Earl David Worden v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 31, 2024
• Docket: 01-23-00133-CR
• Status: Published

Opinion

Opinion issued December 31, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00133-CR ——————————— EARL DAVID WORDEN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court Harris County, Texas Trial Court Case No. 1622305

MEMORANDUM OPINION

Appellant Earl David Worden was convicted by jury of sexual assault of a

child between the ages of fourteen and seventeen years old. See TEX. PENAL CODE

§ 22.011. The trial court assessed appellant’s punishment at twenty years’ confinement pursuant to an agreed punishment recommendation from the State. In

eleven issues, appellant challenges the trial court’s judgment. We affirm.

Background

Because appellant does not challenge the sufficiency of the evidence

supporting his conviction, only a brief recitation of facts is necessary to the

disposition of this appeal. In 2017, Detective Joshua Reed of the Deer Park Police

Department began investigating appellant for a matter unrelated to this case. During

the investigation, Detective Reed interviewed many individuals, including the

complainant, who is one of appellant’s daughters.1 Ultimately, appellant was

charged with sexual assault of the complainant when she was between the ages of

fourteen and seventeen years old.

The complainant is the oldest of appellant’s six children with Sharon. At trial,

Sharon testified that in January 1996, the family moved into a trailer home in the

King’s Row trailer home park in Houston, Texas. At that time, the complainant was

fourteen years old.

After an unutilized room was converted to a fourth bedroom, the six children

shared bedrooms in pairs while appellant and Sharon occupied the primary bedroom.

When the complainant turned sixteen years old in February 1997, she began working

1 All persons who were minors at the time of the offenses referenced in this opinion will be referred to by their initials, and their family members will be referred to by first name only. See TEX. R. APP. P. 9.10. 2 at a local Wal-Mart to help pay bills at home. As a result, she was given her own

bedroom.

The complainant testified that once she began sleeping in her own room, she

noticed that she would wake up with her clothes disheveled in ways that would not

have happened normally while she was sleeping. She would also wake up to

appellant opening her door, walking into her room, and touching her. If the

complainant caught appellant, he would act as though he was just checking on her.

Other times, the complainant awoke to find appellant’s hands inside her underwear

and inside her vagina. The complainant testified that this happened often until she

moved out of the home in 1998.2 To prevent the abuse, the complainant would wear

extra clothing to bed, including jeans, belts, and jackets (instead of her pajamas).

She also tried to avoid sleeping because if she was awake when appellant came into

her room, he would leave.

According to Sharon, appellant became angry when the complainant began

dating an older man who lived in the trailer home park. On one occasion, appellant

and the complainant began arguing about her boyfriend. The complainant testified

that appellant told her she could date the neighbor if she gave appellant her virginity

first. When the complainant refused, appellant tried to force her to have sex with

2 The complainant could not give a definitive number of times the abuse occurred but stated that “if [appellant] was home, it was going to happen.”

3 him. The complainant fought appellant off and grabbed a knife from the kitchen. She

testified that she was angry and intended to kill appellant. When the complainant

realized her siblings were watching the altercation, she took them into her room and

closed the door until Sharon came home from work.

When Sharon arrived, the complainant was visibly upset and told Sharon that

appellant held her down and touched her breasts. According to Sharon, the

complainant did not disclose any of the prior abuse by appellant at that time.3 Sharon

sent the complainant to live with complainant’s paternal grandmother, who lived in

the same trailer home park. The complainant testified that she told her grandmother

about what happened with appellant, but neither her grandmother nor Sharon called

police. The complainant also testified that she disclosed the abuse to a “women’s

center” or agency for abuse victims when she was twenty-three years old, but they

told her the abuse was too old.

During appellant’s trial, the jury heard testimony from the complainant,

Detective Reed; Sharon; the complainant’s siblings, J.S., J.P, and E.W.; appellant’s

niece, Sonya; Sonya’s ex-husband, Marc; and a child abuse expert. After considering

the evidence, a jury found appellant guilty of sexual assault of a child between the

ages of fourteen and seventeen years old. The trial court assessed appellant’s

3 The complainant testified that after the altercation concerning the boyfriend, she told Sharon about the prior sexual assaults. 4 punishment at twenty years’ confinement pursuant to an agreed punishment

recommendation from the State.

Appellant moved for a new trial arguing that (1) there was jury misconduct

due to outside influences; (2) the trial court’s comment on the evidence during jury

deliberations was improper; (3) the State injected racial and religious animus and

stereotyping into the trial; (4) the State used false and misleading evidence that

appellant was racist and a Mormon; and (5) he received ineffective assistance of

counsel because his trial counsel failed to object to (a) the State’s injection of racial

animus into the trial, and (b) the State’s closing argument that appellant was a racist

and Mormon. Appellant supported his motion for new trial with affidavits. The trial

court conducted a hearing and considered arguments from counsel before denying

the motion. This appeal followed.

Admissibility of Evidence

In three issues, appellant contends his conviction should be reversed because

the trial court erred in admitting certain evidence during his trial. We review the trial

court’s decision to admit the evidence for an abuse of discretion. Valadez v. State,

663 S.W.3d 133, 143 (Tex. Crim. App. 2022) (“A trial court’s decision to admit or

exclude evidence is reviewed under an abuse of discretion standard.”). A trial court

abuses its discretion if its evidentiary ruling lies outside the zone of reasonable

disagreement. Id. If the trial court’s evidentiary ruling falls within the zone of

5 reasonable disagreement under any applicable legal theory, we will not intervene,

even if the trial court gave an improper justification for its ruling. De la Paz v. State,

279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009).

If the trial court abused its discretion in admitting the evidence, the error does

not warrant reversal unless it affected appellant’s substantial rights. TEX. R. APP. P.

44.2(b); Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018) (stating

erroneous admission of evidence is non-constitutional error that requires reversal

only if it affected appellant’s substantial rights). An error affects appellant’s

substantial rights only when the error has “a substantial and injurious effect or

influence in determining the jury’s verdict.” Cook v. State, 665 S.W.3d 595, 599

(Tex. Crim. App. 2023). After examining the record as a whole, if we have fair

assurance that the error did not influence the jury—or had but a slight effect—we

will not reverse appellant’s conviction. Gonzalez, 544 S.W.3d at 373. In reaching

this conclusion, we consider: (1) the character of the alleged error and how it might

be considered in connection with other evidence, (2) the nature of the evidence

supporting the verdict, (3) the existence and degree of additional evidence indicating

guilt, and (4) whether the State emphasized the complained of error. Id.

I. Admissibility of Appellant’s Extraneous Conduct

In issues one and two, appellant argues the trial court erred in admitting

testimony concerning his extraneous conduct against his other daughter, J.S. During

6 a break in the State’s case, and outside the jury’s presence, the trial court heard the

following testimony from the complainant and J.S. regarding appellant’s conduct

against J.S.:

(1) The complainant’s testimony that she observed appellant grope J.S.’s breasts and put his hands up J.S.’s skirt, and that he made J.S. bend over while wearing shorts, skirts, or dresses, ostensibly to check their length;4

(2) J.S.’s testimony that appellant stroked her leg during driving lessons;5

(3) J.S.’s testimony that appellant walked in on her while she was “exposed” and using the restroom on two or three occasions, which made her so uncomfortable that she avoided using the restroom at home and even urinated in her closet to prevent it from happening; and

(4) J.S.’s testimony concerning a conversation with appellant in Sharon’s presence wherein appellant described how J.S. could masturbate with a glass Coke bottle.

