Case Information

*1 PD-0035-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/12/2015 4:02:02 PM Accepted 2/13/2015 9:18:45 AM ABEL ACOSTA No. PD-0035-15 CLERK ln Court Criminal Appeals DANIEL DIAZ, APPELLANT

VIIRSUS Tue Srnra oF TEXAS, APPELLDE ON AppEAL FRoM THE 253RD Julrcu.L DISTRICT couRT LIBERTY COUNTY, TEXAS

TRIAL COURT CAUSE NO. 1259853 AND

THE COURT OF.APPtrALS FOR THE NINTH JUDICIAL DISTRICT OF TEXAS BEAUMONT, TEXAS

No. 09-I3-00104-CR APPELLANT,S PETITION FoR DISCRETIONARY REVIEW wENDRT-r- A. Onorrr Jn. TEXAs BAR # i5208500 440 I-oursrANA Sr., SrE 200 I IousToN, TExAS (713)223-ss7s (713)224-28rs lrnxl ATToRNEY FoR Arne II,IN I)ANIEL DIAZ IORAL ARGUMENT RrquEsrEo]

IDENTITIES oF PARTItrS AND COUNSEL Appellant Daniel Diaz Appellee State of Texas Trial Courl Judge Honorable Susan Baker 253'd District Court PO Box 3937 Liberty Counly, TX Galveston,'l exas 77 552 Wendell A. Odom, Jr. Appellate Counsel for PDR 440 Louisiana St., Ste 200 I Iouston, Texas 77002

Richard Burroughs Appellate Counsel in Courl of Appeals P.O. Box 1676 Cleveland, Texas 77328 Trial Counsel

Paul Aman 7l 2 Westcotl St.

Houston, 'Iexas 77007 District Attorney

Logan Pickett Appeal 1923 Sam Houston, Ste 112 I-iberty, Texas77575 Assistant District

Anne Streit Attorney Trial Sam Houston, Ste Liberty, Texas77575

TABLE oF CONTENTS

PAGE IDDNTITIES oF PARTIES, COUNSELS AND JUDGE ..........., TABLE oF CONTENTS ............ .........,.................i

.................... ii INDEX oF AurHoRrrrtrs ........................... iii STATEMENT REGARDTNG ORAL ARGUMENT STATEMENT oF THE CasE'............... STATDMENT oF PROCEDURAL HrsroRy... STATEMENT oF FAcrs.......... ..............,....1

...........2 ........................2 ......................3 GROUNDS FoR REvrtrw ..............................5 I. ISSUE I _ DID THE COURT oF APPEALS RULE INCOII.RECTLY WHEN THtrY FOUND THAT THE EVIDENCT] WAS SUF'FICIENT TO SUSTAIN THE CONVICTION? il. ISSUD II _ DID THE COURT oF APPDALS RULD INCORRECTLY WHEN THEY

FOUND THAT MR. DIAZ wAS PROVIDED EFFECTIVE ITEPRESENTATION uNDER ,srflcrzlND AND TI{E 6t " AMENDMENT To rHE UNTTED STATDS CONSTITUTION?

ARGUMENT AND AurHoRrrIES ..................... ....................5 I. IssuE I...................... ...................5

A. HYPOTHETICALLY CORRECT JURY CHARGD......... B. ARGUMENT ............6 ............................7 I IssuE II........... ...........................10 A. DEFrcrtrNT PERFORMANCD..................... ...........................11 B. HARM RESULTED FROM DEFrcrENcy......

.........................13 PRAYER FoR R8LrEF.............. CERTTFTCATn oF SERvrcE ..................,14

.......................15 II

INDEX oF AurHoRrrrEs

CASES

Ex Parte Lal-lood,401 S.W.3d 45 (Tex. Crim. App. 2013)

Fuller v. State,73 S.W.3d 250 (Tex. Crim. App. 2002)........

Garcia v, State,827 S.W.2d 937 (Tex. C[im. App.1992) Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001)....... 6 I'lorton v. State,4l8l LEXIS I (Tex. App. Houslon[14th Disl.] 2010)

Statutes Tcx. Trans. ('odc Antt. $ 545.1 5b ...9

lll

NO. PD-0035-15 In The Court Crjrninal Appeals DANItrL DIAZ, APPDLLANT

VERSUS TH E STATE oF TEXAS, APPELLEE On Appeal from 253'd Judicial District Court Liberty County, Texas

Trial Court Cause No. CR-29411 And Court of Appeals for thc Ninth Judicial District Texas

Beaumont, Texas

No. 09-13-00104-CR APPELLANT'S PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Comes Now, Daniel Diaz, Petitioner, above styled and nurnbered cause and respectfully urges this Court grant discretionary revierv 1he above named cause, pursuant rules appellate procedures

STATEMENT REGARDING ORAL ARGUMENT Petitioner requests oral argument. Tltis case presents tlte irnportanl issue of whether lhe lower courl inconectly ruled that th.e evidence sfficient to maintain convictionfor official oppression when it un.disputed fi'otn tlte record tltat probable couse existed lhe detention All issues presented require *6 discussiol of the facts, and are issues that require look the correct application of the lau, to the facts in this case. Oral argument would be helpful to the Coutt parties because issues in this case are fact-intensive and oral argument would allow the parties 1o respond any concerns or questions this Court.

STATEMENT OF THE CASE Appellanl was charged with official opprcssion in violation of Texas Penal Code $ 39.03(a)(1) in Liberty County, Texas. On February 28,2013, was convicted subsequent trial by iury, and sentenced maximum one year Liberty County Jail. The Court Appeals for Ninth Judicial District of Texas affinned his conviction, holding that evidence was sufficient to sustain a conviction Appellant was denied 6tl' arnendment right to effective representation.

STATEMENT OF PROCEDURAL HISTORY Courl o1'Appeals for Ninth Judicial District Texas affinled court's judgment on October 22,2014 an unpublished opinion. Di.az v. State, Appellate Number 09-13-00104-CR. A rnotion for rehearing filed on Novernber 2I,2014. 'l-his rnotion was overuuled Court Appeals on December I0,2014. This petition discretionary review is tirnely if filed by February 9,2015. See Tex. R.App.P. 68.2(a), (c).1

' A Motion Extend has been filed with this Petition for Discretionary l{eview. That Motion is requesting additional two (2) days file the Petition for Discretionarf Review.

STATtrMENT OF FACTS Daniel Diaz ("Mr. Diaz") worked for Texas Parks and Wiidlife "fexas as acling garne warden. RR6-7.2 As a peace officer, Mr. Diaz was responsible for enforcing all of the laws in State Texas including those relating 1o Texas fish garne. RR4-27.

