Mark Wayne Shorten v. the State of Texas

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00379-CR __________________

MARK WAYNE SHORTEN, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 23-07-10765-CR __________________________________________________________________

MEMORANDUM OPINION

In July 2024 a grand jury indicted appellant, Mark Wayne Shorten, and

alleged that in a period of 30 or more days between March 31, 2009, through March

30, 2014, he committed two or more acts of sexual abuse against a child who was

identified in the indictment by her initials. Tex. Penal Code Ann. § 21.02(b)

(continuous sexual abuse of a young child). We will call the child who is identified

as an alleged victim of Shorten’s offenses as Julie, and we note she is Shorten’s

1 daughter. 1 After the trial court signed the judgment, Shorten appealed and filed a

brief in which he complains of three issues. In his first issue, Shorten argues the trial

court erred in excluding testimony under Texas Rule of Evidence 412. In his second

and third issues, Shorten complains that he received ineffective assistance of

counsel. For the reasons discussed below, we will affirm.

Background

The case against Shorten went to trial in October 2024. Since Shorten doesn’t

challenge the sufficiency of the evidence supporting his conviction, we limit our

discussion of the facts to that which is needed to explain the Court’s resolution of

the issues raised in Shorten’s appeal, and in doing so, we view the evidence in the

light that favors the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Queeman

v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

Julie was nine when she moved to Splendora. She lived with her parents, Mark

Shorten and Sherrie Shorten, her brother, Carl, who is six years younger than Julie,

and Hazel Burts, who is Sherrie’s aunt. Julie has other siblings who are older,

including Barbara, whom she does not know well because she “never was allowed

1 We have used pseudonyms to protect the privacy of several individuals who are mentioned in the opinion. See Tex. Const. art. 1, § 30 (protecting a crime victim’s “right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). We identify that we have used a pseudonym in lieu of the actual name with italics when the person is first mentioned in the opinion. 2 to.” Julie spent a majority of her childhood in Splendora, where the family moved in

2009 and lived in a renovated school bus, and that is when Shorten began molesting

Julie.

When the family lived in the school bus, Hazel would take Julie’s mother to

work in Houston and Shorten and Julie would be alone in the school bus. Shorten

insisted that Carl go with Hazel and Sherrie but he would not allow Julie to go with

them. On the first occasion when Shorten and Julie were alone in the school bus,

Shorten took Julie to the bathroom with him. Shorten wanted Julie to make him

happy and offered her one hundred dollars, but Julie refused. Shorten told Julie she

needed to trust him, so she did. They went to the bathroom in the bus and Shorten

closed the door. Shorten wanted Julie to bend over and touch the floor or her ankles

and had Julie pull her pants down. Shorten then started “putting his finger in [her]

butt” and it hurt Julie. Julie told Shorten that it hurt, and Shorten responded, “Well,

you should learn to like it.” Shorten asked Julie if she could handle more of that, and

Julie said “No.”

Shorten penetrated Julie’s anus with his finger in this incident twice. After the

sexual assault was finished, Shorten and Julie went to the front portion of the bus

where Shorten’s bed was located. Shorten asked her “how that had felt again and

wanted to know if [Julie] thought [she] could take more.” Shorten told Julie that it

3 would make him happy for Julie to do it again and that it would be their “little

secret.” Shorten told Julie not to tell her mother what Shorten did to Julie.

Later that afternoon, Hazel and Carl went to pick up Sherrie from work.

Shorten wanted Julie to lie on the bed beside him. Shorten showed her a video of a

couple performing oral sex on each other. Shorten showed Juile what the woman

was supposed to do for the man, that they enjoyed it, and that Julie should learn how

to do it. Shorten closed the video when Hazel and Sherrie returned to the bus.

For the next few weeks, when Julie’s aunt and mother would leave for work,

Shorten continued to take Julie to the bathroom and put his finger in her anus.

Shorten penetrated Julie’s butt with his finger every day for almost two weeks, and

this usually occurred in the bathroom. These acts slowly graduated from his finger

to his penis.

Shorten wanted Julie to bend over in front of him, eventually moving to the

sink. Shorten’s penis penetrated Julie’s anus while his hands were on her hips. When

Shorten sexually assaulted her in this way, it hurt, and she felt “empty.” After

Shorten finished sexually assaulting Julie, they went to the front part of the bus, and

he asked her how she felt about it. Julie told Shorten that she “definitely didn’t like

it and that it hurt” and that she “didn’t want to do that.” Shorten told her that “it was

something that [Julie] needed to learn to do[,]” that it was good for Julie, and that

she “needed to learn that it made him happy, and [Julie] needed to make him happy.”

