Donald Foster v. State ( 2018 )

Opinion issued December 13, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00732-CR
———————————
DONALD FOSTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1470046
MEMORANDUM OPINION
After appellant, Donald Foster, without an agreed punishment
recommendation from the State, pleaded guilty to the felony offense of murder,1 a
1
See TEX. PENAL CODE ANN. § 19.02(b), (c) (Vernon 2011).
jury found him guilty, found he did not cause the death of the complainant, his wife,
under the influence of sudden passion,2 and assessed his punishment at confinement
for life. In three issues, appellant contends that his trial counsel provided him with
ineffective assistance during the punishment phase of trial and the trial court erred
in admitting certain evidence during the punishment phase of trial and not sua sponte
instructing the jury on the proper burden of proof for an extraneous offense or bad
act.3
We affirm.
Background
A Harris County Grand Jury issued a true bill of indictment, alleging that
appellant, on or about May 29, 2015, “did then and there unlawfully, intentionally
and knowingly cause the death of [the complainant] . . . by striking [her] with [a]
sharp edge object,” “a knife,” or “a blunt force object.” It further alleged that
appellant, on or about May 29, 2015, “did then and there unlawfully intend to cause
serious bodily injury to [the complainant] . . . and did cause the death of the
[c]omplainant by intentionally and knowingly committing an act clearly dangerous
2
See id. § 19.02(a)(2), (d) (“‘Sudden passion’ means passion directly caused by and
arising out of provocation by the individual killed or another acting with the person
killed which passion arises at the time of the offense and is not solely the result of
former provocation.”).
3
See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2018).
2
to human life, namely . . . striking [her] with a sharp edge object,” “a knife,” or “a
blunt force object.”
At the punishment hearing, Cypress Creek EMS paramedic G. Ortega testified
that on the morning of May 29, 2015, he was dispatched to an Inverness Forest
apartment in response to a request for “a welfare check.” Upon arrival, he entered
the unlocked door of the apartment. Inside, he saw the complainant laying, face
down, on the living room floor in “a large pool of . . . blood, dark fluid, around [her]
entire body.” She had “soft tissue disruption behind her neck” and her head,
“different parts of [her] neck and her shoulder had [blood] staining,” there were
blood and puncture wounds on her clothes, and Ortega could see “open soft tissue.”
Because the complainant did not show any signs of life, Ortega exited the apartment
for safety purposes. He then reported a possible stabbing or shooting and requested
that law enforcement officers come to the location. Due to the condition of the
complainant’s body, Ortega opined that she had been injured shortly before his
arrival.
Harris County Sheriff’s Office (“HCSO”) Crime Scene Unit Officer J. Ortiz
testified that he was dispatched to an Inverness Forest apartment on May 29, 2015
to investigate “a homicide involving [the complainant, who] was found in the living
room of [her] apartment, deceased.” The complainant had been talking on the
3
telephone with her daughter, Lorie Ann Foster, “when something occurred.” Lorie
Ann then called for emergency assistance to perform “a welfare check.”
Officer Ortiz noted that it appeared that the complainant’s body had not been
moved and there was “an amount of blood . . . gushing out from the sides of her
body.” She had “knife wounds,” lacerations, and cuts on her body and multiple
“defects” or tears in her clothing.4 Ortiz saw “stab wounds” on the complainant’s
upper back and “upper side of [her] neck,” and he opined that “all [of] the assault
[had] t[aken] place around [her] neck” and upper back. He further noted that her
arms were in “a defensive posture” and she had “defensive wounds” on her hands.
Ortiz opined that the complainant had been stabbed several times, the stabbings
indicated “a lot of anger” and “domestic violence,” and “something violent” had
occurred in the living room of her apartment. According to Ortiz, law enforcement
officers later recovered a knife from appellant after he had “[a]ttempted to commit
suicide” by “jump[ing] out in front of an 18-wheeler” truck. Although the truck
swerved and did not kill appellant, he was taken to a hospital following the incident.
Oak Ridge North Police Department Officer M. Teske testified that on May
29, 2015, he was dispatched to the feeder road of a highway in response to an
“auto/pedestrian accident.” Upon arrival, Teske saw appellant on the ground with
4
Officer Ortiz noted that the complainant was wearing denim which constitutes “a
real hard fabric to cut.”
4
“several people attending to him.” They had wrapped his arms in gauze, and he
appeared to be in severe pain. At one point, a knife was removed from appellant’s
pocket, and after Teske put the knife in his patrol car, appellant “became more
aggressive,” “flailing his legs and kicking . . . and trying to sit up.”
Officer Teske spoke to the driver of the truck in front of which appellant had
jumped. The driver stated that appellant had “walked across the feeder road to the
west side of” the road and “waited until the 18-wheeler [truck] came close.” He then
“dove out in front of [the truck,] head first with his arms outstretched.” Although
the driver of the truck had “swerve[d],” the “cab of the truck” hit appellant, and the
“back left tires” of the cab ran over his arms. Teske opined that appellant, by
jumping in front of the truck, had attempted to kill himself.
HCSO Officer A. Thompson testified that on May 29, 2015, he was
dispatched to an Inverness Forest apartment. Upon entering the apartment, he saw
the complainant “lying on the floor in a pool of blood.” The cause of her death
appeared to be “stab wounds.” Thompson noted that there were two knives missing
from the knife block in the kitchen of the apartment. And he opined that the scene
looked like a “personal type killing” that had happened fast and “with a lot of rage.”
Officer Thompson further testified that on the same day, appellant had “tried
to jump in front of an 18-wheeler [truck].” When Thompson visited him in the
hospital one or two days later, appellant was “still being treated for his injuries.” He
5
had a cast on his arm, “something in his mouth or nose,” and “an IV connected to
him.” Appellant, who could not pick up a glass of water, did not remember how he
had gotten to the hospital, and Thompson opined that he could have been medicated
while they spoke at the hospital. When Thompson told him that the complainant had
died, appellant did not express any emotion, but did state that he did not mean to kill
her.
Officer Thompson also noted that Lorie Ann had told him that she had learned
about a rumor that the complainant and another individual, “Dr. Harris,” were having
an affair at the time of her death. Lorie Ann, however, did not believe the rumor.
When Thompson spoke to appellant about the purported affair, he stated that the
complainant was “being treated by Dr. Harris,” and during “a visit,” she had
“hug[ged] him too long or kiss[ed] him.” Afterward, appellant confronted the
complainant and told her to “stop showing so much affection towards [Dr. Harris.]”
Appellant also disclosed to Officer Thompson that his family had been
neglecting him and the complainant had called him “the trash man,” telling him that
she “didn’t want to be anywhere around him.” And when he tried to show her
affection, “she would push him away.” She “paid more attention to [Dr. Harris] than
himself,” she was closer with Dr. Harris than himself, and he had previously seen
“photographs” on her cellular telephone. Appellant stated that he could not live
without the complainant and he had previously told her that “he could not see them
6
split[ting] apart.” And Thompson noted that Dr. Harris had admitted to the affair.
Thompson opined, thus, that appellant’s suspicions were in fact true.
Lorie Ann, who grew up in Jamaica, testified that appellant is her father, the
complainant was her mother, and they were married for approximately twenty-six
years. In 2010, the family moved to the United States, and in 2011, Lorie Ann and
the complainant moved to Houston, Texas so that she could attend high school.
Appellant then moved to Houston in 2013 or 2014.
In regard to the complainant, Lorie Ann testified that she “handl[ed] things
directly for the family” and was supportive of Lorie Ann’s education. She never
missed birthdays or anniversaries and celebrated those types of events with Lorie
Ann. The complainant had a bachelor’s of arts degree in economics, management,
and business, and she had a master’s degree in Human Resources. While the family
lived in Jamaica, the complainant, who was “[p]rimarily” responsible for paying for
the family’s housing, worked “as an administrator.” And when she moved to
Houston, she worked in Human Resources.
