In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00533-CR NO. 09-13-00534-CR ____________________
JOHN ROBERT MANNING, Appellant
V.
THE STATE OF TEXAS, Appellee _______________________________________________________ ______________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 13-09-09713 CR (Counts 1 and 2) ________________________________________________________ _____________
MEMORANDUM OPINION
John Robert Manning appeals from a jury trial that resulted in his
convictions for aggravated sexual assault of a child and indecency with a child by
contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011), § 22.021(a)(1)(B)
(West Supp. 2015). In three issues, Manning claims (1) the trial court abused its
discretion by admitting evidence about a sexual assault involving another child
who was not the victim of the crimes for which he was indicted; (2) the evidence
1 failed to prove that the offenses made the subject of his indictment occurred in
2008; and (3) he received ineffective assistance of counsel during a hearing
conducted outside the presence of the jury when his attorney decided not to
question April,1 the child who was the alleged victim of an extraneous offense. We
hold that Manning’s issues are without merit, and we affirm the trial court’s
judgment.
Admission of Extraneous Offense
In issue one, Manning contends that the trial court abused its discretion by
admitting evidence about an incident that allegedly occurred in July 2011
involving a child named April. The testimony about the incident indicates that
April told her mother that Manning had exposed himself while she was alone with
Manning in the bedroom of a relative’s home. According to April’s mother, she
questioned Manning about the incident, and he told her that April was possibly
attempting to relate what she might have seen in a video depicting an encounter
that occurred between two adults on his phone.
1 To protect the privacy of the children relevant to Manning’s case, we identify them by using the aliases “April” and “Jill” to conceal their actual names. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 Before April’s mother testified, the trial court conducted a hearing to
evaluate whether the evidence about the incident involving April should be
admitted before the jury. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West
Supp. 2015). During the hearing on the extraneous offense, the trial court
considered the testimony of April’s mother, a Child Protective Services
investigator, a child sexual abuse case investigator, and a detective who
interviewed Manning about the incident.
At the conclusion of the hearing, the trial court found the evidence
introduced during the hearing would be sufficient to support a jury finding that
Manning had exposed himself to April. After the trial court informed the parties of
its ruling, Manning stated that he still objected to the testimony about the incident
with April being admitted, and he complained that the trial court had not weighed
whether the evidence about the incident involving April was unduly prejudicial.
See Tex. R. Evid. 403. The trial court responded, “Well, doing the weighing, I’ll
determine -- doing the appropriate weighing, I determined it’s admissible.”
“Once a Rule 403 objection as to prejudice versus probative value is
invoked, the trial judge has no discretion as to whether or not to engage in the
balancing test required by that rule.” Williams v. State, 958 S.W.2d 186, 195 (Tex.
Crim. App. 1997). “However, a trial judge is not required to sua sponte place any
3 findings he makes or conclusions he draws when engaging in this test into the
record[.]” Id. “Rather, a judge is presumed to engage in the required balancing test
once Rule 403 is invoked[.]” Id. We conclude that the trial court did perform the
required balancing test, and that after doing so, the trial court determined that the
evidence about the incident involving April was admissible.
In his brief, Manning argues that the extraneous offense evidence was
unduly prejudicial because the purpose of the evidence was to show that when
committing the offenses alleged in the indictment, he was acting in conformity
with his character as a person known to abuse children. See Tex. R. Evid.
404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in
accordance with the character.”). However, in Manning’s case, the State used the
testimony about the incident involving April to explain the circumstances under
which the police learned that Manning committed the offense against Jill. The
testimony before the jury indicates that the incident involving April led to a
forensic interview of Jill, and Jill’s interview revealed that Manning had been
sexually abusing Jill for years before the incident involving April occurred.
In a prosecution for sexual abuse of a child, the character of the defendant is
relevant, and the tendency that such evidence may have to show that a defendant is
4 the type of person who abuses children does not make the testimony inadmissible.
See Tex. Code Crim. Proc. Ann. art. 38.37, § 2. In cases involving the sexual abuse
of a child, this type of evidence is admissible because article 38.37, section 2
creates an exception to the Rules of Evidence that otherwise makes character
evidence inadmissible. Compare Tex. R. Evid. 404(b) with Tex. Code Crim. Proc.
Ann. art. 38.37, § 2.
