Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00491-CR
Gabriel Rene ALEMAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. A24552
Honorable Albert D. Pattillo, III, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
Velia J. Meza, Justice
Delivered and Filed: June 24, 2026
AFFIRMED
In two appellate issues alleging ineffective assistance of counsel, appellant Gabriel Rene
Aleman challenges his murder conviction. We affirm the judgment of conviction.
BACKGROUND
It is undisputed that on July 20, 2024, Aleman fired five shots toward an apartment in
Kerrville, Texas. One of those shots hit an occupant of the apartment, Deanna Arispe, who later
died from her injuries.
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A Kerr County grand jury indicted Aleman for the offense of murder. The indictment
outlined 3 paragraphs: (1) knowingly causing Arispe’s death; (2) causing Arispe’s death while
committing an act clearly dangerous to human life in the course of intentionally or knowingly
committing the felony of unlawful possession of a firearm; and (3) causing Arispe’s death while
committing an act clearly dangerous to human life in the course of intentionally or knowingly
committing the felony of deadly conduct. See TEX. PENAL CODE § 19.02(b)(1), (3) (defining
murder); see also TEX. PENAL CODE § 46.04(a)(1) (“A person who has been convicted of a felony
commits an offense [of unlawful possession of a firearm] if he possesses a firearm . . . after
conviction and before the fifth anniversary of the person’s release from confinement following
conviction of the felony[.]”); TEX. PENAL CODE § 22.05(b)(2) (“A person commits an offense [of
deadly conduct] if he knowingly discharges a firearm at or in the direction of . . . a
habitation . . . and is reckless as to whether the habitation . . . is occupied.”).
The State abandoned Paragraph 1 and proceeded to trial only on the felony murder charges
in Paragraphs 2 and 3. On June 23, 2025, Aleman stipulated in writing that prior to this incident,
he was convicted of the felony offense of evading arrest in a motor vehicle and was released from
confinement for that offense on April 12, 2024. See TEX. PENAL CODE § 46.04(a)(1). Aleman’s
written stipulation was entered into evidence at trial.
After hearing the evidence, the jury found Aleman guilty of murder and found the
enhancement allegation to be true. The jury then assessed punishment of 70 years’ confinement
and a $10,000 fine. The trial court signed a judgment of conviction consistent with the jury’s
verdict.
Aleman filed a motion for new trial, which asserted, inter alia, that he had been denied
effective assistance of counsel because his appointed trial counsel did not “provide[] or show[]
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him discovery in this case” and “only consulted in person with [Aleman] sparingly[.]” The motion
did not assert any other ineffective assistance arguments. The trial court denied the motion in a
written order on July 11, 2025. One week later, Aleman’s trial counsel filed an affidavit refuting
the ineffective assistance arguments that Aleman asserted in the motion. The record does not
indicate that the trial court considered counsel’s affidavit.
Aleman now appeals his conviction.
ANALYSIS
In two issues, Aleman argues he was denied effective assistance of counsel at trial.
Standard of Review and Applicable Law
We review claims of ineffective assistance of counsel under a two-pronged test. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999). Aleman bears the burden to establish both prongs of the Strickland test by a
preponderance of the evidence. See Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).
“Prevailing on an ineffective assistance of counsel issue on direct appeal is difficult[.]”
Limauro v. State, 675 S.W.3d 368, 375 (Tex. App.—Dallas 2023, no pet.); see also Jackson v.
State, 877 S.W.2d 768, 772 (Tex. Crim. App. 1994) (Baird, J., concurring) (“As a general rule,
one should not raise an issue of ineffective assistance of counsel on direct appeal.”). The record in
a direct appeal typically will not be sufficiently developed to support an ineffective assistance
claim because it will not show the reasons for trial counsel’s challenged actions. See Mata v. State,
226 S.W.3d 425, 430 (Tex. Crim. App. 2007). As a result, ineffective assistance claims “are more
appropriately urged in a hearing on an application for a writ of habeas corpus.” Lopez v. State, 343
S.W.3d 137, 143 (Tex. Crim. App. 2011).
