Daniel Gilberto Ramirez Perez v. State

• Court: Court of Appeals of Texas
• Decided: November 14, 2013
• Docket: 13-11-00060-CR
• Status: Published

Opinion

NUMBER 13-11-00060-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DANIEL GILBERTO RAMIREZ PEREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 398th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION Before Justices Garza, Benavides, and Perkes Memorandum Opinion by Justice Perkes

Appellant Daniel Gilberto Ramirez Perez appeals his conviction for murder, a

first-degree felony. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). A jury found

appellant guilty and assessed punishment at forty years’ imprisonment in the Texas

Department of Criminal Justice, Institutional Division. By sixteen issues, which he argues in four sections, appellant contends that the trial court erred because: (1) the

evidence is insufficient to support his conviction; (2) the State failed to disclose

impeachment evidence; (3) the State made improper jury argument; and (4) trial counsel

rendered ineffective assistance. We affirm.1

I. BACKGROUND

Summer Meland and appellant were involved in a romantic relationship.

Appellant, however, was married to another woman, Virginia Garcia. 2 Defense

witnesses claimed that Meland knew about Garcia early in the relationship. Doriana

Salinas and Veronica Villarreal, two of Meland’s friends, testified that Meland did not find

out that appellant was married until very late in Meland’s pregnancy with appellant’s child.

Villarreal testified that in September 2008, when Meland’s and appellant’s child

was about two months old, Meland wrote appellant a letter in which she “gave [appellant]

an ultimatum . . . either he left his wife or it was over.” Later that week, on September 26,

Meland informed appellant through text messages that she would end the relationship

unless he left Garcia. Meland gave appellant until 5:00 p.m. that evening to make a

decision. Meland was found dead the next morning.

Several witnesses testified that appellant physically abused Meland during their

relationship. The assistant principal at the junior high school where Meland was a

teacher related that Meland would come to school with black eyes and injuries. The

assistant principal and the security officer for the junior high school testified that Meland 1 We reorganized appellant’s issues for clarity in our discussion and as collectively argued by appellant. Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 2 Garcia testified she was appellant’s common-law wife; other witnesses identified her as his wife. 2 told them appellant was beating her. Javier Barbosa, M.D., recounted that Meland came

to him with a fractured leg and that she told him an unbelievable story regarding how it

was fractured. Salinas testified that the leg was fractured while Meland and appellant

were arguing.

Two witnesses related that in August 2008, Meland had some friends over at her

house. Both witnesses testified that appellant “busted” or “barged” through the front

door, stared at Meland’s guests, and then exited the home. Abagail Gonzalez, one of

Meland’s friends, testified that appellant thereafter repeatedly called Meland’s cell phone,

and appellant called Gonzalez after Meland began ignoring his calls. He told Gonzalez

that “if she doesn’t answer my f_ing call, I’m going to shoot all of you guys. I have a gun.”

Gonzalez and the other witness stated appellant then approached another door with

burglar bars, began shaking the bars, threw his cell phone in the house, and, according to

Gonzalez, demanded that they open the door. Gonzalez called the police.

Gonzalez testified that on another occasion, about one week before Meland was

killed, Meland told her that appellant threatened her with a knife. Gonzalez and Villarreal

testified that a couple of days before Meland was killed, they had to pick her up from a

parking lot, where she was hiding from appellant after he, according to Villarreal, became

“very upset” with Meland because she answered a cell phone call from his wife.

Meland’s mother testified that on September 25, which was during the week that

Meland wrote appellant a letter threatening to break up with him, Meland told her that

appellant “threatened to kill her, that he told her if he wasn’t going to be with her, she

3 wasn’t going to live.” Meland texted appellant the ultimatum the next day. She was

found dead the following day.

Meland was shot in the face from close range in the middle of the night while she

was in bed. Her bedroom window was shattered, but crime scene investigators deduced

that someone broke the window from inside the room. They found blood on the inside

portion of the curtain that covered the window. Rene Avendano Jr., a crime scene

investigator, testified that the blood on the curtain appeared fresh and that he thought the

curtain was used “as a buffer to break the glass.” There was no other sign of forced

entry, and nothing was taken from the house.

Meland’s live-in housekeeper, Angela Mendez Rosas (“Mendez”), 3 slept in a

bedroom across the hall from Meland. She claimed that she did not hear anything that

night. Mendez testified that Meland went out with some friends, leaving Mendez to care

for the children, including the young baby. The paternal grandmother of Meland’s two

older children picked them up at about 8:00 p.m., and they stayed with her that night.

Mendez stated she took the baby to her room and fell asleep around midnight. Meland

came home around 2:00 a.m. and took the baby from Mendez’s bedroom. Mendez

found Meland dead the next morning.

Officer Rafael Ramirez, the lead investigator, testified that “immediately the name

of Daniel Perez [appellant] was brought out as a person of interest.”4 Appellant agreed

to talk to Ramirez and gave a signed statement detailing “his whereabouts and alibi as to 3 The parties referred to Angela Mendez Rosas as Mendez throughout the trial and in the appellate briefs. We retain the designation for clarity. 4 Officer Ramirez explained, “[T]he term person of interest is used when someone believes, based on their personal knowledge of events or previous events, that this person may have either information about the crime or may in some way be involved in the crime.” 4 why he couldn’t have committed the crime.” Appellant told Ramirez that he did not own a

gun. He stated that on September 26 he took Garcia to Fast Eddie’s pool hall at 11:00

p.m. and that he stayed there until 2:45 a.m. on September 27. From there, appellant

went straight home, picked up his children, left at 3:30 a.m., and drove directly to South

Padre Island. According to appellant’s statement, he had planned about a week prior to

take the family to Schlitterbahn Water Park on September 27 because it was “the last

weekend that the water park was going to be open for the summer.” Appellant stated he

arrived at South Padre Island around 4:50 a.m. and checked into a hotel around 5:50 a.m.

Appellant’s family members generally confirmed appellant’s version of the

evening’s events. Garcia testified that she and appellant went from Fast Eddie’s to their

house, and that they stayed at their house until they left for South Padre Island. She

claimed they had been planning for weeks to go to Schlitterbahn. She emphasized that

appellant never left the house until they left together to go to South Padre Island.

