Opinion
No. 05-06-00597-CR
Opinion Filed February 19, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-24673-PW.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
OPINION
Martin Alpide Luna pleaded guilty to, and was convicted of, aggravated sexual assault of a child under the age of fourteen. He was sentenced to seven years in prison. In two issues, he argues that the trial court erred in refusing to allow him to introduce a videotape into evidence and that he received ineffective assistance of counsel. We affirm the trial court's judgment.
discussion
Videotape In his first issue, appellant argues that the trial court erred by refusing to allow him to introduce a videotape. According to appellant, the videotape shows appellant and the victim together at a party and contradicts the victim's testimony that she was afraid of him. More specifically, appellant alleges that[t]he tape in question was a videotape of a New Year's Eve party, taken some time after the appellant was said to have sexually assaulted the alleged victim. The tape shows the alleged victim hugging the appellant with a smile on her face, wishing him a Happy New Year.However, the actual videotape, which the trial court watched during a lunch recess prior to ruling on the State's motion in limine, is not in the record. The record shows that, after the State rested its case-in-chief, a hearing was held outside the presence of the jury. The transcript reads as follows:
THE COURT: On the record, outside the presence of the jury.
It is my understanding the State is requesting a motion in limine to the tape that was shown during the lunch break, and the Court is granting the motion in limine until I determine whether or not it ought to come in.
Right now, I'm denying your motion to allow — well, I'm denying your proffer of it.
[DEFENSE COUNSEL]: I understand. But, your Honor, are you saying that I may attempt to lay predicate for a tape?
THE COURT: No. You can't even talk about the tape until — now, you've already gotten into the fact that there was a party issue [that] was there, she's comfortable, and I think you've got into that, so to the extent you've gotten into that, you can talk about that but not talk about the tape.Based on the record before us, the only ruling by the trial court concerning the videotape was the granting of the State's motion in limine. Generally, a motion in limine, whether granted or denied, preserves nothing for review. Griggs v. State, 213 S.W.3d 923, 926 n. 1 (Tex.Crim.App. 2007). To preserve error regarding the exclusion of evidence, the complaining party must make an "offer of proof" conveying the substance of the proffered evidence. See Tex. R. Evid. 103(a)(2); Roberts v. State, 220 S.W.3d 521, 532 (Tex.Crim.App. 2007). In this case, however, the hearing quoted above was the only time during which the admission of the videotape was discussed. Appellant asked witnesses about the videotape but never made an offer of proof or bill of exception. He also failed to offer the videotape for record purposes during the hearing on the State's motion in limine. As a result, we have no basis for reviewing appellant's contention that the trial court erred in determining the videotape was inadmissible. See Amador v. State, 221 S.W.3d 666, 675 (Tex.Crim.App. 2007) ("reviewing courts cannot 'assume' or speculate about the contents of exhibits or other materials that are not contained in the appellate record."). Accordingly, appellant has failed to preserve his argument for appellate review. We overrule appellant's first issue. Ineffective Assistance of Counsel In his second issue, appellant claims his trial counsel was ineffective for failing "to obtain a specific ruling on the admissibility of the videotape in question." We examine ineffective assistance of counsel claims under well-known standards. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. at 813. Allegations of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Id. In this case, the record provides no explanation for counsel's actions. Appellant filed a motion for new trial but did not argue that counsel was ineffective. The court of criminal appeals has noted that, generally, the record on direct appeal will not be sufficient to show that trial counsel's representation was so lacking as to overcome the presumption that counsel's conduct was reasonable. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). In addition, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111. This case is no different. Therefore, based upon the totality of this record, we cannot conclude appellant has established that trial counsel's performance fell below an objective standard of reasonableness and, thereby, has satisfied the first prong of Strickland. Moreover, even if counsel's performance was deficient, appellant has not shown how the admission of the videotape would have affected the outcome of the trial. In fact, as noted previously, the videotape is not even before this Court. See Bone, 77 S.W.3d at 834 n. 21 ("[s]peculation about what other evidence might or might not have been available is precisely why ineffective assistance of counsel claims should rarely be brought on direct appeal."). We also note that the record shows that defense counsel was able to question witnesses regarding the victim's demeanor toward appellant during the New Year's Eve party. We therefore conclude appellant has failed to meet his burden of proving counsel was deficient or that, if he was, the outcome of his trial would have been different. We overrule appellant's second issue. We affirm the trial court's judgment.