Opinion
01-21-00462-CR
05-09-2023
CHARLES LEE STONEHAM, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1629018
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
MEMORANDUM OPINION
Gordon Goodman Justice.
Charles Lee Stoneham was convicted for the offense of aggravated assault with a deadly weapon. He appeals his conviction in four issues based on ineffective assistance of counsel. For the reasons discussed below, we affirm the trial court's judgment.
BACKGROUND
The undisputed evidence presented at trial established that on April 22, 2019, Stoneham and his neighbor, Patrick Borders, argued with each other in front of Stoneham's house, and the argument escalated until Stoneham asked his wife to get his gun from the house. She complied and gave Stoneham the gun. Stoneham held the gun while continuing to argue with Borders. Another neighbor called 911, and several deputy sheriffs arrived at the scene. One deputy sheriff, Deputy Cortez, asked to view the Stonehams' surveillance footage of the incident. He pointed his body camera toward the footage as he was watching it and described what he saw. Several days later, Stoneham was charged with aggravated assault by threat with a deadly weapon.
Stoneham pleaded not guilty, and the offense was tried to a jury. At trial, the jury heard testimony from Deputy Cortez, Borders, another neighbor who saw the incident, Stoneham, Stoneham's wife, and two other deputy sheriffs who had been called to the Stonehams' house over prior incidents between Borders and Stoneham. The jury also viewed Deputy Cortez's body-camera video with his description of events.
Borders and the other neighbor testified that Borders was walking his three pit bulls down the street in front of the Stonehams' house when Stoneham came out of the house and started arguing with Borders. The argument escalated until Stoneham told his wife to get his gun, and she complied with the request. Both Borders and the other neighbor testified that Stoneham pointed the gun at Borders.
However, Stoneham and his wife gave a different version of events. They said that Borders had come into their yard many times to harass Stoneham and yell racial slurs at him, and Borders and his dogs had attacked Stoneham multiple times in the past. On the day in question, they both saw Borders walking his dogs in their yard by the mailbox, and Stoneham came out of his house to tell Borders to keep off their yard. Borders argued with Stoneham, and the argument escalated until Borders unleashed his dogs, which the Stonehams viewed as threatening because the dogs had attacked Stoneham in the past. Stoneham asked his wife to get his gun from the house at that point, and she complied with the request, and although Stoneham admitted to holding the gun while arguing with Borders, he denied ever pointing it at Borders.
Deputy Cortez testified and described his body-camera video to the jury. He explained that in the video, he saw Borders walking along the street, then Stoneham came out of his house and confronted Borders. "And at that point," Deputy Cortez explained, "is when Mr. Stoneham retrieves the gun from his wife and it appears he raises his arm up, which looks like a gesture of pointing a gun at him."
The jury found Stoneham guilty as charged. After hearing the jury's verdict, Stoneham elected to have the trial court sentence him instead of the jury. The trial court sentenced Stoneham to two years' confinement in the Texas Department of Criminal Justice-Institutional Division.
DISCUSSION
On appeal, Stoneham argues his trial counsel committed multiple errors that resulted in constitutionally ineffective assistance of counsel.
Ineffective Assistance of Counsel
Both the federal and Texas constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). We follow the Strickland two-pronged test to determine whether counsel's representation was so inadequate as to deny a defendant's right to assistance of counsel. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish ineffective assistance of counsel, a defendant must show: (1) counsel's performance was so deficient it fell below an objective standard of reasonableness; and (2) the defendant was prejudiced by the deficiency-meaning there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The defendant bears the burden of proving both prongs of the Strickland test by a preponderance of the evidence. Id. at 813; Guzman v. State, 539 S.W.3d 394, 406 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd).