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On the first prong, Aleman must show his trial counsel’s representation was so deficient
that it “fell below an objective standard of reasonableness as a matter of law, and that no reasonable
trial strategy could justify trial counsel’s acts or omissions[.]” Id. Our review of trial counsel’s
performance “is highly deferential and presumes that counsel’s actions fell within the wide range
of reasonable and professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). The alleged ineffectiveness “must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813. Where the
record is silent as to the reasons for trial counsel’s conduct, he is entitled to “the benefit of the
doubt,” and we must assume that he “had a strategy if any reasonably sound strategic motivation
can be imagined.” Johnson v. State, 624 S.W.3d 579, 586 (Tex. Crim. App. 2021). In reviewing
this question, we do not examine “isolated acts or omissions,” but instead analyze trial counsel’s
performance “in light of the totality of the representation[.]” Scheanette v. State, 144 S.W.3d 503,
509 (Tex. Crim. App. 2004) (internal quotation marks omitted). “Any error in trial strategy will be
deemed inadequate representation only if counsel’s actions lack any plausible basis.” Dickerson v.
State, 87 S.W.3d 632, 637 (Tex. App.—San Antonio 2002, no pet.).
To satisfy the second prong of the Strickland test, Aleman must establish “a reasonable
probability that, but for his counsel’s unprofessional errors, the result of the proceeding would
have been different.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). “The
likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter,
562 U.S. 86, 112 (2011). The benchmark for performing this analysis is “‘whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.’” Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim.
App. 2005) (quoting Strickland, 466 U.S. at 686).
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Application
In his first issue, Aleman argues his trial counsel was ineffective because he: (1) stipulated
that Aleman had previously been convicted of a felony; (2) did not assert a Confrontation Clause
objection to a recording of a 9-1-1 call made immediately after the shooting; (3) did not assert a
Confrontation Clause objection to surveillance camera footage from a bar Aleman visited before
and after the murder; (4) did not object to the State’s purported failure to lay a proper predicate for
the admission of a photo of Arispe; (5) failed to present witnesses on Aleman’s behalf during the
guilt/innocence phase of trial; and (6) did not voir dire a gang expert who testified during the
punishment phase and “allow[ed] said expert to classify [Aleman] as a gang member.” In his
second issue, Aleman argues his trial counsel was ineffective because his defensive theory was not
feasible as a matter of law.
Previous Conviction
Aleman argues that by stipulating to his felony conviction of evading arrest with a vehicle,
his trial counsel relieved the State of its burden to prove one of the required elements of Paragraph
2—i.e., that Aleman unlawfully possessed a firearm when he shot into Arispe’s apartment. See
TEX. PENAL CODE §§ 19.02(b)(3), 46.04(a). Aleman contends that this stipulation establishes that
his trial counsel’s performance fell below an objective standard of reasonableness as a matter of
law. See Lopez, 343 S.W.3d at 143.
Because Aleman did not raise this ground in his motion for new trial, his trial counsel has
not had an opportunity to respond to it. We therefore may not conclude his performance was
deficient on this ground unless Aleman establishes that the “conduct was so outrageous that no
competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005) (internal quotation marks omitted).
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On this record, Aleman has not met this burden. As the State notes in its brief, trial counsel
could have reasonably pursued this strategy because it minimized the jury’s exposure to evidence
of Aleman’s prior felony conviction during the guilt/innocence phase of trial. This is a plausible
basis upon which to conclude that the stipulation was a sound trial strategy. See Johnson, 624
S.W.3d at 586; Dickerson, 87 S.W.3d at 637.
Tracking the paragraphs in the indictment, the jury was instructed that it could find Aleman
guilty of murder if it concluded that he shot through Arispe’s door while he was engaged in either
unlawful possession of a firearm or deadly conduct. See TEX. PENAL CODE §§ 46.04(a),
22.05(b)(2). The court’s charge did not ask the jury to specify which underlying felony supported
its guilty verdict, and Aleman has not argued that the evidence presented at trial was insufficient
to support a deadly conduct finding. As a result, Aleman has not established a reasonable
probability that but for the stipulation on unlawful possession, “the result of the proceeding would
have been different.” See Mitchell, 68 S.W.3d at 642.
