Opinion issued December 6, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00588-CR ——————————— KEVIN RAMON MURPHY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas Trial Court Case No. 1511333
MEMORANDUM OPINION
A jury convicted appellant, Kevin Ramon Murphy, of the felony offense of
continuous sexual assault of a child and assessed his punishment at confinement
for fifty years.1 In five issues, appellant argues that: (1) the State failed to provide
1 See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2018). adequate notice of its intention to offer evidence under Texas Code of Criminal
Procedure article 38.37, violating his due process rights; (2) the trial court abused
its discretion in failing to hold a hearing on the article 38.37 evidence outside the
presence of the jury; (3) the trial court abused its discretion in admitting the
extraneous offense evidence without conducting a Rule 403 balancing test; (4) the
State failed to provide adequate notice under Code of Criminal Procedure article
38.072; and (5) his trial counsel provided constitutionally ineffective assistance.
We affirm.
Background
Appellant met N.L., the complainant in this case, when she was twelve years
old. N.L. was walking around her neighborhood, and appellant stopped to talk to
her and offered to take her to buy some clothes and shoes. After that first
encounter, they continued to spend time together and, eventually, appellant had sex
with N.L., beginning when she was thirteen years old. In February 2016, when
N.L. was fourteen, appellant, N.L., and another young girl, J.J., were all spending
the night in a downtown motel. N.L. came to believe that appellant was making
sexual advances toward J.J., became jealous and angry, and eventually retrieved a
firearm and began shooting in appellant’s direction. Minutes after the shooting,
police detained N.L. and J.J. as they walked away from the motel. N.L. admitted
to the shooting and told police that appellant, who was in his thirties, was her boyfriend. This prompted an investigation by the child sex crimes unit of the
Houston Police Department (HPD), and appellant was charged with continuous
sexual assault of N.L., a child younger than fourteen years of age.
The first trial witness was N.L. N.L. testified regarding her relationship with
appellant and the incident at the motel that brought the nature of their relationship
to the attention of police. She testified that on February 1, 2016, appellant picked
her up from her home and they spent some time “riding around” while appellant
was “just selling his drugs.” Appellant and N.L. then picked up N.L.’s friend, J.J.,
and drove into downtown Houston, where they spent the night at the Downtowner
Inn. N.L. testified that she and appellant had been to that motel on several other
occasions. On February 1, 2016, appellant and N.L. smoked a “Sherm square”2 and
then “kind of went to sleep,” with N.L. in one bed and J.J. in the other. N.L.
testified that she did not trust appellant, whom she considered her boyfriend,
believing he “was going to do something with [J.J.].” N.L. later saw appellant in
bed with J.J. and “heard noises,” which upset her and led her to call J.J.’s mother
“[t]o come get [J.J.] because something was about to go down.” However, J.J.’s
mother never arrived, and N.L. and appellant began fighting. N.L. testified that
“[t]hings start[ed] getting physical,” stating that she and appellant struck each other
and appellant “took a long, orange speaker and he hit [her]” and made her bleed.
2 N.L. testified that a “Sherm square” is a cigarette dipped in PCP that made her “feel like [she was] floating on clouds.” N.L. had “blanked out” and was in a “frustrated state” when she went out to
appellant’s vehicle, retrieved his gun, “cocked it back, and . . . started shooting”
toward appellant.
Appellant ran away, and N.L. and J.J. left the Downtowner Inn on foot. This
resulted in police finding N.L. and J.J. in the Third Ward area of Houston in the
morning hours of February 2, 2016. N.L. was detained by HPD Officer Hall, who
discovered that N.L. had a gun in her purse and that she had discharged the gun in
appellant’s direction. N.L. testified that she was “emotional” while speaking with
police and that she told the officers about her relationship with appellant.
N.L. also testified about her relationship with appellant prior to February 1,
2016. She stated that she met appellant in the summer when she was twelve years
old. N.L. was walking in the neighborhood, and appellant pulled up next to her in
his truck and told her he would buy her some clothes and shoes. She got in the
truck with him, and they went to purchase some clothing. After that day, N.L. and
appellant saw each other “[b]asically every day.” She testified that she and
appellant had sex for the first time “a few weeks later” when they went to the Best
Way Motel. N.L. testified that she had sex with appellant approximately three
times a week, that they had both vaginal and oral sex, that they went to motels or to
appellant’s house when his wife was out working, and that she believed they were in a dating relationship. She also testified that appellant bought her food and gave
her pocket money during their relationship.
N.L. specifically testified that she and appellant had sex on her thirteenth
birthday, which was November 12, 2014. N.L. also identified one occasion on
which appellant, N.L., and a woman identified only as “Li’l Bit” had a threesome
in a motel. She stated that appellant told her “that we was using [the other woman]
for her school checks because she was going to HCC.” Shortly after this incident,
appellant was arrested and N.L. remained in contact with him via phone calls until
he was released. N.L. stated that her relationship with appellant ended in February
2016.
The State asked N.L. whether appellant had had contact with any other girls
while he was dating her, and she identified three other girls, including J.J.
Appellant had told N.L. that he had sex with two of the girls, including J.J., whom
N.L. believed had just turned thirteen at the time of trial.3 N.L. also testified that
appellant had “tried to pimp out” two of the girls, including J.J., and she stated that
she had personally observed him have a physical relationship with J.J.
