NUMBERS 13-24-00109-CR, 13-24-00110-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ANTHONY DESHAWNTI PERRY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 23RD DISTRICT COURT OF MATAGORDA COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, Peña, and Cron Memorandum Opinion by Justice Cron
A jury convicted appellant Anthony Deshawnti Perry of aggravated assault with a
deadly weapon and unlawful possession of a firearm by a felon, and he was sentenced
to life imprisonment on each offense. See TEX. PENAL CODE ANN. §§ 22.02(a)(2), 46.04(a). By what we construe as two issues, appellant argues that (1) his trial counsel was
ineffective; and (2) the trial court reversibly erred by admitting unauthenticated hearsay
evidence over appellant’s objection. We affirm.
I. BACKGROUND
A. Pre-Trial
On January 25, 2021, appellant was indicted for aggravated assault with a deadly
weapon in trial court cause number 21-023-013, and unlawful possession of a firearm by
a felon in trial court cause number 21-023-014.
In pertinent part, the indictment in trial court cause number 21-023-013 alleged
that appellant “on or about the 25th day of October 2020, did then and there intentionally
or knowingly threaten [O.B.] 1 with imminent bodily injury and did then and there use or
exhibit a deadly weapon, to-wit: a firearm, during the commission of said assault.”
Additionally, in pertinent part, the indictment in trial court cause number in 21-023-014,
alleged that appellant:
on or about the 25th day of October, 2020, did then and there, having been convicted of the felony offense of Assault Family Violence with Priors on the 26th day of March 2020, in cause number 86691-CR in the 239th District Court of Brazoria County, Texas intentionally or knowingly possess a firearm before the fifth anniversary of the defendant[’]s release from supervision under parole following conviction of said felony[.]
On January 9, 2024, less than a month away from trial, appellant was appointed
his fourth trial counsel.
1 To protect the identity of the complainant we refer to by her initials. See TEX. CONST. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”).
2 B. Trial 2
A jury was impaneled on the first day of trial, February 5, 2024, and the following
jurors were seated: numbers 17, 23, 27, 29, 30, 32, 33, 34, 35, 36, 37, 38, and 51, as an
alternate. Trial proceeded over the next to two days, February 6, 2024, and February 7,
2024, and the State presented six witnesses during the guilt-innocence phase. These
witnesses testified about the incident and events that took place before and after the
incident.
1. The Incident
After a disagreement the night before with appellant over his communication with
other women, O.B., appellant’s ex-wife, testified that on October 25, 2020, she got up in
the morning and left to watch a football game at her cousin’s house. She explained that
she no longer wanted to argue with appellant and wanted him to leave her house. O.B.
testified that she had invited appellant to stay over at her home because he claimed he
had nowhere else to go. She admitted she still loved him.
While at her cousin’s house, O.B. turned her phone off because appellant was
continuously texting her. When she turned her phone back on, she discovered that she
had several messages from appellant. After a lot of back and forth ensued, she suggested
that they go to the beach to “talk about this.” She explained that going to the beach used
to be their “thing on Sundays.” O.B. testified that she saw appellant leaving as she arrived
home but he turned around, parked, and immediately grabbed her keys and her phone.
She testified that out of habit and despite being scared, she got in her car and appellant
began driving to the beach.
2 The background was derived from the testimony and evidence adduced at trial.
3 As they were driving, O.B. testified that appellant is “arguing he’s basically tired of
me putting the laws in his life. We were just talking about stuff. It was like no big deal.
Let’s talk about it. I am trying to calm him down. He’s going back to the times he’s been
in prison with me. He’s sick at that.” Unsure of how they got to this point, O.B. stated that
he “did pull a gun out.” O.B. testified that appellant “was just in this rage and I am just
steady calm down, and you know, at this time like I said, I saw this gun and he threatened.”
She further testified that, after drawing the gun, he initially threatened to “kill” her. After
O.B. questioned him, appellant said, “I won’t kill you[,] but I will pistol whip you.” Although
O.B. explained the events that day she was unable to reenact what appellant did with the
gun.
O.B. explained that at one point she told appellant to stop so she could use the
restroom, and when he stopped on the side of the road she turned on another phone that
she kept in her purse. Back in the car, O.B. testified that after thinking “I want to get away
from this man,” she asked appellant to stop at a grocery store so she could use the
restroom again and they could purchase some beer. From inside a restroom stall, she
called the Bay City Police Department (BCPD), informing the operator where she was
and what kind of car she was in. 3 She explained that she did not remain in the stall
because “this was a routine thing,” and otherwise “he probably would have c[o]me in.”
After seeing police vehicles on the way to self-checkout, O.B. explained appellant exited
the store, but a BCPD officer located him shortly thereafter.
Emma Byrd, former BCPD dispatcher and 911 operator, received the call from
O.B. and dispatched BCPD officers to the location. Upon arrival, BCPD Officer Ruben
3 A recording of the call was admitted into evidence.
4 Gutierrez testified that he drove around the parking lot because details were unclear, but
O.B. then waived him down. After obtaining a brief synopsis from her about what
happened, including learning that a weapon was involved and appellant’s description,
Officer Gutierrez observed appellant walking towards the entrance of the store. Officer
Gutierrez observed appellant speeding up to “run into HEB” after making eye contact with
him. He testified that he located appellant in the grocery store walking down an aisle and
detained him. According to Officer Gutierrez, they exited the store and briefly met with
two other responding officers, at which time appellant explained after being asked by one
of the officers, Dan Shook, a former BCPD sergeant, whether he was allowed to have a
firearm and why he had one, that he was returning it to a person that let him borrow it.4
A short time later Officer Gutierrez transported appellant to jail.
