Lupito Montanez v. State

• Court: Court of Appeals of Texas
• Decided: August 30, 2007
• Docket: 13-04-00305-CR
• Status: Published

Opinion

NUMBER 13-04-00305-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LUPITO MONTAÑEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Vela and Wittig ⁽¹⁾

Memorandum Opinion by Justice Wittig

Lupito Montanez appeals his conviction on one count of capital murder and one count of attempted capital murder. The charges stem from a drive-by shooting in which a three year old was killed and two adults injured. Appellant pled not guilty and took the stand in his own defense. A jury found appellant guilty of both counts and he received an automatic life sentence on the capital murder charge. The jury assessed his punishment on the second charge at life in prison and a $10,000 fine. We affirm.

Appellant raises forty-one issues, argued in groups. We address his issues in like fashion.

1. Post Arrest Silence

In his first issue, appellant complains his trial counsel was ineffective. During the State's examination of Officer Guerrero, Guerrero testified that he explained to appellant that he was going to ask some questions. Guerrero then testified that appellant declined to answer. Appellant argues under the Sanchez case, that because defense counsel failed to object to the testimony about appellant's refusal to answer, his performance was professionally deficient. See Sanchez v. State, 707 S.W.2d 575, 582 (Tex. Crim. App. 1986) (defendant may not be impeached through the use of post-arrest, pre-Miranda silence because such impeachment violates the defendant's right to be free from compelled self-incrimination, and also because such impeachment is improper from an evidentiary standpoint). When defense counsel did not object, this possible complaint was not preserved for review and thus deprived appellant of a constitutional error challenge.

To show that trial counsel was ineffective, appellant must demonstrate that: 1) trial counsel's performance was deficient because it fell below an objective standard of reasonableness; and 2) a probability existed, sufficient to undermine confidence in the outcome, that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.1999). Strickland states that judicial scrutiny of counsel's performance must be highly deferential and that a reviewing court "[m]ust indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Strickland 466 U.S. at 689. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson v. State, 9 S.W.3d at 813-14. This case typifies an ineffective counsel challenge because "[i]n the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

The record is silent as to why appellant's trial counsel did not object to the testimony concerning appellant's post-arrest silence. It may well have been counsel's strategy to focus on appellant's own testimony and alibi to come, rather than object and call further attention to the results of this horrific crime or emphasize appellant's early silence. Trial counsel should ordinarily be afforded an opportunity to explain his actions before being found ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). This would particularly be true because defense counsel repeated a similar inquiry to Guerrero minutes later while attempting to point the finger at Joe Hernandez. Based upon this record, we cannot conclude that appellant has established that trial counsel's performance fell below an objective standard of reasonableness under the first prong of Strickland. Accordingly, appellant's first issue is overruled.

2. Legal and Factual Sufficiency

In appellant's second and third issues, he attacks the legal and factual sufficiency of the evidence to support his conviction on counts 1 and 2. Because the transferred intent doctrine was omitted from the trial court's application paragraph, appellant argues there is no evidence to support the jury's guilty verdicts. He cites McCormick v. United States, 500 U.S. 257, 269 (1991). There, the United States Supreme Court observed that the court of appeals affirmed the conviction on legal and factual grounds that were never submitted to the jury. Although McCormick challenged the adequacy of the jury instructions to distinguish between campaign contributions and payments that are illegal under the Hobbs Act, the court of appeal's opinion did not examine or mention the instructions given by the trial court. The court goes on to observe that matters of intent are for the jury to consider. Id. at 270.

As the State argues, appellant seems to be attacking the court's charge because transferred intent is not in the application paragraph. Unlike McCormick, here there was no objection to this oversight. Further, unlike McCormick, the jury was instructed about the transferred intent doctrine in the abstract portion of the charge. ⁽²⁾ The charge error, if any, must be ignored unless it caused egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Furthermore, appellant's argument was specifically rejected in Manrique v. State, 994 S.W.2d 640, 642 (Tex. Crim. App. 1999).

