Jose Angel Becerra v. the State of Texas

NUMBER 13-24-00156-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JOSE ANGEL BECERRA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 430TH DISTRICT COURT
OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Memorandum Opinion by Chief Justice Tijerina

A jury convicted appellant Jose Angel Becerra of capital murder and attempted

capital murder, and the trial court assessed punishment at life and fifty years’

imprisonment, respectively. See TEX. PENAL CODE ANN. § 19.03(a)(2); 15.01(a). By ten

issues, which we have reorganized and renumbered, appellant argues: (1‒2) the

evidence was legally insufficient to support his convictions; (3) the corroboration evidence
was legally insufficient under Article 38.075 of the Texas Code of Criminal Procedure; (4‒

5) his trial counsel was ineffective for failing to object to testimony and failing to request

a jury instruction under Article 38.075; (6) the trial court committed egregious error when

it failed to correct the jury charge; (7‒8) the State committed prosecutorial misconduct

resulting in fundamental error in violation of United States and Texas Constitutions; and

(9‒10) his trial counsel was ineffective under the United States and Texas Constitutions

when he failed to object to testimony and evidence. We affirm.

I. LEGAL SUFFICIENCY

By his first two issues, appellant contends that the evidence is legally insufficient

to support his convictions. Specifically, appellant argues that the evidence “does not

establish [his] involvement in the case” and is “so unreliable and weak” that “it cannot

serve as a legal basis for the convictions in this case.” Appellant criticizes the testimony

of the “surviving alleged victim Alejandro Mendoza,” testimony regarding his fingerprint

on the weapon’s magazine, and the testimony of the “jail house snitch Kenneth Jones.”

A. Pertinent Facts

At trial, Mendoza1 testified that he was friends with the deceased Jesus Hinojosa

who was nicknamed Zeus. On November 11, 2018, Zeus visited Mendoza’s house to

smoke synthetic marijuana, but the two left later to buy cigarettes. Mendoza entered a

convenience store, and when he returned to Zeus’s car, he noticed a blue Ford Expedition

parked next to it. Mendoza entered Zeus’s vehicle and noticed appellant sitting behind

Zeus transacting a drug and gun deal.2 According to Mendoza, appellant stepped out of

1 Alejandro Mendoza is the named victim in the attempted capital murder charge.

2 Mendoza clarified that he was unaware appellant was planning to deal drugs.

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the vehicle to call his brother, Isaac. Once Isaac arrived, appellant and Isaac “hopped”

into the vehicle, “loaded” their guns, and “cocked it [at their] heads” “demanding

everything that [they] had.” Mendoza remembered appellant saying he did not care if he

went to jail; appellant just wanted their phones, their stuff, and the drugs. Mendoza stated

that Zeus kept asking appellant, “Why are you doing this to me?” while appellant held the

gun to his cheekbone. Suddenly, appellant shot Zeus under his cheekbone, causing his

eye to pop out. “Zeus somehow managed to get out of the car and start[ed] running,” said

Mendoza.

Mendoza claimed he began “screaming out of [his] own mind, please don’t shoot

me” while appellant and Isaac got out of the car and continued shooting Zeus as he ran

away. Mendoza heard more than five gunshots and witnessed Zeus fall to the ground.

Isaac then shot Zeus again while he was on the ground.3 Mendoza stated this whole time

he was “praying to God for [his] life.” As appellant and Isaac were about to leave, they

looked at Mendoza, pointed the gun at him, and shot him. Mendoza stated that he was

losing air and suffocating on his own blood while Isaac and appellant fled the scene in

their blue Ford Expedition.

At the hospital, Mendoza identified appellant and Isaac from a photo lineup and

informed investigators that he was “2,000% sure” they were the perpetrators of the

shooting. Mendoza further explained he was familiar with Isaac and appellant because

he went to school with their siblings, and they lived across the street from him.