Records regarding phone calls that appellant made while he was being held
in jail were also admitted into evidence, and appellant’s wife, Ashley Murphy,
testified regarding her communications with appellant concerning the events on
3 Appellant’s trial counsel objected to N.L.’s testimony about what appellant told her on hearsay grounds, and the trial court overruled the objection. February 2, 2016 and while he was in jail. Ashley stated that she and appellant had
recently separated when he called her around 7:00 a.m. on February 2, 2016,
saying that N.L. had “shot at him” and asking Ashley to come pick him up. Ashley
was aware of N.L. because appellant had told her that N.L. was his cousin’s friend.
Ashley testified that she was concerned about appellant’s relationship with N.L.
because “[i]t just seem[ed] they were together a lot,” but appellant told her that “he
was helping [N.L.] out with his cousin.” Ashley could not understand at the time
of the February 2, 2016 phone call why N.L. would have shot at appellant. Ashley
decided to call the police and then went to pick appellant up from the Downtowner
Inn. He was crying, and when Ashley asked him why N.L. would shoot at him, he
admitted to her that he had “been with” N.L. twice. Ashley elaborated that
appellant meant that he had had sexual relations with N.L.
Ashley also testified that appellant again admitted to her, during recorded
phone calls while he was in jail, that he had sex with N.L. Appellant told Ashley
during recorded phone calls that he intended to “pimp” two other girls, and he
asked Ashley to place a three-way call to N.L., which she did. During these calls,
appellant made statements such as, “Why I got to be a pedophile?” and stated,
regarding his relationship with N.L., “We ain’t sleeping together, but we have had
sex.” Ashley asked him at one time, “What if I did that with a 13-year-old boy,”
and appellant responded, “Shut the fuck up.” HPD Detective M. Arrington interviewed appellant on February 3, 2016,
regarding some of the events relevant to this case. In his interview with Detective
Arrington, appellant acknowledged knowing N.L. but never admitted to any kind
of sexual relationship with her. Officers Hall and McCloud testified regarding
their interactions with N.L. Officer Hall testified that he responded to a service
call for shots fired relating to the events at the Downtowner Inn and subsequently
encountered N.L. Officer Hall stated that he detained her, that he found the
firearm in her purse, and that N.L. admitted to him that she had gotten into an
altercation with and fired the weapon at appellant, whom she identified to Officer
Hall as “K.J.” Officer McCloud testified regarding the outcry statement made by
N.L. when the two spoke over the phone in May 2016. N.L. told Officer McCloud
that appellant was her boyfriend and they had engaged in a sexual relationship
beginning when she was thirteen years old. N.L. provided specific details to
Officer McCloud regarding sexual activity between herself and appellant,
including identifying information regarding the time or location of specific acts.
J.J. testified at trial, over appellant’s objection that her testimony would
elicit evidence of an overly-inflammatory extraneous offense. J.J. stated that she
was fourteen years old at the time of trial. She testified that she knew N.L. through
a mutual friend and that she, N.L., and appellant would “hang out” and “just ride around.” J.J. stated that N.L. and appellant had a “boyfriend/girlfriend type”
relationship and that N.L. would act jealous when appellant paid attention to J.J.
Regarding the events on February 1, 2016, J.J. testified that she, N.L., and
appellant were driving around, stating, “Me and [N.L.] was just chilling in the car
while he [appellant] do what he do. We’ll just sit in the car and smoke [weed] . . .
[and] hang out.” They all went together to the Downtowner Inn later that night.
J.J. thought that N.L. was getting a room just for the two of them, but appellant
stayed in the room too. J.J. testified that N.L. “was mad ‘cause she was like he
supposed to be gone.” J.J. stated that, early the next morning, appellant “talked to
her,” by which she meant that appellant asked if she wanted to engage in sexual
behavior with him, but she told him no and “he respect [sic] that he’s not gonna,
you know, he ain’t force hisself or whatever.”
J.J. testified that she and appellant had engaged in sexual behavior before.
As she started testifying about a specific occasion, appellant’s trial counsel
objected, stating, “Your Honor, again, I’m going to object to any extraneouses that
are not related to this incident that occurred on February.” The trial court
overruled the objection, and J.J. testified that, in the winter of 2015, she and
another girl were riding around with appellant, got high, and then went to a motel.
After she slept for a little while, appellant “kept asking” so she agreed to let him
perform oral sex on her. J.J. testified again that nothing sexual happened between herself and
appellant on the night of February 1, 2016. However, she testified that N.L. was
mad that appellant had talked to J.J. about engaging in sexual behavior. J.J.
testified that eventually N.L. and appellant began fighting, that N.L. left the motel
room first and went down to the car and retrieved the gun from the glove
compartment or somewhere near the steering wheel of appellant’s car, that N.L.
started shooting at appellant, and that the girls then walked out of the motel and
down the street. J.J. stated that they did not get too far away from the motel before
the police stopped them and detained both girls.
J.J. also testified about the investigation that occurred after the events of
February 2, 2016. She testified that she spoke with Claudia Gonzalez, the
Children’s Assessment Center (CAC) interviewer, and told her about the incident
in 2015 in which appellant performed oral sex on her. She testified that Gonzalez
was the first adult she told about that incident. J.J. also testified that she went to
the hospital for an exam.
On cross-examination, J.J. testified that she never had sex in exchange for
money, that during the time she was around appellant she never had sex with
anyone else either, and that, aside from the one instance of oral sex in the winter of
2015, she never had sex with appellant. J.J. also testified that she never personally
observed N.L. and appellant engage in sexual activity. Appellant’s trial counsel repeatedly asked questions regarding why neither J.J. nor N.L. was in school,
despite the fact that they were school-aged. He also asked J.J. whether her mother
knew where she was and what she was doing during the time that she spent with
N.L. and appellant, and J.J. responded that she did not always listen to her mother
and that her mother was not happy about the time she spent with appellant.
