Derek Devone Cobbs v. the State of Texas

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00380-CR
__________________
DEREK DEVONE COBBS, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 19-06-08928-CR
__________________________________________________________________
MEMORANDUM OPINION
Appellant Derek Devon Cobbs appeals his conviction for continuous sexual
abuse of a child, namely J.P. 1 See Tex. Penal Code Ann. § 21.02(b). A jury found
Cobbs guilty and assessed punishment at life in prison. Cobbs appeals his conviction,
raising eight issues, complaining about the denial of his motion for continuance,
1We use initials to refer to the alleged victim, a minor child, and pseudonyms
to refer to the child’s family members. See Tex. Const. art. 1, § 30(a)(1) (granting
crime victims “the right to be treated with fairness and with respect for the victim’s
dignity and privacy throughout the criminal judicial process”).
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denial of his challenge for cause, admission of Zoom testimony, ineffective
assistance of counsel, and the sufficiency of the evidence. As discussed below, we
affirm the trial court’s judgment.
THE EVIDENCE
In October 2019, a grand jury indicted Cobbs for indecency with a child. See
id. § 21.11(a)(1). The 2019 indictment alleges that Cobbs:
on or about June 08, 2017, and before the presentment of this
indictment, in the County and State aforesaid, did then and there, with
intent to arouse and gratify the sexual desire of the defendant, engage
in sexual contact with J.P., a child younger than 17 years of age, by
having child touch the defendant’s genitals[.]
In November 2021, a grand jury reindicted Cobbs for continuous sexual abuse of a
child. See id. § 21.02. The indictment alleges that Cobbs:
on or about June 08, 2019, and before the presentment of this
indictment, in the County and State aforesaid, did then and there, during
a period that was 30 or more days in duration, to-wit: from on or about
June 8, 2017 through June 8, 2019, when the defendant was 17 years of
age or older, commit two or more acts of sexual abuse against J.P., a
child younger than 14 years of age, namely, Indecency with a Child by
engaging in sexual contact with J.P. by having said child touch the
Defendant’s genitals with the intent to arouse and gratify the sexual
desire of the Defendant[.]
Jose Alaniz, a former Investigator Specialist with Child Perspective
Investigation, testified that in June 2019, he investigated an allegation of abuse
involving Cobbs. Alaniz explained that Mother reported the abuse, and he
interviewed the children and set up J.P.’s forensic interview.
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Julie Pilgrim, a forensic interviewer at Children’s Safe Harbor, testified that
she conducted J.P.’s forensic interview. Pilgrim testified that J.P. reported that in
different incidences, Cobbs, her stepfather, looked at her feet while exposing and
rubbing his penis, and he put her feet on both sides of his penis and used her feet to
rub his penis. Pilgrim testified that J.P. explained that he would stop when “white
Stuff” came out of his penis. Pilgrim testified that J.P., who was twelve when the
abuse occurred, reported that the incidents happened at least twice per week in
different locations, including the stairs, and J.P. stated the first incident happened
when she was in fourth grade and the last incident happened in her current house,
either in Cobbs’s bedroom or the laundry room. Pilgrim explained that J.P. reported
that Cobbs sent her text messages containing a money sign and a question mark and
paid to see her feet.
Mother testified that in 2011, when J.P. was four, she moved in with Cobbs,
and in 2017, right before J.P. finished fourth grade, they moved to a new house.
Mother testified that Cobbs had a “porn addiction[,]” and a sexual attraction to feet,
and he attended sexual anonymous meetings. Mother explained that Cobbs
masturbated while rubbing her feet and used her feet to masturbate. Mother testified
that in 2019, J.P. told her that Cobbs had been inappropriate with her and had played
with her feet while he played with his private parts and that the first incident occurred
in their old house. Mother testified that Cobbs told her he had done something
terrible and ruined the family and threatened to commit suicide. Mother testified that
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she made a report and gave J.P.’s phone to the police, and she identified J.P and
Cobbs in photographs and provided the police a copy of text communications
between J.P. and Cobbs.