4 At the time this sexual assault occurred, Julie was nine years old. Shorten penetrated

Julie’s anus with his penis about a dozen times and on some of these occasions,

Shorten ejaculated inside Julie.

Julie described the sexual assaults as getting “aggressively worse[]” after

Shorten assaulted her by putting his penis in her anus. Shorten asked more of Julie,

moving from the bathroom to being on her side in front of him while he was behind

her in Shorten’s bed. Within a few months, Shorten put his penis in Julie’s vagina.

Shorten told Julie to take off her shorts and panties and penetrated Julie. Eventually,

Shorten would have Julie lie on her back and Shorten would touch Julie with his

fingers and try to put his fingers inside of Julie.

Shorten told Julie that “it would hurt less if he could put [his penis] in [Julie’s]

vagina.” Julie did not want to do this. When Shorten put his penis inside her vagina,

Julie felt a burning sensation, and it hurt. Julie told Shorten that it hurt but Shorten

responded that Julie needed to learn to like it. Once Shorten began penetrating Julie

vaginally with his penis, he did not go back to penetrating her anally. These sexual

assaults occurred every other day at first and then went down to twice a week. The

sexual assaults continued until Shorten was arrested.

In March 2012, CPS became involved in Julie’s life, and she was sent to live

in a foster home with Carl. In September 2012, Julie learned she was going to go

back to live with her parents. After the children were returned to the custody of their

5 parents in the middle of 2013, Shorten’s sexual assaults of Julie resumed. Julie was

thirteen years old. Shorten would sexually assault Julie by penetrating her vagina

with his penis. The sexual assaults occurred in the evenings when Sherrie was at

work and after Carl went to bed. These assaults happened at least three times a week.

When Julie was around seventeen, she and Shorten moved into a house that

was on their property in Splendora while Sherrie and Carl continued living in the

school bus. When Julie was alone in the house with Shorten, Shorten would have

Julie come over to his bed at night. He would have Julie lie on her back. He would

get on top of Julie and put his penis in her vagina. Shorten would sexually assault

Julie in this manner three to four times a week.

When Julie was around seventeen years old, her friends observed a change in

her behavior. She stopped talking to her friends, and she would not look anyone in

the eye. When Julie did communicate, she implied that she was being abused and

that she was not safe. Julie told her friend Faith that she did not leave home because

“she was afraid that something bad will happen to [] the people she cares about.

She’s afraid that her dad might come after her.” Juile told Faith that Shorten has

threatened her and gave Julie a bullet. Julie’s friends encouraged Julie to leave her

home and offered her assistance to do so. Several of Julie’s attempts to get away

from Shorten were unsuccessful.

6 In 2021 and 2022, when Julie was twenty-one or twenty-two years old, she

began meeting people online, in particular on an online chat platform called Discord.

It was during this time that Julie and her friends met Jon Fedyschyn, and his wife

Abby, who lived in St. Louis, Missouri. Julie grew to trust Jon above all others.

Julie eventually disclosed to her friends what was happening in her house. She

told them she was being yelled at and berated and having to share a room and bed

with her father. Julie eventually told them that Shorten had been sexually abusing

her on a daily basis and that he had been sexually abusing her since before she was

ten years old.

On July 25, 2022, Shorten and Sherrie told Julie to put her bag in the car

because they were leaving. Sherrie took Juile to Lancaster, which is near Dallas. She

and Sherrie stayed in a Motel 6 and the next morning, Sherrie put her in a hotel room

at the Spanish Trails Inn. Sherrie paid for a week for the hotel room. Sherrie called

Shorten and told him, “Yeah, we’re here, everything’s done[.]” Sherrie then left in

her car and Julie was alone in the motel room. Julie called Jon with a Tracfone

supplied by Sherrie.

Julie let Jon know what was happening, and Jon started calling and texting

their other friends to let them know what happened with Julie. They decided that Jon

would drive down from St. Louis to Lancaster and pick her up. Jon picked her up on

July 28 and they went to another hotel room that one of Julie’s friends paid for. The

7 next day, Julie and Jon drove back to Jon’s apartment in St. Louis. While in St.

Louis, she reached out to the Montgomery County Women’s Center for help with a

protective order. Julie stayed with Jon and Abby for ten days. Julie made plans to

return to Texas to file a police report.

