OPINION
The jury convicted Appellant Andre Phillips of driving while intoxicated–felony repetition and assessed punishment at seven years’ confinement, and the trial court sentenced him accordingly. See Tex. Penal Code Ann. §§ 49.04, 49.09(b). In seven points, Phillips argues that his right to a fair trial was violated by the States argument that he had failed to take responsibility for his actions (point one), that the trial court reversibly erred by admitting hearsay and conclusory evidence (points two and three), and that he was denied effective assistance of counsel (points four through seven). Because Phillips has not shown reversible error or that his trial counsel was ineffective, we affirm.
Background
On the night of July 20, 2019, Phillipss vehicle hit a parked car on a residential street. An ambulance called to the scene took Phillips to the hospital, where his blood was drawn and a police officer conducted field sobriety tests; testing showed his blood alcohol content at the time of the draw was 0.13.
At trial, Lucia Geisler testified that it was her car that had been hit and that Phillips had been the driver. Her car had been parked outside of her brothers house at the time, and she and her family were having a barbecue in the front yard. The family witnessed the accident and then gathered around Phillipss car when it seemed like Phillips was trying to drive away from the scene. Geisler testified that she smelled alcohol on Phillipss breath and that after the accident, he climbed into the passenger seat.
The State played for the jury a recording of Geislers 911 call in which she described the driver as a man who was wearing a black shirt and who “only ha[d] one leg”—Phillips previously had a leg removed after an accident. She also said, as she later did at trial, that the driver had moved to the passenger seat. The same exhibit also included a recording of the 911 call made by Phillipss friend, Robert Harrison; Harrison requested an ambulance for Phillips and said that Phillips had been moved to the passenger side because the steering wheel had been “jammed on him.”
Fort Worth Police Officer Christopher Martin testified about responding to the accident, about interviewing Phillips at the hospital to which he had been transported after the accident, and about conducting field sobriety testing on Phillips. The State played footage from Martins bodycam recording of that interview; in the video, Phillips has on a black shirt.
To show that Phillips had two prior DWI convictions—from 2008 and 2016—the State relied on testimony of Tarrant County Sheriffs Deputy Homero Carnero, who testified without objection that the fingerprints associated with the prior judgments matched fingerprints taken from Phillips on the day of trial and when he had been booked into jail in 1991. However, when the State moved to admit records and the fingerprints associated with the prior judgments, Phillips objected that Carnero had not shown the jury the points of comparison on the fingerprints. The trial court overruled the objection.
Phillips testified in his own defense and stated that Harrison was the driver. Harrison also testified for the defense and said that he had been driving Phillipss car and that Phillips was the passenger. He claimed to have hit the parked car when he swerved to avoid another car that was backing out of a driveway.
The State then played for the jury police bodycam footage showing Harrison responding “Yes” when a police officer asked him if he had been “riding passenger” and if Phillips had been driving the whole time. The State also produced two affidavits that Harrison had executed for the defense. In the first, Harrison said that Phillips “was not under the influence of alcohol” at the time of the accident and said nothing about Harrison driving the car. In the second, executed a month later, Harrison claimed that he had been driving.
In his closing argument, the prosecutor argued that Phillips had not taken responsibility for his actions. The trial court sustained Phillipss first objection to the argument and instructed the jury to disregard the prosecutors initial comments, but the trial court overruled Phillipss subsequent objections to other comments by the prosecutor about Phillipss taking responsibility. The jury found Phillips guilty, and Phillips now appeals.
Discussion
I. Jury Argument
In his first point, Phillips argues that the State violated his right to a fair trial by repeatedly arguing to the jury that it should hold against him his “failure to take responsibility” by insisting on a jury trial. We disagree.