Appellant next cites Dunn v. United States, 442 U.S. 100, 105-106 (U.S. 1979). There the court observed:

In our view, it is unnecessary to inquire, as did the Court of Appeals, whether petitioner was prejudiced by a variance between what was alleged in the indictment and what was proved at trial. For we discern no such variance. The indictment charged inconsistency between petitioner's statements in the September 30 interview and his grand jury testimony. That was also the theory on which the case was tried and submitted to the jury. Indeed, the October 21 testimony was introduced by the Government only in rebuttal to dispel any inference that petitioner's grand jury testimony was true. See Tr. 82-83. But while there was no variance between the indictment and proof at trial, there was a discrepancy between the basis on which the jury rendered its verdict and that on which the Court of Appeals sustained petitioner's conviction. Whereas the jury was instructed to rest its decision on Dunn's September statement, the Tenth Circuit predicated its affirmance on petitioner's October testimony. The Government concedes that this ruling was erroneous. Brief for United States 15, 35; Tr. of Oral Arg. 25. We agree.

Id. at 105-106. Dunn is clearly distinguishable because it addresses a fatal variance between the indictment and the proof. Finally, appellant references Cole v. Arkansas, 333 U.S. 196, 201 (1948) (holding that under any reasonable construction Section 1 creates separate offenses, as does Section 2, and an indictment that alleges crimes covered by a part of Section 1 does not impose upon the defendant a duty to defend under Section 2 or against "threat" provisions of Section 1). Cole is likewise distinguishable because the charge in that case was under one section of the charge and the proof under another section.

Finally, appellant's counsel argues we are bound to follow Thompson v. Louisville, 362 U.S. 199, 206 (1960). This is simply a no-evidence case involving a loitering statute. See id.

In reviewing legal sufficiency, we look at all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Legally sufficient evidence supporting a conviction exists if the court, after reviewing the evidence in the light most favorable to the prosecution, determines that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

Evidence may be factually insufficient if: (1) it is so weak as to be clearly wrong and manifestly unjust, or (2) the adverse finding is against the great weight and preponderance of the available evidence. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or whether, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Such a factual sufficiency review requires the reviewing court to consider all of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003).

The Texas Court of Criminal Appeals in Roberts explained that a reversal for factual insufficiency cannot occur when "the greater weight and preponderance of the evidence actually favors conviction." Id. at 524.

Viewing the evidence in the light most favorable to the prosecution, we determine that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. As a predicate to charging capital murder, the Texas Penal Code requires that a defendant commit murder as defined under the penal code. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 1994); Graham v. State, 19 S.W.3d 851, 853 (Tex. Crim. App. 2000). Murder is aggravated to capital murder where any one of eight additional circumstances are present. See Tex. Penal Code Ann. § 19.03(a)(1)-(8)(Vernon 1994); Saenz v. State, 166 S.W.3d 270, 272 (Tex. Crim. App. 2005). In this case, the victim, Molly, was three years old. See Tex. Penal Code Ann. § 19.03(a)(8). We review the evidence to determine if the proof demonstrates appellant (1) intentionally or knowingly caused the death of an individual under six years old in count one and in count two intended to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(2)(Vernon 1994).

An eye-witness placed appellant in the rear of the white Taurus, driving slowly through a trailer park. He fired three shots from a 12 gauge police shotgun killing Molly and injuring two others, including Gonzalez. Gonzalez had dated appellant's estranged wife and appellant had seen a picture of Gonzalez with his wife. Appellant told his wife he was going to shoot her boyfriend, although she recanted this statement on the witness stand. She also recanted her statement that appellant was hiding under the house when police came. A used shot gun shell was recovered from the back of the white Taurus. That shell was fired from the recovered shotgun. There was gunpowder residue on a flowered sheet taken from the back seat of the Taurus. Appellant brought a black shotgun to a party. He left the party in the white Taurus the night of the shootings and was then placed at the scene of the drive-by shooting in the rear of the same vehicle firing the shotgun.

