Albert James Turner v. the State of Texas

Affirmed and Memorandum Opinion filed April 18, 2024.

In The

Fourteenth Court of Appeals

NO. 14-21-00585-CR

ALBERT JAMES TURNER, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 10-DCR-054233

MEMORANDUM OPINION

On remand from the Court of Criminal Appeals, see Turner v. State, 570
S.W.3d 250 (Tex. Crim. App. 2018), appellant was retried for the capital murder of
his wife and mother-in-law. See Tex. Penal Code § 19.03(a)(7)(A). A jury found
him guilty, and the court sentenced him to the mandatory term of confinement for
life without parole. See Tex. Penal Code § 12.31(a)(2). Appellant challenges his
conviction in nine issues, contending that his trial counsel rendered ineffective
assistance, that he was denied counsel during the time period for filing a motion for
new trial, and that the trial court erred by allowing voir dire to proceed in his
absence, denying his request for self-representation, refusing to submit lesser-
included offenses in the jury charge, and failing to give a limiting instruction
regarding a reference to appellant’s first trial. We affirm.

I. BACKGROUND

Appellant does not challenge the sufficiency of the evidence, so we do not
recite it in detail. The jury heard a recording of a 911 call from around midnight
on December 27, 2009. The caller was appellant’s then-twelve-year-old daughter.
During the call, she identified appellant as having choked and stabbed her mother
and grandmother. The grandmother died at the scene, and the mother was dead by
the time she was brought to a hospital. The daughter testified at trial that appellant
stabbed her mother and grandmother.

Appellant’s son, who was eleven years old at the time of the murders,
testified that he heard his mother screaming and then saw appellant walking away
from the mother’s room carrying a knife and looking angry. The son heard his
grandmother screaming and appellant telling her to shut up. The son went to his
mother’s room and saw her on her knees, bleeding, and screaming that she couldn’t
breathe. When the son saw his grandmother, there was blood everywhere.

Another of appellant’s daughters, who was five or six years old at the time
of the murders, testified that appellant was the man inside the house when the
mother and grandmother were murdered.

Appellant testified that he didn’t do it, that his children misidentified him,
and that the State coerced his children into lying at trial. The jury found him
guilty.

2
II. PRESENCE DURING VOIR DIRE

In his first issue, appellant contends that the trial court violated his
constitutional and statutory rights to be present during part of voir dire when
appellant was removed from the courtroom at his lawyer’s request. We hold that
appellant has not shown error based on this record; regardless, any error was
invited.

A. The Incident

As appellant notes in his brief, the morning of voir dire began with a
discussion about the “daunting logistics of ensuring Appellant’s presence in the
courtroom” because he did not want to come to court and wear appropriate attire.
After these matters were sorted out and voir dire began, appellant “rose from his
seat[] and attacked his lawyers.”

The court held a bench conference and excused the potential jurors while the
matter was resolved. Appellant’s trial counsel said on the record that appellant
“attempted to get out of the chair and come at me.” Appellant was “coming at me
with violence, in my opinion,” and he, “came at [co-counsel] with violence, and is
being disruptive to the court.” The court acknowledged that it was “able to see the
potential for violence there, as Mr. Turner lunged out of his chair and towards his
counsel. In addition, the Court will note that Mr. Turner threw a garbage can, a
trash can, because his hands were not secured to the chair.”

Counsel made the following request, to which the State agreed:

So at this time, I’m going to propose that he be handcuffed to the
chair, that he be separated, just by—just outside of the room where he
can hear the proceedings and observe by hearing, but not be present
sitting next to me. Basically justifying the fact that he can hear and
observe the proceedings and not be excluded. I want him to be
included. I just don’t want him to be excluded. But we can’t do it any

3
more safely, in my opinion, with him being present sitting next to
counsel at counsel table.
The court granted counsel’s request and agreed to continue voir dire with appellant
“in the hallway, as counsel has requested.” The court said, “We’ll put him right
there in front of the open doorway, so he can hear.” After appellant was
repositioned, the court asked counsel to view how appellant was secured. The
following exchange occurred while discussing appellant’s positioning:

Counsel: On the other side.
The Court: Yeah, to the side, so he can’t—so he needs to be on the
side.
Counsel: Sitting in the doorway.
The Court: How is he going to hear?
Counsel: The jurors are sitting or something.
The Court: Right to the side. Inside the court.
Counsel: No, outside.
The Court: Outside. Okay.
Counsel: We’ll have the door open.
The Court: All right.
Counsel: Sounds good.

