In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00104-CR ____________________
DANIEL DIAZ, Appellant
V.
THE STATE OF TEXAS, Appellee _______________________________________________________ ______________
On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CR29411 ________________________________________________________ _____________
MEMORANDUM OPINION
Appellant Daniel Diaz was indicted for official oppression under section
39.03 of the Texas Penal Code. See Tex. Penal Code Ann. § 39.03 (West Supp.
2014). 1 The indictment alleged that on or about November 13, 2011, Diaz
“intentionally subject[ed] James David McCormick to detention that [Diaz] knew
was unlawful, and [Diaz] was then and there acting under color of his employment
1 Because the amendments do not affect this case, we cite to the current version of the statutes. 1 as a public servant, namely, Game Warden.” A jury found Diaz guilty and the trial
court sentenced Diaz to one year confinement in the Liberty County Jail and
assessed a $4,000 fine. Diaz appeals.
On appeal, Diaz argues that (1) the evidence is legally and factually
insufficient to sustain the jury’s verdict; (2) the trial court abused its discretion by
admitting irrelevant and prejudicial evidence from a series of alleged extraneous
acts in violation of Rules 401, 403, and 404(b) of the Texas Rules of Evidence; (3)
he was “denied his [c]onstitutionally protected and guaranteed right to effective
assistance of counsel[;]” and (4) that if the decision of the trial court is upheld by
this Court, “it will create a level of uncertainty that will have a chilling effect on
every traffic stop conducted by law enforcement officers within the State of
Texas.” We overrule his issues and affirm the judgment.
Guilt/Innocence Evidence
The testimony at trial indicated that Diaz and McCormick had a “prior
history” that preceded the incident of November 13, 2011. In 2006, Diaz
confronted McCormick about some “fish heads” McCormick allegedly threw over
the fence and into his neighbor’s pasture. Diaz drove up in his “game warden
truck” while McCormick was throwing out the fish and asked McCormick why he
was throwing fish heads onto the neighbor’s property. McCormick told him “I
2 always throw them back here.” Diaz asked to see McCormick’s fishing license and
continued to question McCormick. Based upon Diaz’s tone of voice, McCormick
called the Liberty Police Department and asked them to send an officer to the
scene. McCormick testified that as soon as Diaz noticed the Liberty police officer
pulling into McCormick’s driveway, Diaz “handed [McCormick his] fishing
license and said I’m going to give you a warning this time. Don’t throw fish heads
over here no more unless you get permission from [the neighbor].” A day or two
later, and after he obtained permission from the neighbor, McCormick drove over
to Diaz’s home to let him know that the neighbor had given McCormick
permission to throw the fish heads over onto her property. According to
McCormick, Diaz then told McCormick he knew that McCormick had “called the
law” on him and he stated to McCormick, “you better not ever call the law on me
again and you better watch your back.” McCormick testified he told Diaz he was
not there to argue, and Diaz told McCormick that he was arresting him and “[he]
was going to jail” for trespassing. When McCormick proceeded to walk to his
truck, Diaz grabbed McCormick’s wrist and held it up in the air and began
screaming at McCormick telling him he was taking him to jail. Diaz took
McCormick to jail, and McCormick was charged with “assault” on Diaz. The
assault case went to trial in 2010, and the jury found McCormick not guilty.
3 McCormick testified that while McCormick was waiting to go to trial on the
2006 assault charge, Diaz followed him on more than one occasion. One evening
Diaz blocked the path of McCormick’s vehicle with his personal truck and when
McCormick drove around Diaz to pull into McCormick’s driveway, Diaz followed
him and “stayed parked” in front of McCormick’s house for fifteen minutes. Right
after the jury found McCormick not guilty on the 2006 assault charge, Diaz again
followed McCormick, and Diaz flashed his lights at McCormick but did not stop
him. McCormick notified the police department that Diaz was “harassing” him but
he did not make a formal report. McCormick indicated at trial that the police
department personnel told him there was “pretty much nothing they [could] do.”