Throughout his tirnc as a galne warden, Mr. Diaz had cone into conlact with rnany people in Liberty County, Texas. One person he liad contacted on more than one occasion James David McCorrnick ("Mr. McCorrnick"), cornplaining witness in this case. See RR2, RR3-6. As a result these contacts, Mr. McCorrnick had filed official complaints against Mr. Diaz for various allegations harassment while Mr. Diaz was acting capacity as garne warden. See RR2. These cornplaints against Mr. Diaz took place prior 201 1.

Mr. McCormick had also beerl charged with assaulting Mr. Diaz in 2006 after an altercation Mr. Diaz's horne. RR3-12-13.

On the rlorning Novenber 13,2011, Mr. Diaz was scheduled be on patrol gane warden Texas Parks and Wildlife. Mr. Diaz got into his state issued garne warden vehicle at around 6:20 that morning. 511.3 As sat his driveway, Mr. observed Ford F-350 truck corning down his slreet no head lights on. S11. Further, Mr. noted that the car seemed be traveling in ^[2] RR will refer to the Repoder's Record in the record appeal. The number foJlowing RRwill refer to the volurne number, and the number afler dash refers page number within volurno. For exarnple. RR6-7 refers to Volurne oftl)e Reporter's Record at page 7. ' S will refer to State's Exhibits iD trial. The numbel after the S will refer exhibit number. S1 I is

state's exhibit I L *8 clear excess of the 30 MPH posted speed lirrit for his neighborhood. S 11. The Ford F-350 being driven by Mr. McCorrnick.

Mr. Diaz pulled out his driveway and began follow Mr. McCorrnick RR3- I 80. Shortly thereafter, Mr. Diaz lurned on his emergency lights in an atternpt to pull vehicle over, and lalk to Mr. McColnick. RR3-180. Mr McCorrnick failed 1o respond to Mr. Diaz's emergency lights. RR3-180-187.

Instead of pulling over, Mr. McCormick called 911 for advice, noting he was concerned about Mr. Diaz's inlentions in pulling hiur over that rnorning. Id. AlTer close rnile, Mr. McCorrnick decided subrnit Mr. Diaz and pulled his car over to the side Minglewood road outside Mr. Diaz's neighborhood. RR3- 209

Mr. Diaz asked Mr. McCormick for license and proof ol insurance. RR3-211. The two men had few words back forth, and Mr. McCormick was placed handcuffs officer safety. RR3-275-217. Shortly after Mr McCormick was placed handcuffs, two officers with City of Liberty Police Departrnent arrived on scene. RR3-221. Mr. Diaz two officers discussed natter, Mr. decided would let Mr. McCormick go with verbal warning. S 10

Mr. McCorrnick filed an official complaint internal affairs division Texas Parks and Wildlife in Austin, Texas. RR4-55. After investigation, Liberty County District Attorney's Office accepted charges Official Oppression against Mr. for his actions Novernber 13, 2011. RR4-112.

GROUNDS FOR REVIEW 1. DID THE COURT OF APPEALS RULE INCORRECTLY WHEN THEY FOUND THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE CONVICTION?

2. DID THE COURT OF APPEALS RULE INCORRECTLY WHEN THEY FOUND THAT MR. DIAZ WAS PROVIDED EFFECTIVE REPRESENTATION UNDER,STRIC&IND AND THE 6TIT AMENDMENT OF THE UNITED STATES CONSTITUTION?

ARGUMENT I The 9th Court of Appeals rulcd incorrectly when they found that the evidence sufficicnt support a conviction in light the undisputed testimony Mr. Diaz had probablc cause Mr. McCormick had violated Texas Transportation Code, Title 1 Subchapter C S 545.156 prior his detention.

A. Rule of Law

In reviewing the evidence sufficiency, the court uust consider the evidence light most favorable to verdict determine whether any rational trier of fact could have found the essential elements the crime beyond reasonable doubt. Jackson v. Virginia,443 U.S. 307, 318-19 (1979); Brooks v. State, 323 S.W.3d 893, 898 (Tex. Crini. App. 2010). Evidence can be held be insufficient under 1he Jackson standard two circumstances: 11,) record contains no evidence, or merely "rnodicum" evidence, probative element offense, or (2) evidence conclusively establishes reasonable doubt. See Jackson,443 U.S. 314,318 n. 1l;see also Lasterv. State,275 S.W.3d 512,518 (Tex. Crirn. App. 2009); Williams v. State,235 S.W.3d 742,750 (Tex. Crim. App 2007). sufficiency-of-the-evidence standard allocates to the fact-finder the

responsibility lesolve conflicts in lestimony, weigh the evidence, and tro draw reasonable inferences frorn basic facts ultiurate facts. See Jackson,443 U.S. 319; Claytonv. State,235 S.W.3d 772,778 (Tex. Crirn. App.2007). There is presurnption that the fact-finder resolved any conflicts in the evidence favor verdict review legal sufficiency defers that resolution, provided that the resolution is rational. See Jackson,443U.S. a|326

Legal sufficiency case is measured against the elements offense as defined by hypolhetically correct jury charge case. Malik v. State,953 5.W.2d234,240 (Tex. Crim. App. 1997). A hypolhetically correct jury charge is one "accurately sets out the law, is authorized by indictrnent, does not unnecessarily increase State's burden ofproof or necessarily restrict the State's theories of iiability, and adequately describes parlicular offense for which the defendant was tried." Id. A hypothelically coruect jury charge would no1 simply quote fronr the controlling statute. Gollihar v. State,46 S.W.3d 243,254 (Tex.

Crim. App. 2001). Its scope limited by "the statutory elernents of the offense nrodified charging instrument." Fuller v. State, S.W.3d 250,254 (Tex. Crinr. App.2002) (Keller, P.J., concurring); Cuty v. State,30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

B. Hvpotheticallv Correct Jurv Charge

Under Texas Penal Code $ 39.03 (a)(1), the State has prove that Mr Diaz, while acting under color office, intentionally subjected *11 colnplainant to a detention knew criminal, tortious, or both. Palacios v. State, 2014 WL 37'71870 (Tex. App.-Corpus Christi 2014). In order for a delendant to know that the detention is unlawful under official oppression statule, the detention rnust be fact, unlawful. State v. Edmond,933 S.W.2d 120, 127 (Tex. Crirn. App. 1996). Otherwise a defendant's 'rnislake law' to illegality of his own act would create liability where none before existed. 1d

A detention under 4th amendment does take place until i ) officer makes a showing his authority 2) there is a subrnission that authority.