J.P. testified that when she was ten years old in fourth grade and before they
moved to their current house, Cobbs began to act “inappropriate” towards her by
showing his penis, and the abuse stopped at the end of her sixth-grade year when she
was twelve. J.P. explained that the incidents occurred about twice a week, and Cobbs
would expose and touch his penis and ask to see her feet. J.P. testified that Cobbs
would stop when he ejaculated and “[w]hite stuff[]” would go on her feet or the
floor. J.P. further testified that Cobbs rubbed his penis on her lower back and “many
times[]” he put her feet on his penis and “rub them back and forth.” J.P. explained
that the incidents occurred over a long period of time and for a period longer than
thirty days. J.P. also explained that Cobbs sent her text messages with a money sign
and question mark when he wanted her to go into his room and show him her feet,
and he gave her twenty dollars or less and told her to delete the messages. J.P.
testified that she did not tell Mother because she was afraid her siblings would move,
but she told Mother because she became afraid of Cobbs. J.P. took screen shots of
the text messages Cobbs sent her, which were published to the jury.
Detective Joe McGrew of the Conroe Police Department testified that he
investigated Cobbs’s case and attended J.P.’s forensic interview. Detective McGrew
interviewed Mother, who provided clothing and granted permission to search her
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home for possible DNA evidence on the carpets. Detective McGrew explained that
Cobbs exhibited suspicious behavior and prevented him from entering the home, and
when he frisked Cobbs for safety, he observed Cobbs had two cell phones, and
Mother claimed that one of the cell phones was hers. Detective McGrew testified
that Cobbs also claimed ownership, and when he asked Cobbs for the phone to
determine the owner, Cobbs gave him the phone and Mother opened the phone and
showed him a picture of a young person’s feet. Detective McGrew further testified
that he determined the phone belonged to Cobbs, and he seized Cobbs’s phone and
gave it to the crime scene investigator, because based on information he obtained
from J.P.’s forensic interview, he had reason to believe it contained evidence of a
crime. Detective McGrew explained that he obtained a search warrant for Cobbs’s
cell phone, and the crime scene investigator downloaded photographs from the cell
phone. Detective McGrew also explained that after Mother identified the people and
criminal elements in the photographs, Cobbs was arrested.
Detective McGrew testified that based on his reasonable belief that there may
be biological evidence in the home, the crime lab took samples from the home, and
one sample of carpet from the stairs was AP positive, meaning there were enzymes
consistent with semen fluid. Detective McGrew explained that due to an oversight
on his part, the samples were not DNA tested. Detective McGrew also obtained
evidence from J.P.’s damaged cell phone, which contained a text conversation
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between J.P and Cobbs, and Mother provided screen shots of that same text
conversation from J.P.’s new cell phone.
Officer Stoney Cook, the crime scene investigator with the Conroe Police
Department, testified that he extracted data from Cobbs’s cell phone and gave the
data to other investigators to evaluate the extraction and run reports. The summary
extraction report was admitted into evidence.
Investigator Jerry Thomas of the Montgomery County District Attorney’s
Office testified that he is assigned to Human Trafficking and Internet Crimes Against
Children and works in the Forensics Lab. Investigator Thomas testified that he
assisted in the examination of Investigator Cook’s extraction which included images
of J.P. that were identified as concerning. Investigator Thomas explained that one
image depicted a male holding a penis in his hand above two feet, and the person
was wearing joggers that were identified as J.P.’s. Investigator Thomas explained
that another image depicted the same feet and penis, but the penis appeared to be
touching or resting on the feet. Investigator Thomas testified that the extraction also
included a text message between Cobbs and J.P.