In regard to appellant, Lorie Ann testified that he was “less of a parent,” “[n]ot
a father figure” that she could “look up to,” and not a person from whom she could
seek advice. He was “selfish” with his time and his things, and he was not
emotionally or financially supportive of the family. Appellant had made clear that
he “would never leave [Lorie Ann] any financial help if he were to die” and “would
7
make sure that [she] suffer[ed].” Although he worked while the family lived in
Jamaica, he was not working at the time of the complainant’s death. And Lorie Ann
did not know whether appellant had ever been employed while he lived in Houston.
Lorie Ann further explained that appellant did show some enthusiasm in
regard to birthday celebrations, and she described him as an “intellectual individual”
who she could ask for help with her school work. She noted that he, at her college
graduation, had “pulled [her] aside” to ask her whether she thought that “he was a
good father.” And she opined that appellant felt “extremely guilty about his role as
a parent and a father.”
In regard to the events of May 29, 2015, Lorie Ann testified that at the time,
she was in Houston and staying with her brother, Antonio Foster. At 7:26 a.m., she
spoke to the complainant, who “sounded normal,” on the complainant’s cellular
telephone. “There was no argument in the background” and “no loud screaming.”
After a short time, the telephone call “dropped” or was disconnected. At 7:40 a.m.,
Lorie Ann received a “FaceTime”5 call from the complainant’s cellular telephone,
but the call “did not connect”; “[i]t did not [go] through.” She then “tried to call [the
complainant] back several times,” but did not get an answer. She also sent the
5
“FaceTime is an application that allows individuals to make video calls from
telephones.” Perone v. State, No. 14-12-00969-CV, 2014 WL 1481318, at *2 (Tex.
App.—Houston [14th Dist.] Apr. 15, 2014, no pet.) (mem. op., not designated for
publication) (footnote omitted).
8
complainant “several text messages” and called appellant’s cellular telephone. At
one point, in response to one of Lorie Ann’s calls, appellant answered the
complainant’s cellular telephone and stated that she was “okay.” He sounded “very
jittery, very nervous.” And because Lorie Ann “instinct[ively]” knew that
“something [was] wrong,” she called for emergency assistance to make “a welfare
check” at the complainant’s apartment. When Lorie Ann subsequently arrived at the
complainant’s apartment, she learned that appellant “had tried to kill himself.”
Lorie Ann opined that appellant had “thought about” killing the complainant
before he actually did so, he “planned what he was going to do,” and then he
“attempt[ed] to commit suicide” afterwards. And she further opined that he was
“extremely self[ish]” because he did not think about how killing the complainant
would affect his children.
On cross-examination, Lorie Ann testified that appellant had worked at Sugar
Industry Authority of Jamaica for twenty-five years. He had helped her with her
school work as a child, was present “in the house,” and went to her “track meets”
while she was in school. After the complainant’s death, appellant “signed a waiver”
to ensure that Lorie Ann and Antonio received “the money from [the complainant’s]
life insurance policy.” Lorie Ann conceded that she did not know what had
happened between her parents prior to her telephone call with the complainant on
9
May 29, 2015. And she did not know what had happened between appellant and the
complainant after her telephone call with the complainant had “dropped.”
Antonio testified that appellant is his father, the complainant was his mother,
and Lorie Ann is his sister. In regard to the complainant, he noted that she had a
“bachelor’s degree in business” and a master’s degree from the University of West
Indies in Jamaica. She met appellant approximately thirty years ago when he was
her math tutor, and they were married for twenty-five or twenty-six years. The
complainant was “very helpful” to Antonio, understanding “everything [that he] was
going through.” She supported Antonio in his school work, and she wanted him and
Lorie Ann to attend the best schools in Jamaica. And the complainant was “a strong
woman” and was diligent, hardworking, sociable, and well loved.
In regard to appellant, Antonio testified that he excelled in mathematics and
“ha[d] a diploma in land surveying” and a “bachelor’s degree in business
management from the University of West [I]ndies in Jamaica.” While Antonio was
growing up, appellant was “there,” but he was not as supportive as the complainant.
However, he would help Antonio with his school work and education, he
congratulated Antonio when he did well, and he supported Antonio in sports.
Appellant worked as “a quality inspector” at the Sugar Industry Authority of
Jamaica “[f]or as long as [Antonio] c[ould] remember.” He “made money,” and
when the complainant would “ask him for money,” “he would put some up.” But
10
Antonio did not “believe [that] he put [up] as much as he could.” When the family
needed to move to another community in Jamaica for Antonio and Lorie Ann to be
“closer to . . . school,” appellant did not financially support the move. But, when the
family moved to the United States from Jamaica, he was “okay with it.” For a period
of time, appellant went “back and forth from Jamaica to Houston” in order to “sort
out family assets and finances in Jamaica” before he moved to Houston permanently.
And he and the complainant seldom argued.
On cross-examination, Antonio testified that while he was growing up,
appellant provided for the family “[t]o the extent [that] he could” and he “did as
much as he could.” He helped Antonio with his school work and attended his
sporting events. When the family moved to a different community in Jamaica so
that Antonio and Lorie Ann could be closer to school, appellant “c[a]me around” to
the idea because he saw that it was good for his children. He also “help[ed] [the
complainant] figure out [how] to finish paying off the[ir] [new] house” following
the move. And appellant maintained the same job for twenty-five or thirty years.
Appellant also, at one point in time, helped Antonio move from Connecticut
to Houston. He visited Lorie Ann while she attended college in Denton, Texas. And
during the time that appellant went “back and forth” between Jamaica and Houston,
he would come to see the complainant. Antonio further noted that appellant had
only remained in Jamaica after the family had moved to the United States so that he
11
could continue working. When he moved to Houston, he had a “hard time adjusting”
and he “[p]retty much” gave up everything in his life in order to move. But,
appellant did have a pension from which he was paid an annuity, and upon moving
to Houston, he worked at a medical clinic, although he was eventually “laid off.”
And Antonio testified that appellant did sign a waiver to allow Lorie Ann and
himself to receive the money from the complainant’s life insurance policy.
Appellant testified that he was from Jamaica and had lived there his entire life
until 2014. He met the complainant in 1983 at a Christmas party, they married in
1990, and they had two children, Lorie Ann and Antonio. Appellant worked for the
Sugar Industry Authority of Jamaica as a factory inspector and “gradually moved up
in th[e] company.” From January to July, he would work seven days a week because
it was “crop time,” and during the remaining portion of the year, he would work five
days a week. Appellant earned money and “provided for” his family, which he
described as a “normal, loving family.”
In regard to his children, appellant testified that he had helped Lorie Ann and
Antonio with their “studies” and he “always wanted them to do well in school and
come out with a good education.” Appellant attended his children’s sporting events,
he always gave Lorie Ann and Antonio their monthly allowance, and he attended
Lorie Ann’s graduation from college. He loved Lorie Ann and Antonio “very much”
and is proud of them.
12
Appellant further explained that in 2010, he and the complainant decided to
move their family to the United States so that their children could have “a better
life.” However, for a period of time, he stayed in Jamaica to work so that both he
and the complainant were not looking for new employment at the same time. 6 And
during this time, appellant would come to visit twice a year, staying for several
months at a time.
In 2014, appellant moved to Houston, Texas, retiring from his job at the Sugar
Industry Authority of Jamaica after the complainant had encouraged him to do so.
He gave up his life and career to move to the United States for his children; however,
he “had no problem [with the idea of] moving” to Houston. After moving to
Houston, appellant worked as a medical coder and biller until February 2015 when
he was “laid off.” However, he began looking for new employment, and he
continued to maintain his qualification as a “certified . . . coder.”
