Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00501-CR Trevor John PROBY, Appellant v. The STATE of Texas, Appellee From the County Court at Law No. 2, Guadalupe County, Texas Trial Court No. CCL-24-0615 Honorable Kirsten Legore, Judge Presiding Opinion by: Adrian A. Spears II, Justice Sitting: Lori I. Valenzuela, Justice Adrian A. Spears II, Justice Velia J. Meza, Justice Delivered and Filed: November 4, 2026 AFFIRMED A jury convicted Trevor John Proby of assault family violence for intentionally, knowingly, or recklessly causing bodily injury to his wife, S.P. 1 See TEX. PENAL CODE § 22.01(a)(1), (b). The trial court assessed Proby’s punishment at confinement for 365 days in the Guadalupe County jail, suspended his sentence, and placed him on community supervision for 24 1 We refer to the victim by her initials and the children by pseudonyms to protect their privacy. See TEX. CONST. art. I, § 30(a)(1) (protecting a crime victim’s “right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 04-25-00501-CR months. In three issues on appeal, Proby argues that his trial counsel (1) violated his autonomy to assert his innocence, (2) rendered ineffective assistance by failing to object on multiple occasions, failing to request a limiting instruction, and failing to request a defensive instruction in the jury charge, and (3) committed errors whose cumulative effect requires reversal. We affirm. BACKGROUND Proby and S.P. were together for 19 years and have two daughters, “Bailey” and “Bri.” 2 On June 18, 2023, Father’s Day, the family spent the afternoon fishing and playing at a creek near their home. Bailey, then eleven years old, recalled Proby “drinking a lot that day” and becoming “really angry.” S.P. confirmed that Proby “drank most of the time when he was awake.” At one point, Proby yelled at S.P., threw her fishing pole in the water, then ended the outing because he “didn’t want to be with her attitude anymore.” S.P. drove the family to Zuehl Airport, a small aviation community about a mile from the creek. As she drove along the gravel taxiway toward their airplane hangar, Proby abruptly shifted the moving vehicle into park from the passenger seat. The car “jerked forward” and ground to a halt. Proby removed the key from the ignition and exited the vehicle, but quickly returned when he saw S.P. searching for her spare key. He grabbed her arm, slammed her wrist into the shifter, and repeatedly struck her in the head, briefly rendering her unconscious. Upon witnessing their father “beating [their] mom,” Bailey and Bri ran in opposite directions screaming for help. When S.P. regained consciousness, she called out to Bri, and made her escape. As S.P. ran to Bri, Proby got behind the wheel and sped toward Bailey, who began “freaking out” and hid under a tarp. From her hiding place, she saw S.P. and Bri running away 2 We use pseudonyms or aliases to refer to the children to protect their privacy. See TEX. R. APP. P. 9.8, cmt. (noting the requirement to protect a minor’s identity in parental-rights termination cases “does not limit an appellate court’s authority to disguise parties’ identities in appropriate circumstances in other cases”), 9.10(a)(3). -2- 04-25-00501-CR “after [Proby] tried to run them over.” Bri “was scared [Proby] was going to hit [them] with the car” as he sped toward them. S.P. testified that Proby came within a few feet of striking Bri, adding: “If she had tripped, things would be much different.” S.P. and Bri took refuge in an acquaintance’s home near their hangar, where Bailey soon joined them. Proby “sped off” to his friend’s hangar, then visited his three-year-old daughter and her mother later that evening. Bailey and Bri described S.P.’s injuries as “knots on [S.P.’s] head and bruises everywhere,” and “[a] big bump on [S.P.’s] forehead.” S.P. photographed her injuries but did not immediately report the assault. She “was afraid of [Proby] escalating” and “was broken” by his physical and emotional abuse. She separated from Proby in December 2023 and reported the assault in April 2024 to Deputy Christopher Trinidad with the Guadalupe County Sheriff’s Office. At trial, S.P., 13-year-old Bailey, and nine-year-old Bri provided consistent accounts of the assault and surrounding circumstances. After presenting three witnesses, Proby testified in his own defense. According to Proby, he and S.P. were “bickering back and forth” as they left the creek. He “grabbed the keys real fast” out of the ignition because “[S.P.] was drunk and [he] needed to stop the vehicle.” Then “a hand battle over the keys” ensued. S.P. “started biting [his] head, scratching [him], and she pulled [his] collar,” which “was very traumatic.” On cross-examination, he stated for the first time: “I didn’t hit my wife.” RIGHT TO MAINTAIN INNOCENCE AT TRIAL In his first issue, Proby argues that his trial counsel conceded guilt during opening statement and closing argument in violation of McCoy v. Louisiana, 584 U.S. 414 (2018). The Sixth Amendment guarantees to a defendant “the right to insist that counsel refrain from admitting guilt.” McCoy, 584 U.S. at 417, 421-22; see U.S. CONST. AMEND. VI. When a defendant expressly -3- 04-25-00501-CR asserts that the objective of his defense is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt. McCoy, 584 U.S. at 423. A plea of not guilty is insufficient to preserve a McCoy complaint. See Ex parte Barbee, 616 S.W.3d 836, 845 (Tex. Crim. App. 2021). Rather, a defendant must “object[] to a concession of guilt disregarded by counsel and court and aired before a jury during trial.” Id.; see also Bluntson v. State, 728 S.W.3d 87, 134 (Tex. Crim. App. 2025) (“a defendant cannot simply remain silent before and during trial and raise a McCoy complaint for the first time after trial”) (quoting Turner v. State, 570 S.W.3d 250, 276 (Tex. Crim. App. 2018)). Here, Proby never objected, expressed dissatisfaction with counsel’s representation, nor informed the trial court of any disagreement with counsel’s trial strategy. See Bluntson, 728 S.W.3d at 134-35; Turner, 570 S.W.3d at 276. And rightly so—a McCoy violation requires a showing that trial counsel conceded guilt, yet the record is devoid of any such concession. See Rubio v. State, No. 05-18-00861-CR, 2023 WL 3749804, at *11 (Tex. App.—Dallas June 1, 2023, pet. ref’d) (mem. op., not designated for publication). In opening, counsel described “[a] convoluted situation,” “a troubled marriage,” and a “horrible day in a flawed family.” He stated that both S.P. and Proby “drank alcohol to excess,” for which there was “no excuse.” Counsel continued: [I]t just simply came to a head in a horrific fashion in front of the children, which there is no excuse, there is no excuse for substance abuse, and there’s no excuse for what these poor children have been through. . . . [W]hat did occur in the car is some conflict between them, whether it was Mr. Proby intentionally, recklessly, or otherwise causing harm or conflict that is simply confused[.] Counsel nevertheless expressed confidence that the jury would “be able to see that it’s not as clear as the State is presenting.” He anticipated conflicting accounts and suggested that the pending divorce and custody suit was S.P.’s true motive for reporting the assault. -4- 04-25-00501-CR In closing, counsel acknowledged that “injuries occurred” and “harm was caused,” but conceded no criminal responsibility. Counsel’s general references to harm conceivably encompassed the children’s emotional distress, S.P.’s bruising and swelling, and Proby’s purported injuries. He further challenged S.P.’s and the children’s credibility, emphasized the delayed report and fading memories, and suggested that any injuries sustained in the “hand battle over the keys” were accidental. Viewed in context, counsel’s acknowledgment of harm was not a concession of guilt. Proby has therefore failed to establish that counsel overrode his objective to maintain innocence. See McCoy, 584 U.S. at 425-26; Bluntson, 728 S.W.3d at 134-35. We overrule Proby’s first issue. INEFFECTIVE ASSISTANCE OF COUNSEL In his second issue, Proby contends that trial counsel rendered ineffective assistance. To prevail on a claim of ineffective assistance of counsel, an appellant must establish counsel’s performance was constitutionally deficient, and the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Lane, 670 S.W.3d 662, 671 (Tex. Crim. App. 2023). Because the record does not establish deficient performance, we need not address prejudice. See Hart v. State, 667 S.W.3d 774, 781 (Tex. Crim. App. 2023). An attorney’s performance is deficient if it “falls below an objective standard of reasonableness under the prevailing professional norms, considering the facts of the case viewed from counsel’s perspective at the time of the representation.” Lane, 670 S.W.3d at 671 (citing Strickland, 466 U.S. at 687-88, 690). To fairly assess a trial attorney’s conduct, reviewing courts must “eliminate the distorting effects of hindsight” and “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; Hart, 667 S.W.3d at 781; Lane, 670 S.W.3d at 671. -5- 04-25-00501-CR We first address Proby’s challenge to counsel’s failure to object to: (1) Deputy Trinidad’s explanation for victims’ delayed reporting of abuse; (2) S.P.’s description of their marriage as “a very abusive relationship”; and (3) testimony that he accelerated the car toward his family members “and almost hit them.” We then turn to counsel’s failure to request a limiting instruction and defensive instructions in the jury charge. Because counsel’s reasons for the challenged conduct are not in the record, we will assume a “strategic motivation if any can possibly be imagined.