William Michael Proctor v. State

• Court: Court of Appeals of Texas
• Decided: June 24, 2010
• Docket: 01-08-01041-CR
• Status: Published

Opinion

Opinion issued June 24, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-01041-CR

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WilliAm Michael Proctor, Appellant

V.

The State of Texas, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Case No. 1124360

O P I N I O N

            A jury convicted appellant, William Michael Proctor, of capital murder.[1] The trial court sentenced appellant to life in prison without parole.  In seven points of error, appellant contends that: (1) the evidence was legally insufficient to support the verdict; (2) the evidence was factually insufficient to support the verdict; (3) the trial court erred in not granting his motion for a new trial; (4) the trial court erred in not providing an in camera review on his motion to require disclosure of the identify of an informant relating to a Crime Stoppers tip; (5) the trial court erred in admitting a suggestive photo array shown to two witnesses; (6) the trial court improperly admitted hearsay evidence during the direct examination of Detective M. Miller; and (7) he received ineffective assistance of counsel.

          We affirm.

BACKGROUND

          The complainant, Rosendo Rios, owned the El Ranchito nightclub in southwest Houston.  On the night of June 10, 2007, two men entered Rios’s bar, one man, appellant, was a tall white man and the other was an African-American.  The men had visited the bar individually on the Friday and Saturday nights before the murder.  On the night of June 10, the two men entered and exited the bar numerous times, but were on the property for around two hours.  After having been at the bar for nearly two hours, appellant and his co-conspirator exited the bar, approached a taco stand, and appellant committed two robberies at gunpoint.  As these robberies occurred, Rios’s employee in the taco stand used a special signal that alerted him, through security cameras, that something was wrong.  Rios left his office, went out the back door of the bar, and walked towards the taco stand.  As appellant completed the robberies, his co-conspirator entered the taco stand and took approximately $140 from the register.  Appellant approached the front of the taco stand and fired his gun, killing Rios.  After appellant shot Rios, he attempted to enter the taco stand, but his co-conspirator restrained him, and the two ran to a car and fled.

          Police officers arrived seven minutes later.  Detectives M. Miller and A. Belk, of the Houston Police Department, were assigned to the case.

          The two principal witnesses, Alma Urbina, the employee in the taco stand, and Irma Ibarra, a bartender, described appellant to the detectives.  The detectives established a third party as a potential suspect, and put a photo of him into a photo array that they showed to Urbina.  Urbina could not identify anyone in the array as the shooter. 

On June 25, the detectives had Urbina and Ibarra describe appellant to a police sketch artist, who produced a sketch.   Officials from the police department also contacted Schepps Dairy, a subsidiary of Dean Foods, a public corporation that financially supports Crime Stoppers.  Schepps volunteered a $5,000 reward for anyone who would provide the police department with information on the shooting.  The police publicized the sketch and the reward in the local media on June 25, 2007.  On June 26, the police received a tip indicating that the killer lived at 2530 Copper Valley, in Houston, Texas.

The detectives went to the address provided by the tipster and spoke with an African-American woman, Carolee Proctor.  After denying that a white male lived in the apartment, Proctor invited the detectives inside.  While in the apartment, the detectives saw a photograph of Proctor and appellant hugging.  Proctor admitted to the detectives that she was married to appellant, but told the detectives that he was in Louisiana with his sister and that she did not know his cell phone number.   Approximately fifteen minutes after the detectives left Proctor’s apartment, appellant called them.  He told Detective Belk that he was in Louisiana and implied that he had been in Louisiana when the murder occurred.

On July 5, appellant consented to come to the police station to speak with the officers.  While he was in the police station, the officers took photos of appellant’s face and his tattoos.  The detectives put appellant’s photo into a new photo array, and Detective Miller showed that array to Urbina and Ibarra, both of whom identified appellant as the shooter.  Detective Miller asked the complainant’s brother, Leroy Rios, to translate for him when he showed the photo array to Ibarra and Urbina.  The complainant’s widow was also present for both identifications.

          The State obtained an indictment against appellant for capital murder alleging that appellant killed Rios with a gun while attempting to rob Alma Urbina.   On July 11, 2007 the police arrested appellant.  Following his arrest, appellant was placed in an area of the jail that also housed an acquaintance of his, Joseph Adams. 

          Before trial, appellant filed a motion to discover the identity of the person who provided the tip in which the police learned appellant’s address.  Appellant claimed that Schepps was not a Crime Stoppers organization, so that information provided to it was not privileged, and that the identity of the person who provided the tip was exculpatory and thus he was entitled to it.  He requested a hearing and in camera review of the information in the Crime Stopper’s tip.   Schepps and the State filed motions to quash.  The trial court held a hearing in which appellant’s counsel claimed he believed the information was exculpatory because appellant was being “set up.”  The trial court granted the motion to quash without conducting an in camera review.

Prior to trial, appellant also filed a motion to suppress the photographic identification based on Urbina’s and Ibarra’s identification of appellant from the photo array.  The trial court carried the motion with the trial.  During trial, the trial court held hearings on the photo array outside of the presence of the jury.  It found Detective Miller and Ibarra credible and allowed them to testify about the photo array and to identify appellant in court.  The trial court did not enter findings on Urbina’s credibility, but it allowed her to testify to the photo array and to identify appellant in court.

          At trial, the State called twelve witnesses and the defense called nine.  The State first called Ibarra. She testified that on the night of the murder she was working as a bartender in Rios’s bar.  Appellant and an African-American man had been in the bar and were drinking Corona beer.  They were conspicuous because the overwhelming percentage of the bar’s patrons were Hispanic, and, on the night of the murder, the bar had only about fifty customers in it.  Appellant and the African-American man played pool intermittently for almost two hours, beginning around ten or eleven at night.  Appellant came up to Ibarra’s bar asking for change, and he and the other man went in and out of the bar several times.  Ibarra testified that she got a “good look” at appellant.  Around 1:00 a.m., a fight broke out, and Ibarra went into Rios’s office to get him, but he was not there.  Approximately five minutes later, she heard a sound “like when somebody steps [on a can],” and went to the front of the bar, where she saw Rios “laid out,” bleeding, and trying to speak.  Ibarra held him and told him to be quiet.  Although he continued to speak, she could not understand him.  Ibarra called 911.

