In The
Court of Appeals Ninth District of Texas at Beaumont _______________________
NO. 09-17-00016-CR _______________________
JAVIER MARTINEZ CALDERON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 24794
MEMORANDUM OPINION
A jury found Javier Martinez Calderon guilty of possession of a controlled
substance, methamphetamine, in the amount of four grams or more but less than two
hundred grams, with intent to deliver. The jury assessed punishment at twenty-two
years in prison and assessed a $10,000 fine. In four issues, Calderon appeals his
conviction. We affirm the trial court’s judgment.
1 Background
Officer Billy Duke with the Polk County Sheriff’s Office testified that he
came into contact with Ricky Freeman and Norma Felipe during a traffic stop.
Officer Duke found that Freeman and Felipe had methamphetamine on their persons
and Officer Duke asked them where they got the methamphetamine. According to
Duke, Freeman and Felipe provided information to him about from whom and where
they obtained the drugs. Officer Duke testified that he and several officers from the
Corrigan Police Department went to 918 South Holmes Street in Corrigan based on
information Freeman and Felipe had provided Officer Duke. Officer Duke testified
that Freeman and Felipe informed him that the building’s occupants had a large
cache of narcotics and an AK-47, and because Officer Duke had unverified
information that the building’s occupants could possibly be involved with the cartel,
the officers approached the building with weapons drawn and “in a tactical manner
just in case.” According to Officer Duke, as they approached the building, Calderon
looked out of the window and saw the officers, law enforcement announced
themselves in English and Spanish, and the officers ordered the occupants to exit the
building, but no one complied. Officer Duke testified that exigent circumstances
existed—that law enforcement had credible information about weapons and drugs
in the building and the officers heard noises indicating the occupants were either
2 getting a weapon ready or disposing of the drugs—and that it necessitated that they
secure the scene and enter the building without a warrant. Officer Duke testified that
he kicked in the door, grabbed Calderon, and pulled him out. A video recording of
law enforcement’s approach and entry into the building was admitted into evidence
and played for the jury. Officer Duke testified that Calderon dropped a knife and that
the officers then placed co-defendant Suri Contreras and Calderon in handcuffs.
According to Officer Duke, law enforcement checked the building to make sure no
others were hiding inside, they saw that the shower was ripped away from the wall
and a hole was in the floor, and they saw in plain view a torch lighter commonly
used to ingest or smoke methamphetamine. Duke testified that a search warrant was
then obtained. A copy of the search warrant was admitted into evidence over defense
counsel’s objection. Duke reviewed certain photographs admitted into evidence and
identified the following items confiscated after law enforcement obtained the search
warrant: a knife, a broken meth pipe, a meth scale, an AR-15, a collapsible baton, a
hat, and “a large quantity of methamphetamine” found inside the hat and under the
building.
Officer Javier Segura with the Polk County Sheriff’s Office testified that
Officer Duke relayed information he had received from the traffic stop, and as a
result, Segura went to a location in Polk County. According to Officer Segura, he
3 had reason to believe that there were dangerous people, methamphetamine, and an
AK-47 in a building on the property. Segura testified that he and about four other
law enforcement officers arrived at the property without a search warrant. Officer
Segura testified that when they arrived at the location, the officers exited their
vehicles, unholstered their weapons, one of the officers from Corrigan knocked on
the door, and the officers announced themselves as “sheriff’s office[,]. . . police[,]
and . . . policia.” According to Officer Segura, he saw Calderon open the curtain on
the door and the officers ordered Calderon to open the door and for the occupants to
come out. Officer Segura testified that he could hear what he thought was
“somebody running inside, heard a lot of noise, just running back and forth in that
little small area[,]” and it sounded like “[s]omething was being torn apart[.]” Officer
Segura explained that when he heard the noise he was concerned because he did not
know if the occupants were getting weapons or destroying evidence. Officer Segura
testified that, after no one opened the door, the officers forced their way into the
building, and Officer Segura forced Calderon to the ground and placed him in
handcuffs. According to Officer Segura, the other officers went in the other rooms
of the building for their safety to make sure it was clear, and after a search warrant
was obtained and the premises were searched, methamphetamine was found. Officer
Segura testified that he assisted in searching the building and retrieving some of the
4 evidence, but that he did not file a report in the case and was not the arresting officer.
