MEHRDAD FAHIMI-MONZARI, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed May 25, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00555-CR
............................
MEHRDAD FAHIMI-MONZARI, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 5
Collin County, Texas
Trial Court Cause No. 005-89144-07
.............................................................
OPINION
Before Justices O'Neill, Lang, and Myers
Opinion By Justice Myers
        Mehrdad Fahimi-Monzari was convicted of indecent exposure and sentenced to ninety days in jail, probated for eighteen months, and a $500 fine. In three issues, he challenges the legal and factual sufficiency of the evidence and ineffective assistance of counsel. We affirm the trial court's judgment.
Background
 
 
 
        Kacey Horgan testified that on June 27, 2007, she was working in the fitting area of an Old Navy store in Plano, Texas. Four of the fitting rooms in the fitting area were occupied, and she was folding clothes at a table located between two of the fitting rooms. Horgan had her back turned to the fitting rooms when she heard a door to one of the fitting rooms open. Thinking that it might be a customer who needed assistance, she turned around and saw a man standing in the fitting room with his hand on his hips. He was completely nude. She quickly turned away and apologized but the man said, “[N]o sweetie, I want you to look.” He spoke “in a whisper” and had an accent. Horgan testified that she was approximately two feet away from the man and that she did not remember anything about his face because it happened too quickly. Although she looked for only a few seconds, she noticed that the man “had an erection.”
        Horgan testified that she quickly left the fitting area and called for a manager on her walkie- talkie. On her way out of the fitting area, she saw an assistant manager, Jeannette,   See Footnote 1  but did not say anything to her because Jeannette was not Horgan's “head manager.” Not more than five seconds later, Horgan saw Paul Kibbe, who was one of the store's assistant managers, standing near the store's acting manager, Denise Girault.   See Footnote 2  She told Kibbe and then Girault what had happened, and they both told her to go into the “back room” of the store and wait there. Horgan worked the remainder of her shift in the “back room” and did not see what happened after that.
        Kibbe and Girault remembered these events somewhat differently. Kibbe testified that Horgan walked straight past him without saying anything, and that she “looked stunned” and “a little shocked.” At that point, he went into the fitting area in response to the request for assistance. Kibbe explained that he went into the fitting area immediately after Horgan walked by and he did not see anyone enter or leave any of the fitting rooms during that time. Kibbe also noted that the fitting room doors automatically close and lock behind the customers and require a key to open.
        Girault testified that she was in the store's office when Horgan walked into the office looking pale, shaking, and very upset. Horgan told Girault that a male customer in the first fitting room “had exposed himself to her.” Girault testified that she told Horgan to stay in the “back room” of the store, after which Girault walked over to the fitting area. When she reached the fitting area, Kibbe was already there. Both Kibbe and Girault recalled that Horgan had indicated that the man was in the first fitting room to the right of a folding table, so they waited for the customer to leave that fitting room.
        After the customer opened the fitting room door, Girault told him, according to her testimony, “I understand that you came out of the fitting room unclothed, and you can't do that.” She also said to him, “It's a family business and that's inappropriate.” Girault recalled that the man became very agitated and began to curse, saying, “She was lying.”   See Footnote 3  At Girault's request, Kibbe escorted the man to the front of the store, where he paid for his purchases with a credit card and then left. Kibbe and Girault both identified appellant in court as the individual that they confronted. Girault testified that Horgan worked the remainder of her shift in the store's “back room” because she “was still shaken up” and “did not want to go back to the fitting room.”         
        Girault subsequently consulted her district manager, who told her to report the incident to the police. She provided police with the transaction records from the sale. Using this information, Plano police officer David Wilson determined that the name of the individual who had shopped at the Old Navy store was “Mehded Fahimi.” Wilson testified that he visited Mehded Fahimi's home in Plano and “left my card asking him to give me a call.”
