Natasha Rashenet Johnson v. State

Affirmed and Memorandum Opinion filed May 19, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-10-00462-CR

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Natasha Rashenet Johnson, Appellant

V.

The State of Texas, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1224590

MEMORANDUM OPINION

A jury found appellant Natasha Rashenet Johnson guilty of serious bodily injury to a child and sentenced her to fifty years’ imprisonment.  Johnson brings this appeal, contending that (1) the evidence is legally insufficient to support her conviction; (2) the evidence is factually insufficient to support her conviction; (3) the trial court erred in admitting letters Johnson had written from jail because the letters were seized without a warrant and in violation of her Miranda rights; (4) the trial court erred in admitting duplicative and unfairly prejudicial photos of the complainant’s injury; and (5) she received ineffective assistance of counsel.  We affirm. 

I

            Natasha Rashanet Johnson was charged with serious bodily injury to a child following the discovery that her daughter, 15-month-old G.P., had sustained second-degree burns to her hand.  On March 6, 2007, Tyiesha Woods, Johnson’s niece, was at Johnson’s apartment when she noticed G.P. had a sock over her hand that was secured at the wrist by what appeared to be a hair band.  Woods asked Johnson about the sock, and Johnson explained she had put it on G.P.’s hand to prevent her from sucking her thumb. 

            The next morning, Johnson asked Woods to babysit her children while she went fishing with her boyfriend, Terrance Smith, who was referred to throughout the trial as “Boo.”  The children were dropped off between 10:00 and 10:30 a.m., and G.P. still had the sock fastened to her hand.  Woods testified G.P. was “fussy” and could not be consoled, so Woods removed the sock and saw that G.P.’s hand was “swollen” and “messed up.”  Woods immediately called a neighbor, Cynthia Walter, for assistance.  Walter testified that upon arriving at the apartment, Woods was “crying and shaking.”  G.P.’s hand, Walter testified, was “black, blue, [and] purple” and “looked horrible.”  Walter retrieved medicine from her apartment and applied Neosporin, Vaseline, and an ice pack to G.P.’s hand.            

Walter suggested they immediately call the police about G.P.’s injury, but Woods demurred because she was afraid the authorities would think she injured the child.  Woods instead called Johnson and asked her to return and take G.P. to the hospital.  Woods testified Johnson “just said okay and hung up” but that she “sounded concerned.”  When Johnson did not immediately return, Woods called her again and proceeded to call her several times throughout the day urging her to return and take G.P. to the hospital.  During one conversation, Woods testified Johnson asked why Woods had removed the sock and to whom she had shown G.P.’s hand.  Johnson did not return until approximately 11:00 p.m. that night.  Woods testified that Johnson did not come inside the apartment to retrieve her children, but that the children left the apartment on their own to meet Johnson and Smith in their car, with Johnson’s oldest son carrying G.P. 

            After picking up the children, Johnson and Smith drove to Smith’s house.  Smith called 911 at 11:04 p.m., and Houston firefighter and EMT Sergio Buentello testified he and other first responders were dispatched to the house in reference to a “bite call.”  Upon arriving at the scene, Buentello found Johnson holding G.P.  First responders began tending to G.P., whose hand Buentello testified was swollen and blistering.  Buentello testified G.P.’s injuries were inconsistent with a bite injury.  Johnson told Buentello she did not know how G.P.’s hand had been injured, and did not mention anything about G.P. sucking her thumb.  Buentello testified G.P.’s injury appeared to be a burn, and that the injury showed signs of child abuse.  When asked why he suspected child abuse, Buentello testified:

Goes back to the symmetrical line that goes around the wrist.  Usually with accidents there will be some type of splashing on the arm, just put her hand on something hot.  And how deep the burn was, how far up her arm was.  Usually when you dip your hand in hot water or something, you sort of react to it.  So for her to get her arm that far in the water was . . . [w]as a red flag.

Buentello also testified parents of injured children are “usually hard to control,” but that Johnson did not cry or seem excessively worried.