In regard to Dr. Harris, appellant testified that he was the family’s doctor.
Beginning in 2014, appellant suspected that Dr. Harris and the complainant were
having an affair. Moreover, in the “early part of 2015,” appellant saw the
complainant “hugging” Dr. Harris “for minutes and minutes.” The hug was “more
than a goodbye hug” because of its “closeness and the length of time that it went on
for.” And Lorie Ann had informed appellant that the complainant and Dr. Harris
6
Appellant testified that the complainant did not find a job until 2014.
13
had an agreement that “if [Dr. Harris] . . . die[d], then [she] would take care of his
children,” and if the complainant died then Dr. Harris he would take care of Lorie
Ann and Antonio.
Before May 29, 2015, appellant had discussed with the complainant his
concerns about her and Dr. Harris having an affair, which she initially denied. And
on the morning of May 29, 2015, before the telephone call from Lorie Ann, appellant
and the complainant had another discussion about her purported affair with Dr.
Harris. Further, after she ended her telephone call with Lorie Ann, appellant again
asked her if she was having an affair with Dr. Harris. The complainant then told him
that “[y]es, [she was] having a[] [sexual] affair with him.” She explained that “the
reason [that] she had fibroids was because [appellant] was not sexing her properly”
and Dr. Harris and she engaged in sexual intercourse “to get rid of [her] fibroids.”
Upon hearing this, appellant “lost [his] mind” and became angry and resentful. He
picked up a hand weight and “went berserk.” He “just start[ed] flaying away, flaying
away wildly.” Appellant struck the complainant with the hand weight on her head,
and he “must have hit her hard” because she fell to the floor. He then picked up a
knife that was close by and stabbed her more than once.
According to appellant, he was in shock, “full of anger,” and “not thinking
straight” at the time. And he could not clearly remember what exactly had happened.
He explained that he had loved the complainant and was “very sorry” for what he
14
had done. She was a good mother, but he had felt betrayed by her affair with Dr.
Harris. Appellant admitted to having caused the eighteen stab wounds found on the
complainant’s body, although he stated that he “did not decide” to kill her.
Moreover, he could not recall what had happened to the knife that he had used to
stab her.
Appellant further testified that after he had stabbed the complainant, he left
the apartment and began driving in his car, “not knowing exactly where [he] was
going.” He said to himself, “I’ve hurt [the complainant]. I cannot continue to live
with this on me.” Eventually, appellant stopped his car because he was “going to
kill [him]self.” He “went out into the road” and “fell” in front of an “18-wheeler
[truck].” Appellant lost consciousness and did not regain it until he later awoke in
the hospital.
Appellant explained that he had never told the complainant that he could not
live without her, or if she left him, he would kill her. As a result of killing the
complainant, he had “lost everything,” i.e., his job, his house, and his children.
However, he understands why his children “have great anger towards” him.
On rebuttal, Lorie Ann testified that the complainant, a week before her death
in May 2015, had told her that she was not happy in her relationship with appellant
and she wanted a divorce. The complainant, who appeared “[c]autious,” then said
15
that she had told appellant these things. And he told the complainant that “he could
not live without her” and he “would kill her . . . if she tried to leave him.”
Lorie Ann also testified that appellant, at her college graduation, in May 2015,
had asked her whether she “thought that he was a good father.” He also told her that
“[h]e felt like he was being excluded from things,” Lorie Ann and Antonio preferred
speaking to the complainant over him, and the extended family viewed him “in a
negative light.” At the end of their conversation, appellant “said something about
like [y]ou are going to see.” And Lorie Ann “felt like he was alluding to . . . the
extended family,” but she “didn’t know what he [had] meant by that.”
On cross-examination, Lorie Ann explained that she did not tell anyone about
appellant’s statements that “he could not live without [the complainant]” or he
“would kill her . . . if she tried to leave him” until the first day of trial.
After the jury found him guilty and assessed his punishment at confinement
for life, appellant filed a motion for new trial, arguing, among other things, that he
did not receive effective assistance of counsel during the punishment phase of trial
because his trial counsel did not “investigate and present witnesses at punishment
who could have testified . . . about [appellant’s] exceptionally stable and
professional background, extensive education, peaceful character, [and] good
relationship with [the complainant]”; “investigate and present evidence
16
about . . . [appellant’s] mental health and his behavior in custody”; and “make
proper objections.”
Appellant attached to his motion, his sworn declaration,7 stating that his trial
counsel had “never talked to [him] about what witnesses to call” and if counsel had,
he would have “told him to call [his] niece [S]hantal Foster, [his] aunt Beverly
Brown, [his] brother Desmond Foster, [his] sister Elai[ne] Foster, [his] brother
Delroy Foster, Chaplain Edward Perez, and other friends and family.” According to
appellant, these individuals “would have testified that [he] ha[d] always lived a
peaceful, upstanding, professional life”; he had “an extensive education from the
University of West Indies and the University of Technology in Kingston”; he
“worked for the Sugar Industry Authority [of Jamaica] since 1987 where [he] was
promoted for [his] hard work”; and he and the complainant “always had a good
relationship.” Further, appellant explained that although his trial counsel did contact
Delroy and Shantal, counsel “did not try to call them to court.”
At the hearing on appellant’s new-trial motion, the trial court admitted into
evidence the affidavit of appellant’s trial counsel, in which he testified that in the
course of his representation of appellant, he “reviewed the [S]tate’s file to ensure
that [he had] received all discovery, including the offense report, [appellant’s]
7
At the hearing on appellant’s new-trial motion, the trial court admitted appellant’s
sworn declaration into evidence.
17
statement, witness statements, autopsy report, scene photos and video and DNA
reports.” Further, he “visited the crime scene” and “performed legal research.”
Counsel met with appellant “on . . . several occasions in court and in the Harris
County Jail to discuss what [he] expected the [S]tate to present, the allegations[,]
and [appellant’s] possible defenses.” And he also “spoke with possible witnesses
for both guilt[-]innocence and for possible punishment.”
Appellant’s trial counsel explained that appellant “discuss[ed] [his] case with
[counsel] and assist[ed] [counsel] with his defense.” He asked counsel “intelligent
questions about his case and the law” and “discussed his actions leading to his arrest,
the legal process[,] and legal points of law.” And counsel opined that appellant was
“competent to stand trial.”
In regard to the presentation of mitigation evidence at the punishment phase
of trial, appellant’s trial counsel testified that he had “inquired of [appellant] whether
he could provide [counsel] with any friends or relatives that could testify on his
behalf.” In response, appellant “did not provide any names or information or
possible witnesses.” He simply stated that because he was from Jamaica, “he did
not have anyone that could come or anyone in Texas that he knew that could testify
on his behalf.”
Appellant’s trial counsel further testified that he spoke with appellant’s
brother, Delroy, “on many occasions as well as [appellant’s] niece[,] [S]hantal.”
18
Although counsel “asked both [of them] if they or anyone else could testify for
[appellant],” “[t]hey were not able to testify or provide names” of any other potential
witnesses.
Appellant’s trial counsel had also spoken with appellant’s son, Antonio, and
“attempted to contact [appellant’s] daughter,” Lorie Ann. Antonio “came to
[counsel’s] office and [counsel] spoke with him on a number of occasions on the
phone.” “From these conversations [with Antonio] and conversations with
[appellant], [trial counsel] formulated the strategy to present evidence of mitigation
through [the testimony of] Antonio” and Lorie Ann. Through counsel’s questioning
of Antonio and Lorie Ann, during the punishment phase of trial, “evidence was
presented to the jury, that [appellant] was an integral part of his family’s life, . . . he
[had] graduated from college, . . . he [had] met his wife in college, . . . he [had]
attended his children’s extracurricular activities, . . . he [had] tutored [his]
children, . . . he was a hard and reliable worker, . . . he [had] provided for his
family[,] and . . . he was a part of his children’s li[ves] until he was incarcerated.”
