William Michael Proctor v. State

Opinion issued June 24, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-08-01041-CR

———————————

WilliAm Michael Proctor , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Case No. 1124360

O P I N I O N

A jury convicted appellant, William Michael Proctor, of

capital murder. [1] The trial court

sentenced appellant to life in prison without parole. In seven points of error, appellant contends

that: (1) the evidence was legally insufficient to support the verdict; (2) the

evidence was factually insufficient to support the verdict; (3) the trial court

erred in not granting his motion for a new trial; (4) the trial court erred in

not providing an in camera review on

his motion to require disclosure of the identify of an informant relating to a

Crime Stoppers tip; (5) the trial court erred in admitting a suggestive photo

array shown to two witnesses; (6) the trial court improperly admitted hearsay

evidence during the direct examination of Detective M. Miller; and (7) he

received ineffective assistance of counsel.

We

affirm.

BACKGROUND

The

complainant, Rosendo Rios, owned the El Ranchito nightclub in southwest

Houston. On the night of June 10, 2007,

two men entered Rios’s bar, one man, appellant, was a tall white man and the

other was an African-American. The men

had visited the bar individually on the Friday and Saturday nights before the

murder. On the night of June 10, the two

men entered and exited the bar numerous times, but were on the property for

around two hours. After having been at

the bar for nearly two hours, appellant and his co-conspirator exited the bar,

approached a taco stand, and appellant committed two robberies at

gunpoint. As these robberies occurred,

Rios’s employee in the taco stand used a special signal that alerted him,

through security cameras, that something was wrong. Rios left his office, went out the back door

of the bar, and walked towards the taco stand.

As appellant completed the robberies, his co-conspirator entered the

taco stand and took approximately $140 from the register. Appellant approached the front of the taco

stand and fired his gun, killing Rios.

After appellant shot Rios, he attempted to enter the taco stand, but his

co-conspirator restrained him, and the two ran to a car and fled.

Police

officers arrived seven minutes later.

Detectives M. Miller and A. Belk, of the Houston Police Department, were

assigned to the case.

The

two principal witnesses, Alma Urbina, the employee in the taco stand, and Irma

Ibarra, a bartender, described appellant to the detectives. The detectives established a third party as a

potential suspect, and put a photo of him into a photo array that they showed

to Urbina. Urbina could not identify

anyone in the array as the shooter.

On June 25, the detectives had

Urbina and Ibarra describe appellant to a police sketch artist, who produced a

sketch. Officials from the police

department also contacted Schepps Dairy, a subsidiary of Dean Foods, a public

corporation that financially supports Crime Stoppers. Schepps volunteered a $5,000 reward for

anyone who would provide the police department with information on the

shooting. The police publicized the

sketch and the reward in the local media on June 25, 2007. On June 26, the police received a tip

indicating that the killer lived at 2530 Copper Valley, in Houston, Texas.

The detectives went to the address

provided by the tipster and spoke with an African-American woman, Carolee

Proctor. After denying that a white male

lived in the apartment, Proctor invited the detectives inside. While in the apartment, the detectives saw a

photograph of Proctor and appellant hugging.

Proctor admitted to the detectives that she was married to appellant,

but told the detectives that he was in Louisiana with his sister and that she

did not know his cell phone number.

Approximately fifteen minutes after the detectives left Proctor’s

apartment, appellant called them. He

told Detective Belk that he was in Louisiana and implied that he had been in

Louisiana when the murder occurred.

On July 5, appellant consented to

come to the police station to speak with the officers. While he was in the police station, the

officers took photos of appellant’s face and his tattoos. The detectives put appellant’s photo into a

new photo array, and Detective Miller showed that array to Urbina and Ibarra,

both of whom identified appellant as the shooter. Detective Miller asked the complainant’s

brother, Leroy Rios, to translate for him when he showed the photo array to

Ibarra and Urbina. The complainant’s

widow was also present for both identifications.

The

State obtained an indictment against appellant for capital murder alleging that

appellant killed Rios with a gun while attempting to rob Alma Urbina. On July 11, 2007 the police arrested

appellant. Following his arrest,

appellant was placed in an area of the jail that also housed an acquaintance of

his, Joseph Adams.

Before

trial, appellant filed a motion to discover the identity of the person who

provided the tip in which the police learned appellant’s address. Appellant claimed that Schepps was not a

Crime Stoppers organization, so that information provided to it was not privileged,

and that the identity of the person who provided the tip was exculpatory and

thus he was entitled to it. He requested

a hearing and in camera review of the

information in the Crime Stopper’s tip.

Schepps and the State filed motions to quash. The trial court held a hearing in which

appellant’s counsel claimed he believed the information was exculpatory because

appellant was being “set up.” The trial

court granted the motion to quash without conducting an in camera review.

Prior to trial, appellant also

filed a motion to suppress the photographic identification based on Urbina’s

and Ibarra’s identification of appellant from the photo array. The trial court carried the motion with the

trial. During trial, the trial court

held hearings on the photo array outside of the presence of the jury. It found Detective Miller and Ibarra credible

and allowed them to testify about the photo array and to identify appellant in

court. The trial court did not enter

findings on Urbina’s credibility, but it allowed her to testify to the photo

array and to identify appellant in court.

At

trial, the State called twelve witnesses and the defense called nine. The State first called Ibarra. She testified

that on the night of the murder she was working as a bartender in Rios’s

bar. Appellant and an African-American

man had been in the bar and were drinking Corona beer. They were conspicuous because the

overwhelming percentage of the bar’s patrons were Hispanic, and, on the night

of the murder, the bar had only about fifty customers in it. Appellant and the African-American man played

pool intermittently for almost two hours, beginning around ten or eleven at

night. Appellant came up to Ibarra’s bar

asking for change, and he and the other man went in and out of the bar several

times. Ibarra testified that she got a

“good look” at appellant. Around 1:00

a.m., a fight broke out, and Ibarra went into Rios’s office to get him, but he

was not there. Approximately five

minutes later, she heard a sound “like when somebody steps [on a can],” and

went to the front of the bar, where she saw Rios “laid out,” bleeding, and

trying to speak. Ibarra held him and

told him to be quiet. Although he continued

to speak, she could not understand him.

Ibarra called 911.

At

the hospital, Ibarra spoke with police officers and told them that the shooter

had a big tattoo on his left arm, a large tattoo on his neck, light colored

eyes, an earring, and a small mustache. [2] Over objection from defense counsel, she

identified appellant in the photo array that Detective Miller presented to

her. She then identified appellant in

the courtroom.

The

State next called Urbina. Urbina

testified that she was working in the taco stand on the night of the

murder. She testified that Rios had

recently installed a security camera in the taco stand that did not record, but

that allowed him to observe the taco stand from his office. Rios instructed Urbina that if there was a

problem she should put a jar in front of the camera so that he would be alerted

and could come assist her.