During the hearing, appellant’s counsel argued that the testimony was

inadmissible under Texas Rules of Evidence 404(b) and 403, but the trial court found

the testimony admissible to rebut defensive theories raised by counsel in opening

statement—namely, that it was impossible for appellant to commit the charged

offense given the number of occupants in the trailer and their sleeping arrangements

4 Complainant testified that appellant did similar things to her. When asked about these incidents during her own testimony, J.S. testified that she did not recall wearing skirts and did not recall her father groping her breasts. 5 Complainant similarly testified that appellant taught her to drive and that if she made a mistake, her punishment was to be groped. As a result, the complainant avoided driving with appellant or riding in a vehicle with him if possible. 7 (opportunity), and that the complainant fabricated her allegations against appellant

so she could move out of the trailer and see her boyfriend without interference from

her parents (fabrication).

A. Applicable Law

Extraneous-offense evidence that has no relevance apart from character

conformity is inadmissible. TEX. R. EVID. 404(b); see Devoe v. State, 354 S.W.3d

457, 469 (Tex. Crim. App. 2011). However, extraneous-offense evidence is

admissible under both Rules 404(b) and 403 if it satisfies a two-pronged test: (1) if

it is relevant to a fact of consequence in the case aside from its tendency to show

action in conformity with character, and (2) the probative value of the evidence is

not substantially outweighed by the danger of unfair prejudice. Page v. State, 213

S.W.3d 332, 336 (Tex. Crim. App. 2006). “We defer to the trial court’s

determinations [on] whether extraneous evidence has relevance apart from character

conformity and whether the probative value is substantially outweighed by the

danger of unfair prejudice.” Hedrick v. State, 473 S.W.3d 824, 829 (Tex. App.—

Houston [14th Dist.] 2015, no pet.).

Rule 404(b) authorizes the admission of extraneous-offense evidence if the

evidence logically serves to make more or less probable an elemental fact, an

evidentiary fact that inferentially leads to an elemental fact, or a defensive theory

that undermines an elemental fact. Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim.

8 App. 2005). The Court of Criminal Appeals has affirmed the admission of

extraneous-offense evidence to rebut “lack of opportunity” and “impossibility”

theories, Wheeler v. State, 67 S.W.3d 879, 887–88 (Tex. Crim. App. 2002), as well

as fabrication theories. Bass v. State, 270 S.W.3d 557, 562–63 (Tex. Crim. App.

2008).

A defendant may open the door to the admission of extraneous-offense

evidence by raising a defensive theory in an opening statement or during cross-

examination of the State’s witnesses. Bass, 270 S.W.3d at 563; Powell v. State, 63

S.W.3d 435, 439 (Tex. Crim. App. 2001). When defense counsel makes an opening

statement immediately after the State’s, the State may rely on the defensive opening

statement as a preview of what evidence the defense intends to present and may rebut

this anticipated defensive evidence during its case-in-chief, as opposed to waiting

until rebuttal. Bass, 270 S.W.3d at 563 n.7.

Even if extraneous-offense evidence is admissible under Rule 404(b), a trial

court still has discretion to exclude the evidence under Rule 403 if its probative value

is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403.

Rule 403 favors the admission of relevant evidence and carries a presumption that

relevant evidence will be more probative than prejudicial. A Rule 403 inquiry

generally requires a court to balance the following non-exclusive factors: “(1) how

probative the evidence is[;] (2) the potential of the evidence to impress the jury in

9 some irrational, but nevertheless indelible way; (3) the time the proponent needs to

develop the evidence; and (4) the proponent’s need for the evidence.” Colone v.

State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019).

B. Rule 404(b) Analysis of Admissibility of Extraneous Conduct

We begin by examining appellant’s assertion that his counsel did not open the

door to the admission of his extraneous conduct under Rule 404(b). For purposes of

our analysis, we categorize appellant’s extraneous conduct into two groups:

extraneous conduct that occurred in the trailer and extraneous conduct that occurred

outside the trailer.

1. Extraneous conduct in the trailer admissible to rebut defensive theory that appellant lacked opportunity to commit the charged offense.

The decision by the Court of Criminal Appeals in Powell is instructive

regarding the admission of appellant’s extraneous conduct in the trailer. Powell, 63

S.W.3d at 436. The decision examined the inclusion of extraneous-offense evidence

during a trial of alleged indecency with a child. Id. The State presented evidence that

Powell sexually molested the complainant on numerous occasions in his living room

while others were sleeping in the same room. In his opening statement—and through

cross-examination of the victim—defense counsel asserted Powell had no

opportunity to molest the victim with others present in the room. Id. at 436–37. The

State rebutted that defensive theory with several witnesses who testified Powell

10 molested them under circumstances almost identical to those of the charged offense.

Id. at 437. The Court of Criminal Appeals held that “the trial court could have

reasonably decided that the extraneous offense evidence at issue had noncharacter

conformity relevance where it rebutted [Powell’s] defensive theory that he had no

opportunity to commit the offense because he was never alone with the

complainant.” Id. at 438.

In Wheeler, the Court of Criminal Appeals reiterated that extraneous-offense

evidence is admissible to rebut a defensive theory that a defendant did not have the

opportunity to commit a sexual offense against a complainant while others are in the

same room. Wheeler, 67 S.W.3d at 887 (“The defensive theories were essentially

that appellant was never alone with S.E., and therefore lacked an opportunity to

abuse her, or alternatively, that it would have been impossible for appellant to abuse

her in a room full of people. . . . S.S.’s testimony served to rebut these defensive

theories.”); see Abshire v. State, 62 S.W.3d 857, 860–61 (Tex. App.—Texarkana

2001, pet. ref’d) (extraneous-offense evidence admissible in child sexual assault case

where defensive theory was lack of opportunity to commit offense in house where

no room was ever locked, and people were always in position to see what transpired).

Applying that logic to this case, the trial court could have reasonably

concluded that appellant’s counsel raised a “lack of opportunity” defense in his

opening statement and cross-examination of the complainant, opening the door to

11 evidence concerning his sexual conduct towards J.S. in the trailer. Wheeler, 67

S.W.3d at 887–88; Powell, 63 S.W.3d at 438. During opening statements, counsel

explained the defense’s theories in the case:

I’ll give you three things, three reasons, the evidence will show why this allegation was not credible: No. 1, it simply is not going to be possible. You’ll learn that there was a family of eight people that live in a trailer house in Houston. That’s mom, dad, six children. These children are mostly old enough to know what’s going on and see what’s going on. You’re also going to hear that [J.S.] and [B.S.] – [B.S.] is the complainant. [J.S.] is her sister, about a year younger than [B.S.]. They stay in the same room, the exact same room. It’s a trailer house. It’s not a big mansion.

I think the evidence is going to show for most of the time they stayed in bunk beds right above each other. So this allegation we have today is not one allegation of sexual abuse. It’s sexual abuse over a period of maybe two years, almost every night, hundreds of times; and not one other person in the house ever noticed the abuse taking place. It’s not credible.

(emphasis added). During cross-examination, counsel elicited testimony from the

complainant that the trailer had thin walls and felt cramped with eight occupants.

Appellant contends that even if his counsel opened the door to evidence

concerning his extraneous conduct, the trial court still abused its discretion in

admitting the evidence at issue because it was not sufficiently similar to the charged

offense. However, appellant supports his contention with cases that discuss the

degree of similarity required for extraneous conduct to counter “lack of intent,”

fabrication, or “frame-up” defenses. He provides no cases relevant to the degree of

12 similarity required to counter a defensive theory that he lacked the opportunity to

sexually assault the complainant because people were always in the trailer.

Although some similarity is required, the degree of similarity required for the

admission of extraneous conduct to prove appellant’s opportunity to commit the

charged offense is not as exacting as the degree of similarity required for the

admission of extraneous conduct for other purposes, like proving identity or

countering a fabrication defense. Cf. Plante v. State, 692 S.W.2d 487, 491–93 (Tex.

