Opinion
13-22-00372-CR
08-31-2023
ROBERTO HERNANDEZ JR., Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. Tex.R.App.P. 47.2 (b).
On appeal from the 36th District Court of Aransas County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
MEMORANDUM OPINION
NORA L. LONGORIA JUSTICE
Appellant Roberto Hernandez was found guilty by a jury for continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02(b). The jury sentenced Hernandez to life imprisonment. By one issue, Hernandez argues that his trial counsel was ineffective for failing to present two witnesses. We affirm.
I. Background
An amended indictment alleged that Hernandez, while he was seventeen years of age or older, committed two or more acts of sexual abuse against M.H., a child under the age of fourteen, over a thirty-day period or more between January 1, 2018 to December 1, 2019. The amended indictment further alleged that Hernandez committed the following predicate acts of sexual abuse:
We use initials to protect the names of complainants and minor children. See Salazar v. State, 562 S.W.3d 61, 63 n.1 (Tex. App.-Corpus Christi-Edinburg 2018, no pet.) (noting that the comment to Texas Rule of Appellate Procedure 9.8 does "not limit an appellate court's authority to disguise parties' identities in appropriate circumstances . . .").
• Indecency with a Child by Sexual Contact by touching the anus of M.H. with his hands or fingers;
• Indecency with a Child by Sexual Contact by touching the genitals of M.H. with his hands or fingers;
• Indecency with a Child by Sexual Contact by causing M.H. to touch his genitals;
• Aggravated Sexual Assault of a Child by penetrating the sexual organ of M.H. by his finger;
• Aggravated Sexual Assault of a Child by causing the mouth of M.H. to contact his sexual organ;
• Aggravated Sexual Assault of a Child by causing the anus of M.H. to contact his sexual organ;
• And Aggravated Sexual Assault of a Child by causing the sexual organ of M.H. to contact his sexual organ.
A. Guilt-Innocence Phase
M.H.'s younger sister, K.M., testified that she had observed Hernandez touch M.H.'s leg, rub on it, and grab it at their home in Corpus Christi. K.M. had seen this happen six times. K.M. also testified that she saw Hernandez pull up the bottom of M.H.'s shirt at "our Grandma Mary's house," referring to Hernandez's mother, who lived in Rockport. K.M. testified that she had seen this five times, that Hernandez would do this in front of her, and that she was four years old at the time. K.M. further testified that she would go to "Grandma Mary's" house because "Grandma Mary" would babysit her and M.H.; K.M. and M.H. lived in Corpus Christi at the time. K.M. testified that she told her mother that she no longer wished to go to her grandmother's house, but that M.H. had not told her mother this. When asked why she did not want to go to her grandmother's house, K.M. replied, "Because I would see [Hernandez] do it."
M.H. and K.M.'s mother, K.V., testified that M.H. was born in 2009, and that Hernandez was the brother of M.H.'s biological father. K.V. and Hernandez were previously in a relationship. K.V. testified that K.M. was born in 2011. According to K.V., Hernandez had moved in with her and her daughters in 2012. They all stayed at K.V.'s aunt's house in Pearland for eight months, where M.H. attended first or second grade. They next moved and lived in a trailer located in Alvin for about eight to nine months. According to K.V., the trailer suffered damage from Hurricane Harvey, so they moved to a duplex in Pearland and lived there for almost a year. They next moved to Rockport to live at K.V.'s mother and step-father's home around October 2017 for seven or eight months. Hernandez only lived at K.V.'s mother and step-father's home for three months when their relationship ended. K.V. and her daughters next moved into a trailer in Rockport, where they lived for thirteen to fifteen months, then subsequently moved to Corpus Christi and stayed there for about fifteen months.
K.V. testified that after she and Hernandez split up, Hernandez lived with his mother, Maria Wright, at Wright's house in Rockport. According to K.V., Wright would pick up M.H. and K.M. from school and be with them at Wright's home in Rockport, or Wright would take M.H. and K.M. to work. K.V. stated she typically picked up her daughters after work, between seven or eight p.m, at Wright's home, and that Hernandez would be at Wright's home during such times, unless he was at work. Hernandez eventually moved out of Wright's home and moved into a second-floor apartment in Rockport. Hernandez occassionaly picked up M.H. and K.M. to take them to the park or get them from Wright's house and take them to his apartment until K.V. got off work.