McCormick testified that on another occasion, prior to being stopped by Diaz in
November 2011, while McCormick was driving on Highway 146, Diaz followed
McCormick. McCormick also told the jury that prior to November 2011, he spoke
to law enforcement about getting a restraining order against Diaz and they told him
he needed to hire an attorney.
According to McCormick, on November 13, 2011, around 6:20 a.m., he was
driving his vehicle on Minglewood (a/k/a Mizell) Road, on his way to work, and
he drove past the driveway to Diaz’s home. McCormick had to drive past Diaz’s
home to exit his subdivision. McCormick testified he had his headlights on because
4 it was still dark outside. He stated that he knew he was not going over 30 m.p.h.,
“[b]ecause I always make sure I’m going under 30 when I pass . . . Mr. Diaz’s
house[,] . . . to try to avoid any trouble that I might have as I pass by his house.” As
he approached Diaz’s driveway, he noticed Diaz’s game warden truck parked in
the driveway. Diaz’s vehicle had its headlights on and as McCormick approached
Diaz’s driveway, Diaz turned his game warden truck “red and blue lights on.”
After McCormick’s vehicle got into the first curve past Diaz’s driveway,
McCormick then noticed that Diaz pulled out onto the roadway behind
McCormick. McCormick testified that he was “afraid for [his] safety” because of
their “past history” and that is why he did not immediately pull over. McCormick
stated,
I yielded for [Diaz] to go around because I thought maybe that he had a call that he was going to, so I yielded. . . . I also yielded for [Diaz] to go around while I was on [the] phone with 911, but [Diaz] stayed behind me. Then [Diaz] started getting close to my vehicle, so at that point, I knew [Diaz] must have been pulling me over.
McCormick testified that “[t]here was no other cars on the road, so at that point I
called 911 because I wasn’t really sure what to do. I was afraid for my safety at
that time.” McCormick pulled over and stopped while he was talking to the
911operator.
5 After stopping, Diaz told McCormick to get out of his truck and McCormick
complied. Diaz asked to see McCormick’s driver’s license and proof of insurance.
Diaz told McCormick to put his driver’s license on the hood of Diaz’s truck, and
McCormick did what he asked. Then Diaz told McCormick to put his hands behind
his back and Diaz handcuffed McCormick, and told him he was arresting him for
“speeding.” McCormick testified that Diaz also “got right in [McCormick’s] face”
and asked McCormick, “[D]id you get satisfaction out of us going to court[?]”
McCormick replied, “[D]amn right. I enjoyed every minute of it, especially when
you got up on the stand and lied . . . you made a fool out of yourself.” McCormick
told Diaz that he had called 911. Diaz then called someone and said “I have James
McCormick pulled over and I have him handcuffed for my protection.” Diaz never
had his citation book out or with him, and none of the officers issued McCormick a
citation for anything.
The Liberty Police officers responded to a call to assist. When they arrived,
they took Diaz over in front of their vehicle and they had a discussion with Diaz.
McCormick testified that the male officer came back and told McCormick “Mr.
Diaz [is] going to set [you] free,” and the officer told Diaz to take the cuffs off of
McCormick. Before McCormick left to go to work, Diaz told McCormick he was
“going to get a warrant” to arrest McCormick for evading arrest. McCormick
6 turned to the male officer and said, “[C]an he do that?” McCormick told the jury
the officer looked at McCormick “and winked” and told McCormick to contact an
attorney.