On the night of the murder, Urbina

saw appellant and an African-American man enter and exit the bar several

times. She testified that she had not

seen them at the bar the night before, but that she had seen the African-American

man at the bar two nights before the murder.

The area outside of the bar was well lit, and she testified that she

could see them clearly as they entered and exited. She witnessed appellant rob a man, and then

she watched as he robbed another man who had come to help the first

victim. She testified that appellant

robbed them both at gunpoint. The

African-American man did not have a weapon.

As appellant robbed the two men,

Urbina moved her jar to indicate to Rios that something was wrong, and she then

attempted to call Rios. While she was on

the phone trying to reach Rios, the African-American man who had been with

appellant entered the taco stand, demanded money, and then took approximately

$140 from the till. She never saw him

with a weapon. She saw appellant shoot

the gun, attempt to enter the taco stand, be restrained by the African-American

man, and then flee in a dark colored car with four doors. She found Rios lying in blood between a row

of cars and his bar.

Urbina

described the shooter to the police as approximately six feet four inches tall,

between 150 and 160 pounds in weight, 25-30 years old, and having a shaved

head, a small amount of light colored hair, a small moustache, a light beard

and a tattoo on the back of his neck that looked like wings. She identified appellant in the second photo

array that Detective Miller presented to her, and she identified appellant in

court.

The

State then called Leroy Rios. Rios

testified that he first met Ibarra and Urbina on the night of the murder and

that Detective Miller later asked him to translate for him when he presented

the photo array to Ibarra and Urbina. He

testified that he and Rios’s widow followed Detective Miller to Urbina’s house,

where he translated as Detective Miller showed Urbina the photo array. After Ubrina identified appellant in the

photo array, Detective Miller, followed by Leroy Rios and the complainant’s

widow, went to Ibarra’s house. Rios’s

wife was present when Urbina and Ibarra viewed the photo array. Leroy Rios testified that Urbina and Ibarra

both identified appellant.

The

State then called Detective Miller. He

testified that, on June 12, 2007, he showed a photo array to Urbina that

contained a picture of the first suspect in the case. Urbina could not identify anyone in the photo

array. The day after a Crime Stoppers

reward was publicized, the police received a tip that the shooter lived at 2530

Copper Valley, but the tip included no additional information. The following day, he and his partner went to

that address and encountered Carolee Proctor.

Detective Miller testified over appellant’s hearsay objections to

statements made to his partner and him by Carolee Proctor. Following that interview, he had a new photo

array made that included a photograph of appellant, and he asked Leroy Rios to

help him locate Urbina and Ibarra and to accompany him to translate as they

viewed the new photo array. Detective

Miller identified appellant in court, but testified that appellant had gained

between 50 and 60 pounds since his arrest.

Detective Miller also testified

that he requested appellant’s cell phone records from AT&T on September 5,

2007. The records showed that

appellant’s phone was used in Houston on the day of the murder, but that no calls

were made or received from approximately 9:30 p.m. on the night of the murder

until approximately 9:30 a.m. on the morning after the murder. The records also showed that appellant’s

phone was used in Louisiana on June 12, 2007.

Joseph

Adams, who was incarcerated in the Harris County jail awaiting trial, testified

that he approached appellant in jail because he recognized him from the Acres

Homes subdivision in Houston. He

testified that this is a predominantly African-American section of Houston, but

that appellant was seen there frequently and was referred to as “White

Mike.” He testified that he saw

appellant “in the streets, [and at] dog fights.” Appellant told him that he had been arrested

for a “BS capital murder.” Appellant

indicated that he had been charged with capital murder because, while he was in

a bar, he began to argue with a woman; he and his friend were escorted from the

club; and he went to get his pistol and “took care of business.” Adams then testified that while he was in

jail he heard appellant on the phone and heard him tell the other person, “Just

tell your uncle I left the phone in the truck.”

He also testified that appellant sought to get tattoos while in jail to

alter his appearance. Defense counsel

did not cross-examine Adams.

The

State then called Dr. Albert Chu, an assistant medical examiner for Harris

County, who testified that a gunshot to the head killed Rios. The defense did not cross-examine Dr. Chu.

As

its first witness, the defense called Dr. Frank Barnes, an orthopedic

surgeon. Dr. Barnes testified that

appellant had surgery on his ankle on April 23, 2007 and that it would have

been unlikely, but possible, that appellant could have run six weeks after the

surgery without pain or a limp.

The

defense then called Carolee Proctor. She

testified that on the night of the murder, around 10:00 p.m., she, appellant,

and Salvador Hernandez were in a pizza restaurant. On cross-examination she admitted that her

previous statement in an affidavit indicating that appellant was in Louisiana

on the night of the murder was not truthful.

The defense also called Hernandez, a friend of appellant’s, who

testified that appellant and Carolee Proctor were with him at the pizza

restaurant on the night of the murder.

The defense then called Ernesto

Rojas, a licensed computer forensic investigator. Rojas testified that on June 10, 2007

appellant’s phone was used around his apartment in Houston, but the last call

was at 9:47 p.m. on the night of the murder.

Nothing in the cell phone records indicated that the phone was used in

or near Louisiana on the night of the murder.

Finally, the defense called

Labertha Dunbar, appellant’s mother-in-law.

She testified that appellant had gained weight since his wedding on May

19, 2007, but that otherwise his appearance had not changed significantly since

the wedding. She testified that

appellant was in Houston on the night of the murder.

The jury was instructed on the law

of parties and convicted appellant of capital murder. The trial court sentenced him to life in

prison without parole.

Appellant filed a motion for new

trial on January 16, 2009, claiming that a juror took notes and that the notes

were considered during deliberations.

The trial court did not rule on appellant’s motion for new trial, and it

was overruled by operation of law.

CRIME STOPPERS’ PRIVILEGE

In his fourth issue, appellant

contends the trial court erred in holding that the “crime stoppers” privilege

applied to prevent disclosure of the documents related to the identity of the

informant who provided the police with appellant’s address and in failing to

conduct an in camera review of the

information provided.

Appellant filed two

motions and a subpoena duces tecum requesting the disclosure of all information

obtained by the police from the crime stopper’s tip, arguing that this tip

might contain exculpatory information.

Specifically, appellant asked for the trial court “to require the state

to provide the defendant with any information regarding the defendant obtained

by the police through the ‘Crime Stoppers’ Program . . . .” On August 18, 2008, he filed a second motion

in which he asked the court “to instruct the prosecution and Crime Stoppers

organizations to reveal the true name and present addressees of all informers

and all reports of communications regarding the homicide of Mr. Resendo Rios on

the 11 th day of June 2008 . . . .”