A felony defendant has a constitutional right to a jury trial. U.S. Const. amend. VI; Tex. Const. art. 1, § 10; Duncan v. Louisiana, 391 U.S. 145, 157–58, 88 S. Ct. 1444, 1452, 20 L.Ed.2d 491 (1968). Thus, a prosecutor cannot, explicitly or in effect, ask the jury to penalize a defendant for exercising that right. Carlock v. State, 8 S.W.3d 717, 724 (Tex. App.—Waco 1999, pet. refd); see also Taylor v. State, 987 S.W.2d 597, 599–600 (Tex. App.—Texarkana 1999, pet. refd). Indeed, a prosecutors argument is permissible only if it falls within one of four areas: “(1) summation of the evidence; (2) reasonable deductions from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement.” Wages v. State, 703 S.W.2d 736, 741 (Tex. App.—Houston [14th Dist.] 1985) (citing Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980), and Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973)), pet. dismd, 770 S.W.2d 779 (Tex. Crim. App. 1987); see also Polk v. State, No. 02-16-00051-CR, 2016 WL 6519120, at *2 (Tex. App.—Fort Worth Nov. 3, 2016, no pet.) (mem. op., not designated for publication).
Here, the prosecutor argued that Phillips had failed to take responsibility for his crime, and the trial court initially sustained Phillipss objection:
[Prosecutor:] Every single defendant who is charged with a crime, has a Constitutional right to have a jury trial. It doesnt matter how much evidence is against them, how guilty they are, how straightforward the case is, or how easy it would be to find them guilty, they still have a constitutional right to ask for a trial.
So theres no catch. Youre not missing anything. This is really the case today. Were only here because this defendant has a Constitutional right to have a trial no matter what, and because hes refusing to take responsibility for the offense. And at the end of the day—
[Defense counsel]: Excuse me, Your Honor. Im going to object to improper argument. The defendant in any case is not required to plead guilty, and this attempts to change the burden of proof to the defense.
THE COURT: All right. Im going to sustain that particular objection.
The jury will disregard.
[Prosecutor]: Which -- which particular point was I --
THE COURT: I think it was about him refusing to take responsibility. Hes got a right to have a jury trial.
[Prosecutor]: Right. And that --
THE COURT: Ive sustained the objection.
[Prosecutor]: Okay.
[Defense counsel]: And youve instructed the jury to disregard that; is that correct?
THE COURT: The jury will disregard.
[Defense counsel]: Thank you, Judge.
[Prosecutor]: May I rephrase?
THE COURT: You may conduct your argument.
After that, the prosecutor continued his argument by saying that Phillips was not required to take responsibility but that he had indeed not done so, and this time the trial court overruled Phillipss objections:
[Prosecutor]: Okay. He doesnt have to take responsibility. But, clearly, hes not taking responsibility. Thats why were here.
[Defense counsel]: Once again, Your Honor, this attempts to change the burden of proof, and we object to it.1
THE COURT: Ill overrule that particular objection.
․
[Prosecutor:] At the end of the day, like I said, when a defendant doesnt want to take responsibility for an offense, its up to the jury --
[Defense counsel]: Objection, Your Honor, youve already ruled that thats an improper thing to say during closing argument, and youve instructed the jury to disregard it. Im going to object.
THE COURT: Well, the Court has instructed the jury. And Im going to overrule the particular objection at this time and allow the argument.
[Prosecutor]: When a defendant doesnt want to take responsibility for an offense --
[Defense counsel]: Your Honor, youve already ruled about this business about taking responsibility. Every defendant has a right to a jury trial. This attempts to change the burden of proof, and we object to it.
THE COURT: The jury has been instructed. I overrule the objection.
[Prosecutor]: Ill say it again. When a defendant doesnt want to take responsibility for an offense, its up to the jury to make him do it.
[Defense counsel]: And, Your Honor, as the Court knows, Im required to object every time that the defense believes that theres an improper argument, or I waive my objection. So Im going to object again on the same basis that I have. This is an attempt to change the burden of proof on the defendant.
THE COURT: The burden of proof is always on the state. It never shifts to the defendant. The Court has instructed the jury. Ill overrule the particular objection.