Transferred intent occurs when a defendant, with the required culpable mental state, intends to injure or harm a specific person but injures or harms a different person or both. Tex. Pen. Code Ann. § 6.04(b)(2). Under the theory of transferred intent, the jury could reasonably infer that appellant intended to shoot and kill Gonzalez but instead killed the three year old girl, injured another, and wounded Gonzalez who was standing nearby. Furthermore the jury, being the sole judge of the credibility of the witnesses, was free to accept or reject the evidence before it, and in doing so, concluded that appellant was the shooter. See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App.1986). Accordingly, we hold the evidence is legally sufficient.

In determining factual sufficiency, we review the evidence in a neutral light rather than in the light most favorable to the verdict. See Johnson, 23 S.W.3d at 7. Appellant testified in his own behalf. He denied any part in the shooting and testified he spent the entire evening with two others, including Angie Figueroa. He denied having a shotgun, denied being in the white Taurus, and stated he lent his blue Honda to Joe and Jerry Hernandez. He further testified he saw Joe Hernandez leave the party in a white Taurus. Angie Figueroa corroborated appellant's testimony that he had spent the evening with her. Salinas, another trailer park resident, said he saw a white Taurus about 8:00 or 9:00 being driven by Robert. He could not see who was in the back seat. He had heard that appellant was going to "tumbar" someone at the trailer park.

Appellant's common-law wife, Jessica Guajardo, first denied marital separation from appellant, then admitted she had been separated for about eight months and dated Gonzalez. She denied ever telling appellant Gonzalez's name but stated that he found out about him some three weeks before the shootings and punched Guajardo in the face. She and appellant both denied that appellant saw the picture of her with Gonzales. She denied saying her husband was going to kill her boyfriend and denied that she was afraid of him. The couple reconciled in August of 2003. Her testimony was inconsistent in many particulars.

Villalon, a good friend of appellant, testified contrary to much of his statement given to law enforcement. He stated that appellant was at the party, and Robert, who drives a white car, was also there. He denied that appellant and Robert were talking together, or that they left together, contrary to his statement. He also denied saying that appellant was at his house with a shotgun about 10:30 p.m. on the night of the shootings.

Roberto Martinez testified he had just joined the Latin Kings gang two months before the shootings and was a "peewee." Appellant, his senior, was an "Almighty." Robert drove his stepfather's white Taurus to the home of the party. He left the party with appellant, who got in the back seat of the Taurus. They turned into the trailer park and appellant instructed Robert to drive through again. On their second pass Robert heard three shots coming from the back seat. He turned around and saw appellant with a 12 gauge shotgun sticking out of the car window. Robert was in juvenile detention when he testified and was awaiting the results of a certification hearing to be tried as an adult for murder.

Dr. Salinas testified he autopsied Molly. He removed pellets from a massive shotgun blast that entered her left side and perforated her heart, lungs, liver, spleen and other organs.

As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. Rodriguez v. State, 191 S.W.3d 428, 437 (Tex. App.-Corpus Christi 2006, pet ref'd). The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. Id. Disagreeing with the fact finder's determination is appropriate only when the record clearly indicates that such a step is necessary to arrest the occurrence of a manifest injustice. Id. Otherwise, due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.

In this case, several of the witnesses were impeached and many of the particulars were disputed. Appellant and his witnesses testified unequivocally he was innocent and pointed to some evidence suggesting that Joe Hernandez could have been the shooter. However, witnesses for both the State and defense were impeached. We hold that the proof of guilt is neither so obviously weak as to undermine confidence in the jury's determination, nor that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11. The supporting evidence is not outweighed by the greater weight and preponderance of the contrary evidence. Roberts, 220 S.W.3d at 520. Appellant's issues on legal and factual sufficiency are overruled.