Law enforcement investigated the sexual assaults and was able to corroborate

statements Julie gave to the police. Shorten was arrested on July 26, 2023.

During the trial, Shorten sought to introduce testimony that Julie sexually

abused Carl and had a sexual relationship with Jon Fedyschyn. This testimony was

excluded, and on appeal, Shorten argues that the trial court misapplied Texas Rule

of Evidence 412 and violated Shorten’s Sixth and Fourteenth Amendments right to

confront witnesses against him.

The trial court held an in camera hearing as required by Rule 412. See Tex.

R. Evid. 412(e). At the hearing, Carl explained that while Julie and Carl lived in the

foster home, Julie began sexually assaulting Carl. After they returned to the bus,

Julie re-instigated the sexual assaults against Carl, and just before Julie was taken to

Dallas, Julie attempted to sexually assault Carl, but Carl’s bed banged against the

wall, alerting Shorten, who told Carl he was ready to talk whenever Carl was ready.

Carl made his outcry about a year later when police executed a search warrant on

the residence. Carl told a forensic interviewer that he was tired of his dad being

accused of molesting his sister.

8 The trial judge ruled that the defense had failed to meet the standard under

Texas Rule of Evidence 412 as it relates to showing motive or bias on the part of the

alleged victim in the pending case.

In a hearing outside the jury’s presence, Shorten also asked to present

testimony regarding the open marriage of Abby and Jon Fedyschyn and how Julie,

Jon, and Abby “all had sex together.” Shorten wanted to present this testimony to

rebut the State’s theory that Julie left the home because she was controlled and not

allowed to do anything. The defense claimed that this evidence was relevant because

Julie went to Missouri not to escape from Shorten, but to engage in this type of

lifestyle. The trial court ruled the defense was not allowed to question Jon about

Julie’s relationship with him and Abby under Texas Rule of Evidence 613(b) and

412. Shorten made an offer of proof.

At the conclusion of the trial, the jury found Shorten guilty of continuous

sexual abuse as charged in the indictment. In the punishment phase of the trial, the

jury assessed a life sentence. The trial court signed a judgment consistent with the

jury’s verdict and Shorten appealed.

Analysis

In his first issue, Shorten argues the trial court erred in excluding testimony

regarding Julie’s alleged sexual abuse of Carl and her alleged sexual relationship

9 with Jon and Abby Fedyschyn. We review a trial judge’s decision on the

admissibility of evidence under an abuse-of-discretion standard. Johnson v. State,

490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial judge abuses her discretion

when her decision falls outside the zone of reasonable disagreement. Id. “If the trial

court’s evidentiary ruling is correct under any applicable theory of law, it will not

be disturbed even if the trial court gave a wrong or insufficient reason for the ruling.”

Id.

Generally, relevant evidence is admissible, and irrelevant evidence is

inadmissible. See Tex. R. Evid. 402. Relevant evidence tends to make a fact more or

less probable than it would be without the evidence, and the fact is of consequence

in determining the action. Id. 401.

The United States Constitution and the Texas Constitution provide that an

accused will have the right to confront witnesses against him. See generally U.S.

CONST. amend. VI; Tex. Const. art. I, § 10.

The Sixth Amendment right to confront witnesses includes the right to cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest, or motives in testifying. This right is not unqualified, however; the trial judge has wide discretion in limiting the scope and extent of cross-examination. Generally, the right to present evidence and to cross-examine witnesses under the Sixth Amendment does not conflict with the corresponding rights under state evidentiary rules.

Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (internal citations

omitted). A trial court violates a defendant’s right of confrontation if it improperly 10 limits appropriate cross-examination. Carroll v. State, 916 S.W.2d 494, 497 (Tex.

Crim. App. 1996). Whether rooted in the Due Process Clause of the Fourteenth

Amendment or the Confrontation Clause of the Sixth Amendment, the Constitution

guarantees criminal defendants the opportunity to present a complete defense. Crane

v. Kentucky, 476 U.S. 683, 690 (1986). The constitutional right to present a defense

includes the right to compulsory process and the rights to confront and cross-

examine witnesses. Pointer v. Texas, 380 U.S. 400, 405 (1965).

A defendant’s right to cross-examination is not unqualified, however.