Hidalgo County Sheriff’s Office (HCSO) Deputy Esequiel Reyes Jr. testified that

on November 11, 2018, he responded to a “man-down” “shots fired” call. When he arrived

3 Forensic pathologist Norma Jean Farley testified that Zeus’s cause of death was a “perforating

gunshot wound at the back.”

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at the scene, he observed Zeus lying unresponsive on the floor. Blood was oozing from

his head and abdominal area. Reyes testified that Mendoza was frantically screaming

that he had been shot. Reyes recovered a cell phone from Zeus’s right hand, several

spent casings scattered throughout the parking lot, and small baggies of synthetic

marijuana in the door panels of the vehicle.

HCSO Sergeant Hermelinda Chavez testified that she obtained surveillance video

from a nearby church. In the video, she was able to see the Ford SUV, which was “dark

colored, with [a] rear broken window.” The occupants of that vehicle were appellant and

Isaac. Chavez testified that she later located the Ford SUV at Isaac’s girlfriend’s

apartment.

Sergeant Lucio Torres with the HCSO assisted in Isaac’s arrest. According to

Torres, Texas Department of Public Safety (DPS) officers performed a traffic stop on

Isaac’s girlfriend’s vehicle. Isaac was a passenger inside the vehicle but “bailed out.”

Torres assisted in searching for Isaac in the area, and he recovered a Smith & Wesson

firearm, a Sturm Ruger firearm, and a magazine with some ammunition. Torres stated

that as part of his investigation, he reviewed video surveillance of Isaac purchasing duct

tape at Dollar General on the day of the murder.

United States Marshal Miguel Ruiz testified that he assisted in apprehending

appellant at a hotel in Harlingen. When the marshals confronted appellant, he fled the

scene, running toward the back of the hotel across a Burger King parking lot. Appellant

then jumped over a couple of fences into the parking lot of an abandoned hotel. Finally,

appellant was located hiding inside a trash can and was ultimately arrested.

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DPS forensic scientist Vanessa Robles testified that she performed a fingerprint

examination on a silver magazine that was recovered from where Isaac was arrested.

Robles explained to the jury the methods she used to perform this examination and make

her assessment. According to her analysis, a “suitable latent print developed and

preserved was identified to the left thumb on the exemplars from DPS files . . . . bearing

[appellant’s] name.” Her report was admitted into evidence. Similarly, forensic scientist

Norma Luna testified that she conducted firearms and fired ammunition examinations.

Based on her analysis, spent shell casings that were recovered from the scene were fired

from the Smith & Wesson and Ruger pistols, which were recovered when Isaac was

arrested.

HCSO Sergeant Investigator Javier Vargas testified that he recovered Zeus’s and

Mendoza’s cell phones. Upon his review, he noticed there were Facebook messages and

calls coming from Issac between 6:21 p.m. to 6:43 p.m., right before the homicide, which

occurred at 6:49 p.m. According to Vargas, there was no more communication between

Isaac and the victims after 6:49 p.m. The messages were admitted into evidence.

Immediately preceding the murder, appellant asked Zeus “Where you at?” and told him

“yo, coming bro.” Vargas subsequently obtained Isaac’s cell phone records, which

revealed that Issac’s cell phone was near the murder scene and also left the area

southbound after the murder.

Kenneth Jones testified that he is currently serving a sentence of 210 months in

federal prison for bank robbery. During his time in custody in Hidalgo County, he was held

with appellant in an “eight-man [holding] tank.” Jones testified that he became good

friends with appellant; they would eat together and work out together. Jones stated that

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appellant shared details of the murder with him because Jones “beat a lot of cases,” and

the two were “planning and strategizing how [appellant] could beat the case.”

According to Jones, appellant reported that he and Isaac planned to rob Zeus, and

the two “agreed that if the victim didn’t give it up, that they were going to kill him and take

[the drugs].” Appellant told Jones that appellant and Isaac were messaging Zeus through

Facebook and calling him from a burner phone because they did not want their personal

numbers to “show up on [Zeus’s] phone.” Jones continued: “And he told me how he did

a countdown. He counted down from 10, 9, 8, 7, 6, and then he said he counted all the

way down and he refused to give it up, so he blasted him.”