A.C. testified that Cobbs was married to her sister, and in July 2003, she was
sixteen years old when she visited Cobbs and her older sister in Austin. A.C. testified
that during her visit she was injured in a car accident, and while she was laying on
the couch in the living room, Cobbs positioned her feet together, put his penis
between her feet, and “started entering [her] feet in an out.” A.C. explained that she
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was scared and pretended to be sleeping, and Cobbs stopped after he heard a noise
from the bedroom. A.C. also explained that she did not tell her sister about the
incident until a couple of years later, and after her sister told her about the allegations
against Cobbs, she spoke with the detective and agreed to testify.
Cobbs’s sister testified she and Cobbs have a close relationship, and she
described Cobbs as having the perfect family. Cobbs’s sister explained that Mother
had told her about Cobbs’s pornography addiction, but she was not aware that he
had any obsession with feet. Cobbs’s sister characterized J.P.’s relationship with
Cobbs as being “[a] bit disrespectful[,]” and she wondered why J.P. was acting that
way. Cobbs’s sister testified that Cobbs sent her a text message telling her that, “‘I
have lost everything important to me due to sexual immorality[.]’” Cobbs’s sister
also testified that Cobbs was worried about going to jail.
Cobbs denied having a foot fetish, taking pictures of his penis with J.P.’s feet,
and using J.P.’s feet to masturbate his penis. Cobbs testified that J.P. lied to the jury
because he disciplined her. Cobbs also denied putting his penis between A.C.’s feet
and claims she lied.
ANALYSIS
Again, in eight issues, Cobbs complains about the denial of his motion for
continuance, denial of his challenge for cause, admission of Zoom testimony,
ineffective assistance of counsel, and the sufficiency of the evidence.
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Sufficiency of the Evidence
We address Cobbs’s eighth issue first because it challenges the sufficiency of
the evidence supporting the jury’s verdict and, if sustained, it would result in
rendition of a judgment of acquittal. See Price v. State, 502 S.W.3d 278, 281 (Tex.
App.—Houston [14th Dist.] 2016, no pet.); see also Tex. R. App. P. 47.1. A person
commits the offense of continuous sexual abuse of a child if:
(1) during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse, regardless of whether the
acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse,
the actor is 17 years of age or older and the victim is a child younger
than 14 years of age, regardless of whether the actor knows the age of
the victim at the time of the offense.
Act of May 26, 2017, 85th Leg., R.S., ch. 1038, § 2, 2017 Tex. Sess. Laws 4079,
4079 (current version at Tex. Penal Code Ann. § 21.02(b)). Section 21.02 of the
Penal Code defines “act of sexual abuse” as including, among other things, an act
that constitutes the offense of “indecency with a child under section 21.11(a)(1), if
the actor committed the offense in a manner other than by touching, including
touching through clothing, the breast of a child[.]” Tex. Penal Code Ann. §
21.02(c)(2). A person commits the offense of indecency with a child if the person
engages in sexual contact with a child younger than 17 years of age or causes the
child to engage in sexual contact. Id. § 21.11(a)(1). “Sexual contact” means the
following acts, if committed with the intent to arouse or gratify the sexual desire of
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any person: (1) any touching by a person, including touching through clothing, of
the anus, breast, or any part of the genitals of a child; or (2) any touching of any part
of the body of a child, including touching through clothing, with the anus, breast, or
any part of the genitals of a person. Id. § 21.11(c). The State need not prove the exact
dates of the abuse, only that “there were two or more acts of sexual abuse that
occurred during a period that was thirty or more days in duration.” Brown v. State,
381 S.W.3d 565, 574 (Tex. App.—Eastland 2012, no pet.); Lane v. State, 357
S.W.3d 770, 773–74 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); see also
Tex. Penal Code Ann. § 21.02(d) (“[M]embers of the jury are not required to agree
unanimously on which specific acts of sexual abuse were committed by the
defendant or the exact date when those acts were committed.”).