Voir dire continued with appellant sitting outside of the courtroom, although
appellant was brought into the courtroom to take his plea before the jury was
seated. The record reflects several breaks in the proceeding while the attorneys
discussed strikes and challenges. On the following day, and for the remainder of
trial, appellant was inside the courtroom.

B. No Error

A defendant in Texas has constitutional and statutory rights to be present
during trial. See Tex. Code Crim. Proc. art. 33.03; Miller v. State, 692 S.W.2d 88,

4
90 (Tex. Crim. App. 1985) (recognizing rights under the federal and Texas
constitutions). The statute provides there is a presumption of the defendant’s
presence “in the absence of all evidence in the record to the contrary.” Tex. Code
Crim. Proc. art. 33.03.

Generally, it is an appellant’s “burden to present a record showing properly
preserved, reversible error.” Word v. State, 206 S.W.3d 646, 651–52 (Tex. Crim.
App. 2006); see also Ortiz v. State, 144 S.W.3d 225, 230 (Tex. App.—Houston
[14th Dist.] 2004, pet. ref’d) (en banc) (noting an appellant’s “burden of presenting
a record to show error requiring reversal insofar as he is required to develop the
record to show the nature and source of an error and, in some cases, its prejudice to
him”).

As appellant notes in his brief and reply brief, it is not clear from this record
whether appellant could hear and see the proceedings, though much discussion was
had about appellant’s ability to hear the proceedings. The record suggests that
appellant was outside the courtroom during voir dire, but the court said appellant
was “in front of the open doorway.” Counsel said appellant was “[s]itting in the
doorway.”

Based on this record, we cannot conclude that appellant was not “present”
during voir dire under the constitutional or statutory rights to be present. See
Nelson v. State, 99 Tex. Crim. 564, 565–66 (1925) (applying predecessor statute to
a complaint that the defendant had been absent from the courtroom during some of
the proceedings, and concluding, “If he was standing just outside the courtroom
door, which was shown to have been within easy hearing distance of the jury, by
the testimony, so that he could hear what was going on, this would have
substantially complied with the law.”). The record does not affirmatively show
that appellant was unable to participate in the proceedings and communicate with

5
counsel about peremptory strikes if he so desired. Cf. Hughes v. State, 651 S.W.3d
461, 470 & n.5 (Tex. App.—Houston [14th Dist.] 2022, pet. granted) (holding that
the defendant was not present when he participated in the hearing only by video
conferencing, and he was muted several times by the trial court “without the
possibility to speak to his counsel”).

Based on this record, appellant has not shown error.

C. Invited Error

Even assuming that appellant was not present during voir dire, and that he
did not waive his rights due to his conduct of attempting to attack his counsel, 1 he
invited any error when the trial court placed appellant exactly where his counsel
requested.

“The doctrine of invited error is properly though of, not as a species of
waiver, but as estoppel.” Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App.
1999). Under the doctrine, a party cannot complain about an action they requested.
See id. at 531–32.

The Court of Criminal Appeals has applied this doctrine when a defendant
waived his right to be present for part of voir dire and opposed the State’s motion
to quash the venire. See Garcia v. State, 919 S.W.2d 370, 393–94 (Tex. Crim.
App. 1994). A defendant “may not, by his own actions, create reversible error.”
Id. at 393. Because the trial court did what the defendant asked, the defendant was
1
See generally Illinois v. Allen, 397 U.S. 337, 342–43 (1970) (discussing waiver of the
Sixth Amendment right to be present “by consent or at times even by misconduct” (quoting
Snyder v. Massachusetts, 291 U.S. 97, 106 (1934))). Compare Miller v. State, 692 S.W.2d 88,
91 (Tex. Crim. App. 1985) (reasoning that Article 33.03 is a “more protective provision than its
federal counterpart” because the defendant’s right to be present at trial is “unwaivable until such
a time as the jury ‘has been selected’” (quoting Tex. Code Crim. Proc. art. 33.03)), with Garcia
v. State, 919 S.W.2d 370, 393–94 (Tex. Crim. App. 1994) (holding that the defendant
“affirmatively waived his right to be present” under Article 33.03 during part of voir dire, and he
“was not denied his right to be present—he waived it”).

