professional assistance.
Strickland,466 U.S. at689; Lopez,343 S.W.3d at142; Jaynes, 216 S.W.3d at 851. We
overrule appellant's third issue.
17
V. CoNcLUSToN
We affirm the trial court's judgment.
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 25th
day of November,2014.
18