          At the hospital, Ibarra spoke with police officers and told them that the shooter had a big tattoo on his left arm, a large tattoo on his neck, light colored eyes, an earring, and a small mustache.[2]  Over objection from defense counsel, she identified appellant in the photo array that Detective Miller presented to her.  She then identified appellant in the courtroom.

          The State next called Urbina.  Urbina testified that she was working in the taco stand on the night of the murder.  She testified that Rios had recently installed a security camera in the taco stand that did not record, but that allowed him to observe the taco stand from his office.  Rios instructed Urbina that if there was a problem she should put a jar in front of the camera so that he would be alerted and could come assist her.   

On the night of the murder, Urbina saw appellant and an African-American man enter and exit the bar several times.  She testified that she had not seen them at the bar the night before, but that she had seen the African-American man at the bar two nights before the murder.  The area outside of the bar was well lit, and she testified that she could see them clearly as they entered and exited.  She witnessed appellant rob a man, and then she watched as he robbed another man who had come to help the first victim.  She testified that appellant robbed them both at gunpoint.  The African-American man did not have a weapon.

As appellant robbed the two men, Urbina moved her jar to indicate to Rios that something was wrong, and she then attempted to call Rios.  While she was on the phone trying to reach Rios, the African-American man who had been with appellant entered the taco stand, demanded money, and then took approximately $140 from the till.  She never saw him with a weapon.  She saw appellant shoot the gun, attempt to enter the taco stand, be restrained by the African-American man, and then flee in a dark colored car with four doors.  She found Rios lying in blood between a row of cars and his bar.

          Urbina described the shooter to the police as approximately six feet four inches tall, between 150 and 160 pounds in weight, 25-30 years old, and having a shaved head, a small amount of light colored hair, a small moustache, a light beard and a tattoo on the back of his neck that looked like wings.  She identified appellant in the second photo array that Detective Miller presented to her, and she identified appellant in court.

          The State then called Leroy Rios.  Rios testified that he first met Ibarra and Urbina on the night of the murder and that Detective Miller later asked him to translate for him when he presented the photo array to Ibarra and Urbina.  He testified that he and Rios’s widow followed Detective Miller to Urbina’s house, where he translated as Detective Miller showed Urbina the photo array.  After Ubrina identified appellant in the photo array, Detective Miller, followed by Leroy Rios and the complainant’s widow, went to Ibarra’s house.  Rios’s wife was present when Urbina and Ibarra viewed the photo array.  Leroy Rios testified that Urbina and Ibarra both identified appellant.

          The State then called Detective Miller.  He testified that, on June 12, 2007, he showed a photo array to Urbina that contained a picture of the first suspect in the case.  Urbina could not identify anyone in the photo array.  The day after a Crime Stoppers reward was publicized, the police received a tip that the shooter lived at 2530 Copper Valley, but the tip included no additional information.  The following day, he and his partner went to that address and encountered Carolee Proctor.  Detective Miller testified over appellant’s hearsay objections to statements made to his partner and him by Carolee Proctor.  Following that interview, he had a new photo array made that included a photograph of appellant, and he asked Leroy Rios to help him locate Urbina and Ibarra and to accompany him to translate as they viewed the new photo array.  Detective Miller identified appellant in court, but testified that appellant had gained between 50 and 60 pounds since his arrest. 

Detective Miller also testified that he requested appellant’s cell phone records from AT&T on September 5, 2007.  The records showed that appellant’s phone was used in Houston on the day of the murder, but that no calls were made or received from approximately 9:30 p.m. on the night of the murder until approximately 9:30 a.m. on the morning after the murder.  The records also showed that appellant’s phone was used in Louisiana on June 12, 2007.

          Joseph Adams, who was incarcerated in the Harris County jail awaiting trial, testified that he approached appellant in jail because he recognized him from the Acres Homes subdivision in Houston.  He testified that this is a predominantly African-American section of Houston, but that appellant was seen there frequently and was referred to as “White Mike.”  He testified that he saw appellant “in the streets, [and at] dog fights.”  Appellant told him that he had been arrested for a “BS capital murder.”  Appellant indicated that he had been charged with capital murder because, while he was in a bar, he began to argue with a woman; he and his friend were escorted from the club; and he went to get his pistol and “took care of business.”  Adams then testified that while he was in jail he heard appellant on the phone and heard him tell the other person, “Just tell your uncle I left the phone in the truck.”  He also testified that appellant sought to get tattoos while in jail to alter his appearance.  Defense counsel did not cross-examine Adams.

          The State then called Dr. Albert Chu, an assistant medical examiner for Harris County, who testified that a gunshot to the head killed Rios.  The defense did not cross-examine Dr. Chu.

          As its first witness, the defense called Dr. Frank Barnes, an orthopedic surgeon.  Dr. Barnes testified that appellant had surgery on his ankle on April 23, 2007 and that it would have been unlikely, but possible, that appellant could have run six weeks after the surgery without pain or a limp.

          The defense then called Carolee Proctor.  She testified that on the night of the murder, around 10:00 p.m., she, appellant, and Salvador Hernandez were in a pizza restaurant.  On cross-examination she admitted that her previous statement in an affidavit indicating that appellant was in Louisiana on the night of the murder was not truthful.  The defense also called Hernandez, a friend of appellant’s, who testified that appellant and Carolee Proctor were with him at the pizza restaurant on the night of the murder.  

The defense then called Ernesto Rojas, a licensed computer forensic investigator.  Rojas testified that on June 10, 2007 appellant’s phone was used around his apartment in Houston, but the last call was at 9:47 p.m. on the night of the murder.  Nothing in the cell phone records indicated that the phone was used in or near Louisiana on the night of the murder.