According to Officer Segura, Contreras and Calderon were charged with possession
with intent to deliver methamphetamine. On cross-examination, Officer Segura
testified that at the time he took Calderon into custody, he never saw Calderon in
possession of a weapon or in possession of any drugs.
Kai Allen, a chemist for the Texas Department of Public Safety (DPS) crime
lab, testified that he tested the substances seized in the case using procedures
followed by the Texas DPS in weighing and testing a substance. Allen confirmed
that the substance admitted as State’s Exhibit 20 amounted to 19.03 grams of
methamphetamine.
Ricky Freeman testified that at the time of trial he was incarcerated for
“[m]anufacture and delivery, two counts, . . . possession of a firearm and bail
jumping.” According to Freeman, he first spoke to State’s counsel about Freeman
testifying against Calderon or Contreras when he met with State’s counsel and a
detective with the sheriff’s department two days prior to his testimony, and after he
had pleaded guilty to the charges of possession and delivery and manufacture of
methamphetamine. Freeman testified that he asked State’s counsel to help him serve
his sentence at the Polk County jail instead of going to the Texas Department of
Corrections, that State’s counsel explained he could not give Freeman anything and
5 nothing was guaranteed, but State’s counsel told Freeman that he would talk to the
sheriff’s office and write a letter to the Board of Pardons and Paroles about
Freeman’s truthful testimony. Freeman testified that he was testifying of his own
free will and that he would testify truthfully even despite his conversations with
State’s counsel.
According to Freeman, he was arrested for possession with intent to deliver
methamphetamine on May 4, 2016, and he informed a deputy that he had obtained
the methamphetamine from people using his girlfriend’s, or her family’s, property
at 918 Holmes Street in Corrigan, Texas. Freeman testified that he had obtained
drugs from Contreras on prior occasions, that Freeman sold the drugs and gave
Contreras a percentage of the proceeds, and Freeman also kept some of the money.
According to Freeman, on May 4, 2016, prior to his arrest, he went to the address in
Corrigan and Contreras handed him drugs to sell. On cross-examination, Freeman
testified that Calderon was inside the building with Freeman and Contreras and
Calderon smoked methamphetamine with them, but he agreed that Calderon did not
give Freeman any drugs and he had never met Calderon prior to May 4, 2016.
Christie Allen, a detective with the Polk County Sheriff’s Office, testified that
she assisted State’s counsel in interviewing Freeman just days prior to trial.
Detective Allen’s recollection of what Freeman reported during the interview was
6 that “[t]here was a main man that came from Houston that brought . . . a lot of
different kinds of drugs, and he gave them to the first guy that was there, and then
he gave them to the defendant.” Detective Allen testified that she understood
Freeman to say that both people in the building on the night of May 4 had contact
with the drugs given to Freeman.
Virginia Calderon, the defendant’s sister, testified that she saw the defendant
on May 4, 2016, and that she did not see him in possession of drugs. Andres
Rodriguez, the defendant’s brother-in-law, testified that he could not recall if he had
contact with the defendant on that date, and Vernice Calderon, the defendant’s sister,
testified that she did not have contact with the defendant on the date in question.
The jury found Calderon guilty of possession with intent to deliver a
controlled substance, methamphetamine, as alleged in the indictment. Calderon
elected for the jury to assess punishment. At the punishment hearing, Virginia
Calderon testified that she has had a lot of contact with Calderon over the years and
has never known him to deal drugs and never has seen him using drugs. She testified
that Calderon was not a U.S. citizen and she did not know if Calderon had a criminal
history in the United States or in Mexico. When asked by defense counsel if the jury
elected to give her brother community supervision did she think her brother would
7 conduct himself in a manner to complete that community supervision, Virginia
responded “Yes, sir.”
Andres Rodriguez testified during the punishment phase that he had known
Calderon for ten years and he has been Calderon’s work supervisor for about three
years. Rodriguez testified he had never seen Calderon using or selling drugs. When
asked by defense counsel if Rodriguez believed that if the jury gave Calderon
probation would Calderon be responsible while on probation, Rodriguez answered
“Yes, sir.”