        Appellant later called Wilson and explained that Mehded Fahimi was his brother, but that appellant was the one who had shopped at the Old Navy store on the day in question. Appellant also told Wilson that he only came out of the fitting room to find some shirts to match the shorts he was trying on, and he was fully clothed when he first opened the fitting room door. When Wilson asked appellant why Horgan would accuse him, appellant stated “[t]hat he believed that she was looking for an excuse to get out of work early so she could leave to go meet her boyfriend.”
        Wilson prepared two photographic lineups in this case. The first photographic lineup was prepared when Mehded Fahimi was the suspect, and both Horgan and Kibbe identified Mehded. Wilson noted that, based on their photographs, appellant and his brother looked very similar to one another. In the second lineup, Kibbe identified appellant but Horgan did not. Neither lineup was introduced into evidence.   See Footnote 4          
        Appellant testified that he was born in Iran. He left Iran at the age of seventeen and lived in Turkey and then Canada before immigrating to the United States. He had lived in Texas for nearly ten years. On the day in question, he visited the Old Navy store at “around 2 or 3 o'clock in the afternoon” with the intention of purchasing some shirts and pants. A “young lady” who was working in the fitting area “assigned” him to a room. Appellant went into the fitting room and, less than a minute later, realized he did not have all of the items that he wanted to purchase. At this point, according to his testimony, appellant had not yet undressed. He told the woman to hold his room for him, and he placed the clothes that he intended to purchase on a nearby bench. Appellant then walked over to the sales floor to find more merchandise, after which the woman “put [him] back in the very same room.”
        After returning to the fitting room, appellant estimated that he spent no more than ten minutes trying on clothes. When he opened the fitting room door, the “young lady” was not there. Another woman told him that “this is a family store” and “when you step out of the room undressed, it's inappropriate.” He asked to speak to his accuser, but was told that she “was very disturbed” and had gone home. Appellant recalled that he was very upset and he “just couldn't calm down.” He paid for his clothes using a business credit card that listed his brother's name as the owner of the account, but that appellant was allowed to use. After paying for the clothing, appellant left the store.         Appellant and his other witnesses also testified that he had a physical deformity. Appellant explained that, because of the way in which he had been circumcised, his penis did not “lift up” during an erection and had a downward curvature. Homa Montazeri, appellant's ex-girlfriend, likewise testified that appellant's penis could become erect when he was aroused but that it always “pointed down” and would never point upward. Dr. Alexander Vilaythong, a medical resident at Parkland Hospital, testified that he had examined appellant and the examination showed appellant's erection had a downward curvature and could not point outward or upward. Dr. Vilaythong agreed the erection would still be noticeable if appellant became aroused, but it might be difficult to see from a few feet away because of the downward curvature.
        Appellant was charged via information with indecent exposure. After being convicted by the jury, the trial court sentenced him to ninety days in jail, probated for eighteen months, and a $500 fine. Appellant subsequently filed a motion for new trial alleging ineffective assistance of counsel. A hearing on appellant's motion was held on June 25, 2009, and appellant's trial counsel testified at that hearing. The trial court overruled the motion, and appellant perfected this appeal.
 
Discussion
Legal Sufficiency
        In his first issue, appellant argues the evidence is legally insufficient to support the conviction.
        Standard of Review
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004).         
        The jury is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. The jury is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for the jury's. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We “determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the jury resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
        Applicable Law
        A person commits the offense of indecent exposure “if he exposes . . . any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.” Tex. Penal Code Ann. § 21.08(a) (Vernon 2003).