6
not denied his right to be present, and there was no violation of Article 33.03. See
id. at 394.

Here, the trial court did not deny appellant a right to be present but instead
granted counsel’s request for appellant to sit outside of the courtroom in such a
way that appellant would be able to hear and observe voir dire—to be included and
not excluded from participating in voir dire, according to counsel’s request.
Appellant cannot now claim error based on the trial court’s actions that he
requested. See Garcia, 919 S.W.2d at 393–94.

Appellant’s first issue is overruled.

III. SELF-REPRESENTATION

In his fourth issue,2 appellant contends that the trial court erred by denying
his midtrial request for self-representation.

Under binding precedent from the Court of Criminal Appeals, “An accused’s
right to self-representation must be asserted in a timely manner, namely, before the
jury is impaneled.” McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997).
A request for self-representation asserted after the jury has been impaneled is
untimely and properly overruled. See id.

Appellant concedes in his brief, and the record shows, that he “did not assert
his right to self-representation until a jury had been seated and the trial had
commenced.” Under McDuff, the trial court did not err by denying this request.
See id.

Appellant’s fourth issue is overruled.

2
We address appellant’s issues out of order so that we may review his issues based on
ineffective assistance together in Part VII of this opinion.

7
IV. LESSER-INCLUDED OFFENSES

In his sixth issue, appellant contends that the trial court erred by denying his
requested instructions on the lesser-included offenses of aggravated assault and
murder.

A defendant is entitled to an instruction on a lesser-included offense only if
(1) the requested lesser offense is in fact a lesser-included offense of the charged
offense; and (2) there is some evidence in the record that would permit the jury to
rationally find that, if the defendant is guilty, he is guilty only of the lesser-
included offense. Ransier v. State, 670 S.W.3d 646, 650 (Tex. Crim. App. 2023).
Under the first prong, an offense is a lesser-included offense if it is within the
proof necessary to establish the offense charged. Bullock v. State, 509 S.W.3d 921,
924 (Tex. Crim. App. 2016). Under the second prong, it is not enough that the jury
may disbelieve crucial evidence of guilt pertaining to the greater offense; rather,
there must be some evidence directly germane to the lesser-included offense for
the fact finder to consider before an instruction on the lesser-included offense is
warranted. Ransier, 670 S.W.3d at 650. “Unless the evidence presented is subject
to different interpretations consistent with either the greater or lesser-included
offenses, evidence directly germane to a lesser-included offense exists only if there
is ‘affirmative evidence that both raises the lesser-included offense and rebuts or
negates an element of the greater offense.’” Id. (quoting Cavazos v. State, 382
S.W.3d 377, 385 (Tex. Crim. App. 2012)).

A. Aggravated Assault

Appellant contends that a lesser-included instruction for aggravated assault
was warranted because the injuries to his wife were “less immediately severe” than
those suffered by his mother-in-law. He contends that if the jury had found that

8
appellant did not intentionally kill his wife, then the jury could have found
appellant guilty only of the lesser-included offense.

“A murder defendant is not entitled to an instruction on the lesser included
offense of aggravated assault when the evidence showed him, at the least, to be
guilty of a homicide.” Jackson v. State, 992 S.W.2d 469, 475 (Tex. Crim. App.
1999). Appellant points to no evidence that his wife did not die from the injuries
he inflicted. Thus, appellant was not entitled to an instruction on the lesser-
included offense of aggravated assault. See id. (no error to deny instruction for
aggravated assault when there was “no evidence from which a rational jury could
conclude that appellant did other than cause the death of the victim”).

B. Murder

At trial, appellant argued for a murder instruction because “it could be
argued that these are two separate transactions, two separate incidents, that would
require to separate out the charge and to submit a charge of murder, lesser included
offense of murder, as to each victim in the case.” On appeal, appellant contends
that he was entitled to the murder instruction because there is evidence that
appellant did not intend to cause the death of his wife (i.e., murder under Section
19.02(b)(1)), and instead only intended to cause serious bodily injury (i.e., murder
under Section 19.02(b)(2)).