Former Sergeant Shook testified that, when appellant was detained outside the
grocery store after being asked, appellant told him that the firearm was in his wife’s car,
that he was a felon, and that he was “taking it back to a friend.” Appellant also told
Sergeant Shook that “he borrowed it the day before and was taking it back to the friend
that day.” Sergeant Shook stated that he retrieved the gun from the vehicle, and it was
“tucked right between the driver’s seat and console” of the vehicle. He testified that the
gun was fully loaded but no bullet in the chamber. Sergeant Shook denied wiping the gun
down and explained that it seemed to be in good condition.
BCPD Senior Crime Investigator Donna Pruitt testified that she did not find prints
on the gun or the bullets. She explained that she was able to locate the registered owner
4 A recording taken from Officer Gutierrez’s body worn camera was admitted into evidence which
depicted some of appellant’s interaction with the other on-scene officers outside of the grocery store. The video shows Officer Gutierrez stepping away at one point to retrieve his police vehicle. 5 of the gun by its serial number, and the owner had previously reported to law enforcement
that some guns were stolen from her residence without providing serial numbers. When
officers ran the gun, it did not come back as stolen.
2. Prior to the Incident
During O.B.’s testimony the State asked her whether appellant was convicted in
March of 2020 of assault family violence with a previous conviction, and O.B. replied,
“Yes, ma’am.” O.B., also replied, “Yes, ma’am,” when asked whether she was the victim
of that offense. Further, she replied “Yes, ma’am” when asked whether appellant was on
parole for the March of 2020 offense when he came to her home. 5
3. Post-Incident
After appellant’s arrest, O.B. testified that she visited Shawanna Goodwin, a former
employee of hers, at Goodwin’s house. They were discussing the incident and there was
another man there that knew appellant had been arrested. O.B. said, “They call him little
ugly[,]” and he refers to appellant as “P-dog.” O.B. explained that “little ugly” stated, “man
P Dog got arrested. He was supposed to have did something with his wife and then
proceeded on talking about the one night that [appellant] picked him up and wanted him
to ride with him to Sweeny to go kill his wife.” According to O.B., Goodwin then asked
“little ugly” if he knew who O.B. was and he replied “no.” O.B. then said “[W]ell I’m the
wife that he wanted to kill[.]”
5 After the testimony, the State then moved to admit a Declaration of Sarah H. Wright who said
therein, among other things, that she is “the custodian of records for the Classification and Records, a part of the Texas Department of Criminal Justice (TDCJ) located in Huntsville, Texas. Attached are true and correct copies of information provided on Perry, Anthony[,]” a brief letter dated February 2, 2024, and a Judgment of Conviction by Court – Waiver of Jury Trial.” These documents were admitted, without objection, as State’s Exhibit No. 12. 6 Gary Will Nixon testified that he knew appellant 6 by the name of “P Dog” and that
folks that know him call him “little ugly.” He then denied knowing Goodwin, could not recall
that appellant had been arrested, denied that P-dog ever asked him to go on a ride with
him, denied that appellant ever asked him to go to Sweeny, and denied that he ever told
anybody that appellant asked him to go to Sweeny. The State later recalled Nixon, who
indicated that he had been “spooked” during his previous testimony because of the
seriousness of the alleged offense. He then explained “[T]here was a time [appellant] said
that he wanted to ride to Sweeny with him[,]” and when he got in the vehicle, appellant
“showed [him] a gun.” Nixon clarified that appellant showed him a handgun, and he said
that appellant then stated, “I am going to go do something to my ex-wife” and asked, “You
want to ride with me[?]” Nixon further explained that appellant said, “I hate to do this man.
But I think she need—get—tell her—get off my back.” He also explained that appellant
clarified, “I am just thinking about it.” He also explained it is possible that O.B. was there
when he was there telling this story to a woman he calls “Wanny”, but he was unsure
because he did not know who O.B. was at the time. Nixon confirmed that it is “pretty
common for people to say I am going to kill that mother[*]ucker and they don’t mean it[.]”
Nixon did not believe that appellant was being serious.
According to O.B., appellant signed his property that he had at the jail (a wallet, a
phone, and possibly some jewelry) over to Goodwin, and Goodwin gave it to O.B.
because appellant wanted O.B. to come get his stuff. O.B. went through the phone and
observed several text messages that she photographed with her phone and then provided
6 Initially, the record shows his identification was made through a description of clothing but on
recall, Nixon confirmed that P Dog is appellant. 7 to the State. 7 O.B. testified that appellant pressured her along with other family members
to drop the charges, and she eventually signed an affidavit of non-prosecution. But she
explained that she met with the State’s investigator at the time she signed the affidavit
and indicated to the investigator that she was still willing to be truthful and would testify if
called to do so.