        In any criminal prosecution, the State must prove beyond a reasonable doubt that the defendant is the person who committed the charged offense. Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984), overruled on other grounds by Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Identity may be proved by direct or circumstantial evidence, and through inferences. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd). If there is no in-court identification of the perpetrator's identity elicited from trial witnesses, no formalized procedure is required for the State to prove the accused's identity. Clark v. State, 47 S.W.3d 211, 214-15 (Tex. App.--Beaumont 2001, no pet.); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.--Austin 2000, pet. ref'd). The sufficiency of the evidence is then determined from the cumulative effect of all the evidence; each fact in isolation need not establish guilt. See Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). The absence of an in-court identification is merely a factor for the jury to consider in assessing the weight and credibility of the witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Thus, the absence of an in-court identification does not render the evidence insufficient if there is other evidence sufficient to identify the defendant as the perpetrator. Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.--Forth Worth 1999, pet. ref'd). However, an uncertain in-court identification, absent corroborating evidence, is insufficient to support a guilty verdict. Anderson v. State, 813 S.W.2d 177, 179 (Tex. App.--Dallas 1991, no pet.); Bickems v. State, 708 S.W.2d 541, 543 (Tex. App.--Dallas 1986, no pet.). The failure of some witnesses to identify the defendant will not render other identification testimony insufficient. See Jones v. State, 500 S.W.2d 661, 666 (Tex. Crim. App. 1973); see also Bickerns, 708 S.W.2d at 543 (positive identification of robber from photographic lineup, and circumstantial evidence placing appellant in the area and wearing clothing similar to clothing worn by assailant, was sufficient to sustain the conviction despite an uncertain in-court identification).
        Analysis
        Appellant does not contest the elements of the offense but argues the evidence is insufficient to prove he was the person who exposed himself to Horgan. He points out that Horgan, the only eyewitness in this case, initially picked his brother out of a photographic lineup and could not pick him out of the second photographic lineup. Appellant also notes that Horgan actually identified a different person in the second photographic lineup. But this evidence was only presented during the hearing on appellant's motion for new trial, and our review is based on the evidence that was presented to the jury. See Arellano v. State, No. 05-02-01200-CR, 2003 WL 22480926, at *2 n.1 (Tex. App.--Dallas Nov. 4, 2003, no pet.) (not designated for publication) (when evaluating the sufficiency of the evidence, the reviewing court cannot consider evidence not presented to the jury).         Appellant also argues the evidence is legally insufficient because Kibbe and Girault never checked the other three fitting rooms to determine if they were occupied, and they never spoke to Jeanette. However, the presence of customers in other fitting rooms does not alter the fact that appellant was found in the same fitting room identified by Horgan. Furthermore, the jury could have reasonably concluded there was simply not enough time for the perpetrator to leave the fitting area or for appellant to innocently enter it unnoticed, given evidence that (1) Kibbe entered the fitting area only seconds after the offense occurred; (2) Kibbe did not see anyone enter or leave any of the fitting rooms; and (3) each fitting room door automatically closes, locks, and can only be opened by an employee with a key. Viewed in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support the conviction. We overrule appellant's first issue.
Factual Sufficiency
        In his second issue, appellant contends the evidence is factually insufficient to support the conviction.
        Standard of Review
        In a factual sufficiency review, we consider whether, after viewing the evidence in a neutral light, a rational trier of fact was justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). We “must be cognizant of the fact that a jury has already passed on the facts and must give due deference to the determinations of the jury.” Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008). “A verdict should be set aside only if the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust.” Id. at 705. Consequently, we will not reverse a judgment on a factual sufficiency challenge unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417.
        In determining whether the evidence is factually insufficient to support a conviction that is supported by legally sufficient evidence, it is not enough for us to “harbor a subjective level of reasonable doubt to overturn [the] conviction.” Id. We cannot conclude a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the jury's. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless we conclude it is necessary to correct a manifest injustice, we must give due deference to the jury's determinations, “particularly those determinations concerning the weight and credibility of the evidence.” Johnson, 23 S.W.3d at 9. Our deference in this regard safeguards the defendant's right to a trial by jury. Lancon, 253 S.W.3d at 704.
        Analysis
        Horgan testified that the suspect was in the first fitting room, and Kibbe and Girault indicated that they saw appellant leave that fitting room only seconds after the offense occurred. Kibbe also testified that no one else went in or out of the fitting area before appellant was found there. Given this timing and the fitting rooms' self-locking doors, the jury could have reasonably concluded it was impossible for anyone other than appellant to have been in the fitting room where Horgan saw the suspect.