Jones testified that appellant “was worried about his cell phone pinging off the

tower at the time, placing him at the crime scene . . . . because they recovered his cell

phone.” According to Jones, if appellant bonded out of jail, “he was going to kill [Mendoza],

or if he couldn’t kill [Mendoza], he was going to flee to Mexico.” Appellant asked Jones to

tell appellant’s brother “that he was going to trial,” and he “wanted to kill” Mendoza, the

surviving victim, “as soon as possible because he wanted to go to trial . . . and [Mendoza]

was the only one who could identify [appellant] at the crime scene at the time the murder

took place.” Appellant wanted his brother to kill Mendoza in an inconspicuous way, such

as “catch[ing] him coming drunk from a club or something like that.”

B. Standard of Review & Applicable Law

To determine if the evidence is legally sufficient, we review all of the evidence in

the light most favorable to the verdict and determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. See

Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018); Nisbett v. State, 552

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S.W.3d 244, 262 (Tex. Crim. App. 2018) (“Due process requires that the State prove,

beyond a reasonable doubt, every element of the crime charged.”); Brooks v. State, 323

S.W.3d 893, 905 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). The factfinder is entitled to resolve conflicts in the testimony, weigh

the evidence, and draw reasonable inferences from basic facts. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). Reviewing courts “determine whether the

necessary inferences are reasonable based upon on the combined and cumulative force

of all the evidence when viewed in the light most favorable to the verdict.” Id. (quoting

Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). Appellate courts must

avoid “divide and conquer” strategies in reviewing the sufficiency of the evidence; instead,

appellate courts must consider the evidence cumulatively. See Nisbett, 552 S.W.3d at

262.

We give great deference to the trier of fact and assume the factfinder resolved all

conflicts in the evidence in favor of the verdict. See Murray v. State, 457 S.W.3d 446,

448‒49 (Tex. Crim. App. 2015); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). “An appellate court cannot act as a thirteenth juror and make its own assessment

of the evidence. A court’s role on appeal is restricted to guarding against the rare

occurrence when the factfinder does not act rationally.” Nisbett, 552 S.W.3d at 262. We

will uphold the verdict unless the factfinder “must have had reasonable doubt as to any

essential element.” Laster, 275 S.W.3d at 518.

“Circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Nisbett, 552 S.W.3d at 262. Legal

7
sufficiency of the evidence is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). Such a charge would instruct the jury that a person commits murder if he

intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN.

§ 19.02(b)(1). A person commits capital murder if the person intentionally commits murder

in the course of committing or attempting to commit, among other things, robbery. See id.

§ 19.03(a). A person commits an “attempted” offense if, “with specific intent to commit an

offense, he does an act amounting to more than mere preparation that tends but fails to

effect the commission of the offense intended.” Id. § 15.01(a).

C. Discussion

Here, Mendoza testified that appellant threatened him and Zeus during a failed

drug transaction, and small baggies of illegal narcotics were recovered from the door

panel of Zeus’s vehicle. See id. § 19.03(a)(2). When Zeus refused to give the drugs up,

Mendoza witnessed appellant shoot Zeus in the face, causing his eye to “literally pop

out.” This testimony, alone, is sufficient to support the convictions. Davis v. State, 177

S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (en banc) (“It is well

established that a conviction may be based on the testimony of a single eyewitness.”).

