No. 01-16-00490-CR.


Court of Appeals of Texas, First District, Houston.

Attorney(s) appearing for the Case

Daniel C. McCrory , Kim K. Ogg , Eric Kugler , for State of Texas.

Ralph R. Martinez , for Jorge Gonzalez, Appellant.

Panel consists of Justices Jennings, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).



A jury found appellant, Jorge Gonzalez, guilty of the offense of burglary of a habitation.1 After finding true the allegations in two enhancement paragraphs that appellant had twice been previously convicted of felony offenses, the trial court assessed his punishment at confinement for thirty-five years. In his sole issue, appellant contends that his trial counsel provided him with ineffective assistance during the punishment phase of trial.

We affirm.


Angela Robinson, the complainant, testified that on December 2, 2014, she left her apartment at around 6:45 a.m. to go to work. When she left, her apartment was "neat" and secured, the front door was locked, and her "back bathroom window" was not broken. Later that day, the complainant learned that her apartment had been "broke[n] in[to]." When she returned home, she saw that her "stuff" had been "thrown everywhere." And she noted that "a lot of [her] things," such as her "silver jewelry," perfumes, and "a lot of [her] son's belongings," including shoes, clothes, and his "dog tags from Afghanistan," were missing. When the complainant saw appellant at the scene, he apologized to her. She explained that she did not give anyone permission to enter her apartment on December 2, 2014.

Houston Police Department ("HPD") Officer M. Glover testified that while on patrol on December 2, 2014, he saw a car parked at a gas station and a man, Jorge Gonzalez ("Jorge"),2 using a nearby payphone. When Jorge saw Glover's patrol car, his "eyes . . . got bigger," he had a "look of surprise on his face," and he watched the patrol car until it left the area. Glover then contacted HPD Officer E. Medrano, who was "in the area in an undercover or plainclothes capacity," and requested that he "come take a look at [Jorge] . . . [to] see what he might be up to." Medrano subsequently informed Glover that Jorge's car did not have a front license plate and the car's rear license plate had been altered. Medrano also told Glover that he had watched Jorge drive his car to a nearby apartment complex, where a second man "got[] into the front passenger seat" of the car. Medrano then asked Glover to stop Jorge's car for "traffic violations" related to the car's altered rear license plate and its lack of a front license plate.

Officer Glover explained that when he activated his patrol car's emergency equipment to initiate a traffic stop, he saw two people in Jorge's car and "commotion inside the vehicle." Jorge did not stop his car and continued to drive for fifteen or twenty minutes while Glover pursued him. At one point, Jorge's car "slowed down almost to a stop," and the passenger, appellant, "jumped out of the front seat and . . . ran off." Glover continued to follow Jorge's car and requested assistance from other law enforcement officers in locating appellant.

Eventually, Jorge stopped his car, and Officer Glover "initiated . . . a felony traffic stop." Upon searching the car, Glover found a "yellow bag," containing jewelry, "a set of dog tags" on the floorboard of the front-passenger side, and other bags, which contained "game consoles," "stereo equipment," and "things that are commonly taken in burglaries." In order to determine if there had been a burglary, Glover then requested that other law enforcement officers return to the apartment complex where appellant had initially entered Jorge's car.

Officer Glover further explained that other law enforcement officers were able to locate appellant and found evidence of a burglary at the complainant's apartment, i.e., a forced entry at the back window and a front door that had been left ajar. Glover noted that the complainant identified certain property that was found inside of Jorge's car as belonging to her. And her cellular telephone was found to be in appellant's possession.

Officer Medrano testified that on December 2, 2014, while on patrol in an unmarked patrol car, he was notified by HPD Officer B. Moss and Officer Glover about a man, Jorge, at a gas station who "looked suspicious." When Medrano arrived at the gas station, he saw Jorge standing outside of a car that had an altered license plate. Medrano then followed Jorge as he drove his car to a nearby apartment complex, where he saw appellant carrying a duffel bag and running from the direction of the apartment complex to Jorge's car. The car then "took off at a high rate of speed" with appellant inside, and Medrano notified Moss and Glover.

HPD Officer M. Miller testified that while on duty on December 2, 2014, she heard over her radio that law enforcement officers had "made a traffic stop and someone from that vehicle [had] r[u]n from the officers." She then drove to the area to help locate the person who had fled. Miller explained that she saw appellant, who matched the description of the person law enforcement officers were attempting to locate, running in between houses. He had dirt on his shirt, was breathing heavily, "visibly sweaty," and "looking around" to "see[] if anyone was watching him." Miller informed other law enforcement officers of appellant's location.

HPD Officer K. Kelly testified that on December 2, 2014, he "assisted in setting up a perimeter" after a "car chase," during which a passenger in a car had fled "on foot." After Officer Miller indicated that she had seen appellant, Kelly found appellant, who was dirty and breathing heavily, hiding in a washroom at the back of a house.

