AFFIRM; and Opinion Filed February 2, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas No. 05-13-01137-CR
LUIS RODOLFO LOPEZ, Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1160773-M
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Myers Opinion by Justice Lang-Miers
Luis Rodolfo Lopez appeals his conviction for the offense of continuous sexual abuse of a child. In two issues, appellant argues that he was denied timely discovery and due process and that his counsel rendered ineffective assistance. Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm.
BACKGROUND
Appellant was charged by indictment with the offense of continuous sexual abuse of a child. Appellant was the stepfather of the complainant. After appellant pleaded not guilty, a jury found appellant guilty and assessed his punishment at forty years in prison.
Nine months before trial, the State gave appellant State’s Notice of Extraneous Offenses providing notice of the crimes, wrongs, or acts of appellant other than the act alleged in the indictment that the State may introduce into evidence. Five days before trial, appellant filed Omnibus Pre-Trial Motions and Election, which included his request for a hearing outside the presence of the jury before the State offered any evidence of extraneous transactions, crimes, wrongs, or acts allegedly committed by appellant, or reputation testimony, and “further request[ed] notice prior to trial, pursuant to” rule of evidence 404(b) 1 and article 38.37 of the rules of criminal procedure. 2 The record reflects that the court did not rule on the Omnibus Motions.
The day before trial started, the State filed an Amended Notice of Extraneous Offenses, which included a paragraph that was not included in the State’s original Notice of Extraneous Offenses giving notice that the State may introduce evidence that appellant showed the complainant adult pornographic images and that the complainant’s mother saw appellant viewing child pornography and adult pornography. On the following day—the day when the trial began—the State filed an Amended Notice of Experts Who May Be Called to Testify to include “Donald Wills, from Regional Computer Forensics Laboratory, to testify to images recovered from search of Defendant’s laptop” and also listed Donald Wills on the State’s Amended Response to Defendant’s Motion to List Witnesses.
1 TEX. R. EVID. 404(b).
2 The legislature amended article 38.37 in 2013 to delete the requirement that a defendant request notice. The amended article applies to criminal proceedings beginning on or after September 1, 2013. The prior version applies here because appellant’s trial began July 30, 2013. Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 48, 1995 Tex. Gen. Laws 2734, 2748–49, amended by Act of May 24, 2005, 79th Leg., R.S., ch. 728, § 4.004, 2005 Tex. Gen. Laws 2188, 2192, amended by Act of April 7, 2011, 82nd Leg., R.S., ch. 1, § 2.08, 2011 Tex. Sess. Law Serv. 1, 6 (West) (amended 2013) (current version at TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp. 2014)). The Omnibus Motions also requested, under code of criminal procedure article 37.07, notice prior to trial and a hearing outside the jury’s presence concerning evidence of bad acts or adjudicated offenses allegedly committed by appellant that the State intended to admit during the sentencing stage. See TEX. CODE CRIM. PROC. ANN. art. 37.07 (West Supp. 2014). Article 37.07 does not apply to the issue here because appellant complains of lack of timely notice during the guilt-innocence phase of trial.
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Prior to swearing in the jury and before the presentation of evidence, the court conducted a sub rosa hearing concerning appellant’s motion in limine regarding the timeliness of the Amended Notice of Extraneous Offenses. According to defense counsel, on the previous Saturday, defense counsel realized that he had not received information from the State concerning a search of appellant’s laptop computer, and he sent a message to the prosecutor asking if she had information concerning the results of the computer search. The following day, the prosecutor responded that she had not received any information about the computer search and that she did not intend to present evidence concerning data recovered from the computer. On the day of jury selection, the prosecutor informed defense counsel that the State had received the results of the computer investigation and that pornographic images were recovered from the computer. The prosecutor provided the defense with a copy of the data recovered from the computer and an Amended Notice of Extraneous Offenses that referred to the pornographic images on the computer.
At the hearing, defense counsel argued that the Amended Notice of Extraneous Offenses was untimely because it “was given the day of Jury Selection” and involved “some real substantive issues.” Defense counsel contended that, because the amended notice was untimely, he did not and would not have an opportunity to have a forensic expert investigate the computer. He requested that the Court instruct the State “not to go into anything regarding the computer and what was on the computer.” The prosecutor responded that the complainant’s testimony concerning what appellant showed her on the computer should be admissible under code of criminal procedure article 38.37. In addition, the prosecutor contended that the State did not intend to introduce the computer disk but rather intended to have the complainant testify as to what she saw on the computer and to have a forensic evaluator discuss what was on the computer “as corroboration.” She contended that the appellant would not be “surprised by any of that
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information” because defense counsel had previously had discovery materials that included forensic interview notes “where the victim herself had said that the defendant did show her these images on the computer.” And she argued that, once she received the results of the forensic evaluation, she provided appellant with “the disk and everything” on the same day. After some discussion at the hearing, the prosecutor stated that, if defense counsel was asserting that the information in the amended notice about the mother seeing the pornographic images was “new information[,]” the State would agree that it would not have the complainant’s mother testify concerning the pornographic images that the mother saw on the computer.
