Rodrigo Derrail Ervin v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00048-CR
___________________________

RODRIGO DERRAIL ERVIN, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 2
Tarrant County, Texas
Trial Court No. 1821873

Before Birdwell, Bassel, and Walker
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION

Appellant Rodrigo Derrail Ervin appeals his conviction for felony escape. In a

single issue, Ervin argues that he received ineffective assistance of counsel.

Specifically, he asserts that his trial counsel was deficient “for failing to object to [the]

contents of an exhibit containing descriptions of extraneous offenses” that Ervin had

committed. Because Ervin has not shown that the complained-of deficiency

prejudiced his defense, we affirm.

I. BACKGROUND

In the summer of 2023, Ervin was on bond for a domestic-assault offense.

Under the conditions of his release, he was required to have regular meetings with a

probation officer. In preparation for the meeting scheduled for August 30, 2023, the

probation officer checked to see if Ervin had any active warrants and discovered that

he did, in fact, have an active arrest warrant. In accordance with standard protocol,

the officer contacted the Tarrant County Sheriff’s Deputies on duty that day. They

confirmed the warrant and arrested Ervin, at which point he was no longer free to

leave.

Deputy Christopher Carmichael escorted Ervin in handcuffs from the

probation office to the holdover cell. Because Ervin had been cooperative up to that

point, Deputy Carmichael allowed him to use his cellphone in the holdover cell after

his pockets had been emptied and it had been confirmed that he had no weapons.

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According to Deputy Carmichael, before he could retrieve Ervin’s phone from

him, Ervin got in a “football stance,” rushed at him, knocked him over, and sprinted

out the door. Deputy Carmichael clarified that Ervin was still under arrest at that

point, did not have permission to leave, and would not be allowed to leave without an

escort.

Surveillance footage showed Ervin sprinting to an employee-only exit and

frantically yanking on the locked doors. Deputy Wayne Coston, who had been tasked

with transporting Ervin to the jail, saw him “r[u]n by . . . in a full sprint” and

immediately gave chase because “nobody runs or sprints in a building” unless

“[s]omething’s wrong.” After shaking the locked doors, Ervin turned around and

looked at Deputy Coston and then tried to make a “little move” to get around him

before finally stopping and allowing himself to be handcuffed.

Ervin was indicted for two counts of felony escape.1 See Tex. Pen. Code Ann.

§ 38.06(a), (c). The indictment included a habitual-offender notice alleging that Ervin

had been convicted of two prior and sequential felonies, raising the punishment range

for his offense to twenty-five to ninety-nine years or life in prison. See id. § 12.42(d).

Ervin pleaded “not guilty,” and a jury trial was held.

At trial, Ervin testified in his own defense. He explained that when he was in

the holdover cell, he had been attempting to call the mother of his child so that she

The State waived the second count at trial.
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could call the bail bondsman, but the call kept dropping. He claimed that when he

left the holdover cell, he had not been trying to escape; rather, he had merely been

trying to get better cell reception. He also told the jury that although Deputy

Carmichael had not told him that he could leave, he also had never told him that he

was not free to leave. He flatly denied knocking over Deputy Carmichael and told the

jury that Deputy Carmichael and Deputy Colston had both been lying when they

testified about what had happened.

After considering all the evidence, the jury found Ervin guilty. At the start of

the trial’s punishment phase, Ervin pleaded “true” to the indictment’s habitual-

offender allegations. The jury assessed Ervin’s punishment at twenty-five years in

prison. The trial court sentenced Johnson accordingly. This appeal followed.

II. DISCUSSION

In his sole appellate issue, Ervin contends that his trial counsel’s performance

was so deficient that it prejudiced his defense, denying him his rights to the effective

assistance of counsel and a fair trial. We disagree.

A. APPLICABLE LAW AND STANDARD OF REVIEW

The Sixth Amendment guarantees a criminal defendant the effective assistance

of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.

amend. VI. To establish ineffective assistance, an appellant must prove by a

preponderance of the evidence both that his counsel’s representation was deficient

and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

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687, 104 S. Ct. 2052, 2064 (1984); Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim.

App. 2017); see Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). We

need not address both parts of the Strickland test if the appellant makes an insufficient

showing of one component. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

An appellant claiming ineffective assistance of counsel at trial must identify

counsel’s allegedly erroneous acts and omissions. Id. at 690, 104 S. Ct. at 2066; Cooper

v. State, 333 S.W.3d 859, 867 (Tex. App.—Fort Worth 2010, pet. ref’d). The appellate

court then determines whether, in light of all the circumstances, these identified acts

or omissions were outside the wide range of what constitutes competent assistance.

Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Cooper, 333 S.W.3d at 867.

