OPINION This case returns to us on remand from the Texas Court of Criminal Appeals. A grand jury indicted Appellant Sholomo David in 2016 for tampering with drugs to impair their availability as evidence in an investigation or official proceeding. TEX. PENAL CODE ANN. § 37.09(a). After a jury convicted and sentenced him to thirty years in prison, Appellant filed an appeal with this Court asserting four issues: (1) there was insufficient evidence to support his conviction, (2) the application paragraph in the jury charge omitted an element of the offense which caused egregious harm, (3) the trial court abused its discretion by denying a motion for a new trial based on jury charge error, and (4) ineffective assistance of trial counsel. In our initial decision, this Court agreed that the evidence was insufficient, reversed the judgment, and rendered an acquittal. David v. State, 621 S.W.3d 920 (Tex.App.—El Paso 2021, pet. granted). The Texas Court of Criminal Appeals reversed us on this point, holding the State presented sufficient evidence to prove beyond a reasonable doubt that Appellant had altered or destroyed the drugs. David v. State, No. PD-0307- 21, 2022 WL 1548023 (Tex.Crim.App. May 11, 2022). We, on remand, now consider Appellant’s remaining three issues. Finding no error, we affirm Appellant’s conviction. BACKGROUND This case arises from an incident on June 9, 2016, when law enforcement officers discovered Appellant standing over a hotel bathroom toilet containing marijuana and drug paraphernalia. In our earlier opinion, we set out the facts leading to Appellant’s June 9 arrest. We incorporate those facts here and include the following additional facts relevant to the determination of Appellant’s three remaining issues. Jury Charge At the close of evidence, the trial court read the jury its charge. Section four of the charge instructed the jury the “prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt; and if it fails to do so, you must acquit the defendant.” Section six of the charge then instructed the jury regarding the elements of tampering with evidence as defined by Texas Penal Code Ann. § 37.09(a): The Court will now instruct you on the applicable law: The law provides that a person commits the offense of Tampering with Physical Evidence if, knowing that an investigation or official proceeding is pending or in progress, the person alters, destroys or conceals any record, document or thing with the intent to impair its verity, legibility, or availability as evidence in an investigation or official proceeding. Section seven of the charge instructs the jury on applying the applicable law to the facts of the case. However, the trial court omitted the element requiring Appellant knew that an investigation or official proceeding was pending or in progress: Now if you find from the evidence beyond a reasonable doubt that on or about the 9th day of June, 2016, in El Paso County, Texas, the Defendant, SHOLOMO DAVID, did then and there alter, destroy or conceal any record, document or thing, to wit: drugs, with the intent to impair its verity, legibility, or availability as evidence in an investigation or official proceeding, then you will find the Defendant SHOLOMO DAVID guilty of the offense of Tampering with Physical Evidence with Intent to Impair, as charged in the indictment. (VERDICT FORM A). Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant SHOLOMO DAVID of Tampering with Physical Evidence with Intent to Impair, and next consider the lesser offense of Attempted Tampering with Physical Evidence with Intent to Impair. Appellant’s lead trial counsel did not object to the trial court’s misstatement of the law. He later testified during the motion for a new trial hearing his failure to object to the error was an “oversight.” Motion for a New Trial Appellant filed a motion for a new trial after being sentenced. In his motion, Appellant argued he was entitled to a new trial due to the error in the jury charge. He also argued his trial counsel was ineffective because, in relevant part, they failed to properly investigate the case and call an exculpatory witness, did not file a motion to suppress challenging law enforcement’s entry into the hotel room where Appellant was arrested, and failed to object to the introduction of extraneous offenses and inadmissible evidence into evidence. The trial court held three evidentiary hearings on Appellant’s motion for a new trial. Shykeytra Jones, who law enforcement arrested with Appellant on June 9, 2016, testified there were no drugs in the hotel room on the day they were arrested, the occupants of the room did not know of a pending investigation before law enforcement entered the room, and nobody tried to destroy or get rid of any drugs or paraphernalia. She also testified she wrote a letter to Appellant’s attorney stating the drug paraphernalia found in the toilet was put there by her. Jones claimed other than one phone call with Appellant’s attorney, no