        As for the contrary evidence of appellant's physical abnormality, Horgan testified that when appellant exposed himself, he had an erection and “his penis was up in the air.” Appellant's witnesses testified, on the other hand, that his penis was physically incapable of rising even when he had an erection. But Horgan also testified that she looked at appellant for no more than a few seconds, and her testimony showed that she did not look directly at appellant's penis and she could only tell that he had an erection. In addition, appellant's witnesses testified that his penis could become erect, although it did not “lift up” during an erection and it had a downward curvature.         Appellant denied that he exposed himself to anyone, and his testimony presented a version of events that contradicted the testimony of Horgan and the store managers. But even a factual sufficiency review requires “a great deal of deference” to the jury's verdict, particularly its decisions concerning whether to believe or disbelieve a witness's testimony. Steadman v. State, 280 S.W.3d 242, 246-47 (Tex. Crim. App. 2009). Evidence is not factually insufficient merely because there are “reasonably equal competing theories.” Id.
        Viewing all the evidence in a neutral light, the evidence supporting the convictions is not so weak that the jury's determinations are clearly wrong and manifestly unjust, nor does the conflicting evidence so greatly outweigh the evidence supporting the conviction that the jury's determinations are manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414-15, 417. Accordingly, we conclude the evidence is factually sufficient to support the conviction. We overrule appellant's second issue.
 
Ineffective Assistance of Counsel
 
        In his third issue, appellant argues that he received ineffective assistance of counsel. Specifically, appellant contends his counsel was ineffective in failing to (1) cross-examine witnesses about inconsistencies in their testimony, (2) develop testimony that Horgan identified someone other than appellant in the second photographic lineup, (3) hire a medical expert, and (4) present an opening statement.
        Standard of Review
        The effectiveness of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) (en banc). To prevail on a claim of ineffective assistance of counsel, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88. Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d at 813.         Our review of trial counsel's performance is highly deferential, and there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). An appellate court determines the reasonableness of counsel's challenged conduct in context and views it as of the time of counsel's conduct. Andrews, 159 S.W.3d at 101. An appellate court should not try to second- guess trial counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex. Crim App. 1999) (en banc).
        To defeat the strong presumption of reasonable professional assistance, an appellant must prove by a preponderance of the evidence that counsel's representation was unreasonable according to prevailing professional norms and that any alleged inaction was not sound legal strategy. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). An appellant must identify the specific acts or omissions that were not the result of professional judgment. Strickland, 466 U.S. at 690. “Any allegation of ineffectiveness must be firmly rooted in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813. Counsel is not deficient merely because another attorney, including appellant's counsel on appeal, would have acted differently. See Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004).
        Cross-Examination of Witnesses
        Appellant first argues counsel was ineffective because he failed to properly cross-examine the State's witnesses regarding alleged inconsistencies between their trial testimony and pretrial statements that were contained in police reports which were available to defense counsel. The decision not to cross-examine a witness is often “the result of wisdom acquired by experience in the combat of trial.” Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1992) (quoting Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973)). At times, it can be more effective to refrain from cross-examining a damaging witness to minimize the impact of his testimony. Ryan v. State, 937 S.W.2d 93, 103 (Tex. App.--Beaumont 1996, pet. ref'd).
        Appellant points out that Horgan indicated in a pretrial statement that she helped appellant carry his clothes into the fitting room, while she testified at trial that she saw appellant for only a few seconds. At the hearing on appellant's motion for new trial, defense counsel suggested that it was good for the defense if the jury believed the victim had only limited contact with the suspect, and that it would have harmed the defense to show that she actually dealt with him for a longer period of time. He argued it was a strategic decision to not question Horgan regarding this question because it would have given her more credibility.
        We need not resolve the question of whether such a decision constituted deficient conduct. Even if we were to conclude that counsel's performance in this instance was deficient, appellant has not shown that the error would have caused a different outcome at trial because his conviction did not rest on Horgan's identification or lack of identification of the suspect. Horgan, in fact, never identified appellant at trial and she testified that she did not remember anything about the suspect's face because the incident occurred too quickly. She identified the fitting room where the suspect exposed himself, and appellant was found in the fitting area only seconds after the offense by an assistant manager and the store manager, both of whom identified appellant as the individual that they confronted. Further cross-examination of Horgan regarding this subject is unlikely to have yielded a different result at trial. Therefore, appellant has not shown that the result of the proceeding would have been different.