Crim. App. 1985) (en banc) (relevance of extraneous offense depends on its

similarity to charged offense, and degree of similarity required for admission of

extraneous offense is based on purpose for which extraneous offense is introduced,

and holding that degree of similarity required to show intent is less than what is

required when extraneous offense is used to prove identity); Dennis v. State, 178

S.W.3d 172, 179 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (degree of

similarity required for admission of extraneous offense to rebut fabrication theory is

“not one of exacting sameness” as is required when extraneous offense is used to

prove defendant’s modus operandi).

We have discovered no cases specifically addressing the degree of similarity

required to counter “lack of opportunity” defenses in child sexual assault cases, but

the ultimate question here is whether there is a direct or logical connection between

appellant’s extraneous conduct against J.S. and his opportunity to sexually assault

13 the complainant in the trailer as alleged in the indictment. Layton v. State, 280

S.W.3d 235, 240 (Tex. Crim. App. 2009) (when determining whether evidence is

relevant, “[i]t is critical that there is a direct or logical connection between the actual

evidence and the proposition sought to be proved”); Fox v. State, 283 S.W.3d 85, 92

(Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (extraneous conduct is

admissible when “it tends in logic and common experience to serve some purpose

other than character conformity to make the existence of a fact of any consequence

more or less probable than it would be without the evidence”).

Here, the trial court could have reasonably concluded that a logical connection

existed between appellant’s extraneous conduct against J.S. in the trailer and his

opportunity to sexually assault the complainant in the trailer. Aside from its

tendency to prove that appellant acted in conformity with his character, the

complainant’s testimony about appellant groping J.S.’s breasts and putting his hands

up J.S.’s skirt in the trailer made appellant’s opportunity to sexually assault the

complainant in the trailer, despite the trailer’s many occupants, more probable. The

same logical connection existed between appellant’s “lack of opportunity” defense

and J.S.’s testimony about appellant teaching her how to masturbate and entering the

bathroom multiple times while she was exposed, since the testimony concerned

sexual misconduct against a child in the trailer. However, the trial court could not

have reasonably concluded that a logical connection existed between appellant’s

14 “lack of opportunity” defense and J.S.’s testimony about appellant stroking her leg

during driving lessons, since that testimony concerned sexual misconduct against a

child outside the trailer.

We conclude the trial court did not abuse its discretion in admitting testimony

concerning appellant’s extraneous conduct against J.S. in the trailer under Rule

404(b) as rebuttal evidence to appellant’s “lack of opportunity” defense. However,

the trial court did abuse its discretion in admitting J.S.’s testimony about appellant

stroking her leg during driving lessons to the extent it was admitted for that purpose.

2. Extraneous conduct outside the trailer inadmissible to rebut defensive theory that complainant fabricated allegations against appellant.

Because J.S.’s testimony about appellant stroking her leg during driving

lessons was inadmissible to rebut appellant’s “lack of opportunity” defense, we must

determine whether the testimony was admissible to rebut appellant’s fabrication

defense. In Bass, the Court of Criminal Appeals held that a defendant’s opening

statement may open the door to the admission of extraneous-offense evidence to

rebut a defensive theory that the complainant fabricated her allegations against the

defendant. Bass, 270 S.W.3d at 563.

To be admissible for rebutting a fabrication defense, however, the extraneous

offense or conduct “must be at least similar” to the charged offense. See Wheeler,

67 S.W.3d at 887 n.22; Sandoval v. State, 409 S.W.3d 259, 301 (Tex. App.—Austin

15 2013, no pet.); Blackwell v. State, 193 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.]

2006, pet. ref’d); see also Dennis v. State, 178 S.W.3d 172, 179 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d) (extraneous-offense evidence admitted to rebut

defensive theory of frame-up need not be signature crime or nearly identical to

charged offense; Rule 404(b) requires only similarity to charged offense).

Here, appellant was charged with penetrating the complainant’s sexual organ

with his finger. J.S.’s testimony that appellant touched her leg mid-thigh while

teaching her to drive was not sufficiently similar to the charged offense to be

admissible to rebut appellant’s fabrication defense. See Sandoval, 409 S.W.3d at 301

(holding that “touching the butt over clothing” lacked sufficient similarity to “penile

penetration of the sexual organ” and thus did not make it more or less probable that

complainant lied); see also Wheeler, 67 S.W.3d at 887 n.22; Blackwell, 193 S.W.3d

at 13. We conclude that while the testimony concerning appellant’s extraneous

conduct in the trailer was admissible to counter appellant’s “lack of opportunity”

defense, J.S.’s testimony about appellant stroking her leg during driving lessons

rebutted neither appellant’s “lack of opportunity” nor fabrication defenses and was

therefore inadmissible under Rule 404(b).

C. Rule 403 Analysis of Admissibility of Extraneous Conduct in the Trailer

Applying the Rule 403 analysis recited above, we hold the trial court did not

abuse its discretion in finding the probative value of the testimony concerning 16 appellant’s extraneous conduct in the trailer was not substantially outweighed by the

danger of unfair prejudice. As we explained above, the testimony was probative to

rebut appellant’s “lack of opportunity” defense, as the testimony made appellant’s

opportunity to commit the charged offense more probable. The State spent

inconsequential time developing the testimony—the reporter’s record includes more

than 300 pages of evidence, yet only eight pages of that evidence were dedicated to

the testimony at issue. The State’s need for the evidence was “considerable,” given

there were no eyewitnesses and no physical evidence to corroborate the

complainant’s testimony. Caston v. State, 549 S.W.3d 601, 612 (Tex. App.—

Houston [1st Dist.] 2017, no pet.) (State’s need for extraneous-offense evidence was

“considerable” where there were no eyewitnesses and no physical evidence to

corroborate complainant’s testimony in child sex abuse prosecution).

Although evidence that appellant sexually abused J.S. was prejudicial to his

case, the record does not demonstrate the evidence was unfairly prejudicial. The

danger of unfair prejudice was mitigated, to some degree, by the trial court providing

oral and written instructions limiting the jury’s consideration of the evidence.

Blackwell, 193 S.W.3d at 15–16 (trial court’s jury instructions limiting jury’s

consideration of extraneous-offense evidence to specific issues mitigated potential

to impress jury in irrational, indelible way). During the State’s case-in-chief, the trial

court instructed the jury:

17 You’re about to hear matters regarding extraneous conduct. That’s conduct outside the allegations in the indictment. I have a two- part instruction for you. Listen carefully. First, about extraneous conduct: The State has to prove the extraneous conduct to your satisfaction beyond a reasonable doubt. If they don’t make that proof on extraneous conduct, simply disregard it. If they do make that proof, the conduct is not to be considered as direct evidence of the Defendant’s character. It’s only to be considered as to whether or not it serves to refute a claim of fabrication or perhaps lack of opportunity. It’s called a limiting charge.

When this case retires, you get this charge in writing again; but again on extraneous matters, you must be convinced beyond a reasonable doubt it did happen. If you’re not so convinced, disregard it. If you are so convinced, then it is not direct evidence of the Defendant’s character. It’s only to refute, if it does refute, a claim of fabrication or perhaps lack of opportunity . . . .

Before releasing the jury for deliberations, the trial court explained the written

instruction on the extraneous-conduct evidence as follows:

You heard about extraneous matters in this case. That’s not to show the character of the individual that they acted in accordance with the character. I’ll tell you here it’s only to aid you, if it does aid you, in proving either perhaps opportunity or lack of opportunity or to rebut a claim of fabrication. It’s not character evidence nor direct evidence of guilt in this case.