Both G.P. and Johnson were taken by ambulance to the emergency room at Lyndon B. Johnson General Hospital, but G.P. was transferred to Children’s Memorial Hospital shortly afterward.  She was examined the following day by Dr. Rebecca Girardet, a physician board certified in general pediatrics and child-abuse pediatrics. Dr. Girardet diagnosed G.P.’s injury as a second-degree burn, and also observed scarring on G.P.’s abdomen that Johnson said resulted from injuries incurred when G.P. “was trying to walk outside.”  Dr. Girardet observed a clear line of demarcation and no splash patterns, which she testified was consistent with her hand being immersed in a hot liquid.  Dr. Girardet further opined that G.P.’s injuries were not consistent with Johnson’s statements that G.P.’s thumb had been red and swollen for three days after she developed a small cut on the side of her thumb, or that G.P. had been sucking her thumb and had a sock put over her hand with a band wrapped around her wrist.  Dr. Girardet described the injury as serious and painful with the possibility of scarring, loss of function, and infection.  Dr. Girardet further observed G.P. was “a little malnourished” and “small for her age,” with both her weight and length below the norm for an average 15-month-old.  G.P. was hospitalized until March 16, 2007, after which she was placed in foster care.  A member of G.P.’s foster family described how G.P.’s hand had to be cleaned, medicated, and wrapped, and testified a nurse came to their home daily for weeks to change the dressing.

The State also offered into evidence several letters Johnson wrote from jail, pointing the jury to several excerpts, including:

“tell him [Johnson’s attorney] that I did do what thay saying”

“Its fuck[ed] up that I have to do this time I did do it”

“Let him [k]now that I did do that to my baby”

“Let him know that I did do what thay saying”

“Let me know I did do what thay saying. Let him now”

Johnson testified that in some instances she accidentally wrote “did” instead of “didn’t,” and in others wrote “did” in reference only to placing the sock on G.P.’s hand.  Johnson claimed the mistakes were a result of “writing too fast.”  She denied burning G.P.’s hand, insisting instead that she put the sock on G.P.’s hand to prevent her from sucking her thumb after a small cut had become infected, and that she had tied the “tie bow thing” too tightly such that it cut off circulation to the hand.  Johnson testified the sock was on G.P.’s hand for about a day and a half before she dropped her children off to be babysat by Woods.  Upon receiving the first phone call from Woods concerning G.P.’s hand, Johnson testified she and Smith immediately began to return to pick the children up, but that the drive between Kemah and Houston was “9 or 10 hours and probably a little more than that,” which she attributed in part to being “in traffic.”  Nonetheless, Johnson testified she did not recall her time of arrival to pick up the children being delayed until 11:00 p.m.  Upon arriving, Johnson testified that she stayed in the car while the children came outside to meet her because she was “worn out, tired.” Johnson further testified she told the medics who arrived at Smith’s house that she didn’t know what happened to G.P.’s hand because she was “scared” and “afraid.” 

When Johnson denied making phone calls to Smith while in jail, the prosecution refreshed her memory outside the presence of the jury with a recording of a phone call.  When the jury returned, the State cross-examined Johnson without objection regarding several portions of the conversation, including Smith’s suggestion that she cry in court.  Johnson also agreed that when Smith asked her if she burned G.P.’s hand, Johnson said, “I’m going to tell ‘em, Boo.  I’m going to talk.  I’m going to let them know everything.  I didn’t intend to, I was just trying to help my baby.”  Johnson also testified she did not believe Woods was responsible for G.P.’s injury.  The jury found Johnson guilty of serious bodily injury to a child and sentenced her to fifty years’ imprisonment.  This appeal followed.

II

            In her first and second issues, Johnson claims the evidence is legally and factually insufficient to support her conviction because a rational trier of fact could not have found her guilty beyond a reasonable doubt.  Johnson argues the evidence is insufficient because (1) there is no evidence directly connecting her to the injury or to a deadly weapon; (2) there is no evidence that she delayed seeking medical attention for G.P. once made aware of the baby’s condition; (3) there is no physical evidence tying her to the injury; (4) the evidence was inconclusive as to the babysitter’s involvement; (5) there was no evidence ruling out a third party’s responsibility; (6) there was no evidence she was criminally negligent or reckless; and (7) there was no deadly weapon introduced into evidence. 