Towards the end of August 2020, K.V. was told by K.M. that something was going on with M.H. K.V. spoke to M.H. privately, and learned from M.H. that Hernandez had touched M.H.'s arm. A couple of weeks later, M.H. disclosed additional details. K.V. testified that M.H. had disclosed that Hernandez had "put his penis on [M.H.'s] butt cheeks," that it started in Alvin, and that it also happened at M.H.'s paternal grandmother's house in Rockport. M.H. also disclosed that "[Hernandez] tried to stick his private in her mouth," and that this occurred in Alvin. K.V. went to the police station the next day. K.V. testified that M.H. was later taken to the Children's Advocacy Center (CAC) in Corpus Christi for an interview, and then to Driscoll Hospital in Corpus Christi for an examination. K.V. stated that she allowed her daughters to see Hernandez after their relationship ended because they had a strong bond, and that her daughters had never told her they did not want to see him. However, K.V. testified that K.M. never expressed that she did not want to go with Hernandez "until the very end" because of what Hernandez was doing.
Penny Green, a forensic interviewer with the CAC, testified that she conducted a forensic interview with M.H. on September 21, 2020. According to Green, M.H. was in the fifth or sixth grade at the time. During the interview, M.H. disclosed that Hernandez made her touch his private part with both her hands and instructed her to play with his private part. M.H. stated that this occurred in Rockport when she was eight. M.H. also disclosed that Hernandez touched her genitals, which M.H. called her "front part," with his hand; M.H. could not remember how many times, but indicated it happened at her grandmother's house. M.H. further stated that Hernandez had rubbed his front part on her front part and had inserted his fingers inside of her front part, which M.H. stated made her feel uncomfortable and weird. Green testified that M.H. had indicated that she was age five or six when the incidents started and continued until she was eight or nine. According to Green, M.H. described Hernandez's penis as "like a bread stick" when he rubbed it on her back side. Green testified that "[M.H.] said on her back side or bottom . . . -she would feel warm liquid and then [Hernandez] would be done. . . [,] get up[,] and[ ]go to the bathroom or the kitchen to get toilet paper or napkins to clean himself."
Sonja Eddleman, director for the Child Abuse Resource and Evaluation Team at Driscoll Children's Hospital, sponsored a report detailing a sexual assault examination that M.H. underwent at Driscoll with a sexual assault nurse examiner, who did not testify. The report was admitted as evidence. Eddleman testified regarding statements made by M.H. that were recorded in the report:
The report indicates that the examination took place on September 23, 2020.
So, [M.H.] said, "It started three to four years ago when I was six or seven and happened a lot of times. I think I was in the third grade. I think my mom was on the couch. I was in my room and came out to get something to drink. [Hernandez] told me to go to my mom's room. He told me to get on the bed. I think I laid on my stomach. Then he pulled down my pants or shorts. He pulled down his shorts and underwear. Then he started putting his private parts, his front part,"-and she pointed to the genital region,-"on my
bottom[,"] and she pointed to her buttocks. "Then my sister went into my mom's restroom and she asked, [']What are you guys doing?['] We both said nothing. He told me not to say anything. Then he went outside to smoke a cigarette. I went outside with him. I got too hot and then I went inside."
And [M.H.] took a break and she said, "He did this and also put his mouth and tongue on the inside and outside of my front part," and she pointed to her female sexual organ, "and my butt hole and chest. Lots of times white stuff came out of his front part and landed on my bottom[,]" and again she pointed to her buttocks. "He also touched my private parts[,]" and she pointed to her female sexual organ, "with his fingers without my underwear, but not inside."
Then she said, "One month or so ago, I don't know, maybe longer, I was sleeping and I got up to get some water. He told me to go to my mom's room. He told me to lay down on the bed. Then he put his front part on my front part", and she pointed to her female sexual organ, "after he took my shorts and underwear off. It felt uncomfortable and then he stopped and then I got up to watch TV."
Then [M.H.] said, "Recently, he was touching my leg weird with his foot. My sister, [K.M.], told my friend, [G.P.]. [G.P.] said, 'If you don't tell your mom, I am', so we called my mom inside and told her and we started crying. This was, like, I don't know, ten months ago. Both my grandmothers found out and then we told my dad and he was very mad."The physical examination revealed no trauma to M.H.'s genitals, which Eddleman testified was consistent with what M.H. stated. Eddleman testified, "I wouldn't expect [M.H.] to have trauma given what [M.H.] told us that happened. I wouldn't think that [M.H. would] have any kind of injury, and if she had, time had passed and [the injury] would have already healed." Lab testing revealed M.H. had no sexually transmitted diseases.