Appellant’s trial counsel also asked J.J. if she looked up to N.L. as someone who
knew how to have a good time and who had street smarts, and J.J. agreed.
The State also presented evidence from outcry witnesses, including
Gonzalez, who testified regarding the outcry that J.J. made to her. Gonzalez
testified that J.J. was referred to the CAC by law enforcement and that she spoke to
J.J. on February 4, 2016, when J.J. was twelve years old. Gonzalez testified that
J.J. told her that appellant “had eaten her out one time at a hotel room” in
December 2015. J.J. also provided a few additional details regarding the incident,
and Gonzalez testified, “Based on my training and experience, I didn’t have a
reason to doubt what she was saying.” Gonzalez also testified that she had not met
with any other minor witnesses involved in the present case. However, Gonzalez
also testified that it was not her job to figure out whether a child was telling her the
truth; rather, it was “to allow them to give their statement.”
At the close of the State’s case, appellant’s trial counsel moved for a
directed verdict of acquittal, which the trial court denied. Trial counsel made a closing argument on appellant’s behalf. The jury convicted appellant of
continuous sexual assault of N.L., and it assessed his punishment at fifty years’
confinement. This appeal followed.
Extraneous Offense Evidence
In his first, second, and third issues, appellant complains of the trial court’s
admission of extraneous offense evidence—evidence of his alleged sexual assault
of J.J.—under Code of Criminal Procedure article 38.37.
A. Article 38.37 and Extraneous Offense Evidence
“[A] trial court’s ruling on the admissibility of extraneous offenses is
reviewed under an abuse-of-discretion standard.” Devoe v. State, 354 S.W.3d 457,
469 (Tex. Crim. App. 2011). If the trial court’s ruling is within the “zone of
reasonable disagreement,” there is no abuse of discretion, and we will uphold the
trial court’s ruling. Id.
Extraneous-offense evidence generally is not admissible to prove a person’s
character or his conformity therewith on a particular occasion. TEX. R. EVID.
404(b)(1). Code of Criminal Procedure article 38.37 provides an exception to the
general rule prohibiting character conformity evidence in certain prosecutions,
including, as here, prosecutions under Penal Code section 21.02 for continuous
sexual assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.37, §2(a) (West
2018). Article 38.37 provides: [Sec. 2] (b) Notwithstanding Rules 404 and 405, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) [listing various offenses for sexual misconduct involving children] for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.
Sec. 2-a. Before evidence described by Section 2 may be introduced, the trial judge must:
(1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and
(2) conduct a hearing out of the presence of the jury for that purpose.
Sec. 3. The state shall give the defendant notice of the state’s intent to introduce in the case in chief evidence described by Section 1 or 2 not later than the 30th day before the date of the defendant's trial.
Id. art. 38.37, §2–3.
B. Relevant Facts
Following the lunch break on the second day of testimony, after N.L. and
Ashley Murphy had already testified but before J.J. testified, the following hearing
occurred outside the presence of the jury:
[trial court]: Now the defense has an objection . . . to [J.J.] testifying about any extraneous offenses. Obviously she’s a witness to some of the incidents that we are here in trial on in the primary case; but it’s my understanding that the State, through the outcry witness that we had and through [J.J.]’s testimony, is planning on offering an extraneous act of sexual misconduct. [the State]: That is correct.
[counsel]: That is what I’m objecting to. I think it’s an extraneous offense that’s basically going to inflame the jury more than be helpful in the resolution of the case. So, I think the State should avoid getting into the extraneous indecency or possible sexual assault of [J.J.].
[trial court]: Because it would be inflammatory?
[counsel]: Well, it would be an extraneous offense being brought in, and I think the result is going to inflame the jury rather than to actually prove the case that the State is attempting to prove.
[trial court]: Your response?
[the State]: Under 38.37, we’re allowed to get evidence in. It’s already been brought in front of the jury as far as what [N.L.] saw, what [appellant] admitted to [N.L.] as far as sleeping with [J.J.]. Especially under 38.37 because this is a case [involving] an individual under the age of 17, the State is allowed statutorily to talk about extraneous [offenses] that involve other minors.
[trial court]: I think that relatively the statute is clear, that they’re allowed to get into that type of evidence; and I think particularly here because it was all kind of wrapped up with that incident that happened at the hotel. I overrule your objection.
J.J. went on to testify before the jury regarding the nature of her relationship
with N.L. and the time they would spend with appellant. She also described the
events as they occurred on February 1 and 2, 2016. She stated that appellant did
not pursue any sexual activity on February 1, 2016, after she told him no, but she
testified that she and appellant had engaged in sexual behavior before. As she started testifying about a specific occasion, appellant’s trial counsel objected again.
He stated, “Your Honor, again, I’m going to object to any extraneouses that are not
related to this incident that occurred in February.” The trial court overruled the
objection, and J.J. testified that in the winter of 2015, appellant performed oral sex
on her.
C. Preservation of Article 38.37 Complaints
In his first issue, appellant complains that the State failed to provide
adequate notice of its intent to use extraneous offense evidence against him under
article 38.37, violating his due process rights. In his second issue, he argues that
the trial court abused its discretion by not holding a required hearing outside the
presence of the jury to determine whether the evidence was sufficient that the jury
could determine that appellant committed the extraneous offense beyond a
reasonable doubt. The State, however, argues that appellant failed to preserve
these complaints, and we agree.
Preservation of error is a systemic requirement on appeal. Darcy v. State,
488 S.W.3d 325, 327 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295,
299 (Tex. Crim. App. 2014). For a party to preserve an issue for appeal, it must
make a timely, specific objection to the alleged error and obtain a ruling. See TEX.