Our review is "highly deferential" to trial counsel. Thompson, 9 S.W.3d at 813. We indulge in a "strong presumption" that counsel's conduct fell within the "wide range of reasonable assistance" and that the complained-of action or omission might be considered "sound trial strategy." Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) (quoting Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004)). We look to the "totality of the representation" and evaluate the "particular circumstances of each case." Thompson, 9 S.W.3d at 813. Allegations of ineffectiveness must be "firmly founded in the record," and the record must "affirmatively demonstrate" the ineffectiveness. Id. Although an appellant may claim ineffective assistance of counsel for the first time on direct appeal, the record on direct appeal is usually undeveloped and rarely sufficient to overcome the presumption that counsel's conduct was reasonable and professional. Id. at 813-14; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When, as here, the record does not reveal the reasons for trial counsel's actions, we will "assume a strategic motivation if any can possibly be imagined." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (quoting 3 W. LaFave, et al., Criminal Procedure § 11.10(c) (2d ed. 1999)). Trial counsel should generally have an opportunity to explain his or her actions before we find the performance deficient. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without that opportunity, we should not find trial counsel's performance deficient "unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Garcia, 57 S.W.3d at 440).
A. Eligibility for Community Supervision
Stoneham first argues that his trial counsel failed in several ways to allow him to receive a sentence of community supervision instead of confinement. He argues that his trial counsel: (1) filed several defective motions for community supervision; (2) either did not know or did not advise Stoneham that if he elected to be sentenced by the judge instead of the jury, he would not be eligible for community supervision; and (3) failed to take certain required steps during trial to establish Stoneham's eligibility for community supervision. Stoneham argues that, but for his counsel's errors, he might have received community supervision.
A jury may recommend that a judge suspend the imposition of a sentence of confinement and instead place the defendant on community supervision. Tex. Code Crim. Proc. art. 42A.055(a). A defendant is only eligible for jury-recommended community supervision if the defendant files a written, sworn motion before trial begins stating the defendant has not previously been convicted of a felony and the jury enters a finding that the information in the motion is true. Id. art. 42A.055(b). Thus, the issue of submitting community supervision to the jury "must stand on both legs: a sworn motion, and record evidence to support the defendant's eligibility." Beyince v. State, 954 S.W.2d 878, 880 (Tex. App.-Houston [14th Dist] 1997, no pet.). Because Stoneham was convicted of using or exhibiting a deadly weapon during the commission of a felony offense, he was not eligible for judge-ordered community supervision. See Tex. Code Crim. Proc. art. 42A.054(b); see also id. art. 42A.053.
Stoneham argues his trial counsel was ineffective for both failing to properly file a motion for community supervision and failing to present evidence that he was eligible for community supervision. Here, the record shows that Stoneham's trial counsel filed three motions for community supervision, each defective in some way: (1) the first motion, filed before trial, bears no indication that it was sworn by Stoneham and states Stoneham had previously been convicted of a felony, which would have made him ineligible to receive community supervision; (2) the second motion, filed after trial, bears no indication that it was sworn by Stoneham; and (3) the third motion, filed after trial, is signed by Stoneham but also states Stoneham had previously been convicted of a felony, which would have made him ineligible to receive community supervision. See id. art. 42A.055(b) (defendant's motion for community supervision must be sworn and filed before trial). The record does not indicate whether the trial court denied the motions based on these defects. At voir dire, the trial court told the potential jurors, "The defendant either has filed or will file an application for community supervision," and discussed at length the meaning of and procedures relating to community supervision. Yet the jury charge included no instruction on recommending community supervision, and trial counsel presented no evidence regarding Stoneham's eligibility for community supervision. The record does not disclose why.
We agree with Stoneham that the motions for community supervision were defective and that, if he was eligible for community supervision, trial counsel should have introduced evidence establishing his eligibility. But without sworn evidence in the record establishing he was eligible for community supervision, there is no basis for us to conclude his trial counsel was ineffective in failing to request community supervision. See Beyince, 954 S.W.2d at 880 (without evidence in record establishing defendant was eligible for community supervision, defendant could not prove on appeal counsel was ineffective for failing to file motion for community supervision); see also Thompson, 9 S.W.3d at 813 (record must affirmatively demonstrate alleged ineffectiveness).