4. Verdict
The jury found appellant guilty in both causes and a punishment hearing was held.
The State presented two witnesses: O.B and Senior Crime Investigator Pruitt. Appellant’s
trial counsel briefly cross-examined O.B. but presented no other evidence. The jury
subsequently sentenced appellant on both causes to life in prison.
Appellant filed a motion for new trial, and an ineffective assistance claim was
raised in the motion, but no hearing was held. This appeal followed. See TEX. CODE CRIM.
PROC. ANN. art. 44.02; TEX. R. APP. P. 25.2(a)(2).
II. INEFFECTIVE ASSISTANCE OF COUNSEL
We understand appellant to assert ineffective assistance of counsel because his
trial counsel failed to (1) properly conduct voir dire, (2) object to extraneous offense
evidence, and (3) provide any mitigation evidence at sentencing. He asserts that each
ground alone demonstrates that his trial counsel was ineffective. Alternatively, he claims
these collective errors rendered trial counsel’s representation ineffective.
A. Standard of Review & Applicable Law
The United States Constitution and the Texas Constitution guarantee individuals
the right to assistance of counsel in a criminal prosecution. U.S. CONST. amend. VI; TEX.
7 The photographs were admitted into evidence.
8 CONST. art. 1, § 10. We review ineffective assistance claims under the well-established
standard in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, appellant must
prove by a preponderance of the evidence that (1) counsel’s performance was deficient,
meaning it fell below an objective standard of reasonableness, and (2) the deficient
performance prejudiced the defense. Id. at 687; Ex parte Covarrubias, 665 S.W.3d 605,
609 (Tex. Crim. App. 2023); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). “In other words [with respect to the second prong], appellant must show a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Thompson, 9 S.W.3d at 812. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Ex parte
Saenz, 491 S.W.3d 819, 826 (Tex. Crim. App. 2016). “Failure to succeed on either prong
is fatal to the ineffectiveness claim.” Ex parte Lane, 670 S.W.3d 662, 671 (Tex. Crim. App.
2023) (citation omitted). An appellant has the burden to prove ineffective assistance of
counsel claims by a preponderance of the evidence, and we review counsel’s
performance by the totality of the representation, not by isolated acts or omissions. See
Thompson, 9 S.W.3d at 813; see also Castellano v. State, No. 13-23-00094-CR, 2024
WL 379534, at *2 (Tex. App.—Corpus Christi–Edinburg Feb. 1, 2024, pet. ref’d) (mem.
op., not designated for publication). “Any allegation of ineffectiveness must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Thompson, 9 S.W.3d at 813. When trial counsel has not been given an
opportunity to address the allegations of ineffective assistance and explain their trial
strategy, we must presume that trial court’s performance was adequate unless the
challenged conduct was “so outrageous that no competent attorney would have engaged
9 in it.” State v. Morales, 253 S.W.3d 686, 696–97 (Tex. Crim. App. 2008) (quoting
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
When the deficient performance pertains to punishment, prejudice “would depend
on a reasonable probability that the sentencer would have assessed a more lenient
punishment absent the errors.” Swinney v. State, 663 S.W.3d 87, 90 (Tex. Crim. App.
2022). There is a “strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance” and that counsel’s performance constitutes
“sound trial strategy.” Strickland, 466 U.S. at 689 (citation omitted). That is, judicial
scrutiny of counsel’s conduct is highly deferential. Ex parte Saenz, 491 S.W.3d at 826.
“In assessing an attorney’s performance, every effort must be made to eliminate the
distorting effects of hindsight.” Ex parte Covarrubias, 665 S.W.3d at 610. A direct appeal
is usually an inadequate vehicle for raising an ineffective-assistance-of-counsel claim
because the record is generally undeveloped. See Goodspeed, 187 S.W.3d at 392; see
also Castillo v. State, No. 01-23-00334-CR, 2025 WL 793292, at *3 (Tex. App.—Houston
[1st Dist.] Mar. 13, 2025, no pet.) (mem. op., not designated for publication) (“Generally,
a silent record that provides no explanation for counsel’s actions will not overcome the
strong presumption of reasonable assistance.” (citation omitted)). Trial counsel should
ordinarily be afforded an opportunity to explain his conduct before being denounced as
ineffective. Hart v. State, 667 S.W.3d 774, 782 (Tex. Crim. App. 2023). A defendant is not
entitled to “errorless or perfect counsel whose competency of representation is to be
judged by hindsight.” Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
10 B. Analysis
1. Failure to Properly Conduct Voir Dire
By his first sub-issue and with reliance on Montez v. State, appellant argues his
trial counsel failed to examine any of the jurors who indicated they knew law enforcement
agents who participated in the investigation of the case. 824 S.W.2d 308 (Tex. App.—
San Antonio 1992, no pet.). Appellant argues that venirepersons 30 and 34, sat on the
petit jury without being challenged or struck by trial counsel, “even though the record does
not record [trial] counsel using any of his preemptory strikes.”
First, we address appellant’s broader complaint that his trial counsel “failed to
examine any jurors who had previously answered the State’s questions about whether
they knew law enforcement agents who actively participated in investigating the case.”
