Brian Bernard Kulhanek v. State

NUMBERS 13-14-00661-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ELIAS GAITAN
A/K/A ELIAS GAITAN JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 357th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes and Longoria
Memorandum Opinion by Justice Perkes
Appellant Elias Gaitan appeals his convictions for continuous sexual abuse of a
child, aggravated sexual assault of a child, and two counts of indecency with a child. See
TEX. PENAL CODE ANN. §§ 21.02, 21.11(a)(1), 22.021(a)(1) (West, Westlaw through 2015
R.S.). After a jury found him guilty of the offenses, the trial court sentenced appellant to
life imprisonment in the Texas Department of Criminal Justice-Institutional Division on the
first two counts, and twenty years’ imprisonment on counts three and four, to run
consecutively. By two issues, appellant argues: (1) the trial court erred by denying
appellant’s motion to suppress his post-arrest statements; and (2) he received ineffective
assistance of counsel. We affirm.
I. BACKGROUND1
Prior to trial, appellant filed a motion to suppress three statements made to law
enforcement following his arrest. At the suppression hearing, the State presented the
testimony of Brownsville Police Department Detective Samuel Lucio and introduced two
video recordings of statements made by appellant. The evidence presented at the
suppression hearing reflects the following.
A. First Statement
Detective Lucio was assigned to investigate allegations that appellant sexually
abused his daughter over a period of years. Following appellant’s arrest, Detective Lucio
conducted a recorded interview with appellant at the Brownsville Police Department. At
the outset of the conversation, appellant requested a “public defender.” Detective Lucio
then told appellant “that’s what I was going to do. I was going to read you your rights
and ask you if you wanted to give a statement without a lawyer.” Detective Lucio stated
“if you don’t want to give a statement without a lawyer, that’s fine.” Appellant reiterated
that he wanted a lawyer present during questioning. Detective Lucio then asked
1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P.47.4.
2
appellant “do you know what you’re being charged with?” Detective Lucio proceeded to
describe the allegations of sexual abuse. He explained, “I wanted to read you your rights
and ask you questions about that.” Appellant then volunteered that he was having
problems with his wife and that they had recently separated. Detective Lucio replied “do
you want to answer questions or not because I need to make you aware of your rights.”
Appellant again stated he wanted a lawyer and made another reference to issues with his
wife. Detective Lucio stated that “it’s not the mom who’s making the accusations. The
one who is making the accusations is your daughter.” He continued to explain that the
child’s mother was “shocked and hysterical when she found out what was going on.”
Detective Lucio proceeded to play a videotaped interview with appellant’s daughter in
which she detailed the allegations of sexual abuse. Following the video, Detective Lucio
repeated the allegations before asking appellant “so you want to wait to talk to an
attorney?” Appellant again stated he wanted a lawyer. Detective Lucio responded
“[your daughter] said you would do this because she was going to have to learn anyway,”
and continued to describe the allegations. He said appellant’s wife “almost had a
nervous breakdown.” The interview then concluded.
B. Second Statement
Appellant’s father, Elias Gaitan Sr., arrived at the police station the following day
and asked to speak to Detective Lucio about his son’s “case.” Gaitan Sr. expressed
disbelief that appellant committed the alleged offenses. He also told Detective Lucio that
“I know that if I talk to him, he is going to tell me the truth.” Detective Lucio asked Gaitan
Sr. if he wanted to speak to appellant, and he said yes. After clearing the request with
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his supervisor, Detective Lucio allowed Gaitan Sr. to speak to appellant in an interview
room. Detective Lucio did not provide any instructions to Gaitan Sr. regarding what he
should say to appellant. Only appellant and his father were present in the room which
had a visible camera recording the conversation. Appellant did not deny the allegations
but told Gaitan Sr. that his actions were not “by force.”
C. Third Statement
Following the conversation, Detective Lucio escorted appellant back to his jail cell.
As they neared the elevator to the jail cells, appellant asked when he could speak to a
lawyer. Detective Lucio responded that an attorney would be appointed and he would
be available if appellant’s attorney wished to speak to him. Appellant replied that he
wanted to work out a deal, that he was not forceful with his daughter, and that the sexual
abuse did not occur as frequently as alleged. Detective Lucio then stated that once an
attorney was appointed, he would be available. This conversation was not recorded.