Breck Christopher McDaniel testified as an expert on cellular telephone antenna

coverage. He analyzed appellant’s cell phone records to see what cell phone antennas

the cell phone used in receiving phone calls and texts that evening. McDaniel testified

that at 9:21 p.m. on September 26 appellant’s cell phone used a cell antenna consistent

with appellant being at Fast Eddie’s and that at 2:38 a.m. and 2:47 a.m. on September 27,

appellant’s cell phone used antennas consistent with appellant driving back to his house.

McDaniel testified that “[b]etween 3:46 and 26 seconds a.m. and 3:48 and 5 seconds a.m.

on Saturday morning . . . [appellant’s] phone was utilizing antennas that are consistent

with being at or very close to the victim’s home.” At 4:05 a.m., appellant’s cell phone

5 used an antenna consistent with him being back at his house. Between 4:37 a.m. and

5:24 a.m., appellant’s cell phone used “a number of cell antennas,” and it moved “from the

area of McAllen, and it goes east to southeast ending up by 5:24 a.m. utilizing a cell

antenna on South Padre Island.” Comparing cell phone data to appellant’s statement,

McDaniel commented:

[H]e—the phone did not go directly home and then on to South Padre Island as the statement claims. The phone went around his home and then went back to the north/northwest after that and then went back around his home and then off to South Padre Island area later that morning.

The State admitted a Schlitterbahn brochure which showed Schlitterbahn was

already closed for the season by September 27. Phillip Adam Stout, a forensic scientist

from the Texas Department of Public Safety Crime Laboratory’s trace evidence section,

testified that investigators recovered “three particles indicative[ 5 ] of gunshot primer

residue” from appellant’s vehicle. During cross-examination, Stout acknowledged he

had read studies showing that the three elements of gunshot residue could possibly be

detected on brake pads and in brake dust. According to appellant’s sister, appellant

would come into contact with those elements on a daily basis because his job involved

grinding brakes. Stout noted, however, “that research was done in Europe, and similar

research has been conducted here but they haven’t found all three.” Stout also clarified,

“When we’re looking at these particles, we are looking to make sure . . . that these

components are contained within the same particle and the particle is melted . . . .”

Edna Lissette Zavala, a forensic scientist with the Texas Department of Public

Safety Crime Laboratory, testified that “[t]o a reasonable degree of scientific certainty,

5 Stout explained, “We call the three-component that have lead, barium and antimony, we call it characteristic. And indicative refers to particles that contain two of the elements.” 6 Daniel Perez [appellant] is the source of the apparent blood stain” on the window-side of

the curtain that covered the shattered bedroom window. Appellant told the police in a

statement that he must have left the blood on the curtain sometime in the past.

II. SUFFICIENCY OF THE EVIDENCE

By his fourteenth through sixteenth issues, appellant challenges the sufficiency of

the evidence to support his conviction. Appellant invites this court to review the evidence

under three standards: no evidence, factual insufficiency, and legal insufficiency. The

Texas Court of Criminal Appeals, in Brooks v. State, requires us to review all evidentiary

challenges under the Jackson v. Virginia sufficiency standard. 323 S.W.3d 893, 894,

917 (Tex. Crim. App. 2010) (plurality op.); Caminorreal v. State, 374 S.W.3d 479, 482

(Tex. App.—Corpus Christi 2010, no pet.). Appellant claims Brooks is inconsistent with

our responsibility under the Texas Constitution and invites us to disregard it. We decline

appellant’s invitation; “we are duty bound to follow precedent issued by the Texas Court

of Criminal Appeals in this matter.” Kiffe v. State, 361 S.W.3d 104, 109 (Tex.

App.—Houston [1st Dist.] 2011, no pet.) (citing Ervin v. State, 331 S.W.3d 49, 53 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d)).

A. Standard of Review

“The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

7 see Brooks, 323 S.W.3d at 898–99. The fact-finder is the exclusive judge of the

credibility of witnesses and of the weight to be given to their testimony. Anderson v.

State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of

conflicts in the evidence is within the fact-finder’s exclusive province. Id. (citing Wyatt

v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve inconsistencies in

the testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000)).

We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. A person commits murder if he intentionally or

knowingly causes the death of another individual. TEX. PENAL CODE ANN. § 19.02(b)(1).

B. Discussion

A review of appellant’s relationship with Meland provides a probative context.

Several witnesses testified that appellant physically abused Meland and related several

occasions during which he seriously injured her. During at least one event, the police

were called after appellant became violently abusive and threatened to kill everyone with

his gun. Appellant, however, denied owning a gun in his statement. Meland’s friends

8 testified that earlier in the week, Meland wrote appellant a letter threatening to end the

relationship unless he left his wife. Meland’s mother testified Meland told her that

appellant “threatened to kill her[;] if he wasn’t going to be with her, she wasn’t going to

live.” The next day, Meland sent appellant a text message stating she would end the

relationship if he refused to leave his wife. Meland was found dead the next morning.

The evidence connecting appellant to Meland’s murder includes appellant’s blood

on the curtain covering the bedroom window shattered on the night of Meland’s murder.

The evidence further includes testimony and data showing that appellant’s cell phone

was at or near Meland’s house between 3:46 and 3:48 a.m., which, based on the forensic

pathologist’s testimony, fell within the time range for Meland’s death. That appellant’s

cell phone was at or near Meland’s house at that time also contradicted appellant’s

version of the events in his statement. In addition, three particles indicative of gunshot

residue were found in appellant’s vehicle.

In considering the foregoing evidence, the jury heard two competing explanations.

Although appellant suggested he could have left his blood on the curtain sometime in the

past, Investigator Avendano Jr. testified that the blood looked fresh. Contrary to

appellant’s assertion that he drove directly from Fast Eddie’s to his house and then to

South Padre Island, McDaniel’s testimony showed that appellant’s cell phone was at or

near Meland’s house sometime during that time period. Appellant claimed in his

statement that he planned for about a week to drive to South Padre Island on September

27 to visit Schlitterbahn on its last open weekend, but the State presented evidence

showing that Schlitterbahn was not open on that day, something that planning in advance

9 should have revealed to appellant. Appellant also told investigating officers that he

never owned a gun, but Gonzalez related an event in which appellant threatened to shoot

Meland and some of her house guests, specifically stating, “I have a gun.”