Appellant’s extraneous conduct towards J.S. was “no more serious than the

allegations forming the basis for the indictment,” mitigating the prejudicial effect of

the evidence in conjunction with the trial court’s limiting instruction. See Caston,

549 S.W.3d at 613 (affirming admissibility of testimony regarding extraneous

offense, and noting evidence was prejudicial but not “unfairly prejudicial” because

it “discussed actions that were no more serious than the allegations forming the basis 18 for the indictment”). Considering these factors, the trial court did not abuse its

discretion in admitting testimony concerning appellant’s extraneous conduct in the

trailer over the defense’s Rule 403 objection.

D. Harm Analysis of Admission of Extraneous Conduct Outside Trailer

Because we find the trial court abused its discretion in admitting evidence

concerning appellant’s extraneous conduct outside the trailer, we must consider

whether the error harmed appellant such that reversal is warranted. The record

demonstrates the jury considered evidence that mitigated the prejudicial effect of

J.S.’s testimony about appellant stroking her leg during driving lessons. Although

J.S. testified that appellant stroked her leg in a way that made her feel “gross,” she

also testified that appellant never touched her breasts or between her legs. The jury

also considered evidence that appellant taught his son to drive by tapping, not

stroking, his leg, authorizing an inference by the jury that J.S. exaggerated

appellant’s actions while teaching her to drive, or that appellant’s touching of his

child’s leg during driving lessons was not a sexual act.

Although the State referenced acts of sexual abuse that appellant committed

against J.S. in its closing argument, the State did not specifically mention J.S.’s

testimony about appellant stroking her leg during driving lessons. The defense

specifically mentioned that testimony in its closing argument, however, reminding

the jury that appellant’s son learned how to drive the same way. J.S.’s testimony 19 about appellant stroking her leg was brief and the trial court instructed the jury to

consider the testimony only for limited purposes, and only if the extraneous conduct

was proven beyond a reasonable doubt. Absent evidence to the contrary, which the

record does not reflect, we presume the jury followed the instructions provided by

the trial court. Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011) (“The

law generally presumes that instructions to disregard and other cautionary

instructions will be duly obeyed by the jury.”). Having reviewed the record as a

whole, we are convinced that J.S.’s testimony about appellant stroking her leg did

not have a substantial and injurious effect on the jury’s verdict. TEX. R. APP. P.

44.2(b). We overrule appellant’s first and second issues.

II. Admissibility of Detective Reed’s Opinion on Complainant’s Credibility

In issue four, appellant argues the trial court erred in admitting into evidence

Detective Reed’s opinion that the complainant was credible. Detective Reed

contacted the complainant while investigating another case involving appellant and

found the complainant’s allegations that appellant abused her credible. During its

direct examination, after the State asked Detective Reed to explain why he found the

complainant credible and Detective Reed began to answer the State’s follow-up

question, appellant’s counsel objected to the testimony regarding the complainant’s

credibility. The trial court overruled the objection but ordered the prosecutor to

20 “proceed with some caution.” Detective Reed then testified that he found the

complainant credible based on how she spoke to him. He testified that,

[W]hen I talked to her, it was like initial fight or flight. It started off where it was some – like a normal conversation. Then it was kind of more somber the more we start to speak. Then as we start to speak, there’s some emotion that’s coming through. I initially make contact with her through a telephone call, but I can sense the emotions coming through the telephone call.

A. Error Preservation

The State contends appellant failed to preserve for appellate review any

evidentiary error concerning the admission of Detective Reed’s opinion. Rule of

Appellate Procedure 33.1(a) provides that, as a prerequisite to presenting a

complaint for appellate review, the appellate record must show that the complaint

was made to the trial court by a timely request, objection, or motion stating the

grounds for the ruling sought with sufficient specificity to make the trial court aware

of the complaint. TEX. R. APP. P. 33.1(a)(1); see Pena v. State, 285 S.W.3d 459, 464

(Tex. Crim. App. 2009) (“To avoid forfeiting a complaint on appeal, the party must

let the trial judge know what he wants, why he thinks he is entitled to it, and to do

so clearly enough for the judge to understand him at a time when the judge is in the

proper position to do something about it.”) (internal quotations omitted).

The record demonstrates appellant’s counsel did not object to the challenged

testimony in a timely manner. “To be timely, a complaint must be made as soon as

the grounds for complaint is apparent or should be apparent.” Montelongo v. State, 21 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). “If a defendant fails to object until

after an objectionable question has been asked and answered, and he can show no

legitimate reason to justify the delay, his objection is untimely, and any claim of

error is forfeited.” Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008).

When the State asked Detective Reed, “In speaking with [the complainant],

did you find her to be credible and reliable?” Detective Reed responded, “Yes,

ma’am.” Detective Reed was responding to the prosecutor’s follow-up question,

“Why is that?” when counsel finally objected, arguing Detective Reed’s testimony

was an improper opinion on the complainant’s truthfulness. Although counsel failed

to provide a reason for his late objection, we note that “the fast-paced nature of the

examination, without more, is no legitimate reason to justify the delay in assertion

of the objection.” Hollier v. State, No. 14-99-01348-CR, 2001 WL 951014, at *4

(Tex. App.—Houston [14th Dist.] Aug. 23, 2001, pet. ref’d) (not designated for

publication) (internal quotations omitted). Because appellant’s counsel did not

object to the testimony as soon as the grounds for objection became apparent,

appellant failed to preserve this complaint for appellate review. See TEX. R. APP. P.

33.1(a)(1); Montelongo, 623 S.W.3d at 822; Luna, 268 S.W.3d at 604.

B. Harm Analysis

Even if this issue had been preserved for our review, and assuming there was

error, the record demonstrates there was no harm. We reverse appellant’s conviction

22 only if the error had a substantial and injurious effect or influence in determining the

jury’s verdict. Gonzalez, 544 S.W.3d at 373. Having examined the record, we have

fair assurance that the admission of Detective Reed’s testimony about the

complainant’s credibility had a slight—if any—influence on the jury’s verdict.

Cook, 665 S.W.3d at 599 (appellate courts “will not overturn a conviction if, after

examining the record as a whole, [they] have fair assurance that the error did not

influence the jury or did so only slightly”).

Given there was no eyewitness or corroborating physical evidence, much of

the evidence considered by the jury was focused on the primary issue in the trial:

the complainant’s credibility. During its opening and closing statements, the defense

told the jury that the complainant’s accusations against the appellant were “not

credible.” The defense supported its theory by poking holes in the complainant’s

story through cross-examination of the State’s witnesses, as well as by offering

witnesses who testified that the complainant is an untruthful person.

Although Detective Reed offered an opinion on the complainant’s credibility,

a reasonable juror would assume Detective Reed—the investigating officer who

found probable cause to arrest appellant—believed the complainant’s allegations.

But even if the jury did not make that assumption, the trial court admitted

unobjected-to-testimony from Sharon that she dismissed the complainant’s

allegations against appellant because “she wanted to pretend it wasn’t happening.”

23 One could argue Sharon’s testimony bolstered the complainant’s credibility as

much, if not more, than Detective Reed’s opinion. Anderson v. State, 717 S.W.2d

622, 628 (Tex. Crim. App. 1986) (en banc) (“Inadmissible evidence can be rendered

harmless if other evidence at trial is admitted without objection and it proves the

same fact that the inadmissible evidence sought to prove.”).

The State spent inconsequential time developing Detective Reed’s opinion;

again, the reporter’s record includes more than 300 pages of evidence and only one

page was dedicated to Detective Reed’s opinion. The State also did not specifically

mention Detective Reed’s opinion in its closing statement. The jury charge

instructed the jury that it was the exclusive judge “of the credibility of the witnesses

and the weight to be given their testimony.” The trial court explained that instruction

to the jury by saying, as the exclusive judge of witness credibility, “You decide who

you believe and what to believe.” Moreover, the State offered the complainant as a

witness, so the jury was able to independently assess her credibility. Accordingly,

we have fair assurance that the trial court’s alleged error in admitting Detective’s

Reed’s opinion either did not influence the jury or had but a slight effect. TEX. R.