Once Zeus was able to run away, appellant fired another shot at Zeus, causing Zeus to

collapse. Appellant returned to Mendoza, who was pleading for his life and shot Mendoza

in the abdomen. There was evidence that appellant exchanged messages and calls with

Zeus immediately preceding the shooting. Cell phone data revealed appellant was at the

crime scene at the time of the murder before he fled the scene. See Devoe v. State, 354

S.W.3d 457, 470 (Tex. Crim. App. 2011) (“[F]light is admissible as a circumstance from

8
which an inference of guilt may be drawn.”) (quoting Alba v. State, 905 S.W.2d 581, 586

(Tex. Crim. App. 1995)); see also Spruiell v. State, No. 14-23-00465-CR, 2024 WL

4676382, at *8 (Tex. App.—Houston [14th Dist.] Nov. 5, 2024, pet. ref’d) (mem. op., not

designated for publication) (holding cell phone tower records placing appellant at the

scene of the crime was cumulative legally sufficient evidence to support a murder

conviction); In re A.G., No. 01-18-01092-CV, 2020 WL 4006449, at *6 (Tex. App.—

Houston [1st Dist.] July 16, 2020, pet. denied) (mem. op.) (finding cumulatively sufficient

evidence to support a conviction for capital murder where appellant’s phone had contact

with the victim’s phone on the date of the murder and appellant’s phone was near the

crime scene around the time of the murder). Ruiz testified that appellant fled the scene

and absconded from law enforcement before he was ultimately found hiding in a trash

can. See Devoe, 354 S.W.3d at 470.

Expert testimony established that spent shell casings recovered from the scene

were fired from the two handguns found in Isaac’s possession, and appellant’s

fingerprints were found on the magazine of one of the handguns. Furthermore, there was

evidence that appellant fled the scene in a blue Ford SUV, which was recovered from his

girlfriend’s house, and contained broken rear windows that were taped with black duct

tape. There was also testimony that appellant was seen on video purchasing duct tape

on the day of the murder. Jones testified that appellant confided in him and revealed

particular details about appellant’s plan to rob Zeus as well as his plan to kill him if the

robbery did not go as planned. And finally, there was testimony that appellant had wanted

Mendoza killed before the trial because he was the only witness that could put appellant

at the scene. Based on all the evidence presented, we conclude that a rational trier of fact

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could have found the essential elements of capital murder beyond a reasonable doubt.

See Ingerson, 559 S.W.3d at 509; see also Alejandro v. State, No. 13-19-00183-CR, 2020

WL 6789042, at *5 (Tex. App.—Corpus Christi–Edinburg Nov. 19, 2020, no pet.) (mem.

op., not designated for publication). Regarding attempted capital murder, we conclude

the same evidence was legally sufficient for the jury to find that appellant shot Mendoza

in the abdomen with specific intent to cause his death during the commission of a robbery.

See TEX. PENAL CODE ANN. § 15.01(a); Cavazos v. State, 382 S.W.3d 377, 384 (Tex.

Crim. App. 2012) (“[T]he specific intent to kill may be inferred from the use of a deadly

weapon.”). We overrule appellant’s first and second issues.

II. CORROBORATION OF JAILHOUSE-WITNESS TESTIMONY

By his third issue, appellant argues the evidence was legally insufficient to connect

him to the crime under Article 38.075. According to appellant, if all of Jones’s testimony

is eliminated, “the remaining evidence that allegedly implicates [appellant] does not

sufficiently tend to connect [him] to the offense.” By his fourth and fifth issues, appellant

argues his trial counsel was ineffective for failing to object to Jones’s testimony and failing

to request an Article 38.075 jury instruction. By his sixth issue, appellant argues the trial

court erred by failing to issue such an instruction sua sponte. Because these issues are

all related, we address them together.

A. Applicable Law

A defendant may not be convicted of an offense on the testimony of a
person to whom the defendant made a statement against the defendant's
interest during a time when the person was imprisoned or confined in the
same correctional facility as the defendant unless the testimony is
corroborated by other evidence tending to connect the defendant with the
offense committed.

TEX. CODE CRIM. PROC. ANN. art. 38.075(a); see Phillips v. State, 463 S.W.3d 59, 61 (Tex.

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Crim. App. 2015). “Jailhouse-witness testimony is inherently unreliable due to the

inmate’s incentive to better his circumstances.” Phillips, 463 S.W.3d at 66. Thus, Jones’s

testimony about what appellant told him regarding his involvement in Zeus’s death while

both were incarcerated requires corroboration. See Ruiz v. State, 358 S.W.3d 676, 680

(Tex. App.—Corpus Christi–Edinburg 2011, no pet.).

