OMAR ALEJANDRO MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued June 11, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01094-CR
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OMAR ALEJANDRO MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F05-72727-X
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OPINION ON PETITION FOR DISCRETIONARY REVIEW
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Mazzant
        This Court's opinion of March 20, 2007 is withdrawn, and this opinion is substituted in its place. Tex. R. App. P. 50. Omar Alejandro Martinez appeals his conviction for felony sexual assault. In five issues, he claims legal and factual insufficiency, Batson error, and ineffective assistance of counsel. We affirm the trial court's judgment.
Background
        Erica Hernandez and appellant started dating in June of 2004. They rented an apartment but the relationship soured shortly after they began living together because appellant “was always too jealous.” Appellant monitored her phone calls, time she spent completing ordinary errands away from the apartment, and time she spent with friends and family. Appellant was particularly suspicious of Erica's cousin, with whom he had gotten into a fist fight.
        Erica decided to end the relationship. On Saturday June 15, 2005, she had planned to visit her ex-husband, who lived in Waco. Before leaving town, she secretly packed her clothes and some of her children's clothes and left those items at her grandmother's house. Later that day, while she was taking a shower, appellant intercepted a text message from the children's father to Erica, telling her where to find the key to his apartment. When appellant discovered that Erica planned to spend the weekend with another man, he confronted her and the couple got into an argument. Erica told him that she was going to visit the father of her children and would not return to the apartment until appellant vacated it. She also told him that she was “tired of the way he was treating” her. She eventually left the apartment, picked up by her cousin and younger brother.
        After returning from Waco on Tuesday, Erica spent the remainder of the week at her mother's house in Addison, returning briefly to the apartment to pick up more clothing. During that time, appellant barraged her with telephone calls and text messages, telling her how much he needed to see her and that he was going “crazy not knowing what [she] was doing, who [she] was talking to or where [she] was going.” Erica testified that throughout her relationship with appellant he had threatened that if she ever tried to leave him he would do something she “would never forget” and that she would “remember him for the rest of [her] life.”
        During that week, Erica continued to talk to appellant. Erica told him they “needed some time away” from each other. Appellant did not react well to this, telling her “he was going crazy” thinking she might be spending time with “someone else.” On two occasions, she went to his mother's house to return some property and talked to appellant briefly while she was there.
        On Friday January 21, appellant called Erica to tell her they needed to spend some time together away from her family and children. There were frequent telephone calls and text messages throughout the day. After 10:00 or 11:00 p.m., she stopped answering her phone. Later, between 2:00 and 3:00 a.m., appellant called her to ask why she would not see him. Afraid of what appellant might do to her, she told him she was at her mother's house in Addison when she was actually staying with her grandmother. Appellant drove to her mother's house to look for her but left after discovering Erica was not there.         
        She eventually went back to sleep but later that morning she awoke to the sound of appellant honking a horn outside her grandmother's house. She went outside to talk to appellant. He told her to get in his truck. When Erica refused, appellant got out, grabbed a bat out of the back of the truck, and approached her. Holding the baseball bat in his left hand, he opened the truck door and forced Erica into the truck. Erica testified there was an “evil look” on appellant's face. She did not resist because she was afraid he was going to hit her with the bat.
        Appellant drove Erica to their former apartment. She reminded him that her children were still at her grandmother's house, and she told him to take her back there. As they drove away from her grandmother's house, appellant grabbed Erica by her hair and held her head down on his lap. He told her several times “he needed to be with” her and that he loved her. He also pulled her hair and slapped her. Appellant's demeanor truly frightened Erica. She did not “know what he was going to do next.”
        After reaching the apartment, appellant ordered Erica to get out of the truck and open the apartment door. She told him she did not have the keys to the apartment. Appellant replied, “What do you mean you don't have your keys?” Erica insisted she did not have “anything with” her. Appellant said, “[W]e're going to break the window.” Erica reminded him they would have to pay for damage to the apartment when they moved back in.