attorney or investigator talked to her about Appellant’s case. Appellant’s lead trial attorney also testified. He claimed while he never talked to Jones, he did have his investigator run a background check on her which revealed an extensive criminal history. He also testified he discovered Appellant and Jones had a close relationship, including Appellant bonding Jones out of jail and previously paying for her housing. Trial counsel claimed he believed Appellant “was being very influential over what [Jones] was going to testify to[,]” and Jones “ would have testified to anything [Appellant] told her to.” Based on this information, Appellant’s trial counsel testified it would have been a “waste of time…” for him to interview her, and a poor trial strategy to put on a witness who “didn’t have an ounce of credibility…” and doing so would have put Appellant “in more peril than not.” Trial counsel also testified he did not file a motion to suppress law enforcement’s warrantless entrance into the hotel room because he “didn’t see an immediate suppressible issue there” and he believed he made proper objections to evidence regarding extraneous offense evidence the State introduced. The trial court did not rule on Appellant’s motion for a new trial within the seventy-five days proscribed by Texas Rule of Appellate Procedure 21.8. As a result, it is deemed to have been denied. TEX. R. APP. P. 21.8(c). This appeal followed. DISCUSSION Issues We sustained his first issue regarding the sufficiency of the evidence to support his conviction in our initial decision, and the Court of Criminal Appeals granted the State’s Petition for Discretionary Review. The Court of Criminal Appeals sustained State’s complaint, reversed our initial decision, and remanded the case back to this Court to consider Appellant’s three remaining issues. Jury Charge Error In his second issue, Appellant claims the trial court’s failure to include all the elements of tampering with evidence as defined by Texas Penal Code Annotated § 37.09(a) was an egregious error requiring reversal of his conviction. He argues in his third issue the trial court abused its discretion by denying his motion for a new trial after it became apparent the application paragraph of the jury charge omitted a necessary element of the charged offense. We use the same standard of review in assessing jury charge error, whether the error is first presented on appeal or in a motion for a new trial at the trial court level. See Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006)(“Even though appellant characterized his claim as error in denying a new trial, this case presents error in the charge. At the appellate level, the proper standard is Article 36.19, as constructed by Almanza.”); State v. Ambrose, 487 S.W.3d 587, 594 (Tex. Crim. App. 2016)(“This Court has held that Almanza is the appropriate standard for conducting a harm analysis in cases reviewing jury-charge error, even when the error was first asserted in a motion for a new trial.”). As a result, we consider Appellant’s second and third issues together. Standard of Review An appellate court reviews a claim of jury charge error by first determining whether an error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If the reviewing court finds an error in the charge, it then analyzes the error for harm. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). The level of harm required for reversal depends on whether the defendant objected to the error at trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)(op. on reh’g). When a defendant fails to object or states he has no objection to the charge, the court will not reverse for jury charge error unless the record shows “egregious harm” to the defendant. Ngo, 175 S.W.3d at 743-44. This is a difficult standard to meet and requires a showing the defendant was deprived of a fair and impartial trial. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011). The record must demonstrate actual rather than theoretical harm. Torres v. State, 543 S.W.3d 404, 414 (Tex.App.—El Paso, 2018, pet. ref’d). “To establish actual harm, the charge error must have affected the very basis of the case, deprived Appellant of a valuable right, or vitally affected a defensive theory.” Id. In making that determination, we review: (1) the entire charge; (2) the state of the evidence, including the contested issues and the weight of the probative evidence; (3) the arguments of counsel; and (4) any other relevant information revealed by the record. State v. Sanchez, 393 S.W.3d 798, 803 (Tex.App.