We recognize the unfortunate circular logic here: Stoneham alleges his trial counsel was deficient for failing to introduce evidence that he was eligible for community supervision, yet without evidence that he was eligible for community supervision, we cannot find his trial counsel ineffective on that basis. This is why we note that often the record on direct appeal is inadequate to determine the merits of an ineffective assistance of counsel claim. See Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14; see also Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam) (noting that for most ineffective assistance claims, record on direct appeal is simply undeveloped and not adequate to demonstrate counsel's failings, possibly because of counsel's alleged ineffectiveness); DeLeon v. State, 322 S.W.3d 375, 381 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd) ("A proper record is best developed in a habeas corpus proceeding or in a motion for new trial hearing.").
But there is some evidence in the record that Stoneham had a prior felony conviction and would have been ineligible for community supervision, regardless of whether the judge or jury sentenced him. In his motion to testify free of impeachment, Stoneham moved the trial court to instruct the prosecutor to refrain from referencing his prior felony conviction for theft.
On appeal, Stoneham asks that we take judicial notice of the clerk's file for that prior felony theft conviction, which indicates that Stoneham was placed on community supervision-then called probation-and granted early termination; he was permitted to withdraw his guilty plea, and the trial court dismissed the indictment and set aside the conviction. Stoneham argues that because the judgment was set aside, he does not have a prior felony conviction.
Before September 1, 1993, community supervision was called probation. Yazdchi v. State, 428 S.W.3d 831, 833 n.1 (Tex. Crim. App. 2014).
First, we may not take judicial notice of the records in another case that have not been properly admitted into evidence in the trial court, even if the records are attached to the defendant's brief. Elwell v. State, 872 S.W.2d 797, 799 (Tex. App.- Dallas 1994, pet. ref'd); see also Fletcher v. State, 214 S.W.3d 5, 7 (Tex. Crim. App. 2007) ("[T]he general rule is that an appellate court cannot go to the record of another case for the purpose of considering testimony found there but not shown in the record case before it." (quoting Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987))).
Second, these facts, even if they were supported by the appellate record, would not establish that Stoneham was eligible for community supervision because Article 42A.701 of the Code of Criminal Procedure creates an exception to the general rule that a defendant who successfully completes probation is treated as if there was no conviction. A defendant who successfully completes probation and is permitted to withdraw his guilty plea "is released from all penalties and disabilities resulting from the offense . . . except that . . . proof of the conviction or plea of guilty shall be made known to the judge if the defendant is convicted of any subsequent offense." Tex. Code Crim. Proc. art. 42A.701(f). According to the plain language of the statute, even though a defendant receives judicial-clemency discharge on an earlier probation, the conviction is "resurrected for the limited purpose of probation ineligibility" on conviction of another offense. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). If Stoneham had a prior felony conviction, and the record indicates he did, then even if it was discharged at some point, he would still be ineligible for community supervision for the offense in this case.
The record does not disclose whether Stoneham's trial counsel advised him regarding his election to switch from jury sentencing to judge sentencing, much less whether she erroneously advised him. Cf. Ex parte Canedo, 818 S.W.2d 814, 815 (Tex. Crim. App. 1991) (finding ineffective assistance, in habeas proceeding, where trial counsel filed affidavit explaining he erroneously advised defendant that defendant would be eligible for probation if sentenced by judge); Freeman v. State, 94 S.W.3d 827, 831 (Tex. App.-Texarkana 2002, no pet.) (finding ineffective assistance where defendant pleaded guilty based on trial counsel's erroneous advice he was eligible for community supervision and record showed trial counsel repeatedly and erroneously referred to defendant's eligibility for community supervision). This record is lacking the proof necessary to overcome the strong presumption of reasonable and professional assistance of counsel, as is often the case in direct appeals. See Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14.