        Appellant decided to drive to a motel. Upon arriving, he left the truck door open and walked to the window of the motel office to register for a room. Erica thought about trying to escape but appellant was only a few steps away and kept a close eye on her. She believed that if he caught her trying to escape, the situation would be even worse for her. She also thought appellant would hit her with the bat. In order to survive, she decided that she would say whatever she thought appellant wanted to hear and would try to do anything he asked her to do.
        After registering for the room, appellant opened the passenger door and ordered Erica to get out of the truck. She refused. Appellant tried to pull her out of the truck but she had a hand on the steering wheel. He pried her hand off the steering wheel, picked her up, and carried her into the motel room.
        Once they were inside the room, appellant took off his shirt and pushed Erica onto the bed. A pornographic movie was playing on the television, and appellant told her to imitate the conduct shown in the movie. When she tried to look away from the screen, he pulled her hair and told her to watch the movie. Appellant grabbed Erica by her arms and began biting her. He removed her shorts and started kissing her legs and vagina. Although she was bleeding from her vagina, he continued to kiss her. Appellant grabbed his penis, rubbed it on her, and tried to open her legs. Erica repeatedly told appellant to stop and that she wanted to go home to be with her children. Appellant told her he wanted her “to give him a hard on.” When he held her arms down and got on top of her, he used his legs to open her legs. Then appellant penetrated Erica's vagina with his penis. She tried to get appellant off of her but could not. She told him to stop and that she “didn't want it like that, and he didn't care.” Appellant then grabbed her by her hair, turned her over, and penetrated her again until he had an orgasm.
        Afterwards, while appellant was using the bathroom, Erica tried to run out of the motel room but the door was locked. Before she could escape, appellant grabbed her by the hair and pushed her back onto the bed. When she tried to make a telephone call, he pulled the telephone cord out of the wall. He held it with both hands like he was about to choke her with it. She begged appellant not to kill her and claimed she loved only him. Appellant told Erica he knew that was not true and that she still loved her ex-husband. They left the motel and drove back to her mother's house. Before dropping her off, appellant told her, “I know you are going to call the police and I know I'm never going to see you again, but we'll see each other again.”
        When Erica's mother saw her, she ran out to the truck and asked appellant what had happened. Appellant told her Erica would “not leave him alone.” Erica's mother slapped him. Then appellant got a wooden bat out of the truck and approached her with the bat in his hand. When this happened, she and Erica ran into the house. As they were running, appellant broke two of the windows in Erica's car. Erica's mother saw that Erica's face was bruised and she was crying. Erica acted like “she was scared.” Erica told her that appellant had taken her from her grandmother's house by force and physically abused her. After Erica's mother noticed bruises on Erica's body and blood on her clothing, Erica told her mother about the sexual assault. Erica's mother told her to call the police.
        A police officer transported Erica to the hospital, where Officer Patti Saldana photographed Erica's injuries. Saldana also collected physical evidence at the crime scene. She photographed the motel room and collected five pieces of evidence, including bedding and a towel. The phone was not attached to the wall. She searched the room for a telephone cord but could not find it.
        At trial, Erica used the photographs to identify bruises on her arms and bite marks on her face, neck, arm, and chest. When Saldana took the photographs, she recalled seeing injuries on Erica.
        Dr. Eddie McCord, a physician in the Obstetrics and Gynecology Department at Parkland Hospital, conducted the sexual assault examination. The examination of Erica's genitalia showed no trauma; the findings were “normal.” He explained these findings could have resulted from the patient having been “cooperative” or having used a lubricant during the sexual activity. His report states he did not find any bruises, scratches, lacerations, or bite marks on Erica's body. When asked to reconcile his report with the photographs of Erica's injuries, McCord said this could have been attributable to the fact that she initially denied having any marks on her body or the passage of time between the moment those photographs were taken and the medical examination.