After all the evidence had been presented, prior to closing arguments, and
outside of the hearing of the jury, counsel for the State noted on the record that
defense counsel did not file an application for probation. Defense counsel
acknowledged that he did not know he needed to file an affidavit by Calderon
swearing that he had never been convicted of a felony. State’s counsel noted on the
record that the State would accept the filing of the affidavit prior to deliberations.
Defense counsel handwrote an affidavit but then informed the trial court that the
affidavit could not be filed truthfully. Calderon testified that he understood that by
not signing and filing the affidavit he is no longer eligible for probation and would
be sentenced to time in the Texas Department of Criminal Justice, that he understood
if he signed an untrue affidavit that he would face perjury charges, and he did not
8 want to sign the affidavit. The jury assessed punishment at twenty-two years in
prison and assessed a $10,000 fine. Calderon appealed.
Appellate Issues
In his first two issues, Calderon argues he was denied his Sixth Amendment
right to effective assistance of counsel during both the guilt-innocence and
sentencing phases of trial. In his third issue, Calderon contends that the trial court
committed reversible error by failing to include an accomplice-witness instruction
in the jury charge in the guilt-innocence phase of trial. In his fourth issue, Calderon
asserts that the State’s final argument in the guilt-innocence phase of trial was
improper and deprived him of a fair and impartial trial. Because our resolution of
issues three and four affect our analysis in issues one and two, we address issues
three and four first.
Accomplice-Witness Instruction
In issue three, Calderon argues that the trial court committed reversible error
by failing to include an accomplice-witness instruction in the jury charge in the guilt-
innocence phase of trial. According to Calderon, testimony at trial showed that
“Freeman was participating with Appellant and Contreras before and during the
commission of the crime, that he was engaged in an ongoing conspiracy to possess
and deliver methamphetamine with both Contreras and Appellant, and therefore, was
9 an accomplice witness as a matter of law.” Calderon argues he suffered egregious
harm because of the absence of the accomplice-witness instruction.
We review a claim of jury charge error using a two-step analysis. Serrano v.
State, 464 S.W.3d 1, 7 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). We first
determine whether there is error in the jury charge, and if we find error in the charge,
we next determine whether sufficient harm was caused by that error to require
reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State,
175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The degree of harm necessary for
reversal depends upon whether the error was preserved in the trial court. Ngo, 175
S.W.3d at 743. If error was not preserved, then reversal is required only upon a
showing of “egregious harm.” Id. at 743-44.
Egregious harm is a “high and difficult standard” to satisfy. Villarreal v. State,
453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (quoting Reeves v. State, 420 S.W.3d
812, 816 (Tex. Crim. App. 2013)). “‘Jury-charge error is egregiously harmful it if
affects the very basis of the case, deprives the defendant of a valuable right, or vitally
affects a defensive theory.’” State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim.
App. 2016) (quoting Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App.
2016)). The Court of Criminal Appeals has instructed that, in conducting an
egregious-harm analysis, we must consider (1) the entirety of the jury charge, (2) the
10 state of the evidence, (3) counsel’s arguments, and (4) any other relevant information
revealed by the entire trial record. Id. at 598. We must “review the relevant portions
of the entire record to determine whether [a defendant] suffered actual harm, as
opposed to theoretical harm, as a result of the error.” Id. (citing Marshall, 479
S.W.3d at 843).
Under article 38.14 of the Code of Criminal Procedure, a criminal conviction
may not be based on the testimony of an accomplice witness unless the testimony is
“corroborated by other evidence tending to connect the defendant with the offense
committed[.]” Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). If the evidence
at trial raises a question of fact as to whether a witness is an accomplice, the trial
court must instruct the jury to decide whether the witness is an accomplice; if the
evidence conclusively establishes that a witness is an accomplice, the trial court must
instruct the jury that the witness is an accomplice as a matter of law. Druery v. State,
225 S.W.3d 491, 498-99 (Tex. Crim. App. 2007). We review a trial court’s
determination of whether the evidence supports an accomplice-witness instruction
under an abuse of discretion standard. See Paredes v. State, 129 S.W.3d 530, 538
(Tex. Crim. App. 2004). A witness is an accomplice witness only if he participates
in the crime with the defendant, taking an affirmative act to assist in the commission
of the crime before, during, or after the commission of the crime, with the required
11 culpable mental state for the crime. Druery, 225 S.W.3d at 498-99; see also Paredes,
129 S.W.3d at 536. Mere presence at the scene of the crime does not render a witness
an accomplice. Druery, 225 S.W.3d at 498; Cocke v. State, 201 S.W.3d 744, 748
(Tex. Crim. App. 2006).