The trial court also admitted into evidence the affidavit of Beverly Brown, in
which she testified that appellant is her nephew and they “ha[d] known each other
all of [their] lives.” When she heard about what had happened to the complainant,
she “found it unbelievable because [appellant was] always such a nice and calm
person” and “[h]e [would] never lose[] his temper and w[ould] not even shout or
19
raise his voice.” Beverly opined that appellant loved the complainant and his
children, “worked hard his whole life to provide for them,” and “made countless
sacrifices including leaving behind his country of Jamaica and everything [that] he
kn[ew] to move to the United States.” Although “[m]oving to America was
extremely difficult for [him],” “he did it for [the complainant] and [his] children.”
He was “always a loving dad and a good provider,” he “would never have
intentionally hurt his family,” and the killing of the complainant “could not have
been planned because [appellant had] devoted his whole life to building his family.”
According to Beverly, appellant’s trial counsel did not contact her to testify
or to “provide a written deposition on his behalf at his trial.” And she was not
“informed that [she] would have been reimbursed for travel to testify at [appellant’s]
trial,” which “she would have been more than happy to do if asked.”
The trial court also admitted into evidence the affidavit of Elaine, in which
she testified that she is appellant’s sister and was “in charge of him growing up.”
She “would take him to school” and “help care for him.” They had a “close family,”
their parents were married, and their family members were “all educated and
productive members of society.”
Elaine explained that appellant “ha[d] always been calm and stable.” After
high school, “he did a one-year internship at the regional hospital before attending
the University of West Indies where he met” the complainant. Appellant had “a
20
successful, permanent career with Jamaica’s Sugar Industry Authority,” owned a
“family home in a gated community,” and “sent his children to good private
schools.” He was “a very generous man,” and one time, when he had “sold a house,
a large portion of the proceeds were given to another member of the family who
needed funds to open a restaurant.” Appellant “always provided financially for his
family and shared in the work for the household.” He was “in charge of going to the
supermarket and working with the kids on their schoolwork.” When appellant was
away from his family, he “would spend a lot of time on the phone with his family,”
and he would “sit and help [Lorie Ann] with her homework over the phone.”
Moreover, appellant had “always t[aken] his family out on trips sometimes
overseas.” He “took them to cricket matches, school functions[,] and Disney
World.” Appellant was “always trying to bond and . . . was very gentle and polite.”
And Elaine had never “heard him raise his voice to his family.” She opined that
appellant, the complainant, and their children were “so close.” On one occasion
when appellant’s family came to visit her, the family did not want to stay in separate
rooms “so they all piled into one bed and the bed collapsed.”
According to Elaine, she was never contacted by appellant’s trial counsel. She
“would have been more than willing to provide testimony by a deposition and [she]
would have made every effort to come to the United States for the trial.” She and
appellant’s brother, Delroy, “came to America to see [appellant] and attend [the
21
complainant’s] funeral.” And they “waited for hours in the jail before being turned
away.”
In his affidavit, admitted into evidence by the trial court, Ludlow Brown
testified that appellant was his colleague and friend for more than twenty-seven
years. “As the Development and Training Officer for the Sugar Industry Authority
of Jamaica, [he had] supervised [appellant] and . . . chosen him from among many
candidates to be promoted to [his] position when [he] retired.” Appellant received
the promotion due to “his knowledge and expertise” and because “he always kept
his cool and had a warm and friendly nature.”
Ludlow explained that as part of his job, appellant participated in “critique
sessions with management” during which “people had to criticize each other,
sometimes harshly.” Appellant “stood out because he never lost his cool” and
“always remained calm.” And he had the “right” personality for the job.
Ludlow was “totally shock[ed]” when he “learn[ed] what [had] happened to
[the complainant] because it was so out of character for [appellant].” “In
twenty[-]seven years of knowing and working closely with [appellant], [Ludlow]
ha[d] never seen [him] lose his temper or act aggressively.” Appellant was “always
well[-]liked and respected by . . . colleagues.”
Ludlow noted that he had written “a character reference letter on [appellant’s]
behalf,” the letter was dated June 11, 2015, and appellant’s brother, Delroy,
22
“provided it to [appellant’s] lawyer.” However, Ludlow “never heard from [a]
lawyer even though [the letter] had all of [his] contact information.” And, “[i]f [he]
had been asked to come testify or to provide a deposition, [he] would have been
more than willing.”
In her affidavit, admitted into evidence by the trial court, Roxanne Shantal
Foster (“Shantal”) testified that she is appellant’s niece. She was “completely
shocked when [she] heard what [had] happened because [appellant was] not the type
of person to do anything wrong like th[at].” “[H]e is a very nice and kind person.”
And “[w]henever [they] had family visits, everyone was excited to jump in his car
because they knew [that appellant] would be the one to take [them] fun places.”
Appellant took her “to the beach or to have ice cream.” “Family was very important
to [appellant] and he was always there for [his family].” When Shantal moved to
the United States, appellant was her “main support system.” “He was the person
[that she] would call for help with any family or financial issue[,] and [appellant had]
never failed to make sure [that she] got whatever assistance [that she] needed.”
Moreover, Shantal knew that she “could count on him.”
When Shantal found out what had happened to the complainant, she
“research[ed] attorneys online and contacted [appellant’s trial counsel].” She then
“turned him over to . . . [appellant’s brother,] Delroy[,] . . . to be retained.”
Although Shantal spoke on the telephone with appellant’s trial counsel two times,
23
he “never asked [her] any questions about [appellant] or his background or said
anything about testifying or coming to trial.” Shantal “would have traveled to
Houston to testify.” And “[i]f [she] had known that [she] could have provided a
deposition or been reimbursed for travel to testify at [appellant’s] trial, [she] also
would have gladly done so.”
The trial court also admitted into evidence, appellant’s education records from
Houston Community College, showing the courses that he had taken at the Harris
County Jail; “classification records” from the Harris County Jail; appellant’s medical
records from the Harris County Jail; an affidavit from an employee with the HCSO,
stating that there were no “Jail Disciplinary Records” for appellant; and the June 11,
2015 “Character Reference” letter from Ludlow.8
After admitting evidence and hearing argument, the trial court denied
appellant’s new-trial motion, stating:
[T]he Court having carefully considered the arguments of counsel and
all the affidavits, I have to say you guys have done an excellent job.
However, I was there and present during the trial. I thought [appellant’s
trial counsel] did an excellent job and seemed very well-prepared. I
have given his affidavit high credibility in regards to the witnesses, that
he was not given the names of witnesses, and the ones that he did speak
with were not able to testify.
8
The trial court also admitted into evidence several exhibits for the State.
24
Ineffective Assistance
In his second issue, appellant argues that his trial counsel did not provide him
with effective assistance during the punishment phase of trial because he did not
investigate and present mitigating evidence or object to certain hearsay testimony of
Lorie Ann.
The Sixth Amendment to the United States Constitution guarantees the right
to the reasonably effective assistance of counsel in criminal prosecutions. Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see U.S. CONST. amend. VI. To
prove a claim of ineffective assistance of counsel, appellant must show that (1) his
trial counsel’s performance fell below an objective standard of reasonableness and
(2) there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694,
104 S. Ct. at 2068. In reviewing counsel’s performance, we look to the totality of
the representation to determine the effectiveness of counsel, indulging a strong
presumption that counsel’s performance falls within the wide range of reasonable
professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,
482–83 (Tex. Crim. App. 2006).