Officer Cedric McDuffie, a Deputy with the Liberty County Constable’s
Office and formerly a police officer with the Liberty Police Department, testified
that he and his partner, Officer Elizabeth Polasek, responded to a call on November
13, 2011, to assist at the scene of a traffic stop. McDuffie had over twenty years in
law enforcement at the time of trial. McDuffie testified that when they arrived
McCormick was in handcuffs standing on the side of the road over by the Game
Warden’s truck. McDuffie got out of his vehicle and walked over to speak with
Diaz. According to McDuffie, Diaz indicated that McCormick was speeding and
Diaz stated he had observed McCormick driving by Diaz’s residence at “maybe
about 30 miles per hour.” Diaz also said “possibly” McCormick did not have his
headlights on. At that time, the subject of evading arrest never came up. Officer
McDuffie testified that the City of Liberty requires a radar to determine speed, and
he would never recommend that an officer try to enforce a traffic law for speeding
without getting a radar and special training to enforce speeding laws. 2 At one point
2 McDuffie explained that the Liberty Police use radar to document the speed of a vehicle, but indicated that you can also use “[r]adar pacing and clocking[.]” According to McDuffie, radar pacing is where the officer follows behind someone 7 at the scene, Diaz admitted to McDuffie that he had no reason to give Mr.
McCormick a ticket. At trial, McDuffie acknowledged on direct examination that it
was “fair to say that [Diaz] had no reason to give [McCormick] a ticket[.]”
The video captured by the Liberty Police Department dash camera was also
introduced into evidence at trial and played for the jury without any objection from
Diaz. The video (with audio) depicts the arrival of the Liberty police officers to the
scene, and the conversations of Diaz with the officers about the situation. On the
video, Diaz can be heard making the following statement, “No, I don’t have a
reason to give him a ticket . . . I really wasn’t going to give him a ticket.” Diaz can
also be heard telling the Liberty officers that “McCormick got out of . . . an assault
on me . . .,” and “he calls 9-1-1.”
The State introduced the audio recording and a transcript of the 911 call
made by McCormick, and there were also records of two calls made by Diaz on the
non-emergency line. Dispatcher Mary Jackson testified that McCormick’s 911 call
came in at 6:27 a.m., and it was the first call she received. Later, she also received
and determines their speed from the speed on the officer’s speedometer. And, “clocking” is timing a vehicle from one point to another and then using the exact distance to extrapolate a speed. Officer McDuffie said he “never felt comfortable” using clocking and that only the State of California uses it. McDuffie testified that, while you can sometimes just “eyeball” a car to determine if it is speeding, it is more difficult and deceptive, especially around a curve. 8 two calls from Diaz on the non-emergency line. The time lapse between the start of
McCormick’s 911 call and then the beginning of Diaz’s first call was about two
minutes. As McCormick hung up with the 911 dispatcher, Diaz called the
dispatcher in his first call and then followed up with another call several minutes
later.
Rod Ousley, a Captain with Texas Parks and Wildlife, and Diaz’s supervisor
at the time of the 2011 incident, testified that Diaz came to his office the day after
Diaz stopped McCormick in November of 2011. Ousley explained to the jury that
Diaz brought in Diaz’s handwritten statement about the stop and informed Ousley
that Ousley probably needed to notify internal affairs because he thought the stop
could potentially generate a complaint. Diaz explained in his statement that he
observed “a black truck with no lights, headlights or parking lights” that
“appear[ed] to be exceeding the posted speed limit” and that he recognized that the
truck belonged to McCormick ,who he had “had a run-in with in the past.” Ousley
testified he notified Diaz on January 9, 2012, that the Internal Affairs investigation
resulted in a letter of intent to take corrective action. The next day, Diaz “put in”
for retirement, and therefore no corrective action was taken.
McCormick spoke with an attorney and decided to file a complaint with
Texas Parks and Wildlife against Diaz. Texas Parks and Wildlife investigated the
9 matter and referred it to Internal Affairs who then sent it to the District Attorney.