In reviewing the legal sufficiency of the evidence, we review all the evidence
in the light most favorable to the verdict to determine whether any rational factfinder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). We give deference to the factfinder’s responsibility to fairly
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record
contains conflicting inferences, we must presume that the factfinder resolved such
facts in favor of the verdict and defer to that resolution. See Brooks v. State, 323
S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772,
9
778 (Tex. Crim. App. 2007). The jury as factfinder is the sole judge of the weight of
the evidence and credibility of the witnesses, and it may believe all, some, or none
of the testimony presented by the parties. See Febus v. State, 542 S.W.3d 568, 572
(Tex. Crim. App. 2018); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App.
1995). The appellate court does not reweigh or determine the credibility of the record
evidence, nor does it substitute its own judgment for that of the factfinder. Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
“Direct and circumstantial evidence are treated equally: ‘Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.’” Clayton, 235
S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13). Each fact need not point directly
and independently to the guilt of the defendant, as long as the cumulative force of
all the incriminating circumstances is sufficient to support the conviction. Temple v.
State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (citations omitted); Hooper, 214
S.W.3d at 13; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The
testimony of a child victim, standing alone and without corroboration, is sufficient
to support a conviction for indecency with a child. Tex. Code Crim. Proc. Ann. art.
38.07(a), (b)(1) (providing that child’s testimony alone is sufficient to support a
conviction for a sexual offense when the child is under the age of seventeen at the
time of the alleged offense); Chasco v. State, 568 S.W.3d 254, 258 (Tex. App.—
Amarillo 2019, pet. ref’d).
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The 2021 indictment alleges that between June 8, 2017, and June 8, 2019,
Cobbs committed two or more acts of sexual abuse against J.P. by having J.P. touch
his genitals with the intent to arouse and gratify his sexual desire. J.P. added that
“many times[]” Cobbs put her feet on his penis and would “rub them back and forth.”
J.P. explained that the incidents occurred over a long period of time and for a period
longer than thirty days. J.P.’s testimony alone was sufficient to support the verdict.
See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1); Chasco, 568 S.W.3d at 258.
J.P.’s testimony was corroborated by pictures and messages on Cobbs’s phone and
Mother’s testimony that Cobbs had a sexual attraction to feet and used her feet to
masturbate.
The jury, in its role as factfinder, could have found J.P.’s testimony credible.
The jury could have believed J.P.’s testimony that the abuse started when she was in
fourth grade, ended when she was in sixth grade, and occurred about twice a week.
The jury also could have believed that the alleged offenses occurred prior to the date
of the indictment and continued over a two-year period. Based on the evidence at
trial, the jury could have concluded that Cobbs, “during a period that is 30 or more
days in duration, committed two or more acts of sexual abuse.” See Tex. Penal Code
Ann. § 21.02(d); Lane, 357 S.W.3d at 774. Viewing the evidence in the light most
favorable to the verdict and deferring to the jury’s authority to determine the
credibility of the witnesses and the weight to give their testimony, we conclude that
a reasonable factfinder could have found the essential elements of the offense
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beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1);
Febus, 542 S.W.3d at 572; Brooks, 323 S.W.3d at 902 n.19; Clayton, 235 S.W.3d at
778; Hooper, 214 S.W.3d at 13; Chasco, 568 S.W.3d at 258; Lane, 357 S.W.3d at
774. We overrule issue eight.
Motion for Continuance
In issue one, Cobbs complains the trial court erred by denying his motion for
continuance because he was not served with a copy of the 2021 Reindictment at least
ten days before trial as required by the Code of Criminal Procedure. See Tex. Code
Crim. Proc. Ann. arts. 27.12 (allowing defendant ten days to file written pleadings
in cases where the defendant is entitled to be served with a copy of the indictment),
28.10 (allowing the defendant not less than ten days to respond to an amended
indictment). Cobbs argues that the impaneling of the jury had to be outside the ten
days, because otherwise the State could reindict a case the day before a jury was
impaneled as long as the jury was not sworn for an additional ten days, thereby
denying the defendant an adequate time to prepare a trial strategy before beginning
jury selection. The State argues Cobbs waived his complaint because his motion did
not specifically urge article 27.12, and regardless he had adequate time to prepare a
defense.