Jeremy Patterson, an investigator with the Aransas County Sheriff's Office, testified that Hernandez's date of birth is November 8, 1979. Patterson also testified regarding school records he obtained in the course of his investigation of Hernandez, which were admitted as evidence. Patterson determined that the addresses that M.H. had lived in Pearland and Alvin were located within Brazoria County. He also testified that the addresses M.H. had lived in Rockport were located within Aransas County. Based on his investigation, Patterson testified that M.H. attended kindergarten and first grade in Aransas County; second grade in Pearland; third grade in Alvin; and fourth and fifth grade in Aransas County.
Patterson interviewed Hernandez on September 22, 2020. According to Patterson, Hernandez denied all the allegations, confirmed he had lived with M.H. in Pearland and Alvin, but did not confirm they "liv[ed] together in Rockport, Aransas County." In addition, Patterson also stated that Hernandez did not give a reason why M.H. would be making up her allegations, testifying that "[Hernandez] said he couldn't wrap his head around why [M.H.] was alleging . . .these offenses." Patterson also indicated that Hernandez had mentioned his mother, but did not suggest she be interviewed. Patterson confirmed that Hernandez's mother was not interviewed because it was never mentioned she witnessed the abuse or knew of the abuse during the alleged time period.
M.H. testified that she attended third grade in Alvin. M.H. indicated that she could not remember all the places she lived, but recalled she lived with Hernandez, her sister, and her mother, and that they had also lived in Pearland, then in Rockport. M.H. testified that she was in fourth and fifth grade when living in Rockport. According to M.H., Hernandez did something to make her feel uncomfortable starting in Alvin when she was in third grade. M.H. testified that the first thing she remembered was that Hernandez took her to her mother's room and touched her inappropriately. Hernandez had his underwear and shorts partially down, enough to show his private part. Hernandez took off her clothes and put his private part on her "bottom," which she clarified meant her "butt crack." M.H. stated she was laying down, face down, and that a liquid came out of Hernandez's private part in her bottom that felt cold and warm. M.H. testified that she did not know if her mother was at work or laying on the couch exhausted when this happened. M.H. stated that this happened in Alvin, Pearland, and Rockport, but she did not remember how many times.
M.H. further testified that Hernandez also told her to touch his private part with her hands after he had removed his cothes. M.H. stated she did so and would touch Hernandez's private part by moving her hands up and down. His private part looked like an oval. M.H. stated that this had occurred in Rockport in Hernandez's room at "Grandma Mary's" house and that her grandmother was at work at the time and her sister was asleep on the couch.
M.H. stated that when she says "front part," she means the part of her body that she pees out of. M.H. stated that Hernandez had touched her front part with his hands, that he would move his hands around, both over her clothes and skin-to-skin. When skin-to-skin, the touching was inside and outside her front part. M.H. stated that she did not remember how many times or where this occurred, but that Hernandez's clothes would be off at times, and that he used only one of his hands.
M.H. testified that she remembered telling "the lady" she talked to in Corpus Christi that Hernandez put his front part on her front part. M.H. testified that she meant that "[Hernandez's] tip would be against my private part," and that her clothes would be off. M.H. could not remember how many times this happened, or where. Hernandez would touch her leg, which made her uncomfortable. According to M.H., Hernandez would rub her ankle, then go up "little, by little," and that he did this once. Hernandez also would pull up M.H.'s shirt to her neck, but M.H. testified that she did not remember how many times or where this occurred. M.H. made an in-court identification of Hernandez.
The jury found Hernandez guilty of continuous sexual abuse of a young child.
B. Punishment Phase
During the punishment phase, the State presented four witnesses: Patterson, K.V., K.M., and M.H. Patterson testified that Hernandez had a previous felony conviction for attempted murder while in the course of committing robbery, and that Hernandez had pleaded guilty and was sentenced to 15 years' imprisonment for that offense.