Finally, the defense called Labertha Dunbar, appellant’s mother-in-law.  She testified that appellant had gained weight since his wedding on May 19, 2007, but that otherwise his appearance had not changed significantly since the wedding.   She testified that appellant was in Houston on the night of the murder.  

The jury was instructed on the law of parties and convicted appellant of capital murder.  The trial court sentenced him to life in prison without parole.

Appellant filed a motion for new trial on January 16, 2009, claiming that a juror took notes and that the notes were considered during deliberations.  The trial court did not rule on appellant’s motion for new trial, and it was overruled by operation of law.

CRIME STOPPERS’ PRIVILEGE

In his fourth issue, appellant contends the trial court erred in holding that the “crime stoppers” privilege applied to prevent disclosure of the documents related to the identity of the informant who provided the police with appellant’s address and in failing to conduct an in camera review of the information provided. 

Appellant filed two motions and a subpoena duces tecum requesting the disclosure of all information obtained by the police from the crime stopper’s tip, arguing that this tip might contain exculpatory information.  Specifically, appellant asked for the trial court “to require the state to provide the defendant with any information regarding the defendant obtained by the police through the ‘Crime Stoppers’ Program . . . .”  On August 18, 2008, he filed a second motion in which he asked the court “to instruct the prosecution and Crime Stoppers organizations to reveal the true name and present addressees of all informers and all reports of communications regarding the homicide of Mr. Resendo Rios on the 11^th day of June 2008 . . . .”  Appellant also attached a subpoena duces tecum for Schepps demanding all information related to the payment of money for a crime stoppers tip.  Schepps and the State both filed motions to quash appellant’s motions for disclosure and his subpoena duces tecum. 

The trial court held a hearing on the motions to quash.  After determining that Schepps was a crime stoppers organization, the trial court granted the State’s and Schepps’ motion to quash appellant’s request for disclosure of the identity of the informant.  Appellant then asked for an oral amendment to his motion for disclosure so that the trial court could review the documents in camera to determine whether the material was potentially exculpatory.  The court granted appellant’s request to amend his motion, and then held a hearing on the record.  At the hearing, defense counsel argued for in camera review of the evidence to determine if it was exculpatory on the ground that he believed the tip was provided by “the individual who was involved in the actual homicide or somebody who’s just being vengeful about [appellant] because of some issues between them . . . .”  The trial court denied the motion to quash without conducting an in camera review of the crime stoppers records.

1.     Applicability of Crime Stoppers Privilege

          Appellant first argues in his fourth issue that Schepps’ rewards program is not a crime stopper’s organization, as required for the crime stoppers privilege to apply.

          Evidence of a communication between a person submitting a tip to a crime stoppers organization is not admissible in a court proceeding except as provided by statute.  See Tex. Gov’t Code Ann. § 414.008(a) (Vernon 2005).  In relevant part, Section 414.008 of the Government Code provides:

(a) except as otherwise provided by this section, evidence of a communication between a person submitting a report of a criminal act to the council or a crime stoppers organization and the person who accepted the report on behalf of the council or organization is not admissible in a court or an administrative proceeding.

(b) records of the council or a crime stoppers organization concerning a report of criminal activity may not be compelled to be produced before a court or other tribunal except on a motion:

(1) filed in a criminal trial court by a defendant who alleges that the records or report contains evidence that is exculpatory to the defendant in the trial of that offense;

. . . .

(c) on motion of a movant under Subsection (b), the court may subpoena the records or report. The court shall conduct an in camera inspection of materials produced under subpoena to determine whether the materials contain:

(1) evidence that is exculpatory to the defendant . . . .

Id. § 414.008 (a)-(c)(1). 

Section 414.001(2) of the Government Code defines a “crime stoppers organization” as:

(A) a private, nonprofit organization that is operated on a local or statewide level, that accepts and expends donations for rewards to persons who report to the organization information about criminal activity and that forwards the information to the appropriate law enforcement agency; or

(B)  a public organization that is operated on a local or statewide level, that pays rewards to persons who report to the organization information about criminal activity, and that forwards the information to the appropriate law enforcement agency.

Id. § 414.001(2)(A)–(B).  The statute does not define “public organization.”

          Schepps is a wholly owned subsidiary of Dean Foods, a publically owned corporation.  Ed Spencer, the administrator of Schepps’ crime stoppers rewards program, testified at the hearing on the State’s and Schepps’ motions to quash the subpoena of Schepps’ crime stoppers records.  Spencer testified that Schepps started its rewards program as a component of its philanthropic endeavors to help provide justice and relief to the victims of certain violent crimes after one of its milkmen was killed in the early 1970’s.  After Schepps was acquired by Dean Foods, the program was extended to other dairies and other states, but it continues to operate through Schepps in Houston, Dallas, and Fort Worth, Texas.  The program provides money to persons who supply law enforcement officials with information concerning selected crimes. 

Spencer testified that the Schepps crime stopppers organization is independent of the Harris County Crime Stoppers program but that the two often coordinate efforts.   Sometimes Schepps decides to post an award and contacts local law enforcement agencies; sometimes, as here, it is contacted by a law enforcement agency and asked to post a reward for information leading to an arrest.  Schepps does not operate a tip line of its own; rather, its reward announcements instruct persons offering tips to contact the law enforcement agency with which it is coordinating its efforts.  Schepps generally offers a $10,000 reward, but when, as here, two persons are involved in a crime, it offers $5,000 for information leading to each arrest.  The rewards program is financed by the individual dairies, and the money for it comes out of the dairies’ operating budgets.