Here, although Freeman testified he pleaded guilty to possession with intent
to deliver methamphetamine, he was not a co-defendant in this case, and the record
does not show that the methamphetamine he possessed during the traffic stop was
not the same methamphetamine the officers found at the building for which Calderon
was arrested. Assuming without deciding the trial court erred in omitting an
accomplice-witness instruction, Calderon failed to make this objection to the charge
and therefore we must apply the “egregious harm” standard. See Ngo, 175 S.W.3d
at 743-44.
“Under the egregious harm standard, the omission of an accomplice witness
instruction is generally harmless unless the corroborating (non-accomplice)
evidence is ‘so unconvincing in fact as to render the State’s overall case for
conviction clearly and significantly less persuasive.’” Ambrose, 487 S.W.3d at 598.
“In assessing the strength of the non-accomplice evidence, we examine (1) its
reliability or believability, and (2) the strength of its tendency to connect the
defendant to the crime.” Id. We must examine the non-accomplice evidence for
12 corroboration “tending to connect” appellant to the commission of the offense. See
id. (citing Casanova v. State, 383 S.W.3d 530, 539 (Tex. Crim. App. 2012)). The
corroborating evidence need not be sufficient, standing alone, to prove the offense
beyond a reasonable doubt—there “need be only some non-accomplice evidence
tending to connect the defendant to the crime, not to every element of the crime.” Id.
(quoting Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007)).
Here, non-accomplice corroborating evidence was admitted connecting
Appellant to the offense. Officer Duke and Officer Segura testified that as they
approached the building, Calderon looked out of the window and refused to exit the
building in response to law enforcement’s knock and announcements. Officer Duke
testified that he heard noise indicating the occupants were either getting a weapon
ready or disposing of drugs. Officer Segura testified that it sounded like
“[s]omething was being torn apart[.]” According to Officer Duke, Calderon dropped
a knife when law enforcement entered the building. Officer Duke and Officer Segura
testified that methamphetamines were found in a hole in the floor of the building
after a search pursuant to a search warrant. Officer Duke testified that Calderon and
Contreras were the only occupants in the building, and Officer Segura testified that
Calderon and Contreras were charged with possession with intent to deliver
13 methamphetamine. Kai Allen, the DPS chemist, testified that the substance turned
over in the case amounted to 19.03 grams of methamphetamine.
The record demonstrates that some non-accomplice evidence tended to
connect Appellant to the drugs and the offense, and the totality of the record fails to
show that Appellant was egregiously harmed by the omission of an accomplice-
witness instruction. See Ambrose, 487 S.W.3d at 598-99. We overrule issue three.
Claim of Improper Jury Argument
In his fourth issue, Calderon contends that, because the State did not have
probable cause to search the building occupied by Calderon when the officers
approached the building in the middle of the night with guns drawn and demanding
the occupants to come out of the building, the State improperly argued during final
argument that the officers had the right to surround the building, with their guns
drawn, and demand that Appellant come out. The trial court denied the motion to
suppress and Calderon does not challenge that ruling on appeal. “Proper jury
argument generally falls within one of four areas: (1) summation of the evidence,
(2) reasonable deduction from the evidence, (3) answer to argument of opposing
counsel, and (4) plea for law enforcement.” Freeman v. State, 340 S.W.3d 717, 727
(Tex. Crim. App. 2011). A prosecutor is permitted to draw from all the facts in
14 evidence to make reasonable, fair, and legitimate inferences. Borjan v. State, 787
S.W.2d 53, 57 (Tex. Crim. App. 1990).1
Officer Duke testified that exigent circumstances existed—that law
enforcement had credible information about weapons and drugs in the building and
the officers heard noises indicating the occupants were either getting the weapon
ready or disposing of the drugs—and that it necessitated that they secure the scene
and enter the building without a warrant. According to Officer Segura, he had reason
to believe there was methamphetamine at that location and reason to believe that
there were dangerous people, methamphetamine, and an AK-47 in a building on the
property. Officer Segura explained that he heard the noise in the building and was
concerned because he did not know if the occupants were getting weapons or
destroying evidence. We conclude the State’s argument was supported by or
reasonably based on the evidence. We overrule issue four.