The court ruled that the State could question the complainant concerning what she saw or what appellant showed her on his computer and could have a forensic computer expert testify as to what the expert found on the computer, but that the State could not introduce images found on the computer. The court then granted appellant a running objection.
Both during the State’s case in chief and on cross-examination by the defense, the complainant testified as to the sexual images that appellant showed her on a computer. 3 The State also called Don Wills, a senior forensic examiner for the Federal Bureau of Investigation, who testified that “adult pornographic movies and adult images with pornography” were recovered from appellant’s computer and described the contents of those movies and images.
NOTICE OF EXTRANEOUS OFFENSE EVIDENCE Applicable Law and Standard of Review An extraneous offense is any act of misconduct, whether or not it resulted in prosecution, which was shown to have been committed by the accused and which is not shown in the charging instrument. Hernandez v. State, 817 S.W.2d 744, 746 (Tex. App.—Houston [1st Dist.]
3 The defense questioned the complainant as to whether she previously stated that the images were on appellant’s computer and testified at trial that the images were on her mom’s computer. This issue is not before us on appeal.
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1991, no pet.). We review a trial court’s decision regarding the admissibility of extraneous offense evidence under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). If it was within the zone of reasonable disagreement, there was no abuse of discretion and we will uphold the trial court’s ruling. Id.
Rule 404(b) of the rules of evidence states:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction. 4
Article 38.37 of the code of criminal procedure concerns admission of evidence of extraneous offenses or acts committed by a defendant against the child victim in cases alleging sexual offenses against minors. The previous version of article 38.37 of the code of criminal procedure that applies here provides, in relevant part:
Sec. 2. Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:
(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.
Sec. 3. On timely request by the defendant, the state shall give the defendant notice of the state’s intent to introduce in the case in chief evidence described by Section 2 in the same manner as the state is required to give notice under Rule 404(b), Texas Rules of Evidence.
Sec. 4. This article does not limit the admissibility of evidence of extraneous crimes, wrongs, or acts under any other applicable law. 5
4 TEX. R. EVID. 404(b).
5 Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 48, 1995 Tex. Gen. Laws 2734, 2748, amended by Act of May 24, 2005, 79th Leg., R.S., ch. 728, § 4.004, 2005 Tex. Gen. Laws 2188, 2192 (amended 2013).
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Arguments of the Parties
Appellant argues that he was not provided with timely notice of the State’s intent to use evidence of pornography from the computer. He argues that, because he was denied timely discovery of evidence on the computer, he was deprived of his ability to fully prepare for trial and due process. He contends that he did not have sufficient time to employ his own expert and conduct a professional analysis of the computer evidence.
The State argues—among other arguments—that, even if the State provided untimely notice of its intent to use extraneous offense evidence, the trial court did not err in admitting the evidence because appellant’s “embedded request for notice” within the Omnibus Motions did not “trigger the State’s duty to provide notice.” The State maintains that the court must have ruled on the motion before the State had a duty to produce or disclose.
Analysis
We agree with the State. 6 Rule of evidence 404(b) requires the State to give reasonable notice in advance of trial of its intent to introduce evidence of extraneous offenses in the State’s case in chief “upon timely request by the accused in a criminal case[.]” TEX. R. EVID. 404(b). Similarly, the previous version of article 38.37 of the code of criminal procedure requires the State to give the defendant notice of its intent to introduce evidence of extraneous offenses as provided in that article “[o]n timely request by the defendant[.]” 7 When a defendant includes his request for notice within a motion that requests the court to enter an order, the filing of the motion alone is insufficient to trigger the duty to provide notice. See Simpson v. State, 991 S.W.2d 798, 801 (Tex. Crim. App. 1998); Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993) (per curiam) (concluding “the State need not comply with requests contained in a
6 Given our disposition of this issue, we do not address the State’s other arguments, including its contention that appellant waived error.
7 Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 48, 1995 Tex. Gen. Laws 2734, 2748, amended by Act of May 24, 2005, 79th Leg., R.S., ch. 728, § 4.004, 2005 Tex. Gen. Laws 2188, 2192 (amended 2013).
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discovery motion until the trial court orders it to do so”); see also Simpson v. State, 991 S.W.2d at 802 (Meyers, J., joined by Baird and Price, J.J., concurring) (“Because Appellant’s request for notice is ineffective under Rule 404(b), it is also ineffective under Article 38.37.”); Samora v. State, No. 13-09-00587-CR, 2010 WL 3279536, at *8 (Tex. App.—Corpus Christi Aug. 19, 2010, no pet.) (mem. op., not designated for publication) (“Samora’s failure to make a specific request to the trial court under article 38.37, and his failure to obtain a ruling on such a request, waives the article 38.37 notice requirement.”). When a defendant states his request for notice in a motion to the court, the duty of the State to provide notice is triggered only when the defendant obtains a ruling on the motion. See Simpson, 991 S.W.2d at 801; Espinosa, 853 S.W.2d at 39.