The transcript of Diaz’s testimony before the grand jury was admitted into
evidence, as well as Diaz’s handwritten statement about the incident. According to
the transcript of Diaz’s grand jury testimony, Diaz testified that before sunrise on
November 13, 2011, he was leaving in his patrol vehicle and saw a truck “50 feet
100 feet something like that” away with no lights on. He recognized the truck
belonged to McCormick as the truck went by, and he pulls behind him and “turns
on his red and blue lights cause I’m going to stop him, he had no lights and I allege
he’s speeding.” He saw McCormick apply his brakes but not pull over. Diaz
contacted the police department to inform them the vehicle would not pull over,
and the dispatcher said McCormick was on the 911 line and was reporting that
Diaz was harassing him. Diaz asked for assistance. According to Diaz, McCormick
pulled over, and when he got out of his truck “he didn’t come out very friendly he
said I called the real police and you’re in trouble[.]” Diaz made McCormick get
behind his truck and cuffed him because McCormick was talking “in an elevated
voice” and Diaz believed there was going to be “another scuffle” and he “didn’t
want to take any chances[.]” The grand jury indicted Diaz.
Irma Sanchez, custodian of records for Texas Parks and Wildlife, testified
that she performed a search for traffic citations and warnings issued by Diaz from
10 2008 through 2011. According to Sanchez, her search revealed that during that
time period Diaz did not write any warnings or citations for traffic offenses.
Dorothy Drennan, City of Liberty Municipal Court Clerk, testified that she
performed a search of the traffic citation issued by Diaz going back to 1993.
According to Drennan, Diaz had only issued one traffic citation since 1993, and
that was for cutting through a parking lot at an intersection.
Punishment Evidence
At the punishment phase, Special Ranger Jimmy Belt with the Texas
Department of Public Safety, testified he had several “run-ins” with Diaz dating
back to 1986 wherein Diaz tried to intimidate him. On at least one occasion, Belt
filed a complaint with Texas Parks and Wildlife regarding Diaz. Belt testified that
Diaz has a reputation for bullying members of the public and members of law
enforcement.
John Feist, a former Chambers County Game Warden, also testified at the
punishment phase. Feist said he has known Diaz for “[p]robably 25 years” and that
Diaz has a reputation for being unprofessional. Similarly, Highway Patrol Sergeant
Steve Holloway, formerly a Liberty County DPS officer from 1989 to 1998, stated
that he had witnessed Diaz threaten another law enforcement officer. Gary Cain, a
retired game warden who had previously worked in Hardin County, acknowledged
11 that he had people complain to him about Diaz “using his badge to bully the
public[,]” and that he heard complaints about Diaz from private citizens as well as
law enforcement. Captain Ousley, Diaz’s former supervisor, testified about an
incident in 2011 where Diaz violated Texas Parks and Wildlife policies when he
discharged a weapon “to get [a] guy’s attention.” In Captain Ousley’s opinion,
Diaz engaged in vindictiveness as a game warden. Private citizens also testified
about confrontations they had with Diaz.
In contrast, Game Warden Vu Nguyen, who has known Diaz for eight years
and worked with Diaz on “[m]any occasions[,]” testified that Diaz’s behavior was
“[a]lways professional and courteous.” Nine other character witnesses testified that
they have known Diaz for a long time and all of them had good experiences
dealing with Diaz while he was working in his capacity as a game warden. Diaz’s
wife testified that they have been married twenty-two years. She testified that Diaz
“is a good man” and a Vietnam veteran.
Legal and Factual Insufficiency Challenge
In his first issue, Diaz contends that the evidence is legally and factually
insufficient to sustain the jury’s verdict. We construe appellant’s first point of error
as a challenge to the legal sufficiency of the evidence. See Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010) (there is no longer any meaningful
12 distinction between a legal and factual sufficiency standard when reviewing
sufficiency of evidence to sustain a criminal conviction).
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under the single
sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Brooks, 323 S.W.3d at 912. Under that standard, we view all 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 offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. “It is not necessary that the
evidence directly proves the defendant’s guilt; circumstantial evidence is as
probative as direct evidence in establishing the guilt of the actor, and
circumstantial evidence alone may be sufficient to establish guilt.” Carrizales v.