We defer to the jury as the exclusive judge of the witnesses’ credibility and the

weight to be given their testimony, and will uphold the jury’s reconciliation of conflicts in

the evidence unless, after viewing the evidence in the light most favorable to the

prosecution, we conclude that no rational jury could have found the essential elements of

murder beyond a reasonable doubt. Johnson, 364 S.W.3d at 293–94; Anderson, 322

S.W.3d at 405. The jury was free to disbelieve appellant’s version of events.

We hold that a reasonable jury could have found the essential elements of murder

beyond a reasonable doubt. See id. We overrule appellant’s fourteenth through

sixteenth issues.

III. MOTION FOR NEW TRIAL

By his first through ninth issues, appellant argues that the trial court abused its

discretion by not granting his motion for new trial because: “(a) the State’s suppression

of material impeachment information undermined confidence in the trial’s outcome; and

(b) the State’s [failed] to request the trial court to instruct the jury to disregard false

impression testimony from the State’s witness[,] Mendez.” In his motion for new trial and

at the hearing, appellant argued the State improperly withheld two prior statements made

by Mendez, Meland’s housekeeper, in violation of Brady v. Maryland6 and that the State

failed to correct testimony by Mendez which the State knew to be false in violation of

6 Brady v. Maryland, 373 U.S. 83 (1963).

10 Alcorta v. Texas.7 Appellant reasserts these arguments on appeal and challenges some

of the trial court’s findings of fact that support its denial of appellant’s motion for new trial.8

Riley v. State delineates our standard of review when considering motions for new

trial, and states, in relevant part:

An appellate court reviews a trial court's denial of a motion for new trial for an abuse of discretion, reversing only if the trial judge's opinion was clearly erroneous and arbitrary. A trial court abuses its discretion if no reasonable view of the record could support the trial court's ruling. This deferential review requires the appellate court to view the evidence in the light most favorable to the trial court's ruling. The appellate court must not substitute its own judgment for that of the trial court and must uphold the trial court's ruling if it is within the zone of reasonable disagreement. Where there are two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous.

378 S.W.3d 453, 457 (Tex. Crim. App. 2012) (quotations omitted).

Appellate issues involving claims originally brought in a motion for new trial are

really challenges to the trial court’s ruling on the motion. Cueva v. State, 339 S.W.3d

839, 856–57 (Tex. App.—Corpus Christi 2011, pet. ref’d) (citing Charles v. State, 146

S.W.3d 204, 208 (Tex. Crim. App. 2004)). We defer to the trial court as the sole judge of

the credibility of the witnesses and the weight to be given their testimony. See

Rodriguez v. State, 191 S.W.3d 428, 453 (Tex. App.—Corpus Christi 2006, pet. ref’d).

7 Alcorta v. Texas, 355 U.S. 28 (1957). 8 Most of appellant’s briefing on this issue corresponds to a “statement” written by a polygraph examiner in a post-examination report about Mendez, whom the examiner declared showed deception during the examination. The other allegedly suppressed statement was mentioned only once during the hearing, and the only reference to it in appellant’s brief is a verbatim quotation, without any argument, of the testimony advanced at the hearing. Appellant does not explicitly attach any of the articulated subissues to that statement as he does to the post-polygraph examination observation. The attorneys at the hearing did not discuss the second statement in closing, and none of the trial court’s findings of fact address it. 11 B. Texas Rule of Evidence 615(a)

By his first issue, appellant claims the State violated Texas Rule of Evidence

615(a) by only tendering one of Mendez’s prior statements to appellant after direct

examination, thereby withholding “her ‘other two statements’ in the DA’s file.” Rule

615(a) pertains to the production of a direct-examination witness’s statements upon

motion. TEX. R. EVID. 615(a). Appellant did not argue this issue at trial, in his motion for

new trial, or at the hearing on his motion for new trial. Therefore, he failed to preserve

this issue for review on appeal. See TEX. R. APP. P. 33.1; Keeter v. State, 175 S.W.3d

756, 760 (Tex. Crim. App. 2005) (holding that the defendant’s failure to include an

argument in his motion for new trial and at its hearing rendered it unpreserved); Acosta v.

State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.). 9 We overrule

appellant’s first issue.

C. Brady v. Maryland

By his second issue, appellant argues the trial court reversibly erred by denying his

motion for new trial, wherein he complained that the State’s failure to tender two of

Mendez’s prior statements violated the Sixth and Fourteenth Amendments. See U.S.

CONST. amends. VI, XIV; Brady v. Maryland, 373 U.S. 83 (1963). 10 Specifically,

9 To the extent appellant categorizes Texas Rule of Evidence 615(a) as an extension of the State’s responsibility under Brady, we analyze appellant’s Brady-violation complaint in the following subsection. As an independent ground for recovery, however, appellant failed to preserve his Rule 615(a) objection. Moreover, rule 615(a) is inapplicable because appellant did not move for production of a statement as required by rule 615(a), and the post-polygraph examination summary was not a “statement” as defined in rule 615(f). See TEX. R. EVID. 615(a), (f). 10 Appellant does not develop his Sixth Amendment argument in his brief except to conclusorily assert at the beginning and end of his argument that it has been violated. Moreover, the controlling cases, upon which appellant properly relies, are Fourteenth Amendment cases. We overrule appellant’s Sixth Amendment argument as inadequately briefed. See TEX. R. APP. P. 38.1. 12 appellant complains that the State did not tender: (1) Officer Flores’s post-polygraph

report that appellant describes as a “recantation statement”; and (2) Mendez’s two-page

affidavit dated September 27, 2008.11

Brady v. Maryland established “that the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” Brady, 373 U.S. at 87. To prevail on a Brady-violation claim, the

defendant must show: (1) the State failed to disclose evidence, regardless of the

prosecution’s good or bad faith; (2) the withheld evidence is favorable to him; and (3) the

evidence is material, that is, there is a reasonable probability that had the evidence been

disclosed, the outcome of the trial would have been different. Pena v. State, 353 S.W.3d

797, 809 (Tex. Crim. App. 2011) (citing Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.