A majority of the judges on the Court of Criminal Appeals have determined that the Jackson v. Virginia legal-sufficiency standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.  Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (Hervey, J., joined by Keller, P.J., Keasler, and Cochran, J.J.); id. at 926 (Cochran, J., concurring, joined by Womack, J.) (same conclusion as plurality).  Accordingly, we will analyze Johnson’s factual-sufficiency issue under the Jackson v. Virginia standard and ask only if the evidence against him was legally sufficient to sustain a verdict of guilty beyond a reasonable doubt.  See id. at 912 (plurality op.); Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.). 

In a legal-sufficiency review, we examine all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 433 U.S. 307, 319 (1979).  This standard of review applies to cases involving both direct and circumstantial evidence.  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  Although we consider everything presented at trial, we do not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence.  Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).   

We note initially that Johnson’s complaints that there was insufficient evidence connecting her to a deadly weapon do not warrant consideration because use of a deadly weapon was not an element of the crime for which Johnson was tried.  Although the indictment originally included a paragraph concerning use of a deadly weapon, the State abandoned the paragraph before the trial on the merits commenced. The paragraph was removed from the indictment as read to the jury, and the jury charge contained no instructions concerning use of a deadly weapon. 

Dr. Girardet testified that G.P.’s hand had been burned by immersion in a hot liquid, and that her injuries were inconsistent with Johnson’s statement that the hand had become red and swollen after G.P.’s thumb was cut.  Dr. Girardet also testified G.P. appeared slightly malnourished and was below the average weight for her age.  Like Dr. Girardet, Buentello also testified that it appeared G.P.’s hand had been immersed in liquid, and that her injuries suggested child abuse. 

Johnson further admitted to placing a sock over G.P.’s hand.  First responders initially responded to a “bite” call, but when medics arrived Johnson said she did not know what happened to G.P.’s hand, although she would later tell Dr. Girardet that a cut on her thumb had become infected.  The jury also heard evidence that Johnson did not return to pick G.P. up for approximately eleven hours after being notified by the babysitter of the injury, and that when she did return she did not come inside to pick G.P. up, choosing instead to wait in her car.  Rather than take G.P. directly to a hospital, Johnson drove to Smith’s house, where it was Smith, not Johnson, who called 911.  The jury was also entitled to give weight to letters Johnson had written from jail, several of which indicated she “did do that” to G.P.

To the extent no physical evidence was presented directly tying Johnson to G.P.’s injury, none was needed.  Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt.  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (rejecting argument that lack of physical evidence rendered evidence insufficient). 

And contrary to Johnson’s assertions, there was evidence that Johnson delayed seeking medical attention for G.P.  First, G.P. had already been injured when Woods’ assumed her care.  The jury could have inferred Johnson was aware of the extent of G.P.’s injury since she admittedly placed a sock over the hand.  But even if she were unaware of the severity of the injury, Woods’ called to inform her as much shortly after Johnson dropped off G.P.  Nonetheless, Johnson did not return from fishing with Smith for nearly twelve hours.  When she did, it was Smith, not Johnson, who called 911 after returning to his home. 

Johnson’s argument that the evidence is “inconclusive” as to the babysitter’s involvement is equally unavailing.  Woods denied harming the child in any way, and even if Johnson testified she believed Woods caused the injuries, the jury would have been entitled to believe Woods.  See Mosley, 983 S.W.2d at 254.  But Johnson herself testified she did not believe Woods injured G.P. in any way. Furthermore, although Johnson contends there was no evidence ruling out a third party, none was needed.  The jury could have rationally determined, based on the evidence presented, that Johnson was guilty beyond a reasonable doubt.  We overrule Johnson’s first and second points of error. 