Johnson, 490 S.W.3d at 909. A defendant “is not entitled to cross-examination that

is effective in whatever way, and to whatever extent, he might wish.” Id. at 909-10

(internal quotations and citations omitted). Trial judges have wide latitude to limit

the scope of cross-examination by imposing restrictions on cross-examination. Id. at

910. A trial judge may limit the scope if the limits do not infringe upon the

Confrontation Clause’s guarantee of “‘an opportunity for effective cross-

examination.’” Id. at 909 (quoting Johnson v. State, 433 S.W.3d 546, 551 (Tex.

Crim. App. 2014)).

Because the right to present evidence and cross-examine witnesses under the

Sixth Amendment generally does not conflict with corresponding rights under state

evidentiary rules, questions involving cross-examination can be resolved by looking

to the Texas Rules of Evidence. See Hammer, 296 S.W.3d at 561. One such rule,

11 Texas’s “rape shield” law, places constraints on the admission of evidence of a

complaining witness’s past sexual behavior. See generally Tex. R. Evid. 412.

Evidence of a complaining witness’s past sexual behavior, either in the form of

specific instances of conduct or reputation or opinion evidence, is generally

inadmissible in a criminal sexual assault trial. See id. 412(d). 2 The rule bars evidence

of a victim’s prior sexual conduct unless the trial court determines, after a hearing

outside the jury’s presence, that the probative value of the evidence outweighs the

danger of unfair prejudice to the alleged victim, and that the evidence falls within

one of five exceptions: (1) it is necessary to rebut or explain scientific or medical

evidence offered by the State; (2) it concerns past sexual behavior with the defendant

and is offered by the defendant to establish consent; (3) it relates to the motive or

bias of the alleged victim; (4) it is admissible under rule 609; or (5) it is

constitutionally required to be admitted. See id. 412(d)(2).

Although the rule allows for the admission of evidence of specific instances

of a victim’s past sexual behavior under certain circumstances, “[t]he Constitution

requires, however, only the introduction of otherwise relevant and admissible

evidence.” Hale v. State, 140 S.W.3d 381, 396 (Tex. App.—Fort Worth 2004, pet.

ref’d) (citing U.S. v. Nixon, 418 U.S. 683, 711 (1974)). Therefore, before a victim’s

sexual behavior can be admitted under Rule 412(b)(2), the defendant must establish

2 We cite to the most current version of this rule. 12 the evidence’s relevancy to a material issue in the case. See id. And even if the

evidence meets one of the exceptions, the inquiry does not end there; the probative

value of the proffered evidence must also outweigh the danger of unfair prejudice.

See Tex. R. Evid. 412(b)(3); State v. Dudley, 223 S.W.3d 717, 724 (Tex. App.—

Tyler 2007, no pet.).

Specific instances of a witness’s conduct, for purposes of attacking the

witness’s credibility, other than conviction of crime, may not be inquired into on

cross-examination nor proved by extrinsic evidence. Tex. R. Evid. 608(b). However,

such evidence may be admissible to prove bias, self-interest, or motive for testifying.

Hammer, 296 S.W.3d at 563. The right of cross-examination afforded by the United

States and Texas Constitutions encompasses exposure of a witness’s motivation for

testifying and is offended if an evidentiary rule prohibits a defendant from cross-

examining a witness concerning possible motives, bias, and prejudice such that he

could not present a vital defensive theory. Id. at 562-63. “[T]he opponent must first

cross-examine the witness with the circumstances surrounding the bias, interest, or

motive, and, if the witness denies the circumstances or the motive, the opponent may

introduce extrinsic evidence to prove the motive or bias.” Id. at 563; see Tex. R.

Evid. 613(d). Under Texas law, “[t]he proponent of evidence to show bias must show

that the evidence is relevant. The proponent does this by demonstrating that nexus,

or logical connection, exists between the witness’s testimony and the witness’s

13 potential motive to testify in favor of the other party.” Woods v. State, 152 S.W.3d

105, 111 (Tex. Crim. App. 2004).