Hernandez presented two witnesses in his defense: his mother Wright and himself. Wright testified that she observed M.H. and K.M. act normal towards Hernandez, that they did not seem afraid of him, and that they wanted to spend time with him. According to Wright, she observed "no change at all" from the way M.H. and K.M. acted towards Hernandez after they moved back from Pearland and Alvin. Wright further testified that she was present with M.H. and K.M. whenever Hernandez was with them and that M.H. and K.M. did not express to her that they did not want to be near Hernandez. Wright stated that there were no visible signs or warnings that Hernandez was molesting M.H.
During Hernandez's testimony, the following exchange occurred:
[Defense counsel]: Okay. I want you to look at the jury and tell them, did they make the right decision in this case?
[Hernandez]: No, they did not.
[Defense counsel]: Did you do this?
[Hernandez]: No, I did not.
. . . .
[Defense counsel]: Did you commit the other offense that you pleaded guilty to?
[Hernandez]: No. I was [an] accessory to a crime. And the only reason why I pleaded guilty . . . to that crime, back in '99 was because my lawyer promised me five years, that I'd be out with my two-month-old son and end up doing seven-and-a-half just to seek parole and end up doing . . . 13 out of the 15 years. I got out in 2012, November 16th.
[Defense counsel]: Okay. So, you're not guilty of the crime that the jury convicted you of?
[Hernandez]: No, sir.
On cross-examination, the following exchanged occurred:
[The State]: So, you plead[ed] to 15 years for being in the back seat of a vehicle?
[Hernandez]: Yes, ma'am.
[The State]: And you did 13 of the 15 years for being in the back seat of a vehicle?
[Hernandez]: I was drunk. We were intoxicated when that happened.
[The State]: Okay. My initial question, though-my initial question was you did 13 of 15 years for just being in the back seat of a vehicle?
[Hernandez]: Yes, ma'am.
. . . .
[The State]: Did you ever put your hand near [M.H.]'s ankle and drag your hand up her leg?
[Hernandez]: No, ma'am.
[The State]: Did you ever pull up her shirt?
[Hernandez]: No.
[The State]: Did you ever put the tip of your penis against her
genitals?
[Hernandez]: No, ma'am.
[The State]: Did you ever tell [M.H.] to rub your penis with her hands?
[Hernandez]: No, ma'am.
[The State]: Did you ever put your penis on her anus?
[Hernandez]: No, ma'am.
[The State]: Did you ever put your fingers inside of her?
[Hernandez]: No, ma'am.
[The State]: So, you're denying everything to this jury under oath, correct?
[Hernandez]: Yes, ma'am.
[The State]: And you're taking responsibility for none of it, correct?
[Hernandez]: Yes, because I didn't do it.
[The State]: Okay.
During closing arguments, the State asked the jury to assess a life sentence. In response, defense counsel stated the following:
This is a very difficult case for me. I believe [Hernandez] is not guilty of this offense and I had decisions to make in this case and primarily the decision that I had to make was whether or not to put him on the witness stand during the [g]uilt and [i]nnocence [p]hase in this trial. Because my concern was that if I put him on the witness stand, your verdict on [g]uilt-[i]nnocence may be tainted by his prior conviction and so that's a decision that I had to make and I made the decision not to put him on and I probably should have put him on. I'll tell you that the reason that his mom came in to testify today is because the reaction that [M.H.] had and that [K.M.] had today in court and yesterday would never have manifested itself while they were with her or while they were with [Hernandez]. They always wanted to see him. They had fun with him and so she came to testify. None of this stuff that y'all saw
today manifested itself until after she became the victim, after she got into the system and learned how to become a victim.
I am asking you not to compound the problem, that it's partly my fault in this case by not putting him on. I'm asking you not to compound the problem. He's 42 years old. If he gets the minimum sentence in this case, he'll be 67 without parole before he gets out. There's no reason to give him a life sentence in this case. I still maintain his innocence. I don't believe he did it[,] and I certainly don't want you to compound the problem by giving him any higher than the minimum sentence which is 25 years. Thank you.
After the State provided its rebuttal closing argument, the jury deliberated and then sentenced Hernandez to life imprisonment. This appeal followed.
II. Ineffective Assistance
In his sole issue, Hernandez claims his trial counsel was ineffective for failing to call him or his mother as a witness during the guilt-innocence phase of his trial.
A. Standard of Review & Applicable Law
Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 668 (1984). The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel's representation but will judge the claim based on the totality of the representation. Strickland, 466 U.S. at 695.
In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. Id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. Id. Appellant cannot meet this burden if the record does not affirmatively support the claim. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd).