III

            In her third issue, Johnson complains the trial court erred in admitting, over defense counsel’s objections, a recorded phone call and five letters Johnson wrote from prison containing statements such as “tell him [Johnson’s attorney] that I did do what thay [sic] saying.”  On appeal, Johnson argues that admitting the recorded phone call and letters violated both her Fourth Amendment right against unreasonable search and seizure and her Fifth Amendment privilege against self-incrimination. 

            The State initially argues that Johnson failed to preserve error at trial by not objecting every time the letters were presented.  See Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).  The State acknowledges Johnson twice objected to the letters, but contends she “did not object each and every time such evidence was presented.”  The State further argues that Johnson has waived this issue on appeal due to inadequate briefing.  Johnson’s brief refers only to the trial court’s error in admitting “private letters and intercepted phone calls,” but does not specify where in the record the inadmissible evidence appears.  Therefore, the State argues nothing is preserved for review because Johnson has not directed the court to the proper place in the record where the complained-of error may be found.  See Lape v. State, 893 S.W.2d 949, 953 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d).

            The phone call was referred to during the State’s direct examination of an employee of the Harris County Sheriff’s Office, and was later published outside the presence of the jury without objection, but was never admitted into evidence. Therefore, nothing is presented for review.  We will, however, assume error was preserved at trial as to the complained-of letters.[1]

            Johnson argues the letters were inadmissible on two fronts.  First, she argues her “Miranda v. Arizona rights were violated” by the seizure of the mail with the specific purpose of seeking evidence against her when no warnings were given to her that the letters were subject to review.  Second, Johnson argues the letters should have been suppressed as the product of a warrantless search and seizure. 

            The State may not use any statement, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.  Miranda v. Arizona, 384 U.S. 436, 444 (1966).  Custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.  Id.  Although Johnson was in custody when she wrote the letters that were admitted at trial, the statements were not a product of custodial interrogation.  See Banargent v. State, 228 S.W.3d 393, 402 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (holding recordings of phone calls made by defendant from prison were not the product of custodial interrogation);  State v. Scheineman, 77 S.W.3d 810, 813 (Tex. Crim. App. 2002) (holding no custodial interrogation occurred when the defendant’s custodial statement was not made in response to interrogation by law enforcement personnel but instead was made when the defendant was alone with a co-defendant).  Therefore, Johnson’s Fifth Amendment privilege against self-incrimination simply is not implicated. 

            Johnson’s complaint that the letters should have been excluded as the product of a warrantless search and seizure is also without merit.  An accused has standing to challenge the admission of evidence obtained by a government intrusion only if he had a legitimate expectation of privacy in the place invaded.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  The accused has the burden of proving facts establishing a legitimate expectation of privacy.  Id. To carry the burden, the accused must prove (1) that by his conduct he exhibited an actual subjective expectation of privacy, and (2) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable.  Id.; see also Smith v. Maryland, 442 U.S. 735, 740 (1979). 

The United States Supreme Court long ago opined that it was “satisfied that society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security.”  Hudson v. Palmer, 468 U.S. 517, 528 (1984).  Accordingly, prisoners have no reasonable expectation of privacy in their mail.  See Stroud v. United States, 251 U.S. 15, 21–22 (1919) (holding prisoner letters offered at trial were not a product of unreasonable search and seizure); Salinas v. State, 479 S.W.2d 913, 915 (Tex. Crim. App. 1972) (no error in admitting drugs found in package sent between inmates); cf. Ex parte Graves, 853 S.W.2d 701, 705–06 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (holding no privacy expectation under wiretap statute when conversation recorded by visible speaker); Thomas v. Allsip, 836 S.W.2d 825, 828 (Tex. App.—Tyler 1992, no writ) (noting the court was unable to find any legal authority recognizing a prisoner’s right to privacy in letters addressed to court).  Because the trial court did not err in admitting the letters, we overrule Johnson’s third issue.   