Appellant also attached a subpoena duces tecum for Schepps demanding all

information related to the payment of money for a crime stoppers tip. Schepps and the State both filed motions to

quash appellant’s motions for disclosure and his subpoena duces tecum.

The trial court held a

hearing on the motions to quash. After

determining that Schepps was a crime stoppers organization, the trial court

granted the State’s and Schepps’ motion to quash appellant’s request for

disclosure of the identity of the informant.

Appellant then asked for an oral amendment to his motion for disclosure

so that the trial court could review the documents in camera to determine whether the material was potentially

exculpatory. The court granted

appellant’s request to amend his motion, and then held a hearing on the

record. At the hearing, defense counsel

argued for in camera review of the

evidence to determine if it was exculpatory on the ground that he believed the

tip was provided by “the individual who was involved in the actual homicide or

somebody who’s just being vengeful about [appellant] because of some issues

between them . . . .” The trial court denied

the motion to quash without conducting an in

camera review of the crime stoppers records.

1. Applicability of Crime Stoppers

Privilege

Appellant first argues in his fourth

issue that Schepps’ rewards program is not a crime stopper’s organization, as required

for the crime stoppers privilege to apply.

Evidence

of a communication between a person submitting a tip to a crime stoppers

organization is not admissible in a court proceeding except as provided by

statute. See Tex. Gov’t Code Ann.

§ 414.008(a) (Vernon

2005). In relevant part, Section 414.008 of the Government

Code provides:

(a) except as otherwise provided by this section,

evidence of a communication between a person submitting a report of a criminal

act to the council or a crime stoppers organization and the person who accepted

the report on behalf of the council or organization is not admissible in a

court or an administrative proceeding.

(b) records of the council or a crime stoppers

organization concerning a report of criminal activity may not be compelled to

be produced before a court or other tribunal except on a motion:

(1) filed in a criminal trial court by a defendant who

alleges that the records or report contains evidence that is exculpatory to the

defendant in the trial of that offense;

. . . .

(c) on motion of a movant under Subsection (b), the

court may subpoena the records or report. The court shall conduct an in camera

inspection of materials produced under subpoena to determine whether the

materials contain:

(1) evidence that is exculpatory to the defendant . .

. .

Id. § 414.008 (a)-(c)(1).

Section 414.001(2) of the Government Code defines a “crime stoppers

organization” as:

(A) a private, nonprofit

organization that is operated on a local or statewide level, that accepts and

expends donations for rewards to persons who report to the organization

information about criminal activity and that forwards the information to the

appropriate law enforcement agency; or

(B) a public organization that is operated on a

local or statewide level, that pays rewards to persons who report to the

organization information about criminal activity, and that forwards the

information to the appropriate law enforcement agency.

Id. § 414.001(2)(A) – (B). The

statute does not define “public organization.”

Schepps

is a wholly owned subsidiary of Dean Foods, a publically owned

corporation. Ed Spencer, the

administrator of Schepps’ crime stoppers rewards program, testified at the

hearing on the State’s and Schepps’ motions to quash the subpoena of Schepps’

crime stoppers records. Spencer

testified that Schepps started its rewards program as a component of its

philanthropic endeavors to help provide justice and relief to the victims of

certain violent crimes after one of its milkmen was killed in the early

1970’s. After Schepps was acquired by

Dean Foods, the program was extended to other dairies and other states, but it

continues to operate through Schepps in Houston, Dallas, and Fort Worth, Texas. The program provides money to persons who

supply law enforcement officials with information concerning selected

crimes.

Spencer testified that

the Schepps crime stopppers organization is independent of the Harris County

Crime Stoppers program but that the two often coordinate efforts. Sometimes Schepps decides to post an award

and contacts local law enforcement agencies; sometimes, as here, it is

contacted by a law enforcement agency and asked to post a reward for

information leading to an arrest.

Schepps does not operate a tip line of its own; rather, its reward

announcements instruct persons offering tips to contact the law enforcement

agency with which it is coordinating its efforts. Schepps generally offers a $10,000 reward,

but when, as here, two persons are involved in a crime, it offers $5,000 for

information leading to each arrest. The

rewards program is financed by the individual dairies, and the money for it

comes out of the dairies’ operating budgets.

We conclude that,

although Schepps is a for-profit organization and a subsidiary of a public

corporation, its rewards program is a private non-profit organization that

accepts funds contributed from Schepps’ income and expends donations for

rewards to persons who report to the appropriate law enforcement agency. We thus conclude that the crime stoppers

rewards program in which Schepps participates qualifies as a crime stoppers

organization within the scope of section 414.001(2)(A) of the Government

Code. See id. § 414.001(2)(A) (providing definition for “crime

stoppers organization”); In re Hinterlong ,

109 S.W.3d 611 , 622 – 23 (Tex. App.—Fort Worth 2003, no pet.) (holding that trial

court did not abuse its discretion in holding that program at public high

school which encouraged students to report crime and was affiliated with

Tarrant County Crime Stoppers was “crime stoppers organization”). Therefore, we hold that the trial court did

not abuse its discretion in holding that the crime stoppers privilege applied

to the records and reports concerning the informant in this case.

We overrule the first

part of appellant’s fourth issue.

2.

Denial of Request for In camera Inspection

Appellant also argues in his fourth issue that the

trial court erred in failing to conduct an in

camera review of the records and reports related to the tip as to

appellant’s address given by the informant in response to Schepps’ reward

offer.

The prosecution has an affirmative

duty to disclose all material evidence favorable to the defense. McFarland v. State , 928 S.W.2d 482, 511

(Tex. Crim. App. 1996). Under the “ Brady

rule,” the prosecution of a defendant violates due process when the State

suppresses evidence in its possession that is favorable to an accused “[w]here

the evidence is material either to guilt or to punishment irrespective of the

good faith or bad faith of the prosecution.”

Wyatt v. State , 23 S.W.3d 18,

27 (Tex. Crim. App. 2000) (citing Brady

v. Maryland , 373 U.S. 83, 87 , 83 S. Ct. 1194, 1197 ). “ Brady

has been extended to include the required revelation to an accused of material

exculpatory evidence in the possession of police agencies and other parts of

the ‘prosecutorial team.’” Ex parte Mitchell , 977 S.W.2d 575, 578 (Tex.

Crim. App. 1997) (citing Kyles v. Whitley ,

514 U.S. 419, 437 , 115 S. Ct. 1555, 1567 (1995)). “Evidence withheld by a prosecutor is

‘material’ if there is ‘a reasonable probability that, had the evidence been

disclosed to the defense, the outcome of the proceeding would have been

different.’” Wyatt , 23 S.W.3d at 27

(quoting United States v. Bagley , 473

U.S. 667, 676 , 105 S. Ct. 3375, 3380 (1985)).