        Appellant was indicted for aggravated kidnapping and sexual assault. Both offenses were submitted to the jury. The jurors were unable to reach a verdict on aggravated kidnapping, and, therefore, the trial judge declared a mistrial on the aggravated kidnapping charge. Appellant was convicted of sexual assault. Following the punishment phase of the trial, the jury sentenced him to ten years in prison for sexual assault.
 
Factual Sufficiency
        In his first and second issues, appellant claims the evidence is legally and factually insufficient to support the verdict. Specifically, he claims the evidence is insufficient that he compelled Erica to submit or participate in sexual intercourse by physical force or violence or by threatening the use of physical force or violence.
        Standards of Review
        When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Id. at 417. We cannot conclude a conviction is “clearly wrong” or “manifestly unjust” simply because we would have voted to acquit the defendant. Id.
In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determinations). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).         Applicable Law
        To convict appellant of sexual assault, the State was required to prove he intentionally or knowingly caused the penetration of Erica's sexual organ without her consent. Tex. Pen. Code Ann. § 22.011(a)(1)(A) (Vernon 2003). Sexual assault is without consent if the offender compels the other person to submit or participate “by the use of physical force or violence” or “by threatening to use force or violence.” Id. § 22.011(b)(1), (2)   See Footnote 1 . In addition, article 38.07 of the code of criminal procedure provides, in part, that a conviction under section 22.011 may be supported by the uncorroborated testimony of the victim if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2004-05).
        Analysis
        Appellant claims there is insufficient evidence that he used physical force or violence against Erica. Photographs depicting bite marks and bruises to Erica's face and body were shown the jury. Erica identified the injuries visible in the photographs and claimed she had the bite marks on her face and bruises on her arms as a result of the assault. The police officer who photographed Erica at the hospital recalled seeing the injuries. Erica's mother recalled seeing bruises on Erica's face and blood on her clothing. Although the examining physician's report indicated he did not observe any injuries on the victims' body, he explained this could have been due to the passage of time. Furthermore, the jury was the sole judge of the credibility of the witnesses and the weight to be given the evidence and was free believe all, some, or none of it. See Margraves, 34 S.W.3d at 919.         Appellant also argues there is insufficient evidence that he used threats of physical force or violence. Erica testified she was forced to get into appellant's truck because he brandished a bat. Appellant claims Erica could not remember whether the bat was made of plastic or wood. According to her testimony, however, when asked whether the bat was “a plastic bat or hard bat,” she said it was a “hard bat” of “[r]egular size.” In addition to Erica's testimony, the jurors could have considered testimony from Erica's mother who said that she saw a wooden bat in appellant's possession when he and Erica returned from the motel. The jurors could have reasonably inferred this was the same bat appellant used to threaten Erica into getting into the truck. Furthermore, while Erica's grandmother did not see appellant brandish a bat or any other weapon, it was the responsibility of the jurors, as the sole judges of the credibility of the witnesses and the weight to be given the evidence, to resolve all evidentiary conflicts. See Margraves, 34 S.W.3d at 919. Appellant also points out that the crime scene detective who searched the motel room found a telephone but it was not connected to the wall and no telephone cord was found in the room. The jurors could have reasonably inferred appellant took the telephone cord out of the motel room after pulling it from the wall and threatening Erica's life with it.
        Appellant further argues that Erica's testimony regarding the bat and the telephone cord do not support the verdict because there is no evidence he threatened her with the bat in the motel room and the incident with the telephone cord occurred after the assault. However, explicit verbal threats and physical injury are not necessary to prove a defendant compelled a victim's participation in a sexual act. See Edwards v. State, 97 S.W.3d 279, 291 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). “Inherent in the concept of force, whether it be physical force, threats, or some other type of coercion, is that, when a person involuntarily faces distasteful options, it is very human to select that which is the least distasteful.” Id. Erica testified she did not resist appellant once they were in the motel room because she was afraid, given his previous display of the bat and past history of threats against her, that any resistance would only worsen her situation. She believed appellant's demands carried an implicit threat that if she did not submit to his demands, she would be harmed in some way. Given such circumstances, the jurors could have reasonably concluded she suffered a “threat of force or violence.”