        Appellant also argues that defense counsel did not cross-examine any of the witnesses concerning Jeannette. Appellant calls Jeannette “the missing link” and the “one person” that could have testified regarding what happened in the fitting room and who entered and exited the fitting area after Horgan. Horgan testified that she passed Jeannette as she was leaving the fitting area, and that she only “got right around the corner” before encountering Kibbe. Kibbe testified that he immediately went into the fitting area. According to the record, therefore, the difference in time between Jeannette's entrance and Kibbe's was only a matter of seconds, and Kibbe further suggested that this timing, as well as the self-locking fitting room doors, made it impossible for anyone else to have entered the fitting area unnoticed. Furthermore, there is no indication in the record that Jeannette would have testified any differently from the other witnesses. The failure to call a witness to testify is not ineffective assistance absent a showing that the witness was available to testify and her testimony would be beneficial. Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986). Appellant had the opportunity at the motion for new trial hearing to call Jeannette as a witness. In the absence of a showing as to how Jeannette's testimony would have benefitted him, appellant has not established that the result of the proceeding would have been different.
        Photographic Lineup
        Appellant next argues that defense counsel did not cross-examine either Horgan or Wilson regarding Horgan's identification of a suspect other than appellant in the second photographic lineup. In his testimony at the motion for new trial hearing, appellant's trial counsel testified that he did not cross-examine witnesses regarding the photographic lineups because he did not want to highlight appellant's Persian ethnicity. Defense counsel believed “there would be a prejudice factor” with the jury if he had done so because four of the six photographs in each lineup featured individuals who appeared to have Middle-Eastern, Persian, or Arab ethnicity, and the person selected by Horgan in the first lineup, appellant's brother, was also Persian. Defense counsel contended that his defensive strategy was based on Horgan's failure to identify appellant's physical abnormality, which counsel called the “major factor” in his defense.
        Failure to impeach a key government witness whose testimony is central to the government's case may, in some circumstances, constitute deficient performance that prejudices a defendant. See Beltran v. Cockrell, 294 F.3d 730, 734 (5th Cir. 2002). In Beltran, which is relied on by appellant, the State's case against the defendant was based on witness identification. Id. The defensive theory, in turn, was based on misidentification because the defendant did not have a tattoo that was described by the witnesses. Id. at 734. However, the only thing defense counsel did to further this strategy was testify to the defendant's lack of such a tattoo.   See Footnote 5  Id. Defense counsel did not introduce evidence that several witnesses who identified the defendant at trial had previously (and tentatively) identified the co-defendant based on a photographic spread. Furthermore, defense counsel did not know that the co-defendant had the tattoo that was central to the defense strategy because he never investigated the matter, nor was counsel aware of the fact that the co-defendant and his brother had been spotted in the getaway car fifteen minutes after the murder. Id. When the prosecution attempted to introduce evidence of the photographic spread, defense counsel kept this evidence out of court by objecting on relevancy grounds.   See Footnote 6  Id. The court concluded that prejudice had been established because the co-defendant had the tattoo in question and had been tentatively identified by witnesses, and that such evidence would have raised sufficient doubt in the jury. Id. at 734-35.         The situation in the present case is different because the identification of appellant as the perpetrator rested not on eyewitness identification but on circumstantial evidence. During the trial, defense counsel developed testimony that the complainant and only eyewitness to the offense, Horgan, could not identify appellant because she did not remember anything about the suspect's face, and she described the suspect as having a “normal erection.” She identified the fitting room where the suspect exposed himself, however, and appellant was found in the fitting area only seconds after the offense by two store managers, both of whom identified appellant as the individual that they confronted. Appellant has not shown that the result of the proceeding would have been different had the jury been informed of Horgan's earlier misidentification.