In evaluating counsel’s effectiveness under the deficient-performance prong,

we review the totality of the representation and the particular circumstances of the

case to determine whether counsel provided reasonable assistance under all of the

circumstances and prevailing professional norms at the time of the alleged error. See

Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava v. State, 415 S.W.3d 289, 307

(Tex. Crim. App. 2013); Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim.

App. 1999). An attorney’s isolated acts or omissions generally do not constitute

deficient performance. See, e.g., Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim.

App. 1984). However, an egregious error may satisfy both parts of the Strickland test

on its own. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Our review

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of counsel’s representation is highly deferential, and we indulge a strong presumption

that counsel’s conduct was not deficient. Nava, 415 S.W.3d at 307–08.

Furthermore, the record must affirmatively demonstrate that the ineffective-

assistance claim has merit. Thompson, 9 S.W.3d at 813. An appellate court may not

infer ineffective assistance simply from an unclear record or a record that does not

show why counsel failed to do something. Menefield v. State, 363 S.W.3d 591, 593 (Tex.

Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial

counsel “should ordinarily be afforded an opportunity to explain his actions before

being denounced as ineffective.” Menefield, 363 S.W.3d at 593. If, as here, trial

counsel did not have that opportunity, we should not conclude that counsel

performed deficiently unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308. Direct

appeal is usually inadequate for raising an ineffective-assistance-of-counsel claim

because the record generally does not show counsel’s reasons for any alleged deficient

performance. See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14.

Strickland’s prejudice prong requires a showing that counsel’s errors were so

serious that they deprived the defendant of a fair trial—that is, a trial with a reliable

result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant

must show a reasonable probability that the proceeding would have turned out

differently without the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava,

415 S.W.3d at 308. A “reasonable probability” is a probability sufficient to undermine

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confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava,

415 S.W.3d at 308. We must ultimately focus on examining the fundamental fairness

of the proceeding in which the result is being challenged. Strickland, 466 U.S. at 696,

104 S. Ct. at 2069. “[A] verdict or conclusion only weakly supported by the record is

more likely to have been affected by errors than one with overwhelming record

support.” Id., 104 S. Ct. at 2069.

B. RELEVANT BACKGROUND

At trial, the State called Tarrant County Probation Officer Stacy Franco as a

witness and offered as an exhibit the Tarrant County Probation Office’s

“chronologicals” or “chronos” on Ervin.2 Ervin’s counsel stated that he had no

objection to the chronologicals’ admission, and they were admitted as State’s

Exhibit 25.

The State questioned Franco regarding certain bond violations committed by

Ervin as reflected in State’s Exhibit 25. When Franco began to discuss bond

violations that occurred after the date of Ervin’s alleged escape offense, his counsel

objected, arguing that such violations were irrelevant. Outside the jury’s presence,

Ervin’s trial counsel further explained his position:

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“A ‘chronological’ is a document comprised of computer entries made by
supervising officers of anything of note occurring regarding a particular supervisee on
community supervision.” Estrada v. State, No. 07-21-00298-CR, 2023 WL 2065672, at
*1 n.2 (Tex. App.—Amarillo Feb. 17, 2023, no pet.) (mem. op., not designated for
publication).

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Well, Judge, . . . I should have looked at the document, because I didn’t
realize that they’re including all this information that’s subsequent to this
offense.
And the only thing I feel like I opened the door to was potentially
anything -- his performance on pretrial on the date of and prior to. Not
all this other stuff that they’re getting into.
After listening to argument from both sides, the trial court pointed out to

Ervin’s counsel that “Ms. Franco [was] testifying from a document that was not

objected to. It was admitted.” Based on that fact, the trial court overruled Ervin’s

counsel’s relevance objection. However, the trial court gave the jury a limiting

instruction (1) that it could not consider any testimony regarding Ervin’s other bad

acts “for any purpose unless [it found] and believe[d] beyond a reasonable doubt that

the defendant [had] committed such other bad acts, if any” and (2) that even then, it

could consider such bad acts only “in determining the motive, opportunity, intent,

preparation, plan, knowledge, identity of the defendant, absence of mistake, or lack of

accident of the defendant, if any, in connection with the offense, if any, alleged against

him in the indictment in this case and for no other purpose.”

Once this instruction had been given, Franco explained that after Ervin was

placed on bond for his current escape offense, he had been required to wear a GPS

leg monitor. She testified that Ervin’s records showed that he had committed a “strap

violation”—i.e., had tampered with the strap that held the GPS monitor on his leg—

in August 2024.