        Appellant also points out that the State failed to introduce either the bat or the telephone cord at trial, but the State was not required to produce either object for the jury to accept Erica's testimony that she did not consent to the sexual activity and that it occurred because appellant threatened force or violence against her. See Morales v. State, 633 S.W.2d 866, 868-69 (Tex. Crim. App. [Panel Op.] 1982) (State need not produce knife at trial to prove it was used or exhibited as a deadly weapon); Victor v. State, 874 S.W.2d 748, 751 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd) (State not required to introduce knife into evidence to meet its burden of showing that knife allegedly used in aggravated robbery was a deadly weapon; testimony could be offered to establish that knife was a deadly weapon).
        In addition to arguing there is insufficient evidence of the use of physical force or violence or threats of force or violence, appellant also claims there is legally and factually insufficient evidence that he and Erica had sexual intercourse on the date of the alleged assault. He points to the absence of scientific or other supporting evidence to corroborate Erica's testimony that she was sexually assaulted. However, Erica's testimony that she told her mother about the assault shortly after arriving home is sufficient corroboration under article 38.07 to sustain the conviction. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2004-05).
        Viewed under the proper standards, we conclude the evidence was legally and factually sufficient for the jury to find appellant used threats of physical force or violence to sexually assault Erica Hernandez. We resolve appellant's first and second issues against him.
Batson
        In his third issue, appellant contends the trial court erred in denying his Batson challenge to the State's peremptory strike of prospective juror number five, Charlie Bates. The State claims the trial court's decision is not clearly erroneous.
        Background
        During voir dire, the prosecutor asked the panel of prospective jurors whether they or a family member had “ever been arrested, charged, prosecuted or convicted of any crime above a traffic ticket.” Bates revealed his son had prior arrests for drug and concealed weapons offenses. The prosecutor asked him whether this would interfere with his ability to be fair and impartial, and he said no. Later, at the end of voir dire, after other prospective jurors had been questioned, the trial court asked the parties whether there were “any objections to the Court's ruling on any of those jurors who I have stated are not qualified?” The prosecutor informed the trial court that Bates had two prior misdemeanor convictions for DWI. When she indicated that she wanted to strike him for cause “based on his failure to be straightforward,” the trial court stated, “You may be able to strike him and get past Batson on it, but I want to talk to him first.” After being questioned by the court, Bates admitted he had been convicted in 1972 and 1982 of DWI. He said he failed to disclose these convictions because he “didn't think of it” and he thought the prosecutor's question asked whether “people or kids [had] been arrested.” The trial judge explained that arrests for DWI did not necessarily disqualify him from jury service but that he wanted to clarify the record.
        The State subsequently moved to excuse Bates for cause. After the trial court denied the State's motion, it used a peremptory challenge to remove him from the jury. The trial court then asked the defense whether it had any objection to the jurors. At this point, defense counsel objected that Bates “was struck for his race and no other reason.” The prosecutor replied that she struck Bates because he was “not being straightforward as to his prior DWI” and he had “less than a high school education” She added that the State struck “some other people for that same reason who were not his same race.” The trial court denied the Batson challenge.
        Standard of Review
        When reviewing a Batson challenge, an appellate court examines the record in the light most favorable to the trial court's ruling and reverses only when the ruling is clearly erroneous. Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002); Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996); Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.-Dallas 1999, pet. ref'd). A ruling is clearly erroneous when, after searching the record, an appellate court is left with the definite and firm conviction that the trial court has made a mistake. Bausley, 997 S.W.2d at 315. If the record, including voir dire, the prosecutor's explanation of his peremptory challenges, appellant's rebuttal, and any impeaching evidence, supports the trial court's ruling, then the ruling is not clearly erroneous. Id.