State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007)).
We must defer to the jury’s assessment of the credibility of the witnesses
and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. We also
allow for the jury to make “reasonable inferences” from the testimony or evidence.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also Tex.
Code Crim. Proc. Ann. art. 38.04 (West 1979). When the record supports
13 conflicting inferences, we presume that the jury “resolved the conflicts in favor of
the prosecution and therefore defer to that determination.” Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing to Jackson, 443 U.S. at 326).
Sufficiency of the evidence should be measured by the elements of the offense as
alleged in the indictment. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997).
On appeal, Diaz contends that the evidence is insufficient because it “did not
prove that [Diaz] acted knowingly, intentionally, and unlawfully in his detention of
James David McCormick.” Diaz argues that “a purely objective standard applies to
whether the officer had a valid reason for the stop [or] detention and not a
subjective standard” and Diaz “had reasonable suspicion to conduct and did
conduct a valid traffic stop and legally detained James David McCormick[.]”
Further, Diaz argues that if Diaz had “any legal reason to detain McCormick” then
Diaz “could not be guilty of official oppression in relation to detaining
McCormick[,] as a matter of law.”
To convict Diaz of official oppression as alleged in this case, the State had to
prove that Diaz, a game warden and public servant, while acting under color of his
office or employment, intentionally subjected McCormick to a “detention” that
14 Diaz knew was “unlawful.” See Tex. Penal Code Ann. § 39.03(a)(1); see also State
v. Edmond, 933 S.W.2d 120, 127 (Tex. Crim. App. 1996) (explaining that when
charged with official oppression by mistreatment, the defendant must have known
that the mistreatment alleged in the indictment was in fact unlawful in that it was
either criminal or tortious). The Penal Code defines “[u]nlawful” as “criminal or
tortious or both and includes what would be criminal or tortious but for a defense
not amounting to justification or privilege.” Tex. Penal Code Ann. § 1.07(a)(48)
(West Supp. 2014). Therefore, the State had to prove that Diaz, while acting under
color of his office, intentionally subjected McCormick to a detention he knew was
criminal, tortious, or both. See id., § 39.03(a)(1).
A temporary detention such as a traffic stop is generally justified when the
officer has reasonable suspicion to believe that an individual is violating the law.
See Terry v. Ohio, 392 U.S. 1, 29 (1968); Ford v. State, 158 S.W.3d 488, 492 (Tex.
Crim. App. 2005). “Reasonable suspicion” exists if the officer has specific
articulable facts that, when combined with rational inferences from those facts,
would lead him to reasonably suspect that a person has engaged, is engaging, or
soon will be engaging in criminal activity. Abney v. State, 394 S.W.3d 542, 548
(Tex. Crim. App. 2013). This objective standard disregards the officer’s subjective
intent and looks solely at whether an objective basis for the detention exists. Ford,
15 158 S.W.3d at 492. A reasonable-suspicion determination is made by considering
the totality of the circumstances at the time of the detention, considering common
sense judgments and inferences about human behavior. Illinois v. Wardlow, 528
U.S. 119, 125 (2000).
Based on the evidence in the record, the jury could reasonably have
determined that Diaz intentionally subjected McCormick to a detention he knew
was criminal, tortious, or both. In particular, evidence in the record indicates that
Diaz and McCormick had a “prior history” of confrontations, that McCormick was
being harassed by Diaz, that McCormick had made several calls to the Liberty
Police Department about Diaz following him, stopping him, and watching him
prior to this incident, that Diaz admitted to the Liberty Police officers who were
dispatched to the scene that Diaz had no “reason to give Mr. McCormick a
ticket[,]” that Diaz did not know the speed of McCormick’s vehicle, and that Diaz
was upset at McCormick for calling 911 and that he felt like McCormick “got out
of” the prior assault charges.