D. Trial Court’s Ruling
The trial court suppressed appellant’s initial interview with Detective Lucio, but
denied appellant’s motion to suppress the second and third conversations.2 The trial
court issued the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. The motion to suppress regarding the above numbered and styled
cause concerns three (3) separate statements made by [appellant]
while he was in custody.
2 We initially abated this appeal and instructed the trial court “to enter an order stating its conclusion
as to whether or not the challenged statements were voluntarily made, along with specific findings of fact
upon which the conclusion is based.” See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West, Westlaw
through 2015 R.S.). The trial court subsequently entered findings of fact and conclusions of law which
were filed as a supplemental clerk’s record.
4
....
3. The first statement occurred when [appellant] was questioned by
Detective Lucio . . . on November 26, 2012.
4. At the beginning of the conversation, [appellant] informed Det. Lucio
that he would like an attorney.
5. Although Det. Lucio did not ask [appellant] any direct questions, Det.
Lucio continued speaking with [appellant] after this request was
made.
....
8. The second statement occurred the following day during a
conversation between [appellant] and [his] father, [Gaitan Sr.]
9. [Gaitan Sr.] showed up at BPD wishing to speak with [appellant]
regarding the allegations.
10. Neither Detective Lucio, nor any other police officer asked [Gaitan
Sr.] to come to the Police Department.
11. [Gaitan Sr.] asked to speak to [appellant] out of his own concern for
[his] well[-]being.
12. Neither Detective Lucio, nor any other police officer directed [Gaitan
Sr.] to ask [appellant] any particular questions.
13. The conversation between [Gaitan Sr.] and [appellant] occurred in
an interrogation room where the conversation was recorded.
14. It is apparent from comments made on the video that [Gaitan Sr.] and
[appellant] were aware that their conversation was being recorded.
15. [Gaitan Sr.] is not, and never has been, a certified peace officer,
police officer, or agent of the State.
16. The third statement took place between [appellant] and Detective
Lucio.
17. After [appellant] spoke with [Gaitan Sr.], Detective Lucio escorted
[appellant] back to his jail cell.
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18. In the elevator on the way down to his cell, Detective Lucio informed
[appellant] that he would be available to speak with him once
[appellant] was appointed an attorney and could have counsel
present during the conversation.
19. [Appellant] then made an admission to Detective Lucio regarding the
allegations against him and stated that he wanted to work out a deal
with the State.
20. [Appellant] volunteered these statements to Detective Lucio without
any prompting or questioning from Detective Lucio or any other
police officer.
CONCLUSIONS OF LAW
....
2. During the first conversation between [appellant] and Detective
Lucio, Detective Lucio did not comply with [appellant’s] constitutional
and statutory rights as is provided in article 38.22, section 3(a)(1) and
(2) in the Texas Code of Criminal Procedure.
3. Although no direct questions were made to [appellant], [appellant]
did request a public defender at the beginning of this conversation.
4. Detective Lucio should not have continued speaking with [appellant]
after [appellant] requested an attorney.
5. The second statement which occurred between [appellant] and his
father . . . was not the result of custodial interrogation.
6. [Gaitan Sr.] is not a certified police officer and went to BPD out of his
own concern for [appellant’s] well[-]being.
7. There is no evidence which suggests that [Gaitan Sr.] was trying to
aid the Brownsville Police Department in any way, but was merely
concerned about the welfare of his son.
8. [Gaitan Sr.] was not conducting an investigation in any official
capacity.
9. Therefore, [Gaitan Sr.] was not acting as a state agent during this
recorded conversation, the statement was not made as a result of
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custodial interrogation, and Art. 38.22 of the Texas Code of Criminal
Procedure does not apply to its admissibility. . . .
10. The third statement which took place between [appellant] and
Detective Lucio was the result of res gestae statements that occurred
without any prompting from the authorities.
11. This conversation was not done in an interrogation room or otherwise
intimidating location that could conceivably have pressured
[appellant] into making an incriminating statement.
....
13. Detective Lucio had no reason to know that informing [appellant] that
he could meet with him after he was appointed an attorney would
result in [appellant] eliciting an incriminating response. . . .
14. [Appellant] voluntarily waived his right to counsel by initiating
communication with BPD after he had previously requested an
attorney.