1 We note that in Contreras v. State, No. 09-17-00029-CR, 2018 Tex. App. LEXIS 2389, at *9 (Tex. App.—Beaumont Apr. 4, 2018, no pet.) (mem. op.) (not designated for publication), this Court affirmed the trial court’s judgment convicting Suri Sadi Contreras of the same offense as Calderon. With respect to the trial court’s pretrial ruling denying the motion to suppress filed by Contreras, we concluded in Contreras that “the trial court could have reasonably determined that the entry into the building was based upon probable cause and exigent circumstances.” Id. at *18. 15 Ineffective Assistance of Counsel
In his first two issues, Calderon argues he was denied his Sixth Amendment
right to effective assistance of counsel during the guilt-innocence and sentencing
phases of trial. In issue one, Calderon argues his counsel was ineffective during the
guilt-innocence phase of the trial and outlines nine areas or instances of counsel’s
ineffectiveness. In issue two, Calderon argues that his counsel was ineffective during
the punishment phase of the trial because his counsel did not know before trial
whether Calderon had a criminal record and that his counsel was unaware that he
had to file a motion for probation before trial began.
A defendant has a Sixth Amendment right to the effective assistance of
counsel. U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668, 685-
86 (1984). To establish that he received ineffective assistance of counsel, Calderon
must demonstrate that (1) counsel’s performance fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different. See Strickland, 466
U.S. at 687-88, 694. The party alleging ineffective assistance has the burden to
develop facts and details necessary to support the claim. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting an ineffective-assistance
claim must overcome the “strong presumption that counsel’s conduct fell within the
16 wide range of reasonable professional assistance.” See Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 689). An appellant’s
failure to make either of the required showings of deficient performance or sufficient
prejudice defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d
107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the
Strickland test negates a court’s need to consider the other prong.”).
The right to effective assistance of counsel ensures the right to “reasonably
effective assistance[,]” and it does not require that counsel must be perfect or that
the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.
Crim. App. 1984). The appropriate context is the totality of the representation;
counsel is not to be judged on isolated portions of his representation. See Thompson,
9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). Isolated
failures to object to improper evidence or argument ordinarily do not constitute
ineffective assistance of counsel. See Ingham, 679 S.W.2d at 509; Ewing v. State,
549 S.W.2d 392, 395 (Tex. Crim. App. 1977). To meet his burden regarding his
claim that his counsel was ineffective for failing to object to evidence, Appellant
must also establish that the trial court would have committed error in overruling such
17 objection had an objection been made. See Vaughn v. State, 931 S.W.2d 564, 566
(Tex. Crim. App. 1996).
Ordinarily, on direct appeal, the record will not have been sufficiently
developed during the trial regarding trial counsel’s alleged errors to demonstrate in
the appeal that trial counsel provided ineffective assistance under the Strickland
standards. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012).
Trial counsel’s actions regarding search issues 2
Calderon argues that during the guilt-innocence phase his counsel was
ineffective because he failed to challenge deficiencies in the search warrant and
accompanying affidavit. According to Calderon, his trial counsel failed to challenge
the “false statement” in the search warrant regarding who controlled the buildings
on the property. Calderon also argues that his trial counsel failed to challenge Officer
Duke’s conclusory statements in the search warrant affidavit on the bases that the
affidavit lacked information showing: (1) Duke had training and experience with
methamphetamine; (2) Freeman and Felipe had previous experience with
methamphetamine; (3) Freeman and Felipe were reliable informants; and (4) the
information was received by the officer recently and that the informants had seen
2 For convenience, we categorize the nine alleged areas or instances of ineffectiveness with similar subheadings as those used by Appellant, and we address some of the alleged areas or instances of ineffectiveness together. 18 the narcotics at the location recently. In addition, Calderon argues that his trial
counsel failed to challenge the information in the affidavit regarding the scale and
torch lighter, as those items were “illegally obtained evidence” due to the officer’s
entry into the building in violation of Calderon’s Fourth Amendment rights.