IV

            In her fourth issue, Johnson complains the trial court erred in admitting several photographs into evidence that were duplicative of other introduced photos, and that the highly inflammatory and prejudicial nature of these photos outweighed any probative value.  Specifically, Johnsons argues that exhibits 1, 2, 4, and 5 through 17 were offered “solely to inflame the minds of the jury,” and that photos depicting an “unkempt” condition of Johnson’s children were not relevant.  Exhibits 1 and 2 are pictures of all of Johnson’s children.  Exhibit 4 is a picture of G.P. undergoing treatment at the hospital and apparently crying.  Exhibit 5 also depicts G.P. apparently crying while having her injured hand held up to the camera.  Exhibits 5 through 13 are an assortment of close-up pictures of G.P.’s injured hand, and exhibits 14 through 17 depict scarring on G.P.’s abdomen. 

            The State initially argues that nothing is presented for review as to exhibits 1 and 2 because Johnson’s counsel affirmatively stated at trial that he had “no objection” to admission of the photos.  We agree.  When a defendant affirmatively asserts during trial that he has “no objection” to admission of the evidence he complains about on appeal, he waives any error in the admission of the evidence.  Dean v. State, 749 S.W.2d 80, 82–83 (Tex. Crim. App. 1988); see also Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a).  The State further argues that error was not preserved as to exhibits 4 through 17 because Johnson’s counsel did not re-urge his objection each time the evidence was presented.  See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).  We will assume error was preserved as to exhibits 4 through 17. 

We review the admission of evidence for an abuse of discretion.  Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996).  So long as the trial court’s decision is within the zone of reasonable disagreement, we will not disturb it on appeal.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’ing).

Although admissible, relevant evidence may be excluded if its probative value is substantially outweighed by a danger that it will unfairly prejudice, confuse, or mislead the jury, if its inclusion will result in undue delay, or if it is needlessly cumulative.  Tex. R. Evid. 403.  Generally, photographs are admissible if verbal testimony about the matters depicted in the photographs would be admissible and their probative value is not substantially outweighed by the Rule 403 counter-factors.  Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004).  Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Id. 

A Rule 403 analysis by the trial court should include, but is not limited to, the following factors:  (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent=s need for the evidence.  Montgomery, 810 S.W.2d at 389B90.  Additionally, the court should consider the form, content, and context of the photographs, including the following factors: (1) the number of exhibits offered, (2) their gruesomeness, (3) their detail, (4) their size, (5) whether they are black and white or in color, (6) whether they are close-up, (7) whether the body is naked or clothed, and (8) whether the body as photographed has been altered since the crime that might enhance its gruesomeness to the defendant’s detriment.  Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992); Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991). 

Exhibits 4 through 13 depict nothing more than the injury that formed the basis of the charge against Johnson, while exhibits 14 through 17 depicted evidence of injuries G.P. had previously suffered.  These exhibits served as visual explanations of the nature, extent, and cause of G.P.’s injuries.  They were no more gruesome than the facts of the offense itself.  See Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997).  Furthermore, visual evidence accompanying testimony is most persuasive and often gives the fact finder a point of comparison against which to test the credibility of a witness and the validity of his conclusions.  Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999).  It was within the trial court’s discretion to determine that ten photos depicting different angles of G.P.’s injured hand and four photos depicting scarring on G.P.’s abdomen were not unnecessarily cumulative or unfairly prejudicial to Johnson.  See Montgomery v. State, 810 S.W.2d at 391.  We overrule Johnson’s fourth issue.

V

In her last issue, Johnson complains she received ineffective assistance of counsel.  Johnson maintains her counsel was ineffective by (1) failing to request a pretrial hearing or file a motion to suppress evidence regarding Johnson’s letters from jail and recorded phone call; (2) failing to preserve error or seek further relief to sustained objections; (3) failing to object to testimony from a member of G.P.’s foster family as irrelevant and prejudicial; (4) failing to object to the State’s improper closing argument; (5) failing to object to the State’s sidebar that a red band with a perfect line is common in child abuse cases; (6) failing to object to leading; and (7) failing to request an instruction on the lesser-included offense of deadly conduct. 