We conclude that, although Schepps is a for-profit organization and a subsidiary of a public corporation, its rewards program is a private non-profit organization that accepts funds contributed from Schepps’ income and expends donations for rewards to persons who report to the appropriate law enforcement agency.  We thus conclude that the crime stoppers rewards program in which Schepps participates qualifies as a crime stoppers organization within the scope of section 414.001(2)(A) of the Government Code.  See id. § 414.001(2)(A) (providing definition for “crime stoppers organization”); In re Hinterlong, 109 S.W.3d 611, 622–23 (Tex. App.—Fort Worth 2003, no pet.) (holding that trial court did not abuse its discretion in holding that program at public high school which encouraged students to report crime and was affiliated with Tarrant County Crime Stoppers was “crime stoppers organization”).  Therefore, we hold that the trial court did not abuse its discretion in holding that the crime stoppers privilege applied to the records and reports concerning the informant in this case.     

We overrule the first part of appellant’s fourth issue.

2.     Denial of Request for In camera Inspection

Appellant also argues in his fourth issue that the trial court erred in failing to conduct an in camera review of the records and reports related to the tip as to appellant’s address given by the informant in response to Schepps’ reward offer.

The prosecution has an affirmative duty to disclose all material evidence favorable to the defense. McFarland v. State, 928 S.W.2d 482, 511 (Tex. Crim. App. 1996). Under the “Brady rule,” the prosecution of a defendant violates due process when the State suppresses evidence in its possession that is favorable to an accused “[w]here the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.”  Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197).  “Brady has been extended to include the required revelation to an accused of material exculpatory evidence in the possession of police agencies and other parts of the ‘prosecutorial team.’” Ex  parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. App. 1997) (citing Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995)).  “Evidence withheld by a prosecutor is ‘material’ if there is ‘a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.’” Wyatt, 23 S.W.3d at 27 (quoting United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985)).   Thus, a due process violation occurs “if a prosecutor: (1) fails to disclose evidence, (2) favorable to the accused, (3) which creates a probability of a different outcome.”  Id. (citing Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992)). 

The crime stoppers privilege statute provides that a trial court may subpoena the records of a crime stoppers organization concerning a report of criminal activity on the motion of a defendant who alleges that the records or report contain evidence exculpatory to him, and, if it does so, it must conduct an in camera inspection of the records subpoenaed.  Tex. Gov’t Code Ann. § 414.008(b)-(c).  However, the trial court is not required to subpoena the records merely at the defendant’s request.   See Tex. Gov’t Code Ann. § 311.016(1) (providing that term “may” “creates discretionary authority or grants permission or power”).  Rather, the defendant must make a plausible showing to the trial court, through sworn evidence or agreed facts, that the crime stoppers records in the possession of the State would be material exculpatory evidence that would create a probability of a different outcome.  See Wyatt 23 S.W.3d at 27; Mitchell, 977 S.W.2d at 578.  If such a showing is made and the trial court, in the exercise of its discretion, subpoenas the crime stoppers records, it must then conduct an in camera inspection of the subpoenaed documents to determine if the produced information contains Brady evidence.  An in camera inspection satisfies both the defendant’s interest in the production of crime stoppers information that may be exculpatory and the State’s interest in fostering law enforcement by protecting the identity of the crime stoppers informants.  Thomas v. State, 837 S.W.2d 106, 113–14 (Tex. Crim. App. 1992). 

Here, appellant made no showing to the trial court that the crime stoppers report would be either exculpatory or material or that it would create the probability of a different outcome under the circumstances of this case and would therefore have served appellant’s due process interest in the production of exculpatory information.  See Mitchell, 977 S.W.2d at 578.  The subpoena of the crime stoppers report under these circumstances could only have undermined the State’s compelling interest in furthering law enforcement by intimidating informants from coming forward with information as to where an accused could be found.  See Thomas, 837 S.W.2d at 114 (holding that allowing unrestricted access to crime stoppers information could compromise State’s efforts to protect identity of crime stoppers informants).  We hold that the trial court was not required to subpoena the crime stoppers records in this case, and thus it did not abuse its discretion in not conducting an in camera review of the information in the crime stoppers tip.[3]

          We overrule appellant’s fourth issue.

The discussion of the remaining points of error does not meet the criteria for publication, Tex. R. App. P. 47, and is thus ordered not published.

We affirm the judgment of the trial court.

LEGAL AND FACTUAL SUFFICIENCY

In his first and second issues, appellant contends that the evidence supporting the jury’s verdict was legally and factually insufficient to identify him as the perpetrator and that the evidence established that he could not have committed the murder because he was somewhere else when it occurred.  He contends that the witnesses’ descriptions of him did not match his physical characteristics, a “jail house snitch” is an unreliable witness, appellant’s “family members and close friend” testified that he was not in the vicinity of the murder scene when the murder occurred, and surgery he had on his ankle six to eight weeks before would have prevented him from committing the murder. 

“A person commits capital murder if he . . . intentionally commits . . . murder in the course of committing or attempting to commit . . . robbery. . . .”  Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 2003). 

A.               Legal Sufficiency

In a legal sufficiency review, we consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005).  The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight given to the testimony.  Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).  A jury is entitled to accept one version of the facts and reject another, or reject any part of a witness’s testimony.  Id.  In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

It is well established that the testimony of a single eyewitness may be legally sufficient to support conviction.  Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)). 

Here, Urbina testified that with the assistance of good lighting she saw appellant rob two patrons with a gun.  She signaled to Rios for assistance.  Afterwards, she saw appellant fire his gun and saw the African-American man take money from the trailer.  Appellant attempted to enter the trailer, but his co-conspirator restrained him.  Urbina was afraid for her life.  Appellant and the African-American man fled together, and she subsequently found Rios on the ground.  Ibarra also identified appellant and testified to his presence in the bar on the night of the shooting.  Viewing the evidence in the light most favorable to the verdict, we hold that the jury could have found beyond a reasonable doubt that appellant intentionally committed the murder of Rios in the course of committing robbery.  See Davis, 177 S.W.3d at 359 (holding that testimony by one eyewitness can be legally sufficient).