Regarding the argument to which the trial court sustained Phillipss argument, he does not argue that the trial courts instruction was insufficient to cure any harm arising from the argument, and we conclude that it was sufficient. See Wages, 703 S.W.2d at 741 (holding that prosecutors comments were not so inflammatory that their prejudicial effects were not removed by the judges instruction to disregard); see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (noting that impermissible argument is reversible only if, in light of entire record, the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the proceeding and that an instruction to disregard the remarks will usually cure the error). Thus, if that argument rose to the level of asking the jury to punish Phillips for exercising his constitutional right, the trial courts instruction cured any harm from it.
Regarding the rest of the prosecutors argument, Phillips argues that it “went well past responding to the evidence, or merely pointing out to the jury why it should believe the evidence that contradicted [Phillipss] testimony.” We disagree; “[w]hile the prosecutors statements may straddle the line of permissible argument, they do not rise to the level of an improper comment in these circumstances.” Polk, 2016 WL 6519120, at *3. The State was entitled to summarize and respond to Phillipss defense—a defense that was, in fact, centered on shifting the blame for the events of the night onto someone else. See id. (holding State was entitled to respond to defendants arguments that he had made a false confession); Head v. State, No. 03-10-00414-CR, 2013 WL 1831576, at *7, *8 (Tex. App.—Austin Apr. 24, 2013, no pet.) (mem. op., not designated for publication) (holding that trial court could conclude that prosecutors arguments that “you sure do get credit for accepting responsibility and not making someone go through a jury trial” was a response to defendants argument that witness for State must have received a deal in exchange for his testimony). As such, the prosecutors argument was not improper. We overrule Phillipss first point.
II. Martins Testimony
In his second point, Phillips argues that the trial court “wrongfully permitted Officer Christopher Martin to identify [Phillips] in court as the driver of the vehicle, based on inadmissible hearsay.” Martin is the Fort Worth Police Officer who was dispatched to the scene of Phillipss accident. Most of Martins testimony was about his interview with Phillips, Phillipss performance on a field sobriety test, and the blood draw performed at the hospital. Phillipss complaint focuses on the identification Martin made of him toward the beginning of his testimony.
Martin testified that after going to the scene, he went to the hospital because Phillips had been transported there by ambulance. Martin then testified that he had been informed of the drivers identity, and he identified Phillips as that person by pointing to him and describing his attire. Phillipss trial counsel then objected “to the terminology ‘the driver,’ ” arguing that Martins testimony about “what some other person may have told [Martin]” was hearsay; “[s]o we dont object to him identifying this person in court as a person he knows, but not as the driver.” The trial court then stated, “The jury will be able to evaluate the testimony theyve heard. And I think its clear that he did not observe him as a driver, but he was identified as a driver. So with that understanding, the [S]tate m[a]y proceed.” Phillips argues that Martins testimony identifying him as the driver “was an abuse of discretion that merits reversal, given the importance of the identification issue.”
We will assume for purposes of this opinion that the trial court abused its discretion in its disposition of Phillipss objection. The question we must therefore consider is whether the trial courts error is reversible. We will not reverse based on non-constitutional error unless the error affected a defendants substantial rights. See Tex. R. App. P. 44.2(b). “An error affects a defendants substantial rights when the error has a substantial and injurious effect or influence on the jurys verdict.” Null v. State, 640 S.W.3d 370, 380 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). “If the error had no influence or only a slight effect on the verdict, then the error is harmless.” Id. (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)); see also Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). “In making a harm analysis, we examine the entire trial record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence.” Coble, 330 S.W.3d at 280.