3. The State's Penalty Objection

Appellant contends the court erred by sustaining the State's unconstitutional penalty objection during appellant's closing argument. In essence, appellant contends he was barred from showing that the State's key eye witness, Robert Martinez, had a motive to lie. Appellant does not properly cite to the record. See Tex. R. App. p. 38.1(h). However, he does quote the offending language in his brief. "Robert is the one with the big benefit. He told you what they wanted to hear. Good testimony. No certification, no death or life before a jury like you all." The prosecutor objected "once again to the continuing to bring in punishment during the guilt/innocence phase, Judge. That's clearly unacceptable." Appellant's counsel made no response and the court sustained the objection. Appellant failed to offer an informal or formal bill of exception.

Thereafter, appellant's counsel continued: "Judge, I'm talking about Robert Martinez. May I continue?" The court responded: "You may." Appellant's counsel continued his attack on Martinez.

Texas Rule of Appellate Procedure 33.1(a)(1)(A) provides, in relevant part, that for a complaint to be presented on appeal, a timely request, objection, or motion must have been made to the trial court, which "states the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex. R. App. P. 33.1(a)(1)(A); see Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004). Texas Rule of Evidence 103(a)(1) contains similar guidelines, providing that "a timely objection or motion to strike [must appear] on the record, stating the specific ground of objection, if the specific ground was not apparent from the context." Tex. R. Evid.103(a)(1). Additionally, it is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial. Euziere v. State, 648 S.W.2d 700, 703-704 (Tex. Crim. App.1983). To preserve error that does not appear on the face of the record, an appellant is required to make a formal bill of exception within thirty days of filing the notice of appeal. Tex. R. App. P. 33.2.

Appellant cites Davis v. Alaska, 415 U.S. 308, 316-317 (U.S. 1974), which involves cross-examination, not argument. It holds: "The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.'" Id. Exposure of a witness's motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Id. Appellant next generically cites Buitureida v. State, 684 S.W.2d 133, 140-41 (Tex. App.-Corpus Christi 1984, pet. ref'd) (by prohibiting appellants their right to fully cross-examine a witness as to his criminal record and to develop testimony as to his parole status, the trial court committed reversible error). While neither case is on point, we do not disagree that a witness's motivation in testifying is a proper function of final argument. In any event, appellant spent significant time in both his cross-examination and re-cross questioning the status of criminal charges against the witnesses. Martinez's juvenile and certification status was clearly before the jury.

Appellant's brief fails to contain appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Furthermore, appellant did not timely object at trial, did not state the specific grounds of his objection, and did not inform the trial court or us by bill of exception what other arguments he would have made. Therefore, error if any, is waived. Tex. R. App. P. 33.1(a)(1)(A); Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002); see also Tex. R. App. P. 33.2. Because the charges against Martinez where elsewhere repeated in the record, any error was harmless. Tex. R. App. P. 44.2.

4. Side Bar Objection

Appellant's next issue states: "The court reversibly sustained State's 'side bar' objection to 'they might just send you back to prison' if you're not going to testify the way the DA wants you to." Appellant's trial counsel had already impeached the State's witness Jorge Trevino by showing he had pled guilty to tampering with the evidence. The tampering charge arose out of Trevino's part in moving the shot gun purportedly used in the crimes. Appellant's counsel established the witness was on probation for ten years. In context, counsel asked Trevino if, because he was on probation for ten years, "If you mess up, you're going to prison?" Trevino responded: "Yes sir." Thereafter came the objectionable statement of defense counsel: "And you better say what she asks you, because they might just send you back to prison because you're not going to testify the right - the way they wanted to?"

The State objected to the sidebar remarks. The court sustained the objection and invited further questioning by appellant's counsel. Counsel continued with questions about the weapon, tampering, the degree of his felony, and other related issues.