At trial, Shorten’s attorney argued that the allegations that Julie sexually

assaulted Carl showed Julie’s bias or motive in the case against Shorten. However,

the trial court was not provided any evidence that Julie’s allegations against Shorten

were in response to allegations that Julie was allegedly sexually assaulting Carl. To

the contrary, the evidence indicates Carl first made an outcry about Julie after she

began making allegations about Shorten. See Winkler v. State, No. 07-22-00285-CR,

2024 WL 1422775, at *2-3 (Tex. App.—Amarillo Apr. 2, 2024, pet. ref’d) (mem.

op., not designated for publication) (finding no abuse of discretion excluding

testimony regarding complainant’s sexual abuse against her brothers when the

evidence did not show the complainant had confessed to or been investigated for the

abuse prior to her outcry against the appellant). Carl’s excluded testimony regarding

the alleged sexual assaults by Julie did not relate to Julie’s alleged bias against

Shorten. See, e.g., Reynolds v. State, 371 S.W.3d 511, 521 (Tex. App.—Houston

[1st Dist.] 2012, pet. ref’d) (finding no logical connection existed between victim’s

dislike of appellant’s mother and her motive to testify against appellant and give

false testimony; thus, no error in excluding such testimony).

With regard to Shorten’s attempt to introduce evidence regarding the

purported sexual relationship among Julie, Jon, and Abby, that evidence was

14 proffered to show why Julie went to Missouri or why Jon wanted Julie to go to

Missouri. Julie’s alleged desire for a sexual relationship with Jon and Abby or Jon’s

alleged desire for a sexual relationship with Julie did not relate to Julie’s bias against

Shorten or Julie’s motive for accusing Shorten of molesting her. The trial court may

also have reasonably concluded that the potential probative value of such testimony

was substantially outweighed by the prejudicial effect of such evidence. See

Robisheaux v. State, 483 S.W.3d 205, 225 (Tex. App.—Austin 2016, pet. ref’d).

We conclude Shorten failed to establish a logical nexus between Carl’s

proffered testimony and any motive or bias on the part of Julie. We also conclude

the evidence of Julie’s alleged sexual relationship with Jon and Abby did not relate

to Julie’s motive or bias to testify against Shorten. We hold that the trial court did

not abuse its discretion in ruling the evidence inadmissible under Rule 412. We

overrule Shorten’s first issue.

Ineffective Assistance of Counsel

In his second issue, Shorten complains that defense counsel rendered

ineffective assistance of counsel in the examination of Sherrie Shorten because no

probative evidence was developed during the questioning and the examination

questions were “so repetitive and without apparent direction that the Court gives her

a 15 minute warning and then ends the examination.” In his third issue, Shorten

complains that defense counsel was ineffective in his examination of Barbara

15 because he had to “ask the Court how to lay [the] predicate for his questions in his

cross examination of [Barbara]” and he was ineffective in the examination of the

appellant because “he violated agreed Motions in Limine and Rule 412.” We address

these issues together.

To prevail on a claim of ineffective assistance of counsel, an appellant must

meet a two-pronged test:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,

726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Strickland requires an appellant to show

a reasonable probability that, but for his counsel’s errors, the outcome of his trial

would have been different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002). A reasonable probability is one sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at 694. Failure to meet either Strickland prong is fatal

to an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 812-

813 (Tex. Crim. App. 1999).

“Appellate review of defense counsel’s representation is highly deferential

and presumes that counsel’s actions fell within the wide range of reasonable and

16 professional assistance.” Bone, 77 S.W.3d at 833 (citation omitted). Appellant must

prove there was no plausible professional reason for specific acts or omissions of his

counsel. Id. at 836. “Any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.”

Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.

Crim. App. 1992)). Because the reasonableness of counsel’s decisions and strategy

often involves facts that do not appear in the appellate record, the record on direct

appeal is usually insufficient to support an ineffective assistance claim. Id. at 813-

14. However, “when no reasonable trial strategy could justify the trial counsel’s

conduct, counsel’s performance falls below an objective standard of reasonableness

as a matter of law, regardless of whether the record adequately reflects the trial

counsel’s subjective reasons for acting as [he] did.” Andrews v. State, 159 S.W.3d

98, 102 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 690).

“In the rare case in which trial counsel’s ineffectiveness is apparent from the

record, an appellate court may address and dispose of the claim on direct appeal.”

Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). When the record is

silent as to the reasoning behind an alleged deficiency by trial counsel, “we will

assume that counsel had a strategy if any reasonable sound strategic motivation can

be imagined.” Id.; see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001) (“[I]n the absence of evidence of counsel’s reasons for the challenged conduct,

17 an appellate court . . . will not conclude the challenged conduct constituted deficient

performance unless the conduct was so outrageous that no competent attorney would

have engaged in it.”).