We conclude that the complained-of statements would have had only a slight effect, if any, on the jurys deliberations. Martins testimony was that some person or persons had told him that Phillips was the driver. The trial judge then essentially instructed the jury that Martins testimony was not evidence that he had witnessed Phillips driving and was evidence only that someone had told Martin that Phillips was the driver. However, the jury had already heard evidence that someone had told law enforcement that Phillips was the driver; during Geislers testimony, the prosecutor played her 911 call in which she identified the driver as a man who was missing a leg and wearing a black shirt. See Redmond v. State, 629 S.W.3d 534, 549 (Tex. App.—Fort Worth 2021, pet. refd) (holding that complained-of testimony had been admitted elsewhere and was thus harmless). In her trial testimony, Geisler identified Phillips as the driver,
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and when Phillips presented his and Harrisons testimony that Harrison was the driver, the prosecutor impeached that testimony with a police officers bodycam video (discussed more below) in which Harrison told officers that Phillips had been driving.
Further, although Phillips argues that Martins hearsay statement was improper bolstering of Geislers testimony, the record does not support that argument.
3
“Bolstering” is evidence that does not substantively contribute to making a consequential fact more or less probable and has “the sole purpose” of convincing the factfinder “that a particular witness or source of evidence is worthy of credit.” Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993). Here, there is no indication that the State used Martins testimony to convince the jury that Geislers testimony or her statements in the 911 call recording were credible. Rather, the prosecutor used the testimony as a starting point to explain why Martin went to the hospital and to identify Phillips as the person he interviewed.
4
Also, the State did not place much emphasis on that part of Martins testimony. The prosecutor mentioned that part of Martins testimony once more, when cross-examining Phillips; the prosecutor included it when listing testimony and other evidence contradicting Phillipss testimony that he was not the driver, but he did so as a predicate to asking Phillips “what reason does anybody have to lie against [him] and say that [he] w[as] driving, a person with one leg in a black shirt.”
5
In context, the prosecutor was using Martins hearsay statement as part of its impeachment of Phillipss testimony but not as substantive evidence that Phillips was the driver.
Based on the record, Martins complained-of testimony had no or only a slight effect on the verdict and was therefore harmless. See Coble, 330 S.W.3d at 280, 287. We overrule Phillipss second point.
III. Fingerprint Evidence
In his third point, Phillips argues that the trial court erred by admitting evidence of Phillipss prior convictions because the States fingerprint expert failed to identify the specific fingerprint characteristics he observed that indicated a match and instead “offered only the conclusory testimony that fingerprints matched with 10–12 points of comparison on some of the prints.”
The State called Deputy Carnero to prove up Phillipss prior DWI convictions. See Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999) (noting that prior intoxication-related offenses are elements of felony driving while intoxicated offense). Carnero testified about his qualification to do fingerprint comparisons and about how one makes a comparison. He then explained that he had taken Phillipss fingerprints that morning and that the card on which he had taken the prints was States Exhibit 15. States Exhibit 12 was a fingerprint card showing fingerprints that had been taken from Phillips at the Tarrant County Jail in 1991. Both cards also contained the unique, permanent county ID (CID) number that had been assigned to Phillips. The trial court admitted both exhibits without objection. Carnero then testified that the two sets of fingerprints matched.
The State showed Carnero States Exhibits 10 and 11, which were the judgments and associated documents regarding Phillipss prior convictions. That documentation included fingerprints and Phillipss CID number. Carnero testified that the fingerprints and CID number on those exhibits matched the fingerprints and CID number in Exhibits 12 and 15. When the State moved to admit Exhibits 10 and 11, Phillips took Carnero on voir dire and then objected to the exhibits’ admission. The trial court overruled the objection.
Phillips argues that the trial court erred by admitting the evidence of the prior convictions because Carnero “could not identify the characteristics of the fingerprints [that] led to his conclusion that they belonged” to Phillips. However, that argument is a mischaracterization of Carneros testimony. It is not that Carnero could not identify the specific characteristics that he observed in forming his opinion but that he did not do so—because he was never asked to do so.