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (quoting 3 Wayne R. LaFave et al., Criminal Procedure § 11.10(c) (2d ed. 1999)). Unless counsel’s conduct “was so outrageous that no competent attorney would have engaged in it,” it will be deemed reasonable. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Garcia, 57 S.W.3d at 440. Trial counsel may reasonably decline to object to prejudicial evidence to avoid emphasizing it, to minimize the seriousness of the offense, or to portray the defendant as honest. Walker v. State, 676 S.W.3d 213, 226 (Tex. App.—Houston [14th Dist.] 2023, pet. ref’d). The failure to object to proper questions and admissible testimony is not ineffective assistance. Ex parte Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App. 2012); McCallum v. State, 311 S.W.3d 9, 16 (Tex. App.—San Antonio 2010, no pet.). An appellant must demonstrate that the trial court would have erred in overruling an objection had trial counsel made one. Prine v. State, 537 S.W.3d 113, 117- 18 (Tex. Crim. App. 2017); Gauna v. State, 534 S.W.3d 7, 12 (Tex. App.—San Antonio 2017, no pet.). We review evidentiary rulings for an abuse of discretion and uphold them if they are correct under any applicable legal theory. See De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009). -6- 04-25-00501-CR 1. Lack of Objection to Deputy Trinidad’s Testimony Proby impugns Deputy Trinidad’s qualifications to explain typical behavior of abuse victims. Deputy Trinidad testified that victims of domestic violence may delay reporting abuse because they fear retaliation, wish to avoid reliving the incident, or depend on their abuser’s financial support. He described the recurring cycle of violence, apology, and temporary reconciliation, adding that abusive relationships “usually don’t get better.” Jurors may be unfamiliar with behaviors common among abuse victims, including recantation and delayed, reluctant, or inconsistent reporting. See Luna v. State, 687 S.W.3d 79, 96 & n.2 (Tex. App.—Eastland 2024, pet. ref’d) (collecting cases); Kingsbury v. State, 625 S.W.3d 686, 692 (Tex. App.—Fort Worth 2021, no pet.). Expert testimony explaining the dynamics of power and control in abusive relationships is frequently admitted under Rule 702 of the Texas Rules of Evidence. See Luna, 687 S.W.3d at 96 & n.2; TEX. R. EVID. 702. Similarly, Rule 701 allows opinion testimony by a lay witness who possesses specialized knowledge and experience on a subject outside the realm of common knowledge. Osbourn v. State, 92 S.W.3d 531, 536-37 (Tex. Crim. App. 2002) (“A distinct line cannot be drawn between lay opinion and expert testimony because all perceptions are evaluated based on experiences.”). Relevant here, a police officer may testify in either capacity, and the designation rests largely in the trial court’s discretion. See Osbourn, 92 S.W.3d at 536-37; Acree v. State, No. 02-25-00183-CR, 2026 WL 2539775, at *15 (Tex. App.—Fort Worth Aug. 27, 2026, no pet.) (mem. op., not designated for publication). Although Deputy Trinidad was not designated as an expert witness under Rules 702 and 705, he was permitted to testify based on his perception and helpful for the jury to clearly understand the testimony or determine a fact in issue. TEX. R. EVID. 701, 702, 705; Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Osbourn, 92 S.W.3d at 535. Indeed, Deputy -7- 04-25-00501-CR Trinidad’s familiarity with the cycle of violence arose from his training and firsthand experience handling domestic violence cases, and his testimony explained S.P.’s post-assault conduct. As such, the trial court would have properly overruled an objection lodged by trial counsel. Counsel also could reasonably have chosen to discredit the testimony on cross-examination without emphasizing its importance by objecting. He elicited that S.P. requested a copy of the police report to use in the pending divorce, and that Deputy Trinidad knew only of the reported incident rather than a pattern of violence. On this undeveloped record, Proby has not overcome the presumption that counsel made a sound tactical choice. See Vega v. State, 610 S.W.3d 79, 84-85 (Tex. App.—San Antonio 2020, no pet.). 