Although Stoneham's trial counsel appears to have filed defective motions for community supervision and failed to present evidence establishing his eligibility, there is at least some evidence in the record that Stoneham would not have been eligible for community supervision anyway. Therefore, Stoneham has not proved the prejudice prong of the Strickland test by a preponderance of the evidence because has not shown a reasonable probability that the result of the proceeding would have been different if his trial counsel had properly filed a motion for community supervision or presented evidence to establish his eligibility for community supervision. See Thompson, 9 S.W.3d at 812. The record is too undeveloped to determine whether his trial counsel erroneously advised him about the consequences of switching from sentencing by the jury to sentencing by the judge. See id. at 813- 14; Bone, 77 S.W.3d at 833.
Stoneham's first issue is overruled.
B. Failing to Object to or Introduce Evidence
Stoneham's next issue contains two parts: he argues his trial counsel failed to object to critical hearsay evidence and failed to introduce potentially helpful evidence.
For the first part of this issue, when a defendant alleges that his trial counsel was deficient in failing to object to the admission of evidence, the defendant must show: (1) the evidence was inadmissible; and (2) the objection would have been granted. Lesso v. State, 295 S.W.3d 16, 21 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd).
Stoneham argues that Deputy Cortez's body-camera video, in which he watched surveillance footage of the incident between Stoneham and Borders and narrated what he saw as he watched, was inadmissible hearsay. Thus, his trial counsel should have objected to its admission.
Hearsay is a statement made out of court that is offered to prove the truth of the matter asserted in the statement, and it is generally not admissible evidence. Tex. R. Evid. 801(d), 802. Certain public records may be admitted as an exception to the hearsay rule, but records setting out a matter observed by law-enforcement personnel are not admissible in a criminal case. Tex. R. Evid. 803(8)(A)(ii). Thus, offense reports-"those resulting from the . . . subjective endeavor of investigating a crime and evaluating the results of the investigation"-are not admissible. Cole v. State, 839 S.W.2d 798, 803 (Tex. Crim. App. 1990) (quoting United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985)); Fischer v. State, 252 S.W.3d 375, 384 n.37 (Tex. Crim. App. 2008) (noting "an offense report, in any form, is not admissible under the hearsay rule"). Likewise, speaking offense reports, like "factual observations, opinions, and narrations," by law-enforcement personnel investigating a potential crime are not admissible because of the "inherently adversarial nature" of the investigation of a suspect. Fischer, 252 S.W.3d at 382-83, 385. The Court of Criminal Appeals in Fischer held inadmissible a DPS trooper's dashboard-camera video of a traffic stop in which he repeatedly returned to his car to record his narrated observations of the suspect. Id. at 376-77, 387. "[M]ost of the statements made by [the DPS trooper] on the videotape constituted a calculated narrative in an adversarial, investigative setting . . . [that was] brimming with the potential for exaggeration or misstatement." Id. at 836. Deputy Cortez's body-camera video in this case, in which he recorded his observations of the security footage, was similarly a "speaking offense report," and therefore inadmissible hearsay that, if objected to, should not have been admitted.
The record does not reveal trial counsel's reasons for not objecting to the body-camera video. In fact, she introduced another portion of the video into evidence. There is some evidence, then, that trial counsel did not object to the video's admission because she intended to use the video herself. "Plausible professional reasons exist for not objecting to hearsay." Darkins v. State, 430 S.W.3d 559, 571 (Tex. App.-Houston [14th Dist] 2014, pet. ref d). "[A]dvocates must be free to choose not to make [objections] even if they have a legal basis for doing so. . . . [J]urors often see lawyers who make [objections] as 'trying to keep the real truth from them. '" McKinny v. State, 76 S.W.3d 463, 473 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (en banc) (quoting Thomas A. Mauet, Trial Techniques, 465 (5th ed. 2000)). In the absence of direct evidence of trial counsel's motivations, we must presume this was a sound trial strategy. Ex parte Jimenez, 364 S.W.3d at 883. At any rate, it is not "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440).