During the punishment phase of trial, Officer Miller testified that she is a gang investigator and is familiar with certain gangs in Houston. She explained that appellant is associated with the "Houstone" gang, which is a part of the "Tango Blast" gang. The Tango Blast gang "originated in the prison system" and is a "Hispanic gang." "Tango Blast is the overall term that's used for th[e] gang," and each city has their own sect of the gang. In Houston, the sect is known as the Houstone gang. The Tango Blast and Houstone gangs are known for thefts, assaults, robberies, home invasions, burglaries, and murders. Tango Blast gang members are "associated [with] crime" and are "obligated to do certain acts to be part of th[e] [gang]." Specifically, Miller testified that the members of the Tango Blast gang are required to commit criminal offenses when they are not incarcerated.

Officer Miller further explained that appellant has "several gang tattoos" and is a "registered gang member" in the State's database. In order to be documented in the State's gang database, a person has to meet two of eight criteria, which include: "[s]elf-admission"; having "associated symbols, signs, colors, clothing" and tattoos; "being arrested in a known gang area with other known gang members"; "visiting a known gang member in a penal institution"; and "recruiting for gang members on a social media site."3

In regard to appellant's tattoos, Officer Miller testified that the tattoo depicted in State's Exhibit 64 is one that is "very common for Houstone gang members." The word "Houstone" appears in the tattoo, as does an "open five-point star" and the numbers "713." Another tattoo, depicted in State's Exhibit 60, has an "H for Houston, the star," and "says Screwston[]." Miller explained that "Screwston" is a "type of music that [the] Houstone [gang] is known for," and "Screwston[] represent[s] the Houstone [gang]." Further, the tattoo depicted in State's Exhibit 61 contains the phrase "City of Syrup," and Miller noted that "[s]ryup is a common term for codeine or an illegal drug that is very common with gang members." Finally, appellant's tattoo depicted in State's Exhibit 62 contains the word "Sureste," meaning "southeast," "the region of the city that [appellant] represents."

Appellant testified that he did not graduate from high school because he had a daughter and he left school to do construction work. He noted that he was incarcerated at nineteen years of age, and while he was incarcerated, he became associated with the Tango Blast gang. In regard to his tattoos, appellant explained that he had "[a] lot of [his] tattoos" before he was incarcerated and he did not know what they "meant inside of prison." Instead, he considered them to be "city tattoos" that "everybody gets in the city." After he joined the Tango Blast gang, he got more tattoos but he "didn't know [that] they were gang-related." And appellant noted that some of his tattoos are related to his children. On cross-examination, appellant stated that he did get "some" of his tattoos "while [he] was in prison" and after he knew about the Houstone's gang activity.

Appellant further testified that he did not commit any criminal offenses as a member of the Tango Blast gang and committing criminal offenses is not a requirement of being a member. Instead, he committed criminal offenses because he "had a drug problem" and it "really messed [his] whole life up."

Standard of Review

The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To prove a claim of ineffective assistance of counsel, appellant must show that (1) his trial counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). Appellant has the burden to establish both prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). "An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

We note that, generally, a silent record that provides no explanation for trial counsel's actions will not overcome the strong presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In the rare case in which trial counsel's ineffectiveness is apparent from the record, an appellate court may address and dispose of the claim on direct appeal. Lopez, 343 S.W.3d at 143. However, the record must demonstrate that counsel's performance fell below an objective standard of reasonableness as a matter of law and no reasonable trial strategy could justify trial counsel's acts or omissions, regardless of counsel's subjective reasoning. Id.

Ineffective Assistance of Counsel

In his sole issue, appellant argues that his trial counsel did not provide him with effective assistance during the punishment phase of trial because counsel "elicited damaging evidence" during cross-examination of the State's witness and "prejudicial testimony from [a]ppellant himself."

In order to prevail on his ineffective-assistance of counsel claim, appellant must first show that his counsel's performance fell below an objective standard of reasonableness when considering prevailing professional norms. Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that the challenged action could be considered to have been prompted by sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Absent contrary evidence, we will not second-guess the strategy of appellant's counsel at trial through hindsight. Garcia, 57 S.W.3d at 440 ("[I]n the absence of evidence of counsel's reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined." (internal quotations omitted)); Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979) ("This Court will not second-guess through hindsight the strategy of counsel at trial nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness."); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.-Texarkana 2005, pet. ref'd). That another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983); Hall, 161 S.W.3d at 152.

Appellant first argues that his trial counsel's performance was deficient because, when cross-examining Officer Miller during the punishment phase of trial, counsel "elicited testimony from Miller that gang members are absolutely associated with the crimes [a] gang commits" and "former prison gang members are required to commit crimes once released from prison." Further, appellant asserts that his counsel also, during cross-examination, "allowed Miller to explain [appellant's] remaining six tattoos" and "described the meaning and nature of tattoos displayed on [a]ppellant's body."