1. No Preservation

Appellant’s argument at trial does not comport with his argument on appeal,
so no error is preserved. See, e.g., Pena v. State, 285 S.W.3d 459, 463–64 (Tex.
Crim. App. 2009) (“The complaining party bears the responsibility of clearly
conveying to the trial judge the particular complaint, including the precise and
proper application of law as well as the underlying rationale. . . . Whether a party’s

9
particular complaint is preserved depends on whether the complaint on appeal
comports with the complaint made at trial.”); see also Newman v. State, No. 14-05-
01125-CR, 2007 WL 1437624, at *4 (Tex. App.—Houston [14th Dist.] May 17,
2007, pet. ref’d) (mem. op., not designated for publication) (“Appellant’s rationale
for the requested instruction differs substantially and does not comport with the
rationale for his request at trial. Because appellant’s argument on appeal does not
comport with his objection at trial, his complaint is not preserved for review.”).

2. No Error

Assuming without deciding that both murders alleged for the purpose of
capital murder under Section 19.03(a)(7)(A) must be intentional or knowing
murders under Section 19.02(b)(1),3 there is no evidence in this record that would
permit a jury to rationally find that if appellant is guilty, he is guilty only of the
lesser-included offense under Section 19.02(b)(2) based on the fact that it took
more time for appellant’s wife to die compared to his mother-in-law. The medical
examiner testified that a knife was brought across the wife’s neck and incised the
soft tissue, muscle, airways, and blood vessels; there was a “complete transection,
or cutting” of the strap muscles in her neck and her trachea. The wound was about
two inches deep. The incision would have required “a significant amount of
deliberate force.” It was a “very strong one, straight across the neck.”
3
The capital murder statute provides that a person commits an offense if the person
“commits murder as defined under Section 19.02(b)(1) and . . . the person murders more than
one person . . . during the same criminal transaction.” Tex. Penal Code § 19.03(a)(7)(A).
Appellant’s argument appears to assume that both murders used to support a capital murder
charge must be intentional or knowing murders under Section 19.02(b)(1). Compare Ex parte
Milner, 394 S.W.3d 502, 508 (Tex. Crim. App. 2013) (addressing allowable unit of prosecution
under Section 19.03(a)(7) and reasoning that the State must prove that a defendant committed at
least two murders: “an intentional murder under section 19.02(b)(1) and at least one additional
murder as the aggravating circumstance,” without specifying that the second murder must be one
under Section 19.02(b)(1)), with Roberts v. State, 273 S.W.3d 322, 331 n.11 (Tex. Crim. App.
2008) (noting without analysis that capital murder “requires intentional and knowing murder for
each victim,” i.e., murder under Section 19.02(b)(1)).

10
When emergency medical personnel arrived at the scene, the wife was still
alive, so she was brought to a hospital. By the time she arrived at the hospital,
however, she was “basically dead.” She had no blood pressure, no heart rate, and
no spontaneous respiration.

Appellant testified that he was not present during the murders. Thus, he did
not testify in a manner that would enable to the jury to infer that appellant (1)
lacked an intent or knowledge to kill his wife but also (2) intended to cause serious
bodily injury.

The evidence concerning the nature of the wife’s injuries is not subject to
different interpretations such that a jury could rationally find that, if the defendant
is guilty, he is guilty only of the lesser-included offense of murder under Section
19.02(b)(2). Nor is there affirmative evidence that both raises murder under
Section 19.02(b)(2) and rebuts or negates capital murder based on two intentional
or knowing murders under Section 19.02(b)(1).

Appellant’s sixth issue is overruled.

V. LIMITING INSTRUCTION

In his seventh issue, appellant contends that the trial court erred by failing to
sua sponte include a limiting instruction in the jury charge pursuant to Rule 21.9(d)
of the Texas Rules of Appellate Procedure.

The trial court must give the jury a written charge setting forth the law
applicable to the case. Tex. Code Crim. Proc. art. 36.14. Rule 21.9(d), regarding
motions for new trials in criminal cases, provides:

A finding or verdict of guilt in the former trial must not be regarded as
a presumption of guilt, nor may it be alluded to in the presence of the
jury that hears the case on retrial of guilt. A finding of fact or an

11
assessment of punishment in the former trial may not be alluded to in
the presence of the jury that hears the case on retrial of punishment.
Tex. R. App. P. 21.9(d).