Side bar remarks are remarks of counsel that are neither questions to the witness nor comments addressed to the court. Brokenberry v. State, 853 S.W.2d 145, 152 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd). We review the trial court's ruling under an abuse of discretion standard. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). In the context of an actual trial, we cannot say defense counsel's statements were not in the nature of sidebar remarks. We hold the trial court was within its discretion to sustain the objection. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (trial courts have broad discretion in their evidentiary rulings and are usually in the best position to determine whether evidence should be admitted or excluded). Moreover, even had the ruling been erroneous, there was no harm given the great latitude afforded appellant's trial counsel in his cross examination. Tex. R. App. P. 44.2. Appellant's fifth issue is overruled.

5. Issues Six through Thirty Seven

In his brief, appellant lumps thirty-one issues together. As we decipher his argument, he complains on an incidence of "reversibly overruled hearsay objection," multiple occasions of the admission of hearsay without objection, and in the alternative, ineffective assistance of counsel for the failure to object. Appellant's counsel uses the following abbreviations to the great detriment of an effective brief: SO, GT,WOOGT, WOONCT, WOOCT, WOO, et cetera. ⁽³⁾

We will first address the two instances in which the defense timely made an objection. Defense counsel objected to Guerrero's testimony concerning his briefing by officer Canales and to an "excited utterance" to Guerrero by Joey Reyna. Guerrero testified that after being read his rights, Reyna declared to Guerrero that he did not do the crime and would not take the "muleta" (blame) for one of his brothers. The trial judge initially sustained the objection, but following a hearing without the jury, overruled the hearsay objection and allowed Reyna's statement. The trial court also instructed counsel: "But I am ruling as the evidence is proceeding . . . ." ⁽⁴⁾ Appellant makes numerous other complaints about Guerrero's testimony including statements by Martinez that he was with appellant that night, he learned from Martinez's stepfather that Martinez used his stepfather's vehicle on October 3rd without permission, that Canales told him a white Taurus was the suspected vehicle, that Hernandez brothers Jerry and Joe "Chronic" were possible suspects, that appellant implicated himself in the drive-by, named appellant as the shooter, and described weapons hidden in Villalon's house. Guerrero also testified he heard co-investigator Canales executed a trace warrant on Guajardo's phone and learned Gloria's daughter Pena moved out, but returned and made calls. Guerrero also related additional comments by Hernandez, Villalon, Trevino and others which join the litany of purported hearsay statements appellant now condemns.

The State counters that this testimony is not hearsay because it was not introduced for the truth of the matter asserted, but to explain how the officer came to suspect appellant, citing, Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App. 1992). In Jones, at the guilt/innocence phase of the trial, the arresting officer testified that after listening to another detective question Yelena Comalander, he began to suspect appellant of that offense, and that he then had an arrest warrant issued for appellant. Id. The court held because the statement was not offered to prove the truth of the matter asserted, but to show why the officer obtained an arrest warrant for and arrested appellant, it was not objectionable as hearsay. Id.

In response to this argument appellant cites Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). Schaffer holds: "In the case before us, the State did indirectly that which it could not do directly--Officer Segovia's testimony informed the jury that Seals told him that appellant was not an informant." Id. In Schaffer, the defendant testified he was an informant and the State sought to disprove his defensive theory by injecting the inadmissable hearsay. Id. Schaffer is thus distinguishable from our case where appellant, through direct and indirect questioning, sought to establish a shoddy investigation that should have followed up and charged "Chronic" Hernandez rather than appellant. In testimony, Guerrero stated that he initially suspected Hernandez, but that other factors led the investigation to appellant.

The admission or exclusion of hearsay is a matter within the discretion of the trial court. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App.2001). We will reverse the trial court's determination only when the decision lies outside the zone of reasonable disagreement. Id. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is generally not admissible. Tex. R. Evid. 802. A "matter asserted" includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to the matter. Tex. R. Evid. 801(c). When information is offered for a reason other than to prove the truth of the matter asserted, the evidence is not inadmissible. Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000); Lopez v. State, 200 S.W.3d 246, 254 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd).