15. Therefore, Art. 38.22 of the Texas Code of Criminal Procedure does
not apply to the statement’s admissibility. . . .
At trial, Detective Lucio testified, without objection, that appellant did not deny the
allegations of sexual abuse during the initial interview. A jury returned a guilty verdict.
This appeal followed.
II. RIGHT TO COUNSEL
By his first issue, appellant argues “the trial court [should] have excluded
[appellant’s] statements because they were the product of continued questioning after he
requested the assistance of counsel.” Specifically, appellant maintains that his
statements were taken “in violation of his Fifth and Sixth Amendment right to counsel,
and in violation of articles 38.22 . . . and 38.23 of the Texas Code of Criminal Procedure.”
A. Standard of Review
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In reviewing the trial court’s ruling on a motion to suppress statements made as a
result of custodial interrogation, we apply a bifurcated standard of review. Pecina v.
State, 361 S.W.3d 68, 78–79 (Tex. Crim. App. 2012) (citing Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997)); Nelson v. State, 463 S.W.3d 123, 126 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d). We review the ruling in light of the totality of the
circumstances, giving total deference to the trial court on questions of historical fact, as
well as its application of law to fact questions that turn on credibility and demeanor.
Pecina, 361 S.W.3d at 79; Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011).
But we review de novo the trial court’s rulings on questions of law and mixed questions
of law and fact that do not depend on credibility determinations. Pecina, 361 S.W.3d at
79; Leza, 351 S.W.3d at 349. We view the record in the light most favorable to the trial
court’s ruling and reverse the judgment only if lies outside the zone of reasonable
disagreement. Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App. 2011); Nelson,
463 S.W.3d at 126.
B. Applicable Law
The Fifth Amendment prohibits the government from compelling a criminal suspect
to bear witness against himself. U.S. CONST. amend V (“No person ... shall be compelled
in any criminal case to be a witness against himself”). “In Miranda v. Arizona, the
Supreme Court crafted safeguards to protect this ‘privilege against self-incrimination’ in
the inherently coercive atmosphere of custodial interrogations.” Pecina, 361 S.W.3d at
75 (citing Miranda v. Arizona, 384 U.S. 436, 441 (1966)). Before questioning a suspect
who is in custody, police must give that person Miranda warnings. Id. Only if the person
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voluntarily and intelligently waives his Miranda rights, including the right to have an
attorney present during questioning, may his statement be introduced into evidence
against him at trial. Id. (citing Miranda, 384 U.S. at 475).
To protect the privilege against self-incrimination guaranteed by the Fifth
Amendment, police may not conduct a custodial interrogation of a suspect who has
requested the assistance of counsel.3 Minnick v. Mississippi, 498 U.S. 146, 147 (1990);
Edwards v. Arizona, 451 U.S. 477, 484–85 (1981); see Nelson, 463 S.W.3d at 127.
Once an individual in custody invokes his right to counsel, “interrogation ‘must cease until
an attorney is present.’”4 Minnick, 498 U.S. at 150 (quoting Miranda, 384 U.S. at 474).
Thus, statements made in response to further police-initiated questioning without the
presence of an attorney are inadmissible, even if made after the suspect is again advised
of his rights. Id. at 150–51; see also TEX. CRIM. PROC. CODE ANN. art. 38.23(a) (West,
Westlaw through 2015 R.S.) (“No evidence obtained by an officer or other person in
violation of any provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in evidence against
the accused on the trial of any criminal case.”). However, if a statement does not stem
3 In contrast, the Sixth Amendment right to counsel attaches once the “adversary judicial process
has been initiated,” and it guarantees “a defendant the right to have counsel present at all ‘critical’ stages
of the criminal proceedings.” Montejo v. Louisiana, 556 U.S. 778, 786 (2009); see U.S. CONST. amend VI
(“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for
his defence.”). This means a person is entitled to the help of a lawyer at or after the time that judicial
proceedings have been initiated against him, whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment. Brewer v. Williams, 430 U.S. 387, 398 (1977). The record
reflects that appellant’s Sixth Amendment right to counsel had not yet attached when the pertinent
statements were made, and appellant does not argue otherwise.