Appellant contends that the trial court should have sua sponte admonished
the jury that a prior conviction could not be considered as a presumption of guilt
because appellant referred to his prior trial and prior testimony when he testified in
front of the jury. Appellant does not direct this court to any reference in front of
the jury regarding a “finding or verdict of guilt in the former trial.” See id.
(emphasis added). Rather, appellant merely referred to a prior trial and testimony.
While appellant was being cross-examined and provided transcripts of his earlier
testimony to refresh his recollection, appellant appeared to ask for the jury to see
the transcript: “Why are y’all doing this with the—show the transcript, and let
them see the transcript of the kids.” When the court announced it would take a
short break so appellant could review the transcript, appellant referred to an earlier
bench hearing about the children’s inconsistent statements and said, “I know what
that does on death row. When y’all do that bench hearing stuff with evidence like
that, it gets people killed.” On appeal, appellant contends that the reference to
death row “could have led a reasonable juror to infer that Appellant had, after his
prior conviction, been housed on ‘death row.’”

Assuming without deciding that Rule 21.9(d) could provide “law applicable
to the case” for purposes of Article 36.14, and thus require a sua sponte jury
instruction under different facts, it did not become law applicable to the case here
because there was no reference to a finding or verdict of guilt in the former trial.
Cf. Barfield v. State, 464 S.W.3d 67, 75–76 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d) (no ineffective assistance based on failure to object to testimony
concerning a prior trial because Rule 21.9(d) “addresses references to a ‘finding or

12
verdict of guilt’ and does not address the admissibility of a mere reference to a
prior trial”). Appellant’s errant reference to “death row” in the context of a bench
hearing to discuss or review prior statements would not have indicated to the jury
that there had been a finding or verdict of guilt in the former trial. The trial court
did not err by failing to sua sponte give an instruction under Rule 21.9(d).

Appellant’s seventh issue is overruled.

VI. DENIAL OF COUNSEL

In his eighth issue, appellant contends that he was denied the assistance of
counsel during the time period for filing a motion for new trial. Appellant
contends that he was denied counsel because trial counsel did not file a motion for
new trial.4 Appellant does not dispute, and the record shows, that trial counsel did
not withdraw as counsel until after the time period for filing a motion for new trial
had expired. In other words, counsel continued to represent appellant during the
entire time period for filing a motion for new trial.

We must presume that trial counsel continued to adequately represent
appellant during this time period. See Cooks v. State, 240 S.W.3d 906, 911 (Tex.
Crim. App. 2007). And we presume that no motion for new trial was filed because
appellant, with the benefit of counsel’s representation, considered and rejected the
option. See id. at 911 n.6. Appellant has not rebutted these presumptions with
evidence that he was not represented during the time period for filing a motion for
new trial.

Appellant’s eighth issue is overruled.

4
To the extent appellant contends that he was denied counsel “because trial counsel did
not provide effective representation” and because counsel “rendered ineffective assistance during
the motion for new trial period,” we address this complaint in Part VII of this opinion when
addressing his other claims of ineffective assistance.

13
VII. INEFFECTIVE ASSISTANCE

In his second, third, fifth, eighth, and ninth issues, appellant contends he was
denied effective assistance of counsel based on various alleged deficiencies.

A. Legal Principles

To prevail on a claim of ineffective assistance, an appellant must show that
(1) counsel’s performance was deficient by falling below an objective standard of
reasonableness and (2) counsel’s deficiency caused the appellant prejudice—there
is a probability sufficient to undermine confidence in the outcome that but for
counsel’s errors, the result of the proceeding would have been different. See
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v. State, 310
S.W.3d 890, 892–93 (Tex. Crim. App. 2010). An appellant must satisfy both
prongs by a preponderance of the evidence. Perez, 310 S.W.3d at 893. Failure to
demonstrate either deficient performance or prejudice will defeat the claim of
ineffective assistance. Id.; see also Strickland, 466 U.S. at 697.