Our review of the record revels that, apart from venirepersons 30 and 34, venirepersons
10, 26, 28, and 44 did indicate some relationship with one or more of the named law
enforcement officials but none of them sat on the jury, which consisted of juror numbers
17, 23, 27, 29, 30, 32, 33, 34, 35, 36, 37, 38, and 51 as an alternate. See Jackson v.
State, 877 S.W.2d 768, 772 (Tex. Crim. App. 1994) (concluding that appellant failed to
meet his burden of showing that his trial counsel’s assistance was ineffective after
reasoning, among other things, that “the actions of appellant’s trial counsel regarding
venire members, Hartsfield and Deltoro are not material to our determination of whether
appellant’s trial counsel was ineffective, since neither were seated on the jury”). And we
observe that venireperson 39 indicated knowing them by name only, but stated, “I have
no relationship with them.” Again, though, venireperson 39 was not seated on the jury.
See id. Thus, even if we were to presume appellant’s trial counsel acted deficiently in this
11 instance, appellant has not demonstrated that he was prejudiced by counsel’s action. See
Strickland, 466 U.S. at 687.
Next, with respect to appellant’s complaints regarding trial counsel’s failure to
examine venirepersons 30 and 34, we conclude that appellant has failed to meet the first
Strickland prong. See id. The following pertinent exchange occurred:
[State]: Okay. Thank you, number 47. Thank you. [O.B.’s] son is [D.B.]. Does anybody know [D.B.]? And I am going to call out a few law enforcement officials. Emma Byrd, she was a dispatcher at Bay City Police Department[,] Darrel Brillo is in charge of the jail and Mike Classky he used to be and Donna Pruitt and Vickie they are in charge of ID and evidence. Dan Shook is with the Bay City Police Department. Jermey Washington and Ruben Gutierrez, does anybody know any of those officers or have a relationship with them you wouldn’t be able to set aside? Juror what’s your number?
....
Okay. Thank you and 30? Based on your relationship with any of those people[, is] that a relationship you can set aside?
[Venireperson]: Yes.
[State]: Thank you. 34?
[Venireperson]: Yes. Darrel.
[State]: And based on your relationship is that a relationship you can set aside?
As shown above, as compared to Montez, the record here does not affirmatively
show venireperson 30 had a relationship with one or more of the named “law enforcement
officials”. Cf. 824 S.W.2d at 310 (“The record reflects that prospective juror Batschelet
12 admitted knowing the State’s chemist, Jeffrey Todd. Despite this admission, counsel
never inquired about the relationship between the witness and the venire person; Mr.
Batschelet later served on the jury.”). Instead, since the State asked the prospective jurors
about law enforcement officials and D.B. at the same time, it is unclear who venireperson
had a relationship with. Additionally, the record is silent as to why trial counsel failed to
clarify or follow up any further with venireperson 30 or use one of his preemptory strikes
on this juror, thus, appellant has failed to overcome the strong presumption that his trial
counsel’s decision was anything but a strategic one. See Strickland, 466 U.S. at 687; see
also Goodspeed, 187 S.W.3d at 392 (concluding no deficient performance on silent
record when counsel did not ask any questions during voir dire); Rodriguez v. State, No.
04-17-00336-CR, 2018 WL 3635161, at *5–6 (Tex. App.—San Antonio Aug. 1, 2018, no
pet.) (mem. op., not designated for publication) (concluding that appellant’s complaint that
his trial counsel was ineffective for allowing two venirepersons, one who refused to state
that he could follow the law and one who was friends with the prosecutor, after reasoning
that without any testimony from trial counsel, “[w]e must presume defense counsel had a
plausible reason for his actions” and that he acted within that range of reasonable
professional assistance (citation omitted)).
Moreover, it is possible that trial counsel’s conduct could have been grounded in
legitimate trial strategy. For instance, trial counsel could have observed these jurors’ facial
expressions and attitude during voir dire and determined they were acceptable, including
the fact that they both affirmatively stated that they could put aside their relationships.
See Hartwell v. State, 476 S.W.3d 523, 533 (Tex. App.—Corpus Christi–Edinburg 2015,
pet ref’d) (overruling appellant’s second issue for failing to meet Strickland’s first prong
13 that he was not afforded effective assistance because his trial counsel failed to challenge
for cause or request a preemptory strike to remove a veniremen who had affirmatively
stated he could not remain objective if shown graphic evidence after explaining that the
reasons for trial counsel's conduct do not appear in the record, and it is possible that her
conduct could have been grounded in legitimate trial strategy by observing the
veniremen’s facial expressions and attitude). Nonetheless, even if we assume appellant’s
trial counsel’s performance was deficient, for failing to question venireperson 34 or use
one of his preemptory strikes on this juror, appellant has not demonstrated he was
prejudiced as the record does not reflect Brillo testified. See Strickland, 466 U.S. at 687.
Accordingly, we overrule appellant’s first sub-issue.