Under Texas Rule of Evidence 705, an expert may state an opinion without first testifying to the underlying facts or data supporting the opinion. Tex. R. Evid. 705(a). However, on cross-examination, the expert may be required to disclose that underlying information. Id. If requested, the opposing party must be given the opportunity to ask the expert about the underlying information before the expert states an opinion. Tex. R. Evid. 705(b). “This examination must take place outside the jurys hearing.”
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Id. Further, if the opposing partys questioning in cross-examination reveals that the underlying information does not provide a sufficient basis for the experts opinion, the opinion is inadmissible and, thus, if the opinion has already been disclosed, it may be stricken. See Tex. R. Evid. 705(c); Acevedo v. State, 255 S.W.3d 162, 168 (Tex. App.—San Antonio 2008, pet. refd). Here, however, Carnero was never asked by Phillips to disclose the underlying information on which he based his opinion that States Exhibits 10 and 11 were Phillipss prior convictions.
The prosecutor asked Carnero, “When you looked at those fingerprints on these two [prior] judgments and sentences, did they match with the fingerprints on [Exhibits 12 and 15] that are already in evidence?,” Carnero answered—without objection—“Yeah, they do.”
Q. So that would mean that those judgment sentences for convictions belong to this defendant?
A. Yes.
Q. Did the CID numbers match as well?
A. Yes, they do.
Q. Okay.
It was at that point that the prosecutor moved to have States Exhibits 10 and 11 admitted. Only then did Phillips ask to take the witness on voir dire.
In Phillipss voir dire questioning, he asked Carnero about the number of points of comparisons he had found between the different fingerprints.
Q. What is your personal number of points of comparison to make such an analysis and be comfortable with it?
A. There is no national standard, but in error resolution, we use a minimum of 10.
Q. Ten?
A. Yes, sir.
Q. Okay. And do you -- could you tell the jury real quick what a point of comparison is?
A. Its one of those -- one of the characteristics I mentioned earlier where you start counting. Thats what you refer to as a point of comparison.
Q. And how many points of comparison did you find on States Exhibit 10 that you could identify with either States Exhibit 15 or 12?
A. I did reach a minimum of 10, and theres one I did go to 12. Im not sure which exhibit it was.
Q. Yeah, if you could make that clear, that would be great.
A. Okay. On Exhibit 10, yes, I did go to 10 points. Exhibit 11, there was one I did go to twelve points. Theres two on Exhibit 11, one with 10 points and the other one 12 points.
Phillips then asked about the number of comparisons on which Carnero had relied in forming his opinion. When Carnero seemed about to testify about how he established the points, Phillips interrupted him and clarified his question:
Q. How did you arrive at the number of 10?
A. I started at one point -- its like mapping --
Q. Oh, Im sorry. I didnt ask a good question. Let me start over. You have a personal standard to testify to jurors that you must have 10 points of comparison. How did you decide on 10 rather than, say, 8 or 12 or some other number?
A. Thats -- thats what -- how I was trained and thats how weve been sticking to.
Q. Okay. So are you aware that the FBI and some other federal law enforcement agencies would be unhappy with just 10?
A. I wouldnt know.
Q. Okay. How can you have confidence that 10 is enough so that the jury will know that this really is a match?
A. Well, it depends on the examiner itself, the clarity and the -- just examiner itself. I mean, it just ․
Q. Well, you havent shown the jury here which 10 points there are; correct?
A. Correct.
Phillips then argued that Exhibits 10 and 11 (but not Carneros opinion derived from them)
7
were inadmissible:
[Phillipss attorney]: Well, on that basis, Your Honor, were going to object to both States Exhibits 10 and 11.
THE COURT: And whats the objection?
[Phillipss attorney]: This witness has not demonstrated to the jury any points of comparison for which they could -- they or you or I -- could know that he, in fact, is able to say there are 10 points of comparison, his personal standard.
THE COURT: Are you suggesting he has to show the jury the exact 10 that match?
[Phillipss attorney]: Yes, sir.
THE COURT: Okay. Any response for the record from the state?