2. Lack of Objection to Relationship Testimony Proby next faults counsel’s lack of objection to S.P.’s description of their marriage as “a very abusive relationship.” Rule 404(b) precludes evidence of a crime, wrong, or other act to prove a person’s character to show that he acted in conformity with that character on a particular occasion. TEX. R. EVID. 404(b). However, such evidence may be admitted for other purposes when it has relevance apart from character conformity. See id. R. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). In prosecutions for offenses involving family violence, “evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense” is admissible, “including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.” TEX. CODE CRIM. PROC. art. 38.371(b). Under article 38.371(b), extraneous-offense evidence may be used to: (1) explain why a victim of domestic violence is unwilling to cooperate with prosecution; (2) confirm the victim’s initial—and later recanted—statements to police; or (3) contextualize the nature of the relationship between the victim and the assailant. See Rodriguez v. State, 678 S.W.3d -8- 04-25-00501-CR 375, 386 (Tex. App.—Dallas 2023, pet. ref’d) (collecting cases); Williamson v. State, No. 04-20- 00268-CR, 2021 WL 4976326, at *6 (Tex. App.—San Antonio Oct. 27, 2021, pet. ref’d) (mem. op., not designated for publication). Here, S.P.’s testimony contextualized the nature of her relationship with Proby and explained her reluctance to report the assault, which are permissible purposes beyond character conformity. See TEX. R. EVID. 404(b); De La Paz, 279 S.W.3d at 342-43; McDonnell v. State, 674 S.W.3d 694, 703-04 (Tex. App.—Houston [1st Dist.] 2023, no pet.). Consequently, any objection would have been properly overruled. Counsel likewise could have reasonably declined to object to avoid drawing attention to S.P.’s testimony. See Straight v. State, 515 S.W.3d 553, 573-74 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). Accordingly, Proby has failed to overcome the presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. See Garcia, 57 S.W.3d at 440. 3. Lack of Objection to “Extraneous” Conduct Proby next challenges counsel’s failure to object to his wife and daughters’ testimony that he drove toward them at a high rate of speed. Evidence of other crimes, wrongs, or bad acts may be admitted as same-transaction contextual evidence when they are so interwoven with the charged offense that they form an indivisible criminal transaction. Devoe, 354 S.W.3d at 469. Such evidence is admissible because the jury is entitled to know all relevant surrounding facts and circumstances “to the extent that it is necessary to the jury’s understanding of the offense.” Id. (quoting Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996)). Immediately after he assaulted S.P., Proby drove the family vehicle toward her and their daughters while the girls sought help. This conduct was inextricably intertwined with the assault and the family’s flight, and supplied necessary context for the jury to realistically evaluate the -9- 04-25-00501-CR evidence and understand the charged offense. See Devoe, 354 S.W.3d at 469; Beltran v. State, 517 S.W.3d 243, 248-49 (Tex. App.—San Antonio 2017, no pet.). It further illuminated the nature of their relationship, the charged offense, and S.P.’s delayed reporting, and rebutted Proby’s accident defense. See TEX. R. EVID. 404(b); Inthalangsy v. State, 634 S.W.3d 749, 756-57 (Tex. Crim. App. 2021). It was therefore admissible as same-transaction contextual evidence and for purposes apart from character conformity. Because the trial court would have properly overruled a Rule 404(b) objection, counsel’s omission does not constitute deficient performance. 4. Failure to Request a Limiting Instruction Proby likewise criticizes counsel’s failure to request a limiting instruction. “The failure of trial counsel to request a limiting instruction is not, by itself, ineffective assistance.” Straight, 515 S.W.3d at 573. “Although hindsight speculation may suggest a limiting instruction of some nature should have been given, a reasonable explanation for counsel’s actions can be that, as a trial tactic, requesting a limiting instruction may have highlighted the issue.” Id. Importantly, no limiting instruction is required for same-transaction contextual evidence. Devoe, 354 S.W.3d at 471; Wilson v. State, 419 S.W.3d 582, 593-94 (Tex. App.—San Antonio 2013, no pet.). Accordingly, the evidence that Proby accelerated toward his family members did not warrant a limiting instruction because it was admissible as same-transaction contextual evidence. See Devoe, 354 S.W.3d at 471. As to the remaining evidence at issue, counsel could have reasonably forgone a limiting instruction to avoid lending it undue prominence. See Hart, 667 S.W.3d at 783. 