The State also argues that the prior inconsistent statements of Salinas, Martinez and Trevino could also be used to rebut the defense's contention that these stories were recent fabrication or the result of improper influence and motive. See Tex R. Evid. 801(c)(1)(B); Wisdom v. State, 143 S.W.3d 276, 262 (Tex. App.-Waco 2004, no pet.) (rule 801(e)(1)(B) allows for the admission of a witness's prior consistent statement "to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive"). Cf. Head v. State, 4 S.W.3d 258, 262 (Tex. Crim. App. 1999) (trial court could have reasonably concluded that Peterson's testimony, when taken in context, did not lead to any inescapable conclusions as to the substance of the out-of-court statements).

We agree with appellant that the trial court's first instinct to sustain the objection to Reyna's excited utterance was probably correct. However, we fail to see how this is not harmless error, given that it was merely cumulative of other evidence admitted without objection. Moore v. State, 999 S.W.2d 385, 402 (Tex.Crim.App. 1999) (the admission of the same evidence from another source, without objection, waives previously stated objections) (citing Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App.1996)). Furthermore, as the State argues, appellant was not implicated by Reyna's denial of involvement. See Johnson v. State 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In fact, the testimony could be viewed as possibly implicating "Chronic" Hernandez.

Officer Canales initially briefed Guerrero when Guerrero began to assist Canales. Appellant objected. Guerrero merely testified that Canales told him there was a drive-by shooting. Generally, testimony by a police officer offered to show how the defendant became a suspect in an investigation is not hearsay. Jones, 843 S.W.2d at 499; Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); see also Ortiz v. State, 93 S.W.3d 79, 95 (Tex. Crim. App. 2002). In any event, the error, if any, was also harmless because this was an undisputed fact admitted multiple times without objection. Moore 999 S.W.2d at 402.

The other complaints by appellant pertaining to the purported hearsay testimony of Guerrero were not accompanied by an objection to the trial court. Thus error, if any, was waived. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Lopez, 200 S.W.3d at 251.

The second series of issues in this amalgamated point of error concern the testimony of Officer Canales (nominated "Incidence Series Two" by appellant.) Officer Canales was a deputy with Hidalgo County Sheriff's Office. Like Guerrero, he was told many things about the shooting. He even related that he learned that Joe "Chronic" Hernandez was a suspect. Virtually all of his testimony was not objected to and merely re-plowed the same ground gone over by Guerrero and the eye witnesses. For example, Martinez implicated himself as the driver, appellant was the shooter, he had a 12 gauge shotgun, and removed it from Martinez's vehicle after the shooting.

Appellant points to one place in the record where there was an objection to the now complained of hearsay. Canales testified he took a statement from Fernando after the arrest of appellant. When asked to look at the statement, defense counsel objected that the witness could not rely on the unadmitted statement. "He can rely upon his own report not his [the witness's] statement. That's not in evidence, Judge." The objection was sustained. The State then argued "He wrote it, Judge." The court said: "He took it himself?" Canales replied "Yes." The court then overruled the objection. Thereafter the witness said he learned from Fernando that "he was going to take him out." This information was in his report. While it appears that Canales may have relied on his own report, which also contained Fernando's statement, he nevertheless was testifying about Fernando's out of court statement. Assuming error, the error was also harmless because this assertion was admitted multiple times without objection. Moore 999 S.W.2d at 402. Defense counsel did not object to Canales's use of his report that likewise contained the statement of Fernando. See Tex. R. App. p. 33.1(a).

Appellant does not point us to any other place in the record where there was an objection to the now complained of hearsay by Canales. Because there was no objection to the trial court, error, if any, was waived. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Lopez, 200 S.W.3d at 251; Martinez, 91 S.W.3d at 336.