In our view, the evidence about the incident involving April had probative
value in the context of a trial involving the sexual offenses committed by Manning
against Jill. See Tex. R. Evid. 403. As used in Rule 403, “[t]he term ‘probative
value’ refers to the inherent probative force of an item of evidence—that is, how
strongly it serves to make more or less probable the existence of a fact of
consequence to the litigation—coupled with the proponent’s need for that item of
evidence.” Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “‘Unfair
prejudice’ refers to a tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” Id.
In Manning’s case, the trial court determined that the danger of unfair
prejudice did not substantially outweigh the probative value of the evidence of the
incident involving April. See Tex. R. Evid. 403. “[A] ruling on the balance
between probative value and the counter factors set out in Rule 403, . . . is always
5 slanted toward admission, not exclusion, of otherwise relevant evidence.” De La
Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “As long as the trial
Free access — add to your briefcase to read the full text and ask questions with AI
In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00533-CR NO. 09-13-00534-CR ____________________
JOHN ROBERT MANNING, Appellant
V.
THE STATE OF TEXAS, Appellee _______________________________________________________ ______________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 13-09-09713 CR (Counts 1 and 2) ________________________________________________________ _____________
MEMORANDUM OPINION
John Robert Manning appeals from a jury trial that resulted in his
convictions for aggravated sexual assault of a child and indecency with a child by
contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011), § 22.021(a)(1)(B)
(West Supp. 2015). In three issues, Manning claims (1) the trial court abused its
discretion by admitting evidence about a sexual assault involving another child
who was not the victim of the crimes for which he was indicted; (2) the evidence
1 failed to prove that the offenses made the subject of his indictment occurred in
2008; and (3) he received ineffective assistance of counsel during a hearing
conducted outside the presence of the jury when his attorney decided not to
question April,1 the child who was the alleged victim of an extraneous offense. We
hold that Manning’s issues are without merit, and we affirm the trial court’s
judgment.
Admission of Extraneous Offense
In issue one, Manning contends that the trial court abused its discretion by
admitting evidence about an incident that allegedly occurred in July 2011
involving a child named April. The testimony about the incident indicates that
April told her mother that Manning had exposed himself while she was alone with
Manning in the bedroom of a relative’s home. According to April’s mother, she
questioned Manning about the incident, and he told her that April was possibly
attempting to relate what she might have seen in a video depicting an encounter
that occurred between two adults on his phone.
1 To protect the privacy of the children relevant to Manning’s case, we identify them by using the aliases “April” and “Jill” to conceal their actual names. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 Before April’s mother testified, the trial court conducted a hearing to
evaluate whether the evidence about the incident involving April should be
admitted before the jury. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West
Supp. 2015). During the hearing on the extraneous offense, the trial court
considered the testimony of April’s mother, a Child Protective Services
investigator, a child sexual abuse case investigator, and a detective who
interviewed Manning about the incident.
At the conclusion of the hearing, the trial court found the evidence
introduced during the hearing would be sufficient to support a jury finding that
Manning had exposed himself to April. After the trial court informed the parties of
its ruling, Manning stated that he still objected to the testimony about the incident
with April being admitted, and he complained that the trial court had not weighed
whether the evidence about the incident involving April was unduly prejudicial.
See Tex. R. Evid. 403. The trial court responded, “Well, doing the weighing, I’ll
determine -- doing the appropriate weighing, I determined it’s admissible.”
“Once a Rule 403 objection as to prejudice versus probative value is
invoked, the trial judge has no discretion as to whether or not to engage in the
balancing test required by that rule.” Williams v. State, 958 S.W.2d 186, 195 (Tex.
Crim. App. 1997). “However, a trial judge is not required to sua sponte place any
3 findings he makes or conclusions he draws when engaging in this test into the
record[.]” Id. “Rather, a judge is presumed to engage in the required balancing test
once Rule 403 is invoked[.]” Id. We conclude that the trial court did perform the
required balancing test, and that after doing so, the trial court determined that the
evidence about the incident involving April was admissible.
In his brief, Manning argues that the extraneous offense evidence was
unduly prejudicial because the purpose of the evidence was to show that when
committing the offenses alleged in the indictment, he was acting in conformity
with his character as a person known to abuse children. See Tex. R. Evid.
404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in
accordance with the character.”). However, in Manning’s case, the State used the
testimony about the incident involving April to explain the circumstances under
which the police learned that Manning committed the offense against Jill. The
testimony before the jury indicates that the incident involving April led to a
forensic interview of Jill, and Jill’s interview revealed that Manning had been
sexually abusing Jill for years before the incident involving April occurred.