Even though Diaz and his expert witness testified that Diaz had reasonable
suspicion to stop McCormick for speeding or for not having his headlights on, or
even possibly failing to yield to an officer, the jury could have reasonably weighed
the credibility of the witnesses and the weight to be given to their testimony, and
16 made “reasonable inferences” from the testimony or evidence. Williams, 235
S.W.3d at 750; see also Tex. Code Crim. Proc. Ann. art. 38.04. We presume that
the jury resolved any conflicts in favor of the verdict and we therefore defer to that
determination. Clayton, 235 S.W.3d at 778. Reviewing the sufficiency of the
evidence submitted at trial in the light most favorable to the verdict, we conclude
that the evidence is legally sufficient to support the conviction for official
oppression as alleged in the indictment. We overrule the first issue.
Admission of Evidence
Next, Diaz argues that the trial court erred by admitting irrelevant and
prejudicial evidence from a series of alleged extraneous acts. Diaz contends
“[s]pecifically, the trial court erred in admitting the majority if not all of the
testimony of Daniel McCormick, Jimmy Belt, John Feist, Steve Holloway, Gary
Cain, Taylor Webb, Henry Dietz, Patsy Dubois, and Rod Ousley, especially
testimony involving alleged bad acts or opinion testimony with no basis and
relevance to the pending matter[,]” and he was further harmed when the State
referenced the “extraneous offenses” in its closing argument. Diaz provides us with
no citations to record evidence that would support his arguments as required by
Texas Rule of Appellate Procedure 38.1(i), and in our review of the record we
found no support for his arguments.
17 Witnesses Belt, Feist, Holloway, Cain, Webb, Dietz, Dubois, and Ousley
testified during the punishment phase. Diaz made no objection to their testimony
during the punishment phase. He failed to preserve any error on this issue relating
to the admission of their testimony.
McCormick testified during the guilt/innocence phase of the trial. To
preserve error for appellate review, a party’s objection generally must be
sufficiently specific so as to “‘let the trial judge know what he wants, why he
thinks himself entitled to it, and do so clearly enough for the judge to understand
him at a time when the trial court is in a proper position to do something about it.’”
Malone v. State, 405 S.W.3d 917, 925 (Tex. App.—Beaumont 2013, pet. ref’d)
(quoting Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009)). In order
to raise a Rule 403 complaint, the objecting party must make a 403 objection
separate from a Rule 404(b) objection. See Montgomery v. State, 810 S.W.2d 372,
389 (Tex. Crim. App. 1991) (op. on reh’g). Diaz did not specifically make a Rule
403 objection separate from his 404(b) objection, and therefore, has not preserved
a Rule 403 complaint on appeal. See id.; see also Tex. R. App. P. 33.1(a).
Diaz filed a motion in limine to exclude any testimony by McCormick
regarding Diaz’s extraneous bad acts. The trial court granted the motion as to
testimony by any complainants (other than McCormick) during the guilt/innocence
18 phase of the trial, but denied the motion as to McCormick’s testimony during the
guilt phase regarding Diaz’s extraneous bad acts towards McCormick. Rule 404(b)
expressly provides that evidence of other crimes, wrongs, or acts is not admissible
to prove the character of the defendant in order to show he acted in conformity
therewith. Rule 404(b) codifies the common law principle that a defendant should
be tried only for the offense for which he is charged and not for being a criminal
generally. Rogers v. State, 853 S.W.2d 29, 32 n.3 (Tex. Crim. App. 1993); see also
Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (explaining that the
defendant is generally to be tried only for the offense charged, not for any other
crimes). Extraneous offense evidence, however, may be admissible for other
purposes such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). The
list of examples in Rule 404(b) is nonexhaustive. See Prible v. State, 175 S.W.3d
724, 731 (Tex. Crim. App. 2005). “Whether extraneous offense evidence has
relevance apart from character conformity, as required by Rule 404(b), is a
question for the trial court.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
2003). The trial court’s Rule 404(b) ruling admitting evidence is generally within
the zone of reasonable disagreement “if there is evidence supporting that an
19 extraneous transaction is relevant to a material, non-propensity issue.” Devoe v.