R. APP. P. 33.1(a); Alvarez v. State, 491 S.W.3d 362, 367 (Tex. App.—Houston
[1st Dist.] 2016, pet. ref’d). The party must (1) tell the trial judge what the party wants, (2) inform the judge why the party is entitled to that relief, and (3) be clear
enough so that the judge understands the party’s position in time for the judge to
correct the error. See Reyna v. State, 168 S.W.3d 173, 177–78 (Tex. Crim. App.
2005); Alvarez, 491 S.W.3d at 367. To meet these requirements, the party must
“state[] the grounds for the ruling that the complaining party sought from the trial
court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context.” TEX. R. APP. P.
33.1(a)(1)(A); Alvarez, 491 S.W.3d at 367–68.
Texas courts have held that points of error on appeal must correspond or
comport with objections and arguments made at trial. Dixon v. State, 2 S.W.3d
263, 273 (Tex. Crim. App. 1998); Wright v. State, 154 S.W.3d 235, 241 (Tex.
App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with
the issue raised on appeal, the appellant has preserved nothing for review.”
Wright, 154 S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex.
Crim. App. 2003) (holding that issue was not preserved for appellate review
because appellant’s trial objection did not comport with issue he raised on appeal);
Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) (same).
Here, appellant objected prior to J.J.’s testimony only on the ground that her
testimony regarding appellant’s sexual assault of her was an “extraneous offense
that’s basically going to inflame the jury more than be helpful in the resolution of the case.” The trial court clarified that appellant was complaining about J.J.’s
testimony “[b]ecause it would be inflammatory.” The State responded that,
“[u]nder 38.37, we’re allowed to get [the] evidence in.” The State also pointed out
that the jury had already heard N.L.’s testimony regarding the sexual relationship
between appellant and J.J. The trial court stated, “I think that relatively the statute
is clear, that they’re allowed to get into that type of evidence; and I think
particularly here because it was all kind of wrapped up with that incident that
happened at the hotel. I overrule your objection.”
Appellant’s counsel never objected on the basis that he did not receive
adequate notice pursuant to article 38.37. He did not seek a continuance or
otherwise complain that he was surprised by the State’s use of the evidence of
appellant’s sexual assault of J.J., nor did he complain that he was unprepared to
defend appellant from the allegations. He failed to make a specific objection that
would make the trial court aware that he received inadequate notice of the State’s
intent to use extraneous offense evidence pursuant to article 38.37. Accordingly,
he failed to preserve for appellate review his complaint that the evidence was
inadmissible due to lack of notice. See TEX. R. APP. P. 33.1(a); Alvarez, 491
S.W.3d at 367–68; Belcher v. State, 474 S.W.3d 840, 849–50 (Tex. App.—Tyler
2015, no pet.) (holding that defendant forfeited his complaint about notice of
extraneous offenses required by article 38.37 because he did not raise complaint in trial court); Gregory v. State, 56 S.W.3d 164, 176 (Tex. App.—Houston [14th
Dist.] 2001, pet. dism’d) (holding that appellant failed to preserve complaint
regarding adequacy of article 38.37 notice because he failed to object on that basis
in trial court); see also Hartson v. State, 59 S.W.3d 780, 787–88 (Tex. App.––
Texarkana 2001, no pet.) (complaint of lack of notice of intent to use prior bad act
not preserved because no similar objection made at trial).
Likewise, appellant’s counsel never objected on the basis that appellant was
entitled to a hearing other than the one held by the trial court prior to J.J.’s
testimony on the admissibility of evidence of appellant’s sexual assault of J.J. He
did not ask for an article 38.37 hearing or object to the adequacy of the trial court’s
hearing. Accordingly, he also failed to preserve for appellate review his complaint
that the trial court erred in failing to hold an article 38.37 hearing. See TEX. R.
APP. P. 33.1(a); Alvarez, 491 S.W.3d at 367–68; see also Carmichael v. State, 505
S.W.3d 95, 103 (Tex. App.—San Antonio 2016, pet. ref’d) (concluding that article
38.37, section 2-a hearing requirement is subject to general requirement of
preservation and is therefore subject to forfeiture).
Appellant argues that he preserved his complaints by objecting to the
extraneous offense evidence on the basis that it was inflammatory. He argues that
“[a] general hearsay objection is sufficient to preserve all appellate claims under
Article 38.072,” and he cites the fact that “the Courts of Appeals have compared the similarity in terms of preservation of error requirements between Article
38.072 and Article 38.37.” Appellant relies on Long v. State, which acknowledged
the “rule that an objection must be specific in order to inform the trial judge of the
basis of the objection and to afford counsel the opportunity to remove the objection
or supply other testimony” and held that the appellant preserved error by raising an
objection on hearsay grounds, thus shifting the burden to the State “to show the
evidence was admissible pursuant to either the provisions of Article 38.072 or to
some other exception to the hearsay rule.” 800 S.W.2d 545, 548 (Tex. Crim. App.
1990); see also Carmichael, 505 S.W.3d at 102–03 (noting similarities between
articles 38.37 and 38.072 in concluding that failure to make specific objection to
lack of adequate hearing is subject to general requirement of preservation and is
therefore subject to forfeiture); Taylor v. State, 509 S.W.3d 468, 472–73 (Tex.
App.—Austin 2015, pet. ref’d) (examining article 38.072’s hearing requirement
and holding that appellant waived any alleged error). This argument is unavailing
for several reasons.