App. 2002)); Rodriguez v. State, 191 S.W.3d 428, 472 (Tex. App.—Corpus Christi 2006,

pet. ref’d).

Two principles guide our analysis of the first Brady prong. First, appellant has to

show that the evidence was known to the prosecution but unknown to the defense. Ex

parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (citing United States v. Agurs,

427 U.S. 97, 103 (1976)). Second, an open-file policy generally satisfies the State’s duty

to disclose exculpatory evidence. See Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim.

App. 2006) (en banc). “[T]he [S]tate is not required to seek out exculpatory evidence

11 Appellant filed pretrial requests for the State to disclose and to produce all witness statements and material evidence regarding his innocence. It is undisputed the State tendered one of Mendez’s statements, dated September 28, 2008. Appellant challenges whether the State did, in fact, tender the other two “statements.” 13 independently on appellant’s behalf, or furnish appellant with exculpatory or mitigating

evidence that is fully accessible to appellant from other sources.” Id. (citing Jackson v.

State, 552 S.W.2d 798, 804 (Tex. Crim. App. 1976)).

1. Officer Flores’s Post-Polygraph Report

Appellant argues the trial court erred by denying his motion for new trial because

the State allegedly withheld Officer Flores’s post-polygraph report. The question of

whether the State failed to disclose Officer Flores’s post-polygraph report was a question

of fact for the trial court. The State denied withholding the report, emphasizing that it was

located in the State’s file, which was available to and used by appellant’s trial counsel in

accordance with the State’s open-file policy. The State asserted that appellant’s counsel

knew about the report before trial, as manifested by a question he asked the State’s

investigator, Officer Ramirez, on cross-examination. Specifically, during the trial,

appellant’s counsel asked Officer Ramirez, “[B]ased on the information that you gathered,

[Mendez] was being deceptive; is that right?”12 In that regard, the report includes a

comment line regarding the “Examiner’s Opinion” wherein the examiner concludes:

“Deception Indicated.”

Appellant, on the other hand, urged that the polygraph report must not have been

included in the State’s file because, according to appellant’s counsel, “I would not have

missed that . . . It’s pretty critical stuff.” The trial court concluded, as explained in its

findings of fact, that the trial counsel’s question and bill of exceptions revealed his

awareness of the report. Separately, the trial court found that the prosecutor “provided

credible testimony” that the report was always available in the State’s open file. 12 The question was not answered because the State objected to it. 14 We defer to the trial court’s determination on the witnesses’ credibility, see, e.g.,

Rodriguez, 191 S.W.3d at 453, and we defer to the trial court’s selection between the two

views of evidence, see Riley, 378 S.W.3d at 457 (citing Anderson v. City of Bessemer

City, 470 U.S. 564, 574 (1985)). Deferring to the trial court’s finding that appellant’s

counsel was aware of the report prior to trial, we hold that appellant failed to satisfy the

first Brady prong. See Ex parte Miles, 359 S.W.3d at 665 (citing Agurs, 427 U.S. at 103)

(noting that an appellant must show that the evidence “had been known to the

prosecution but unknown to the defense.”). Further, after deferring to the trial court’s

finding that the report was in the State’s file and available to appellant, we hold that

appellant also failed to satisfy the first Brady prong under Harm. See Harm, 183 S.W.3d

at 407 (open-file policy generally satisfies State’s Brady duty).13

Appellant’s reliance on Banks v. Dretke, 540 U.S. 668 (2004) for the proposition

that the State has a duty beyond maintaining an open-file policy to identify and provide

the defense with exculpatory evidence is misplaced. In that case, the United States

Supreme Court rejected the “notion that defendants must scavenge for hints of

undisclosed Brady material when the prosecution represents that all such material has

been disclosed.” Id. at 695. The Brady material challenged in Banks was “undisclosed”

and “the State persisted in hiding” Brady material while telling the defense “that it had

complied in full with its Brady disclosure obligations . . . .” Id. at 693. Banks does not

13 The trial court’s findings also indicate that the statement was not material under Brady. We agree. There is no showing that had the information been produced, the trial outcome would have been different. Although appellant asserts that the defense would have argued the murderer was in the house at midnight, appellant has not shown how that defensive theory would negate the fact that, according to McDaniel’s analysis of appellant’s cell phone location, appellant was at or near Meland’s home at around the time of her death. Appellant does not show why the defense witnesses’ testimony of appellant being elsewhere would be more credible to the jury in that circumstance. Neither does it explain why appellant’s DNA was found on the curtain by the broken window. 15 establish that prosecutors must assist the defense and direct its attention to or emphasize

Brady material that is already disclosed in the State’s open file. We overrule this portion

of appellant’s second issue.

2. Mendez’s Affidavit Dated September 27, 2008

Appellant further argues the trial court erred by denying his motion for new trial

because the State allegedly withheld Mendez’s two-page affidavit dated September 27,

2008. Upon being asked when he first saw the affidavit, appellant’s trial counsel

responded, “Well, I may have seen it, but I don’t recall. I can tell you that when I looked

at this stuff yesterday, I could not remember reading this document in the . . . D.A.’s file.”

Appellant’s counsel testified that following Mendez’s direct examination at trial, the

prosecutor only handed him the September 28 affidavit. In counsel’s testimony from the

hearing, he explains the relevance of the September 27 statement:

There is a couple of differences. First of all, in the—the one dated September 27, 2008, she talks about an alarm system that she didn’t recall, Ms. Mendez didn’t recall that Ms. Meland activated the system, the alarm system or not, when she came home. On the one the following day, she corrected it and says that she never used the alarm system. There is a big difference there.

Trial counsel emphasized that, had he been given the September 27 statement,

I would have asked her about the alarm system because, you know, the one that I saw dated September 28th, 2008, the clear indication is that even though there was an alarm system in the house, it was never, ever used. The one dated September 27, 2008 indicates that there was one alarm system in the house that was activated from time to time. At least that’s the clear inference from that statement. And I would have pursued the questioning as to whether or not the alarm’s system was activated when she got home, when Ms. Meland got home at 2:00 in the morning.