2. Failure to Object to Extraneous Offense Evidence
By his second sub-issue, appellant contends that his trial counsel was ineffective
for failing to object to extraneous offense evidence. He directs us to five points in the
record where the “State mentions that [appellant] was on parole for a separate assault of
the complainant and elicits testimony to the same effect.” Our review of the record on
these points shows that the State briefly referenced appellant being on parole during its
opening statement; elicited testimony from O.B. that appellant had a prior felony
conviction in March of 2020 for assault family violence with previous convictions in which
she was the victim and that appellant was on parole when he came to her home, 8 moved
into evidence the prior felony conviction 9 during O.B.’s testimony; and the State argued
8 We also observe that the State referenced a 2005 judgment during O.B.’s testimony (in response
to her prior answer) but also questioned O.B. on whether the judgment was the one recently discussed and our review of the record shows that to be the 2020 judgment. 9 As referenced above, we observe a “Judgment of Conviction by Court – Waiver of Jury Trial” as
14 in closing that appellant was on parole, was a felon given the prior felony judgment
conviction, and the jury should find him guilty of unlawful possession of a firearm by a
felon based on those facts.
“To successfully assert that trial court’s failure to object amounted to ineffective
assistance of counsel, the applicant must show that the trial judge would have committed
error in overruling such an objection.” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim.
App. 2011). A trial court’s ruling admitting extraneous-offense evidence will generally fall
within the zone of reasonable disagreement. Devoe v. State, 354 S.W.3d 457, 469 (Tex.
Crim. App. 2011).
To obtain a conviction for unlawful possession of a firearm by a felon, the State
had to present evidence of the prior felony conviction it alleged in the indictment because
it is an element of the offense. See TEX. PENAL CODE ANN. §§ 46.04(a)(1) (“A person who
has been convicted of a felony commits an offense if he possesses a firearm: after
conviction and before the fifth anniversary of the person’s release from confinement
following conviction of the felony or the person’s release from supervision
under . . . parole, . . . whichever date is later[.]”), 1.07(23) (defining felon); Ex parte
Jimenez, 361 S.W.3d 679, 683 (Tex. Crim. App. 2012) (“To obtain a valid conviction for
unlawful possession of a firearm the State must prove a defendant’s felony status at the
time of the possession of the firearm.”); Tapps v. State, 294 S.W.3d 175, 182 (Tex. Crim.
App. 2009) (concluding appellant’s previous conviction for a state-jail-felony offense
provided sufficient evidence to satisfy the State’s burden that appellant had been
State’s Exhibit No. 12.
15 convicted of a felony under Section 46.04(a)(1) of the Texas Penal Code); Mathew v.
State, 655 S.W.3d 291, 300 (Tex. App.—Corpus Christi–Edinburg 2022, pet. ref’d)
(“[Appellant’]s argument would mean that the State could never introduce evidence of a
prior felony in a felony in a possession case until the punishment phase of the case. The
predicate felony, however, is a basic element to these offenses and evidence regarding
the same is therefore admissible.” (internal citations and citations omitted)); see also
Villarreal v. State, No. 03-16-00684-CR, 2017 WL 5985494, at *9 (Tex. App.—Austin Dec.
1, 2017, no pet.) (mem. op., not designated for publication) (noting “[t]he defendant’s prior
felony conviction is an essential, substantive element of the offense of unauthorized
possession of a firearm by a felon that the State must prove to obtain a conviction.”
(citation omitted)).
Appellant could have stipulated to the prior felony conviction, which would have
limited the State’s ability to discuss and prove up the prior felony conviction. See Old
Chief v. United States, 519 U.S. 172, 192 (1997) (precluding the government from proving
what felony the defendant was convicted of if he chose to stipulate that he was indeed a
felon in a unlawful possession of a firearm by a felon case); see also Tamez v. State, 11
S.W.3d 198, 202 (Tex. Crim. App. 2000) (“In cases, where the defendant agrees to
stipulate to the two previous DWI convictions, we find that the proper balance is struck
when the State reads the indictment at the beginning of trial, mentioning only the two
jurisdictional prior convictions, but is foreclosed from presenting evidence of the
conviction during its case-in-chief.”); see generally, Trevino v. State, No. 13-14-00280-
CR, 2015 WL 2160042, at *1 (Tex. App.—Corpus Christi–Edinburg May 7, 2015, no pet.)
(mem. op., not designated for publication) (stipulating to prior felony conviction at trial on
16 unlawful possession of a firearm). But no such stipulation was made, and appellant does
not claim on appeal that his trial counsel erred by failing to do so. Consequently, without
a stipulation offered but refused by the State, the trial court would not have erred in
admitting the extraneous offense evidence because the probative value of the evidence,
i.e., proof of an element (a prior felony conviction) for an unlawful possession of a firearm
by a felon offense, necessarily outweighed the danger of unfair prejudice. See TEX. R.
EVID. 403; Old Chief, 519 U.S. at 192; Tamez, 11 S.W.3d at 202–03 (“[A]ny prior
convictions beyond the two jurisdictional elements should not be read or proven during
the State’s case-in-chief—as long as the defendant stipulates to the two prior
convictions—as they are without probative value and can serve only to improperly prove
the defendant’s “bad character” and inflame the jury’s prejudice.”); see generally, Garza
v. State, 213 S.W.3d 338, 347 (Tex. Crim. App. 2007) (concluding trial court did not abuse
its discretion by admitting evidence of appellant’s tattoos, i.e., requiring him to display
them to the jury, because the tattoos were admissible to prove the “criminal street gang”
element of the offense and their probative value was not outweighed by the danger of
unfair prejudice).