The cases appellant cites largely construe article 38.072, not article 38.37—
the provision on which he relies here—and appellant did not make a general
hearsay objection, as occurred in Long. All of these cases affirm the general
principle that “an objection must be specific in order to inform the trial judge of the
basis of the objection and to afford counsel the opportunity to remove the objection or supply other testimony.” See, e.g., Long, 800 S.W.2d at 548. And, in both
Carmichael and Taylor, the Courts of Appeals held that the appellant in those
cases waived his complaint by failing to make a specific objection to the lack of a
hearing or other inadequacy. See Carmichael, 505 S.W.3d at 102–03; Taylor, 509
S.W.3d at 472–73. Appellant has cited to no authority indicating that an objection
under Rule of Evidence 403 to extraneous offense evidence for its inflammatory
nature is sufficient to preserve complaints that the State or trial court failed to
follow the statutory requirements of article 38.37, and we have found none. See
Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (“Except for
complaints involving systemic (or absolute) requirements, or rights that are
waivable only, . . . all other complaints whether constitutional, statutory, or
otherwise, are forfeited by failure to comply with Rule 33.1(a).”).
We overrule appellant’s first and second issues.
D. Rule 403 Complaint
In his third issue, appellant argues that the trial court abused its discretion in
admitting the extraneous offense evidence without conducting a balancing test
under Rule 403. He objected, prior to J.J.’s testimony, that her testimony would
“inflame the jury more than be helpful in the resolution of the case,” implicating
Rule 403. The trial court stated, “I think that relatively the statute is clear, that
they’re allowed to get into that type of evidence; and I think particularly here because it was all kind of wrapped up with that incident that happened at the hotel.
I overrule your objection.”
Under Rule of Evidence 403, the court may exclude otherwise relevant and
admissible evidence, including evidence that is admissible under article 38.37, if
its probative value is substantially outweighed by the danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needless presentation of
cumulative evidence. TEX. R. EVID. 403; Alvarez, 491 S.W.3d at 370. A trial court
is afforded discretion in determining whether evidence is admissible under Rule
403. Alvarez, 491 S.W.3d at 370; Burke v. State, 371 S.W.3d 252, 257 (Tex.
App.—Houston [1st Dist.] 2011, pet. dism’d). We presume that the probative
value of this evidence outweighs any prejudicial effect. Burke, 371 S.W.3d at 257;
see Alvarez, 491 S.W.3d at 370 (applying deferential standard “because trial courts
are usually in the best position to make the call on whether certain evidence should
be admitted or excluded”) (citation omitted).
Furthermore, in performing a Rule 403 balancing test, the trial court is not
required to “orally run through a list of factors on either side of the issue” or
otherwise articulate its reasoning on the record. See Hung Phuoc Le v. State, 479
S.W.3d 462, 469 (Tex. App.—Houston [14th Dist.] 2015, no pet.). When the
record reflects that the trial court entertained the objection and made a ruling on it,
we presume that it properly performed a balancing test. Id.; see also Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997) (“Although appellant asserts
that the trial court did not perform the balancing test, the trial court did not
explicitly refuse to do the test, it simply overruled appellant’s Rule 403 objections.
We find nothing in the record to indicate that the trial court did not perform a
balancing test, albeit a cursory one.”); Williams v. State, 958 S.W.2d 186, 195
(Tex. Crim. App. 1997) (“[A] judge is presumed to engage in the required
balancing test once Rule 403 is invoked and we refuse to hold that the silence of
the record implies otherwise.”); Hinojosa v. State, 995 S.W.2d 955, 957 (Tex.
App.––Houston [14th Dist.] 1999, no pet.) (“Because appellant objected on
specific grounds and the trial court overruled the objection, we assume that the trial
court applied Rule 403 and determined that the probative value of the evidence was
not substantially outweighed by any danger of unfair prejudice.”).
Appellant argues that the trial court abused its discretion in admitting the
extraneous offense evidence without conducting a Rule 403 balancing test.
However, the record reflects that the trial court entertained appellant’s objection
that the evidence would improperly inflame the jury, and it overruled appellant’s
objection. The trial court determined that J.J.’s testimony was particularly relevant
here “because it was all kind of wrapped up with that incident that happened at the
hotel.” Nothing in the record indicates that the trial court refused to consider
appellant’s objection or otherwise refused to balance Rule 403 considerations. Based on this record, appellant has not overcome the assumption that the trial court
properly performed a balancing test. See Hung Phuoc Le, 479 S.W.3d at 469; see
also Williams, 958 S.W.2d at 195 (“[A] judge is presumed to engage in the
required balancing test once Rule 403 is invoked and we refuse to hold that the
silence of the record implies otherwise.”).
To the extent that appellant is also challenging the admissibility of J.J.’s
testimony under Rule 403, appellant does not provide any reasoning or authority
indicating that the evidence was overly prejudicial. On this record and in light of
article 38.37, we cannot conclude that appellant has overcome the presumption that
the probative nature of the evidence outweighed any prejudicial effect. See
Alvarez, 491 S.W.3d at 370 (noting that Rule 403 does not allow “a trial court to
exclude otherwise relevant evidence when that evidence is merely prejudicial” and
rule “should be used sparingly,” only when prejudicial effects substantially
outweigh probative nature of evidence).
We overrule appellant’s third issue.
Outcry Testimony
In his fourth issue, appellant argues that the State failed to provide adequate
notice of an outcry witness’s testimony under Code of Criminal Procedure article
38.072 and the trial court abused its discretion in admitting extraneous hearsay
testimony under article 38.072. Specifically, he argues that the State did not provide notice that Claudia Gonzalez was the outcry witness who would testify
regarding J.J.’s outcry of abuse, as required under article 38.072, section 2(b)(1).