—El Paso 2012, pet. ref’d). Analysis Appellant argues the jury charge erroneously allowed the jury to convict him of tampering with physical evidence without finding that he knew an investigation or official proceeding was pending or in progress. The State admits the error in the jury charge but argues that Appellant did not suffer egregious harm due to the error. The elements of tampering with physical evidence are (1) Appellant, (2) knew that an investigation or official proceeding was pending or in progress, (3) altered, destroyed, or concealed, (4) evidence, (5) with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding. TEX. PENAL CODE ANN. § 37.09(a); David, 2022 WL 1548023, at *3. Section seven of the jury charge, which applied the relevant penal law and general legal principles to the facts of this case, omitted the second element. As a result, we agree with Appellant and the State that the jury charge was erroneous. See Bautista v. State, No. 08-15-00362-CR, 2018 WL 4907821, at *6 (Tex.App.—El Paso Oct. 10, 2018, no pet.)(not designated for publication)(“When the application paragraph of a jury charge incorrectly applies the relevant penal law to the facts of a given case, it is erroneous.”). Having found an error in the charge, we turn to whether the error harmed Appellant. Middleton, 125 S.W.3d at 453. Appellant’s trial counsel did not object to the error. As a result, we will review the record to determine whether the error egregiously harmed Appellant in light of the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information. Ngo, 175 S.W.3d at 743-44; Sanchez, 393 S.W.3d at 803. Looking at the charge, the abstract portion accurately stated the substantive law on the offense of tampering with physical evidence, including the element that Appellant knew that an investigation or official proceeding was pending or in progress. The charge also correctly addressed extraneous offense evidence, the presumption of innocence, statements of the court and counsel, and the State had the burden of proving Appellant guilty “by proving each and every element of the offenses charged beyond a reasonable doubt….” Consequently, looking at the jury charge as a whole, the erroneous application paragraph appears less harmful. See Bazanes v. State, 310 S.W.3d 32, 37 (Tex.App.—Fort Worth 2010, pet. ref’d)(“Consequently, within the context of the entire jury charge, the erroneous application paragraph appears less harmful.”). Regarding the state of the evidence, the State presented testimony at least some of the vehicles law enforcement arrived in on June 9 were marked as police vehicles and that some of the law enforcement officers on the scene were in uniform. There was also testimony law enforcement identified themselves to an unidentified female who quickly moved to Appellant’s hotel room and “yelled something inside[.]” Testimony also showed law enforcement identified themselves as police before the door to Appellant’s hotel room was “ quickly slammed.” Consequently, sufficient evidence was produced at trial to show Appellant could have known an investigation was pending or in progress. See Lumpkin v. State, 129 S.W.3d 659, 663 (Tex.App— Houston [1st Dist.] 2004, pet. ref’d)(“To avoid redundancy from use of the terms ‘pending’ and ‘in progress,’ we look to a second definition of the adjective ‘pending,’ which is ‘about to take place; impending.’”); Sanchez, 393 S.W.3d at 804 (holding the defendant was not egregiously harmed by the trial court’s failure to properly charge the jury regarding all elements of the crime because the evidence produced at trial would have allowed a rational jury to find the missing element beyond a reasonable doubt). We next address the arguments of counsel. In its opening statement, the State summarized the facts that led to law enforcement finding Appellant in the hotel bathroom with marijuana and drug paraphernalia in the toilet. It then argued the only reason Appellant would have been trying to destroy the drugs and paraphernalia was because he knew an investigation was pending or in progress: “[a]nd the only reason why he’d be trying to do that is because the cops were there.” Similarly, in its closing argument, the State summarized how an unidentified female alerted Appellant when she observed the police arrive at the hotel and how the police officers knocked on the door and windows of the room “for quite some time, with no response.” It then concluded all the evidence shows “why someone would try to destroy evidence when they find out the police are there.” Consequently, the arguments of counsel did not mislead the jury. Finally, the State informed the jury of all the elements of tampering with physical evidence during voire dire, including the requirement Appellant knew that an investigation or official proceeding was pending or in progress. And at the start of the trial, the State read the jury the indictment which alleged Appellant tampered with physical evidence “knowing that an investigation or official proceeding [was] pending or in progress[.]” As a result, in light of our review of the jury charge as a whole, the evidence, the arguments of counsel, and other relevant information, we find the error in the jury charge did not cause Appellant egregious harm. Therefore, we overrule Appellant’s second and third issues. Ineffective Assistance of Counsel In his fourth issue, Appellant argues