Even if the extraneous-offense evidence was otherwise inadmissible, trial
counsel’s failure to object would not necessarily amount to ineffective assistance as the
failure to object left the burden on the State to properly prove the conviction and the
identity of the preparator. See Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App.
2007); see also Hodges v. State, No. 05-16-00647-CR, 2017 WL 2391720, at *4 n.2 (Tex.
App.—Dallas June 1, 2017, pet. ref’d) (mem. op., not designated for publication) (citation
omitted). And while these are facially simple tasks, error in either might have been urged
17 as a basis for acquittal or reversal on appeal. See, e.g., Strehl v. State, 486 S.W.3d 110,
113–15 (Tex. App.—Texarkana 2016, no pet.) (modifying appellant’s judgment for driving
while intoxicated (DWI), third or more, to a conviction for a lesser included offense after
concluding there was legally insufficient evidence linking the appellant to the second
jurisdictional prior DWI offense); see also Hodges, 2017 WL 2391720, at *4 n.2.
Additionally, the trial court would not have erred in overruling an objection related
to argument during opening or testimony elicited that appellant was on parole because,
to validly indict a defendant for an unlawful possession of a firearm by a felon, the State
must identify a particular event and then prove that event at trial. See TEX. PENAL CODE
ANN. § 46.04(a)(1); see also Trevino, 2015 WL 2160042, at *5 (“To validly indict a person
for this offense, the State must allege . . . at least one . . . identifiable events [—i.e., the
felon’s “release from confinement following conviction of the felony” or the felon’s “release
from supervision under community supervision, parole, or mandatory supervision,
whichever date is later”—] occurred and that the felon possessed a firearm within five
years of the latest such event. The State, having chosen to allege in the indictment that
only one of the events occurred, had the burden to prove that particular event at trial.”
(internal citation and citations omitted)).
Furthermore, when balancing the factors, we conclude that the trial court would
not have abused its discretion overruling a Rule 403 objection and concluding the
evidence admissible. See TEX. R. EVID. 403; See Gonzalez v. State, 544 S.W.3d 363, 372
(Tex. Crim. App. 2018) (stating “[t]he court must balance (1) the inherent probative force
of the proffered item of evidence along with (2) the proponent’s need for that evidence
against (3) any tendency of the evidence to suggest decision on an improper basis,
18 (4) any tendency of the evidence to confuse or distract the jury from the main issues,
(5) any tendency of the evidence to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of time or merely repeat
evidence already admitted”). To elaborate, while the evidence of appellant’s prior felony
conviction along with the evidence that he was on parole could lure the jury to convicting
appellant based on his prior felony conviction, that evidence goes directly to matters that
the State had to prove to obtain a conviction for unlawful possession of a firearm by a
felon. See TEX. PENAL CODE ANN. § 46.04(a)(1); See TEX. R. EVID. 403; Ex parte Jimenez,
361 S.W.3d at 683. And our review of the record does not show that the State spent an
inordinate amount of time developing this evidence. Indeed, when the State moved to
admit the prior felony conviction, the testimony to do so took up a little over one page of
the record. See TEX. R. EVID. 403.
Finally, the trial court would not have erred in overruling trial counsel’s objection to
the complained-of statements made by the State during its closing argument because our
review of these statements shows they are proper jury argument in that they were made
to summarize the evidence. See Milton v. State, 572 S.W.3d 234 (Tex. Crim. App. 2019)
(“As we have often explained, proper jury argument generally falls within one of four
areas: (1) summation of the evidence; (2) reasonable deduction from the evidence;
(3) answer to an argument of opposing counsel; and (4) plea for law enforcement.”); see
also Guner v. State, No. 13-23-00293-CR, 2024 WL 4784395, at *6 (Tex. App.—Corpus
Christi–Edinburg Nov. 14, 2024, no pet.) (“Closing arguments serve to ‘facilitate in the
jury in properly analyzing the evidence presented at trial so that it may ‘arrive at a just
19 and reasonable conclusion based on the evidence alone, and not on any fact not admitted
in evidence.’”) (citations omitted)). And even if the statements were not proper jury
argument, on this record, appellant has not rebutted the presumption that trial counsel’s
conduct was not sound trial strategy as the decision to object to particular statements
during closing argument is a matter of trial strategy. See Nicholson v. State, 557 S.W.3d
559, 570 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d) (citation omitted). Accordingly,
we overrule appellant’s second sub-issue.
3. Failure to Provide Mitigation Evidence at Sentencing
By his third sub-issue, appellant contends that his trial counsel was ineffective for
failing to provide mitigation evidence at his sentencing. He elaborates by directing us to
two letters 10 in the clerk’s record in which appellant mentions family as a support system
and wanting to see his youngest daughter graduate from high school and his oldest son
graduate from college; significant mental health issues since “[appellant] was found
incompetent and ‘restored’ to competency during the pendency of his case;” O.B.’s filing
of a non-prosecution affidavit which was not used to impeach her; O.B.’s frequent contact
with appellant over the phone at the jail; a one paragraph closing; and lack of time to
investigate from when trial counsel met appellant to his announcement of ready at trial.