He further argues that the trial court abused its discretion in admitting Gonzalez’s
outcry testimony for an extraneous matter under article 38.072. Again, the State
argues that appellant failed to preserve this complaint for consideration on appeal
and that, even if he had, any error was harmless.
A. Standard of Review
Texas Code of Criminal Procedure article 38.072, the outcry statute,
provides that a child abuse victim’s statement to another is not inadmissible
hearsay if the statement describes the alleged offense and the person to whom the
statement is made is at least 18 years old and is the first person the child informed
about the offense. TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2018).
Article 38.072, section 2 provides:
(a) This article applies only to statements that:
(1) describe:
(A) the alleged offense; or
(B) if the statement is offered during the punishment phase of the proceeding, a crime, wrong, or act other than the alleged offense that is:
(i) described by Section 1; (ii) allegedly committed by the defendant against the child who is the victim of the offense or another child younger than 14 years of age; and
(iii) otherwise admissible as evidence under Article 38.37, Rule 404 or 405, Texas Rules of Evidence, or another law or rule of evidence of this state;
(2) were made by the child or person with a disability against whom the charged offense or extraneous crime, wrong, or act was allegedly committed; and
(3) were made to the first person, 18 years of age or older, other than the defendant, to whom the child or person with a disability made a statement about the offense or extraneous crime, wrong, or act.
(b) A statement that meets the requirements of Subsection (a) is not inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and
(3) the child or person with a disability testifies or is available to testify at the proceeding in court or in any other manner provided by law. Id.
Thus, article 38.072 allows statements that might otherwise be inadmissible
hearsay statements—here, statements that “were made by the child . . . against
whom the . . . extraneous crime . . . was allegedly committed”—provided that the
witness testifying to the statement is “the first person, 18 years of age or older,
other than the defendant, to whom the child . . . made a statement about the . . .
extraneous crime.” Id. art. 38.072, § 2(a)(2)–(3). The State is required to provide
timely notice of its intent to use outcry testimony, including the name of the outcry
witness and a written summary of the witness’s statement. Id. art. 38.072,
§ 2(b)(1).
Courts have also held that complaints under article 38.072 must be preserved
by a specific objection. “When the State offers an out-of-court statement pursuant
to article 38.072 of the Texas Code of Criminal Procedure, a defendant must object
to the statement to preserve error for appellate review.” Rosas v. State, 76 S.W.3d
771, 776–77 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing Holland v.
State, 802 S.W.2d 696, 699–700 (Tex. Crim. App. 1991)). Failure to object waives
the complaint on appeal. Id. at 777; see also Taylor, 509 S.W.3d at 472–73
(holding that appellant waived any alleged error regarding admission of evidence
concerning outcry statements because he made no objection before the trial court). B. Relevant Facts
Following appellant’s indictment, the State filed pre-trial notice of its
intention to use a child abuse victim’s hearsay statement, indicating that, pursuant
to Code of Criminal Procedure 38.072, N.L.’s hearsay statements of abuse would
be offered through the HPD officers who responded to the shooting call and who
investigated N.L.’s allegations of a relationship with appellant—Officers Hall and
McCloud, respectively. The State provided a summary of N.L.’s statement as
including her statement that appellant “was having sex with her friend [J.J.] while
she laid in the other bed at the Downtowner Inn Motel,” leading up to the shooting
that brought the nature of N.L.’s relationship with appellant to the attention of
police.
Appellant then moved for a “hearing outside the presence of the jury on [an]
outcry statement of [a] child pursuant to [Code of Criminal Procedure] art.
38.072,” based on the State’s notice of “its intent to use the outcry hearsay
statement of the Complainant, N.L.” The trial court granted this motion.
After N.L. and Ashley Murphy testified on the first day of the trial, the trial
court discussed the outcry hearing that was scheduled for the next morning, asking,
“Is it just one witness?” The State responded, “There are going to be a couple
more now, Judge. So total State expects for there to be three witnesses.” The next morning, the trial court conducted a hearing regarding the
reliability of an outcry witness, Claudia Gonzalez.4 Gonzalez was an interviewer
with the Children’s Assessment Center who was assigned to interview J.J. on
February 4, 2016. J.J. told Gonzalez that she was twelve years old at the time of
the interview, and J.J. initially thought she was there to speak to Gonzalez about
the shooting incident that had occurred on February 2, 2016. During this
interview, J.J. “disclosed sexual abuse by [appellant], and described that he ate her
out one time at a motel room.” J.J. indicated that this occurred in December 2015.
Appellant’s trial counsel cross-examined Gonzalez and established that
Gonzalez had not interviewed the complainant in the case, N.L., and he further
established that J.J. did not provide any statements to Gonzalez regarding
appellant’s conduct toward N.L.
The trial court gave both sides an opportunity to present argument on the
outcry issue. Appellant’s counsel did not object that he had not received proper
notice of the hearing pursuant to Code of Criminal Procedure article 38.072, nor
did he object on the basis that article 38.072 did not apply to Gonzalez or in any
other way refer to the requirements of article 38.072. Instead, the following
interchange occurred:
4 The State also presented Officers Hall and McCloud as outcry witnesses addressing N.L.’s statement of abuse, but appellant does not challenge the trial court’s ruling regarding those witnesses. [counsel]: Judge, on Ms. Gonzalez, I think that only refers to [J.J.], and that certainly would be an extraneous that would be brought into this case, which we would object to as being an extraneous offense.
[trial court]: But whether or not it’s admissible is a different issue. We’re talking about whether or not the outcry was reliable based on the time and circumstances, whether or not she is the appropriate outcry witness.