Johnsonv. State,912 S.W.3d 221 ,234 (Tex. Crirn. App. 1995). Atraffic stop is a detention once person submits the officer's authority stopping his vehicle. Id. A peace of.ficer may lawfully detain a rnotorist rvho commits a traffic violation when officer has probable cause believe a traffic violation has occuned. Garcia v. State,827 S.w.2d 937,944 (Tex. Crim. App. 1992).

Probable cause exists where police have reasonably trustworthy infonnation sufficient warrant a reasonable person believe that a particular person has cornrnitted or is cornrnitting offense. McGee v. State, 105 S.W.3d 609, 614 (Tex. Crirn. App. 2003). test probable cause objective does not take into account subjective thoughts or rnotives officer. Amador v. Slate S.W.3d 872,878 (Tex. Crirn. App. 2009). Further, peace officer rnay rnake warrantless arresl any person who commits traffic violation in presence. Horton v. State, 4187 LEXIS 1, 7-8 (Tex. App.-Houston [14th Dist.] 2010).

C. Argument

The facts in this case are such that no reasonable juror could have found the element of an unlawful detention beyond a reasonable doubt. Given facts in this case, there are three different sets of facts which could have given Mr. Diaz requisite probable cause lawfully detain Mr. McConlick:

1. Mr. Diaz's statement that Mr. McCormick's lights were off while traveling through his neighborhood before the sun rose. S I 1.

2. Mr. Diaz's statenent that Mr. McCorrnick appeared be lraveling well over 30 MPII speed lirnit posted in his neighborhood. S11 3. The undisputed fact that Mr. McCorrnick failed pull to the side the road and stop when confronted with an ernergency vehicle. S11, RR3-180- r 87.

The Court of Appeals was corect their analysis that the first two sets of facts were strong enough for successful challenge sufficiency evidence under ,Iackson The hrst reasons probable cause detailed above, regarding speed Mr. McCorrnick and whether his lights were on, were heavily disputed record appeal. Testirnony delivered Mr.

McCorrnick he was traveling MPH when he saw Mr. lights were "on" when passed Mr. Diaz's house. RR3-178, RR3-176. jury weighs credibility of all of the witnesses, they were within their power to choose believe Mr. McCorrnick during trial. For reason, reasonable juror could have found the elernent unlawful detention beyond reasonable doubl if they were given just first two sels facts

However, the objective standard set out under our 4rl' amendrnent jurisprudence only requires thal the facts of the case show one set of fhcts that provide probable cause for lawful detention. In other words, the Court of Appeals for the Ninth Judicial District needed to view the merits of the third ground for probable cause standing its own rvithout referring to other facts Mr. need prove he had probable cause that three violations occurred in order show it was a lawful detention. If evidence shows an undisputed set of facts that would provide probable cause traffic stop then dctention is lawful without any need defer iury's province of weighing wilness's credibility.

In this case, it undisputed that Mr. McCormick violated Texas Transportation Code, Title Subtitle C $ 545.156 - Vehicle Approached by Authorized Emergency Vehicle. This section the Transportation Code requires on the immediale approach authorized ernergency vehicle using audible visual signals, driver shall 1) yield right-of-way; 2) immediately drive to position parallel close as possible to the right-hand edge or curb ofthe roadway clear any intersection; (3) stop and rernain standing until authorized energellcy vehicle has passed.

Under any version facts jury chose believe, Mr McCormick violated this statute when 1) saw Mr. Diaz behind hitn his emergency lights activated and sirens audible, 2) failed to yield the right-of-way, and 3) continued driving for-ward instead stopping and remaining still until Mr. had an opportunity to pass. A vierv of Mr. McCormick's or Mr. Diaz's

statements in the record on appeal will establish these baseline facts suppod a lawful detention. There is no difference in their testin.ronies. S 11, RR3-180-187.

Furlher, the other evidence in the case presented by the State corroborates their teslirnonies Mr. McCorrnick did not pull over rvhen confronted with an emergency vehicle. See RR. These undisputed facts provided Mr. the probable cause necessary effectuate a lawful traffic stop (detention) Mr McCorrnick. I-Iis subjective intent or pasl dealings Mr. McCormick are iruelevant the analysis of whether the detention was in fact unlawful. With conclusive evidence Mr. McCorrnick violated traffic law in the presence of Mr. Diaz, the evidence at trial was insufficient suppoft a reasonable juror in finding that the element unlawful detention was met. The Courl of Appeals for Ninth Judicial District ofTexas tnade an incorrect application of the law to facts this case rvhen they found evidence sufficient support conviction for Official Oppression on direct appeal. Court of Appcals ruled incorrectly when they ftrund that Mr.

2 Diaz's Trial Counsel ineffective under Stricklarrl and the 6tr' amendment United States Constitution.

A. Rule of Law

To prevail on a claim ineffective assistance counsel, an appellant must prove two elements preponderance the evidence: 1) counsel's performance was deficient; and 2) harrn resulted fron-r that deficiency sufficient 1o undermine confidence outcome trial. Strickland v. Washittgton, U.S. 668,687,69a (1984); Ex Parte LaHood,40l S.W.3d 45, 49-50 (Tex Crirn. App. 2013). A clairn for ineffective assistance counsel must be firlnly rooted in record such record affirrnatively demonstrales the meritorious nature clairn. Menefield v. Stale, 363 S.W.3d 59i, 592 (Tex Crim. App. 2012). When trial counsel fails object questiolts or testitnony during trial, Appellant must show court judge would have comrnitted error overruling those objections in order establish deficient performance.

B. Deficient Performance from Trial Counsel Texas Rule of Evidence 404(b)

a The State in this case must prove beyond reasonable doubt that Mr. Diaz knew that the deterrtion o1'Mr. McCormick unlawful. In order meet this elernent, State brought in six separate instances "run-ins" beflveen Mr.

Diaz Mr. McCorrnick in guilt innocence phase trial. These instances involved: l) a 2004 incident when Mr. Diaz advised Mr. McCormick to not drive his foul wheeler neighborhood bayou, 2) a 2006 incident where Mr. Diaz gave Mr. McCormick verbal warning throwing fish heads over neighbor's fence, 3) a 2006 incident where Mr. McConnick wenl 1o Mr. Diaz's horne an altercation broke out resulting assault charges against Mr McCormick, 4) an incident around 2010 where Mr. Diaz tried block Mr McCorrnick's path dorvn street in their neighborhood with car, 5) an incidenl where Mr. flashed his energency lights behind Mr. McCorrnick I{ighway 146, 6) incident where Mr. followed Mr. McCorrnick down *16 Minglewood outside of their neighborhood for short tirne. RR3-187-207.