Before being condemned as unprofessional and incompetent, defense counsel should be given an opportunity to explain his or her actions. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance claim usually must be denied as speculative, and, further, such a claim cannot be built upon retrospective speculation. Id. at 835.
The second Strictland prong requires the appellant affirmatively prove prejudice from the deficient performance of his attorney. Strickland, 466 U.S. at 687; see Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.-Texarkana 2000, pet. ref'd). The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Burruss, 20 S.W.3d at 186. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney's errors, the jury would have had a reasonable doubt about his guilt or that the extent of his punishment would have been less. Id.; see Bone, 77 S.W.3d at 837.
An ineffective-assistance claim must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Direct appeal is usually an inadequate vehicle for raising an ineffective-assistance-of-counsel claim because the record is generally undeveloped. Menefield, 363 S.W.3d at 592-93; Thompson, 9 S.W.3d at 813- 14. Ineffective assistance claims are usually best addressed by a postconviction writ of habeas corpus. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); see Thompson, 9 S.W.3d at 814 & n.6; Ex parte Torres, 943 S.W.2d 469, 475-76 (Tex. Crim. App. 1997).
"[A]n appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In addition, a defendant cannot claim that his trial counsel provided ineffective assistance of counsel by failing to call witnesses unless the defendant can show that the witnesses were available and that their testimony would have benefitted the defendant. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App.1983); Brennan v. State, 334 S.W.3d 64, 79 (Tex. App-Dallas 2009, no pet.); Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.- Tyler 1996, pet. ref'd).
B. Discussion
1. Failure to Call Hernandez as a Witness During Guilt-Innocence Phase
Hernandez argues that his trial counsel was ineffective for failing to call him as a witness during the guilt-innocence phase of trial. In his brief, Hernandez argues that he "vehemently denied he was the responsible party and that he only ple[a]d[ed] guilty in 1999 because he believed he would receive a light sentence on a first[-]degree attempted murder charge." Hernandez maintains in his brief that had he testified during the guilt-innocence phase of his trial, "the record clearly shows he would have taken the same position, that his prior conviction was misconstrued against him under the Texas law of parties."
Even assuming Hernandez would have testified consistently in the guilt-innocence phase as he had in the punishment phase, we conclude that his trial counsel's performance was not deficient. See Strickland, 466 U.S. at 688. The record shows that Hernandez testified during the punishment phase of his trial that he did not commit the offense that he was charged with in this case. This testimony would have been merely cumulative of testimony already in the record during the guilt-innocence phase of his trial as Patterson testified that Hernandez denied all allegations raised by M.H. during his interview. In light of Patterson's testimony, Hernandez has not demonstrated that any testimony uttered by him regarding his denial of M.H.'s allegations would have been of any added benefit to his case. See King, 649 S.W.2d at 44; Brennan, 334 S.W.3d at 79; Tutt, 940 S.W.2d at 121.
Hernandez also testified during the punishment phase that he did not commit the offense he pleaded guilty to in 1999, and that he was merely an "accessory to [the] crime," and he agreed with the State's characterization that he "plead[ed] to 15 years for being in the back seat of a vehicle." Hernandez does not explain how his case for innocence of the charged offense would have benefitted from this testimony in light of the fact that the jury was not presented evidence of his prior conviction during the guilt-innocence phase. See King, 649 S.W.2d at 44; Brennan, 334 S.W.3d at 79; Tutt, 940 S.W.2d at 121.
Moreover, the decision to call a witness is generally a matter of trial strategy. Carter v. State, 506 S.W.3d 529, 541 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd); Joseph v. State, 367 S.W.3d 741, 744 (Tex. App.-Houston [14th Dist.] 2012, pet. ref'd). Trial counsel's decision not to call Hernandez as a witness was "a strategic choice that involved weighing the risks and benefits of his testimony." Prine v. State, 537 S.W.3d 113, 118 (Tex. Crim. App. 2017). During closing arguments, Hernandez's trial counsel stated that he "probably should have put [Hernandez] on" the witness stand during the guilt-innocence phase. However, within the same breath, trial counsel also stated his reasons for not doing so: "[M]y concern was that if I put him on the witness stand, your verdict on g]uilt-[i]nnocence may be tainted by his prior conviction." Thus, the record indicates that trial counsel's action in not presenting Hernandez to testify during the guilt-innocence phase was reasonably professional and motivated by sound trial strategy. See Prine, 537 S.W.3d at 118; Carter, 506 S.W.3d at 541; Joseph, 367 S.W.3d at 744. The fact that counsel later apparently regretted his decision does not mean that the decision was unreasonable at the time. We conclude that Hernandez has not demonstrated that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms for failing to present him as a witness during the guilt-innocence phase of his trial. See Strickland, 466 U.S. at 688. We overrule this sub-issue.