25
Appellant has the burden to establish both prongs of Strickland by a
preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.
App. 1998). “An appellant’s failure to satisfy one prong of the Strickland test
negates a court’s need to consider the other prong.” Williams v. State, 301 S.W.3d
675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697, 104 S. Ct. at
2069. We apply the same two-prong Strickland standard of review to claims of
ineffective assistance of counsel during both the guilt and punishment phases of trial.
Hernandez v. State, 988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999).
Appellant presented his ineffective-assistance claim to the trial court in a
motion for new trial and received a hearing on his motion. We, therefore, analyze
his issue under an abuse of discretion standard as a challenge to the denial of his
new-trial motion. Biagas v. State, 177 S.W.3d 161, 170 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d). We view the evidence in the light most favorable to the trial
court’s ruling and uphold the trial court’s ruling if it is within the zone of reasonable
disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do
not substitute our judgment for that of the trial court, but rather decide whether the
trial court’s decision was arbitrary or unreasonable. Webb v. State, 232 S.W.3d 109,
112 (Tex. Crim. App. 2007); Biagas, 177 S.W.3d at 170. If there are two permissible
views of the evidence, the trial court’s choice between them cannot be held to be
clearly erroneous. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). A
26
trial court abuses its discretion in denying a motion for new trial only when no
reasonable view of the record could support the trial court’s ruling. Webb, 232
S.W.3d at 112.
We note that a trial court is in the best position to “evaluate the credibility” of
witnesses and resolve conflicts in evidence. See Kober v. State, 988 S.W.2d 230,
233 (Tex. Crim. App. 1999). And a trial court may choose to believe or disbelieve
all or any part of a witnesses’ testimony. See id. at 234. We “impute implicit factual
findings that support the trial judge’s ultimate ruling on th[e] [new-trial] motion
when such implicit factual findings are both reasonable and supported in the record.”
Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005) (internal quotations
omitted); see also Escobar v. State, 227 S.W.3d 123, 127 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d).
Mitigating Evidence
Appellant first asserts that his trial counsel did not properly investigate and
present mitigating evidence and his strategy of “relying on [his] cross-examination
of [the] [S]tate’s witnesses” for mitigation evidence was “[i]rrational.”
In order to prevail on his ineffective-assistance-of-counsel claim, appellant
must first show that his trial counsel’s performance fell below an objective standard
of reasonableness when considering prevailing professional norms. Strickland, 466
U.S. at 687–88, 104 S. Ct. at 2064; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
27
App. 2002). There is a strong presumption that counsel’s conduct fell within the
wide range of reasonable professional assistance and the challenged action could be
considered to have been prompted by sound trial strategy. Strickland, 466 U.S. at
689, 104 S. Ct. at 2065; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004);
Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). That another attorney,
including appellant’s counsel on appeal, might have pursued a different course of
action does not necessarily indicate ineffective assistance. Hawkins v. State, 660
S.W.2d 65, 75 (Tex. Crim. App. 1983); Hall v. State, 161 S.W.3d 142, 152 (Tex.
App.—Texarkana 2005, pet. ref’d).
In considering whether trial counsel conducted an adequate investigation for
potential mitigating evidence and failed to present mitigating evidence, we focus on
whether the investigation supporting counsel’s decision not to introduce mitigating
evidence was reasonable. Wiggins v. Smith, 539 U.S. 510, 522–23, 123 S. Ct. 2527,
2536 (2003); Goody v. State, 433 S.W.3d 74, 80 (Tex. App.—Houston [1st Dist.]
2014, pet. ref’d). “While ‘Strickland does not require counsel to investigate every
conceivable line of mitigating evidence,’ ‘counsel can . . . make a reasonable
decision to forego presentation of mitigating evidence [only] after evaluating
available testimony and determining that it would not be helpful.’” Goody, 433
S.W.3d at 80–81 (alterations in original) (quoting Wiggins, 539 U.S. at 533, 123 S.
Ct. at 2541; Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.—Houston [14th Dist.]
28
2000, pet. ref’d)). An attorney’s decision not to investigate or to limit the scope of
the investigation is given a “heavy measure of deference” and assessed in light of all
circumstances to determine whether reasonable professional judgment would
support the decision. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. However, a
failure to uncover and present mitigating evidence cannot be justified if counsel has
not conducted a thorough investigation of the defendant’s background. Shanklin v.
State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d,
improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007); see also Gonzalez
v. State, No. 01-12-01115-CR, 2014 WL 7205145, at *4 (Tex. App.—Houston [1st
Dist.] Dec. 18, 2014, pet. ref’d) (mem. op., not designated for publication).
Here, the evidence presented to the trial court at the new-trial hearing shows
that appellant’s trial counsel, in the course of his representation of appellant,
“reviewed the [S]tate’s file to ensure that [he had] received all discovery, including
the offense report, [appellant’s] statement, witness statements, autopsy report, scene
photos and video and DNA reports.” Further, he “visited the crime scene” and
“performed legal research.” Counsel met with appellant “on . . . several occasions
in court and in the Harris County Jail to discuss what [he] expected the [S]tate to
present, the allegations[,] and [appellant’s] possible defenses.” And counsel “spoke
with possible witnesses for both guilt[-]innocence and for possible punishment.”
29
In regard to the presentation of mitigation evidence specifically, appellant’s
trial counsel “inquired of [appellant] whether he could provide [counsel] with any
friends or relatives that could testify on his behalf.” However, appellant, in
response, “did not provide any names or information or possible witnesses.” He
simply stated that because he was from Jamaica, “he did not have anyone that could
come or anyone in Texas that he knew that could testify on his behalf.” See
Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (“[W]hen a defendant has given
counsel reason to believe that pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those investigations may not later be
challenged as unreasonable.”).
Notably, appellant’s trial counsel did speak to appellant’s brother, Delroy, “on
many occasions as well as [appellant’s] niece[,] [S]hantal.” Although counsel
“asked both [of them] if they or anyone else could testify for [appellant],” “[t]hey
were [not] able to testify or provide names” of any other potential witnesses to testify
on appellant’s behalf.
Appellant’s trial counsel also spoke with appellant’s son, Antonio, and
“attempted to contact [appellant’s] daughter,” Lorie Ann. Antonio actually “came
to [counsel’s] office and [counsel] spoke with him on a number of occasions on the
phone.” “From [his] conversations [with Antonio] and conversations with
[appellant], [trial counsel] formulated the strategy to present evidence of mitigation
30
through [the testimony of] Antonio and” Lorie Ann. Through his questioning of
Antonio and Lorie Ann during the punishment phase of trial, trial counsel presented
evidence to the jury “that [appellant] was an integral part of his family’s life, . . . he
[had] graduated from college, . . . he [had] met his wife in college, . . . he [had]
attended his children’s extracurricular activities, . . . he [had] tutored [his]
children, . . . he was a hard and reliable worker, . . . he [had] provided for his
family[,] and . . . he was a part of his children’s li[ves] until he was incarcerated.”
The decision of whether to present certain witnesses at trial is largely a matter
of trial strategy. Shanklin, 190 S.W.3d at 164; Weisinger v. State, 775 S.W.2d 424,
427 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d) (holding it is trial counsel’s
prerogative, as a matter of trial strategy, to decide which witnesses to call). And
“[t]he decision not to call witnesses at the punishment phase is a tactical maneuver
and may, in certain instances, be a wise procedural move.” See Briones v. State, No.
01-14-00121-CR, 2016 WL 2944274, at *13 (Tex. App.—Houston [1st Dist.] May
19, 2016, no pet.) (mem. op., not designated for publication) (internal quotations
omitted); see also Moore v. State, 700 S.W.2d 193, 206 (Tex. Crim. App. 1985)
(decision not to call witnesses at punishment stage of capital murder trial not
ineffective assistance of counsel).