        Applicable Law         To challenge the State's use of peremptory strikes under Batson, a defendant must first make
a prima facie showing that the State exercised peremptory strikes on an impermissible basis. Herron, 86 S.W.3d at 630; Bausley, 997 S.W.2d at 316. Once a defendant makes a prima facie showing of purposeful discrimination, the State must provide a race or gender-neutral explanation for striking the prospective juror in question. Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. This step does not demand a persuasive or even plausible explanation; rather, it requires an explanation devoid of inherent discriminatory intent. Bausley, 997 S.W.2d at 315 (citing Purkett v. Elem, 514 U.S. 765, 768 (1995)). An explanation is neutral in this context if the State bases it on something other than the juror's race or gender. See Hernandez v. New York, 500 U.S. 352, 360 (1991). Unless discriminatory intent is inherent, the courts will consider the explanation race or gender-neutral. See id. at 360. If the State provides a race or gender-neutral explanation for its strikes, the defendant may rebut the State's explanation or show that the explanation was merely a sham or pretext. See Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Bausley, 997 S.W.2d at 316. The defendant has the ultimate burden of persuasion to establish the truth of his allegations of purposeful discrimination. Id.
        Analysis
        The prosecutor said she struck Bates from the jury because he had not been “straightforward” about his criminal history and he had less than a high school education. Defense counsel offered no rebuttal to these explanations. The court of criminal appeals has noted that a party's failure to offer any real rebuttal to a proffered race-neutral explanation is often fatal to a Batson claim. See Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002). Furthermore, the State's reasons for striking Bates from the jury were race-neutral. It is well settled that a juror's involvement with the criminal justice system, either personally or in connection with a family member, is a race-neutral explanation for striking a juror. See Harris v. State, 996 S.W.2d 232, 235-36 (Tex. App.-Houston [14th Dist.] 1999, no pet.); Thornton v. State, 925 S.W.2d 7, 11 (Tex. App.-Tyler 1994, pet. ref'd); Frierson v. State, 839 S.W.2d 841, 853 (Tex. App.-Dallas 1992, pet. ref'd). Failure to disclose information during voir dire is also a sufficiently race-neutral reason to peremptorily challenge a potential juror. See Thornton, 925 S.W.2d at 10; Holman v. State, 772 S.W.2d 530, 533 (Tex. App.-Beaumont 1989, no pet.); Perry v. State, 770 S.W.2d 950, 952-53 (Tex. App.-Fort Worth 1989, no pet.). Because appellant has not shown the prosecutor's explanations to be merely a sham or pretext for racial discrimination, the trial court did not err in overruling appellant's Batson motion. We overrule appellant's third issue.
Ineffective Assistance of Counsel
        In issues four and five, appellant contends the trial court abused its discretion by denying his motion for new trial and that he received ineffective assistance of counsel. Appellant's ineffective assistance of counsel allegations are based on his motion for new trial, which alleged trial counsel was ineffective because she (1) failed to interview or call witnesses whose names appellant had furnished; (2) failed to introduce evidence that Erica called appellant and sent him text messages “on a regular basis” both before and after the alleged assault; and (3) deprived appellant of his right to testify at the guilt-innocence phase of the trial.   See Footnote 2 
        Standard of Review
        A trial court is given wide latitude in deciding whether to grant or deny a motion for new trial. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We review the trial court's decision for an abuse of discretion. Id. A trial court abuses its discretion if its decision is arbitrary or unreasonable. Id. The trial court is the sole judge of the credibility of the witnesses at the hearing on the motion for new trial. Id. When, as here, the trial court makes no findings of fact regarding the denial of a motion for new trial, we should “impute implicit factual findings that support the trial judge's ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record.” Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005).