APP. P. 44.2(b); See Cook, 665 S.W.3d at 599–601.

We overrule appellant’s fourth issue.

24 Denial of Motion for New Trial

In four issues, appellant argues the trial court abused its discretion in denying

his motion for new trial.6 We review the trial court’s denial of the motion for an

abuse of discretion. Najar v. State, 618 S.W.3d 366, 371 (Tex. Crim. App. 2021). A

trial court may consider evidence, including affidavits or live testimony, supporting

or opposing a motion for new trial. See TEX. R. APP. P. 21.7. “We view the evidence

in the light most favorable to the trial judge’s ruling and presume that all reasonable

factual findings that could have been made against the losing party were made

against that losing party.” Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App.

2014). “[T]he trial court is the exclusive judge of the credibility of the evidence,

regardless of whether the evidence is controverted, and its ruling will be reversed

only for an abuse of discretion, that is, if it is arbitrary or unsupported by any

reasonable view of the evidence.” Najar, 618 S.W.3d at 372; see Okonkwo v. State,

398 S.W.3d 689, 694 (Tex. Crim. App. 2013) (“In the absence of express findings,

as here, we presume that the trial court made all findings, express and implied, in

favor of the prevailing party,” including implied finding that affidavit supporting

motion for new trial lacked credibility).

6 In issue ten, appellant complains that his counsel provided ineffective assistance by failing to raise timely objections to the admission of evidence concerning race and religion. This complaint was also included in his motion for new trial. Although this specific claim of ineffective assistance was noted in the motion for new trial, we will address it in the “Ineffective Assistance of Counsel” section of our opinion. 25 I. Trial Court Judge’s Comment During Jury Deliberations

In issues seven and eight, appellant argues on both statutory and constitutional

grounds that the trial court judge’s comment during jury deliberations that, “We have

encapsulated 25 years of a dysfunctional family at best,” was prejudicial and denied

him due process. See TEX. CODE CRIM. PROC. art. 38.05 (prohibiting trial court judge

from commenting on weight of evidence in criminal proceedings or otherwise

divulging to jury his opinion of case); see also U.S. CONST. amends. V, XIV

(guaranteeing criminal defendants a fair and impartial trial consistent with due

process of law).7 Appellant made a similar argument in his motion for new trial,

which the trial court denied.

At the end of the first day of deliberations, the jury foreman informed the trial

court judge that the jurors were split on the question of appellant’s guilt. When the

trial court judge asked each juror if further deliberations would assist them in

7 In its brief, the State challenges whether appellant’s complaint about the trial court judge’s comment on constitutional grounds was preserved. The record demonstrates appellant did not raise a complaint about the comment until his motion for new trial. Relying on Proenza v. State, 541 S.W.3d 786 (Tex. Crim. App. 2017), however, appellant contends no objection was necessary to raise his complaint about the comment on both statutory and constitutional grounds. In Proenza, the Court of Criminal Appeals held that complaints about judicial comments raised under Article 38.05 are not forfeitable by inaction. 541 S.W.3d at 798–801. However, the court in Proenza was concerned with a judicial comment that allegedly violated Article 38.05 and not constitutional due process. “Regardless, we presume without deciding that appellant’s [due process complaint] did not need to be preserved in the trial court to be raised on appeal.” Gibson v. State, No. 14-19-00827-CR, 2020 WL 7626406, at *5 (Tex. App.—Houston [14th Dist.] Dec. 22, 2020, pet. ref’d) (mem. op., not designated for publication). 26 reaching a verdict, some jurors responded that it would, while some said it would

not. The judge then instructed the jurors to return in the morning for further

deliberations, specifically stating:

We have encapsulated 25 years of a dysfunctional family at best into a day and a half of testimony and half a day of deliberation. I’m going to ask[] you for some more service. What I’d like to do is start back tomorrow morning at 9:00 o’clock. And then if you find yourself – we call it a loggerhead – you just can’t agree on anything final. If you reach that point tomorrow whether it’s 9:01 or 5:30 in the afternoon, if you reach some final process where we just cannot agree upon a final verdict, you reach out to me and tell me “We’ve had it. We can’t go forward any further.”

We first address appellant’s challenge to the judge’s comment on statutory

grounds. Article 38.05 of the Texas Code of Criminal Procedure “prohibits the trial

judge from commenting on the weight of the evidence in criminal proceedings or

otherwise divulging to the jury [his] opinion of the case.” Proenza v. State, 541

S.W.3d 786, 791 (Tex. Crim. App. 2017). It provides:

In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.

TEX. CODE CRIM. PROC. art. 38.05. When reviewing a claimed violation of Article

38.05, we first determine whether the judge’s comment was, in fact, improper.

Moore v. State, 624 S.W.3d 676, 681 (Tex. App.—Houston [14th Dist.] 2021, pet.

ref’d). A judge improperly comments on the weight of the evidence if he makes a

27 statement that (1) implies approval of the State’s argument, (2) indicates any

disbelief in the defense’s position, or (3) diminishes the credibility of the defense’s

approach to the case. Id. at 681–82. If we conclude the judge’s comment was

improper, we must then decide the materiality of the comment. Id. at 681. “A

comment is material if the jury was considering the same issue.” Id. at 682. If the

comment was both improper and material, we address harm, using the standard for

non-constitutional harm set forth in Rule of Appellate Procedure 44.2(b). TEX. R.

APP. P. 44.2(b); Proenza, 541 S.W.3d at 801.

Here, the judge did not simply inform the jury, “We have encapsulated 25

years of a dysfunctional family at best.” He informed the jury, “We have

encapsulated 25 years of a dysfunctional family at best into a day and a half of

testimony and half a day of deliberation. I’m going to ask[] you for some more

service.” To put the judge’s comment in perspective, we note that, before retiring

for the day, the jury sent several notes to the judge requesting transcripts of testimony

from family members, including Sharon and J.S.’s accounts of the events on the day

the complainant threatened to kill appellant with a knife, and the complainant and

Sonya’s accounts of what the complainant told Sonya regarding the sexual abuse.

This indicates the jurors were concerned about what the family members knew about

the complainant’s allegations, especially what the complainant had shared with her

family members.

28 Although the judge made a comment on the evidence, he did not make a

comment on the weight of the evidence or reflect any opinion on the merits of the

State’s case or appellant’s defensive theories. When considered in context, the

judge’s comment appears to be an inartful attempt at acknowledging the difficulty

the jury faced in reaching a consensus on appellant’s guilt in a short amount of time

and his urging the jurors to deliberate further before giving up on reaching a verdict.

The jury was tasked with weighing conflicting testimony from estranged family

members, whose childhood consisted of moving from place to place and relying on

others for food. Like the State argued at the hearing on appellant’s motion for new

trial, “no juror went into that deliberation room thinking that this family was

normal.” Appellant’s counsel acknowledged as much in his closing statement by

arguing that, due to her upbringing, the complainant had many reasons to dislike

appellant.

To be sure, the jury was not deliberating whether appellant and the

complainant had a dysfunctional family; the jury was deliberating whether the

appellant sexually assaulted the complainant. Thus, even if we concluded the judge’s

comment was improper, we would still conclude that appellant’s statutory right was

not violated because the judge’s comment was not material. Furthermore, we note

that even if we concluded appellant’s statutory right was violated, the violation

would not warrant reversal because appellant cannot show the judge’s comment was

29 reasonably calculated to benefit the State or prejudice his rights. Moore, 624 S.W.3d

at 682 (“To constitute reversible error under article 38.05, the trial court’s improper

comments must be reasonably calculated to benefit the State or prejudice the

defendant’s rights.”).