the trial court abused its discretion in not granting his motion for a new trial because of “multiple instances of ineffective assistance of counsel[.]” Specifically, Appellant claims his trial counsel was ineffective because (1) he failed to object to an erroneous jury charge, (2) he failed to interview an exculpatory witness, (3) he did not call an exculpatory witness to testify at trial, (4) he did not file a motion to suppress and (5) he did not object to the introduction of inadmissible evidence or numerous extraneous offenses at trial. We will consider each of these in turn. The Strickland Test To prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The first prong requires a defendant to prove that counsel’s performance fell below an objective standard of reasonableness. Id. at 688. To do so, the defendant must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance[.]” Id. at 689. The second Strickland prong—the prejudice prong—requires a defendant to prove that, but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Id. at 694; Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Thus, to establish prejudice, a defendant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. It is not sufficient for the defendant to show “that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Instead, he must show that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. It is the defendant’s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A failure to make a sufficient showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d. 107, 110-11 (Tex. Crim. App. 2003). The ineffectiveness of counsel allegations must be based on the record, and the presumption of a sound trial strategy cannot be overcome absent evidence in the record of the attorney’s reasons for his conduct. Busby v. State, 990 S.W.2d 263, 269 (Tex. Crim. App. 1999). “‘Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped.’” Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012). “This statement is true with regard to the ‘deficient performance’ prong of the inquiry, when counsel’s reasons for failing to do something do not appear in the record.” Id. at 593. Trial counsel should be allowed to explain their actions before being denounced as ineffective. Id. If trial counsel is not given that opportunity, the appellate court should not find deficient performance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Standard of Review Because Appellant made his claim of ineffective assistance of counsel in a motion for a new trial, we must determine whether the trial court erred in denying that motion. See Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012)(rev’d on other grounds). We review a trial court’s denial of a motion for a new trial for an abuse of discretion, reversing only if the trial judge’s opinion was clearly erroneous and arbitrary. Freeman v. State, 340 S.W.3d 717, 732 (Tex. Crim. App. 2011). A trial court abuses its discretion if no reasonable view of the record could support the trial court’s ruling. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). This deferential review requires us to view the evidence in the light most favorable to the trial court’s ruling. Riley, 378 S.W.3d at 457. We cannot substitute our own judgment for that of the trial court and must uphold the trial court’s ruling if it is within the zone of reasonable disagreement. Id. Because Appellant raised his ineffectiveness claim before the trial judge at the hearing on his motion for a new trial, and the trial judge implicitly denied his motion, we must presume that all findings made by the trial judge were made in favor of the State. Jones v. State, No. 08-14- 00122-CR, 2017 WL 3048575, at *4 (Tex.App.—El Paso July 19, 2017, no pet.)(not designated for publication). As a result, we assume the trial judge implicitly found that there was no reasonable probability the result of the proceedings would have been different. Id. Our role is to determine whether any reasonable view of the record, viewed in the light most favorable to the trial court’s ruling, could support the trial court’s implicit findings. Id. Analysis Failure to object to the erroneous jury charge Appellant claims his trial counsel was ineffective because they failed to object to the erroneous jury charge. As we have already discussed, the application portion of the jury charge in this case omitted a statutory element of the crime of tampering with evidence, and Appellant’s attorneys should have objected. But we also held the charge error did not result in egregious harm depriving Appellant of a fair and impartial trial. Because any harm associated with the defective charge was not egregious, Appellant has not established counsels’ failure to object to the charge prejudiced him to such a degree that he was deprived of a fair trial. See Saldana Martinez v. State, No. 04-02-00491-CR, 2003 WL 244829, at *2 (Tex.App.—San Antonio Feb. 5, 2003, no pet.) (not designated for publication); Davidson v. State, No. 05-99-01158-CR, 2001 WL 55927, at *4 (Tex.App.