Thus, a due process violation occurs “if a prosecutor: (1) fails to

disclose evidence, (2) favorable to the accused, (3) which creates a

probability of a different outcome.” Id. (citing Thomas v. State , 841 S.W.2d 399, 404 (Tex. Crim. App. 1992)).

The crime stoppers privilege statute provides that a trial

court may subpoena the records of a crime stoppers organization concerning a

report of criminal activity on the motion of a defendant who alleges that the

records or report contain evidence exculpatory to him, and, if it does so, it

must conduct an in camera inspection

of the records subpoenaed. Tex. Gov’t Code Ann. §

414.008(b)-(c). However, the trial court

is not required to subpoena the records merely at the defendant’s request. See

Tex.

Gov’t Code Ann. §

311.016(1) (providing

that term “may” “creates discretionary authority or grants permission or

power”). Rather, the defendant must make a plausible showing to the trial court, through

sworn evidence or agreed facts, that the crime stoppers records in the

possession of the State would be material exculpatory evidence that would

create a probability of a different outcome.

See Wyatt 23 S.W.3d at 27 ; Mitchell , 977 S.W.2d at 578 . If such a showing is made and the trial

court, in the exercise of its discretion, subpoenas the crime stoppers records,

it must then conduct an in camera

inspection of the subpoenaed documents to determine if the produced information

contains Brady evidence. An in

camera inspection satisfies both the defendant’s interest in the production

of crime stoppers information that may be exculpatory and the State’s interest

in fostering law enforcement by protecting the identity of the crime stoppers

informants. Thomas v. State , 837 S.W.2d 106 , 113 – 14 (Tex. Crim. App. 1992).

Here,

a ppellant made no showing to the trial court that the crime

stoppers report would be either exculpatory or material or that it would create

the probability of a different outcome under the circumstances of this case and

would therefore have served appellant’s due process interest in the production

of exculpatory information. See Mitchell , 977 S.W.2d at 578 . The subpoena of the crime stoppers report

under these circumstances could only have undermined the State’s compelling

interest in furthering law enforcement by intimidating informants from coming

forward with information as to where an accused could be found. See

Thomas , 837 S.W.2d at 114 (holding that allowing unrestricted access to

crime stoppers information could compromise State’s efforts to protect identity

of crime stoppers informants). We hold

that the trial court was not required to subpoena the crime stoppers records in

this case, and thus it did not abuse its discretion in not conducting an in camera review of the information in

the crime stoppers tip. [3]

We overrule appellant’s fourth issue.

The discussion of the remaining

points of error does not meet the criteria for publication, Tex. R. App. P . 47, and is thus ordered

not published.

We affirm the judgment of the

trial court.

LEGAL AND FACTUAL SUFFICIENCY

In his first and second issues,

appellant contends that the evidence supporting the jury’s verdict was legally

and factually insufficient to identify him as the perpetrator and that the

evidence established that he could not have committed the murder because he was

somewhere else when it occurred. He

contends that the witnesses’ descriptions of him did not match his physical

characteristics, a “jail house snitch” is an unreliable witness, appellant’s

“family members and close friend” testified that he was not in the vicinity of

the murder scene when the murder occurred, and surgery he had on his ankle six

to eight weeks before would have prevented him from committing the murder.

“A person commits capital murder if

he . . . intentionally commits . . . murder in the course of committing or

attempting to commit . . . robbery. . . .”

Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 2003).

A.

Legal Sufficiency

In a legal sufficiency review, we

consider the entire trial record to determine whether, viewing the evidence in

the light most favorable to the verdict, a rational jury could have found the

accused guilty of all essential elements of the offense beyond a reasonable doubt. See

Jackson v. Virginia , 443 U.S. 307 , 318 – 19, 99 S. Ct. 2781 , 2788 – 89 (1979); Vodochodsky v. State , 158 S.W.3d 502,

509 (Tex. Crim. App. 2005). The jurors

are the exclusive judges of the facts, the credibility of the witnesses, and

the weight given to the testimony. Margraves v. State , 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). A jury is

entitled to accept one version of the facts and reject another, or reject any

part of a witness’s testimony. Id .

In conducting our review of the legal sufficiency of the evidence, we do

not reevaluate the weight and credibility of the evidence, but ensure only that

the jury reached a rational decision. Muniz v. State , 851 S.W.2d 238, 246

(Tex. Crim. App. 1993).

It is well established that the

testimony of a single eyewitness may be legally sufficient to support

conviction. Davis v. State , 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.]

2005, no pet.) (citing Aguilar v. State ,

468 S.W.2d 75, 77 (Tex. Crim. App. 1971)).

Here, Urbina testified that with

the assistance of good lighting she saw appellant rob two patrons with a

gun. She signaled to Rios for

assistance. Afterwards, she saw

appellant fire his gun and saw the African-American man take money from the

trailer. Appellant attempted to enter

the trailer, but his co-conspirator restrained him. Urbina was afraid for her life. Appellant and the African-American man fled

together, and she subsequently found Rios on the ground. Ibarra also identified appellant and

testified to his presence in the bar on the night of the shooting. Viewing the evidence in the light most

favorable to the verdict, we hold that the jury could have found beyond a

reasonable doubt that appellant intentionally committed the murder of Rios in

the course of committing robbery. See Davis , 177 S.W.3d at 359 (holding

that testimony by one eyewitness can be legally sufficient).

B. Factual Sufficiency

When conducting a factual

sufficiency review, we view all of the evidence in a neutral light. Cain v.

State , 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict

aside only if (1) the evidence is so weak that the verdict is clearly wrong and

manifestly unjust or (2) the verdict is against the great weight and

preponderance of the evidence. Johnson v. State , 23 S.W.3d 1, 11 (Tex.

Crim. App. 2000). Under the first prong of Johnson ,

we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust”

simply because, on the evidence before us, we would have voted to acquit had we

been on the jury. Watson v. State ,

204 S.W.3d 404, 417 (Tex. Crim. App. 2006).

Before determining that evidence is factually insufficient to support a

verdict under the second prong of Johnson ,

we must be able to say, with some objective basis in the record, that the great

weight and preponderance of the evidence contradicts the jury’s verdict. Id .

The jury is in the best position to evaluate the credibility of

witnesses, and we are required in our factual sufficiency review to afford “due

deference” to the jury’s determinations.

Marshall v. State , 210 S.W.3d

618, 625 (Tex. Crim. App. 2006). In

conducting a factual sufficiency review, we must also discuss the evidence

that, according to the appellant, most undermines the jury’s verdict. See

Sims v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We cannot declare that a conflict in the

evidence justifies a new trial simply because we disagree with the jury’s

resolution of that conflict. Watson , 204 S.W.3d at 417 .