4 The rights created by Miranda, including the right to have counsel present during custodial
interrogation, “are not themselves rights protected by the Constitution but [are] instead measures to insure
that the right against compulsory self-incrimination [is] protected.” Duckworth v. Eagan, 492 U.S. 195, 203
(1989).
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from custodial interrogation, it is admissible against the accused on the question of guilt.
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5; Chambliss v. State, 647 S.W.2d 257, 263
(Tex. Crim. App. 1983).
C. Analysis
The State does not dispute that appellant was in custody and invoked his right to
counsel. Therefore, the dispositive issue is whether appellant’s statements were made
in response to police interrogation.
1. Statements to Gaitan Sr.
Appellant argues that the statements made to Gaitan Sr. amounted to “continued
police-initiated custodial interrogation[.]” Appellant compares the situation to employing
a jailhouse informant and contends the State impermissibly created “a situation likely to
induce incriminating statements[.]”
The procedural safeguards under Miranda apply only to custodial interrogation by
law enforcement officers or their agents. See Wilkerson v. State, 173 S.W.3d 521, 527
(Tex. Crim. App. 2005). Private citizens ordinarily are not regarded as law enforcement
officers and thus cannot engage in custodial interrogation. See Paez v. State, 681
S.W.2d 34, 36–37 (Tex. Crim. App. 1984) (article 38.22 does not apply to non-law
enforcement personnel who are not government agents); Oriji v. State, 150 S.W.3d 833,
836 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). A citizen who acts as an agent
of law enforcement and interrogates a person in custody, however, is “bound by all
constitutional and statutory confession rules[.]” Wilkerson, 173 S.W.3d at 529–30.
“The term ‘agency’ denotes a consensual relationship which exists between two persons
10
or parties where one of them is acting for or on behalf of the other.” Id. at 529. “The
person alleging such a relationship has the burden of proving it.” Id.
To determine if an agency relationship exists, appellate courts must examine the
entire record and consider three factors: (1) the relationship between the police and the
potential police agent; (2) the interviewer’s actions and perceptions; and (3) the
defendant’s perceptions of the encounter. Id. at 530–31. This test helps courts
determine whether the interviewer was acting as an instrumentality or was “in cahoots”
with the police or prosecution. Elizondo v. State, 382 S.W.3d 389, 394 (Tex. Crim. App.
2012) (citing Wilkerson, 173 S.W.3d at 531).
Regarding the first factor, there is no evidence of an agency relationship between
law enforcement and Gaitan Sr. Detective Lucio did not instruct Gaitan Sr. to obtain a
statement from appellant, and he did not direct Gaitan Sr. to ask appellant any particular
questions. Rather, it was Gaitan Sr. who volunteered to Detective Lucio that appellant
would tell him the truth. Detective Lucio simply allowed Gaitan Sr. to speak with
appellant. We conclude that the first factor weighs against a finding of an agency
relationship.
The second part of the Wilkerson test focuses on the interviewer’s actions and
perceptions to evaluate the purpose of the interview. Wilkerson, 173 S.W.3d at 530.
Gaitan Sr. initiated contact with Detective Lucio and stated he wanted to speak with his
son. Gaitan Sr. did not indicate he wanted to obtain an incriminating statement from
appellant. To the contrary, he expressed that he did not believe his son was capable of
the allegations. The trial court also found that Gaitan Sr. “asked to speak to [appellant]
11
out of his own concern for [appellant’s] well[-]being.” We conclude that this factor also
weighs against an agency finding.
The third Wilkerson factor focuses on the defendant’s perception of the encounter.
There is nothing in the record indicating that Gaitan Sr. appeared to appellant to be
cloaked with the actual or apparent authority of the police. See Elizondo, 382 S.W.3d at
396. Rather, as reflected by the trial court’s findings, appellant perceived the encounter
as a conversation with a concerned parent. We conclude that this factor also weighs
against a finding of agency.
We conclude that Gaitan Sr. was not acting as an agent of law enforcement when
he spoke to appellant. See Pecina, 361 S.W.3d at 79; Hereford, 339 S.W.3d at 118.
Accordingly, appellant’s statements during this conversation were not the product of a
custodial interrogation. See Wilkerson, 173 S.W.3d at 529–30.