Furthermore, “[a] trial court must sua sponte include an article 38.075 jailhouse-

witness instruction when applicable to the case.” Martinez v. State, 662 S.W.3d 496, 500

(Tex. App.—San Antonio 2018, pet. ref’d). “An article 38.075 instruction informs the jury

it cannot rely on jailhouse-witness testimony unless there is also other independent

evidence connecting the defendant to the offense.” Id. “[W]hen a trial court errs by not

giving a jailhouse-witness instruction sua sponte, we will reverse only if the record shows

appellant suffered ‘egregious harm’ from the omission.” Id. To make this determination,

we eliminate the jailhouse witness’s testimony from consideration and examine the

remaining portions of the record to see if there is any evidence tending to connect the

defendant with the commission of the crime.” Id.; Ruiz, 358 S.W.3d at 680.

The existence of corroborating evidence “tending to connect” appellant to the

offense will “render harmless” the trial court’s failure to submit an article 38.075

instruction. Martinez, 662 S.W.3d at 500. Assuming that Jones’s testimony warranted an

article 38.075 instruction and that the trial court erred by not including such an instruction

in the jury charge, we examine whether the lack of the instruction resulted in egregious

harm. Id.

B. Discussion

Notwithstanding Jones’s testimony, there is ample evidence to connect appellant

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to the crime. Mendoza testified that appellant, while inside Zeus’s car, held them both at

gunpoint, demanding that he and Zeus give appellant their phones, their stuff, and the

drugs. When Zeus refused, appellant shot Zeus in the face then shot him again while he

attempted to run away. See Cavazos, 382 S.W.3d at 384. The medical examiner testified

that appellant died from a gunshot wound to the back. Mendoza further testified that while

he was pleading for his life, appellant shot Mendoza in the abdomen and left him to die.

See id.

Immediately preceding the murder, appellant was sending Facebook messages

asking, “Where you at?” and “yo, coming bro.” This communication stopped immediately

after the murder. This evidence corroborates Jones’s testimony that appellant was

communicating with Zeus through Facebook messenger on the day of the murder. See

Brooks, 357 S.W.3d at 782; see also Keys v. State, No. 05-22-00669-CR, 2023 WL

3493317, at *3 (Tex. App.—Dallas May 17, 2023, no pet.) (mem. op., not designated for

publication). Law enforcement testified that appellant’s cell phone records indicated

appellant’s phone number was within the area of the crime scene at the time of the

murder. “‘[P]roof that the accused was at or near the scene of the crime at or about the

time of its commission, when coupled with other suspicious circumstances, may tend to

connect the accused to the crime so as to furnish sufficient corroboration to support a

conviction.’” Ruiz, 358 S.W.3d at 680‒81 (quoting Smith, 332 S.W.3d at 443). There was

also evidence that appellant’s thumbprint matched a thumbprint recovered from the

magazine of a pistol that was found in Isaac’s possession during his apprehension. See

Cockrum v. State, 758 S.W.2d 577, 582 (Tex. Crim. App. 1988) (proof that connects an

accused to weapon used in offense is proper corroborating evidence). And expert

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testimony linked the pistols recovered from Isaac to the shell casings which were

recovered from the crime scene. See id. There was evidence that appellant absconded

from law enforcement and led them on a chase before he was finally located hiding in a

trash can.

Based on the foregoing, we find the evidence aside from Jones’s testimony

sufficiently connected appellant to Zeus’s murder. Therefore, we overrule appellant’s third

issue. See Washington v. State, 449 S.W.3d 555, 572 (Tex. App.—Houston [14th Dist.]