State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
The testimony from McCormick about the prior history and confrontations
he had with Diaz was relevant to one or more material issues in the case.
McCormick as the complaining witness explained his history with Diaz, the assault
charge that was brought against him by Diaz, and the other instances of Diaz
harassing him before this incident. Such detail directly related to the intent and
motive of Diaz in detaining McCormick, further explained the conduct of the
parties on the date in question, established a pattern of conduct on the part of Diaz,
and demonstrated intentional and knowing conduct.
To the extent Diaz complains on appeal of the admission of certain
testimony during the punishment phase,3 Diaz did not preserve error because he
failed to make any objection. Even if Diaz had preserved error, evidence may be
offered during the punishment phase as to any matter the court deems relevant to
sentencing, including but not limited to the prior criminal record of the defendant,
3 Diaz complains that the trial court erroneously admitted the “prejudicial” testimony of Diaz’s bad acts by “Daniel McCormick, Jimmy Belt, John Feist, Steve Holloway, Gary Cain, Taylor Webb, Henry Dietz, Patsy Dubois, and Rod Ousley[,]” but Diaz fails to give record references regarding the specific testimony of which he complains. We note that, of these witnesses, Ousley testified during both guilt and punishment phases, McCormick testified during the guilt phase only, and the remainder testified only at punishment. 20 his general reputation, his character, the circumstances of the offense for which he
is being tried, and any other evidence of extraneous crime or bad act that is shown
beyond a reasonable doubt by evidence to have been committed by the defendant
for which he could be held criminally responsible. See Tex. Code Crim. Proc. Ann.
art. 37.07, § 3(a)(1) (West Supp. 2014). The testimony during the punishment
phase about which Diaz complains was relevant to sentencing because it was
character evidence. See id. Therefore, we overrule issue two.
Ineffective Assistance of Counsel
In his third issue Diaz contends that he was “denied his [c]onstitutionally
protected and guaranteed right to effective assistance of counsel.” To prevail on a
claim of ineffective assistance of counsel, an appellant must prove two elements by
a preponderance of the evidence: (1) trial counsel’s performance was deficient; and
(2) harm resulted from that deficiency sufficient to undermine confidence in the
outcome of the trial. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Ex
parte LaHood, 401 S.W.3d 45, 49-50 (Tex. Crim. App. 2013). An ineffective
assistance of counsel claim “must be ‘firmly founded in the record’ and ‘the record
must affirmatively demonstrate’ the meritorious nature of the claim.” Menefield v.
State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Thompson v. State, 9
S.W.3d 808, 813-14 (Tex. Crim. App. 1999)).
21 In evaluating the effectiveness of counsel under the first prong of Strickland,
we look to the totality of the representation and the particular circumstances of the
case. Thompson, 9 S.W.3d at 813. Review of counsel’s representation is highly
deferential, and the reviewing court indulges a strong presumption that counsel’s
conduct fell within a wide range of reasonable representation. Mallett v. State, 65
S.W.3d 59, 63 (Tex. Crim. App. 2011).
The Texas Court of Criminal Appeals has explained that “trial counsel
should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003) (citing Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)).
Direct appeal is usually inadequate to make an ineffectiveness claim because the
record is frequently undeveloped in this respect. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005); see also Cox, 389 S.W.3d 817, 819 n.11 (Tex.
Crim. App. 2012) (observing that “[a] reviewing court will rarely be in a position
on direct appeal to fairly evaluate the merits of an ineffective-assistance claim”).