Initially, we note that the record does not support appellant's assertions that his trial counsel "elicited testimony from [Officer] Miller . . . describ[ing] the meaning and nature of tattoos displayed on [a]ppellant's body" or counsel "allowed Miller to explain [appellant's] remaining six tattoos." And in regard to appellant's other complaints about his trial counsel's questioning of Miller during cross-examination, because no motion for new trial was filed and no evidence was developed on the issue, the record is silent as to why appellant's counsel elicited the complained-of testimony from Miller. Cf. Huerta v. State, 359 S.W.3d 887, 895 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (where record silent, presuming counsel's questions about defendant's gang membership motivated by sound trial strategy); Hernandez v. State, No. C14-92-00129-CR, 1994 WL 179745, at *2 (Tex. App.-Houston [14th Dist.] May 12, 1994, no pet.) (not designated for publication) ("The decision by defense counsel to elicit testimony concerning gang activities on both direct and cross examination qualifies as a tactical decision which was part of the overall trial strategy.").

Appellant also argues that his trial counsel's performance, during the punishment phase of trial, was deficient because counsel asked appellant about his "gang history," his admission of gang membership to "prison authorities," and his "reasons for joining [the] Tango Blast" gang. Appellant also complains that his counsel "established the length of time" that appellant had previously "spent in prison," "the sentence[s] [that had been] assessed on his prior burglary convictions," and that appellant had committed criminal offenses as a result of his "prior drug addiction."

Although the record is silent as to why appellant's counsel elicited the complained-of testimony from appellant, his reasons for doing so are not unimaginable. Cf. Ayers v. State, 483 S.W.3d 230, 234 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd) (defendant's "trial strategy was to admit his faults and wrongdoings and place himself at the mercy of the trial court"); Huerta, 359 S.W.3d at 894 ("Counsel may have decided to . . . make appellant appear more honest and forthright, or perhaps minimize the seriousness of the earlier offense."); Martin v. State, 265 S.W.3d 435, 443 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ("This court has held that eliciting testimony from the accused as to his own prior convictions can be a matter of sound trial strategy."); Ryan v. State, 937 S.W.2d 93, 103 (Tex. App.-Beaumont 1996, pet. ref'd) (trial strategy to be forthright and open about defendant's substance-abuse problems).

The silent record in this case does not affirmatively support appellant's ineffective assistance of counsel complaints. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) ("An ineffective-assistance claim must be firmly founded in the record and the record must affirmatively demonstrate the meritorious nature of the claim." (internal quotations omitted)); Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) ("[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective."); Bone, 77 S.W.3d at 835 ("Ineffective assistance of counsel claims are not built on retrospective speculation; they must be firmly founded in the record." (internal quotations omitted)); Huerta, 359 S.W.3d at 895 (where record silent, presuming counsel's questions about defendant's gang membership motivated by sound trial strategy); see also Muhammad v. State, No. 01-96-01369-CR, 1998 WL 653452, at *2 (Tex. App.-Houston [1st Dist.] Sept. 24, 1998, pet. ref'd) (not designated for publication) (where defendant asserted counsel ineffective for calling him as witness to offer evidence of gang membership, silent record insufficient to overcome presumption of sound trial strategy). This is especially true when counsel's trial strategy concerns the appellant's decision to testify. See Fugon v. State, 963 S.W.2d 135, 137 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd); Hubbard v. State, 770 S.W.2d 31, 43 (Tex. App.-Dallas 1989, pet. ref'd); see also Rodriguez v. State, No. 14-99-00391-CR, 2000 WL 767856, at *3 (Tex. App.-Houston [14th Dist.] June 15, 2000, no pet.) (mem. op., not designated for publication).

Accordingly, we hold that, in the absence of a record reflecting why appellant's trial counsel elicited the complained-of testimony from Officer Miller and appellant during the punishment phase of trial, appellant has failed to rebut the presumption that his trial counsel's decisions were reasonable. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (appellate court may not conclude based on speculation counsel ineffective where record silent about why he made trial decisions); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.) (court cannot conclude performance deficient where record silent about counsel's strategy); Davis v. State, 930 S.W.2d 765, 769 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) ("When the record is silent as to counsel's trial strategy, we cannot speculate about why counsel acted as he did."). We further hold that trial counsel's professional error, if any, was not so outrageous that no competent attorney would have engaged in it. Menefield, 363 S.W.3d at 593.

We overrule appellant's sole issue.


We affirm the judgment of the trial court.


1. See TEX. PENAL CODE ANN. § 30.02(a)(1), (c)(2) (Vernon 2011).
2. This man has the same name as appellant, but is a separate individual.
3. Miller could not remember the other three criteria.


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