Appellant’s trial counsel investigated potential witnesses and potential
mitigation evidence to be used during the punishment phase of trial, and based on
31
his investigation, counsel determined that the best trial strategy would be to elicit
mitigation evidence through the testimony of appellant’s two children. See
Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (“The reasonableness of counsel’s
actions may be determined or substantially influenced by the defendant’s own
statements or actions. Counsel’s actions are usually based, quite properly, on
informed strategic choices made by the defendant and on information supplied by
the defendant.”); cf. Milburn, 15 S.W.3d at 270 (“[Defendant’s] trial counsel
performed no investigation [of] any possible mitigating factors and failed to contact
even a single family member or friend, despite the availability of such mitigation
evidence.”). Trial counsel also presented mitigation evidence through his direct
examination of appellant, and he then explained the mitigation evidence during his
closing argument to the jury. See, e.g., Garza v. State, No. 05-93-00458-CR, 1996
WL 29308, at *4 (Tex. App.—Dallas Jan. 23, 1999, no pet.) (not designated for
publication) (trial counsel utilized direct examination of defendant as means to
mitigate and encourage assessment of lighter sentence); see also Ford v. State, No.
01-09-00981-CR, 2011 WL 4925975, at *3 (Tex. App.—Houston [1st Dist.] Oct.
13, 2011, no pet.) (mem. op., not designated for publication) (defendant did not
establish trial counsel’s performance fell below objective standard of reasonableness
where counsel “attempt[ed] to present mitigation evidence in cross-examination”
and then emphasized mitigation evidence during closing argument); Enriquez v.
32
State, Nos. 05-95-00690-CR, 05-95-00744-CR, 1997 WL 196358, at *3–4 (Tex.
App.—Dallas Apr. 23, 1997, no pet.) (not designated for publication) (trial counsel’s
performance not deficient where counsel elicited mitigation evidence in his
cross-examination of State’s witnesses and his direct examination of defendant and
“forcefully argued th[e] mitigating evidence” to trier of fact).
We note that appellant’s new-trial evidence consisted of his sworn
declaration, stating that his trial counsel “never talked to [him] about what witnesses
to call,” and the affidavits of several friends and family members, stating that they
may have been willing to testify on his behalf on matters related to his education,
professional career, positive attributes, and the closeness of his familial
relationships.9 However, a trial court is under no obligation to accept as true
testimony, even if unrebutted, offered at a hearing on a motion for new trial. See
Gaston v. State, 136 S.W.3d 315, 322 (Tex. App.—Houston [1st Dist.] 2004, pet.
struck); Messer v. State, 757 S.W.2d 820, 828 (Tex. App.—Houston [1st Dist.] 1988,
pet. ref’d).
9
At the new-trial hearing, appellant presented other mitigation evidence that
described him as a non-violent, kind, educated, and hard-working individual. This
evidence included his Harris County Jail records, showing a lack of disciplinary
records, his education records from Houston Community College, showing a
continued interest in education, and a “Character Reference” letter from his
colleague, Ludlow, describing him as a polite, well-mannered, warm,
knowledgeable, and good-natured individual.
33
Further, to the extent that appellant asserts that it was “[i]rrational” for his trial
counsel to present mitigation evidence through the testimony of his children, Lorie
Ann and Antonio, the mere fact that another attorney may have employed a different
strategy, does not render trial counsel’s assistance ineffective. Matthews v. State,
830 S.W.2d 342, 347 (Tex. App.—Houston [14th Dist.] 1992, no pet.); see also
Hawkins, 660 S.W.2d at 75. And the presentation of mitigation evidence through
the cross-examination of the State’s witnesses may constitute a valid tactical
decision, depending on the circumstances of a given case. See, e.g., Toledo v. State,
519 S.W.3d 273, 288 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (trial counsel
presented mitigation evidence by cross-examining State’s witness); Ford, 2011 WL
4925975, at *3 (defendant did not establish trial counsel’s performance fell below
objective standard of reasonableness where counsel “attempt[ed] to present
mitigation evidence in cross-examination”); Whitaker v. State, No.
09-09-00246-CR, 2010 WL 2541863, at *3 (Tex. App.—Beaumont June 23, 2010,
no pet.) (mem. op., not designated for publication) (trial counsel, through
cross-examination, attempted to present mitigation evidence); Enriquez, 1997 WL
196358, at *3–4 (trial counsel’s performance not deficient where he elicited
mitigation evidence through his cross-examination of State’s witnesses).
During trial counsel’s cross-examinations of Lorie Ann and Antonio, the jury
heard evidence that appellant was present in the home while his children were
34
growing up. He helped them with their school work and attended their
extracurricular activities, including their sporting events. Appellant maintained the
same job for twenty-five or thirty years, provided for his family, and “did as much
as he could.” He made sacrifices in his life for the good of his children, and although
he remained in Jamaica for a time after his family moved to the United States, he
did so only to continue working.
Moreover, when appellant moved to Houston, he “[p]retty much” gave up
everything in his life. And even though he was eventually “laid off,” which is why
he was not working at the time of the complainant’s death, he initially worked at a
medical clinic after moving to Houston. Additionally, following the complainant’s
death, appellant signed a waiver to ensure that Lorie Ann and Antonio received the
money from her life insurance policy. And much of the mitigation evidence elicited
by appellant’s trial counsel during cross-examination paralleled and supported
appellant’s own testimony on direct examination.
Further, to the extent that appellant relies on Frangias v. State in support of
his argument that because his trial counsel “fail[ed] to pursue deposition testimony
of . . . potential defense witness[es],” his performance was deficient, appellant’s
reliance is misplaced. 450 S.W.3d 125, 127, 137–41 (Tex. Crim. App. 2013) (trial
counsel’s failure to secure deposition testimony of “a critical witness [for the
defense] at the guilt phase of trial” constituted deficient performance; witness was
35
“the only witness who could directly corroborate the [defendant’s] account”; and
testimony would have been exculpatory). And to the extent that appellant argues in
his brief that his trial counsel’s representation was deficient because he did not
“present [additional] evidence” apart from appellant’s own testimony on direct
examination “that after he was laid off from his medical coding job[,] he took
continuing education classes to maintain and improve his coding credential[s] while
looking for a new job,” we note that he provides no support for his assertion that
mitigation evidence beyond that elicited by counsel through his direct examination
of appellant was required. See TEX. R. APP. P. 38.1(i); see also Enriquez, 1997 WL
196358, at *3–4; Garza, 1996 WL 29308, at *4.
Here, we are not faced with a situation where appellant’s trial counsel failed
to uncover and present mitigating evidence because he did not conduct a thorough
investigation of appellant’s background. Cf. Shanklin, 190 S.W.3d at 164–65;
Milburn, 15 S.W.3d at 270 (“[Defendant’s] trial counsel performed no investigation
of any possible mitigating factors and failed to contact even a single family member
or friend, despite the availability of such mitigation evidence.”). Thus, based on the
foregoing, we cannot conclude that the performance of appellant’s trial counsel fell
below an objective standard of reasonableness. Accordingly, we hold that appellant
has not shown that his trial counsel’s performance was deficient on the ground that
counsel did not investigate and present mitigating evidence or because his decision
36
to “rely[] on [his] cross-examination of” Lorie Ann and Antonio to present
mitigating evidence was “[i]rrational.”10
We overrule this portion of appellant’s second issue.
Hearsay Objection
Appellant next asserts that his trial counsel did not properly raise a hearsay
objection to Lorie Ann’s rebuttal testimony that the complainant “had told her [that]
appellant had threatened to kill her if she left him.” See TEX. R. EVID. 801(d), 802.