        Applicable Law
        To prevail on a claim of ineffectiveness of counsel at trial, an appellant must establish by a preponderance of the evidence: (1) that trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that she was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions, and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The appellant must identify the specific acts or omissions that were not the result of professional judgment. Strickland, 466 U.S. at 690; Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). We indulge a strong presumption that defense counsel's conduct falls within the wide range of reasonable, professional assistance--that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex. Crim. App. 1994). To defeat this presumption, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Jackson, 877 S.W.2d at 771.
        Analysis
        Appellant first argues trial counsel was ineffective for failing to interview or call potential witnesses during the guilt-innocence phase of the trial. When addressing the specific question of counsel's duty to investigate the facts and interview or call potential witnesses, courts must conduct an objective review of counsel's performance, measured for reasonableness under prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time. Wiggins v. Smith, 539 U.S. 510, 522-23 (2003).
        Trial counsel did not call any witnesses during the guilt-innocence phase of the trial. During the punishment phase, she called appellant and his sister to the stand. In support of his motion for new trial, appellant provided affidavits from four friends (Gumersindo Cortex Nieto, Jose Martin Gonzalez, Jose Miguel Casango, Roberto Aguilar), his mother (Natalia Martinez), and another sister (Maria Martinez Reyna). All of the affiants claimed they were not contacted by defense counsel prior to trial and that they would have been available to testify at trial had counsel asked them. During the hearing on the motion for new trial, appellant testified that he provided trial counsel with the names of the potential witnesses identified in the motion for new trial and told her he wanted them to testify on his behalf.
        Appellant's trial counsel testified during the hearing on the motion for new trial that she was hired to represent appellant. She speaks some Spanish but is not conversant in the language, so she communicated with appellant and his family mostly through an interpreter or her law partner, who speaks fluent Spanish. She could not recall how many times she met with appellant but it was “more than once or twice.” She testified that appellant “felt very strongly about” only two witnesses, the motel clerk and Erica's mother, both of whom were called to testify by the State. When these witnesses testified, she cross-examined them. She said these were the only witnesses identified by appellant who could testify about the sexual assault and kidnapping allegations “specifically.” There may have been other witnesses that appellant wanted her to call during the guilt innocence phase of the trial, but they were “witnesses for character” who could only testify about appellant's “good character” and Erica's “bad character.” When asked whether she interviewed “any of those character witnesses” before deciding not to call them, counsel responded, “Yes,” then quickly added that “[m]ost of them were [appellant's] family members that are here today and were here everyday of the trial.” She did not “remember faces but they were [appellant's] family members.” When asked whether any of the witnesses she chose not to call at the guilt-innocence phase of the trial were called during punishment, counsel replied, “I really can't recall right now who we called at the punishment phase.” Likewise, when asked whether she remembered talking to appellant's sister about testifying, counsel said she spoke with “several” of appellant's “family members” but could not recall their names because “[t]here were so many.” Counsel also spoke with appellant's mother “over and over and over and over every couple of days.”
        The State argues trial counsel made a “strategic decision” not to call the witnesses identified by appellant because their testimony would have been limited to appellant's good character and Erica's bad character. The State also claims these witnesses could have prejudiced appellant's case because they would have been subject to impeachment on cross-examination.         Appellant responds that the State's “post-hoc” theory that the witnesses would have been subject to cross-examination and could have prejudiced appellant's case is irrelevant to our analysis because it was never articulated by trial counsel. It is well-settled that the reasonableness of an attorney's pretrial investigation into possible exculpatory evidence and witnesses depends on the facts known by or available to counsel at the time he made the decision whether to conduct further investigation, interview potential witnesses, or call them to testify. See Wiggins, 539 U.S. at 522-23.
        Appellant also takes issue with trial counsel's assertion that the witness testimony would have been limited to character. He claims they had personal knowledge regarding his relationship with Erica and would have testified regarding the history and status of that relationship as well as other specific events surrounding the offense.