16 Appellant does not give the affidavit separate treatment in his brief, except to quote

the foregoing testimony from the hearing on his motion for new trial. After quoting it,

however, appellant articulates no additional argument relating solely to it, but rather

quotes testimony relating to the post-polygraph report.

Appellant has failed to satisfy the three Brady prongs as they relate to this

statement. Appellant’s trial counsel admitted that he may have seen the statement but

could not recall whether he had. Failure to recall does not constitute non-disclosure.

Moreover, the September 27 affidavit does not constitute evidence favorable to appellant

or material evidence. See Brady, 373 U.S. at 87. We overrule the remainder of

appellant’s second issue.

D. Alcorta v. Texas

By his third issue, appellant argues the trial court reversibly erred by denying his

motion for new trial, wherein he complained that the State violated the Sixth and

Fourteenth Amendments by not requesting the trial court to instruct the jury to disregard

Mendez’s allegedly false-impression testimony.14 See U.S. CONST. amends. VI, XIV;

Alcorta v. Texas, 355 U.S. 28 (1957).

The Fourteenth Amendment precludes the State from using perjured testimony

that the prosecution knows to be perjury. Mooney v. Holohan, 294 U.S. 103, 112 (1935)

(per curiam); Ex parte Chabot, 300 S.W.3d 768, 770–71 (Tex. Crim. App. 2009). Alcorta

v. Texas expanded this right, making it a due process violation for a prosecutor to not

correct false testimony. See 355 U.S. 28, 31–32 (1957) (per curiam); see also Napue v.

14 Again, we overrule appellant’s Sixth-Amendment argument as inadequately briefed. See supra note 10; TEX. R. APP. P. 38.1. 17 Illinois, 360 U.S. 264, 269 (1959) (explaining Alcorta); Ex parte Castellano, 863 S.W.2d

476, 480 (Tex. Crim. App. 1993) (en banc); Garcia v. State, No. 13-10-00098-CR, 2011

WL 861156, at *8 (Tex. App.—Corpus Christi Mar. 10, 2011, no pet.) (mem. op., not

designated for publication). The State’s duty to correct false testimony applies even

when the falsehood in the testimony goes only to the witness’s credibility, see Napue, 360

U.S. at 239, and even when the prosecution did not actually know the falsity of testimony

but should have, see Giglio v. United States, 405 U.S. 150, 154 (1972); Ex parte Adams,

168 S.W.2d 281, 291 (Tex. Crim. App. 1989) (en banc).

We do not “automatically require a new trial whenever a combing of the

prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but

not likely to have changed the verdict . . . .” Giglio, 405 U.S. at 154 (quotation omitted);

see Ex parte Adams, 168 S.W.2d at 292. “A new trial is required if the ‘false testimony

could . . . in any reasonable likelihood have affected the judgment of the jury . . . .’”

Giglio, 405 U.S. at 154 (citing Napue, 360 U.S. at 271); see Ex parte Adams, 168 S.W.2d

at 292.

Appellant claims that the following testimony from Mendez was false and that the

State knew it was false because it allegedly contradicted the polygraph examiner’s

post-examination notes:

Q After Ms. [Meland] left, the kids left, do you recall at what time you made his [the baby’s] last bottle?

A Yes, at midnight.

Q And at that point did you feel anything strange?

A No. Well, that night I felt scared.

18 Q And that night did you see anything, did you hear anything that you felt that fear?

A No, no, nothing, but I did feel scared.

Q Okay. And since you felt that scaredness or that fear, what did you do to feel more secure?

A I picked up the keys that were there on top of the counter. I picked them up and I went to go lock the doors.

Q What doors was it that you locked, Ms. Mendez?

A To the main entrance.

....

Q Okay. So which doors were commonly always left open at the Meland’s home?

A The one—the garage.

Q And it was common to you that those were usually left unlocked?

A Yes, because that’s where she [Meland] would come in through.

Q So you didn’t lock them that night, correct?

A No, no.

The polygraph examiner’s post-examination summary stated:

Mendez denies seeing or hearing anything suspicious or out of the ordinary. She recanted saying that about midnight, she was in the kitchen fixing the baby a bottle when she heard a sound behind her. She looked and didn’t see anyone behind her. She and her sister spoke about this and suspect that this is when someone entered the house. She added that she locked the front outer door because she was scared but left the rear door unlocked.

The State prosecutor considered the discrepancies to be minor and explained that

it was not uncommon for witnesses to give slightly different versions of events. The trial

19 court agreed with the State, finding that the prosecutor “accurately described the

discrepancy between Angela Mendez’[s] trial testimony and the information given

following the first polygraph session as a minor discrepancy involving saying the same

thing a little bit differently.” The trial court further reasoned that the post-polygraph

narrative did not necessarily place the alleged sound inside the house and, in both

versions, Mendez felt scared and locked the front door. In an un-appealed finding of

fact, the trial court elaborated:

The claim that the prosecution violated its duty to correct allegedly false testimony . . . is based on the false assumptions (A) that [Mendez’s] trial testimony and the information contained in the interview following her first polygraph session are 180 degrees different, making one the truth and the other a lie and (B) that the State had to accept as true the version of events which is favorable to the defense.

We agree with the trial court. We note that the prior “statement” was not from

Mendez; it was from the polygraph examiner, who was recounting Mendez’s discussion

with him. Accordingly, some inconsistencies may be expected. Moreover, the prior

statement indicated that Mendez thought she heard something behind her, but, upon

inspection, saw nothing. This comports with her trial testimony that she felt scared but

did not identify a particular sight or sound that prompted the fear. Mendez never said, in

any recorded statement, that she heard someone inside the house, which would make

her response of locking herself in the house rather curious.