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C. ANALYSIS

Ervin argues that his trial counsel was deficient for failing to object to State’s

Exhibit 25 and that this failure prejudiced his defense because it allowed the State to

elicit evidence of his August 2024 strap violation. But even if we were to assume that

Ervin’s trial counsel acted unreasonably by failing to object, Ervin cannot satisfy his

burden to show a reasonable probability that the proceeding would have turned out

differently without the deficient performance. See Strickland, 466 U.S. at 694,

104 S. Ct. at 2068; Nava, 415 S.W.3d at 308.

First, as noted, the trial court gave the jurors a limiting instruction regarding the

extraneous-offense evidence, and absent evidence to the contrary, we must presume

that they followed it. Gadsden v. State, No. 02-21-00195-CR, 2023 WL 2607559, at *5

(Tex. App.—Fort Worth March 23, 2023, no pet.) (mem. op., not designated for

publication) (citing Williams v. State, No. 02-18-00382-CR, 2019 WL 2223214, at *3

(Tex. App.—Fort Worth May 23, 2019, no pet.) (mem. op., not designated for

publication)); Walker v. State, 300 S.W.3d 836, 850 (Tex. App.—Fort Worth 2009, pet.

ref’d). This limiting instruction significantly reduced the risk that the jury would

misuse the extraneous-offense evidence and therefore minimized its prejudicial

impact. See Miller v. State, 196 S.W.3d 256, 268 (Tex. App.—Fort Worth 2006, pet.

ref’d); Simpson v. State, 886 S.W.2d 449, 452 (Tex. App.—Houston [1st Dist.] 2003,

pet. ref’d); see also Plante v. State, 692 S.W.2d 487, 494 (Tex. Crim. App. 1985)

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(explaining that the trial court’s limiting instruction “reduced the risk that the jury

would misuse the evidence”).

Second, as Ervin acknowledges in his brief, the State presented substantial

evidence of his guilt. Not only did two eyewitnesses testify regarding Ervin’s

attempted escape from custody, the jury also saw the surveillance footage showing

him sprinting to the employee-only exit and frantically shaking the locked doors.

Given the ample evidence of Ervin’s guilt, we conclude that he has failed to show that

the outcome of his trial probably would have been different but for his trial counsel’s

purportedly deficient performance. See Samarripas v. State, 438 S.W.3d 673, 676 (Tex.

App.—San Antonio 2014, no pet.); see also Adekeye v. State, 437 S.W.3d 62, 73 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d) (finding no prejudice for purposes of

ineffective assistance based on stipulation informing jury of appellant’s prior felony

conviction for aggravated robbery when evidence of appellant’s guilt for alleged

offenses of aggravated robbery and felon-in-possession was overwhelming); Hall v.

State, No. 02-09-00213-CR, 2010 WL 4570035, at *5 (Tex. App.—Fort Worth Nov. 4,

2010, no pet.) (mem. op., not designated for publication) (holding that even if

appellant’s trial attorneys provided ineffective assistance when they elicited testimony

from the complainant regarding the existence of other victims, Strickland’s prejudice

prong was not satisfied because, inter alia, “[t]he State [had] presented overwhelming

evidence of [appellant’s] guilt”).

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Finally, Ervin himself chose to testify about his character and intent.

Generally, except for prior convictions admitted under Rule of Evidence 609,

extraneous-offense evidence is not admissible to impeach a testifying defendant. See

Tex. R. Evid. 608(b); see also Tex. R. Evid. 609. But a defendant can “open the door”

by leaving a false impression with the jury about a relevant act or character trait, and

in such instances, evidence of an extraneous act that tends to rebut the false

impression may be admissible to impeach the defendant. Rivera v. State, 233 S.W.3d

403, 406 (Tex. App.—Waco 2007, pet. ref’d) (citing Daggett v. State, 187 S.W.3d 444,

452–53 (Tex. Crim. App. 2005)). Further, evidence of a “crime, wrong, or other act”

may be admissible to prove intent. Tex. R. Evid. 404(b). Here, Ervin took the stand

in an attempt to convince the jury that he did not intend to commit the alleged escape

offense. He also attempted to establish himself as a model pretrial probationer by

accusing Franco of lying about his myriad bond violations. By putting his intent at

issue and by attempting to establish himself as a model probationer, Ervin opened the

door for the State to cross-examine him regarding the bond violations reflected in

State’s Exhibit 25, including the August 2024 strap violation.

In light of the foregoing, we conclude that Ervin has failed to satisfy Strickland’s

prejudice prong. See 466 U.S. at 694, 104 S. Ct. at 2068. Accordingly, we overrule his

sole issue.

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III. CONCLUSION

Having overruled Ervin’s sole issue, we affirm the trial court’s judgment.

/s/ Brian Walker

Brian Walker
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 26, 2025

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