Here, appellant argues that the

descriptions provided by Urbina and Ibarra to the police officers were

inconsistent with appellant’s physical features. Appellant contends the witnesses testified that the shooter

had a pointed nose but that his nose is not pointed, that the shooter had blue

eyes but he has greenish-brown eyes, and the like. However, appellant does not direct us to

portions of the record that contradict the descriptions provided by Ibarra and

Urbina. Appellant also argues that when Urbina viewed the first photo array she

could not identify anyone in the array as the shooter. However, the testimony established that

appellant’s photo was not in the first array.

Furthermore, both witnesses identified appellant in a photo array

presented to them several weeks after the murder, and they identified appellant

in court. Lastly, the State produced

evidence that indicated that appellant altered his appearance while awaiting

trial by adding tattoos and as much as 50 to 60 pounds in weight.

Appellant also argues that the

evidence is factually insufficient because his alibi witnesses testified either

that he was not in Texas on the night of the killing or that he was not in the

part of Houston where the killing occurred.

Labertha Dunbar, appellant’s mother-in-law and Carolee Proctor, his

wife, provided affidavits swearing he was in Louisiana on the night of the

killings. However, when this testimony

was controverted with records from appellant’s cell phone carrier, these

witnesses recanted their affidavits.

Beverly Harris testified that on June 10, 2007, appellant picked her up

at 7:00 a.m., drove her to the Newton County Jail to see her son, Alonzo

Harris, and that, after spending two and a half hours with her son, she and

appellant returned to Houston.

Appellant’s wife testified that after appellant returned from Newton

County she, appellant, and Salvador Hernandez went to a restaurant in Houston

where they remained from 10:00 p.m. until “very late.”

Hernandez testified that he was

with appellant and his wife at the restaurant until it closed at midnight on

the night of the killing. However,

through the testimony of Joseph Adams, the State rebutted this alibi testimony

by producing a witness who testified that appellant admitted to “taking care of

business” with his pistol, by committing the robbery and the murder. Appellant contends that Adams’ testimony is

not credible. However, the State also

produced Urbina and Ibarra, who testified that appellant was in the bar on the

night of the killing.

Lastly, appellant contends that the

evidence was factually insufficient because the injury to his foot would have

prevented him from committing the crime and fleeing from it. However, the State

produced evidence, through appellant’s own witness, that, despite appellant’s

injury and recent surgery, it would have been possible for him to have

committed the offense and to have fled the scene on foot.

In a determination of factual

sufficiency, the jury is in the best position to evaluate the credibility of

witnesses, and we afford “due deference” to the jury’s determination. Marshall ,

210 S.W.3d at 625 . Therefore, to the extent there are inconsistencies in the

testimony of the witnesses, we defer to the jury to decide credibility. See

Petro v. State , 176 S.W.3d 407, 412 (Tex. App.—Houston [1st Dist.] 2004,

pet. ref’d) (holding any discrepancies in description of robber and manner of

witnesses’ in-court and out-of-court identifications are matters best left for

jury’s evaluation of credibility and demeanor of witnesses who appeared before

them). Here, in evaluating all of the

evidence in a neutral light, we cannot say that the evidence is so weak that

the verdict is clearly wrong and manifestly unjust or that the verdict is

against the clear weight and preponderance of the evidence. See

Johnson , 23 S.W.3d at 11 . We hold

that the evidence is factually sufficient to sustain appellant’s

conviction.

We overrule appellant’s first and

second issues.

FAILURE TO GRANT A NEW TRIAL

In his third issue, appellant contends that

the trial court abused its discretion in denying his motion for a new trial.

Appellant

filed a motion for a new trial on January 16, 2009, claiming that a juror took

notes during the trial, against the trial court’s ruling, and that the notes

were considered during deliberations.

Appellant’s counsel testified by affidavit that appellant’s second chair

defense counsel had reported to him that, during a post-verdict conversation,

an unnamed juror had reported that another juror had taken notes during

deliberations and shared them with the other jurors during deliberations and

that one of the notes referred to one of appellant’s expert witnesses as “Dr.

Sleazeball.” The affidavit further

stated that neither he, nor his second chair, nor his legal assistant observed

any juror taking notes and therefore he did not request a mistrial during

trial. Attorneys for both the defense

and the State testified by affidavit that they did not see jurors taking notes. The prosecutors also swore in their affidavits

that the juror who indicated that another juror had taken notes did not specify

whether the notes were made during deliberations or during trial. Although the record contains an agreed

hearing setting for the motion, signed by the court, no hearing was held on the

motion; instead the agreed motion contains the statement “off-docket,”

apparently written by the court. The

trial court did not rule on the motion, and it was overruled by operation of

law.

In reviewing a motion for a new

trial, the trial court may receive evidence by affidavit. Tex.

R. App. P. 21.7. The trial court

is not required to believe the factual statements made in an affidavit, even

when these are uncontradicted by other affidavits. Charles

v. State , 146 S.W.3d 204, 213 (Tex. Crim. App. 2004); Shanklin v. State , 190 S.W.3d 154, 167 (Tex. App.—Houston [1st

Dist.] 2005), pet. dism’d ,

improvidently granted, 211 S.W.3d 315, 316 (Tex. Crim. App. 2007). In considering a motion for new trial, the

reviewing court must give deferential review to the trial court’s determination

of historical facts based upon affidavits.

Manzi v. State , 88 S.W.3d 240,

241 (Tex. Crim. App. 2002).

Appellate courts generally review a

trial court’s ruling on a motion for a new trial under an abuse of discretion

standard. Holden v. State , 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). When

there are no written findings in the record, we view the evidence in the light

most favorable to the trial court’s ruling on any theory of law applicable in

the case. Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). An appellate court must defer to the trial

court’s ruling to the extent that any reasonable view of the record supports

the ruling. Holden , 201 S.W.3d at 763 (holding that appellate courts review

ruling on motion for new trial to determine whether trial court’s decision was

arbitrary or unreasonable).

Here,

both the defense and the State filed affidavits. The trial court was free to refuse to

consider the statements of juror misconduct in defense counsel’s affidavit as

hearsay and to believe the affidavits of the defense and the prosecution that

they did not witness juror misconduct in considering whether to grant

appellant’s motion for a new trial. See Charles 146 S.W.3d at 213 .

We overrule appellant’s third

issue.

PHOTO ARRAY

In

his fifth issue, appellant contends that the trial court erred by admitting an

impermissibly suggestive photo array that had been shown to Ibarra and Urbina

and in allowing their improper in-court identifications of appellant.