Apart from the two letters in the clerk’s record and appellant’s closing argument,
appellant provides no other record citations in this section for his numerous complaints
related to his trial counsel’s failure to provide mitigation evidence at sentencing, and we
10 We observe one letter from appellant is addressed to “Judge Fortenberry,” dated December 3,
2021, and the other is addressed to “Judge Hardin” dated April 23, 2022. In both, he also complains of a prior attorney, not the attorney representing him at his trial.
20 may not scour a record on appellant’s behalf. See generally, Wolfe v. State, 509 S.W.3d
325, 343 (Tex. Crim. App. 2017) (“An appellate court has no obligation to construct and
compose an appellant’s issues, facts, and argument with appropriate citations to
authorities and to the record.”) (cleaned up); Rodriguez, 2018 WL 3635161, at *6.
Regardless, neither of two letters 11 or the other complaints, without more, shed any light
on his trial counsel’s action or inaction, and thus, on this record appellant has failed to
meet the first Strickland prong. See Garza, 213 S.W.3d at 348 (overruling appellant’s fifth
point whereby he alleges that his trial counsel rendered ineffective assistance because
he failed to provide or offer any mitigating evidence during the punishment despite
appellant’s contentions that there were several witnesses available to provide such
evidence and trial counsel’s failure to offer evidence regarding his mental capacity after
reasoning “[c]ounsel’s reasons for his actions or intentions do not appear in the record,
and his conduct could have been part of a reasonable strategy. Without more, we must
defer to counsel’s decision and deny relief.”). For example, it is possible trial counsel
contacted a family member or a friend of appellant but he or she declined to speak to
appellant’s trial counsel or was unwilling to testify. And while he directs us to Lopez v.
State, a case in which our sister court reversed and remanded for a new punishment
hearing after determining both Strickland prongs were met, we find the case
distinguishable. 462 S.W.3d 180, 190 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
Notably, in Lopez, a motion for new trial was filed and a hearing was held that included
the submission of affidavits, including one from Lopez’s trial counsel. See id. at 183–84.
11 We observe that in both of the letters it appears appellant complains of a different trial counsel
than the trial counsel he complains about in this appeal. 21 Here, appellant did file a handwritten motion for new trial which complained of his trial
counsel, but there is no indication that a hearing on his motion was held, nor has he
directed us to any affidavits which may support his claim. See Hartwell, 476 S.W.3d at
533; see also Villarreal, 2017 WL 5985494, at *7. Accordingly, we overrule appellant’s
third sub-issue. Having found that appellant failed to demonstrate ineffective assistance
on any of his grounds, we overrule his first issue.
III. HARMLESS ERROR
Appellant next contends that the trial court reversibly erred by admitting
unauthenticated hearsay evidence over his objection. He goes on to argue that the State
did not supply sufficient facts to support a reasonable determination of authenticity or
comply with the best evidence rule for State’s Exhibit Nos. 5–10.
A. State’s Exhibit Nos. 5–10
The challenged exhibits are photographs of text messages, and we have replicated
the text exchanges within the photographs as follows:
• State’s Exhibit No. 5 12
[Person A]: Man please hurry an find me a pistol
[Person B]: I’m looking
What’s up now
[Person A]: I need one bad
I’m going to tell you the truth I’m going to kill [omitted] I’m sick of that fake [*]ss bitch
12 Apart from modifications for profanity or as otherwise expressly noted as omitted, we have left
grammar, spelling, and punctation as it was shown in the text message exchange. We note that our labels of Person A and B are merely to aid in following a conversation format. 22 [Person B]: For who for what
O ok.
• State’s Exhibit No. 6
[Person A]: Always trying to put the laws on me I’m just going to take her [*]ss out and get rid of the problem
I put it on my mama and granny she dead now I can get one from around here but I don’t [*]uck with nobody around here
[Person B]: Just say way from her don’t won’t to see you go to Jail
[Person A]: Don’t worry about that kinfolk I’m going to do it either way this [*]itch was the reason those white folks tried to giv13 me 25 to Life look call me
• State’s Exhibit No. 7
[Date and Time Shown]: 14 8/19/20 2:22 PM
[Person A]: And then she act like she hasn’t done anything so I’m going to make her pay for all that she has done
• State’s Exhibit No. 8 15
[Date and Time Shown]: 8/19/20 2:22 PM
[Person A]: And then she act like she hasn’t done anything so I’m going to make her pay for all that she has done
13 We cannot tell from the way it is photographed whether there is an “e” at the end of this word.
14 We note that above the date and time stamp it appears some of the prior messages from State’s
Exhibit No. 6 are shown. 15 We observe that this photograph does not show the entire screen of the phone and depicts the
date and time and one message that also appeared in State’s Exhibit No. 7.
23 • State’s Exhibit No. 9
[Date and Time Shown]: 9/24/20 5:01 PM
[Messaged Number]: 979 274 9008
[Date and Time Shown]: 9/24/20 5:12 PM
[Person A]: Well kinfolk I tried and I tried to keep my word, bro she is out of there, still dealing with the laws she dead bro on my mama and granny
I tried again and again kinfolk
[Person]: 16 Leave her alone, and go on with your life.