9-1-1 Call and Surveillance Footage
Aleman next contends that his trial counsel performed deficiently by failing to make
Confrontation Clause objections to the admission of a 9-1-1 call made immediately after the
shooting and surveillance videos from a bar Aleman visited before and after the shooting. Again,
Aleman did not raise these grounds in his motion for new trial, and his trial counsel has not had an
opportunity to respond to them. See Goodspeed, 187 S.W.3d at 392.
With regard to the 9-1-1 call, the record does not support Aleman’s appellate argument. It
is true that Aleman’s trial counsel did not use the words “Confrontation Clause” in his objection
to the 9-1-1 call. However, in its response to Aleman’s trial objection, the State responded that the
call was “certainly an excited utterance and not subject to confrontation clause given that it was a
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request for emergency help” (emphasis added). Because the record shows the State understood
Aleman’s objection to be the same one Aleman now argues was never made, this claim of
ineffectiveness is not “firmly founded in the record[.]” Thompson, 9 S.W.3d at 813.
With regard to the surveillance footage, Aleman objected below to the relevance of that
evidence, and the record does not show that the State understood his objection as asserting any
other grounds. As the State notes, however, “the Confrontation Clause does not require the
exclusion of non-testimonial statements.” Ramjattansingh v. State, 587 S.W.3d 141, 159 (Tex.
App.—Houston [1st Dist.] 2019, no pet.). We have reviewed the surveillance camera footage, and
while it shows Aleman moving through the bar, its patio, and its parking lot, the sound in the
footage consists almost entirely of music being played in the bar and traffic noises outside the bar.
The footage does not contain any statements from Aleman or anyone else that could be reasonably
construed as testimonial. 1 See id. (“In general, a statement is testimonial if a reasonable person
would have understood that law enforcement officers were conducting a criminal investigation and
collecting evidence for the purpose of prosecution.”). The record therefore does not support a
conclusion that trial counsel’s failure to make a Confrontation Clause objection to this evidence
“fell below an objective standard of reasonableness as a matter of law[.]” Lopez, 343 S.W.3d at
143; see also Goodspeed, 187 S.W.3d at 392.
Photo of Arispe
Aleman further argues that his trial counsel should have asserted a predicate objection to
State’s Exhibit 7. This exhibit consisted of a photo that an investigating officer took of a photo
1
The only clearly discernible statement made by anyone in the footage is Aleman shouting, “Let’s go, all of y’all” to several people who then follow him outside. There is no evidence in the record showing that any of those individuals were involved in this offense.
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shown on a third party’s cell phone; the photo-within-a-photo was taken by Arispe’s friend, Angela
Cole, and it depicted Arispe approximately six minutes before the shooting.
At trial, Aleman’s counsel objected to State’s Exhibit 7 on relevancy grounds. But because
Cole did not testify at trial, Aleman contends on appeal that his trial counsel should have objected
that the State did not lay the proper predicate. Aleman also argues that he “has a right to confront
his accuser, Angela Cole, under the Sixth Amendment of the United States Constitution.” Aleman
did not assert this purported ineffectiveness in his motion for new trial. See Goodspeed, 187
S.W.3d at 392.
The detective who took the photo of Cole’s phone testified at trial, and he explained that
he took that photo with his own phone when he interviewed Cole at the crime scene. He also
testified that during his investigation, he was able to determine that the photo-within-a-photo was
taken “a few minutes before the shooting took place.” Even if Aleman’s trial counsel believed this
testimony was not sufficient to lay a proper predicate for Exhibit 7 or that Aleman had a
constitutional right to confront Cole about the making of the photo, he could have reasonably
determined that it was not in Aleman’s interest to make any objections that might prompt the State
to call Cole as a witness. 2 Because a “reasonably sound strategic motivation can be imagined” for
trial counsel’s failure to make a predicate objection to State’s Exhibit 7, Aleman has not satisfied
the first Strickland prong on this ground. See Johnson, 624 S.W.3d at 586.