[counsel]: As to [J.J.], I don’t have any objection.
[trial court]: Okay. We’ll take up whether or not it’s admissible at a later time.
When J.J. subsequently testified on the record, appellant objected to the
admission of evidence of an extraneous offense that would unduly inflame the
jury—an objection which the trial court overruled, as discussed above. When
Gonzalez then testified regarding J.J.’s outcry of abuse to her, appellant did not
object on any basis.
C. Analysis
Appellant argues on appeal that the State’s article 38.072 notice was
inadequate because it did not list Gonzalez. However, appellant failed to make any
objections that comport with the complaints that he now raises on appeal—that he
did not receive adequate notice under article 38.072 or that Gonzalez’s testimony
was not admissible pursuant to article 38.072. See TEX. R. APP. P. 33.1(a);
Resendiz, 112 S.W.3d at 547; see also Bargas v. State, 252 S.W.3d 876, 895 (Tex.
App.—Houston [14th Dist.] 2008, no pet.) (holding that appellant failed to preserve complaint about notice provided by State pursuant to article 38.072 by
failing to object on that basis in trial court); Sharp v. State, 210 S.W.3d 835, 839
(Tex. App.—Amarillo 2006, no pet.) (holding that appellant failed to preserve his
complaint that State failed to give him notice required by article 38.072).
Furthermore, when the trial court heard appellant’s objection that
Gonzalez’s testimony went to an extraneous offense, it clarified that the issue
before the court at the outcry witness hearing was “whether or not the outcry was
reliable based on the time and circumstances, whether or not she is the appropriate
outcry witness.” Appellant’s counsel affirmatively stated, “As to [J.J.], I don’t
have any objection.” The trial court stated that they could address admissibility
later, but when Gonzalez testified appellant never objected to her testimony on the
ground that it was inadmissible. He never made any objection, either at the outcry
hearing or when Gonzalez’s testimony was presented to the jury, that implicated
the provisions of article 38.072. Accordingly, we conclude that he waived those
complaints. See See TEX. R. APP. P. 33.1(a); Resendiz, 112 S.W.3d at 547.
Appellant, citing Long, argues that, by his filing his motion for an article
38.072 hearing, the burden shifted to the State to show that it had met all the
requirements of article 38.072. See 800 S.W.3d at 548. However, Long is
factually distinguishable. In Long, the Court of Criminal Appeals addressed
whether a hearsay objection was sufficient to preserve the defendant’s complaint regarding evidence purportedly admitted pursuant to article 38.072. Id. at 546–47.
The court concluded that the hearsay objection preserved error and put the burden
on the State “to show the evidence was admissible pursuant to either the provisions
of Article 38.072 or to some other exception to the hearsay rule.” Id. at 548. In
reaching this conclusion, the court “acknowledge[d] our rule that an objection must
be specific in order to inform the trial judge of the basis of the objection and to
afford counsel the opportunity to remove the objection or supply other testimony.”
Id.
Here, appellant did not make a hearsay objection. Unlike in Long, the
record here demonstrates that the State did file notice under article 38.072 and
appellant’s motion for an outcry witness hearing was granted. The State presented
evidence from multiple witnesses demonstrating that the evidence was admissible
pursuant to article 38.072. Appellant had an opportunity to question the witnesses
and to provide legal argument. He never raised any objections pertaining to notice
under the statute, he never expressed surprise at Gonzalez’s appearance during the
hearing, and he did not seek a continuance. Appellant has not identified any
authority indicating that this complaint should fall outside the general rule,
acknowledged in Long and many cases since then, that “an objection must be
specific in order to inform the trial judge of the basis of the objection and to afford counsel the opportunity to remove the objection or supply other testimony.” Id.;
see also TEX. R. APP. P. 33.1(a); Resendiz, 112 S.W.3d at 547.
We overrule appellant’s fourth issue.
Ineffective Assistance of Counsel
In his fifth issue, appellant contends that his trial counsel provided
ineffective assistance of counsel. He asserts that his trial counsel was ineffective
for failing to object to extraneous bad acts and for failing to preserve error for
appeal. He further argues that the “totality of trial counsel’s representation
undermines the court’s confidence in the conviction.”
We evaluate ineffective assistance claims under the two-pronged test set
forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail
on a claim of ineffective assistance, an appellant must show that (1) counsel’s
performance fell below an objective standard of reasonableness based on
prevailing professional norms, and (2) but for counsel’s deficient performance,
there is a reasonable probability that the result of the proceeding would have been
different. Id. at 692, 104 S. Ct. at 2067. An appellant must prove deficient
performance and sufficient prejudice by a preponderance of the evidence. Perez v.
State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (citing Salinas v. State, 163
S.W.3d 743, 740 (Tex. Crim. App. 2005)). In reviewing ineffective-assistance claims, we begin with a strong
presumption that counsel’s behavior fell within the range of reasonable
professional conduct. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994). “[I]n the absence of evidence of counsel’s reasons for the challenged
conduct, an appellate court commonly will assume a strategic motivation if any can
possibly be imagined.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001) (internal quotations omitted). To overcome this presumption, “allegation[s]
of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999).
When the record is silent regarding counsel’s strategy, we will not find
deficient performance unless the challenged conduct is “so outrageous that no
competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440.
Consequently, the record on direct appeal will ordinarily not give reviewing courts
enough information to evaluate the merits of an ineffectiveness claim. See Andrews
v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).