Trial Counsel in this case argued the inadrnissibility oI these acts in his nrotion in limine prior to trial. See RR2. Trial Counsel argued that these instances were improper extraneous evidence as the standard for unlawful stop was objective and not subjective. See RR2, RR3-43. When the Trial Court denied his urotion lirnine, Trial Counsel asked a running objection on that ground RR3-43. This the last time that Trial Counsel obiected to thc admission of the past incident testimony

At no point in did Trial Counsel obiect the admission of this line testirnony it came into evidence befbre jury. Trial Counsel understood the vaiue the testimony enough have hearing on motion in limine prior trial, but nonetheless, decided that objecting to the adrnission ofthe testimony preserve error provide jury with limiting instructions was unneeded.

If Trial Counsel had obiected to the adrnission these incidenls into record, Trial Courl would have erred if they adrnitted evidence without a limiting instruction in line with Texas Rule Evidence 404(b). These past "bad ac1s" or dealings Mr. McCorrnick could be used for confonnity purposes, but rather, may only be used by the State go towards Mr. Diaz's knora4edge of unlarvfulness detention. It incumbent Trial Courl to provide a limiting instruction on that matter when prompted by Trial Counsel. The Trial Court thus would have erred allowing the evidence come without a *17 limiting instruction that it could only go towards a proper purpose. The Trial Court did not nake those limiting instructions in this case because Trial Counsel failed to object upon the subrnission of these pieces of testimony before the jury.

RR3-187-207.

There no strategy that could justify Trial Counsel's failure to object in lhis case. This evidence was the center piece of the State's case, and allowing the jury to hear this evidence without appropriate lirniting instruction serves no purpose other than to harm Mr. Diaz. Trial Counsel's inability to obj ect these key pieces of evidence the tlial was deficient, and no competent attorney would have failed rnake these appropriate obiections.

C. Harm Resulted frorn the Deficiency

The State's case from starl to finish rested the prior relationship between Mr. Diaz Mr. McCormick. State spent large porlion their case-in- chief building up the prior relationships between Mr. Mr. McCormick.

See RRs. When arguing casc closing argumenl the State added that Mr McCorrnick wouldn't lie because all wanted was to "stop harasstnent." ,See RR3, 4, 5-52. In order meet eletnents official oppression, State needed more than controverted testirnony about the validity detention. They needed use prior encounters between the two men shorv this case was outside the realm appropriate police work, thus, Mr. knew his treatment Mr. McCorrnick unlawful. It is hard irnagine scenario where State obtains conviction under these facts without prior history between *18 Mr. McCornrick Mr. Diaz.

The value the prior incidenl teslimony cannot be overstated, the conl'rdence this was undermined Trial Counsel's inability to appropriately object these incidents as they came into evidence. Without proper limiting instructions, jury was free use the evidence they deerned fit throughout trial. It crucial thal prior incident testirnony be handled cornpetently insure Mr. received a fair trial. In this case, Trial Counsel was entirely incompetent this area, and harnr resulted frorn this deficiency. Courl Appeals Ninth Judicial District Texas ruled incorrectly when they found that Mr. Diaz's trial counsel was ineffective under Strickland standard and 6tl'amendrnent of United States Constitution.

PRAYER F'OR RELIEF For reasons herein alleged, Petitioner respectfully requests this Court grant discretionary review ofthe lower court's opinion grant oral argument.

Respectfully subrnitted, NDELL A OM, JR State Bar No. 15208500 440 Louisiana Streel, Suite 200 I Iouston, Texas 77002 (713) 223-5s7s

(713) 224-2815 fax CERTIFICATE OF COMPLIANCE WITH TRAP 9.4 *19 I hereby certi$ that this Petition Discretionary Review cornplies with Texas Rule Appellate Procedure 9.4 it written point font, Tirnes New Roman, contains 3,539 words.

ELL DOM, JR CERTIF'ICATE OF SERVICE I hereby certify lrue colrect copy foregoing Petition for Discretionary Review was served on the Assistant Crirninal District Attorney and State Attorney by electronic transmission February 12,2015 .

EL OM, JR.

APPENDIX

In The

Court Appeals Ninth District Texas ot Beflumont NO. 09-13-00104-cR

DANIEL DIAZ, Appellant v

THE STATE OF TEXAS, Appellee On Appeal from the 253rd District Court Liberty County, Texas

Trial Cause No. CR29411 MEMORANDUM OPINION Appellant Daniel was indicted official oppression under section 39.03 Texas Penal Code. See Tex. Penal Code Ann. $ 39.03 (West Supp.

2014).' indictment alleged or about November 13, 2011, Diaz "intentionally subject[ed] James David McCormick to detention that [Diaz] knew unlawful, [Diaz] was then and there acting under color of his employment

lBecause amendments do affect this case, we cite current version statutes. public servantl namely, Game Warden." A jury found guilty trial

court sentence d Diaz one year confinement in the Liberty County Jail and assessed $4,000 fne.Diaz appeals.

On appeal, Diaz argues that ( ^[1] ) the evidence legally and factually insufficient to sustain jury's verdict; (2) the trial court abused its discretion by admitting irrelevant and prejudicial evidence from series of alleged extraneous acts violation of Rules , 403, and 404(b) Texas Rules Evidence; (3) he was "denied his [c]onstitutionally protected and guaranteed right effectrve assistance ofcounsel[;]" (4) that if the decision trial court is upheld by this Courl, "it will create a level unceftainty that will have a chilling effect on every traffic stop conducted law enforcement officers within State of Texas." We overrule his issues affirm judgment

Guilt/Innocence Evidence The testimony indicated Diaz McCormick had "prior history" preceded incident November 13,, 2011. In 2006, Diaz confronted McCorrnick about some "fish heads" McCormick allegedly threw over fence and into neighbor's pasture. drove up his "game warden truck" while McCormick was throwing out the fish and asked McCormick why he thlowing fish heads onto neighbor's property. McCormick told him "I always throw thern back here." asked see McCormick's fishing license and *23 continued to question McCormick. Based upon Diaz's tone voice, McCormick called Liberty Police Department and asked them to send officer to the scene. McCormick testified that soon as Diaz noticed the Liberty police officer pulling into McCormick's driveway, "handed [McCormick his] fishing license and said I'm going to give you warning this time. Don't throw fish heads over here no more unless you get permission frorn [the neighbor]." A day or two later, and after he obtained permission from the neighbor, McCormick drove over to Diaz's home to let him know that neighbor had given McCormick permission to throw the fish heads over onto her property. According to McCormick, then told McCormick he knew McCormick had "called the law" on him and he stated to McCormick, "you better not ever call the law on me again and you better watch your back." McCormick testified he totd Diaz he was not there to argue, Diaz told McCormick he was arresting him and "[he] was going jail" trespassing. When McCormick proceeded to walk to his truck, Diaz grabbed McCormick's wrist held it up air began screaming McCormick telling him was going jail. McCormick went jail and was charged "assault" on Diaz. assault case went trial 2010, and jury found McCormick guilty.