        The reviewing court must indulge a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 690. The appellant must overcome the presumption that, under the circumstances of the case, the contested actions may be considered sound trial strategy. Id. Strategic and tactical decisions are virtually unchallengeable when made after thorough investigation of the facts and law. Id. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91. The decision whether to present witnesses is nearly always a matter of trial strategy. See Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd).
        We must also view the facts in the light most favorable to the trial judge's ruling. See, e.g., Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App.1997) (in reviewing denial of motion for new trial, appellate court must “view the evidence in the light most favorable to the trial court's findings or ruling, if there are no pertinent findings”); Loserth v. State, 963 S.W.2d 770, 774 (Tex. Crim. App.1998) (“[w]hen the trial court does not make express findings of historical facts, the facts are viewed in a light favorable to the court's ruling). The trial judge was in a much better position to judge the credibility of the witnesses at the new trial hearing. At a motion for new trial hearing, the trial judge has “the right to accept or reject any part of” a witness's testimony. See Beck v. State, 573 S.W.2d 786, 791 (Tex. Crim. App. 1978).
        The evidence concerning counsel's representation of appellant was conflicting, requiring the trial court to evaluate the witnesses' credibility and demeanor. Appellant claimed counsel did not investigate potential witnesses. Counsel testified that she investigated potential witnesses and that the individuals appellant identified who could testify regarding the actual allegations of sexual assault and kidnapping were called by the State. Counsel also testified that she spoke with appellant's mother on several occasions. Although it is not clear whether trial counsel spoke with all of the witnesses allegedly identified by appellant, trial counsel is not necessarily ineffective for failing to call every witness requested by a defendant. Taking into account the conflicting evidence presented at the motion for new trial hearing, appellant has not overcome the presumption that, under the circumstances, the decision not to call the witnesses identified by appellant or investigate those witnesses further could be considered sound trial strategy.
        Furthermore, assuming counsel's representation fell below the objective standard of reasonableness when she failed to interview or call the witnesses identified by appellant, we also conclude appellant has failed to prove there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694. According to their affidavits, none of appellant's potential witnesses could provide alibi or eyewitness testimony concerning what occurred between appellant and Erica.
        Appellant also claims that even if the witness testimony were limited to character, it would have provided evidence in mitigation of punishment, especially in light of the fact that probation was an option for the jury to assess as punishment. But even if counsel's decision to not call additional character witnesses during the punishment phase of the trial could be considered unreasonable and deficient, a finding of ineffective assistance of counsel would require a reasonable probability that the outcome of the proceeding would have been different with additional character evidence or that confidence in the outcome was undermined by counsel's failure to introduce additional character evidence. Strickland, 466 U.S. at 687. Appellant has not met this burden. Therefore, he has not established ineffective assistance of counsel.
        Appellant also claims trial counsel was ineffective because she failed to introduce his mother's cellular telephone record as evidence to impeach Erica's testimony. Written in Spanish, the telephone bill lists the date, time, and telephone number of all telephone calls placed from telephone number 214-457-4953 during the months of January and early February, 2005. The record also lists the date and time of each received telephone call but does not provide the caller's telephone number and does not list the date, time, or content of text messages that were sent or received. Appellant claims the telephone record proves Erica was calling him and sending him text messages “on a regular basis” both before and after the alleged assault.
        Trial counsel testified she was aware of the telephone record and decided not to use it because it showed appellant was harassing Erica “and calling her every minute or two for days on end.” According to the record, Erica's telephone number was dialed fifty-six times between January 9 and 21, 2005. Even so, appellant claims trial counsel should have further investigated the received telephone calls in order to determine which ones were actually made by Erica. But the fact that another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. See Johnston v. State, 959 S.W.2d 230, 236-37 (Tex. App.-Dallas 1997, no pet.); Weeks v. State, 894 S.W.2d 390, 391 (Tex. App.-Dallas 1994, no pet.). With the record before us, we cannot conclude trial counsel was ineffective for failing to further investigate the telephone bill. The trial record does not reveal deficient performance sufficient to overcome the presumption that counsel's conduct fell within the wide range of reasonable professional assistance.