B.   Factual Sufficiency

When conducting a factual sufficiency review, we view all of the evidence in a neutral light.  Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the evidence before us, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  Before determining that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.  The jury is in the best position to evaluate the credibility of witnesses, and we are required in our factual sufficiency review to afford “due deference” to the jury’s determinations.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).  In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict.  Watson, 204 S.W.3d at 417.

Here, appellant argues that the descriptions provided by Urbina and Ibarra to the police officers were inconsistent with appellant’s physical features.  Appellant contends the witnesses testified that the shooter had a pointed nose but that his nose is not pointed, that the shooter had blue eyes but he has greenish-brown eyes, and the like.  However, appellant does not direct us to portions of the record that contradict the descriptions provided by Ibarra and Urbina.  Appellant also argues that when Urbina viewed the first photo array she could not identify anyone in the array as the shooter.  However, the testimony established that appellant’s photo was not in the first array.  Furthermore, both witnesses identified appellant in a photo array presented to them several weeks after the murder, and they identified appellant in court.  Lastly, the State produced evidence that indicated that appellant altered his appearance while awaiting trial by adding tattoos and as much as 50 to 60 pounds in weight. 

Appellant also argues that the evidence is factually insufficient because his alibi witnesses testified either that he was not in Texas on the night of the killing or that he was not in the part of Houston where the killing occurred.  Labertha Dunbar, appellant’s mother-in-law and Carolee Proctor, his wife, provided affidavits swearing he was in Louisiana on the night of the killings.  However, when this testimony was controverted with records from appellant’s cell phone carrier, these witnesses recanted their affidavits.  Beverly Harris testified that on June 10, 2007, appellant picked her up at 7:00 a.m., drove her to the Newton County Jail to see her son, Alonzo Harris, and that, after spending two and a half hours with her son, she and appellant returned to Houston.  Appellant’s wife testified that after appellant returned from Newton County she, appellant, and Salvador Hernandez went to a restaurant in Houston where they remained from 10:00 p.m. until “very late.” 

Hernandez testified that he was with appellant and his wife at the restaurant until it closed at midnight on the night of the killing.  However, through the testimony of Joseph Adams, the State rebutted this alibi testimony by producing a witness who testified that appellant admitted to “taking care of business” with his pistol, by committing the robbery and the murder.  Appellant contends that Adams’ testimony is not credible.  However, the State also produced Urbina and Ibarra, who testified that appellant was in the bar on the night of the killing. 

Lastly, appellant contends that the evidence was factually insufficient because the injury to his foot would have prevented him from committing the crime and fleeing from it. However, the State produced evidence, through appellant’s own witness, that, despite appellant’s injury and recent surgery, it would have been possible for him to have committed the offense and to have fled the scene on foot.

In a determination of factual sufficiency, the jury is in the best position to evaluate the credibility of witnesses, and we afford “due deference” to the jury’s determination.  Marshall, 210 S.W.3d at 625. Therefore, to the extent there are inconsistencies in the testimony of the witnesses, we defer to the jury to decide credibility.   See Petro v. State, 176 S.W.3d 407, 412 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding any discrepancies in description of robber and manner of witnesses’ in-court and out-of-court identifications are matters best left for jury’s evaluation of credibility and demeanor of witnesses who appeared before them).  Here, in evaluating all of the evidence in a neutral light, we cannot say that the evidence is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the clear weight and preponderance of the evidence.  See Johnson, 23 S.W.3d at 11.  We hold that the evidence is factually sufficient to sustain appellant’s conviction. 

We overrule appellant’s first and second issues.

FAILURE TO GRANT A NEW TRIAL

           In his third issue, appellant contends that the trial court abused its discretion in denying his motion for a new trial.

          Appellant filed a motion for a new trial on January 16, 2009, claiming that a juror took notes during the trial, against the trial court’s ruling, and that the notes were considered during deliberations.  Appellant’s counsel testified by affidavit that appellant’s second chair defense counsel had reported to him that, during a post-verdict conversation, an unnamed juror had reported that another juror had taken notes during deliberations and shared them with the other jurors during deliberations and that one of the notes referred to one of appellant’s expert witnesses as “Dr. Sleazeball.”   The affidavit further stated that neither he, nor his second chair, nor his legal assistant observed any juror taking notes and therefore he did not request a mistrial during trial.  Attorneys for both the defense and the State testified by affidavit that they did not see jurors taking notes.  The prosecutors also swore in their affidavits that the juror who indicated that another juror had taken notes did not specify whether the notes were made during deliberations or during trial.  Although the record contains an agreed hearing setting for the motion, signed by the court, no hearing was held on the motion; instead the agreed motion contains the statement “off-docket,” apparently written by the court.  The trial court did not rule on the motion, and it was overruled by operation of law. 

In reviewing a motion for a new trial, the trial court may receive evidence by affidavit.  Tex. R. App. P. 21.7.  The trial court is not required to believe the factual statements made in an affidavit, even when these are uncontradicted by other affidavits.  Charles v. State, 146 S.W.3d 204, 213 (Tex. Crim. App. 2004); Shanklin v. State, 190 S.W.3d 154, 167 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d, improvidently granted, 211 S.W.3d 315, 316 (Tex. Crim. App. 2007).  In considering a motion for new trial, the reviewing court must give deferential review to the trial court’s determination of historical facts based upon affidavits.  Manzi v. State, 88 S.W.3d 240, 241 (Tex. Crim. App. 2002). 

Appellate courts generally review a trial court’s ruling on a motion for a new trial under an abuse of discretion standard.  Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). When there are no written findings in the record, we view the evidence in the light most favorable to the trial court’s ruling on any theory of law applicable in the case.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).  An appellate court must defer to the trial court’s ruling to the extent that any reasonable view of the record supports the ruling.  Holden, 201 S.W.3d at 763 (holding that appellate courts review ruling on motion for new trial to determine whether trial court’s decision was arbitrary or unreasonable).   