2. Statements to Detective Lucio
Appellant argues his statements to Detective Lucio as they were approaching the
transport elevators were inadmissible for three reasons: (1) there was no “electronic
recording” to verify the statements were made; (2) appellant did not receive warnings
regarding his constitutional rights and waiver of such rights; and (3) the statements were
taken in violation of appellant’s right to counsel.
Texas Code of Criminal Procedure article 38.22, section 3(a) provides as follows:
No oral or sign language statement of an accused made as a result
of custodial interrogation shall be admissible against the accused in
a criminal proceeding unless:
(1) an electronic recording, which may include motion picture,
video tape, or other visual recording, is made of the statement;
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(2) prior to the statement but during the recording the accused is
given the warning in Subsection (a) of Section 2 above and
the accused knowingly, intelligently, and voluntarily waives
any rights set out in the warning;
(3) the recording device was capable of making an accurate
recording, the operator was competent, and the recording is
accurate and has not been altered;
(4) all voices on the recording are identified; and
(5) not later than the 20th day before the date of the proceeding,
the attorney representing the defendant is provided with a
true, complete, and accurate copy of all recordings of the
defendant made under this article.
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a). Appellant was not given Miranda
warnings prior to making the challenged statements, and the conversation was not
recorded. However, article 38.22 does not preclude the admission of statements that do
not stem from an interrogation. Id. § 5 (“Nothing in this article precludes the admission .
. . of a statement that does not stem from custodial interrogation, or of a voluntary
statement[.]”). Furthermore, the Fifth Amendment does not bar “[v]olunteered
statements of any kind.” Miranda, 384 U.S. at 478. To be an interrogation, a statement
or question must demonstrate “a measure of compulsion above and beyond that inherent
in custody itself.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). An interrogation
includes “any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” Id. at 301. The determination of whether
the police should know such actions are reasonably likely to elicit an incriminating
response “focuses primarily on the perceptions of the suspect, rather than the intent of
13
the police.” Id. Off-hand remarks that are not particularly evocative under the
circumstances do not constitute interrogation, as opposed to subjecting the suspect to a
“lengthy harangue.” Id. at 303.
In Innis, the Supreme Court held that police officers did not interrogate a suspect
when officers had a conversation in the range of the suspect’s hearing but did not ask the
suspect a question. Id. at 294–95, 302. The officers were discussing a missing
shotgun while transporting the defendant, noting a concern that children were present in
the area and could discover the weapon. Id. at 294–95. The suspect interrupted the
officers’ conversation with a statement. Id. at 295. After receiving Miranda warnings,
he led them to the hidden weapon. Id. The Supreme Court found that the officers’
conversation was not an interrogation. Id. at 302.
While Detective Lucio was escorting appellant to his cell, appellant asked when he
could speak to a lawyer. Detective Lucio responded that an attorney would be appointed
and that he would be available if appellant’s attorney wished to speak to him. Like the
statement in Innis, Detective Lucio’s comment was not a statement reasonably likely to
elicit an incriminating response. See id. at 301. Rather, the comment indicated that
Detective Lucio would speak with appellant after an attorney was appointed and was
present. This statement is simply a recognition that appellant had asserted his Fifth
Amendment right to counsel. We conclude that appellant’s subsequent statements were
not the product of a custodial interrogation.
D. Summary
14
We conclude that the challenged statements were not the product of a custodial
interrogation. See Pecina, 361 S.W.3d at 79; Hereford, 339 S.W.3d at 118.
Accordingly, the statements are not rendered inadmissible under either article 38.22 or
the Fifth Amendment. See TEX. CODE CRIM. PROC. ANN. art 38.22, § 5; Miranda, 384
U.S. at 478. We overrule appellant’s first issue.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
By his second issue, appellant argues that his “trial counsel rendered ineffective
assistance . . . when she failed to object to previously excluded evidence at trial.”
Specifically, appellant maintains that his trial counsel failed to object to testimony
concerning his first conversation with Detective Lucio.
A. Standard of Review and Applicable Law
To prevail on an 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. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “Unless appellant
can prove both prongs, an appellate court must not find counsel’s representation to be
ineffective.” Lopez, 343 S.W.3d at 142. To satisfy the first prong, appellant must prove
by a preponderance of the evidence that trial counsel’s performance fell below an
objective standard of reasonableness under the prevailing professional norms. Id. To
prove prejudice, appellant must show that there is a reasonable probability, or a
probability sufficient to undermine confidence in the outcome, that the result of the
proceeding would have been different. Id.