In his new-trial motion, appellant included a single sentence in which he
asserted that his trial counsel did not “make proper objections.” However, appellant
did not, in either his new-trial motion or at the hearing on his motion, assert that his
trial counsel did not provide him with effective assistance of counsel because he did
not object to Lorie Ann’s rebuttal testimony on the basis of hearsay. Thus, appellant
10
Because appellant has not shown that his trial counsel’s performance was deficient,
we need not determine whether appellant was prejudiced by his trial counsel’s
actions. See Williams v. State, 301 S.W.3d 657, 687 (Tex. Crim. App. 2009); see
also Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984);
Mallett v. State, 65 S.W.3d 59, 68 (Tex. Crim. App. 2001). We note that appellant,
in passing in his brief, argues that his trial counsel did not render effective assistance
during the punishment phase of trial because counsel did not “examine records” of
appellant’s “mental and physical health problems,” which would have shown “his
human suffering after having killed his wife.” However, appellant does not assert
that he was prejudiced by his counsel’s purported failure. See TEX. R. APP. P.
38.1(i); McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001)
(inadequately briefed issue may be waived on appeal); see also Bessey v. State, 199
S.W.3d 546, 555–56 (Tex. App.—Texarkana 2006) (overruling
ineffective-assistance claim as inadequately briefed because defendant made no
effort to demonstrate how his counsel’s alleged deficiencies prejudiced his defense),
aff’d, 239 S.W.3d 809 (Tex. Crim. App. 2007).
37
has raised his complaint about his trial counsel’s failure to raise a hearsay objection
for the first time on appeal.
Generally, a silent record that provides no explanation for trial counsel’s
actions will not overcome the strong presumption of reasonable assistance.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In the rare case
in which trial counsel’s ineffectiveness is apparent from the record, an appellate
court may address and dispose of the claim on direct appeal. Lopez, 343 S.W.3d at
143. However, the record must demonstrate that counsel’s performance fell below
an objective standard of reasonableness as a matter of law and no reasonable trial
strategy could justify trial counsel’s acts or omissions, regardless of counsel’s
subjective reasoning. Id.As previously noted, in order to prevail on his
ineffective-assistance-of-counsel claim, appellant must first show that his trial
counsel’s performance fell below an objective standard of reasonableness when
considering prevailing professional norms. Strickland, 466 U.S. at 687–88, 104 S.
Ct. at 2064; Bone, 77 S.W.3d at 833. And there is a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance
and the challenged action could be considered to have been prompted by sound trial
strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Ex parte White, 160 S.W.3d
at 51; Tong, 25 S.W.3d at 712.
38
Here, the record is silent as to why appellant’s trial counsel did not make a
hearsay objection to Lorie Ann’s rebuttal testimony that the complainant “had told
her [that] appellant had threatened to kill her if she left him.” See Menefield v. State,
363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (“An ineffective-assistance claim must
be firmly founded in the record and the record must affirmatively demonstrate the
meritorious nature of the claim.” (internal quotations omitted)); Rylander v. State,
101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (“[T]rial counsel should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective.”); Bone, 77 S.W.3d at 835 (“Ineffective assistance of counsel claims are
not built on retrospective speculation; they must be firmly founded in the record.”
(internal quotations omitted)). Absent contrary evidence, we will not second-guess
the strategy of appellant’s counsel at trial through hindsight. Garcia, 57 S.W.3d at
440 (“[I]n the absence of evidence of counsel’s reasons for the challenged conduct,
an appellate court commonly will assume a strategic motivation if any can possibly
be imagined.” (internal quotations omitted)); Blott v. State, 588 S.W.2d 588, 592
(Tex. Crim. App. 1979) (“This Court will not second-guess through hindsight the
strategy of counsel at trial nor will the fact that another attorney might have pursued
a different course support a finding of ineffectiveness.”).
Thus, we presume that counsel was acting pursuant to a sound trial strategy.
See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (where record
39
silent as to why trial counsel did not object to hearsay, defendant failed to rebut
presumption counsel’s decision reasonable); Crocker v. State, 441 S.W.3d 306, 315
(Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (“Because the record is silent
concerning counsel’s reasons for not objecting, we must presume counsel had a valid
strategy.”); Williams v. State, 309 S.W.3d 124, 132 (Tex. App.—Texarkana 2010,
pet. ref’d) (“Here, since the record is silent as to why trial counsel failed to object to
this testimony, we will assume it was due to any strategic motivation that can be
imagined.”).
Accordingly, in the absence of a record reflecting why appellant’s trial
counsel did not make a hearsay objection to Lorie Ann’s rebuttal testimony that the
complainant “had told her [that] appellant had threatened to kill her if she left him,”
we hold that appellant has failed to rebut the presumption that trial counsel’s decision
was reasonable. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)
(appellate court may not conclude, based on speculation, counsel ineffective when
record silent about why he made decisions at trial); see also Miles v. State, No.
01-11-00401-CR, 2012 WL 2357449, at *4 (Tex. App.—Houston [1st Dist.] June
21, 2012, no pet.) (mem. op., not designated for publication) (“In the absence of a
record reflecting why [defendant]’s counsel did not object, we hold that the record
does not firmly establish deficient performance.”); Gamble v. State, 916 S.W.2d 92,
93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (unable to conclude trial counsel’s
40
performance deficient where record silent as to counsel’s reasons for not objecting
to inadmissible hearsay). We further hold that the professional error, if any, was not
so outrageous that no competent attorney would have engaged in it. See Menefield,
363 S.W.3d at 593; see also Miles, 2012 WL 2357449, at *4.
We overrule this portion of appellant’s second issue.
Jury Charge Error
In his first issue, appellant argues that the trial court erred in not sua sponte
instructing the jury during the punishment phase of trial on the proper burden of
proof for an extraneous offense or bad act because the State introduced evidence,
through the rebuttal testimony of Lorie Ann, that he had “made [a] threat to kill” the
complainant, such testimony constituted evidence of an extraneous offense or bad
act, and he was egregiously harmed by the omission of the reasonable-doubt
instruction. See TEX. CODE CRIM. PROC. Ann. art. 37.07, § 3(a)(1) (Vernon Supp.
2018). In response, the State asserts that Lorie Ann’s testimony about appellant’s
“threat” did not constitute evidence of an extraneous offense or bad act.
In regard to the admissibility of evidence of extraneous offenses and bad acts
in non-capital cases during the punishment phase of trial:
[E]vidence may be offered by the [S]tate and the defendant as to any
matter the court deems relevant to sentencing, including but not limited
to the prior criminal record of the defendant, his general reputation, his
character, an opinion regarding his character, the circumstances of the
offense for which he is being tried, and, notwithstanding Rules 404 and
405, Texas Rules of Evidence, any other evidence of an extraneous
41
crime or bad act that is shown beyond a reasonable doubt by evidence
to have been committed by the defendant or for which he could be held
criminally responsible, regardless of whether he has previously been
charged with or finally convicted of the crime or act.
Id. (emphasis added); see also Huizar v. State, 12 S.W.3d 479, 483–84 (Tex. Crim.
App. 2000) (article 37.07, section 3(a)(1) governs admissibility of evidence at
punishment phase in all non-capital cases). While extraneous-offense and bad-act
evidence is generally admissible under article 37.07, section 3(a)(1), the jury may
not consider such evidence in assessing punishment unless it first concludes beyond
a reasonable doubt that the defendant committed the offenses or acts. See TEX. CODE
CRIM. PROC. ANN. art. 37.07, § 3(a)(1); see also Huizar, 12 S.W.3d at 484; Fields v.
State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999); Burks v. State, 227 S.W.3d 138,
149–50 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). When a jury determines
beyond a reasonable doubt that the defendant committed the extraneous offense or
bad act, it may then use the evidence however it chooses in assessing punishment.