          Here, both the defense and the State filed affidavits.  The trial court was free to refuse to consider the statements of juror misconduct in defense counsel’s affidavit as hearsay and to believe the affidavits of the defense and the prosecution that they did not witness juror misconduct in considering whether to grant appellant’s motion for a new trial.  See Charles 146 S.W.3d at 213. 

We overrule appellant’s third issue.

PHOTO ARRAY

          In his fifth issue, appellant contends that the trial court erred by admitting an impermissibly suggestive photo array that had been shown to Ibarra and Urbina and in allowing their improper in-court identifications of appellant.   

Appellant contends that the photo array was impermissibly suggestive because the complainant’s brother and widow were present when it was viewed and their presence “injected a heavy incentive for the witnesses to make a mistaken identification.”  Appellant argues that the use of the deceased’s brother as a translator, the presence of his widow, and the fact that Officer Miller did not show the witnesses the photo array at the police station provided strong incentives for misrepresentation.  Appellant also contends that his picture in the photo array did not resemble him at the time of the murder because the photo was from 2003 and did not include his facial tattoos.   

Before trial, appellant filed a “motion to suppress photographic identification.”  At trial, the trial court held three hearings on appellant’s motion to suppress the photographic identification.  The first hearing was conducted prior to empanelling the jury, and Officer M. Miller testified.  In the second hearing, conducted outside the presence of the jury, Ibarra testified.  In the last hearing, also conducted outside of the presence of the jury, Urbina testified. 

          Officer Miller testified in the first hearing that he had a photo array developed that included a picture of appellant and five other people whose physical features resembled those of appellant.  The photo array, labeled State’s Exhibit 49, comprises headshots of appellant and five other males.  All of the photos are of white men of approximately the same age with closely cropped or shaved hair, similar complexions, small amounts of facial hair, and closed mouths. 

On July 5, 2007, Officer Miller contacted Leroy Rios to obtain Ibarra’s home address.  Although he tried to obtain a translator to accompany him to Ibarra’s house, he was unable to do so, and so he asked Leroy Rios to translate for him.  When they arrived at Ibarra’s home, the complainant’s widow, Marahi Rios, was there and remained present throughout the showing of the photo array.  Officer Miller admonished Ibarra and then presented the array to her.  He testified that she positively identified appellant.  He testified that he then went to Urbina’s house and that Leroy and Marahi Rios followed in a separate car.  After admonishing Urbina, through Leroy Rios, Officer Miller presented her with the photo array and she positively identified appellant.   

          Ibarra testified in the second hearing on the motion to quash that, on the night of the complainant’s murder, she was working at his nightclub as a cashier and a bartender.  She testified that the majority of her customers were Hispanic, but on the night of the complainant’s murder she observed a white man and an African-American man enter the bar, have a few beers, and play pool.  To her, these men were conspicuous because they were not Hispanic.  She testified that Officer Miller called her on July 5, 2007, and asked whether he could show her some photographs.  She consented.  After Officer Miller arrived at her house, he admonished her, with Leroy Rios translating, that the photo array might not include the suspect.  She testified that while she was looking at the photo array, Officer Miller was silent.  She looked at the photo array and identified appellant as the person who committed the murder. 

During this hearing, and at the instruction of the trial court, appellant did not face Ibarra, and instead faced the courtroom’s back wall.  After Ibarra identified appellant in the photo array for the court, the trial court instructed appellant to face Ibarra, and she identified him as the man she saw in the bar on the night of Rios’s murder.  The trial court then ruled that Ibarra could testify to appellant’s identity in front of the jury and that she would be allowed to identify him in court in front of the jury.  Lastly, the trial court made a finding that Ibarra and Officer Miller presented credible testimony.   

In the third hearing, Urbina testified that, on the night of the complainant’s murder, she was working at the nightclub, in the trailer that sold tacos outside of the bar’s front door.  She saw an “American” and an African-American enter and leave the bar several times.  She testified that she could see them clearly and that at one point appellant was only a foot away from her.  Approximately three weeks after the murder, Officer Miller came to her house and, through Leroy Rios, asked her to look at a photo array and determine whether the man she saw at the nightclub was in it.  She identified appellant in the photo array.  She testified that she had not spoken with Ibarra before she looked at the photos and that she did not feel pressured to select a photo.  The trial court acknowledged that it did not consider “it wise for any family members of a complainant to be present or do a translation on identification,” but it found the identification testimony admissible.  It denied appellant’s motion to suppress and allowed Ibarra and Urbina to identify appellant in court.

A.               Standard of Review

In reviewing a trial court’s decision on the admissibility of a pretrial identification, we defer to the trial court’s rulings on mixed questions of law and fact if they turn on the credibility and demeanor of witnesses. See Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). We review de novo mixed questions of fact and law that do not turn on an evaluation of credibility and demeanor. Id. The question of whether a pretrial identification procedure was impermissibly suggestive is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor. See id. at 773. Accordingly, we apply a de novo standard of review. Id. 

Appellate courts are not limited to reviewing only the evidence adduced at the admissibility hearing when considering the identification. Webb v. State, 760 S.W.2d 263, 272 n.13 (Tex. Crim. App. 1988). An appellate court may review both the hearing testimony and evidence adduced at trial when determining the admissibility of a pre-trial identification. Id.  A pretrial identification procedure may, however, be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. See Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968); Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995).

When challenging the admissibility of a pretrial identification, an accused has the burden to show: (1) the out-of-court identification procedure was impermissibly suggestive, and (2) the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Barley, 906 S.W.2d at 33. If a court finds that a pretrial identification procedure was impermissibly suggestive, it must then consider whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 381–82 (1972). A defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive. Barley, 906 S.W.2d at 33–34.  The factors used to determine whether an impermissibly suggestive identification procedure gives rise to a substantial likelihood of irreparable misidentification are treated as historical issues of fact and are viewed in the light most favorable to the trial court.  Loserth, 936 S.W.2d at 773–74.