B. Analysis
Appellant identifies several instances as demonstrating that his trial counsel
was constitutionally ineffective. He asserts that trial counsel was ineffective for
failing to object to numerous extraneous and prejudicial matters, including N.L.’s testimony that appellant spent time “just selling his drugs” and evidence that
appellant used drugs with N.L. and J.J.; N.L.’s testimony that appellant was
involved in prostitution; evidence of his sexual activity with other minors; and
evidence of his possession of a firearm. He also argues that his counsel was
ineffective for failing to make objections that would have preserved his complaints
regarding articles 38.37 or 38.072 for review on appeal.
Appellant argues that extraneous offenses are inherently prejudicial, and
when counsel fails to object to numerous extraneous and prejudicial matters,
counsel may be ineffective, citing Brown v. State, 974 S.W.2d 289 (Tex. App.—
San Antonio 1998, pet. ref’d). However, the record is silent as to trial counsel’s
strategy in failing to object on these grounds, and none of the identified failures are
“so outrageous that no competent attorney would have engaged in [them].” See
Garcia, 57 S.W.3d at 440. Many of the extraneous offenses that appellant argues
his trial counsel should have objected to were likely admissible. See West v. State,
474 S.W.3d 785, 792 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding
that defense counsel’s failure to object to evidence that was likely admissible did
not rise to level of deficient performance).
The evidence of appellant’s sexual assault of J.J. and the passing mention of
prostitution of minors were likely admissible under article 38.37 or for some
purpose other than showing that appellant was acting in conformity with his character. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2; TEX. R. EVID.
404(b)(2) (providing that evidence of crimes, wrongs, or other bad acts may be
admissible for purpose other than to prove character or that he acted in accordance
with character, “such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident”); see also Wyatt v.
State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (explaining that evidence of
another crime, wrong, or act may be admissible as same-transaction contextual
evidence where several crimes are intermixed, or blended with one another, or
connected so that they form indivisible criminal transaction, and full proof by
testimony of any one of them cannot be given without showing others). Appellant
has failed to demonstrate that, if his trial counsel had objected, the trial court
would have erred in overruling the objection. See Vaughn v. State, 931 S.W.2d
564, 566 (Tex. Crim. App. 1996) (appellant must demonstrate that if counsel had
objected on indicated grounds, trial court would have erred in overruling
objection).
Furthermore, even the failure to object to inadmissible evidence may be a
sound trial strategy. See West, 474 S.W.3d at 791–92; Haagensen v. State, 346
S.W.3d 758, 766 (Tex. App.—Texarkana 2011, no pet.). Several of the extraneous
offenses or bad acts—such as the references to appellant selling drugs, smoking
drugs, or possessing a firearm—were mentioned in passing and were not dwelt upon by the State; thus, counsel might have believed that it would be better not to
draw attention to those acts by objecting to them. See Huerta v. State, 359 S.W.3d
887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that counsel
“may have . . . decided to withhold objections to avoid drawing unwanted attention
to a particular issue, or to prevent the impression that she was objecting at every
opportunity as a means of stonewalling evidence”); Haagensen, 346 S.W.3d at 766
(“Trial counsel’s strategy in not objecting may have been an effort to build rapport
with the jury and prevent the jury from concluding he was attempting to hide
information from them.”). The record does not provide any insight into defense
counsel’s true reasoning, and so we will defer to counsel’s decisions. See Ortiz v.
State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002). Appellant has failed to
overcome the strong presumption that counsel performed within reasonable
standards. See Thompson, 9 S.W.3d at 813.
Finally, appellant argues that the totality of his trial counsel’s representation
undermined confidence in his conviction, citing Brown, in which the court held
that counsel was ineffective for failing to properly voir dire jurors, eliciting
extraneous offenses, making no effort to object to inadmissible evidence, admitting
his own lack of preparation, and misstating the burden of proof. See 974 S.W.3d at
294. This case is materially different from Brown. Here, appellant’s trial counsel participated appropriately in voir dire, filed motions, made objections to evidence,
cross-examined witnesses, and presented legal arguments on appellant’s behalf.
Appellant’s argument that counsel’s performance undermined confidence in
the outcome of his trial is essentially an argument that he has proven sufficient
harm under the Strickland standard for proving an ineffective-assistance claim.
See Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012) (holding that, in
evaluating ineffective-assistance claims, courts must examine “the totality of the
circumstances as they existed at trial,” and appellant must show both deficient
performance and “a reasonable probability”—i.e., “one sufficient to undermine
confidence in the outcome”—that, but for counsel’s unprofessional errors, result of
proceedings would have been different). We have already determined that the
specific alleged failures do not support a claim of ineffectiveness.
Even to the extent that appellant’s trial counsel’s failure to object in the
instances or on the particular grounds identified cannot be explained as trial
strategy and fell below an objective standard of reasonableness, without a showing
of a reasonably probability that the result of the proceedings would have been
different, we cannot conclude that appellant was prejudiced by his counsel’s
inaction. See Thompson, 9 S.W.3d at 813. Appellant’s trial counsel did object to
the admission of extraneous offense evidence on several occasions, and the
objections were overruled. But even without considering the complained-of evidence—the passing statements regarding drugs and weapons, J.J.’s testimony,
and Gonzalez’s outcry testimony—the State nevertheless presented a compelling
and thorough case against appellant. N.L.’s testimony, the testimony of N.L.’s
outcry witness Officer McCloud, the testimony of Ashley Murphy, and recordings
of appellant’s conversations that occurred over the jailhouse phone line were
sufficient to establish the elements of the offense for which appellant was
convicted. See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2018).
We cannot say that any failure of counsel materially impacted the outcome
of appellant’s case. See Strickland, 466 U.S. at 692, 104 S. Ct. at 2067; Flores,
387 S.W.3d at 633–34.
We overrule appellant’s fifth issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).