Appellant contends that the photo

array was impermissibly suggestive because the complainant’s brother and widow

were present when it was viewed and their presence “injected a heavy incentive

for the witnesses to make a mistaken identification.” Appellant argues that the use of the

deceased’s brother as a translator, the presence of his widow, and the fact

that Officer Miller did not show the witnesses the photo array at the police

station provided strong incentives for misrepresentation. Appellant also contends that his picture in

the photo array did not resemble him at the time of the murder because the

photo was from 2003 and did not include his facial tattoos.

Before trial, appellant filed a

“motion to suppress photographic identification.” At trial, the trial court held three hearings

on appellant’s motion to suppress the photographic identification. The first hearing was conducted prior to

empanelling the jury, and Officer M. Miller testified. In the second hearing, conducted outside the

presence of the jury, Ibarra testified.

In the last hearing, also conducted outside of the presence of the jury,

Urbina testified.

Officer

Miller testified in the first hearing that he had a photo array developed that

included a picture of appellant and five other people whose physical features

resembled those of appellant. The photo

array, labeled State’s Exhibit 49, comprises headshots of appellant and five

other males. All of the photos are of

white men of approximately the same age with closely cropped or shaved hair,

similar complexions, small amounts of facial hair, and closed mouths.

On July 5, 2007, Officer Miller

contacted Leroy Rios to obtain Ibarra’s home address. Although he tried to obtain a translator to

accompany him to Ibarra’s house, he was unable to do so, and so he asked Leroy

Rios to translate for him. When they

arrived at Ibarra’s home, the complainant’s widow, Marahi Rios, was there and

remained present throughout the showing of the photo array. Officer Miller admonished Ibarra and then

presented the array to her. He testified

that she positively identified appellant.

He testified that he then went to Urbina’s house and that Leroy and Marahi

Rios followed in a separate car. After

admonishing Urbina, through Leroy Rios, Officer Miller presented her with the

photo array and she positively identified appellant.

Ibarra

testified in the second hearing on the motion to quash that, on the night of

the complainant’s murder, she was working at his nightclub as a cashier and a

bartender. She testified that the

majority of her customers were Hispanic, but on the night of the complainant’s

murder she observed a white man and an African-American man enter the bar, have

a few beers, and play pool. To her,

these men were conspicuous because they were not Hispanic. She testified that Officer Miller called her

on July 5, 2007, and asked whether he could show her some photographs. She consented. After Officer Miller arrived at her house, he

admonished her, with Leroy Rios translating, that the photo array might not

include the suspect. She testified that

while she was looking at the photo array, Officer Miller was silent. She looked at the photo array and identified

appellant as the person who committed the murder.

During this hearing, and at the

instruction of the trial court, appellant did not face Ibarra, and instead

faced the courtroom’s back wall. After

Ibarra identified appellant in the photo array for the court, the trial court

instructed appellant to face Ibarra, and she identified him as the man she saw

in the bar on the night of Rios’s murder.

The trial court then ruled that Ibarra could testify to appellant’s

identity in front of the jury and that she would be allowed to identify him in

court in front of the jury. Lastly, the

trial court made a finding that Ibarra and Officer Miller presented credible

testimony.

In the third hearing, Urbina

testified that, on the night of the complainant’s murder, she was working at

the nightclub, in the trailer that sold tacos outside of the bar’s front

door. She saw an “American” and an

African-American enter and leave the bar several times. She testified that she could see them clearly

and that at one point appellant was only a foot away from her. Approximately three weeks after the murder,

Officer Miller came to her house and, through Leroy Rios, asked her to look at

a photo array and determine whether the man she saw at the nightclub was in

it. She identified appellant in the photo

array. She testified that she had not

spoken with Ibarra before she looked at the photos and that she did not feel

pressured to select a photo. The trial

court acknowledged that it did not consider “it wise for any family members of

a complainant to be present or do a translation on identification,” but it

found the identification testimony admissible.

It denied appellant’s motion to suppress and allowed Ibarra and Urbina

to identify appellant in court.

A.

Standard of Review

In reviewing a trial court’s

decision on the admissibility of a pretrial identification, we defer to the

trial court’s rulings on mixed questions of law and fact if they turn on the

credibility and demeanor of witnesses .

See Loserth v. State , 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). We review

de novo mixed questions of fact and law that do not turn on an evaluation of

credibility and demeanor. Id . The

question of whether a pretrial identification procedure was impermissibly

suggestive is a mixed question of law and fact that does not turn on an

evaluation of credibility and demeanor. See

id . at 773. Accordingly, we apply a de novo standard of review. Id .

Appellate courts are not limited to

reviewing only the evidence adduced at the admissibility hearing when

considering the identification. Webb v.

State , 760 S.W.2d 263 , 272 n.13 (Tex. Crim. App. 1988). An appellate court

may review both the hearing testimony and evidence adduced at trial when

determining the admissibility of a pre-trial identification. Id. A

pretrial identification procedure may, however, be so suggestive and conducive

to mistaken identification that subsequent use of that identification at trial

would deny the accused due process of law. See

Simmons v. United States , 390 U.S. 377, 384 , 88 S. Ct. 967, 971 (1968); Barley v. State , 906 S.W.2d 27 , 32 – 33 (Tex. Crim. App. 1995).

When challenging the admissibility

of a pretrial identification, an accused has the burden to show: (1) the

out-of-court identification procedure was impermissibly suggestive, and (2) the

suggestive procedure gave rise to a substantial likelihood of irreparable

misidentification. Barley , 906 S.W.2d

at 33 . If a court finds that a pretrial identification procedure was

impermissibly suggestive, it must then consider whether the suggestive

procedure gave rise to a substantial likelihood of irreparable

misidentification. Neil v. Biggers ,

409 U.S. 188, 199 , 93 S. Ct. 375 , 381 – 82 (1972). A defendant bears the burden of establishing by clear and

convincing evidence that the pretrial identification procedure was

impermissibly suggestive. Barley , 906

S.W.2d at 33 – 34. The factors used to determine whether an

impermissibly suggestive identification procedure gives rise to a substantial

likelihood of irreparable misidentification are treated as historical issues of

fact and are viewed in the light most favorable to the trial court. Loserth ,

936 S.W.2d at 773 – 74.

In determining the impermissible

suggestiveness prong of the Barley test,

we review the procedure to determine whether suggestiveness was created by the

manner in which the pretrial identification procedure was conducted. Id .

at 33. For example, a police officer may

point out the suspect or suggest that a suspect is included in a line-up or

photographic array. Id . The content of a line-up

or photographic array itself may be suggestive if the suspect is the only

individual who closely resembles the description given by the witness. Id . Furthermore, an individual procedure may be

suggestive or the cumulative effect of procedures may be suggestive. Id .

If it is determined that the

pre-trial identification procedure was impermissibly suggestive, we determine

whether the procedure created a “substantial likelihood of irreparable

misidentification.” Id . at 34. “The test is whether,

considering the totality of the circumstances, ‘the photographic identification

procedure was so impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.’”