—Dallas Jan. 24, 2001, no pet.)(not designated for publication)(“[W]e concluded that any error in the abstract portion of the charge did not harm appellant because the law was properly set forth in the application paragraph. Thus, trial counsel was not ineffective for failing to object to the jury charge.”). As a result, we find the trial court did not abuse its discretion in finding Appellant’s trial counsel was not ineffective for failing to object to the erroneous jury charge. Failure to interview an exculpatory witness A criminal defendant’s trial counsel has a duty to either make reasonable investigations or make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691; McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996)(overruled on other grounds). We give trial counsel’s decision not to investigate or to limit the scope of an investigation a great deal of deference, looking at the reasonableness of the decision in light of the totality of the circumstances. Strickland, 466 U.S. at 691; McFarland, 928 S.W.2d at 501. The failure to interview a witness falls below an objective standard of reasonableness when such inaction precludes an accused from advancing any viable defense. Chavis v. State, No. 14-11-00634, 2012 WL 6017711, at *3 (Tex.App.—Houston [14th Dist.] Dec. 4, 2012, pet. ref’d)(not designated for publication). “[A] conviction will not be reversed based on the failure to investigate unless the consequence of that failure is that the defendant’s only viable defense is not advanced and there is a reasonable probability that, but for the failure, the result of the proceeding would have been different.” Id. Appellant claims his trial counsel was ineffective for failing to interview Shykeytra Jones. Jones’s testimony at the hearing on Appellant’s motion for a new trial could have helped Appellant’s defense if credited by the jury. Specifically, she testified there were no drugs in the hotel room on the day she and Appellant were arrested and the drug paraphernalia found in the toilet was placed there by her. Appellant’s lead trial counsel admitted he did not interview Jones, but he did run a background check that revealed Jones had an extensive criminal history. He also said he knew Appellant and Jones had a close personal relationship and he thought Jones would have told the jury anything Appellant wanted her to. Based on the credibility issues he perceived with Jones, the lead trial counsel thought it would be a waste of time to interview her. We must give trial counsel’s decision not to interview Jones a great deal of deference. And in light of the totality of the circumstances, we do not find it was unreasonable. Further, Appellant’s trial counsels’ decision to not interview Jones did not prevent Appellant from advancing a viable defense. The record shows even without Jones’s testimony, Appellant could still argue to the jury there was no evidence Appellant tampered with the physical evidence as alleged in this case. As a result, we find the trial court did not abuse its discretion in finding that Appellant’s trial counsel was not ineffective for not interviewing Jones. Failure to call an exculpatory witness to testify at trial Appellant also argues his trial counsel was ineffective for not calling Jones to testify at trial. “[A]uthority recognizes that a decision regarding whether or not to call particular witnesses generally involves a matter of trial strategy.” Pensado v. State, No. 07-14-00401-CR, 2015 WL 5244337, at *1 (Tex.App.—Amarillo Sept. 1, 2015, no pet.)(not designated for publication). Indeed, Appellant’s lead trial counsel testified not calling Jones as a trial witness was part of his trial strategy because she “didn’t have an ounce of credibility” and she could have hurt Appellant more than she could have helped him. Because the decision to not call Jones was part of a reasonable trial strategy, we cannot say Appellant’s trial counsels’ actions fell outside the range of reasonable professional assistance. Consequently, the trial court did not abuse its discretion in finding trial counsel was not ineffective in deciding against calling Jones as a witness. Failure to file a motion to suppress Appellant also claims the trial court abused its discretion by denying his motion for a new trial because his counsel was ineffective for failing to file a motion to suppress evidence seized from his hotel room. We disagree. Appellant was obliged to prove the trial court would have granted a motion to suppress to satisfy Strickland. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)(citing Roberson v. State, 852 S.W.2d 508, 510-12 (Tex. Crim. App. 1993)). He has not met that burden. On appeal, he conclusively claims “the trial court would have had no choice but to suppress and hold that the observation made by the officers upon their entry into room 18 was inadmissible.” The only basis to support his conclusion the trial court would have granted the motion to suppress is in State v. Steelman, 93 S.W.3d 102 (Tex.Crim.App. 2002). The Court of Criminal Appeals held “the odor of marijuana alone does not provide sufficient probable cause to justify a warrantless entry.” While his interpretation of Steelman is accurate, to prevail on his claim of ineffective assistance of counsel, Appellant had the burden to develop facts and details of the search sufficient to conclude it was constitutionally invalid. Jackson, 973 S.W.2d at 957. He failed to do so. Instead, he claims without any factual support “the record is devoid of any evidence that exigent circumstances were present.” For this reason, the trial court did not abuse its discretion in denying Appellant’s claim of ineffective assistance of counsel for trial counsel’s decision to not file a motion to suppress. Failure to object to the introduction of extraneous offenses at trial Appellant argues his trial counsel was ineffective because they failed to object to several extraneous offenses the State offered into evidence at trial. Specifically, he complains his trial counsel should have objected to the introduction of evidence regarding (1) a recent non-related stabbing at the hotel committed by an unknown third party; (2) an undercover buy of narcotics at the hotel as part of the investigation; (3) a confidential informant’s purchase of drugs out of another room of Appellant’s hotel during the investigation; (4) drugs were found in another room of the hotel during the investigation; (5) law enforcement witnessed an unidentified individual smoke some sort of drug immediately after leaving Appellant’s hotel room; (6) the criminal reputation of the area and hotel where Appellant was arrested; and (7) evidence drugs were found in Appellant’s truck. Appellant’s lead trial counsel testified at the motion for a new trial hearing he believed he made the proper objections to extraneous offense evidence. First, the record shows trial counsel objected to the introduction of evidence regarding the drugs found in Appellant’s truck. The trial court overruled him. We will not hold an attorney’s performance fell outside the range of reasonable professional assistance when he made a proper objection and was overruled. Trial counsel did not, however, object to the remaining extraneous offenses Appellant complains of on appeal. The State argues none of the complained-of instances qualify as extraneous offenses under Texas Rule of Evidence 404(b) because Appellant was not accused of committing the acts. The State’s interpretation of extraneous offenses is too narrow. The Court of Criminal Appeals held in Castaldo v. State, 78 S.W.3d 345, 348-50 (Tex. Crim. App. 2002) that Rule 404(b) limits evidence of other crimes, wrongs, or acts of both the accused and third parties. See also Robinson v. State, No. 08-04-00217-CR, 2006 WL 736178, at *5 (Tex.App.—El Paso Mar. 23, 2006, no pet.)(not designated for publication). Appellant was not charged in this matter with any of the extraneous offenses he identified on appeal. As a result, the complained-of instances all qualify as extraneous offenses. Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996)(“An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.”). But extraneous offenses are not always inadmissible. “It has long been the rule in this State that the jury is entitled to know all the relevant surrounding facts and circumstances of the charged offense.” Cucuta v. State, No. 08-15-00027-CR, 2018 WL 1026449, at *13 (Tex.App.—El Paso Feb. 23, 2018, pet. ref’d) (not designated for publication). “An offense is not tried in a vacuum.” Id. “Extraneous offense evidence may be admissible as same-transaction contextual evidence, where ‘several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction.’” Id. (quoting Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). The evidence that both law enforcement and a confidential informant had recently conducted a controlled buy of drugs at Appellant’s hotel during its investigation and that law enforcement had witnessed an unknown individual smoke some kind of drug immediately after exiting Appellant’s hotel room fell within this contextual evidence category. Drugs found in another hotel room during the same operation in which Appellant was arrested also qualify as contextual evidence. Consequently, this evidence was admissible and the trial court did not abuse its discretion in finding trial counsel was not ineffective for failing to object to it. Delgado v. State, No. 08-00-00490-CR, 2002 WL 1732554, at *6 (Tex.App.—El Paso July 25, 2002, no pet.)