Appellant also challenges the judge’s comment on constitutional grounds.

Due process requires a neutral and detached hearing body or officer. Brumit v. State,

206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S.

778, 786 (1973)). To reverse appellant’s conviction on constitutional grounds, we

must find that (1) judicial impropriety was committed, and (2) appellant was

probably prejudiced by the judicial impropriety. Dockstader v. State, 233 S.W.3d

98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Absent a clear showing

to the contrary, we presume that the trial court judge was neutral, detached, and

unbiased in all phases of the trial. Brumit, 206 S.W.3d at 645. Thus, for the same

reasons we rejected appellant’s claim that the judge’s comment violated Article

38.05, we also reject his claim that the comment denied him constitutional due

process. We overrule appellant’s seventh and eighth issues.

II. Admission of Evidence Concerning Race and Religion

In issue nine, appellant contends the trial court abused its discretion in denying

his motion for new trial because the State injected racial and religious animus and

stereotyping into the trial, violating his First Amendment rights.

30 During the trial, the State asked the complainant why Sharon initially did not

move into the trailer with the family. The complainant responded that appellant and

Sharon were trying to hide the fact that Sharon was pregnant by someone other than

appellant. The complainant explained that her parents “didn’t want us to know that

they were giving it up for adoption, and my father wouldn’t raise it because it was

half black.” Appellant’s counsel did not object to this testimony. The State

mentioned this testimony in its closing argument, noting that Sharon “hadn’t been

in their lives for a while because she was pregnant. She had given birth to a biracial

child that [appellant] wouldn’t allow to move back into the trailer. So that child had

to be put up for adoption.” Appellant’s counsel did not object to the State’s

argument.

The complainant also testified that when Sharon became pregnant, she and

her siblings moved into a house with appellant and his then-girlfriend. She testified

appellant’s girlfriend practiced Mormonism and wanted the family to convert. When

the State asked the complainant to clarify who wanted her to convert to Mormonism,

appellant’s counsel objected, stating, “Judge, I’ll object to the relevance of the

religion of the family. I think that’s not admissible under the evidence.” The trial

court sustained the objection. The State then laid a foundation for the testimony,

eliciting testimony from the complainant about how the appellant started being

“creepy” with her when they moved into the girlfriend’s house. The prosecutor asked

31 the complainant, “Did he make any comments that were concerning?” The

complainant responded, “He was trying to get me to convert to Mormonism.”

Appellant’s counsel objected, stating, “I’ll object to the religious issues again.” The

trial court overruled the objection, and the complainant testified that appellant “was

trying to convince me with arguments that fathers can marry their daughters in

Mormonism.” The State mentioned the complainant’s testimony in its closing

argument, stating, “Why did [appellant] want [the complainant] to convert? So that

a father could marry his daughters.” Appellant’s counsel did not object to the State’s

We conclude appellant failed to preserve for appellate review his First

Amendment challenge to the admission of this evidence. Rule 33.1 applies equally

to alleged violations of constitutional rights and evidentiary errors. Darcy v. State,

488 S.W.3d 325, 329–30 (Tex. Crim. App. 2016) (concluding that because “errors

in the admission of evidence [are] subject to procedural default, regardless of the

constitutional right involved,” such errors must be preserved to prevent “forfeit[ure]

by inaction”). Moreover, appellant’s complaint on appeal must comport with the

specific complaint timely lodged in the trial court. Penton v. State, 489 S.W.3d 578,

580 (Tex. App.–Houston [14th Dist.] 2016, pet. ref’d); see Pena, 285 S.W.3d at 464.

Appellant must have conveyed to the trial court the particular complaint raised on

32 appeal, including the precise and proper application of law as well as the underlying

rationale. Penton, 489 S.W.3d at 580.

Here, the record demonstrates appellant raised his First Amendment

complaint regarding the testimony about Sharon being pregnant with a biracial child

for the first time in his motion for new trial. “A defendant may not raise a matter for

the first time in a motion for new trial if he had the opportunity to raise it at trial.”

Colone, 573 S.W.3d at 260; see Alexander v. State, 137 S.W.3d 127, 131 (Tex.

App.—Houston [1st Dist.] 2004, pet. ref’d). Appellant’s counsel objected neither to

the testimony concerning race nor the State’s comment about race during its closing

argument. Therefore, appellant failed to preserve his First Amendment challenge to

the testimony for appellate review. See TEX. R. APP. P. 33.1(a)(1).

The record further demonstrates appellant raised his First Amendment

complaint regarding the testimony about his wanting the complainant to convert to

Mormonism for the first time in his motion for new trial. The record shows

appellant’s counsel objected to this testimony during the trial, but on the grounds

that the family’s religious practices were irrelevant to the trial issues, not on the

grounds that admitting the evidence violated appellant’s First Amendment rights.

Appellant’s counsel also made no objection to the State’s closing argument

regarding the testimony. Because appellant’s First Amendment complaint on appeal

does not comport with his counsel’s evidentiary complaint to the trial court,

33 appellant failed to preserve his First Amendment complaint for appellate review.

Pena, 285 S.W.3d at 464 (“Whether a party’s particular complaint is preserved

depends on whether the complaint on appeal comports with the complaint made at

trial.”). We overrule appellant’s ninth issue.

III. Jury Misconduct Due to Outside Influences

In issue five, appellant argues the trial court abused its discretion in denying

his motion for new trial because outside influences improperly impacted the jury’s

verdict against him. He submitted several affidavits from non-jurors in support of

his motion. After considering the affidavits and arguments from counsel, the trial

court denied appellant’s motion. The judge stated, among other things, that:

[T]here were numerous attempts to influence and intimidate a jury that I believe were absolutely unsuccessful. This was the hardest working, most diligent jury panel I’ve had in 37 years. They were attentive and intelligent. Wouldn’t prove that – I can’t bring it in here. It’s not part of the trial.

At the end of the case, after [appellant] agreed to sentencing, I went back in the back to tell the jury the outcome of sentencing because they thought they were going to do sentencing. When I walked in the jury room, I was stupefied to the point I actually took a video of what they did. My first video in my 37 years down here of jury work product. They had papered the room with giant pieces of white paper, different colors, charts, diagrams, a list of witnesses and dates, to show the diligence they did over multiple hours of deliberation.

The judge concluded, “I don’t think for a second that race animus or certain

Mormonism had anything to do with their judgment,” and “I have no belief for a

34 second that any outside influence had anything to do with the ultimate verdict of

guilty against [appellant].”

When a defendant moves for a new trial based on jury misconduct, the

defendant must establish not only that jury misconduct occurred, but also that it was

material and probably caused injury. Ryser v. State, 453 S.W.3d 17, 39 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d). An “outside influence” is something originating

from a source outside of the jury room and other than from the jurors themselves.

McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012). The mere

presence of outside influences does not warrant automatic reversal. Ryser, 453

S.W.3d at 41. Rather, an “outside influence is problematic only if it has the effect of

improperly affecting a jury’s verdict in a particular manner for or against a particular

party.” Becerra v. State, 685 S.W.3d 120, 140 (Tex. Crim. App. 2024) (citing

Colyer, 428 S.W.3d at 129). “[C]ourts conduct an objective analysis to determine

whether there is a reasonable possibility that the outside influence had a prejudicial

effect on the hypothetical average juror[.]” Id.

The Court of Criminal Appeals has explained that an outside influence

includes a juror’s “internet research” regarding “the effects of date rape drugs” that

the juror performed “at her home during an overnight break” when the juror relayed

that information to the other jurors. McQuarrie, 380 S.W.3d at 148, 154. It also

explained that an outside influence includes “factual or legal information conveyed

35 to the jurors by a bailiff or some other unauthorized person who intends to affect the

deliberations.” Colyer, 428 S.W.3d at 125. But an outside influence does not include

“influences or information that are unrelated to the trial issues.” Id. at 127.