J McCormick testified that while McCormick waiting to go on 2006 assault charge, Diaz followed him more than one occasion' One evening *24 Diaz blocked the path McCormick's vehicle personal truck and when McCormick drove around Diaz to pull into McCormick's driveway, Diaz followed him "stayed parked" front of McCormick's house fifteen minutes. Right after jury found McCormick not guilty on 2006 assault charge, Diaz again foltowed McCormick, Diaz flashed his lights at McCormick but did not stop him. McCorrnick notified police department that Diaz was "harassing" him but he did make a formal report. McCormick indicated that police department personnel told him there was "pretty much nothing they [could] do." McCorrnick testified that on another occasion, prior being stopped in November 2011, while McCormick was driving on Highway 146,Diaz followed McCormick. McCormick also told jury prior to November 2011, he spoke to law enforcement about getting restraining order against they told him he needed hire attorney.

According to McCormick, on November 13,2011, around 6:20 a.m., he was driving his vehicle on Minglewoo d (a/W Mizell) Road, on his way work, and he drove past the driveway Diaz's home. McCormick had drive past Diaz's home to exit his subdivision. McCormick testified he had his headlights because it still dark outside. He stated knew he was not going over 30 m.p.h., "[b]ecause I always make sure I'm going under 30 when I pass . . . Mr. Diaz's *25 house[,] . . . try to avoid any trouble that I might have as I pass his house." As he approached Diaz's driveway, he noticed Diaz's game warden truck parked in driveway. Diaz's vehicle had its headlights on and McCormick approached Diaz's driveway, Diaz turned his game warden truck "red blue lights on." After McCormick's vehicle got into the first curve past Diaz's driveway, McCormick then noticed that Diaz pulled out onto roadway behind McCormick. McCormick testified that he was "afraid for [his] safety" because of their "past history" that why he did not immediately pull over. McCormick stated,

I yielded for [Diaz] to go around because I thought rnaybe that he had call he was going to, so I yielded. . . . I also yielded [Diaz] to go around while I was on [the] phone 911, but [Diaz] stayed behind me. Then [Diaz] started getting close rny vehicle, so at that point, I knew [Diaz] must have been pulling me ovef.

McCormick testified that "[t]here was no other cars road, so at that point I called 911 because I wasn't really sure what do. I afraid for my safety at time." McCormick pulled over and stopped while was talking 91 l operator.

After stopping,Diaztold McCormick to get out truck McCormick cornplied. Diaz asked see McCormick's driver's license and proof insurance.

Diaz told McCormick to put his driver's license on the hood of Diaz's truck, and McCormick did what he asked. Then Diaz told McCormick to put his hands behind his back andDiaz handcuffed McCormick, and told hirr he was arresting him for "speeding." McCormick testified thatDiaz also "got right [McCormick's] face" and asked McCormick, "[D]id you get satisfaction out us going to court[?]" McCormick replied, "[D]amn right. I enjoyed every minute it, especially when you got up stand and lied . . . you made a fool out of yourself." McCormick told Diaz that he had called 91 . Diaz then called someone and said "I have James McCormick pulled over and I have him handcuffed for my protection." Diaz never had citation book out or with him, and none officers issued McCormick a citation for anflhing. Liberty Police officers responded call to assist. When they arrived,

they took over front of their vehicle they had discussion Diaz.

McCormick testified that the male officer came back and told McCormick "Mr.

Diaz [is] going set [you] free," officer told Diaz to take the cuffs off of McCormick. Before McCormick left to go work, told McCormick was "going get warrant" arrest McCormick evading arrest. McCormick turned to the male officer said, "[C]an he do that?" McCormick told jury officer looked McCormick "and winked" and told McCormick to contact an *27 attorney.

Officer Cedric McDuffie, a Deputy Liberty County Constable's Office formerly a police officer with Liberty Police Department, testified that he and partner, Officer Elizabeth Polasek, responded to a call on November 13,2011, to assist at scene of a traffic stop. McDuffie had over twenty years in law enforcement at the time of trial. McDuffie testified that when they arrived McCormick was handcuffs standing on side the road over Game Warden's truck. McDuffie got out his vehicle walked over to speak with Diaz. According to McDuffi e, Diaz indicated that McCormick was speeding and stated he had observed McCorrnick driving by Diaz's residence at "maybe about 30 miles per hour." Diaz also said "possibly" McCormick did have his headlights on. At that time, subject evading arrest never came up. Officer McDuffie testified that the City Liberty requires a radar to determine speed, and he would never recommend that officer try enforce a traffic law speeding without getting radar and special training to enforce speeding laws.2 At one point

'McDrffie explained that Liberty Police use radar document the speed vehicle, but indicated that you can also use "[r]adar pacing ciocking[.]" According to McDuffie, radar pacing is where the officer follows behind someone scene, admitted McDuffie that had no reason give Mr. McCormick ticket. At trial, McDuffie acknowledged direct examination it "fair say [Diaz] had no reason to give [McCormick] aticket[']"

The video captured by the Liberty Police Deparlment dash camera was also introduced into evidence at and played jury without any objection from Diaz. The video (with audio) depicts the arrival of Liberty police officers to the scene, and conversations Diaz with the officers about the situation. On the video, Diaz can be heard making following statement, "No, I don't have a reason to give him a ticket . . . I really wasn't going give him a ticket." Diaz can also be heard telling Liberty officers that "McCormick got out . . . an assault me . . ,," and "he calls 9-1-1."

The State introduced audio recording and transcript the 911 call made McCormick, and there were also records of two calls made by on the non-emergency line. Dispatcher Mary Jackson testified McCormick's 911 call came 6'.27 a.m., and it first call she received. Later, she also received and determines their speed frorn the speed on the officer's speedometer. And, "clocking" is timing vehicle from one point another then using the exact distance extrapolate a speed. Officer McDuffie said he "never felt comfoftable" using clocking only the State of California uses it. McDuffie testified that, while you can sometimes just "eyeball" a car determine if it speeding, it is more difficult deceptive, especially around curve.

two calls from Diaz on the non-emergency line. time lapse between the start of McCormick's 9i I call and then beginning Diaz's first call was about two minutes. As McCormick hung up with the 1 dispatcher, called *29 dispatcher in his first call and then followed up with another call several minutes later.