2014, no pet.) (holding that once it is determined that independent evidence tending to

connect the defendant to the offense exists, the purpose of the jailhouse-witness

instruction is fulfilled, and the instruction plays no further role in the factfinders’ decision-

making process). For the same reason, even assuming that counsel was deficient in

failing to request a jury instruction under article 38.075, we conclude there was no

prejudicial effect. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986);

see also Strickland v. Washington, 466 U.S. 668, 686 (1984) (holding that, to obtain

reversal on the basis of ineffective assistance of counsel, “[t]he defendant must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different”). Therefore, we overrule appellant’s fourth

and fifth issues. Lastly, even assuming the trial court erred in failing omit the jailhouse-

witness instruction, we conclude it did not egregiously harm appellant. See Brooks, 357

S.W.3d at 782‒84 (holding that the trial court’s failure to give a jailhouse-witness

instruction did not egregiously harm the defendant where there was corroborating

evidence tending to connect him to the offense). Accordingly, we overrule appellant’s

sixth issue.

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III. PROSECUTORIAL MISCONDUCT

By his seventh and eighth issues, appellant argues that the State committed

misconduct when it elicited testimony and evidence pertaining to his post-arrest silence

thereby violating his rights under Article 1 § 10 of the Texas Constitution and the Fifth and

Fourteenth Amendments of the United States Constitution. The State asserts appellant

failed to preserve error.

To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for the desired

ruling if they are not apparent from the context of the request, objection, or motion. TEX.

R. APP. P. 33.1(a)(1)(A). A defendant’s rights under the Fifth Amendment and Texas

Constitution article I, § 10 may be forfeited by failing to properly preserve error.

Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. 2004) (en banc) (determining that

appellant’s objections referring to the “Fifth Amendment” were insufficient to preserve

error under the Texas Constitution); see Salazar v. State, 131 S.W.3d 210, 214 (Tex.

App.—Fort Worth 2004, pet. ref’d) (finding appellant’s failure to object to the State’s post-

arrest silence questions precluded his raising the issue on appeal); see also Larios v.

State, No. 13-15-00022-CR, 2015 WL 9487107, at *4 (Tex. App.—Corpus Christi–

Edinburg Dec. 29, 2015, no pet.) (mem. op., not designated for publication) (concluding

that appellant failed to preserve error regarding the State’s comments on his post-arrest

silence because he did not object at trial); Lamas v. State, No. 13-10-00443-CR, 2011

WL 3366399, at *6 (Tex. App.—Corpus Christi–Edinburg Aug. 4, 2011, no pet.) (mem.

op., not designated for publication) (finding the issue was not preserved for our review

when appellant failed to object at trial regarding his pre-arrest silence).

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Appellant concedes that he failed to object but asserts that the conduct here

“constitute[d] fundamental error affecting his substantial rights.” However, “even

constitutional errors . . . may be forfeited on appeal if an appellant failed to object at trial.”

Garza v. State, 435 S.W.3d 258, 261 (Tex. Crim. App. 2014); Curiel v. State, 243 S.W.3d

10, 19 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (finding that appellant’s objection

at trial did not comport with his complaint on appeal concerning appellant’s post-arrest

silence and therefore waived his complaint); see also Lairos, 2015 WL9487107, at *4

(stating that “the right against self-incrimination is forfeitable and not waivable or

absolute”). Therefore, appellant’s “failure to object extinguishes this right and any

corresponding error for the purposes of this appeal.” See Garza, 435 S.W.3d at 261; see

also Lairos, 2015, WL 9487107, at *4. Accordingly, we overrule appellant’s seventh and

eighth issues.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

By his ninth and tenth issues, appellant argues that his trial counsel was ineffective

when he failed to object to evidence regarding his invocation of Miranda rights under the

Texas and United States Constitutions.