In his motion, appellant claimed “repeated outside influences on the jury and

jury misconduct – including: an attendee (perceived to be associated with

[appellant]) following jurors to their cars; communications and attempts to

communicate to jurors, including individuals against [appellant] shouting that other

attendees were supporting a rapist and sex offender within earshot of the jury; and

the Court impermissibly commenting on the weight of the evidence in that the jury

heard about ‘25 years of this dysfunctional family in two days’ and repeatedly

emphasizing to the jury that there was a lot of crazy stuff on the internet about

[appellant] if they were to Google him[.]”

Contrary to appellant’s arguments, the record supports the judge’s decision to

reject allegations that outside influences improperly affected the jury’s verdict.

Appellant submitted affidavits stating that, after the first day of deliberations, jurors

were followed to their cars by a man named John Gray, who allegedly supported

appellant. In his affidavit, Gray stated that he “attended the trial to report and make

a news story about the evidence presented - and to make up my mind about the

allegations made against [appellant].” Gray did not indicate he attended the trial to

36 assist either the State or appellant in achieving a particular result. He described his

encounter with jurors as follows:

Following the jury being excused for the day, I exited the courthouse to walk to my car. As I was walking outside the courthouse, I encountered a portion of the jury walking out the door of the courthouse. I observed those jurors looking at me. I was carrying my camera equipment, which includes my cell phone attached to a gimbal, which also has lights and a microphone attached. I walked right behind the jurors, within just a couple of feet, and at some point, even walked within their group. I walked one full block with those jurors. I realized I was walking the wrong direction to my car, and I turned to walk back towards the courthouse. While walking back, I encountered a second group of jurors. I knew both groups were jurors because I recognized them from sitting in the trial. I walked through this second group of jurors. I made eye contact with those jurors. I proceeded to my car and went home.

In denying appellant’s motion, the judge found that Gray may have been

attempting to intimidate the jury but also found that Gray’s attempts to do so were

unsuccessful. The judge discussed the incident involving Gray with jurors on the

second day of deliberations, but the record lacks evidence that the incident

influenced jury deliberations. Instead, the record demonstrates that on the second

and last day of deliberations, the jurors spent hours carefully reviewing all the

evidence before arriving at a verdict. The jury even sent notes to the judge requesting

transcripts of certain testimony.

Appellant submitted an affidavit stating that a trial attendee, who was

reportedly opposed to appellant, conversed with jurors outside the courtroom after

the first day of deliberations. However, the affiant did not know what the trial

37 attendee and jurors were conversing about, and the judge stated at the hearing that

no one mentioned this incident to him. Appellant also submitted affidavits stating

that, during a break in the trial, three trial attendees were arguing in the hallway

about the case, with one attendee accusing another of “supporting a rapist and sex

offender.” The argument allegedly took place near the jury room and was loud

enough to catch the bailiff’s attention. However, the judge found that while the jurors

may have overheard yelling and screaming in the hallway, they did not hear any

statements about the case that improperly affected their verdict in any particular way.

Appellant’s counsel provided an affidavit stating that, due to the public

interest in the trial and the presence of numerous attendees, the jury’s verdict was

influenced by the fact that they were “taken out of the courtroom through the same

doors used by the public.” Yet, the record reflects the judge went to “extraordinary

lengths to isolate [the] jury in a very difficult public space” and that jurors were

escorted out the public entrances. Therefore, the judge could have disbelieved

counsel’s claim that the jury’s verdict was improperly affected by the public interest

in the trial and the presence of numerous attendees. Likewise, the judge could have

disbelieved a suggestion made by counsel that the judge’s statement to jurors after

the first day of deliberations—that “if they Googled about the case, there would be

‘crazy stuff’ out there”—improperly affected the jury’s verdict in any particular way.

The judge instructed the jury not to use any outside information, including the

38 Internet, in reaching a verdict, and appellant provided no evidence that any juror

shared information about the case obtained from the Internet with other jurors.

In issue six, appellant claims the judge abused his discretion in denying his

motion for new trial because the judge considered evidence that should have been

excluded by Texas Rule of Evidence 606(b). Rule 606(b) provides:

(b) During an Inquiry Into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

TEX. R. EVID. 606(b).

Appellant claims that the judge violated Rule 606(b) by considering

observations of the jury room made after the trial, including the jurors’ work product

and how the jury “papered the room with giant pieces of white paper, different

39 colors, charts, diagrams, a list of witnesses and dates.” First, when the judge

announced his ruling, stating that he made those observations, appellant’s counsel

made no objection on the grounds that the judge violated Rule 606(b) by considering

his jury room observations. Therefore, appellant failed to preserve his Rule 606(b)

complaint for appellant review. See TEX. R. APP. P. 33.1(a)(1). Second, Rule 606(b)

prohibits juror testimony or affidavits regarding jury deliberations, juror mental

processes, or how an improper influence affected jurors. TEX. R. EVID. 606(b);

Colyer, 428 S.W.3d at 123–24. It does not prohibit a trial court judge from

considering his own observations of the jury room after the trial in deciding whether

jury misconduct occurred. See TEX. R. EVID. 606(b). We hold the trial court did not

abuse its discretion in denying appellant’s motion for new trial and overrule

appellant’s fifth and sixth issues.

40 Ineffective Assistance of Counsel

In issues three and ten, appellant argues we should reverse his conviction

because his counsel’s performance was deficient. He argues his counsel’s

performance was deficient for two reasons: (1) counsel improperly opened the door

to otherwise inadmissible extraneous conduct evidence, and (2) counsel failed to

object to the admission of evidence concerning race and religion that violated his

First Amendment rights.

I. Standard of Review and Applicable Law

The Sixth Amendment of the United States Constitution and the Texas

Constitution guarantee a criminal defendant the right to reasonably effective

assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; see Lopez v.

State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). A criminal defendant’s right to

effective assistance of counsel requires objectively reasonable representation, not

errorless performance. Lopez, 343 S.W.3d at 142 (citing Strickland v. Washington,

466 U.S. 668, 686 (1984); Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.

2006)). To establish trial counsel provided ineffective assistance, appellant must

demonstrate by a preponderance of the evidence that (1) counsel’s performance was

deficient, and (2) the deficient performance prejudiced the defense. Strickland, 466

U.S. at 687; Lopez, 343 S.W.3d at 142.

41 Counsel’s performance is considered deficient when it falls below an

objective standard of reasonableness, but an appellant must overcome the strong

presumption that counsel’s performance fell within the wide range of reasonable

professional assistance. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017).

“It is not sufficient that the appellant show, with the benefit of hindsight, that his

counsel’s actions or omissions during trial were merely of questionable competence.

Rather, the record must affirmatively demonstrate trial counsel’s alleged

ineffectiveness.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).

Generally, the record on direct appeal is undeveloped regarding the motive

behind counsel’s actions and thus inadequate to prove a claim of ineffective

assistance. See Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012);

see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“A

substantial risk of failure accompanies an appellant’s claim of ineffective assistance

of counsel on direct appeal.”). The Court of Criminal Appeals has repeatedly stated

that trial counsel “should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective.” Menefield, 363 S.W.3d at 593 (quoting

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). When counsel

is not provided an opportunity to explain his conduct, we will not find counsel’s

performance deficient unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Id.