Rod Ousley, a Captain with Texas Parks and Witdlife, Diaz's supervisor at the time the 2011 incident, testified thatDiaz came to his office the day after Diaz stopped McCormick in November 1. Ousley explained to jury that Diaz brought in Diaz's handwritten statement about the stop and informed Ousley that Oustey probably needed to notiff internal affairs because he thought the stop could potentially generate complaint. explained in statement he obserued "a black truck with no lights, headlights or parking lights" that "appear[ed] to be exceeding the posted speed limit" and he recognized that the truck belonged McCormick ,who he had "had run-in with the past." Ousley testified notihed Diaz J anuary 9,2012, that the Internal Affairs investigation resulted a letter intent take corrective action. The next day, "put in" retilement, and therefore no corrective action was taken.

McCormick spoke attorney and decided file complaint with Texas Parks and Wildlife against Diaz. Texas Parks Wildlife investigated matter referred it Internal Affairs who then sent it District Attorney' transcript Diaz's testimony before grand jury admitted into evidence, well as Diaz's handwritten statement about the incident. According to transcript Diaz's grand jury testimony, Diaz testified that before sunrise on November 13,2011, he was leaving in his patrol vehicle and saw truck "50 feet 100 feet something like that" away no lights on. He recognized the truck belonged to McCormick truck went by, and he pulls behind him and "turns on his red and blue lights cause I'm going to stop him, he had no lights and I allege he's speeding." He saw McCormick apply his brakes but not pull over' Diaz contacted the police department inform them the vehicle would not pull over, and dispatcher said McCorrnick was 911 line and was repofting that Diaz was harassing him. Diaz asked for assistance. According Diaz, McCormick pulled over, and when got out of truck "he didn't come out very friendly he said I called the real police and you're in trouble[.]" Diaz made McCormick get behind his truck and cuffed him because McCormick talking "in elevated voice" Diaz believed there was going be "another scuffle" and he "didn't want to take any chances[.]" The grand jury indicted Diaz.

Irma Sanchez, custodian records for Texas Parks Wildlife, testified she performed a search for traffic citations warnings issued from thlough 2011. According Sanchez, her search revealed that during that time period did not write any warnings or citations traffic offenses' Dorothy Drennan, Cify Liberty Municipal Court Clerk, testified that she performed search traffic citation issued by Diaz going back 1993.

According Drennan, Diaz had only issued one traffic citation since 1993, and that was for cutting through a parking lot at an intersection.

Punishment Evidence At punishment phase, Special Ranger Jimmy Belt with Texas Department Public Safety, testified he had several "run-ins" Diaz dating back 1986 wherein Diaz tried intimidate hirn. On at least one occasion, Belt filed a complaint with Texas Parks Wildlife regarding Diaz. Belt testified that Diaz has reputation for bullying members public members law enforcement.

John Feist, a former Chambers County Game Warden, also testified at the punishment phase. Feist said he has known Diaz for "[p]robably 25 years" and that Diaz has reputation being unprofessional. Similarly, Highway Patrol Sergeant Steve Holloway, formerly Liberly County DPS officer from 1989 1998, stated that he had witnessed threaten another law enforcement officer. Gary Cain, a retired game warden who had previously worked in Hardin County, acknowledged

1l had people complain him about "using badge to bully public[,]" and he heard complaints about Diaz from private citizens well as law enforcement. Captain Ousley, Diaz's forrner supervisor, testified about an incident where Diaz violated Texas Parks and wildlife policies when he *32 discharged a weapon "to get [a] guy's attention." ln Captain Ousley's opinion, Diaz engaged vindictiveness as a game warden. Private citizens also testified about confrontations they had with Diaz.

In contrast, Game Warden Vu Nguyen, who has known Diaz for eight years and worked Diaz "[m]any occasions[,]" testified that Diaz's behavior was ,,[a]lways professional and courteous." Nine other character witnesses testified that they have known Diaz for a long time all them had good experiences dealing with while working in his capacity as a game warden. Diaz's wife testified that they have been married twenty-two years. She testified Diaz "is a good man" a Vietnam veteran.

Leeal Factual Insufficiencv Challenee In first issue, contends the evidence is legally and factually insufficient to sustain jury's verdict. We construe appellant's first point of error challenge legal sufficiency evidence. See Brooks v State,323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (there no longer any meaningful distinction between legal and factual sufficiency standard when reviewing sufficiency of evidence sustain criminal conviction).

We review sufficiency evidence establishing elements a criminal offense which the State has burden proof under single *33 sufficiency standard set out in Jackson v. Virginia,443 U.S. 307,319 (1979)' Brooks,323 S.W.3d at 912. Under that standard, we view all the evidence the light most favorable the verdict determine whether any rational trier fact could have found the essential elements the offense beyond reasonable doubt. Jackson,443 U.S. at319; Brool<s, 323 S.W.3d at 899. "It is necessary evidence directly proves the defendant's guilt; circumstantial evidence as probative direct evidence establishing the guilt the actor, and circunrstantial evidence alone may be sufficient establish guilt." Carrizales v.

State, 414 S.w.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

We must defer the jury's assessment the credibility of the witnesses and weight to be given to their testirnony. Brooks,323 S.W.3d at 899. We also allow jury make "reasonable inferences" from testimony or evidence.

Williants v. State,235 S.W.3d 742., 750 (Tex. Crim. App. 2007); see also Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). When record suppofts conflicting inferences, we presume jury "resolved the conflicts in favor of prosecution and therefore defer that determination." Clayton v. State,235 S.W.3d 772,, (Tex. Crim. App. 2007) (citing to Jackson,443 U.S' 326). Sufficiency of the evidence should be measured elements offense as *34 alleged in the indictment. Malikv. State,953 S.W.2d 234,240 (Tex. Crim. App.

1997).

On appeal, Diaz contends that the evidence insufficient because it "did not prove that [Diaz] acted knowingly, intentionally, and unlawfully in his detention of James David McCormick." Diaz argues "a purely objective standard applies to whether the officer had a valid reason stop [or] detention not a subjective standard" and Diaz "had reasonable suspicion conduct did conduct valid traffic stop and legally detained James David McCormick[.]" Further, argues if Diaz had "any legal reason detain McCormick" then Diaz "could be guilty ofhcial oppression in relation detaining McCormick[,] as a matter of law."

To convict official oppression as alleged in this case, State had to prove that Diaz, game warden public servant, while acting under color of his office or employment, intentionally subjected McCormick to "detention" that Diaz knew was "unlawful ." SeeTex. Penal Code Ann. $ 39'03(a)(l); see also State v. Edmond,933 S.W.2d 120, (Tex. Crim. App. 1996) (explaining that when charged with official oppression mistreatment, the defendant must have known that the mistreatment alleged the indictment fact unlawful in that it was either criminal or tortious). The Penal Code defines "[u]nlawful" "criminal or *35 tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege." Tex. Penal Code Ann. $ 1.07(a)(a8) (West Supp. 2014). Therefore, the State had prove thatDiaz, while acting under color of office, intentionally subjected McCormick detention knew was criminal, tortious, or both. See id., $ 39.03(a)(1).