Viewing the evidence in the light most favorable to the trial court’s denial of

appellant’s motion for new trial, we cannot conclude that no reasonable view of the record

supports the ruling. See Riley, 378 S.W.3d at 457. To the extent her testimony varied

from the examiner’s narrative of her statements, we hold that the minor discrepancies did

20 not amount to false testimony or perjury. 15 See Lawson v. State, 896 S.W.2d 828,

832–33 (Tex. App.—Corpus Christi 1995, pet. ref’d) (holding minor discrepancies

between a police officer’s testimony in a previous trial and the later retrial did not

constitute perjury); see also Losada v. State, 721 S.W.2d 305, 312 (Tex. Crim. App. 1986)

(en banc) (“Discrepancies in testimony alone do not make out a case for perjury.”). Even

if we were to assume that Mendez’s testimony amounted to perjury, we do not think it

would have been reasonably likely to affect the jury’s verdict See Giglio, 405 U.S. at

154; Ex parte Adams, 168 S.W.2d at 292. Substantial evidence connected appellant to

the crime. We overrule appellant’s third issue.

E. Findings of Fact

By issues four through nine, appellant argues that the trial court “clearly erred” in

making findings of fact numbers 21, 24, 32, 54, 55, and 56. Appellant supports his

assertion with a single statement: “Those facts or conclusions are untrue, appellant

proved by clear and convincing evidence.”

Appellant wants us to substitute the trial court’s findings with our own judgment,

which we are not permitted to do. See Riley, 378 S.W.3d at 457 (citing Webb v. State,

232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Wead v. State, 129 S.W.3d 126, 129 (Tex.

15 Appellant’s attorney stressed that, had he been aware of the prior statement, he would have “argued to the jury that the individual that killed Summer Meland was at the house at midnight” and “there was no way that [appellant] would have been in that house at midnight . . . .” That appellant would have argued differently at trial had he been aware of the prior statement is relevant to the non-disclosure prong of Brady, addressed supra, more than whether the testimony was perjury. We review the alleged inconsistency from the perspective of the fact-finder, not the defense. See Giglio v. United States, 405 U.S. 150, 154 (1972) (“A new trial is required if the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury.”) (internal quotations omitted); Ex parte Adams, 768 S.W.2d 281, 292 (Tex. Crim. App. 1989) (en banc) (same); Duggan v. State, 778 S.W.2d 465, 469 (Tex. Crim. App. 1989) (en banc) (“[F]alse evidence, left uncorrected, can mislead the fact-finder, thereby misdirecting the due course of law and diverting due process from its intended progression toward a just and fair trial.”).

21 Crim. App. 2004)) (“The appellate court must not substitute its own judgment for that of

the trial court and must uphold the trial court's ruling if it is within the zone of reasonable

disagreement.”). We will not disturb the trial court’s findings absent demonstrated abuse

of discretion. Tollett v. State, 799 S.W.2d 256, 259 (Tex. Crim. App. 1990) (en banc)

(citing Keady v. State, 687 S.W.2d 757, 759 (Tex. Crim. App. 1985)); Clarke v. State, 305

S.W.3d 841, 846 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citation omitted);

Martinez v. State, 846 S.W.2d 348, 349 (Tex. App.—Corpus Christi 1992, pet. ref’d).

Looking at the contested findings, we uphold them as within the zone of

reasonable disagreement. See Riley, 378 S.W.3d at 457. Finding 21 found credible

the State’s description of the alleged inconsistency between Mendez’s testimony and the

post-polygraph narrative as a minor discrepancy. Finding 24 declared, as an alternative

to the court’s finding that the State disclosed the statement, that even if the polygraph

examination had not been disclosed to appellant, it would not have affected the trial’s

outcome because the evidence convicting appellant was overwhelming and gave no

indication that anyone other than appellant was at or near Meland’s home. Finding 32

noted that appellant’s attorney provided no evidence except his own recollection that the

State offered only one statement rather than all of Mendez’s germane statements to the

defense after examining Mendez. Findings 54, 55, and 56 found, as an alternative to the

finding the State disclosed the statement, that the statement was not material.

Given that findings of fact 24, 54, 55, and 56 were presented as alternative findings

to the court’s finding that the State disclosed in its open file the allegedly suppressed

statement, and that we have identified no abuse of discretion on that finding, we need not

22 independently address the alternative findings. See TEX. R. APP. P. 47.1. We hold the

trial court did not abuse its discretion in making the complained-of findings of fact. We

overrule appellant’s fourth through ninth issues.

IV. CLOSING ARGUMENT

By his twelfth issue, appellant contends the trial court erred in overruling his

objection to the State’s allegedly prejudicial jury argument commenting on appellant’s

failure to testify. By his thirteenth issue, appellant argues the trial court erred by denying

his motion for mistrial made in response to a different jury-argument comment on

appellant’s failure to testify.

A. Applicable Law

The four permissible areas of jury argument are: (1) summation of the evidence;

(2) reasonable deductions from the evidence; (3) responses to the defendant’s argument;

and (4) pleas for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim.

App. 2011); Lopez v. State, 288 S.W.3d 148, 159–60 (Tex. App.—Corpus Christi 2009,

pet. ref’d). The fact that a defendant did not testify does not fall into any of those

categories and may not be the subject of comment by the prosecution. The United

States and Texas Constitutions guarantee that a defendant in a criminal trial shall not be

compelled to give evidence against himself. See U.S. CONST. amend. V; TEX. CONST.

art. I. The decision of a defendant to not testify shall not be taken as a circumstance

against him, nor shall the same be alluded to or commented on by counsel. TEX. CRIM.

PROC. CODE ANN. art. 38.08 (West 2005).

To violate the right against self-incrimination, the offending language must be viewed from the jury’s standpoint and the implication that the comment

23 referred to the defendant’s failure to testify must be clear. It is not sufficient that the language might be construed as an implied or indirect allusion. The test is whether the language used was manifestly intended or was of such character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character.

Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); see also Bustamante v.

State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). A jury argument is improper if it calls

the jury’s attention to the absence of evidence that only the defendant’s testimony could

supply. Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999) (citing Banks v.

State, 643 S.W.2d 129, 134–35 (Tex. Crim. App. 1982)); Crocker v. State, 248 S.W.3d

299, 304 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Garrett v. State, 632

S.W.2d 350, 353 (Tex. Crim. App. 1982)).

We review challenges to overruled objections of improper jury argument, such as

an improper comment on a defendant’s decision to not testify, for an abuse of discretion.