42 II. Analysis

As we concluded earlier, the trial court did not abuse its discretion in finding

counsel opened the door to the extraneous conduct evidence by raising a “lack of

opportunity” defensive theory. In his affidavit submitted with appellant’s motion for

new trial, appellant’s counsel explained why he opened the door to evidence

concerning appellant’s extraneous conduct. He stated,

The evidence in this case was very thin. There was no physical evidence and the case came down to [the complainant’s] credibility. I believed that her story was not credible because it changed, not only prior to trial, but also during her testimony before the jury. Also, it did not seem possible for [appellant] to have snuck into her room each night for two years in a trailer house with seven people without anyone noticing anything. Our defense included trying to keep out extraneous bad act evidence. However, the trial [j]udge found that I had opened the door to some prior bad act evidence which came in through [J.S.].

During the trial, after learning he had opened the door to the evidence, counsel said,

“First of all, this is necessary for the record. I’ve not intended to open the door to the

extent I have, and it’s harmful to my client. I’ll admit that later.”

Although counsel did not intend to open the door to the evidence, counsel

believed that pursuing the defensive theory which opened the door to the evidence

was a reasonable trial strategy. He expressed that, given the lack of eyewitnesses and

corroborating physical evidence, the complainant’s credibility was the main issue in

the trial, so he had no choice but to challenge her credibility and the possibility that

appellant could commit the charged offense in a crowded trailer.

43 Texas courts have repeatedly held that opening statements or witness

questioning that opens the door to evidence concerning a defendant’s extraneous

conduct is not ineffective assistance where counsel’s actions were consistent with a

reasonable trial strategy. See, e.g., Howard v. State, 239 S.W.3d 359, 367–68 (Tex.

App.—San Antonio 2007, pet. ref’d) (mem. op.) (concluding that counsel opening

door to extraneous bad acts by raising defensive theory in opening statement was

consistent with reasonable trial strategy and not ineffective assistance); Josey v.

State, 97 S.W.3d 687, 696 (Tex. App.—Texarkana 2003, no pet.) (counsel’s

questioning that opened the door to forensic interviewer’s responses regarding other

alleged sexual contact between victim and defendant was not ineffective assistance

but instead “represent[ed] an attempt to undermine the credibility” of either

interviewer or victim); Bass v. State, 713 S.W.2d 782, 785 (Tex. App.—Houston

[14th Dist.] 1986, no pet.) (concluding that counsel’s putting appellant on stand and

subjecting her to cross-examination regarding her prior offenses to establish her lack

of intent—her only real defense—was reasonable trial strategy).

After examining the whole record, we cannot conclude that counsel’s decision

to pursue the defensive theory which opened the door to the challenged testimony

constituted deficient performance. The jury could only convict appellant if it found

the complainant’s allegations credible. Thus, to effectively defend appellant, counsel

needed to challenge the complainant’s credibility and emphasize any weaknesses in

44 her story. The complainant herself admitted that her family lived in a trailer that felt

cramped with eight occupants. Therefore, it was sound trial strategy for counsel to

pursue a defense that raised doubts about how appellant could have assaulted the

complainant in such a confined space over an extended period.

Counsel also stated that he did not object to the testimony regarding Sharon’s

pregnancy with a biracial child because the claim had not been raised prior to the

trial and “caught [him] off guard.” But we cannot hold counsel’s performance

deficient simply because he did not object to the admission of this testimony on

evidentiary or constitutional grounds. “Isolated instances in the record reflecting

errors of omission or commission do not render counsel’s performance ineffective,

nor can ineffective assistance of counsel be established by isolating one portion of

trial counsel’s performance for examination.” Robertson v. State, 187 S.W.3d 475,

483 (Tex. Crim. App. 2006). Instead, counsel’s performance is judged by the totality

of the representation. Id.

The record demonstrates that after missing the objection, counsel took steps

to lessen the prejudicial effect of the testimony. During cross-examination, counsel

asked the complainant to clarify why Sharon did not initially move into the trailer.

The complainant testified that Sharon did not move into the trailer because she was

pregnant by someone other than appellant, rather than because she was pregnant with

a biracial child. Given the overall representation provided by counsel, particularly

45 his efforts to mitigate the prejudicial effect of the unchallenged testimony instead of

drawing attention to it with an objection, we cannot say counsel’s performance fell

below an objective standard of reasonableness.

Appellant further argues his counsel was ineffective for failing to properly

object to the complainant’s testimony (and the State’s argument) about him wanting

the complainant to convert to Mormonism. He claimed the testimony indicated he

“was a Mormon seeking to marry his own daughter,” which violated his “right to the

free exercise of his religion, and to associate with members of a religion.” However,

the record demonstrates counsel objected to the testimony on relevancy grounds.

Although counsel did not object on First Amendment grounds, such an

objection would likely have been unsuccessful. The jury never heard testimony that

appellant was actually a member of the Mormon faith. The complainant did not

testify that appellant was a member of the Mormon faith. She testified that

appellant’s girlfriend practiced Mormonism, that appellant’s girlfriend wanted the

family to convert, and that appellant wished her to convert. This aligns with an

affidavit submitted by one of appellant’s long-time friends stating that appellant has

“never been a Mormon.”

Assuming the jury believed appellant practiced Mormonism, the Court of

Criminal Appeals has observed that the First Amendment is not a per se barrier to

the admission of evidence protected by it. See Davis v. State, 329 S.W.3d 798, 805

46 (Tex. Crim. App. 2010). Such evidence may be admissible if it is shown to be

relevant to the issues involved in the case. Id. (citing Dawson v. Delaware, 503 U.S.

159, 161 (1992)). The record here indicates the trial court did not abuse its discretion

in overruling counsel’s evidentiary objection and finding the testimony relevant to

the trial issues (i.e., whether the complainant’s allegations against appellant were

credible). Thus, the First Amendment did not prohibit the trial court from admitting

the evidence even if there was an objection by counsel on First Amendment grounds.

Id.

Simply put, based on this record, the challenged acts and omissions of counsel

did not constitute deficient performance. See Prine, 537 S.W.3d at 117 (counsel’s

performance is deficient if it falls below objective standard of reasonableness).

Therefore, we hold appellant has failed to prove his ineffective assistance of counsel

claim by a preponderance of the evidence and overrule his third and tenth issues.8

See Thompson, 9 S.W.3d at 813 (failure to make showing of either deficient

performance or sufficient prejudice defeats ineffectiveness claim).

Cumulative Harm

Finally, in issue eleven, appellant asks this Court to overturn his conviction

and grant him a new trial because the cumulative effect of the errors in his case

8 Claims of ineffective assistance of counsel rejected on direct appeal “due to lack of adequate information may be reconsidered on an application for a writ of habeas corpus.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). 47 denied him of a fundamentally fair trial. While it is possible for several errors to be

harmful in their cumulative effect, we found little or no error in appellant’s case, and

any errors we found were deemed harmless. We hold appellant’s cumulative harm

complaint lacks merit and overrule his eleventh issue. See Buntion v. State, 482

S.W.3d 58, 79 (Tex. Crim. App. 2016) (stating that “appellant has failed to prove

error concerning each of these claims separately, and so we find no cumulative

harm”); Murphy v. State, 112 S.W.3d 592, 607 (Tex. Crim. App. 2003) (“Because

we have found little or no error in the above-alleged points, there is no harm or not

enough to accumulate.”); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim.

App. 1999) (“It is conceivable that a number of errors may be found harmful in their

cumulative effect,” but “we are aware of no authority holding that non-errors may

in their cumulative effect cause error.”); Schmidt v. State, 612 S.W.3d 359, 372 (Tex.

App.—Houston [1st Dist.] 2019, pet. ref’d) (“The cumulative-error doctrine does

not apply unless the complained-of errors have been preserved for appeal and are

actually errors.”).

Conclusion

Having overruled all eleven issues raised by appellant in his appeal, we affirm

the trial court’s judgment.

Amparo Monique Guerra Justice

48 Panel consists of Justices Goodman, Guerra, and Gunn.

Do not publish. TEX. R. APP. P. 47.2(b).