Even if trial counsel's failure to object to the body-camera video as hearsay were constitutionally deficient, Stoneham would not be able to prove the second prong of the Strickland test, prejudice, because he cannot prove there is a reasonable probability that without the video, the result of the proceeding would have been different. See Thompson, 9 S.W.3d at 812.
Stoneham was charged with aggravated assault by threat with a deadly weapon. See Tex. Penal Code § 22.02(a)(2); see also id. § 22.01. He asserts the body-camera video bolstered Borders's testimony about Stoneham's use of the gun because the video, and testimony about it, confirmed and emphasized that Stoneham appeared to raise his arm while holding the gun, which looked like he was pointing the gun at Borders. But the jury did not need to hear that Stoneham pointed the gun at Borders to find Stoneham used or exhibited a deadly weapon. Exhibiting a deadly weapon means "the weapon [i]s consciously shown or displayed during the commission of the offense." Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). Stoneham admitted that he held the gun, pointing toward the ground, while he argued with Borders. Even without evidence that Stoneham pointed the gun, the jury could have found Stoneham exhibited a deadly weapon based on his own testimony. Therefore, Stoneham cannot prove the prejudice prong of the Strickland test based on his trial counsel's failure to object to the body-camera video.
For the second part of this issue, Stoneham argues his trial counsel failed to introduce potentially helpful evidence from law-enforcement personnel about the prior aggressive interactions between Borders and himself, and he argues the trial court erred in not admitting the evidence. The State objected to the evidence under Texas Rule of Evidence 404(b)-evidence of crimes, wrongs, or other acts to prove a person's character-and the trial court sustained the objection. See Tex. R. Evid. 404(b) ("Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.").
We review a trial court's evidentiary ruling for abuse of discretion. See Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). As long as the trial court's ruling is within the "zone of reasonable disagreement," there is no abuse of discretion, and we will uphold the ruling. Id. On these facts, we cannot say the trial court abused its discretion in refusing to allow testimony from law enforcement regarding the prior interactions between Borders and Stoneham; this kind of testimony fits squarely within Rule 404(b)'s scope. See Tex. R. Evid. 404(b). Because the trial court determined the evidence was not admissible, Stoneham's trial counsel's failure to introduce the evidence did not fall below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812.
And, at any rate, Stoneham has not proven that he was prejudiced by the failure to introduce the evidence because the jury heard testimony about the prior interactions between Borders and Stoneham; both Stoneham and his wife described them. Mrs. Stoneham testified that the first time she saw Borders, he was crawling through their yard, and when her husband confronted him, Borders threw something at him. She testified that despite calling the police on multiple occasions, Borders continued to return to their property and try to initiate a fight by using threats and racial slurs. She also testified that Borders's dogs had attacked her husband in the past. Stoneham also testified that Borders's dogs had attacked him before: Borders "dropped the leash" and the dogs attacked. On another occasion, Stoneham testified he was washing his car when Borders and his dogs walked into his yard and attacked him. He testified that he and Borders had at least four physical altercations and that Borders "got the best of [him] a couple of times."
Two deputy sheriffs also testified about prior incidents for which they were called to the Stonehams' house. Deputy Harris testified he had been called to the Stonehams' house in 2017 when Borders was trespassing on the property and he gave Borders a criminal trespass warning, and Harris testified that he had been called to the Stonehams' house about four other times for the same reason. Deputy Turner testified he was called to the Stonehams' house when Stoneham reported Borders's alleged assault by threat, but he gave both Stoneham and Borders a criminal trespass warning. Therefore, the jury heard from law-enforcement personnel about prior incidents between Stoneham and Borders for which they were called to the Stonehams' house.
Although Stoneham claims his trial counsel was ineffective for failing to introduce evidence of his prior altercations with Borders, the record shows the jury heard at least some evidence about these prior altercations from the Stonehams and law-enforcement personnel. Stoneham has not proved a reasonable probability that the outcome would have been different had the additional evidence been admitted. See Thompson, 9 S.W.3d at 812.