Ibarra v. State , 11 S.W.3d

189, 195 (Tex. Crim. App. 1999) (quoting Simmons ,

390 U.S. at 384 , 88 S. Ct. at 971 ).

Ultimately, “reliability is the linchpin in determining the

admissibility of identification testimony.” Id .

In Luna v. State , the Court of Criminal Appeals held that “[t]he

following five non-exclusive factors should be weighed against the corrupting

effect of an suggestive identification procedure in assessing reliability under

the totality of the circumstances: (1) the opportunity of the witnesses to view

the criminal at the time of the crime; (2) the witnesses degree of attention;

(3) the accuracy of the witnesses’ prior description of the criminal; (4) the

level of certainty demonstrated by the witnesses at the confrontation, and (5)

the length of time between the crime and the confrontation. Luna v.

State , 268 S.W.3d 594, 605 (Tex. Crim. App. 2008) (citing Ibarra , 11 S.W.3d at 195 ).

B.

Analysis

While appellant urges this Court to

find that the procedure created an impermissibly suggestive identification, he

acknowledges that, “[t]here is no statute or case law which prohibits the use

of grieving family members to translate during photo array presentations . . .

Nor are there statutes or case law which prohibit the grieving widow [from

being] present during the identification procedure.” We conclude that appellant has failed to

prove the first prong of the Barley

test, an impermissibly suggestive identification procedure. See

Barley , 906 S.W.2d at 33 . Nevertheless, even if appellant had

established that Detective Miller’s using the complainant’s brother as a

translator and allowing the complainant’s widow to be present at the showing of

the photo array created an impermissibly suggestive procedure, he would still

not have shown that the procedure gave rise to a substantial likelihood of

irreparable misidentification, establishing the second prong of the Barley test. See id .

In determining whether an appellant

has proved a substantial likelihood of irreparable misidentification, we

consider the facts of the case in the context of the five Biggers factors. Luna , 268 S.W.3d at 605 .

Here, the witnesses had an ample

opportunity to view the killer at the time of the crime. See

Luna , 268 S.W.3d at 605 . Both Ibarra

and Urbina testified that appellant was conspicuous because he was among the

only non-Hispanic patrons in the bar.

Further, Ibarra testified that she observed him intermittently over a

period of four hours and Urbina testified that appellant came within a foot of

her and that good lighting made it easy for her to see him. Second, both witnesses testified that because

appellant was conspicuous to them they paid particular attention to him. Third, while the descriptions of appellant

varied slightly and appellant’s acquaintance Adams, Detective Miller, and

appellant’s mother-in-law all testified that appellant had altered his appearance

for trial by adding tattoos and as much as sixty pounds of weight, the

descriptions provided by both witnesses generally conformed to appellant’s

physical features. Fourth, both

witnesses were confident in their identification of appellant, and the trial

court entered findings that Ibarra was credible. In addition, Urbina had viewed a prior photo

array that did not contain appellant’s photo and was unable to identify anyone

in it as the shooter. Finally, there was

less than a month between the murder and the identification. Id.

Appellant contends only that the

photo in the array was from 2003 and was misleading because it did not include

his facial tattoos. However, appellant

does not direct us to any evidence that appellant had facial tattoos or different

tattoos on the night of the killing. [4] Nor does he provide any authority supporting

his claim that the presence or absence of tattoos renders a photo array

unreliable.

We

conclude that appellant has not shown that the photographic identification

procedure was impermissibly suggestive or gave rise to a substantial likelihood

of irreparable misidentification.

Therefore, we hold that the trial court did not abuse its discretion in

allowing Urbina and Ibarra to testify to appellant’s identity. See Id.

We

overrule appellant’s fifth issue.

ADMISSION OF HEARSAY STATEMENTS

In

his sixth issue on appeal, appellant contends that the trial court erred in

admitting the hearsay statement of Carolee Procter during the State’s direct

examination of Detective Miller.

A

trial court’s ruling on the admissibility of evidence is reviewed for an abuse

of discretion. See Coffin v. State , 885 S.W.2d 140, 149 (Tex. Crim. App.

1994). An appellate court should not

reverse a trial court whose ruling was within the “zone of reasonable

disagreement.” Green v. State , 934 S.W.2d 92, 102 (Tex. Crim. App. 1996). The reviewing court must review the evidence

in the light most favorable to the trial court’s ruling, giving the trial court

almost total deference on its findings of historical fact that are supported by

the record. Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, to preserve an issue for appeal, the

complaining party must object and either obtain an adverse ruling on the record

or object to the trial court’s refusal to rule on the objection. Tex.

R. App. P. 33.1(a); Thierry v.

State , 288 S.W.3d 80, 85 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). An “off-the-record” objection

will not preserve a complaint for appeal.

Lasher v. State , 202 S.W.3d

292, 295 (Tex. App.—Waco 2006, pet. ref’d).

Appellant

contends that Detective Miller testified over a running objection to hearsay

statements of appellant’s wife, Carolee Proctor. Specifically, appellant directs us to the

following exchange:

[State]: What question, if anything,

[did] you ask [appellant’s wife]?

[Miller]: Well, immediately, we were

looking for a white male suspect and when a black female opened door [sic], we

had to first clear that up, whether or not there was a white male that lived at

this residence. So my partner asked her a question, Is there a white male that

lives at this residence?

[Defense]: Objection to any hearsay, Your

Honor.

[Trial

Court]: May I see the attorneys up

here.

(Off record

discussion held at bench.)

[State]: I think where we left off,

y’all asked the question: Does a white male live here?

And the response

was?

[Miller]: No, there is not.

. . . .

[State]: Where are you standing when she

walked into the bathroom?

[Miller]: Standing in the living room.

[State]: What, if anything, did you

notice?

[Miller]: On top of the VCR in the living

room was a picture of a black female, appeared to be the person we were talking

to, Carolee Proctor, embraced in a hug with the defendant.

[State]: Now, before she left to change

clothes, did she convey to you who she was living there with, or did she simply

say —

[Defense]: Your Honor, I would ask for the

continuing objection, same subject.

[Court]:

You may have that, same

ruling.

Detective Miller subsequently testified to matters

that appellant’s wife had told him. For

example, he testified, “We asked her about the picture and the white male that

was in the picture.” The State then

asked, “At that point, what if anything, did she acknowledge?” Detective Miller answered, “She told us it

was her husband.” We conclude that that

appellant preserved this issue for appeal by obtaining a running objection from

the trial court.