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). To establish
an abuse of discretion, a defendant must show that he was actually prejudiced by the
12
denial of his motion due to his counsel’s inadequate preparation time. Id.; Heiselbetz,
906 S.W.2d at 511. A bare assertion that counsel did not have adequate time to
prepare a defense does not alone establish prejudice. Gallo, 239 S.W.3d at 764.
Cobbs filed an Objection to the Reindictment, arguing that the new charge
should have been considered a new indictment and received its own cause number
because it concerns a different offense and range of punishment. See Tex. Code
Crim. Proc Ann. art. 28.10. The trial court conducted a hearing on Cobbs’s Objection
to the Reindictment, during which Cobbs reurged his objection under article 28.10
and argued that the amended indictment for continuous sexual abuse of a child
violated his rights by depriving him of enough time to prepare his defense. See id.The trial court explained that article 28.10 addressed an amended indictment, but
this case concerned a reindictment, which is a new indictment under the same
existing cause number. The trial court denied Cobbs’s Objection to the Reindictment
based on article 28.10 and determined that Cobbs had more than ten days to prepare
for the 2021 Reindictment.
While Cobbs complains that he is entitled to a new trial because the trial
court’s ruling deprived him of adequate time to prepare a defense, Cobbs failed to
establish that he was prejudiced by the trial court’s denial of his request for a
continuance. The trial court noted that counsel had been on the case more than 400
days and had access to the discovery involving the same sexual acts, dates, and same
victim alleged in the November 2021 Reindictment. The record shows the November
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2021 Reindictment alleged the same elements as the June 2019 Information charging
Cobbs with continuous sexual abuse of a child and alleging that Cobbs committed
two or more acts against J.P., namely indecency with a child, by engaging in sexual
contact and having J.P. touch his genitals. The record also contains a June 2019
Affidavit for Warrant of Arrest in which Detective McGrew averred that Mother
reported that Cobbs masturbated in J.P.’s presence while looking at her bare feet.
Detective McGrew testified that J.P. reported that Cobbs would hold her bare feet
against his penis and use her feet to masturbate. J.P. reported that the activity started
when she was ten and ended when she was twelve and occurred in her bedroom and
on the stairs of the residence. Detective McGrew stated that several samples from
stains in J.P.’s room and the stairs tested positive for seminal fluid. Detective
McGrew also averred that Cobbs voluntarily gave him a phone, which Mother
identified as Cobbs, and Mother displayed a photograph from the phone that she
identified as J.P.’s feet and Cobbs’s penis. Detective McGrew stated there was
probable cause to believe Cobbs committed the felony offense of continuous sexual
abuse of a child and requested a warrant authorizing Cobbs’s arrest.
Additionally, in September 2021, the State provided notice of extraneous acts
it intended to use during trial. The notice stated that on many occasions between
2013 and 2019, Cobbs committed the offense of indecency with a child against J.P.
by making J.P.’s feet contact and/or masturbate Cobbs’s sexual organ. The notice
indicated that Cobbs’s cell phone contained two photographs of his sexual organ and
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J.P.’s feet and messages asking J.P. if she wanted to make twenty dollars and to
delete the messages. Therefore, the record shows that defense counsel had prior
notice of the allegations contained in the 2021 Reindictment as early as June 2019.
We conclude that Cobbs failed to show that he was actually prejudiced by his
counsel’s alleged inadequate time to prepare his defense. See Gallo, 239 S.W.3d at
764; Heiselbetz, 906 S.W.2d at 511. Accordingly, we conclude the trial court did not
abuse its discretion by denying Cobbs’s Objection to the Reindictment and his
request for a continuance to have additional time to prepare a defense. We overrule
issue one.