Therefore, Stoneham has not proven that his trial counsel's performance in failing to object to hearsay evidence and failing to introduce helpful evidence fell below an objective standard of reasonableness. See id. Nor has he proven a reasonable probability that the result of the proceeding would have been different if his trial counsel had objected to the hearsay evidence or introduced the helpful evidence. See id. Therefore, Stoneham's second issue is overruled.
C. Lesser-included Offense
Next, Stoneham argues that his trial counsel's failure to request a jury instruction on the lesser-included offense of assault was ineffective assistance of counsel.
To show a trial counsel's performance was deficient based on the failure to request a jury instruction, the appellant must show he was entitled to that instruction. Washington v. State, 417 S.W.3d 713, 726 (Tex. App.-Houston [14th Dist] 2013, pet. ref d). To determine whether a defendant was entitled to a lesser-included-offense instruction at trial, we employ a two-step analysis: (1) we must ask whether the lesser-included offense is "included within the proof necessary to establish the offense charged"; and (2) we must determine "if there is some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense." Sweed v. State, 351 S.W.3d 63, 67-68 (Tex. Crim. App. 2011). "Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Id. at 68 (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)).
The State does not dispute that assault is a lesser-included offense of aggravated assault as charged in this case. The question then is whether there was any evidence from which the jury could acquit Stoneham of aggravated assault with a deadly weapon while convicting him of assault. See id. We conclude there was not.
The difference between a simple assault and an aggravated assault with a deadly weapon, as charged in this case, is using or exhibiting a deadly weapon. Compare Tex. Penal Code § 22.01 ("A person commits [assault] if the person . . . intentionally or knowingly threatens another with imminent bodily injury . . . ."), with id. § 22.02 ("A person commits [aggravated assault] if the person commits assault as defined in Sec. 22.01 and the person . . . uses or exhibits a deadly weapon during the commission of the assault."). When Stoneham testified at trial, he denied pointing the gun at Borders, which he argues is more than scintilla of evidence negating the aggravated assault charge. But, as discussed above, exhibiting a deadly weapon means "the weapon [i]s consciously shown or displayed during the commission of the offense." Patterson, 769 S.W.2d at 941. Stoneham admitted to holding the gun during his argument with Borders. Stoneham never indicated the gun was not visible to Borders, and Borders and another neighbor testified that they saw the gun. Therefore, even if Stoneham did not point the gun at Borders, he exhibited the gun. See id. There is no evidence from which the jury could acquit Stoneham of assault with a deadly weapon, which requires exhibiting a gun, but convict him of simple assault, because Stoneham admitted to exhibiting the gun. See Sweed, 351 S.W.3d at 68.
Stoneham also asserts that there was evidence at trial that he did not threaten Borders because in his testimony he expressly denied threatening Borders. However, "threaten[ing] another" is a common element of both assault and aggravated assault, so this was not evidence from which the jury could acquit Stoneham of one offense while convicting him of the lesser-included offense. See id.
Stoneham has not shown he was entitled to the lesser-included-offense instruction, and so he has not shown his trial counsel's performance was deficient in failing to request the instruction. See Washington, 417 S.W.3d at 726. We overrule Stoneham's third issue.
D. Totality of Representation
In his fourth issue, Stoneham argues that, considering the totality of the representation, his trial counsel rendered ineffective assistance and the errors committed were harmful. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) ("In making an assessment of effective assistance of counsel, an appellate court must review the totality of the representation and the circumstances of each case . . . ."). He argues that because any one of the errors already discussed would require reversal of his conviction, when considered together, they demonstrate that his trial counsel's performance was deficient. We disagree. We have already concluded that none of the errors raised demonstrate that his trial counsel's performance fell below an objective standard of reasonableness or that there was a reasonable probability that, but for trial counsel's errors, the result of the proceeding would have been different, and even considering all of the errors together, the record does not affirmatively demonstrate ineffective assistance of counsel. See Thompson, 9 S.W.3d at 813.
Stoneham's fourth issue is overruled.
CONCLUSION
We affirm the trial court's judgment.