Calderon’s counsel filed a written motion to suppress evidence, arguing, in
part, that the search warrant violated the Fourth, Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution, Article I, Sections 9, 10, and 19 of
the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure
because:
a. The affidavit upon which the search warrant was based was improperly and illegally executed.
b. The warrant was illegally issued for the reason that the supporting affidavit does not reflect sufficient probable cause to justify issuance of a search warrant, in that: (i) the affidavit lacks sufficient underlying circumstances which would permit the conclusion that the alleged contraband was at the location in which it was claimed; and (ii) the affidavit fatally fails to state sufficient underlying circumstances to establish the credibility of the affiant.
c. The warrant was illegally issued because the affidavit did not show probable cause sufficient to justify the issuance of the search warrant, because the magistrate who issued the search warrant did not have a substantial basis for concluding that probable cause existed, i.e., that the alleged contraband would be found in a particular place, and thus did not meet the totality of the circumstances analysis adopted in Illinois v. Gates, 103 S.Ct. 2317[] (1983).
19 After a hearing, the trial court denied the motion. Even if we presume defense
counsel erred, Calderon failed to demonstrate a reasonable probability that, but for
counsel’s alleged error, the outcome of his trial would have been different. See Bone
v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Trial counsel and the co-defendant, Suri Contreras
Calderon argues that during the guilt-innocence phase his counsel was
ineffective because he failed to subpoena co-defendant Contreras or talk to him or
his attorneys. Appellant did not establish in the trial court or on appeal that
subpoenaing Contreras or talking to him or his attorneys would have yielded
favorable information or testimony for Appellant. See Holland v. State, 761 S.W.2d
307, 319 (Tex. Crim. App. 1988) (defendant attempting to show trial counsel’s
performance fell below objective standard of reasonableness because counsel failed
to subpoena a witness to testify must show that the witness was available to testify
and would have provided testimony beneficial to the defendant); Stokes v. State, 298
S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (finding that
a claim for ineffective assistance based on trial counsel’s failure to interview a
witness cannot succeed absent a showing of what the interview would have revealed
that could have changed the result of the case). Calderon has failed to demonstrate
20 that trial counsel, in failing to subpoena or talk to Contreras or his attorneys, acted
below the standard. See Strickland, 466 U.S. at 688-89.
Testimony that Appellant was a member of a cartel
Calderon argues that during the guilt-innocence phase his counsel was
ineffective because he failed to request a hearing or obtain an order on counsel’s
motion in limine requesting that there be no mention of “drug cartels” and failed to
object to hearsay testimony that Calderon was a cartel member. Calderon’s counsel
prior to trial asked State’s counsel outside of the jury’s hearing whether the State
intended to refer to a drug cartel in the State’s case-in-chief and the State responded
that the officer had information suggesting that Calderon might be a cartel member,
and that the information was relevant to law enforcement’s decision to approach the
building in the manner they did. The State said it would approach the bench prior to
initiating the line of questioning that would elicit testimony relating to drug cartels.
It is possible that Calderon’s trial counsel decided to withhold additional
objections to prevent the impression that he was objecting at every opportunity or to
avoid drawing unwanted attention to any alleged cartel affiliation. See Huerta v.
State, 359 S.W.3d 887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Faced
with a silent record on direct appeal, we conclude Appellant has failed to rebut the
strong presumption that his trial counsel’s conduct was reasonable. See Thompson,
21 9 S.W.3d at 813. Nor has Appellant established his trial counsel’s failure to object
was so outrageous that no competent attorney would have made the same decision.
See Menefield, 363 S.W.3d at 593.