Assuming

without deciding that the trial court erred in admitting hearsay evidence over

a running objection, we conclude that the error was harmless. See

Tex. R. App. P. 44.2(b)

(providing that a non-constitutional “error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded.”). The Court of Criminal Appeals has held that

“substantial rights are not affected by the erroneous admission of evidence ‘if

the appellate court, after examining the record as a whole, has fair assurance

that the error did not influence the jury, or had but slight effect.’” Motilla

v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Soloman v. State , 49 S.W.3d 356, 365

(Tex. Crim. App. 2001)). “In assessing

the likelihood that the jury’s decision was adversely affected by the error,

the appellate court should consider everything in the record including any

testimony of physical evidence . . . , the nature of the evidence supporting

the verdict, the character of the alleged error and how it might be considered

in connection with other evidence in the case.”

Motilla , 78 S.W.3d at 355 .

In this case, the weight of the

evidence against appellant was overwhelming.

Ibarra and Urbina had time to observe appellant over a substantial

period of time on the night of the murder and identified him both in a photo

array and in court. Appellant himself

confirmed his address and relationship with his wife by telephoning the police

within fifteen minutes after the detectives left his home to report that he was

in Louisiana. Through the use of his

cell phone records and his statements to the police officers, the jury could

reasonably have concluded that appellant lied about where he was on the night

of the murder. Additionally, appellant

admitted to Adams that he committed the killing. When we consider the nature of

any error in admitting hearsay in comparison to the other evidence in the case,

the likelihood that the jury’s decision was adversely affected by the error is

small. Therefore, even if the trial court

erred in admitting hearsay evidence over a running objection the error was

harmless.

We overrule appellant’s sixth

issue.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his seventh issue, appellant

contends that he received ineffective assistance of counsel because his counsel

failed to cross examine his acquaintance Joseph Adams, who testified that while

they were incarcerated together, appellant confessed to the crime and also

sought to get tattoos to alter his appearance.

A.

Standard of Review

To prevail on a claim of

ineffective assistance of counsel, an appellant must show that his trial

counsel’s performance was deficient and that a reasonable probability exists

that, but for the deficiency, the result of the proceeding would have been

different. Strickland v. Washington , 466 U.S. 668, 687, 694 , 104 S. Ct. 2052,

2064, 2068 (1984). The first prong of

the Strickland test requires that the

defendant show that counsel’s performance fell below an objective standard of

reasonableness. Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). This

does not require a showing that counsel’s representation was without

error. See Ex parte Duffy , 607 S.W.2d 507, 514 (Tex. Crim. App. 1980), overruled on other grounds, Hernandez v.

State , 988 S.W.2d 770 (Tex. Crim. App. 1999). Isolated errors do not render counsel’s

performance ineffective. See McFarland v. State , 845 S.W.2d 824,

843 (Tex. Crim. App. 1992), overruled on

other grounds , Bingham v. State ,

915 S.W.2d 9 (Tex. Crim. App. 1994). The

second prong requires the defendant to show a reasonable probability that, but

for his counsel’s unprofessional errors, the result of the proceeding would

have been different. See Strickland , 466 U.S. at 694 , 104 S.

Ct. at 2068 ; Thompson , 9 S.W.3d at

812 . Because the reviewing court must,

however, indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance, the defendant must overcome

the presumption that, under the circumstances, the challenged action “might be

considered sound trial strategy.” Strickland , 466 U.S. at 689 , 104 S. Ct.

at 2065 .

Any allegation of ineffectiveness

must be firmly founded in the record, which must affirmatively demonstrate the

alleged ineffectiveness. Thompson , 9 S.W.3d at 813 (citing McFarland , 928 S.W.2d at 500 ). We will not speculate to find trial counsel

ineffective when the record is silent on counsel’s reasoning or strategy. See

Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State , 916 S.W.2d 92, 93 (Tex.

App. — Houston [1st Dist.] 1996, no

pet.). In rare cases, however, the

record can be sufficient to prove that counsel’s performance was deficient,

despite the absence of affirmative evidence of counsel’s reasoning or strategy. See

Robinson v. State , 16 S.W.3d 808 , 813 n.7 (Tex. Crim. App. 2000). Such cases are limited to occasions where no

reasonable attorney could have made such a decision. Weaver

v. State , 265 S.W.3d 523, 538 (Tex. App. — Houston [1st Dist.] 2008, pet. ref’d).

When an appellant does not file a

motion for new trial asserting ineffective assistance of counsel that would

have afforded trial counsel an opportunity to explain his strategy and no

direct evidence in the record establishes why appellant’s attorney acted as he

did, we presume that counsel had a plausible reason for his actions. See

Thompson , 9 S.W.3d at 814 . We review

the record to determine whether this is one of those rare cases where no

reasonable attorney could have made the decisions complained of in this

appeal. See id .

B.

Analysis

Appellant contends that his trial

counsel was deficient for failing to cross examine Adams. However, appellant has failed to show that

counsel did not have a strategic or reasoned basis for not examining Adams. Jackson ,

877 S.W.2d at 771 . Appellant’s counsel

cross-examined all of the State’s other witnesses with the exception of Dr.

Chu, a medical examiner from Harris County.

We cannot speculate as to counsel’s reasoning and we cannot say that no

reasonable attorney would have not cross-examined Adams. Miniel

v. State , 831 S.W.2d 310, 324 (Tex. Crim. App. 1992) (stating that decision

of whether to cross-examine and which questions to ask falls within parameters

of trial strategy).

Moreover, even if we had found that

counsel’s actions were deficient, appellant has not shown that but for his

counsel’s decision not to cross-examine Adams the result of the trial would

have been different. Appellant merely

argues that “[t]his failure to cross-examine a key State witness, particularly

about his prior convictions, recall of events, and consideration received for

his testimony is urged to be found to be ineffective assistance of

counsel.” However, appellant does not

direct us to any information that could have come out during a

cross-examination of Adams that would have changed the result of the

trial. Consequently, had we determined

that trial counsel erred in failing to cross-examine Adams, we would have

concluded that appellant failed to establish prejudice. See

Thompson , 9 S.W.3d at 807 .

Therefore, we overrule appellant’s

seventh issue.

CONCLUSION

We affirm the judgment of the trial

court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Hanks, and Higley.

Publish

in part; do not publish. Tex. R.

App. P. 47 .

[1]

See Tex. Penal Code Ann. § 19.03(a) (Vernon 2003) (providing elements for

capital murder).

[2]

On

cross-examination, she testified that she also provided other identifying

characteristics of appellant, such as a cleft chin and a pointed nose, that

differed slightly from appellant’s actual physical appearance.

[3]

Appellant also contends that the

trial court erred in not ruling on his motion, but in its ruling the trial

court specifically stated, “I am denying your request for the information.”

[4]

State’s

Exhibit 53, which is a photograph of appellant when he was arrested, apparently

shows no facial tattoos. Detective

Miller testified that, while appellant had a mark under his right eye, he did

not have a tattoo there when he was photographed following his arrest.