See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004); York v. State, 258

S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d). We also review the trial court’s

ruling on a motion for mistrial under the abuse-of-discretion standard. See Webb, 232

S.W.3d at 112. We view the evidence in the light most favorable to the trial court’s ruling

and uphold the ruling if it is within the zone of reasonable disagreement. See id. (citing

Wead, 129 S.W.3d at 129).

A mistrial is a severe remedy, and “[o]nly in extreme circumstances, where the

prejudice is incurable, will mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77

(Tex. Crim. App. 2004) (en banc). “A mistrial is the trial court's remedy for improper

24 conduct that is ‘so prejudicial that expenditure of further time and expense would be

wasteful or futile.’” Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999)). “Therefore, a mistrial should be granted only in the cases where the ‘reference

was clearly calculated to inflame the minds of the jury or was of such damning character

as to suggest it would be impossible to remove the harmful impression from the juror's

minds.’” Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (quoting Rojas v.

State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998)). Otherwise, sound discretion

normally requires the trial judge to consider less drastic alternatives. Torres v. State,

614 S.W.2d 436, 442 (Tex. Crim. App. [Panel Op.] 1981). In determining whether a

mistrial should have been granted, three factors must be balanced:

1. The severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks);

2. The measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and

3. The certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).

Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (citing Ramon v. State, 159

S.W.3d 927, 929 (Tex. Crim. App. 2004)).

1. No Explanation Regarding Cell Phone Pinging At The Crime Scene

By his twelfth issue, appellant contends that the trial court erred by overruling his

objection to the State’s following jury-argument comment:

He cannot explain whatsoever why he [his cell phone] was pinging off Summer Meland’s home in the middle of the night.

25 Appellant objected on the grounds that the State was improperly commenting on

appellant’s exercised right to not testify. The trial court overruled his objection.

We hold that the argument was not a clear reference from which the jury would

necessarily and naturally conclude that the prosecutor was commenting on appellant’s

decision to not testify. See Cruz, 225 S.W.3d at 548. Portrayal of the argument to be

such a reference constitutes implication and construal rather than manifest intent. See

id. Neither did the comment highlight the absence of evidence that only appellant’s

testimony could provide. See Fuentes, 991 S.W.2d at 275; Crocker, 248 S.W.3d at 304.

At trial, defense witnesses asserted that appellant was traveling to South Padre Island at

the time that McDaniel’s testimony placed appellant at or near Meland’s house. During

closing argument, appellant’s trial counsel questioned McDaniel’s objectivity and

emphasized that his testimony was limited to estimates and opinion, which, according to

trial counsel, could be incorrect. Accordingly, the complained-of comment falls under

summation of evidence and reasonable deductions drawn from the evidence. See

Freeman, 340 S.W.3d at 727; Lopez, 288 S.W.3d at 159–60.

Even assuming that the argument was an improper comment on appellant’s right

to not testify, we hold that the failure to sustain appellant’s objection would be harmless.

A prosecutorial remark that impinges on a defendant’s privilege against self-incrimination

is an error of constitutional magnitude. Snowden v. State, 353 S.W.3d 815, 818 (Tex.

Crim. App. 2011). When confronted with constitutional error, we must reverse unless we

determine beyond a reasonable doubt that the error did not contribute to the conviction or

punishment. TEX. R. APP. P. 44.2(a). This requires us to review the entire record in a

26 neutral, impartial, and even-handed manner rather than in “the light most favorable to the

prosecution.” Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed

with in part on other grounds by Snowden, 353 S.W.3d at 820–22; Trevino v. State, 228

S.W.3d 729, 752 (Tex. App.—Corpus Christi 2006, pet. ref’d). In evaluating whether

constitutional error was harmful, we consider: the nature of the error; the extent to which

it was emphasized by the State; the probable implications of the error; and the weight the

jury would likely have assigned to it in the course of its deliberations. Snowden, 353

S.W.3d at 822. These factors are not exclusive of other valid considerations, and not

every factor will necessarily apply. See id.

Our neutral, impartial review of the record demonstrates that the prosecutor’s

comment was extremely brief and that the jury likely attributed little, if any, weight to the

allegedly improper comment. Moreover, the trial court charged the jury to not afford any

weight to appellant’s decision to not testify. Thus, even assuming the trial court erred by

overruling appellant’s objection, we hold that such error was not reversibly harmful. We

overrule appellant’s twelfth issue.

2. No Explanation Regarding His Blood At The Crime Scene

By his thirteenth issue, appellant argues that the trial court erred by denying his

motion for mistrial. Specifically, he complains that the State made a “prejudicial

comment on appellant’s right not to testify” when the State made the following comment

during jury argument:

They [the defense] want you to just forget that his blood is there at the scene, forget that it was there some other time. Give us an explanation.

27 Appellant objected on grounds the argument was an improper comment on appellant’s

right to not testify, and the trial court sustained his objection. Appellant asked the trial

court to instruct the jury to disregard the comment, and the trial court so instructed the

jury. The trial court, however, thereafter denied appellant’s motion for mistrial, which

appellant contests on appeal.

First, we note that the comment was of very short duration, referenced “they”

rather than appellant, and was not repeated. Appellant immediately objected, and the

trial court sustained the objection and instructed the jury to disregard. Thereafter, the

prosecutor’s argument focused on the implausibility of appellant’s alibi.

Second, an instruction by the trial court for the jury to disregard will cure a

comment on the failure of an accused to testify in all but the most blatant examples. See

Moore v. State, 999 S.W.2d 385, 405 (Tex. Crim. App. 1999). Here, the trial court’s

instruction to disregard was in response to appellant’s complaint that the comment

breached appellant’s right to not testify. The jury was aware of why the comment was

improper and why the trial court ordered the jury to disregard it. We must assume,

absent rebuttal, that the jury followed the instruction. See Thrift v. State, 176 S.W.3d

221, 224 & n.10 (Tex. Crim. App. 2005); Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim.

App. 1988); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987); see also

Banda v. State, No. 13-10-00579-CR, 2012 WL 171918, at *7 (Tex. App.—Corpus Christi

Jan. 19, 2012, pet. ref’d) (mem. op., not designated for publication). The error at issue

was not so highly prejudicial that it could not be cured by the court’s specific instruction to

disregard the comment. See Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)

28 (“A grant of a motion for mistrial should be reserved for those cases in which an objection

could not have prevented, and an instruction to disregard could not cure, the prejudice

stemming from the event at trial—i.e., where an instruction would not leave the jury in an

acceptable state to continue the trial.”).