Without evidence of trial counsel’s strategy, “an appellate court will assume a
strategic motivation and will not conclude that the challenged conduct was
deficient unless it was so outrageous no competent attorney would have engaged in
it.” Ozuna v. State, 199 S.W.3d 601, 612 (Tex. App.—Corpus Christi 2006, no
22 pet.) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). It is not
appropriate for an appellate court to simply infer ineffective assistance of counsel.
Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
Diaz contends that his trial attorney rendered ineffective assistance in both
phases of his trial, and that the failure of his attorney to “make a single objection
during the punishment phase of the trial and during the guilt/innocence phase of
trial, other than the alleged running objections made outside the presence of the
jury and which arguably did not preserve error in any form, can in no way be
classified as ‘trial strategy’.” Diaz argues “countless objections” could have been
raised during the trial and were not, that Diaz’s counsel failed to object to leading
questions, inflammatory statements, unfounded evidence and conclusions, and
failed to familiarize himself with the proper legal standards. Diaz points to no
specific record references, but he argues that the extraneous evidence of prior bad
acts as contained in his earlier issue would be a specific example.
Regarding the alleged omissions of his attorney to object to questions or
testimony, Diaz has not established the trial court judge would have committed
error in overruling the objections if they had been made. Vaughn v. State, 931
S.W.2d 564, 566 (Tex. Crim. App. 1996) (holding that “in order to argue
successfully that her trial counsel’s failure to object” amounted to ineffective
23 assistance, appellant “must show that the trial judge would have committed error in
overruling such an objection”). To the extent Diaz implies that his trial counsel
should have called more witnesses in his favor, he has not established that he
would have benefited from the testimony of any other unspecified witnesses he
argues his counsel should have called to testify. “‘[F]ailure to call witnesses at the
guilt-innocence and punishment stages is irrelevant absent a showing that such
witnesses were available and appellant would benefit from their testimony.’” Perez
v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting King v. State, 649
S.W.2d 42, 44 (Tex. Crim. App. 1983)). Additionally, he must demonstrate that
there is a reasonable probability that the witnesses’ testimony would have affected
the result of the trial. Id. We conclude that the record in this case does not
affirmatively demonstrate ineffective assistance of counsel. The record is
undeveloped and does not adequately reflect the motives behind trial counsel’s
actions. We cannot simply infer that trial counsel lacked a trial strategy in failing to
lodge objections. We therefore overrule this issue.
Chilling Effect
In his fourth and final issue, Diaz argues that if the decision of the trial court
is upheld by this Court, “it will create a level of uncertainty that will have a
chilling effect on every traffic stop conducted by law enforcement officers within
24 the State of Texas.” Diaz cites no legal authority for his argument. The State
argues that the official oppression statute as drafted by the Legislature avoids any
“‘chilling effect’ on Law Enforcement” personnel because it tells officers what
they should not do.
As already stated, a temporary detention such as a traffic stop is generally
justified when the officer has “reasonable suspicion” to believe that an individual
is violating the law. See Ford, 158 S.W.3d at 492. “Reasonable suspicion” exists if
the officer has specific articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably suspect that a person has
engaged, is engaging, or soon will be engaging in criminal activity. Abney, 394
S.W.3d at 548. Our ruling today does not in any way restrict, alter, or amend the
“reasonable suspicion” standard as applied by law enforcement personnel in the
exercise of a lawful discharge of their duties. This case does not involve a “lawful
discharge” of official duties by an officer or public servant in making a traffic stop
based upon “reasonable suspicion.” Rather, the jury found Diaz guilty of official
oppression. Diaz is not charged with the “lawful discharge” of his official duties in
conducting a traffic stop, but rather with the “unlawful discharge” of his duties.
The jury determined that Diaz engaged in a detention of another person which
25 violated the law and constituted “official oppression.” Accordingly, we overrule
his issue.
Having overruled all of Diaz’s issues, we affirm the judgment.
AFFIRMED.
______________________________ LEANNE JOHNSON Justice
Submitted on August 11, 2014 Opinion Delivered October 22, 2014 Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.