[Prosecutor]: Just that, Your Honor, we qualified -- we believe we qualified him as an expert in this area. And that hes here to testify about his expert testimony, not make each and every juror an expert in the field of fingerprints. That would be my response.
[Phillipss attorney]: He hasnt even showed the Court what those 10 points are, Your Honor.
THE COURT: All right. Im going to overrule the objection. And the jury will be allowed to consider the testimony.
[Prosecutor]: Your Honor, is the evidence admitted at this point?
THE COURT: Any other objections, [Phillipss attorney]?
[Phillipss attorney]: No, thats it.
THE COURT: Very well. No other objections, then States Exhibits 10 and 11 are both admitted.
In other words, Phillipss objection was that the trial court had to exclude Exhibits 10 and 11 unless Carnero showed the jury—without being asked—the specific points of comparison that he had found. That is not, however, what Rule 705 requires. See Tex. R. Evid. 705(a); cf. Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389–90 (Tex. 2008) (noting that experts are not required to introduce foundational data at trial unless the court or opposing party insists). We therefore reject this argument.
Phillips further argues that his objection “should be construed as an objection to the scientific reliability of [Carneros] methods and conclusions.” Phillips does not specify which Kelly criteria he believes his objection could be construed to include. See Tex. R. App. P. 38.1(i); Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992) (stating that to be reliable, scientific evidence must satisfy three criteria: “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question”); Moore v. State, No. 14-18-00975-CR, 2019 WL 5704348, at *2 (Tex. App.—Houston [14th Dist.] Nov. 5, 2019, no pet.) (mem. op., not designated for publication) (noting that in addition to right to voir dire expert under Rule 705 to determine foundation of experts opinion, a party also has right to challenge expert on the Kelly criteria). The State had no need to satisfy the first two because the Court of Criminal Appeals has held that fingerprint-comparison analysis satisfies those criteria. See Russeau v. State, 171 S.W.3d 871, 883 (Tex. Crim. App. 2005); see also Ross v. State, Nos. 02-14-00210-CR, 02-14-00211-CR, 2015 WL 3637930, at *5 (Tex. App.—Fort Worth June 11, 2015, pet. refd) (mem. op., not designated for publication). Thus, the only possible objection Phillips could have made under Kelly was that the State had not shown that Carnero had properly applied the technique.
However, Phillips did not object that Carnero had not properly applied the technique by relying on only ten points of comparison for one set of fingerprints, although he asked some questions on which such an argument perhaps could have been based. Further, Carnero testified about what he looked for in making comparisons, and Phillips at no point raised any issue about or elicited any testimony suggesting that Carnero had not accurately applied the technique in deciding that points of comparison existed. See Forward v. State, 406 S.W.3d 601, 605–06 (Tex. App.—Eastland 2013, no pet.) (stating that there was no evidence that the fingerprint expert performed any portion of his comparison incorrectly). In other words, Carnero testified about his application of the technique, and Phillipss only objection was that Carnero had not shown the specific points of comparison, i.e., that Carnero had not disclosed the underlying information supporting his opinion that the fingerprints matched. If Phillips had any other objection to States Exhibits 10 and 11 or to the reliability of Carneros testimony, he forfeited that complaint. See Tex. R. App. P. 33.1; Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (stating complaint about evidence admissibility is forfeited absent a timely and specific objection). We overrule Phillipss third point.
IV. Ineffective Assistance of Counsel Points
In his fourth through seventh points, Phillips complains that he was denied effective assistance of counsel by his trial attorney. However, the record does not support his points.