A. Standard of Review & Applicable Law

To prevail on his ineffective-assistance-of-counsel claims, appellant must prove

(1) counsel’s representation fell below an objective standard of reasonableness, and (2)

a reasonable probability that but for counsel’s alleged deficiency the result of the

proceeding would have been different. See Hernandez, 726 S.W.2d at 55. We indulge a

strong presumption that counsel’s actions fell within the wide range of reasonable

professional behavior and were motivated by sound trial strategy. Thompson v. State, 9

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S.W.3d 808, 813 (Tex. Crim. App. 1999). To defeat this presumption, any allegation of

ineffectiveness must be firmly grounded in the record so that the record affirmatively

shows the alleged ineffectiveness. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App.

2017).

Trial counsel generally should be given an opportunity to explain their actions

before the court finds counsel ineffective. Id. In most cases, a direct appeal proves an

inadequate vehicle for raising an ineffective assistance claim because the record

generally stands undeveloped and cannot adequately reflect the motives behind trial

counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003);

Thompson, 9 S.W.3d at 813–14. In the face of a silent record, we cannot know trial

counsel’s strategy, so we will not find deficient performance unless the challenged

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); see Hart v. State, 667

S.W.3d 774, 783 (Tex. Crim. App. 2023).

The right to effective assistance of counsel does not entitle a defendant to errorless

or perfect counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

Instead, we “review the totality of the representation and the circumstances of each case

without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App.

2011).

B. Pertinent Facts

During trial, the State questioned HCSO Sergeant Miguel Lopez whether he

advised appellant of his Miranda rights and whether appellant understood them. Lopez

responded, “Yes, he did. And he chose not to waive those rights, so the interview was

16
terminated.” The form indicating that appellant chose to invoke his Miranda rights was

admitted into evidence as State’s Exhibit 274, and the interrogation video demonstrating

the same was offered as State’s Exhibit 275. The trial court then instructed the jury:

Okay. Ladies and gentlemen of the jury . . . you’ve seen and heard
something here on the State’s Exhibit 275. I’m going to give you an
instruction. You should totally disregard anything that you saw in this video,
anything that was said, anything that you saw. I’m going to disallow 275 as
an exhibit, so do not consider it for any purpose. If you wrote down notes
on what he said, you should scratch out those notes at this time[,] so the
Court is disallowing the video and also any comments that were made or
anything that was shown, so do not consider it for any purpose against the
defendant.

On cross-examination, Lopez confirmed that appellant did not “waive his right [against]

self-incrimination.” The trial court did not admit the video interrogation evidence but did

admit State’s Exhibit 274. Defense counsel did not object to either exhibit.

C. Discussion

Appellant argues that trial counsel’s performance “fell outside the range of

professional competent assistance, and given the scant evidence in this case, but for

counsel’s failure to object, a different outcome to the proceeding would have occurred.”

However, we need not address the deficient-performance prong of the Strickland analysis

because appellant cannot show a reasonable probability that but for trial counsel’s alleged

errors, a different outcome would have resulted. See Hernandez, 726 S.W.2d at 55; see

Strickland, 466 U.S. at 670 (“A court need not first determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, that course should be followed.”); Cox v. State,

389 S.W.3d 817, 819 (Tex. Crim. App. 2012) (concluding that a reviewing court need not

17
consider both prongs of the Strickland test and can dispose of an ineffectiveness claim if

the defendant fails to demonstrate sufficient prejudice).

First, appellant has failed to demonstrate a reasonable probability that the

admission of Exhibit 274 prejudiced him. Appellant fails to consider all the other evidence

that was presented that supported his conviction and does not explain how the outcome

of the proceedings would have been different other than a general statement that it would

have led the jury to infer his silence equated to guilt. We disagree with appellant that the

evidence in this case amounts to “scant” evidence, such that any question “about his post-

arrest silence was tantamount to offering [him] up for conviction.” Second, the trial court

sua sponte instructed the jury to not consider Exhibit 275 for any purpose; therefore, it

would not have made any difference to the proceedings had defense counsel lodged an

objection to it. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (“[W]e

generally presume the jury follows the trial court’s instructions in the manner presented.”).

We overrule his first last two issues.

V. CONCLUSION

We affirm the judgment of the trial court.

JAIME TIJERINA
Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
16th day of October, 2025.

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