Guilt/Innocence Evidence
Aleman also contends his trial counsel performed deficiently by failing to call any
witnesses during the guilt/innocence phase of trial. 3 He suggests this deficiency arose from his
2
Cole personally witnessed the shooting and made the 9-1-1 call that was played for the jury. During that call, she indicated that both her own children and Arispe’s were present and saw the shooting. 3
Aleman’s trial counsel called multiple witnesses during the punishment phase of trial.
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trial counsel’s purported failure to regularly visit and communicate with him before trial. Aleman’s
motion for new trial did not explicitly complain about his trial counsel’s failure to call witnesses,
but it did allege that his trial counsel did not regularly visit him to prepare for trial.
A defense attorney’s duty to provide reasonably effective assistance includes “counsel’s
responsibility to seek out and interview potential witnesses.” Ex parte Sanchez, 667 S.W.3d 324,
329 (Tex. App.—Houston [1st Dist.] 2022, pet. ref’d). To make a showing of ineffective assistance
on this basis, Aleman must show “that the [uncalled] witnesses were available and would benefit
the defense.” Everage v. State, 893 S.W.2d 219, 222 (Tex. App.—Houston [1st Dist.] 1995, pet.
ref’d). Here, the record contains no evidence of any available, beneficial witnesses that Aleman’s
trial counsel failed to call. See id. Additionally, the record does not show trial counsel’s reasons,
if any, for deciding not to call witnesses. See Mata, 226 S.W.3d at 430. Accordingly, the record is
not sufficiently developed to establish that trial counsel was ineffective solely on that basis.
As to the claim that Aleman’s trial counsel did not spend sufficient preparation time with
him, the record contains at least some evidence on this issue, including a response offered by
Aleman’s trial counsel. As support for his motion for new trial, Aleman presented two motions in
which he requested the appointment of new counsel because he believed his trial counsel had made
only limited efforts to visit and communicate with him. He also presented a jail visitor log that
appeared to show his trial counsel only visited him in jail once. But after the trial court denied
Aleman’s motion for new trial, his trial counsel submitted an affidavit refuting these claims. In the
affidavit, trial counsel represented that he met with Aleman “IN-PERSON at least 8-9 times” in
both the jail and the courthouse conference room. He also represented that he discussed trial
strategy with Aleman “many times—in-person and by Zoom,” “promptly complied with
reasonable requests for information,” “explained all matters to the extent reasonably necessary to
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permit Mr. Aleman to make informed decisions about the subject representation,” and “discussed
and explained all discovery to Mr. Aleman.” While he acknowledged “a short time (maybe 45-50
days) where communication was sparse in early 2025,” he explained that “this was due to not much
activity in the case” during that time.
When the record contains conflicting evidence on a claim of ineffective assistance, we must
defer to the trial court’s role as factfinder. See, e.g., Ex parte Mello, 355 S.W.3d 827, 832 (Tex.
App.—Fort Worth 2011, pet. ref’d). Here, the record shows that Aleman and his trial counsel
presented very different versions of events on this topic. The record also shows, however, that the
trial court denied Aleman’s motion for new trial before trial counsel filed his affidavit. As a result,
the court did not have an opportunity to consider and resolve the conflict between trial counsel’s
version of events and Aleman’s. Because we cannot resolve that conflict in its place, this record
does not permit us to conclude that trial counsel’s performance fell below an objective standard of
reasonableness as a matter of law. See, e.g., Thompson, 9 S.W.3d at 813–14.