Challenge for Cause
In issue two, Cobbs complains the trial court erred by denying his challenge
for cause to venireperson 27, who allegedly made statements indicating a bias or
prejudice that led to the dismissal of eleven other panel members. The State argues
Cobbs failed to establish the trial court’s denial of his challenge for cause was
harmful because he did not use a peremptory strike on the complained-of juror or
request an additional strike.
The record shows the State inquired as to whether the prospective jurors could
follow the one-witness rule and convict based on the testimony of one witness if they
believed the child witness beyond a reasonable doubt regarding the elements of the
offense, and twelve prospective jurors, including venireperson 27, raised their cards.
The record also shows that when defense counsel asked if anyone felt like they could
15
not give her client the benefit of the presumption of innocence, eleven prospective
jurors raised their card, including venireperson 27. At the end of jury selection when
defense counsel asked the prospective jurors if there was anything they needed to
share, venireperson 27 made the following statement:
I feel from my experience, the children will not tell a lie normally. Lots
of time, they won’t. They will be honest. So, if we start accusing kids
telling a lie, there must be a reason for you to accuse them. So, at times
if you start accusing kids telling a lie, there is a reason they are telling
this lie. So, I just view the question you had over there and present over
there just seems try to guide me into something. I don’t feel comfortable
with it.
During the bench conference, defense counsel moved to strike thirteen
prospective jurors for cause based on the one-witness rule, and the State had no
objection. The trial court granted defense counsel’s challenges for cause except for
venireperson 27 without stating a reason. Later, when defense counsel renewed her
objection to venireperson 27 regarding the presumption of innocence and not being
able to say the defendant was not guilty at the time of having heard no evidence, the
State opposed the challenge and argued that the nature and context of the “scaled
question” gave an improper definition of the law. The trial court denied defense
counsel’s renewed objection to venireperson 27. After the trial court seated the jury,
which included venireperson 27, the trial court asked the parties if they had any
objections after looking at their work product and the seated jury, defense counsel
stated “[n]ot in that regard,” but that she had a Batson challenge.
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The record shows that Cobbs used all ten of his peremptory strikes on various
prospective jurors, and he did not use a peremptory strike on venireperson 27, ask
the trial court to grant him additional strikes, or identify venireperson 27 as an
objectionable juror who sat on the jury. See Tex. Code Crim. Proc. Ann. art.
35.15(b). To preserve error for a trial court’s erroneous denial of a challenge for
cause, Cobbs must show that he asserted a clear and specific challenge for cause,
that he used a peremptory challenge on the complained-of venireperson, that his
peremptory challenges were exhausted, that his additional strike was denied, and
that an objectionable juror sat on the jury. See Davis v. State, 329 S.W.3d 798, 807
(Tex. Crim. App. 2010); Burg v. State, No. 09-16-00200-CR, 2018 WL 1747393, at
*2 (Tex. App.—Beaumont 2018, pet. granted) (mem. op.), aff’d, 592 S.W.3d 444,
449 (Tex. Crim. App. 2020). Cobbs failed to preserve his complaint for our review.
See Davis, 329 S.W.3d at 807; Burg, 2018 WL 1747393, at *2; Andrus v. State, 495
S.W.3d 300, 307 (Tex. App.—Beaumont 2016, no pet.). We overrule issue two.
Zoom Testimony
In issue three, Cobbs complains the trial court erred by allowing a witness to
appear by Zoom in violation of the Confrontation Clause of the United States and
Texas Constitutions. See U.S. CONST. amend. VI. Cobbs argues the trial court failed
to make a specific necessity finding as required by Haggard v. State, 612 S.W.3d
318 (Tex. Crim. App. 2020). The State argues that unlike Haggard, Cobbs failed to
object to the remote testimony and thus waived this complaint for our review.
17
“[T]he right of confrontation is a forfeitable right–not a waivable-only right–
and must be preserved by a timely and specific objection at trial.” Deener v. State,
214 S.W.3d 522, 527 (Tex. App.—Dallas 2006, pet. ref’d) (citation omitted); see
Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010). An appellant fails to
preserve error when he does not object to the remote testimony of a State’s witness.