Appellant contends, in the alternative, that trial defense counsel was ineffective if any hearsay error was waived. Trial counsel should ordinarily be afforded an opportunity to explain his actions before being found ineffective. Rylander, 101 S.W.3d at 111. Appellant fails to demonstrate trial counsel's performance was deficient because it fell below an objective standard of reasonableness. Thus he fails to meet the first prong of Strickland. Strickland 466 U.S. 687, (1984). ⁽⁵⁾ Issues six through thirty-seven are overruled.

6. Issues Thirty-Eight through Forty One

In his last four issues, appellant complains the prosecutor "reversibly cross-examined Montanez" by asking whether he or "a series of prior witnesses" or "a prior specific witnesses" (sic) lied. These assertions of error are repeated in his issues thirty-eight and thirty-nine respectively. The complaints center around the prosecutor questioning the defendant about the prior testimony of Villalon, Martinez, Reyna, his wife and others. Appellant implicitly admits there were no corresponding and material objections by defense counsel at trial. Regardless of whether it is the State or the defendant, to complain about a trial court's admission, exclusion, or suppression of evidence, a party "must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule [or statute] in question and its precise and proper application to the evidence in question." Lopez, 200 S.W.3d at 251; Martinez 91 S.W.3d at 336; see Tex. R. App. p. 33.1(a); Tex. R. Evid. 103(a)(1). Issues thirty-eight and thirty-nine are overruled.

Appellant again claims ineffective assistance of counsel in issues forty and forty-one. Appellant complains trial defense counsel was ineffective because he did not request limiting instructions at the time appellant's wife was impeached by her prior statement. Appellant points to Guajardo's testimony: that she didn't tell Canales she was afraid of what appellant would do to her; when he left in his blue Honda; that she never said appellant was going to go shoot-up her boyfriend Gonzalez, et cetera. The State used a blow-up of her prior inconsistent statement. Though this statement was admitted for the limited purpose of impeachment, the State used it for substantive purposes, according to appellant. Because defense counsel did not object, appellant admits error was waived citing In re A.B., 133 S.W.3d. 869, 874 (Tex. App.-Dallas 2004, no pet.) According to the argument, because counsel did not object, he was ineffective.

As stated previously, trial counsel should ordinarily be afforded an opportunity to explain his actions before being found ineffective. Rylander, 101 S.W.3d at 111. Like the majority of cases, the record on this direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Mallet, 65 S.W.3d at 63. Appellant again fails to demonstrate that trial counsel's performance was deficient because it fell below an objective standard of reasonableness. Thus he fails to meet the first prong of Strickland. See Strickland, 466 U.S. at 687 (defendant must first show that counsel's performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment); see also Mallet, 65 S.W.3d at 63. These issues are overruled.

Finally, appellant contends defense counsel was ineffective because he did not object to the prosecutor's use of State's Exhibit 13 ⁽⁶⁾ as substantive evidence and did not object when the prosecutor argued "he told Guajardo he went to shoot her boyfriend." Again, because the record is undeveloped, appellant fails to meet his burden under the first prong of Strickland. See Strickland, 466 U.S. at 687; Rylander, 101 S.W.3d at 111; Mallet, 65 S.W.3d at 63. This issue is overruled.

The judgment of the trial court is affirmed.

DON WITTIG

Retired Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 30th day of August, 2007.

1. Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex. Gov't Code Ann. § 74.003 (Vernon 2005).

2. Appellant's counsel on appeal omitted the standard of review for unobjected to charge error.

3. Appellate counsel is admonished to use proper language and follow the appellate rules. See Tex. R. App. P. 38.1(h), 38.4. Failure to do so in the future may result in our requiring rebriefing or the imposition of appropriate sanctions, or both.

4. In other words, appellant's attempt to characterize this hearing as an objection to all of Guerrero's testimony fails. Tex. R. App. P. 33.1(a)1.

5. See our discussion of this issue supra.

6. Jessica Guajardo's statement of October 6, 2003 was introduced for impeachment.