5. Failure to Request Defensive Instructions To demonstrate deficient performance based on trial counsel’s failure to request a defensive jury instruction, an appellant must first show that he was entitled to such an instruction. Id. at 782. Even if the appellant was entitled to a defensive instruction, “the decision to forgo such - 10 - 04-25-00501-CR an instruction may not be objectively unreasonable, as these decisions are frequently grounded in trial strategy.” Id. “[J]ust because a competent defense attorney recognizes that a particular defense might be available to a particular offense, he or she could also decide it would be inappropriate to propound such a defense in a given case.” Id. (quoting Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App. 1992) (per curiam)). Proby argues that the jury should have been instructed on the laws of self-defense and necessity. See TEX. PENAL CODE §§ 9.22, 9.31. Section 9.31 of the Penal Code permits the use of force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect against another’s use or attempted use of unlawful force. Id. § 9.31. Pursuant to section 9.22, conduct that is otherwise criminal is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Id. § 9.22. Necessity and self-defense are “confession-and-avoidance defense[s] requiring the defendant to admit to his otherwise illegal conduct.” Maciel v. State, 631 S.W.3d 720, 723 (Tex. Crim. App. 2021); Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020). A defendant cannot simultaneously invoke confession-and-avoidance defenses and flatly deny the charged conduct. Maciel, 631 S.W.3d at 723; Jordan, 593 S.W.3d at 343. Especially for a necessity instruction, a defendant must “essentially admit[] to every element of the offense, including the culpable mental state.” Maciel, 631 S.W.3d at 723 (quoting Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007)). - 11 - 04-25-00501-CR Proby’s purported entitlement to necessity and self-defense instructions presupposes that he admitted to intentionally, knowingly, or recklessly causing bodily injury to S.P. See TEX. PENAL CODE § 22.01(a)(1). But, as set forth above, Proby denied culpability at trial and counsel’s tactics comported with his defense objective. See McCoy, 584 U.S. at 422-23. He has thus failed to demonstrate that self-defense and the defense of necessity were raised by the evidence at trial. See Maciel, 631 S.W.3d at 723; Villagran v. State, No. 04-22-00261-CR, 2024 WL 172596, at *3-4 (Tex. App.—San Antonio Jan. 17, 2024, no pet.) (mem. op., not designated for publication). And even assuming the evidence raised such defenses, counsel could have reasonably determined that arguing self-defense and necessity would be inconsistent with Proby’s primary defensive strategy and in turn create a credibility issue with the jury. See Hart, 667 S.W.3d at 784. On this undeveloped record, counsel’s omission was not “so outrageous that no competent attorney would have engaged in it.” See Hart, 667 S.W.3d at 783; Villagran v. State, No. 04-22-00261-CR, 2024 WL 172596, at *3 (Tex. App.—San Antonio Jan. 17, 2024, no pet.) (mem. op., not designated for publication) (quoting Hart, 667 S.W.3d at 783). Therefore, counsel was not ineffective for declining to request defensive instructions in the jury charge. See id. at 783; Villagran, 2024 WL 172596, at *4. We overrule Proby’s second issue. CUMULATIVE ERROR Finally, Proby contends that the cumulative effect of his trial counsel’s deficient performance warrants a new trial. The cumulative error doctrine provides relief only when constitutional errors so fatally infect the trial that they render the trial fundamentally unfair. Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (citing United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004)). Non-errors may not in their cumulative effect cause reversible - 12 - 04-25-00501-CR error. Collins v. State, No. 04-20-00139-CR, 2022 WL 527668, at *18 (Tex. App.—San Antonio Feb. 23, 2022, no pet.) (mem. op., not designated for publication) (citing Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)). Because Proby has not established that trial counsel was ineffective in any respect, there is no cumulative error. See id.; Poor v. State, 715 S.W.3d 15, 44 (Tex. App.—Eastland 2024, pet. ref’d). We overrule Proby’s third issue. CONCLUSION We affirm the judgment of the trial court. Adrian A. Spears II, Justice DO NOT PUBLISH - 13 -