Complaints regarding failure to object to leading questions, hearsay, bolstering, speculation and opening the door to hearsay; Testimony of Christie Allen; State’s Exhibit 1 - the video recording of the initial warrantless entry; and Trial counsel’s attempt to introduce positive character evidence
Calderon argues that trial counsel assisted the State in presenting its case by
repeatedly failing to object to hearsay about Freeman and Felipe telling the officers
that there was an AK-47 in the building and that the occupants were dangerous,
failing to object to leading and bolstering questions when the State called Freeman
to testify, failing to object to the line of questioning when the State was attempting
to show that Calderon would have known Contreras was trying to hide drugs, and
opening the door to damaging hearsay evidence from Officer Duke. Calderon also
argues that his counsel failed to obtain an order granting his Motion for Witness List,
failed to attempt to prove the State acted in bad faith in not giving him notice that
witness Christie Allen would possibly be a witness, failed to object to Allen’s non-
responsiveness and improper impeachment, and failed to request the court to instruct
the jury at trial and in the charge that Allen’s testimony was offered for the purpose
of impeaching Freeman’s testimony. Calderon further asserts his counsel failed to
object to State’s Exhibit 1, the video recording of the entry, on the bases that it was 22 a fruit of the illegal warrantless entry and that the audio portion was hearsay.
Calderon also argues that had his counsel learned of Calderon’s criminal history,
counsel would not have attempted to introduce favorable character evidence or may
have determined that Calderon should plead guilty.
“‘If counsel’s reasons for his conduct do not appear in the record and there is
at least the possibility that the conduct could have been legitimate trial strategy, we
will defer to counsel’s decisions and deny relief on an ineffective assistance claim
on direct appeal.’” Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003)
(quoting Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002)). Since there is
no evidence of counsel’s reasons for these specific actions or inactions, we must
defer to counsel’s decision if there is at least the possibility that the conduct could
have been legitimate trial strategy. This Court should not consider the wisdom of
such strategy because ineffective assistance of counsel claims cannot be “built on
retrospective speculation[.]” Bone, 77 S.W.3d at 835. Furthermore, Calderon has not
demonstrated that the errors together created a reasonable probability that, but for
the errors, Calderon would not have been convicted. See id. at 833.
Complaint regarding accomplice witness charge as to witness Ricky Freeman
Calderon argues that during the guilt-innocence phase his counsel was
ineffective because he failed to request an accomplice-witness instruction regarding
23 the witness Ricky Freeman. We have already overruled Calderon’s issue regarding
the failure to include an accomplice-witness instruction and it cannot be ineffective
assistance of counsel when the trial court would not have erred by refusing such a
request. See Vaughn, 931 S.W.2d at 566 (to successfully present an argument that
counsel was ineffective because of a failure to object to State’s questioning and
argument, appellant must show that the trial court would have committed error in
overruling such objection). Furthermore, even if we presume defense counsel erred,
Calderon failed to demonstrate a reasonable probability that, but for counsel’s
alleged error, the outcome of his trial would have been different. See Bone, 77
S.W.3d at 833.
Trial counsel’s failure to object to the State’s final argument
Calderon argues that trial counsel’s failure to object to the State’s improper
final argument that the officers had the right to surround the building with their guns
drawn and demand Calderon to come out constituted ineffective assistance of
counsel. As stated above, Calderon has not demonstrated that the State’s final jury
argument was improper. Furthermore, Calderon has not established that during the
guilt-innocence phase his counsel’s performance fell below an objective standard of
reasonableness and that there is a reasonable probability that, but for counsel’s
24 error(s), the result of the proceeding would have been different. See Strickland, 466
U.S. at 687-88. We overrule issue one.
Allegations of Ineffective Assistance During Punishment Phase
Calderon also argues that his counsel was ineffective during the punishment
phase of the trial because his trial counsel did not know prior to trial whether
Calderon had a criminal record, his trial counsel was unaware that he had to file a
motion for probation prior to trial, and that his trial counsel elicited testimony that
Calderon was not a United States citizen. We note that the record demonstrates that
Calderon could not truthfully file an affidavit stating facts sufficient to show he was
a candidate for probation. Under the second prong of the Strickland test, Calderon
must show a “reasonable probability” that, but for the error, the result would have
been different. See Bone, 77 S.W.3d at 833. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Thompson, 9
S.W.3d at 812. Even assuming counsel’s lack of knowledge regarding Calderon’s
criminal record or counsel’s eliciting of testimony that Calderon was not a United
States citizen was error, Calderon has not demonstrated that the probability of a
different result is sufficient to undermine confidence in the outcome. See id. We
overrule issue two.
25 We affirm the trial court’s judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on June 27, 2018 Opinion Delivered October 24, 2018 Do Not Publish
Before Kreger, Horton, and Johnson, JJ.