When a defendant asserts ineffective assistance of counsel for the first time
on appeal, as here, the record often will not be sufficient to overcome the strong
presumption that counsel’s conduct was reasonable and professional. See Cannon
v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008). We will not find deficient
performance unless counsel’s conduct is so outrageous that no competent attorney
would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005).

B. Removal During Voir Dire

In his second issue, appellant contends that trial counsel was ineffective for
requesting that appellant be removed from the courtroom during voir dire. The
record is insufficient to overcome the presumption of reasonable and professional

14
conduct. Counsel might well have believed that appellant’s placement inside the
courtroom would do more harm than good, based on appellant’s demonstrated
disruptive and violent behavior in front of the potential jurors. We cannot
conclude that counsel’s conduct is so outrageous that no competent attorney would
have done it.

In his reply brief on appeal, appellant adds a conflict-of-interest analysis to
his claim of ineffective assistance. Because the test for ineffective assistance under
Strickland differs from the test for a conflict-of-interest under Cuyler v. Sullivan,
466 U.S. 350 (1980),5 we may properly decline to consider this new issue
presented for the first time in a reply brief. See Chambers v. State, 580 S.W.3d
149, 161 (Tex. Crim. App. 2019).

Assuming the conflict-of-interest issue is subsumed by the ineffective
assistance issue in the opening brief,6 appellant must show that an actual conflict of
interest adversely affected his counsel’s performance. Cuyler, 446 U.S. at 350; see
also Acosta, 233 S.W.3d at 355–56 (applying Cuyler when the conflict is based on
counsel’s own interest). Appellant suggests that counsel’s personal interest in his
own safety conflicted with appellant’s right to be present during voir dire.

Based on this record, we cannot conclude that counsel’s interest in his own
safety adversely affected his performance. Appellant could have been physically
restrained in the jury’s presence, but counsel might well have acted in appellant’s
best interest by having him removed from the courtroom and out of the potential

5
See, e.g., Acosta v. State, 233 S.W.3d 349, 352–53, 355–56 (Tex. Crim. App. 2007)
(noting difference between the two tests and reversing the court of appeal for applying the
Strickland test instead of the Cuyler test).
6
Under Chambers, “new issues raised in a reply brief should not be considered,” but a
court of appeals “can consider arguments and authorities in a reply brief that are related to
arguments in the original brief.” 580 S.W.3d at 161.

15
jurors’ view. We presume, based on this record, that counsel’s decision to have
appellant removed from the courtroom instead of keeping him in the courtroom
during voir dire was a strategic decision and not the result of any conflict of
interest.

Appellant’s second issue is overruled.

C. Failure to Move to Quash the Venire

In his third issue, appellant contends that counsel was ineffective for failing
to ask the trial court to quash the venire after appellant’s outburst.

The record is insufficient to overcome the presumption of reasonable and
professional conduct. Appellant notes that, following appellant’s outburst, nearly
two dozen potential jurors admitted they could no longer follow the law and be fair
and impartial. Yet, all of these potential jurors were struck for cause. Counsel
might well have decided that the remaining potential jurors were ones that would
be beneficial to appellant and provide him a fair trial. And, without “evidence that
the venire, as a whole, was biased against appellant,” counsel cannot be ineffective
for failing to move to quash the venire. See Mooney v. State, 817 S.W.2d 693, 698
(Tex. Crim. App. 1991). We cannot conclude, based on this record, that counsel’s
decision to not request a new venire was so outrageous that no competent attorney
would have done it.

Appellant’s third issue is overruled.

D. Failure to Object to Autopsy Reports and Testimony

In his fifth issue, appellant contends that counsel was ineffective for failing
to object, based on the Confrontation Clause, to the admission of autopsy reports
and the medical examiner’s testimony because a different medical examiner had
performed the autopsies.

16
By the time of appellant’s second trial, the original medical examiner who
performed the autopsies and created the reports was deceased. The original
medical examiner had testified at appellant’s first trial. A different medical
examiner testified about the reports at appellant’s second trial.

Under the Confrontation Clause of the Sixth Amendment, a testimonial
statement is inadmissible “absent a showing that the declarant is presently
unavailable and the defendant had a prior opportunity for cross-examination.”
Wall v. State, 184 S.W.3d 730, 734–35 (Tex. Crim. App. 2006).