An accused is entitled to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686 (1984); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).  In reviewing claims of ineffective assistance of counsel, we apply a two-prong test.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 687).  To establish ineffective assistance, an appellant must prove by a preponderance of the evidence that (1) his trial counsel’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different.  Strickland, 466 U.S. at 687; Mallet v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2002).  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Mallett, 65 S.W.3d at 63.

When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  In making such an evaluation, any judicial review must be highly deferential to trial counsel and avoid the distorting effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (citing Strickland, 466 U.S. at 689).  Accordingly, there is a strong presumption that counsel’s conduct fell within a wide range of reasonable representation.  Salinas, 163 S.W.3d at 740.  The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.  Thompson, 9 S.W.3d at 813 (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).  To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 814.  Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).  When the record is silent as to trial counsel’s strategy, we will not conclude that defense counsel’s assistance was ineffective unless the challenged conduct was “‘so outrageous that no competent attorney would have engaged in it.’”  Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). 

The record in this case is silent as to the reasons for counsel’s actions.  Johnson has therefore failed to rebut the presumption that counsel’s conduct fell within the range of reasonable representation.  See Salinas, 163 S.W.3d at 740.  As such, we do not judge counsel’s strategic decisions in hindsight; rather, the review of counsel’s representation is highly deferential and presumes that his actions were reasonable.  See Thompson, 9 S.W.3d at 812–13; see also Lane v. State, 257 S.W.3d 22, 26 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). 

Nor was counsel’s conduct “so outrageous that no competent attorney would have engaged in it.”  See Garcia, 57 S.W.3d at 440.  To the extent that any of counsel’s alleged shortcomings were indeed not supported by sound strategy, isolated instances in the record reflecting errors of commission or omission do not cause counsel to become ineffective, nor can ineffective assistance of counsel be established by isolating or separating out one portion of the trial counsel’s performance for examination.  Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986).  Similarly, assuming without deciding a lesser-included offense instruction was proper, failure to request an instruction on a lesser-included offense may be a reasonable trial strategy.  See, e.g., Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004). 

            Counsel’s decision not to object to allegedly leading questions, improper arguments, sidebar remarks, or to the testimony of a member of G.P.’s foster family as irrelevant, also does not render counsel’s performance ineffective on the grounds that no strategy could exist for his actions.  Assuming valid objections could have been lodged, we have previously held that choosing not to object can be a trial strategy.  Henderson v. State, 704 S.W.2d 536, 538 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d).  (holding that the failure to object to every introduction of improper evidence or questioning does not indicate that appellant's representation was ineffective). 

            Finally, Johnson’s complaint that counsel did not file a motion to suppress or seek a pretrial hearing to exclude from evidence Johnson’s letters and recorded phone calls from jail is without merit.  When an appellant makes no showing that a ruling on pretrial motions would have changed anything in the case, he has failed to establish ineffective assistance.  Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993). Here, counsel properly objected to the complained-of letters when the State sought to introduce them at trial.  There is no suggestion that the court’s decision to admit the letters would have been different if the matter was taken up at a pretrial hearing.  And, as previously discussed, the phone call recording was played outside the presence of the jury and was not admitted into evidence. 

            Absent a record containing an explanation of counsel’s strategy, Johnson has failed to rebut the presumption that counsel’s conduct fell within the range of reasonable representation. Furthermore, Johnson points us to no conduct that is so outrageous that no competent attorney could have engaged in it.  We overrule Johnson’s fifth issue. 

* * *

For the foregoing reasons, we affirm the trial court’s judgment.                                                                                                        

                                                                        /s/        Jeffrey V. Brown

                                                                                    Justice

Panel consists of Justices Brown, Boyce, and Jamison

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Although the State correctly points out that Johnson did not cite to specific exhibits in her brief, we decline to find waiver because the letters Johnson complains of are readily identifiable in the record.  We distinguish this case from those in which the court is asked to sift through volumes of the record without direction, searching for the exhibits the appellants complains of, in which case we would be more inclined to find the argument had been waived because of inadequate briefing.