In this case, appellant filed a document entitled Omnibus Pre-Trial Motions and Election that included his request that the trial court order the State to provide notice prior to trial of its intent to introduce evidence of extraneous offenses pursuant to rule of evidence 404(b) and code of criminal procedure article 38.37. The record does not reflect that the court ruled on the motion. Because appellant did not obtain a ruling on the motion, the notice requirements were not triggered.
In addition, appellant does not provide arguments or legal authorities to support his assertion that he was deprived of due process. 8 As a result, we conclude that he has not sufficiently presented his contention that he was deprived of due process for appellate review. See TEX. R. APP. P. 38.1(i).
We overrule appellant’s first issue.
8 Appellant’s brief includes a quote that discusses the general principle of due process, but he does not indicate the source of that quote or indicate how that quote applies to the facts of this case.
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INEFFECTIVE ASSISTANCE OF COUNSEL Appellant argues that he was denied effective assistance of counsel based on (1) his counsel’s failure to file a motion to suppress evidence concerning pornographic materials on appellant’s computer 9 and (2) his counsel’s failure to file a motion for the trial court to identify the State’s outcry witness.
Applicable Law and Standard of Review To prevail on his claim of ineffective assistance of counsel, appellant must show that his attorney’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for his attorney’s errors, the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Appellant has the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A claim of ineffective assistance must be “firmly founded in the record” and the record must “affirmatively demonstrate” the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Thompson, 9 S.W.3d at 813).
Our review of an attorney’s performance must be highly deferential. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). We apply a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. Generally, a silent record that provides no explanation for counsel’s actions will not overcome this strong presumption of reasonable professional assistance. Rylander, 101 S.W.3d at 110–11.
9 Appellant states that this evidence concerning his computer was presented at the punishment phase. It was presented during the guilt-
innocence stage.
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Arguments of the Parties
Appellant argues that his counsel was deficient in not investigating, filing, and presenting a motion to suppress the testimony of an expert from the Federal Bureau of Investigation regarding the recovery of pornographic materials from appellant’s computer. In addition, appellant argues that his attorney failed to file a motion for the court to identify the State’s outcry witness. Appellant contends that, after the State designated three outcry witnesses, the court permitted a fourth witness—Melissa Dobbins, a therapist with the Dallas Children’s Advocacy Center—to testify “as though she w[as] a designated outcry witness.” Appellant contends that Dobbins’s testimony “went beyond the parameters of therapy” and included damaging hearsay evidence that was “clearly bolstering” and “served only to corroborate” the complainant’s testimony, and that his counsel did not object to the “damaging hearsay presentation.” Appellant also argues that his counsel permitted testimony of extraneous offenses—namely, the complainant’s testimony concerning alleged sexual acts that appellant did to the complainant over a number of years—to go before the jury without making an objection.
The State argues that the record does not demonstrate ineffective assistance by appellant’s trial counsel.
Discussion
Appellant did not raise his claim that his counsel was ineffective in the trial court by a motion for new trial 10 or introduce any evidence concerning his counsel’s rationale or reasoning for not filing a motion to suppress or a motion to identify the State’s outcry witness or for not objecting to certain testimony. A silent record provides no explanation for counsel’s actions and, as a result, the record on direct appeal is usually not sufficient to establish that counsel’s representation was so lacking and deficient in strategic or tactical decisionmaking to overcome
10 Appellant submitted a motion for new trial solely on the grounds that the verdict was contrary to the law and the evidence.
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the presumption that counsel’s conduct was reasonable and professional. Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008); Rylander, 101 S.W.3d at 110–11. In addition, counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Rylander, 101 S.W.3d at 111. Because the trial court record is silent as to the reasons for the actions of appellant’s attorney, we cannot conclude that the record firmly demonstrates that the attorney’s performance fell below an objective standard of reasonableness. See Goodspeed, 187 S.W.3d at 392 (stating that appellate courts ordinarily will not conclude counsel’s performance was deficient without a record demonstrating that counsel had the opportunity to explain his actions). We resolve appellant’s second issue against him.
CONCLUSION
We affirm the trial court’s judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish Tex. R. App. P. 47.2(b)
131137F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas JUDGMENT
LUIS RODOLFO LOPEZ, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-13-01137-CR V. Trial Court Cause No. F-1160773-M.
Opinion delivered by Justice Lang-Miers, THE STATE OF TEXAS, Appellee Justices Bridges and Myers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 2nd day of February, 2015.