Huizar, 12 S.W.3d at 484; Fields, 1 S.W.3d at 688; Burks, 227 S.W.3d at 150.
When evidence of an extraneous offense or bad act is admitted during the
punishment phase of a trial, the trial court must instruct the jury that the evidence
may only be considered if the State proves the commission of the extraneous offense
or bad act beyond a reasonable doubt. See TEX. CODE CRIM. PROC. ANN. art. 36.14
(Vernon 2007) (trial court shall instruct jury on law applicable to case); Huizar, 12
S.W.3d at 483–84 (article 37.07, section 3(a)(1) constitutes law applicable to
42
non-capital punishment cases and trial courts must sua sponte instruct juries on
reasonable-doubt standard); Burks, 227 S.W.3d at 150.
Here, Lorie Ann, on rebuttal, testified that the complainant, a week before her
death in May 2015, told her that she was not happy with her relationship with
appellant and she wanted a divorce. The complainant also stated that, after she had
told appellant these things, he told her that “he could not live without her” and he
“would kill her . . . if she tried to leave him.”
Statements made by a defendant about anticipated acts constitute mere
inchoate thoughts and do not constitute evidence of an extraneous offense or bad act
that would require the trial court to instruct the jury pursuant to article 37.07, section
3(a)(1). See Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993)
(defendant’s statements about “his desire to kidnap and kill [a certain individual] did
not establish prior misconduct”); see also Massey v. State, 933 S.W.2d 141, 153–54
(Tex. Crim. App. 1996) (defendant’s statement “[t]hat he’d like to kill them”
“pertained to [his] thoughts” and did not constitute extraneous offense or bad act);
Phillips v. State, No. 10-15-00077-CR, 2016 WL 4399975, at *4 n.4 (Tex. App.—
Waco Aug. 17, 2016, pet. ref’d) (mem. op., not designated for publication)
(defendant’s “expression of his desire to have [two people] . . . killed” constituted
inchoate thoughts); Burks v. State, 227 S.W.3d 138, 149 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d) (defendant’s statements about planned future crimes, wrongs,
43
or acts constitute mere inchoate thoughts not extraneous offense or bad act); Burris
v. State, Nos. 01-95-00061-CR to 01-95-00063-CR, 1995 WL 783035, at *1 n.2
(Tex. App.—Houston [1st Dist.] Jan. 11, 1996, pet. ref’d) (not designated for
publication) (“Mere thoughts of committing a bad act in the future do not constitute
an extraneous act . . . . They are mere inchoate thoughts.”). Accordingly, we hold
that the trial court did not err in not sua sponte instructing the jury during the
punishment phase of trial on the burden of proof for an extraneous offense or bad
act. See TEX. CODE CRIM. PROC. Ann. art. 37.07, § 3(a)(1).
We overrule appellant’s first issue.
Admission of Evidence
In his third issue, appellant argues that the trial court erred in admitting Lorie
Ann’s rebuttal testimony that the complainant “had told her [that] appellant had
threatened to kill her if she left him” because such testimony constituted evidence of
an extraneous offense or bad act, the State did not provide notice of its intent to
introduce this evidence of an extraneous offense or bad act, and he did not “‘open[]
the door’ to the evidence.”11 See id. art. 37.07, § 3(a)(1), (g).
We review a trial court’s decision to admit evidence for an abuse of discretion.
See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). A trial court
11
We note that appellant has not argued on appeal that the trial court erred in admitting
Lorie Ann’s rebuttal testimony because it constituted hearsay. See TEX. R. EVID.
801(d), 802.
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abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990). When considering a trial court’s decision to admit evidence, we will
not reverse the trial court’s ruling unless it falls outside the “zone of reasonable
disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal
quotations omitted). We will uphold a trial court’s evidentiary ruling if it is correct
on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336,
344 (Tex. Crim. App. 2009).
As noted above, during the punishment phase of trial, evidence as to any
matter deemed relevant to sentencing may be admitted, including evidence of an
extraneous offense or bad act shown beyond a reasonable doubt to have been
committed by the defendant. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1); see
also Rodriguez v. State, 546 S.W.3d 843, 862 (Tex. App.—Houston [1st Dist.] 2018,
no pet.). Article 37.07, however, includes a notice provision, stating: “On timely
request of the defendant, notice of intent to introduce evidence under [article 37.07]
shall be given in the same manner required by Rule 404(b), Texas Rules of
Evidence.” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g). Rule 404(b) requires
the State to “provide reasonable notice before trial that [it] intends to introduce such
evidence—other than that arising in the same transaction—in its case-in-chief.”
TEX. R. EVID. 404(b); see Worthy v. State, 312 S.W.3d 34, 37 (Tex. Crim. App.
45
2010). This notice requirement prevents surprise. Hayden v. State, 66 S.W.3d 269,
272 (Tex. Crim. App. 2001); Gonzalez v. State, 337 S.W.3d 473, 485 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d).
Here, Lorie Ann, on rebuttal,12 testified that the complainant, a week before
her death in May 2015, stated that she had told appellant that she was not happy and
wanted a divorce. And, in response, appellant told the complainant that “he could
not live without her” and he “would kill her . . . if she tried to leave him.” As
previously noted, statements made by a defendant about an anticipated act constitute
inchoate thoughts and do not constitute evidence of an extraneous offense or bad act.
See Moreno, 858 S.W.2d at 463; see also Massey, 933 S.W.2d at 153–54; Phillips,
2016 WL 4399975, at *4 n.4; Burks, 227 S.W.3d at 149; Burris, 1995 WL 783035,
at *1 n.2. And because Lorie Ann’s testimony about appellant’s threatening
statements did not constitute extraneous-offense or bad-act evidence, notice pursuant
to article 37.07, section 3(g) was not required. See TEX. CODE CRIM. PROC. ANN.
art. 37.07, § 3(a)(1), (g).
12
Due to our disposition of appellant’s complaint about the admission of Lorie Ann’s
rebuttal testimony, we need not address the State’s other argument that it was not
required, pursuant to Texas Code of Criminal Procedure article 37.07, section 3(g),
to give notice of the extraneous offense or bad act because it was introduced in
rebuttal. See Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App. 2002); Gipson v.
State, 619 S.W.2d 169, 170–71 (Tex. Crim. App. 1981); see also TEX. R. APP. P.
47.1.
46
Accordingly, we hold that the trial court did not err in admitting Lorie Ann’s
rebuttal testimony that the complainant “had told her [that] appellant had threatened
to kill her if she left him” on the ground that the State did not provide proper notice
of its intent to introduce this evidence.13 See id.We overrule appellant’s third issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
13
Having concluded that Lorie Ann’s testimony about appellant’s threatening
statements did not constitute extraneous-offense or bad-act evidence, we need not
consider appellant’s assertion that he did not “open[] the door” for the admission of
the purported extraneous-offense or bad-act evidence. (Internal quotations omitted.)
See TEX. R. APP. P. 47.1. We further note that appellant, in his briefing on his
admission-of-evidence complaint, does not assert that he was harmed by the
admission of Lorie Ann’s rebuttal testimony. See Cardenas v. State, 30 S.W.3d
384, 393 (Tex. Crim. App. 2000) (holding issue inadequately briefed where
defendant “di[d] not address the question of whether the alleged error . . . was
harmless”); Sierra v. State, 157 S.W.3d 52, 64 (Tex. App.—Fort Worth 2004)
(holding issue of whether trial court erred in admitting testimony inadequately
briefed where “appellant failed to show how he was harmed by the testimony”),
aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007); see also Lucio v. State, 351 S.W.3d
878, 896–97 (Tex. Crim. App. 2011) (point of error inadequately briefed “presents
nothing for review”).
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