In determining the impermissible suggestiveness prong of the Barley test, we review the procedure to determine whether suggestiveness was created by the manner in which the pretrial identification procedure was conducted.  Id. at 33.  For example, a police officer may point out the suspect or suggest that a suspect is included in a line-up or photographic array.  Id.  The content of a line-up or photographic array itself may be suggestive if the suspect is the only individual who closely resembles the description given by the witness.  Id.  Furthermore, an individual procedure may be suggestive or the cumulative effect of procedures may be suggestive. Id.

If it is determined that the pre-trial identification procedure was impermissibly suggestive, we determine whether the procedure created a “substantial likelihood of irreparable misidentification.”  Id. at 34.  “The test is whether, considering the totality of the circumstances, ‘the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’”  Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999) (quoting Simmons, 390 U.S. at 384, 88 S. Ct. at 971).  Ultimately, “reliability is the linchpin in determining the admissibility of identification testimony.” Id.

In Luna v. State, the Court of Criminal Appeals held that “[t]he following five non-exclusive factors should be weighed against the corrupting effect of an suggestive identification procedure in assessing reliability under the totality of the circumstances: (1) the opportunity of the witnesses to view the criminal at the time of the crime; (2) the witnesses degree of attention; (3) the accuracy of the witnesses’ prior description of the criminal; (4) the level of certainty demonstrated by the witnesses at the confrontation, and (5) the length of time between the crime and the confrontation.  Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008) (citing Ibarra, 11 S.W.3d at 195).

B.               Analysis

While appellant urges this Court to find that the procedure created an impermissibly suggestive identification, he acknowledges that, “[t]here is no statute or case law which prohibits the use of grieving family members to translate during photo array presentations . . . Nor are there statutes or case law which prohibit the grieving widow [from being] present during the identification procedure.”  We conclude that appellant has failed to prove the first prong of the Barley test, an impermissibly suggestive identification procedure.  See Barley, 906 S.W.2d at 33.  Nevertheless, even if appellant had established that Detective Miller’s using the complainant’s brother as a translator and allowing the complainant’s widow to be present at the showing of the photo array created an impermissibly suggestive procedure, he would still not have shown that the procedure gave rise to a substantial likelihood of irreparable misidentification, establishing the second prong of the Barley test.  See id. 

In determining whether an appellant has proved a substantial likelihood of irreparable misidentification, we consider the facts of the case in the context of the five Biggers factors.  Luna, 268 S.W.3d at 605. 

Here, the witnesses had an ample opportunity to view the killer at the time of the crime.  See Luna, 268 S.W.3d at 605.  Both Ibarra and Urbina testified that appellant was conspicuous because he was among the only non-Hispanic patrons in the bar.  Further, Ibarra testified that she observed him intermittently over a period of four hours and Urbina testified that appellant came within a foot of her and that good lighting made it easy for her to see him.  Second, both witnesses testified that because appellant was conspicuous to them they paid particular attention to him.  Third, while the descriptions of appellant varied slightly and appellant’s acquaintance Adams, Detective Miller, and appellant’s mother-in-law all testified that appellant had altered his appearance for trial by adding tattoos and as much as sixty pounds of weight, the descriptions provided by both witnesses generally conformed to appellant’s physical features.  Fourth, both witnesses were confident in their identification of appellant, and the trial court entered findings that Ibarra was credible.  In addition, Urbina had viewed a prior photo array that did not contain appellant’s photo and was unable to identify anyone in it as the shooter.  Finally, there was less than a month between the murder and the identification.  Id.

Appellant contends only that the photo in the array was from 2003 and was misleading because it did not include his facial tattoos.  However, appellant does not direct us to any evidence that appellant had facial tattoos or different tattoos on the night of the killing.[4]  Nor does he provide any authority supporting his claim that the presence or absence of tattoos renders a photo array unreliable. 

          We conclude that appellant has not shown that the photographic identification procedure was impermissibly suggestive or gave rise to a substantial likelihood of irreparable misidentification.  Therefore, we hold that the trial court did not abuse its discretion in allowing Urbina and Ibarra to testify to appellant’s identity.  See Id.

          We overrule appellant’s fifth issue.

ADMISSION OF HEARSAY STATEMENTS

          In his sixth issue on appeal, appellant contends that the trial court erred in admitting the hearsay statement of Carolee Procter during the State’s direct examination of Detective Miller.

          A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion.  See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).  An appellate court should not reverse a trial court whose ruling was within the “zone of reasonable disagreement.”  Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).  The reviewing court must review the evidence in the light most favorable to the trial court’s ruling, giving the trial court almost total deference on its findings of historical fact that are supported by the record.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  However, to preserve an issue for appeal, the complaining party must object and either obtain an adverse ruling on the record or object to the trial court’s refusal to rule on the objection.  Tex. R. App. P. 33.1(a); Thierry v. State, 288 S.W.3d 80, 85 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).  An “off-the-record” objection will not preserve a complaint for appeal.  Lasher v. State, 202 S.W.3d 292, 295 (Tex. App.—Waco 2006, pet. ref’d).

          Appellant contends that Detective Miller testified over a running objection to hearsay statements of appellant’s wife, Carolee Proctor.  Specifically, appellant directs us to the following exchange:

[State]:                 What question, if anything, [did] you ask  [appellant’s wife]?

[Miller]:                Well, immediately, we were looking for a white male suspect and when a black female opened door [sic], we had to first clear that up, whether or not there was a white male that lived at this residence. So my partner asked her a question, Is there a white male that lives at this residence?

[Defense]:             Objection to any hearsay, Your Honor.

[Trial Court]:        May I see the attorneys up here. 

                             (Off record discussion held at bench.)

[State]:                 I think where we left off, y’all asked the question: Does a white male live here?

                             And the response was?

[Miller]:                No, there is not.

[State]:                 Where are you standing when she walked into the bathroom?

[Miller]:                Standing in the living room.

[State]:                 What, if anything, did you notice?