Lastly, the evidence supporting appellant’s conviction was strong regardless of the

improper comment. As discussed supra, there was substantial evidence connecting

appellant to the crime. The comment, even if improper, likely had very little impact on the

trial’s outcome. Therefore, we conclude the trial court did not abuse its discretion in

overruling appellant’s motion for mistrial. We overrule appellant’s thirteenth issue.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

By his tenth and eleventh issues, appellant argues he received constitutionally

ineffective assistance of counsel because his trial counsel: (1) failed to impeach Mendez

with her prior inconsistent statement; and (2) failed to impeach Mendez by presenting

Officer Flores’s testimony about Mendez’s prior inconsistent statement to him. Appellant

contends he was deprived of the defense that someone other than appellant was in the

house and killed Meland. Both issues concern the following statement made by Officer

Flores:

[A]bout midnight [Mendez] was in the kitchen fixing the baby a bottle when she heard a sound behind her. She looked and didn’t see anyone behind her. She and her sister spoke about this and suspect that this is when someone entered the house.

To prevail on an ineffective assistance claim, appellant must show: (1) counsel’s

representation fell below an objective standard of reasonableness; and (2) the deficient

29 performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). Our review of counsel’s

representation is highly deferential; we will find ineffective assistance only if he rebuts the

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

professional assistance. Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142; Jaynes,

216 S.W.3d at 851. The record must contain evidence of counsel’s reasoning, or lack

thereof, to rebut the presumption. Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.—

Corpus Christi 1999, pet. ref’d). We review the totality of representation rather than

isolated instances in determining whether trial counsel was ineffective. See Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Lopez, 343 S.W.3d at 143.

Appellant raised ineffective-assistance of counsel claims in his motion for new trial.

Neither appellant’s contentions in his motion for new trial, nor his trial counsel’s testimony

at the hearing thereon, comport with his issues on appeal. Rather, trial counsel took the

position that he neither possessed nor knew of the germane statement because the State

suppressed it. Consequently, the record does not reveal the basis of trial counsel’s

decisions complained of on appeal.

We will not “reverse on ineffective assistance of counsel grounds when counsel’s

actions or omissions may have been based on tactical decisions, but the trial record

contains no specific explanation for counsel’s decisions.” Bone v. State, 77 S.W.3d 828,

830 (Tex. Crim. App. 2002); Brown v. State, 155 S.W.3d 625, 631 (Tex. App.—Fort Worth

30 2004, pet. ref’d); see Landers v. State, 110 S.W.3d 617, 623 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref’d) (holding appellate court must presume sound trial strategy on a

silent record, especially when the defendant’s trial counsel was not put on notice to

answer complaint at new-trial hearing); Lagaite v. State, 955 S.W.2d 860, 864 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d) (refusing to speculate on counsel’s trial

strategy where defendant’s new-trial motion did not raise ineffective-assistance claims

presented on appeal).

Assuming appellant’s trial counsel knew of the statement, which the trial court

found and we upheld, we would need to speculate regarding why trial counsel decided

against using it to impeach Mendez. Implicit in the premise of the trial court’s

finding—that trial counsel’s reference to the statement in a question and in a bill of

exceptions manifested an awareness of the statement—is the fact that trial counsel did

not altogether disapprove of using the statement. Decisions of when and how to use

evidence is a fundamental matter of trial strategy, as are decisions of what questions to

ask on cross-examination. Hollis v. State, 219 S.W.3d 446, 470 (Tex. App.—Austin

2007, no pet.) (citing Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1991) (en

banc)); see Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.—Tyler 1996, pet. ref’d). We

hold appellant failed to rebut the presumption that his trial counsel’s performance fell

within the wide range of reasonable professional assistance by not impeaching Mendez

with the post-polygraph narration from the polygraph examiner. See Lopez, 343 S.W.3d

at 142–43; Moreno, 1 S.W.3d at 865.

31 Regarding appellant’s contention that trial counsel was constitutionally deficient for

not having the polygraph examiner testify on the post-polygraph-examination summary,

we hold that the presumption that counsel used sound trial strategy has not been

rebutted. “[T]he decision whether to present witnesses is largely a matter of trial

strategy.” Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005,

pet. dism’d) (citing Rodd v.State, 886 S.W.2d 381, 384 (Tex. App.—Houston [1st Dist.]

1994, pet. ref’d)); Smith v. State, 84 S.W.3d 36, 42 (Tex. App.—Texarkana 2002, no pet.).

In addition, any testimony relating to the contents of that statement would have been

inadmissible hearsay. See TEX. R. EVID. 801(d), 802, 803(3)(B). Appellant has not

shown that counsel’s representation fell below an objective standard of reasonableness.

Looking at the totality of trial counsel’s performance, we note that he filed pretrial

motions, conducted vigorous cross-examination, presented testimony from several

defense witnesses that challenged the State’s case, and made timely and appropriate

objections. Even if we assumed that appellant’s trial counsel’s performance fell below

the objective standard of reasonableness in either manner contended, appellant has not

shown that there is a reasonable probability that but for counsel’s deficient performance

the result of the proceeding would have been different. See Lopez, 343 S.W.3d at 142;

Moreno, 1 S.W.3d at 864. The evidence connecting appellant to the crime was

substantial. The impeachment evidence of what Mendez may have heard but could not

verify on the eve of Meland’s murder and Mendez’s subsequent speculations do not

undermine the evidence connecting appellant to the crime scene at a time inconsistent

with the defense’s alibi and consistent with the range of time of Meland’s murder. Thus,

32 appellant fails the second Strickland prong and the requisite showing that an isolated

error was so egregious as to render counsel constitutionally deficient. See Lopez, 343

S.W.3d at 143. We overrule appellant’s tenth and eleventh issues.

VI. CONCLUSION

We affirm the trial court’s judgment.

GREGORY T. PERKES Justice

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

Delivered and filed the 14th day of November, 2013.