To prevail on a claim of ineffective assistance of counsel, Phillips must show that: (1) his trial counsels performance was deficient; and (2) that deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). “In considering ineffective-assistance-of-counsel claims, we employ a strong presumption that counsels conduct fell within the wide range of reasonable assistance and that the challenged conduct could be considered sound trial strategy.” Ex parte Garza, 620 S.W.3d 801, 827 (Tex. Crim. App. 2021). In the absence of evidence of trial counsels reasons for the challenged conduct, we find ineffectiveness only if there is no reasonable trial strategy that could justify the attorneys actions. See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Thus, we look at the allegations of ineffectiveness to see if the conduct was “so outrageous that no competent attorney would have engaged in it.” Prine v. State, 537 S.W.3d 113, 116–17 (Tex. Crim. App. 2017) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
A. Exhibit 16s Bodycam Footage
Phillips raises two ineffectiveness points involving States Exhibit 16, the disk containing bodycam video of Fort Worth Police Officer Wayne Estes. The disk includes a video showing Phillipss friend Robert Harrison talking to officers who responded to the 911 call; it was in this video that Harrison acknowledged that Phillips was the driver. In addition to the video of Harrison, Exhibit 16 also includes a video of Estes conducting an inventory of Phillipss car. In Phillipss fourth point, he contends that his trial counsel was ineffective by failing to make a hearsay objection to the video of Harrisons statements to officers. The State introduced the entire disk during Estess testimony but did not publish the challenged footage until after Harrison testified that he was the driver. If Phillipss attorney had successfully objected to the video as hearsay at the time of its admission, then the video would have become admissible as soon as Harrison testified. See Tex. R. Evid. 613; Willover v. State, 70 S.W.3d 841, 846 n.8 (Tex. Crim. App. 2002) (noting that evidence of witnesss prior inconsistent statements is admissible for impeachment purposes); see also Prine, 537 S.W.3d at 117–18 (stating that claim of ineffective assistance cannot be supported by failure to object unless trial court would have erred by overruling objection). Thus, the only way to prevent the video from becoming admissible would have been to not call Harrison as a witness. Considering the defenses reliance on Harrisons testimony as part of Phillipss trial strategy to establish Harrison as the driver, on this record, we cannot conclude that the attorneys failure to object was not a calculated risk. See Alexander v. State, 282 S.W.3d 701, 706 (Tex. App.—Houston [14th Dist.] 2009, pet. refd) (“We cannot find deficiency from a calculated risk by appellants trial counsel that simply did not work.”). We therefore overrule Phillipss fourth point.
In Phillipss sixth point, he argues that he was denied effective assistance by his trial attorneys failure to object to the videos admission as prior inconsistent statements because Estes did not authenticate the part of the video containing those statements. See Tex. R. Evid. 901. Although the State published only the inventory video during Estess testimony, Estes did not limit his authentication testimony to that footage. Rather, he testified about the disk in general, describing it as a disk from the bodycam, as containing footage that was captured on July 20, 2019, and as “accurately depict[ing] the events as [he] witnessed them on that night.”
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The trial court had a basis on which it could properly overrule an authentication objection, see Tex. R. Evid. 901(a), (b)(1), and on this record, Phillipss trial attorneys failure to object cannot support the ineffective assistance claim.
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See Prine, 537 S.W.3d at 117–18. We overrule his sixth point.
B. Harrisons Affidavits
In his fifth point, Phillips asserts that his trial counsel was ineffective by failing to object to the admission of Harrisons affidavits as evidence of Harrisons prior inconsistent statements because the State did not provide a proper foundation. The record does not support an ineffective assistance claim on this basis.
Harrisons first affidavit was inconsistent with his trial testimony by inference—it did not expressly say that Phillips had been driving, but it also did not say that Harrison was the driver, and it said that Phillips “was not under the influence of alcohol” and “was not D.U.I., or D.W.I.” This affidavit was not admissible as an inconsistent statement because Harrison did not unequivocally deny making it. See Tex. R. Evid. 613(a)(4). However, by the time the prosecutor moved to admit it, its impeaching elements had already been put before the jury. Harrison had already testified that in the affidavit he (1) stated that Phillips had not been under the influence of alcohol and (2) did not mention driving. Cf. Johnson v. State, 583 S.W.2d 399, 404 (Tex. Crim. App. [Panel Op.] 1979) (holding admission of prior inconsistent written statement was harmless when the statements contents were already before the jury); Kane v. State, No. 04-02-00275-CR, 2003 WL 22902978, at *4 (Tex. App.—San Antonio Dec. 10, 2003, pet. refd) (mem. op., not designated for publication) (same).