Appellant concedes that the original medical examiner was unavailable to
testify because he was deceased. Although he concedes that the original medical
examiner was also subject to cross-examination at appellant’s first trial, appellant
contends that he was represented by new trial attorneys at the second trial and
these new trial attorneys did not have a prior opportunity to cross-examine the
original medical examiner. However, the Confrontation Clause “does not
condition the use of prior testimony on representation by the same counsel at both
trials.” Ellison v. State, 494 S.W.3d 316, 324 (Tex. App.—Eastland 2015, pet.
ref’d) (citing United States v. Richardson, 781 F.3d 237, 244 (5th Cir. 2015)).
Thus, the original medical examiner’s testimonial statements in the autopsy reports
and testimony from the first trial were not inadmissible under the Confrontation
Clause. See Martinez v. State, 327 S.W.3d 727, 737–38 (Tex. Crim. App. 2010)
(authorizing the reading into the record of a deceased witness’s prior testimony).7

7
Appellant contends that this court has “already determined that such facts demonstrate a
violation of the Appellant’s right to confrontation,” citing Lee v. State, 418 S.W.3d 892 (Tex.
App.—Houston [14th Dist.] 2013, pet. ref’d). In Lee, however, there was “no contention that
[the medical examiner] was unavailable or that appellant had an opportunity to cross-examine
her.” Id. at 896. Here, it is undisputed that the witness was unavailable and subject to cross-
examination in the first trial.

17
The record is insufficient to overcome the presumption of reasonable and
professional conduct. Because the original medical examiner was deceased and
had been cross-examined in the first trial, counsel might well have believed the
autopsy reports and testimony about the reports were admissible. See id. And
counsel might well have believed it was better to have a live witness—the new
medical examiner, who would be subject to new cross-examination—rather than
allow the reading of the testimony of the original medical examiner into evidence.
On this record, we cannot conclude that counsel’s decision to not object based on
the Confrontation Clause was so outrageous that no competent attorney would
have done it.

Appellant’s fifth issue is overruled.

E. Failure to File a Motion for New Trial

In his eighth issue, appellant contends that counsel was ineffective during
the motion for new trial stage because counsel failed to file a motion for new trial,
asserting as grounds the error alleged on appeal in his first and fourth issues,
discussed in Parts II and III of this opinion, regarding appellant’s presence during
voir dire and his request for self-representation.

As noted above, the trial court did not err regarding these issues; thus, the
court would not have erred by denying a motion for new trial on these grounds.
“Counsel is not required to engage in the filing of futile motions.” Wert v. State,
383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing
Mooney, 817 S.W.2d at 698). “[C]ounsel could have reasoned that filing a motion
for new trial on this ground would have been futile.” Jackson v. State, 495 S.W.3d
398, 418 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (rejecting ineffective
assistance claim based on failure to file a motion for new trial).

18
Appellant’s eighth issue is overruled.

F. Failure to Withdraw Immediately After Sentencing

In his ninth issue, appellant contends that counsel was ineffective for failing
to withdraw immediately following the pronouncement of appellant’s sentence.
Appellant cites performance guidelines that were adopted by the State Bar of
Texas about a week after appellant was sentenced and published six months later,
which recommend: “If trial counsel does not plan to represent the client post-trial,
immediately file a motion to withdraw.” See Performance Guidelines for Non-
Capital Criminal Defense Representation, 85 Tex. B.J. 273, 289 (2022).

The record is insufficient to overcome the presumption that counsel’s
conduct was reasonable and professional. Counsel might well have planned to
continue to represent appellant post-trial, which was appellant’s right. See Buntion
v. Harmon, 827 S.W.2d 945, 949 & n.4 (Tex. Crim. App. 1992) (error for trial
court to replace appointed counsel based on the trial court’s feelings, practice,
experience, and preferences; reasoning that “once counsel is appointed, the trial
judge is obliged to respect the attorney-client relationship created through
appointment”). We cannot conclude that counsel’s decision to not immediately
withdraw at the time of sentencing was so outrageous that no competent attorney
would have done it.

Appellant’s ninth issue is overruled.

19
VIII. CONCLUSION

Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.

/s/ Ken Wise
Justice

Panel consists of Justices Wise, Bourliot, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b)

20