        Appellant also argues trial counsel denied him his right to testify during the guilt-innocence phase of the trial. During the hearing on the motion for new trial, trial counsel stated that she and appellant discussed whether he should testify during the guilt-innocence phase and a final decision was not made until after the State rested its case. She claimed appellant rejected plea bargain offers “on numerous occasions before the trial, during the trial and before sentencing of the verdict and chose not to testify.” Although she could not recall appellant's criminal history, she stated that she would have advised appellant in light of that history whether he should testify. She also testified that appellant was admonished on the record by the trial judge regarding his right to testify. Appellant told the prosecutor he did not remember being asked on the record during the guilt- innocence phase of the trial whether he wanted to testify.   See Footnote 3  Appellant remembered trial counsel explaining to him why she did not want him to testify, but he claimed her explanation was “confusing.” When asked what he would have told the jury had he been given the opportunity to testify during the guilt-innocence phase, appellant replied, “I would have clarified all of what happened and why I am innocent.”
        A criminal defendant has a fundamental constitutional right to testify in his own defense. Johnson, 169 S.W.3d at 232. “[D]efense counsel shoulders the primary responsibility to inform the defendant of his right to testify, including the fact that the ultimate decision belongs to the defendant.” Id. at 235. A criminal defendant has “the ultimate authority” to determine whether to testify in his or her own behalf. Florida v. Nixon, 543 U.S. 175, 187 (2004); see also Jones v. Barnes, 463 U.S. 745, 751 (1983) (“[T]he accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal”). If counsel frustrates a defendant's right to testify, we evaluate that error under the ineffective assistance of counsel framework. Johnson, 169 S.W.3d at 228.
        Although it would simplify our analysis if the record contained an admonishment of appellant by the trial judge regarding appellant's right to testify, the absence of such information is not the dispositive factor in our analysis. Trial counsel said she and appellant discussed whether he should testify and appellant ultimately “chose not to testify.” Appellant said he was confused by counsel's explanation concerning why he should not testify. However, he did not indicate what, specifically, about the explanation confused him. Given the conflicting evidence, the trial court could have reasonably concluded appellant voluntarily decided not to testify after being informed of his right to testify by defense counsel. Furthermore, assuming appellant satisfied Strickland's first prong, we conclude he failed to meet the second prong because the record does not show how his testimony might have aided in his defense or produced a different outcome. See Johnson, 169 S.W.3d at 239. Therefore, appellant has failed to establish that his trial counsel provided ineffective assistance. We further conclude the trial court did not abuse its discretion by denying appellant's motion for new trial. We overrule appellant's fourth and fifth issues.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061094PF.U05
 
Footnote 1 Both situations were submitted to the jury in the court's charge. The jury returned a general verdict of guilty.
Footnote 2 Appellant does not raise trial counsel's failure to request DNA testing as one of the grounds for ineffective assistance.
Footnote 3 Prior to jury selection, the State made a “final offer” to dismiss the aggravated kidnapping charge if appellant would accept a five-year sentence for sexual assault. Appellant elected to “go ahead with the jury trial.” After the jury reached a verdict on the sexual assault charge, and while they were still deliberating on the charge of aggravated kidnapping, appellant was admonished by the trial court concerning a plea offer tendered by the State which would have required him to plead guilty to a non-aggravated charge of kidnapping and accept concurrent sentences of ten years in prison for both offenses. In response to the court's questions, appellant told the court he understood the State's plea offer and wanted the jury to decide his punishment. As previously noted, the jury was unable to reach a verdict on the aggravated kidnapping charge and the trial court declared a mistrial. We find no indication in the record that appellant was admonished during the guilt-innocence portion of the trial concerning his right to testify.