15
Our review of 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. “In order 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.” Lopez, 343 S.W.3d
at 142. “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.”
Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). When direct evidence is
unavailable, we will assume counsel had a strategy “if any reasonably sound strategic
motivation can be imagined.” Lopez, 343 S.W.3d at 143. “In making an assessment of
effective assistance of counsel, an appellate court must review the totality of the
representation and the circumstances of each case without the benefit of hindsight.” Id.
B. Analysis
Appellant complains that his trial counsel failed to object to the following testimony
by Detective Lucio during direct examination by the State:
Q. One of the things that was mentioned, [Gaitan Sr.] said something
about that you asked him what if I tell you [the victim] also—she said
you also raped her. Did [the victim] ever indicate that [Gaitan Sr.] had
done anything to her?
A. [W]hen I spoke to [appellant], he made no denial. And—but I told
[Gaitan Sr.], “If I told you that your granddaughter says that you raped
her, how would you react?” And [Gatain Sr.] says, “I would tell you
immediately it didn’t happen. I would be upset that that was even
being said.” And I said, “Exactly. And that’s not what your son did.”
16
Although the State’s question pertains to Detective Lucio’s conversation with
Gaitan Sr., his response was clearly in reference to his first conversation with appellant,
which the trial court suppressed. Appellant’s trial counsel did not object to the testimony.
We note that this is the only instance where appellant alleges his trial counsel was
deficient. Although it is possible that a single egregious error by counsel can constitute
ineffective assistance, Texas courts have been hesitant to “designate any error as per se
ineffective assistance of counsel as a matter of law.” Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999) (quoting Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim.
App. 1985)). An appellate court should be especially hesitant to declare counsel
ineffective based upon a single alleged miscalculation during what amounts to otherwise
satisfactory representation, especially when the record provides no discernible
explanation of the motivation behind counsel’s actions—whether those actions were of
strategic design or the result of negligent conduct. Id. at 814.
Appellant’s claim is based on an omission: his counsel’s failure to object to
testimony concerning a statement that the trial court had previously ruled was
inadmissible. The record is silent as to why appellant’s trial counsel chose not to object
or failed to object because appellant did not file a motion for new trial. To satisfy the first
prong of Strickland on a silent record, it must be apparent “that counsel’s performance
fell below an objective standard of reasonableness as a matter of law, and that no
reasonable trial strategy could justify trial counsel’s acts or omissions, regardless of his
or her subjective reasoning.” Lopez, 343 S.W.3d at 143; see also Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (conduct “so outrageous that no competent
17
attorney would have engaged in it”). This is not such a case, as it is possible appellant’s
trial counsel chose not to object based on a reasonable trial strategy. “One such
reasonably sound strategic motivation could have been the desire to avoid drawing
additional attention to the [evidence.]” Kuhn v. State, 393 S.W.3d 519, 539 (Tex. App.—
Austin 2013, pet. ref’d). A desire to avoid drawing attention to evidence “may be
particularly useful when, for example, only a passing, but possibly objectionable,
reference is made and the defense attorney believes that the reference would largely go
unnoticed.” Ex parte Bryant, 448 S.W.3d 29, 41 (Tex. Crim. App. 2014).
Detective Lucio’s reference to his first meeting with appellant was a passing one.
The State made no attempt to elicit further testimony concerning the conversation and
did not reference Detective Lucio’s testimony during closing arguments. We also
observe that the State’s preceding question pertained to a conversation between
Detective Lucio and Gaitan Sr.—not appellant. Trial counsel could not have anticipated
Detective Lucio’s response would reference any statement by appellant. Further, we
must assume that appellant’s counsel chose not to object to avoid drawing attention to
passing reference. See id.
On this record, we cannot conclude appellant successfully defeated the strong
presumption that the decisions of counsel during trial fell within the wide range of
reasonable professional assistance. See Thompson, 9 S.W.3d at 814. Because of our
conclusion, we need not address the second prong under Strickland. See Lopez, 343
S.W.3d at 142. We overrule appellant’s second issue.
IV. CONCLUSION
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We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
10th day of November, 2016.
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