In the second affidavit, Harrison stated that an officer had said that Phillips asked him to lie about being the driver, “which is not true because [Phillips] was unconscious in the passenger seat.” This affidavit was consistent with Harrisons trial testimony and thus supported Phillipss defense, which is possibly why, after the trial court admitted the affidavits, Phillipss attorney had Harrison read them both to the jury and then questioned Harrison about their contents. On this record, we cannot conclude that Phillipss trial attorneys failure to object to the affidavits’ admission was so outrageous that no competent attorney would have engaged in it. See Prine, 537 S.W.3d at 116–17. We overrule Phillipss fifth point.
C. Failure to Request Limiting Instruction
In Phillipss seventh and final point, he argues that he was denied effective assistance by his attorneys failure to ask the trial court to instruct the jury that Harrisons affidavits and Estess bodycam video were to be considered as impeachment evidence only and not as evidence of Phillipss guilt. See Tex. R. Evid. 105. The decision to not request a limiting instruction concerning certain unfavorable evidence may be a trial strategy to minimize the jurys recollection of the evidence. See Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim. App. 2007). “[T]o hold trial counsels actions (or inaction) ineffective in the instant case would call for speculation[,] and such speculation is beyond the purview of this [c]ourt.” Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001). We overrule Phillipss seventh point.
Conclusion
Having overruled Phillipss seven points, we affirm the trial courts judgment.
FOOTNOTES
1
. For purposes of this appeal, we assume that Phillipss objection that the State was attempting to shift the burden of proof was broad enough to include the complaint he makes on appeal. See Tex. R. App. P. 33.1.
2
. Thus, Geislers statements to law enforcement identifying Phillips as the driver are not hearsay. See Tex. R. Evid. 801(e)(1)(C).
3
. Phillips did not mention bolstering in his trial objection, but we will assume for purposes of this opinion that the trial court understood Phillipss objection to include bolstering. See, e.g., Rivas v. State, 275 S.W.3d 880, 886–87 (Tex. Crim. App. 2009) (noting that “bolstering” has ties to Rules of Evidence 608, 612, and 613 and “reiterat[es] the principles of hearsay”).
4
. If the State used Martins testimony only to establish why he had gone to the hospital to interview Phillips and not to prove that Phillips was the driver, that testimony would not be hearsay. See Tex. R. Evid. 801(d). We assume for purposes of this appeal, however, that it was hearsay.
5
. The “person with one leg in a black shirt” referenced Geislers statements to law enforcement.
6
. When Phillips asked to take the witness on voir dire, the trial court did not excuse the jury from the courtroom, and Phillips did not request the jurys exclusion. Thus, the jury heard all of the witnesss voir dire testimony.
7
. However, for purposes of this opinion, we will construe his objection to the admission of States Exhibits 10 and 11 to include an objection to the already-admitted opinion testimony based on those exhibits.
8
. Harrison also acknowledged in his testimony that the person in the video “seems to be” him. During the inventory video, Estes is seen talking to a man in a white shirt, and at trial, Estes identified that person as the vehicles passenger.
9
. Further, even if Estes had not authenticated the entire disk and Phillipss trial counsel had objected on that basis, there is nothing to suggest that the prosecutor could not have then elicited testimony from Estes to authenticate the rest. Thus, because it would have been an easy matter for State to respond to the objection and remedy any deficiency, it is hard to fathom how the lack of objection prejudiced Phillipss defense. See Strickland, 466 U.S. at 692, 104 S. Ct. at 2067.
Opinion by Justice Wallach