A temporary detention such as a traffic stop is generally justified when officer has reasonable suspicion believe that an individual is violating the law.

See Terry v. Ohio,392 U.S. 1,29 (1968); Ford v. State,758 S.W.3d 488. 492 (Tex.

Crim. App. 2005). "Reasonable suspicion" exists if the officer has specific articulable facts that, when combined rational inferences from those facts, would lead him reasonably suspect that a person has engaged, is engaging, or soon will be engaging criminal activity. Abney v. State,394 S.W.3d 542,, 548 (Tex. Crim. App. 2013). This objective standard disregards officer's subjective intent looks solely at whether objective basis detention exists. Ford,,

t5 158 S.W.3d 492. A reasonable-suspicion determination made considering totality of circumstances at time detention, considering common sense judgments and inferences about human behavior. Illinois v. Wardlow, u.s. 1i9, 12s (2000).

Based on the evidence record, jury could reasonably have *36 determined that Diaz intentionally subjected McCormick to detention he knew was criminal, tortious, or both. In particular, evidence the record indicates that Diaz and McCormick had "prior history" confrontations, that McCormick was being harassed Diaz, that McCormick had made several calls to the Libefty Police Department about Diaz following him, stopping him, and watching him prior to this incident, that Diaz admitted to the Liberty Police officers who were dispatched to the scene that Diaz had no "reason to give Mr. McCormick a ticket[,]" that Diaz did not know speed Mccormick's vehicle, that Diaz upset at McCormick for calling 911 felt like McCormick "got out of' prior assault charges.

Even though and expert witness testified had reasonable suspicion stop McCorrnick speeding or for not having his headlights on, or even possibly failing to yield to officer, jury could have reasonably weighed credibility of witnesses the weight be given their testimony, and

l6 made "reasonable inferences" from the testimony or evidence' Williams, S.W.3d at750; see alsoTex. Code Crim. Proc. Ann' aft. 38.04. We presume that thejury resolved any conflicts in favor of verdict and we therefore defer that determination. Clayton, S.W.3d at 778. Reviewing sufficiency evidence submitted in the light most favorable verdict, we conclude evidence legally sufficient support conviction for official oppression as alleged in the indictment. We overrule first issue.

Admission of Evidence Next, Diaz argues that the trial court erred admitting inelevant and prejudicial evidence from series of alleged extraneous acts. Diaz contends "[s]pecifically, the court erred in admitting the majority if all testimony Daniel McCormick, Jimmy Belt, John Feist, Steve Holloway' Gary Cain, Taylor Webb, Henry Dietz, Patsy Dubois, Rod Ousley, especially testimony involving alleged bad acts or opinion testimony no basis and relevance pending matter[,]" he was furlher harmed when State referenced the "extraneous offenses" its closing argurnent. Diaz provides us with no citations record evidence would suppoft his arguments required by Texas Rule Appellate Procedure 38.1(i), our review record we found no suppoft for arguments.

t7 Witnesses Belt, Feist, Holloway, Cain, Webb, Dietz, Dubois' and Ousley testified during the punishment phase, made no objection their testimony during the punishment phase. He failed to preserve any error this issue relating to the admission of their testimony.

McCormick testified during guilt/innocence phase trial. To preserve error appellate review, party's objection generally must be *38 sufficiently specific so as to "'let the trial judge know what he wants' why he thinks himself entitled to it, do so clearly enough for judge to understand him a time when trial court is in a proper position do something about it."' Malone v. State,405 S.W.3d 917,925 (Tex. App.-Beaumont 2013, pet. refd) (quotingResendezv. State,306 S.W.3d 308,313 (Tex. Crim. App.2009)). In order raise a Rule 403 complaint, objecting party must make a 403 objection separate from a Rule 404(b) objection. See Montgomery v. State,810 S'W.2d 372, (Tex. Crim. App. 1991) (op. on reh'g). Diaz did not specifically make Rule 403 objection separate from his 404(b) objection, therefore, has not preserved Rule 403 complaint on appeal. See id.; see also Tex. R. App.P. 33.1(a). filed a motion in limine exclude any testimony by McCormick regarding Diaz's extraneous bad acts. court granted the motion as to testimony any complainants (other than Mccorrnick) during guiltiinnocence phase trial, but denied the motion to McCormick's testimony during guilt phase regarding Diaz's extraneous bad acts towards McCormick. Rule 404(b) expressly provides that evidence other crimes, wrongs, or acts is not admissible prove character defendant order show he acted conformity therewith. Rule 404(b) codifies common law principle defendant should be tried only for the offense which charged for being a criminal *39 generally. Rogers v. State,853 S.W.2d 29,32 n.3 (Tex. Crim. App. 1993); see also Segundo v. State,270 S.W.3d 79, (Tex. Crim. App. 2008) (explaining that defendant is generally be tried only for offense charged, for any other Extraneous offense evidence, however, may be admissible for other crimes). such as proof motive, opportunity, intent, preparation, plan,

purposes knowledge, identity, or absence mistake or accident. Tex. R. Evid. 404(b). The list examples Rule a0a(b) is nonexhaustive. See Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). "Whether extraneous offense evidence has lsa relevance apart from character conformity, as required by Rule 404(b), question trial court:' Moses v. State, i05 S.W.3d 622,627 (Tex. Crim. App 2003). The courl's Rule 404@) ruling admitting evidence is generally within zone reasonable disagreement "if there is evidence supporting an extraneous transaction relevant a material, non-propensity issue." Devoe v.

state,354 S.W.3d 457,469 (Tex. Crim. App.2011). testirnony frorn McCormick about prior history and confrontations had with was relevant one or more material issues the case.

McCormick complaining witness explained his history Diaz, the assault charge brought against him Diaz, other instances Diaz *40 harassing him before this incident. Such detail directly related to the intent and motive of Diaz detaining McCormick, furlher explained the conduct of parties on date question, established pattern of conduct on the part of Diaz, and demonstrated intentional and knowing conduct.