In a prosecution for sexual abuse of a child, the character of the defendant is
relevant, and the tendency that such evidence may have to show that a defendant is
4 the type of person who abuses children does not make the testimony inadmissible.
See Tex. Code Crim. Proc. Ann. art. 38.37, § 2. In cases involving the sexual abuse
of a child, this type of evidence is admissible because article 38.37, section 2
creates an exception to the Rules of Evidence that otherwise makes character
evidence inadmissible. Compare Tex. R. Evid. 404(b) with Tex. Code Crim. Proc.
Ann. art. 38.37, § 2.
In our view, the evidence about the incident involving April had probative
value in the context of a trial involving the sexual offenses committed by Manning
against Jill. See Tex. R. Evid. 403. As used in Rule 403, “[t]he term ‘probative
value’ refers to the inherent probative force of an item of evidence—that is, how
strongly it serves to make more or less probable the existence of a fact of
consequence to the litigation—coupled with the proponent’s need for that item of
evidence.” Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “‘Unfair
prejudice’ refers to a tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” Id.
In Manning’s case, the trial court determined that the danger of unfair
prejudice did not substantially outweigh the probative value of the evidence of the
incident involving April. See Tex. R. Evid. 403. “[A] ruling on the balance
between probative value and the counter factors set out in Rule 403, . . . is always
5 slanted toward admission, not exclusion, of otherwise relevant evidence.” De La
Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “As long as the trial
court’s ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of
discretion, and the trial court’s ruling will be upheld.” Id. at 343-44. We hold the
trial court did not abuse its discretion by allowing the testimony addressing
Manning’s exposure of himself to April. See id. Issue one is overruled.
Legal Sufficiency Challenge
In issue two, Manning argues that although the indictment charged him with
committing crimes on or about September 1 and October 1, 2008, the evidence
failed to show that he committed either offense in 2008. We disagree that the
evidence is insufficient to show that Manning was guilty of committing the crimes
charged in the indictment.
The indictment includes a date for the offense to show that the prosecution is
not barred by limitations. Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App.
1998). When an indictment alleges that a crime occurred “on or about” a certain
date, the State may prove an offense “with a date other than the one specifically
alleged so long as the date is anterior to the presentment of the indictment and
within the statutory limitation period and the offense relied upon otherwise meets
the description of the offense contained in the indictment.” Yzaguirre v. State, 957
6 S.W.2d 38, 39 (Tex. Crim. App. 1997) (citing Sledge v. State, 953 S.W.2d 253,
256–57 (Tex. Crim. App. 1997)). No variance exists between the indictment that
alleges a date couched in terms of “on or about” when the evidence from the trial
shows that the offense occurred on a date before the indictment was presented and
before the statute of limitations expired. See Thomas v. State, 444 S.W.3d 4, 10
(Tex. Crim. App. 2014).
In this case, the indictment alleged that Manning committed aggravated
assault on or about September 1, 2008, and that he committed indecency with a
child on or about October 1, 2008. In the charge, the trial court instructed the jury
that, “[t]he phrase ‘on or about’ in this case means any time after September 1,
2007, and prior to the presentment of the indictment.” 2 The trial court included this
instruction in the charge on guilt or innocence because Manning was arguably
eligible for community supervision had the jury concluded he committed the
offenses with which he was charged before September 1, 2007. See Act of May 18,
2007, 80th Leg., R.S., ch. 593, §§ 1.05-1.07, 2007 Tex. Gen. Laws 1120, 1122-24
(codified at Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d)(5) (West Supp. 2015)).
Also, the charge instructed the jury that for the aggravated sexual assault the State
elected to rely on evidence of “the incident alleged to have occurred during the end 2 The record shows that the indictment was presented to the grand jury on September 12, 2013. 7 of the time that the defendant was living with [Jill] when she was playing with
toys,” and the charge instructed the jury to consider only the evidence of that
alleged incident in determining Manning’s guilt on the charge of aggravated
assault. On the indecency offense, the charge instructed the jury that the State
elected to rely on evidence of “the incident alleged to have occurred when [Jill]
demonstrated with her hands on the defendant’s genitals,” and it required the jury
to consider only the evidence of that alleged incident in determining Manning’s
guilt with respect to the count alleging indecency.