[Miller]:                On top of the VCR in the living room was a picture of a black female, appeared to be the person we were talking to, Carolee Proctor, embraced in a hug with the defendant.

[State]:                 Now, before she left to change clothes, did she convey to you who she was living there with, or did she simply say—

[Defense]:             Your Honor, I would ask for the continuing objection, same subject.

[Court]:                You may have that, same ruling.

Detective Miller subsequently testified to matters that appellant’s wife had told him.  For example, he testified, “We asked her about the picture and the white male that was in the picture.”  The State then asked, “At that point, what if anything, did she acknowledge?”  Detective Miller answered, “She told us it was her husband.”  We conclude that that appellant preserved this issue for appeal by obtaining a running objection from the trial court. 

          Assuming without deciding that the trial court erred in admitting hearsay evidence over a running objection, we conclude that the error was harmless.  See Tex. R. App. P. 44.2(b) (providing that a non-constitutional “error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”).  The Court of Criminal Appeals has held that “substantial rights are not affected by the erroneous admission of evidence ‘if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect.’”  Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Soloman v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)).  “In assessing the likelihood that the jury’s decision was adversely affected by the error, the appellate court should consider everything in the record including any testimony of physical evidence . . . , the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.”  Motilla, 78 S.W.3d at 355.

In this case, the weight of the evidence against appellant was overwhelming.  Ibarra and Urbina had time to observe appellant over a substantial period of time on the night of the murder and identified him both in a photo array and in court.  Appellant himself confirmed his address and relationship with his wife by telephoning the police within fifteen minutes after the detectives left his home to report that he was in Louisiana.  Through the use of his cell phone records and his statements to the police officers, the jury could reasonably have concluded that appellant lied about where he was on the night of the murder.  Additionally, appellant admitted to Adams that he committed the killing. When we consider the nature of any error in admitting hearsay in comparison to the other evidence in the case, the likelihood that the jury’s decision was adversely affected by the error is small.  Therefore, even if the trial court erred in admitting hearsay evidence over a running objection the error was harmless. 

We overrule appellant’s sixth issue.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his seventh issue, appellant contends that he received ineffective assistance of counsel because his counsel failed to cross examine his acquaintance Joseph Adams, who testified that while they were incarcerated together, appellant confessed to the crime and also sought to get tattoos to alter his appearance. 

To prevail on a claim of ineffective assistance of counsel, an appellant must show that his trial counsel’s performance was deficient and that a reasonable probability exists that, but for the deficiency, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984).  The first prong of the Strickland test requires that the defendant show that counsel’s performance fell below an objective standard of reasonableness.  Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). This does not require a showing that counsel’s representation was without error.  See Ex parte Duffy, 607 S.W.2d 507, 514 (Tex. Crim. App. 1980), overruled on other grounds, Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).  Isolated errors do not render counsel’s performance ineffective.  See McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on other grounds, Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).  The second prong requires the defendant to show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.  See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.  Because the reviewing court must, however, indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

Any allegation of ineffectiveness must be firmly founded in the record, which must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 813 (citing McFarland, 928 S.W.2d at 500).  We will not speculate to find trial counsel ineffective when the record is silent on counsel’s reasoning or strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).  In rare cases, however, the record can be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of counsel’s reasoning or strategy.  See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).  Such cases are limited to occasions where no reasonable attorney could have made such a decision.  Weaver v. State, 265 S.W.3d 523, 538 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

When an appellant does not file a motion for new trial asserting ineffective assistance of counsel that would have afforded trial counsel an opportunity to explain his strategy and no direct evidence in the record establishes why appellant’s attorney acted as he did, we presume that counsel had a plausible reason for his actions.  See Thompson, 9 S.W.3d at 814.  We review the record to determine whether this is one of those rare cases where no reasonable attorney could have made the decisions complained of in this appeal.  See id.

Appellant contends that his trial counsel was deficient for failing to cross examine Adams.  However, appellant has failed to show that counsel did not have a strategic or reasoned basis for not examining Adams.  Jackson, 877 S.W.2d at 771.  Appellant’s counsel cross-examined all of the State’s other witnesses with the exception of Dr. Chu, a medical examiner from Harris County.  We cannot speculate as to counsel’s reasoning and we cannot say that no reasonable attorney would have not cross-examined Adams.  Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1992) (stating that decision of whether to cross-examine and which questions to ask falls within parameters of trial strategy).

Moreover, even if we had found that counsel’s actions were deficient, appellant has not shown that but for his counsel’s decision not to cross-examine Adams the result of the trial would have been different.  Appellant merely argues that “[t]his failure to cross-examine a key State witness, particularly about his prior convictions, recall of events, and consideration received for his testimony is urged to be found to be ineffective assistance of counsel.”  However, appellant does not direct us to any information that could have come out during a cross-examination of Adams that would have changed the result of the trial.  Consequently, had we determined that trial counsel erred in failing to cross-examine Adams, we would have concluded that appellant failed to establish prejudice.  See Thompson, 9 S.W.3d at 807.

Therefore, we overrule appellant’s seventh issue.

CONCLUSION

We affirm the judgment of the trial court.

                                                                   Evelyn V. Keyes

                                                                   Justice

Panel consists of Justices Keyes, Hanks, and Higley.

Publish in part; do not publish.   Tex. R. App. P. 47.

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[1]               See Tex. Penal Code Ann. § 19.03(a) (Vernon 2003) (providing elements for capital murder).

[2]               On cross-examination, she testified that she also provided other identifying characteristics of appellant, such as a cleft chin and a pointed nose, that differed slightly from appellant’s actual physical appearance. 

[3]           Appellant also contends that the trial court erred in not ruling on his motion, but in its ruling the trial court specifically stated, “I am denying your request for the information.”

[4]               State’s Exhibit 53, which is a photograph of appellant when he was arrested, apparently shows no facial tattoos.  Detective Miller testified that, while appellant had a mark under his right eye, he did not have a tattoo there when he was photographed following his arrest.