See Broussard v. State, No. 09-20-00259-CR, 2022 WL 2056388, at *7 (Tex.
App.—Beaumont June 8, 2022, no pet.) (mem. op., not designated for publication)
(citing Jones v. State, Nos. 05-21-00019-CR & 05-21-00021-CR, 2022 WL 854915,
at *5 (Tex. App.—Dallas Mar. 23, 2022, no pet.) (mem. op., not designated for
publication) (concluding that appellant failed to preserve error because he did not
object to the remote testimony)).
The record shows that before Investigator Cook testified, the trial court stated
that the State and Cobbs agreed that Investigator Cook could testify via Zoom due
to medical related necessity. The record further shows that Cobbs did not object to
Investigator Cook testifying remotely. We conclude that since Cobbs failed to object
to Investigator Cook’s remote testimony, he failed to preserve error. See Tex. R.
App. P. 33.1; Davis, 313 S.W.3d at 347; Broussard, 2022 WL 2056388, at *7; Jones,
2022 WL 854915, at *5; Deener, 214 S.W.3d at 527. We overrule issue three.
Ineffective Assistance
In issues four, five, and six, Cobbs complains his counsel was ineffective by
failing to: (1) object to evidence obtained from the alleged unlawful seizure of his
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cellphone; (2) object to the search warrant which was obtained after the alleged
illegal search and seizure of this cellphone; and (3) to know the predicate for
character testimony. Cobbs argues that the cumulative effect of his trial counsel’s
deficient performance resulted in an unfair trial.
To establish that he received ineffective assistance of counsel, Cobbs must
demonstrate that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) there is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different. See Strickland v. Washington,
466 U.S. 668, 687–88, 694 (1984). The party alleging ineffective assistance has the
burden to develop facts and details necessary to support the claim. See Jackson v.
State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting an ineffective-
assistance claim must overcome the “strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999) (citations omitted). An appellant’s failure
to make either of the required showings defeats the claim on ineffective assistance.
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
The right to effective assistance of counsel ensures the right to reasonably
effective assistance and does not require that counsel must be perfect. See Ingham v.
State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Isolated failures to object
ordinarily do not constitute ineffective assistance of counsel. See id. Ordinarily, on
direct appeal, the record will not have been sufficiently developed to demonstrate in
19
the appeal that trial counsel provided ineffective assistance under the Strickland
standards. Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012).
Before we denounce trial counsel’s actions as ineffective, counsel should normally
be given an opportunity to explain the challenged actions. Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005) (citation omitted). When counsel has not
been given an opportunity to explain the challenged actions, we will find deficient
performance only when the 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 does not indicate that Cobbs filed a motion for new trial to allege
ineffective assistance. The record is silent as to trial counsel’s tactical and strategic
decision making. Moreover, Cobbs did not demonstrate that, but for counsel’s
alleged errors, the outcome of the trial would have been different. See Graves v.
State, 310 S.W.3d 924, 929 (Tex. App.—Beaumont 2010, pet. ref’d). In addition,
trial counsel’s ineffectiveness is not apparent from the record. See Freeman v. State,
125 S.W.3d 505, 506–07 (Tex. Crim. App. 2003). Cobbs cannot defeat the strong
presumption that counsel’s decisions during trial fell within the wide range of
reasonable professional assistance. See Thompson, 9 S.W.3d at 814. Since nothing
in the record supports the conclusion that trial counsel’s complained-of conduct was
so outrageous that no competent attorney would have engaged in it, we overrule
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Cobbs’s fourth, fifth, and sixth issues. See Goodspeed, 187 S.W.3d at 392. Having
overruled each of Cobbs’s issues, we affirm the trial court’s judgment.
AFFIRMED.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on March 15, 2023
Opinion Delivered April 19, 2023
Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
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