Gang Expert
In the final subpart of his first issue, Aleman argues that his trial counsel was ineffective
during the punishment phase of trial because he did not voir dire the State’s gang expert, Greg
Longenbaugh, or otherwise challenge Longenbaugh’s credentials as a gang expert. He contends
that Longenbaugh’s testimony that he believed Aleman was a member of the Mexican Mafia
“clearly lead to the lengthy prison sentence handed down by the jury.” Because Aleman did not
assert this ground in his motion for new trial, his trial counsel has not had an opportunity to respond
to it. See Goodspeed, 187 S.W.3d at 392.
While on the witness stand, Longenbaugh explained that he had testified as a gang expert
in other trials; that he was once a lieutenant in Texas’s prison system, where he received “on-the- 10 -04-25-00491-CR
job training, learning about gang affiliation, tattoos, things of that nature” and personally interacted
with gang members “every day”; that he had taught classes on gangs and identifying gang members
to probation officers, jailers, and other police officers “for maybe ten years”; that he had spent
time interviewing inmates who showed signs of “possible gang affiliation”; and that he had
approximately twenty-two years’ of experience interacting with gang members and teaching about
gangs. He also specifically testified that he “had significant experience with Mexican Mafia,” and
he opined that based on his knowledge and experience, he believed Aleman’s tattoos indicated he
was a member.
Aleman is correct that his trial counsel did not take Longenbaugh on voir dire to challenge
his credentials. His trial counsel did, however, object that the court should decline to recognize
Longenbaugh as an expert on gangs because “that’s not been established that’s even a recognized
field of study or a science of any kind whatsoever. It’s opinion and speculation, double opinion
and speculation as to if Mr. Aleman fits that criteria[.]” Trial counsel’s decision to make this
objection in lieu of interrupting the trial proceedings to conduct a voir dire examination was not
so outrageous that no competent attorney would have chosen that route. See id. Accordingly,
Aleman has not satisfied Strickland’s first prong on this complaint.
Having rejected each of Aleman’s sub-issues, we overrule his first issue.
Defensive Theories
In his second issue, Aleman argues his trial counsel was ineffective because the defensive
theory he presented was not feasible as a matter of law. Specifically, Aleman questions his trial
counsel’s decision to pursue the submission of manslaughter and criminally negligent homicide as
lesser-included offenses of felony murder. He contends this strategy shows his trial counsel did
not appropriately research the law because manslaughter and criminally negligent homicide are
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not lesser-included offenses of felony murder as a matter of law. The State responds that trial
counsel’s strategy was reasonable “given the facts of the case and the substantial evidence of
[Aleman’s] guilt.”
As a threshold matter, we note that Aleman’s motion for new trial—which was filed by
Aleman’s current appellate counsel, not his trial counsel—explicitly argued that Aleman “was
entitled to a lesser included offense instruction on manslaughter which was denied by the Court”
and that “[t]he Court committed material error likely to injure [Aleman’s] rights as follows: The
jury was misdirected in the jury charge by not receiving instructions on a lesser included offense
of manslaughter.” Because the motion for new trial only questioned the trial court’s actions on this
issue, rather than trial counsel’s strategy, Aleman’s trial counsel has not had an opportunity to
respond to this argument. See id. And because Aleman’s appellate counsel clearly believed, at least
at the time of the filing of the motion for new trial, that Aleman’s trial counsel’s defensive theory
was valid, we cannot say that this alleged ineffectiveness is either “firmly founded in the record,”
see Thompson, 9 S.W.3d at 813, or so outrageous that no competent counsel would have pursued
it, see Goodspeed, 187 S.W.3d at 392.
But even if we assume trial counsel’s defensive strategy was unreasonable as a matter of
law, Aleman has not established a reasonable probability that but for this purported error, “the
result of the proceeding would have been different.” See Mitchell, 68 S.W.3d at 642. He has not,
for example, identified any other defensive strategies that trial counsel could or should have
presented instead. Accordingly, he has not established prejudice sufficient to satisfy the second
prong of Strickland.
We overrule Aleman’s second issue.
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CONCLUSION
We affirm the judgment of conviction.
Lori I. Valenzuela, Justice
DO NOT PUBLISH
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