(not designated for publication)(“Counsel is not ineffective for failing to object to admissible evidence.”). The evidence regarding the criminal reputation of Appellant’s hotel and the recent unrelated stabbing at Appellant’s hotel cannot fairly be characterized as same-transaction contextual evidence. But even if we were to find the evidence was inadmissible and should have been objected to, we would find this error did not prejudice Appellant. Appellant’s trial counsel clarified in front of the jury the stabbing was unrelated to the investigation that resulted in Appellant’s arrest and Appellant had nothing to do with it. It was introduced to demonstrate “the violence that occurs in this area….” And while the State did present evidence law enforcement entered Appellant’s hotel room without a warrant because the area is “a documented human trafficking area[,]” there was no evidence or insinuation at trial Appellant was involved in the practice. It is not reasonably probable, but for the introduction of this evidence, the result of Appellant’s trial would have been different. Strickland, 466 U.S. at 694; Castaldo, 78 S.W.3d at 350 (“The danger of prejudice may be much lower when evidence of a third party’s extraneous act is offered.”). As a result, the trial court did not abuse its discretion in denying Appellant’s motion for a new trial. Failure to request a limiting instruction regarding the extraneous offenses Appellant claims his trial counsel was deficient because they did not “request a limiting instruction on these [extraneous] matters….” But the record shows his trial counsel addressed the limits for which the jury could consider extraneous offenses in its deliberations with the trial court during the jury charge conference. And paragraph five of the jury charge includes an instruction to the jury describing the limited use of extraneous offenses. Consequently, trial counsel was not deficient for not requesting a limited instruction regarding extraneous offenses. Failure to object to the out-of-court statement of a confidential informant The following exchange took place during the trial between the State and one of its law enforcement witnesses: Q. Okay. Lieutenant, were you working on June 9th of 2016? A. Yes, ma’am. Q. Okay. And what were you doing regarding this location? A. Well, we had already obtained two search warrants for two different rooms there at that location. . . . Q. Okay. Do you recall for what rooms? A. We had search warrants for room 12 and room 15. Q. Okay. Why those specific rooms? A. Well, our original intelligence–we had a cooperating individual that was working with us at the time that told us that there were drug sales occurring in room 15. So the evening before, we sent–we sent one of our people into room 12. And at the time, it was a female who agreed to sell crack cocaine and she walked over to room 15 and that’s where she obtained the crack cocaine. She came back to room 12 and that’s when the sale occurred in room 12. Appellant complains his trial counsel was ineffective for failing to object to the portion of this testimony regarding a confidential informant telling law enforcement “that there were drug sales occurring in room 15.” He argues the introduction of the informant’s out-of-court statement should have been objected to as inadmissible hearsay under Texas Rule of Evidence 801 and as a violation of his Sixth Amendment right to confront and cross examine the informant. The State counters the informant’s statement is not hearsay because it was not offered to prove the truth of the matter asserted. The issue before us is not whether the introduction of the informant’s out-of-court statement was inadmissible hearsay or infringed Appellant’s Sixth Amendment confrontation rights. Instead, the issue we face is whether Appellant’s trial counsel was ineffective for not objecting to the admissibility of this out-of-court statement. While the trial court held three evidentiary hearings regarding Appellant’s motion for a new trial, Appellant failed to ask his trial attorneys why they did not object to the admission of the informant’s statement. As a result, we do not know why his trial counsel did not raise a hearsay or Sixth Amendment objection because the record is silent on the matter. Perhaps trial counsel should have objected and their conduct was deficient. Maybe trial counsel recognized that if they had objected, the State could have produced the informant, and his or her testimony would not have benefited Appellant. See Menefield, 363 S.W.3d at 593. Trial counsel was not allowed to explain their action and we cannot say their conduct was so outrageous that no competent attorney would have engaged in it. Id. So, while we offer no opinion regarding whether the confidential informant’s out-of-court statement was inadmissible hearsay under the Texas Rules of Evidence or infringed on Appellant’s Sixth Amendment confrontation rights, we hold the trial court did not abuse its discretion in denying Appellant’s motion for a new trial. For these reasons, we find the trial court did not abuse its discretion in denying Appellant’s motion for a new trial. As a result, we overrule Appellant’s fourth issue. CONCLUSION We affirm Appellant’s conviction. July 29, 2022 YVONNE T. RODRIGUEZ, Chief Justice Before Rodriguez, C.J., Palafox and Alley, JJ. (Do Not Publish)