• State’s Exhibit No. 10
[Person B]: Leave her alone, and go on with your life 17
[Date and Time Shown]: 9/24/20 5:23 PM
[Person A]: I will kinfolk after I shoot her [*]ss
[Date and Time Shown]: 9/24/20 8:50 PM
[Person B]: Wht time you get off
[Date and Time Shown]: 9/24/20 9:20 PM
[Person A]: Now
B. Applicable Law
1. Authentication
To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is. TEX. R. EVID. 901(a). “In a jury trial, it is the jury’s role ultimately to
16 We could not tell if the message came from Person A or B, so we left the exchange unlabeled.
17 Again, we note this appears to be a message reflected in State’s Exhibit No. 9.
24 determine whether an item of evidence is indeed what its proponent claims; the trial court
need only make the preliminary determination that the proponent of the item has supplied
facts sufficient to support a reasonable jury determination that the proffered evidence is
authentic.” Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015). We review a trial
court’s ruling on authentication issues for abuse of discretion. Fowler v. State, 544 S.W.3d
844, 848 (Tex. Crim. App. 2018). Conclusive proof of authenticity before allowing
admission of the disputed evidence is not required. Id.
2. Best Evidence Rule
The best evidence rule provides that an original writing, recording, or photograph
is required to prove its content. See TEX. R. EVID. 1002. The best evidence rule requires
that if contents of a writing are to be proved, it must be by the production, if possible, of
the very writing itself. See Ortiz v. State, 651 S.W.2d 764, 766 (Tex. Crim. App. 1983).
For electronically stored information, Rule 1001(d) defines an “original” as “any printout—
or other output readable by sight—if it accurately reflects the information.” TEX. R. EVID.
1001(d). When a “printout” or “other output” is not obtainable, Rule 1004(b) allows the
content of the original to be proven through “other evidence” of its content. TEX. R. EVID.
1004(b).
C. Analysis
Assuming without deciding that the trial court erred in admitting State Exhibit Nos.
5–10, we will evaluate whether appellant was harmed by their admission. See Ellis v.
State, 517 S.W.3d 922, 931–92 (Tex. App.—Fort Worth 2017, no pet.). Any error in the
trial court’s admission of the photographs of the text messages would be nonconstitutional
error, see Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (applying Texas
25 Rule of Appellate Procedure 44.2(b) in analyzing whether appellant was harmed by
admitting lay witnesses assumed improper opinion testimony); see also Pinson v. State,
No. 05-23-00649, 2025 WL 1594379, at *4 (Tex. App.—Dallas, June 5, 2025, no pet.)
(mem. op., not designated for publication) (addressing appellant’s assertion that trial court
erred in admitting text messages over his hearsay objections, appellate court presumed
error and stated “[t]he erroneous admission of evidence is non-constitutional error that an
appellate court disregards unless the error affects an appellant’s substantial rights.”
(citation omitted)), so we apply Rule 44.2(b) and disregard error if it did not affect
appellant’s substantial rights. See TEX. R. APP. P. 44.2(b); Gonzalez, 544 S.W.3d at 373
(“Non-constitutional errors are harmful, and thus require reversal, only if they affect
Appellant’s substantial rights.”).
Error is reversible only when it has a substantial and injurious effect or influence in
determining the jury’s verdict. Gonzalez, 544 S.W.3d at 373. “In making this
determination, we consider: (1) the character of the alleged error and how it might be
considered in connection with other evidence; (2) the nature of the evidence supporting
the verdict; (3) the existence and degree of additional evidence indicating guilt; and
(4) whether the State emphasized the complained of error. Id.
By the time the photographs of the text messages were offered and then admitted
through O.B., she had already provided a detailed account of the events that transpired
on October 25, 2020, including that appellant complained that he was tired of her “putting
the laws in his life,” that he “pull[ed] a gun out,” that he threatened to “kill” her, and that
he then threatened to “pistol whip” her. In other words, by the time the jury learned about
the purported text messages, they had already learned that appellant was upset about
26 O.B. previously involving “the laws” in his life, had obtained a gun, and had threatened
her. See id.; see also Pinson, 2025 WL 1594379, at *4 (“[E]vidence that Dixon and Pinson
were in a dating relationship was admitted elsewhere without objection; therefore, the
evidence in the text messages that Pinson was in a dating relationship with Dixon did not
harm him.”).
Additionally, while the jury may have found Nixon less credible given that his story
changed, he did testify that appellant showed him a gun and he was “thinking about going
to kill [his ex-wife].” And it was undisputed that a gun was located in the vehicle. Finally,
while the State did reference the messages in its initial closing, the State did not focus its
argument there. Instead, the State discussed several pieces of evidence during closing
related to both offenses, and did not reference them in rebuttal. Under these
circumstances, we have a fair assurance that the admission of the photographs of the
text messages had but a slight effect on the jury’s verdict; therefore, we do not find that
appellant’s substantial rights were affected. See TEX. R. APP. P. 44.2(b); Gonzalez, 544
S.W.3d at 373. Accordingly, we overrule appellant’s second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
JENNY CRON Justice
Do not publish TEX. R. APP. P. 47.2(b)
Delivered and filed on the 29th day of August, 2025.