2. Failure to Call Wright as a Witness During Guilt-Innocence Phase
Hernandez argues that his trial counsel was ineffective for failing to call Wright, his mother, as a witness during the guilt-innocence phase of this trial.
The record is devoid of any evidence that Wright was available to testify during the guilt-innocence phase. See King, 649 S.W.2d at 44; Brennan, 334 S.W.3d at 79; Tutt, 940 S.W.2d at 121. Even assuming Wright would have testified at the guilt-innocence phase in the same manner she testified in the punishment phase, we conclude that Hernandez has not shown his trial counsel was deficient or that he suffered prejudice. See Strickland, 466 U.S. at 687-688; see also Hernandez, 988 S.W.2d at 772; Burruss, 20 S.W.3d at 186.
Unlike the previous sub-issue, we have no evidence of trial counsel's strategy as to why he chose not to call Wright as a witness during the guilt-innocence phase. Thus, the record is silent as to the reasons underlying trial counsel's decision. But it is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record or when counsel's reasons for failing to do something do not appear in the record. See Menefield, 363 S.W.3d at 593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel "should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Menefield, 363 S.W.3d at 593; see also Bone, 77 S.W.3d at 836. If trial counsel is not given that opportunity, we should not conclude that counsel's performance was deficient unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Hernandez argues that Wright's testimony "would certainly have been beneficial to the defense as it would have supported counsel's argument that these things did not occur in Aransas County, Texas." We disagree. During the guilt-innocence phase, M.H. testified to various acts of sexual abuse she endured by Hernandez that took place in Alvin, Pearland, and Rockport. M.H.'s testimony was expanded by and consistent with testimony from Patterson, Eddleman, Green, K.M., and K.V. In particular, M.H. testified that some acts of sexual abuse occurred in Rockport at Wright's house, and that Wright was at work at the time. During the punishment phase, Wright testified that she was present with M.H. and K.M. whenever Hernandez was with them and that M.H. and K.M. did not express to her that they did not want to be near Hernandez. Wright also testified that she did not observe any physical signs or warnings that Hernandez was sexually abusing M.H.
As we noted above, the decision to call a witness is generally a matter of trial strategy. Carter, 506 S.W.3d at 541; Joseph, 367 S.W.3d at 744. While we acknowledge that the nature of Wright's testimony could raise questions for a jury regarding the credibility of some of M.H.'s testimony regarding acts of sexual abuse that occurred at Wright's home in Rockport, we are also mindful that Wright did not testify that M.H.'s allegations were false or made up. We cannot conclude that Wright's testimony directly refutes M.H.'s testimony regarding acts of sexual abuse she endured at Wright's home in Rockport, Aransas County. Likewise, we conclude that Wright's testimony does not directly refute M.H.'s testimony regarding acts of sexual abuse that occurred elsewhere. For these reasons, we cannot conclude that the challenged conduct was "so outrageous that no competent attorney would have engaged in it." See Menefield, 363 S.W.3d at 593.
Hernandez also argues that Wright's testimony "could affect the outcome of the case if the jury did not find the acts alleged in Aransas County, Texas, to have occurred." Even assuming Hernandez's trial counsel was deficient, on this record, Hernandez's arguments on appeal are merely speculative regarding the effect Wright's testimony may have had on the jury. It is not enough for Hernandez to show that trial counsel's alleged error had some conceivable effect on the outcome of the proceedings. See Burruss, 20 S.W.3d at 186. Hernandez has not shown a reasonable probability that, but for his trial counsel's alleged error in failing to call Wright as a witness during the guilt-innocence phase of his trial, the jury would have had a reasonable doubt about his guilt. See id.
We also observe that Wright's testimony did not prove to be beneficial for purposes of mitigation during the punishment phase as the jury sentenced Hernandez to the maximum sentence of life imprisonment.
We overrule this sub-issue.
III. Conclusion
We affirm the judgment of the trial court.