In evaluating whether the evidence before the jury showed that Manning
committed the offenses prior to the presentment of his indictment, we evaluate the
evidence before the jury based on a hypothetically correct jury charge. See Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Given that Jill was a minor
when the offenses were alleged to have occurred, limitations does not apply to the
offenses. See Yzaguirre, 957 S.W.2d at 39; Sledge, 953 S.W.2d at 256. Manning
does not argue that the evidence was insufficient to prove he committed the
offenses against Jill at a date anterior to the presentment of the indictment; instead,
Manning presents a narrow argument, claiming the evidence is insufficient to
prove that he committed the offenses in 2008.
8 Even though Manning does not present an argument that is premised on
reviewing the case through the lens of a hypothetically correct charge, the evidence
before the jury, when viewed in the light most favorable to the verdict, allowed the
jury to conclude that Manning committed the crimes against Jill between
September 1, 2007, and September 12, 2013, the period identified in the charge.
Manning relies on Jill’s testimony regarding when the offenses occurred to support
his argument that the evidence is insufficient to show the offenses occurred in
2008. On cross-examination, Manning’s attorney asked Jill if she remembered
when she was interviewed by Kari Prihoda, the person who conducted Jill’s
forensic interview on August 24, 2011. Jill could not recall the date the interview
occurred, but agreed when counsel asked if she thought it was two years ago.
According to Jill, she told Prihoda during the interview that her last sexual contact
with Manning occurred four years earlier. Counsel asked, “So if you were there in
2011, that would mean that four years before that was 2007. Right?” Jill replied,
“Yeah.”
However, the evidence before the jury regarding the date the offenses were
committed is not limited to the testimony provided by Jill. Prihoda also testified
during Manning’s trial. Prihoda discussed what she learned during her interview of
Jill, who was eleven years old when the interview occurred. According to Prihoda,
9 Jill told her about various sexual assaults that Manning committed against her
when she was six to eight years old. According to Prihoda, Jill indicated that
Manning abused her until she was eight years old, and the assaults ended when
Manning moved from her home. Testimony from Manning and from Jill’s mother
established that Manning left the home in April 2008.
When viewed in the light most favorable to the verdict, the record contains
evidence of abuse that occurred in 2008. Moreover, the evidence admitted at trial
was also sufficient to prove that Manning committed the offenses prior to the
presentment of the indictment, so it is sufficient to support his convictions. We
overrule issue two.
Ineffective Assistance of Counsel
In issue three, Manning contends he received ineffective assistance of
counsel. The conduct Manning identifies as ineffective concerns the choice
Manning’s attorney made during the hearing where the trial court considered if
testimony about the incident involving April would be admitted before the jury.
To show that trial counsel was ineffective, Manning must demonstrate that
trial counsel’s performance was deficient because it fell below an objective
standard of reasonableness, and he must show that but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland v.
10 Washington, 466 U.S. 668, 687 (1984). On appeal, we “analyze the
reasonableness of counsel’s conduct on the facts of the particular case, viewed at
the time of the conduct.” Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App.
2013). Once an appellant has identified counsel’s acts or omissions that he
contends were ineffective, the reviewing court must “determine whether, in light of
all the circumstances, the acts or omissions were outside the wide range of
professionally competent assistance.” Id. When the record does not indicate that
counsel had an opportunity to explain the conduct that is being challenged on
appeal, we assume the explanation for the conduct relates to a matter of trial
strategy unless the conduct was so outrageous that no competent attorney would
have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
In Manning’s case, we do not have the benefit of an evidentiary hearing
where trial counsel received an opportunity to explain why he chose not to call
April as a witness during the hearing the trial court conducted to determine
whether testimony about the incident involving April would be allowed to be
introduced to the jury. However, the record of the hearing indicates that Manning’s
counsel chose not to call April as a matter of trial strategy. During the hearing, trial
counsel stated that he was not going to call the child as a witness, adding, “I don’t
believe that’s my burden, to get into admissible evidence.” This statement suggests
11 that Manning’s attorney decided not to call April because he was concerned that
her testimony would be unfavorable to his effort to obtain a ruling to prevent the
testimony about the incident with April to be introduced to the jury.
In deciding whether to call April as a witness, Manning’s attorney was
entitled to consider that April’s answers might damage Manning’s chances to
obtain a favorable ruling. We hold that Manning failed to overcome the strong
presumption that he received reasonable professional assistance. See Thompson v.
State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). We overrule issue three, and
we affirm the trial court’s judgments.
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on November 30, 2015 Opinion Delivered December 9, 2015 Do Not Publish
Before Kreger, Horton, and Johnson, JJ.