To extent Diaz complains appeal of admission of certain testimony during punishment phase,3 did preserve error because he failed make any objection. Even if had preserved error, evidence may be offered during the punishment phase any matter the court deems relevant to sentencing, including but not limited prior criminal record of defendant,

3Diaz complains that the court erroneously admitted the "prejudicial" testimony Diaz's bad acts by "Daniel McCormick, Jimmy Belt, John Feist, Steve Holloway, Gary Cain, Taylor Webb, Henry Dietz, Patsy Dubois, Rod Ousley[,]" but Diaz fails to give record references regarding the specific testimony which he cornplains. We note that, these witnesses, Ousley testified during both guilt and punishment phases, McCorrnick testified during the guilt phase only, and remainder testified only punishment. general reputation, his character, circurnstances the offense which he being tried, and any other evidence extraneous crime or bad act is shown

beyond a reasonable doubt evidence have been committed by the defendant for which could be held criminally responsible. SeeTex. Code Crim. Proc. Ann.

afi. 37.07, $ 3(a)(l) (West Supp. 2014). testimony during the punishment phase about which Diaz complains relevant sentencing because it was *41 character evidence. See id. Therefore, we overrule issue two.

Ineffective Assistance of Counsel In third issue Diaz contends was "denied his [c]onstitutionally protected and guaranteed right to effective assistance of counsel." To prevail a claim of ineffective assistance ofcounsel, appellant must prove two elements by preponderance of the evidence: (1) counsel's performance deficient; and (2) harm resulted from that deficiency sufficient undermine confidence the outcome of trial. Strickland v. Washington, 466 U.S. 668, 687 , 694 (1984); Ex parte LaHood, 401 S.W.3d 45, 49-50 (Tex. Crim. App. 2013). An ineffective assistance ofcounsel claim "must be 'firmly founded in the record' and'the record must affirmatively demonstrate' the meritorious nature of claim." Menefield v.

State,363 S.W.3d 591,592 (Tex. Crim. App.2012) (quoting Thompsonv. State,9 S.W.3d 808, 8i3-14 (Tex. Crim. App. 1999)).

In evaluating the effectiveness counsel undel the first prong of strickland, we look to totality ofthe representation and the particular circumstances case. Thompsor, S.W.3d 813. Review counsel's representation is highly deferential, and the reviewing court indulges strong presumption that counsel's conduct fell within wide range reasonable representation. Mallett v. State,, 65 S.W.3d 59, 63 (Tex. Crim. App. 2011). Texas Court Criminal Appeals has explained "trial counsel

should ordinarily be afforded an opportunity explain his actions before being denounced as ineffective." Rylander v. State., 101 S.W.3d 107,lli (Tex' Crim' App.2003) (citingBone v. State,77 S.W.3d 828,836 (Tex. Crim' App' 2002))' Direct appeal is usually inadequate make an ineffectiveness claim because the record is frequently undeveloped in this respect . Goodspeed v. State, 187 S.W.3d 390,392 (Tex. Crim. App.2005); see also Cox,389 S.W.3d 817' n.11 (Tex' Crim. App. 2012) (observing that "[a] reviewing court will rarely be position on direct appeal fairly evaluate the merits of an ineffective-assistance claim").

Without evidence of trial counsel's strategy, "an appellate court will assume a strategic motivation will conclude challenged conduct was deficient unless it so outrageous no competent attorney would have engaged in it." Ozuna v. State, 199 S.W.3d 601, 612 (Tex. App.-Corpus Christi 2006, no pet.) (citing Garcia v. State,57 S.W.3d 436,440 (Tex. Crim. App' 2001)). It not appropriate appellate court to simply infer ineffective assistance counsel.

Matav. State,226 S.w.3d 425,432 (Tex. Crim. App.2007). contends that his trial attorney rendered ineffective assistance both

phases trial, the failure his attorney "make a single objection during the punishment phase during the guilt/innocence phase of trial, other than the alleged running objections made outside presence *43 .jury and which arguably did not preserve error in any form' can in no way be classified as 'trial strategy'." Diaz argues "countless objections" could have been raised during trial were not, that Diaz's counsel failed to object to leading questions, inflammatory statements, unfounded evidence conclusions, and failed to familiarize himself the pfoper legal standards. points to no specific record references, but argues that extraneous evidence prior bad acts contained in his earlier issue would be specific example.

Regarding alleged omissions his attorney object to questions or testimony, has not established trial court judge would have committed error overruling objections if they had been made. Vaughn v. State, 931 S.W.2d 564, (Tex. Crim. App. 1996) (holding that "in order argue successfully that her counsel's failure object" amounted ineffective assistance, appellant "must show that the trial judge would have committed error in overruling such objection"). To the extent Diaz implies that his trial counsel should have called more witnesses favor, he has established he would have benefited from the testimony any other unspecified witnesses he argues his counsel should have called to testify. "'[F]ailure call witnesses at the guilt-innocence and punishment stages irrelevant absent showing such witnesses were available appellant would benefit from their testimony."' Perez *44 v. state,310 s.w.3d 890, 894 (Tex. Crim. App. 2010) (quoting King v. state,649 S.W.2d 42,44 (Tex. Crim. App. 1983)). Additionally, he must demonstrate that there is a reasonable probability that the witnesses' testimony would have affected result trial. Id. we conclude that record this case does not affirmatively demonstrate ineffective assistance counsel. The record is undeveloped and does adequately reflect the motives behind trial counsel's actions. We cannot simply infer that trial counsel lacked trial strategy failing to lodge objections. We therefore overrule this issue.

Chillins Effect In his fourth final issue, argues that if the decision court is upheld by this Court, "it will create level uncertainty that will have a chilling effect on every traffic stop conducted by law enforcement officers within State Texas." Diaz cites no legal authority argument. State argues official oppression statute as drafted by the Legislature avoids any ,..chilling effect, Law Enforcement" personnel because it tells officers what they should not do.

As already stated, a temporary detention such traffic stop is generally justified when officer has "reasonable suspicion" believe individual violating the law. see Ford,158 S.W.3d 492. "Reasonable suspicion" exists if *45 the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him reasonably suspect a person has engaged, is engaging, or soon will be engaging in criminal activity' Abney, 394 s.w.3d 548. Our ruling today does not in any way restrict, alter, or amend the ,.reasonable suspicion" standard as applied law enforcement personnel exercise ofa lawful discharge of their duties. This case does not involve a "lawful discharge" of ofhcial duties by officer or public servant in making traffic stop based upon ,.reasonable suspicion." Rather, jury found guilty official oppression. charged with "lawful discharge" his official duties in conducting traffrc stop, but rather "unlawful discharge" his duties. jury determined that Diaz engaged detention another person which

25 violated law constituted "official oppression." Accordingly, we overrule issue.

Having overruled all Diaz's issues, we affirm judgment.

AFFIRMED.

LEANNE JOHNSON Justice Submitted August 11,2014

Opinion Delivered December 10,

Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.