Generally, unless a record is created in the trial court that allows the attorney

who represented the defendant to explain the reasons a case was handled the way it

was handled at trial, the record in the direct appeal will not be sufficiently developed

for the appellant to meet their burden to establish their attorney provided ineffective

assistance of counsel in the trial unless the challenged conduct was “so outrageous

that no competent attorney would have engaged in it.” Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005) (quotations and citations omitted).

Shorten did not file a Motion for New Trial alleging ineffective assistance of

counsel nor was there a hearing addressing counsel’s effectiveness. Shorten’s trial

counsel was not afforded an opportunity to explain his actions, so we will not find

his performance deficient unless the conduct was “so outrageous that no competent

attorney would have engaged in it.” Id.

Defense counsel called Sherrie Shorten as a defense witness. Her testimony

spans 122 pages of the record. At about the halfway point during the direct

examination of Sherrie, the trial court noted that there were some “repeats of issues

with this particular witness[,]” referring to the trial court’s sustaining some

objections to questions that had been asked and answered, nonresponsive, relevant

18 and leading. The trial court, utilizing Texas Rule of Evidence 611, instructed the

parties to “take it upon themselves to organize their questioning in order to present

that evidence to the jury in the search for truth.” After the defense attorney continued

his direct examination of Sherrie, the trial court again admonished the parties about

the proper mode of examination. The trial court for a third time admonished the

parties on the questioning of Sherrie, noting that the witness had been on direct

examination for two hours and thirty-two minutes, in excess of ninety minutes. The

trial court allowed fifteen additional minutes of direct examination. Defense

counsel’s direct examination of Sherrie covered numerous topics, including her

arrest, her time in prison, life on the school bus, Shorten’s erectile dysfunction,

Julie’s rebellion, Julie’s lying, Julie’s use of electronic devices, and why she doesn’t

believe Shorten sexually assaulted Julie and Barbara.

Shorten further complains on appeal that his trial counsel violated “the ruling

of the Court under Rule 614 in that she failed to communicate effectively the

meaning of the Rule of Evidence 614 wherein witnesses once placed under the Rule

are prohibited from communicating with other witnesses about the evidence heard

during the trial.” However, the record reflects that trial counsel explained the Rule

to Sherrie. It was Sherrie and Shorten who chose to violate the Rule, notwithstanding

the admonishments provided.

19 During the defense’s case-in-chief, defense counsel conducted a direct

examination of Barbara. Defense counsel attempted to elicit testimony from

Barabara that she told Detective Fruchtnicht that her and Julie’s allegations against

Shorten were going to be similar. Outside the presence of the jury, the trial court

instructed defense counsel to lay the predicate as to impeachment and recounted the

steps needed for the proper predicate. The trial court allowed defense counsel to

question Barbara on whether “she made those statements on an earlier date[]” but

noted that the prior inconsistent statement was inappropriate for impeachment.

Defense counsel then asked Barbara, “Didn’t you tell the detective, ‘I’m pretty sure

that her incident is very similar to mine’?” to which Barbara responded, “Yes, sir.”

Barbara testified that she did not know how her story was similar to Julie’s and that

she did not talk to Julie.

Shorten further complains that his trial counsel rendered ineffective assistance

of counsel by violating a motion in limine and Texas Rule of Evidence 412 during

his questioning of the appellant. Before any objection based upon the motion in

limine had been made, Shorten had testified that Barbara was acting as a prostitute

and that she was not attending school. This testimony was proffered to show why

Barbara started living with Shorten instead of Barbara’s mother. The trial court later

instructed the jurors to disregard the statement that Barbara was acting as a

prostitute.

20 Shorten has not demonstrated that but for counsel’s alleged errors, the

outcome of his trial would have been different. See Graves v. State, 310 S.W.3d 924,

929 (Tex. App.—Beaumont 2010, pet. ref’d).

Moreover, the record is silent as to trial counsel’s tactical and strategic

decision-making. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010).

Shorten cannot defeat the strong presumption that counsel’s decisions during trial

fell within the wide range of reasonable professional assistance. See Thompson, 9

S.W.3d at 814. Since we lack any basis in the record before us to conclude that the

alleged failures of Shorten’s trial counsel were “so outrageous that no competent

attorney would have engaged in it[,]” we overrule Shorten’s second and third issues.

Goodspeed, 187 S.W.3d at 392 (internal quotations and citation omitted).

Conclusion

For the reasons explained above, we overrule Shorten’s issues on appeal.

Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

KENT CHAMBERS Justice

Submitted on June 29, 2026 Opinion Delivered July 29, 2026 Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.