        Medical Expert         Appellant also contends that defense counsel failed to “properly present” appellant's “medical defensive evidence,” including expert testimony from a urologist or some other medical professional with expertise in dealing with appellant's “particular medical issue.” Appellant further argues that defense counsel failed to offer into evidence photographs of appellant's “abnormality” that were taken by Dr. Vilaythong, the medical resident who testified at trial. Appellant contends that such evidence would have directly rebutted Horgan's testimony.
        At trial, Dr. Vilaythong testified that he was a medical resident at Parkland Hospital and had treated hundreds of patients. He said he was not being paid but was testifying as a favor to defense counsel, who was representing him in another case. At the hearing on the motion for new trial, defense counsel disputed that Dr. Vilaythong testified as a favor, but he stated that seeking another expert would have been “prohibitively costly.” Defense counsel also testified that he did not request funding from the court to hire another expert because he believed Dr. Vilaythong was a qualified expert, and that hiring a urologist was unnecessary since the defense needed only a description of appellant's physical characteristics rather than his physiological condition.
        Appellant directs our attention to Ex parte Briggs, 187 S.W.3d 458, 468-69 (Tex. Crim. App. 2005), which concluded that defense counsel could be considered ineffective for making a purely financial decision not to hire expert witnesses. In Briggs, however, counsel chose not to hire any experts to investigate the sole issue in the case, which was whether the cause of death was accidental or intentional. Id. In this case, on the other hand, defense counsel secured the testimony of a medical resident who testified regarding his observations of appellant's physical condition. Appellant has not shown that a determination of his medical condition involved questions of internal physiology or that it required complex medical testing, and he has failed to show that another medical witness would have testified any differently from Dr. Vilaythong. Further, the photographs taken by Dr. Vilaythong are not part of the record. Appellant, in other words, has not shown that the result of the proceeding would have been any different.
        Opening Statement
        Appellant's final contention is that defense counsel failed to present an opening statement at the start of the defense's case, and that such a statement could have explained to the jury the defense's theory of mistaken identification. By failing to give an opening statement, appellant argues that defense counsel left the jury “to speculate that [appellant] was simply calling [Horgan] and other store employees liars.” Appellant, however, did not raise this final complaint in his motion for new trial and he did not question defense counsel regarding his reasons for not making an opening statement.   See Footnote 7 
        The record fails to support appellant's allegation that counsel rendered ineffective assistance by waiving his opening argument. Because an opening statement can give the State a preview of the defense strategy, defense counsel may make a tactical decision not to present one, and such a decision does not amount to ineffective assistance. See Davis v. State, 22 S.W.3d 8, 13 (Tex. App.--Houston [14th Dist.] 2000, no pet.); Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.--Fort Worth 1996, no pet.). Moreover, although appellant argues that the lack of an opening statement “left the jury to guess at appellant's purpose,” it was clear from defense counsel's cross- examination of the State's witnesses that the defense's theory of the case was based on misidentification. Therefore, appellant has failed to overcome the presumption that counsel's decision was based on sound trial strategy. We conclude appellant has not demonstrated from the record counsel's ineffectiveness. Accordingly, we overrule appellant's third issue.         We affirm the trial court's judgment.
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090555F.U05
 
Footnote 1 The record does not reveal Jeannette's full name.
Footnote 2 Horgan estimated that she encountered Kibbe “[n]ot even five seconds” after she saw Jeannette.
Footnote 3 According to Girault, at this point the man had not been told who had accused him.
Footnote 4 During her direct examination of Wilson, the prosecutor referred to the photographic lineups as “State's Exhibit 3 and State's Exhibit 4.” Although they were marked for identification, there is no indication that the prosecutor offered them into evidence or that they were published to the jury. They are not included in the reporter's record.
Footnote 5 Defense counsel was the only witness called by the defense before both sides closed. Id.
Footnote 6 Defense counsel testified that he deliberately attempted to keep the jury from hearing anything about the co-defendant because he did not want his client associated with that individual, whom he thought resembled a “serial killer.”
Footnote 7 An ineffective assistance of counsel claim can be raised for the first time on direct appeal but the record on direct appeal is often undeveloped and does not adequately reflect the failings of trial counsel. See, e.g., Thompson, 9 S.W.3d at 813-14.