TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00582-CR
Michael Ray Chandler, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT NO. CR2011-365, HONORABLE DIB WALDRIP, JUDGE PRESIDING
MEMORANDUM OPINION
Michael Ray Chandler, Jr., was charged with three counts of indecency with a child
by exposure. See Tex. Penal Code § 21.11(a)(2)(A); see also id. § 21.11(d) (explaining that offense
is third-degree felony). In particular, the indictment alleged that with an intent to arouse or gratify
sexual desire Chandler exposed his genitals on three occasions knowing that a child younger
than 17 years old was present. The victim was Chandler’s stepdaughter C.F.B. At the time of the
offenses, C.F.B. was 15 years old. The indictment also contained two enhancement paragraphs
alleging that Chandler had previously been convicted of two felony offenses. After a trial, the jury
found Chandler guilty of two of the three counts. Subsequent to the jury reaching its decision, the
district court found the enhancement allegations to be true and sentenced Chandler to life
imprisonment for the first count and to 98 years and10 months for the second count. See id. § 12.42(d)
(elevating permissible punishment range for person previously convicted of two felony offenses). The district court ordered that the two sentences be served consecutively. Shortly after the district
court issued its judgment, Chandler appealed his conviction. We will affirm the district court’s
judgment of conviction.
DISCUSSION
On appeal, Chandler presents three issues challenging his conviction. In his first
issue, Chandler contends that the evidence was legally insufficient to support his conviction
because the evidence did not support the allegations in the indictment that the offenses took place
in Comal County, Texas. In his second issue, Chandler asserts that the district court erred by admitting
into evidence “certain search terms” found in the internet history of a computer retrieved from his
home. Finally, Chandler argues that he was denied effective assistance of counsel because his trial
attorney “failed to object to the introduction of certain search terms on a computer found in” his home.
Venue
As mentioned above, in his first issue on appeal, Chandler contends that the
evidence was insufficient to support his conviction because the evidence did not show that the
offenses took place in Comal County, Texas, which is where the indictment alleged that the
incidents occurred. Although Chandler acknowledges that the State mentioned Comal County
when making its case, he argues that the State never mentioned Texas, which left “open the
possibility of the offense occurring in another state besides Texas.”
Venue is not an element of the offense in this case. See Tex. Penal Code § 21.11;
see also Tex. Code Crim. Proc. art. 13.18 (providing that if venue is not specifically stated in
governing statute, proper county for prosecution is where “offense was committed”); State v.
2 Blankenship, 170 S.W.3d 676, 681 (Tex. App.—Austin 2005, pet. ref’d) (explaining that failure to
prove venue does not negate guilt of accused). During a trial, the State has the burden of proving
venue by a preponderance of the evidence, see Tex. Code Crim. Proc. art. 13.17, and venue may
be proven by circumstantial or direct evidence, Couchman v. State, 3 S.W.3d 155, 161 (Tex.
App.—Fort Worth 1999, pet. ref’d). On the other hand, the defendant has the burden of objecting
to the State’s “failure to prove venue.” Grant v. State, 33 S.W.3d 875, 878 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref’d). When deciding the issue of venue, the fact-finder is permitted to
“make reasonable inferences from the evidence” presented. Bordman v. State, 56 S.W.3d 63, 70
(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Evidence is sufficient to establish venue if
“‘the jury may reasonably conclude that the offense was committed in the county alleged.’”
Couchman, 3 S.W.3d at 161 (quoting Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964)
and Knabe v. State, 836 S.W.2d 837, 839 (Tex. App.—Fort Worth 1992, pet. ref’d)). On appeal,
reviewing courts are obligated to presume “that venue was proved in the trial court” unless the
issue was “disputed in the trial court” or “unless the record affirmatively shows to the contrary.”
See Tex. R. App. P. 44.2(c)(1).
In his brief, Chandler contends that he disputed the issue of venue during trial and
points to a portion of the record in which he requested a directed verdict. The exchange at issue
occurred as follows:
THE COURT: Any motions . . . ?
CHANDLER’S ATTORNEY: What are we talking about here, Judge? Any motions about anything?
THE COURT: Well, they’ve rested so I mean --
3 CHANDLER’S ATTORNEY: I guess I could ask for a motion for directed verdict, Judge.
THE COURT: Denied.
In light of the general nature of this exchange, we cannot agree with Chandler’s
assertion that he disputed the issue of venue during the trial. See Whalon v. State, 725 S.W.2d 181,
188-89 (Tex. Crim. App. 1986) (concluding that defendant did not raise issue of venue in trial court
by moving for directed verdict and asserting that evidence was “wholly insufficient to support a
verdict of guilty and does not establish guilt beyond a reasonable doubt”); Grant, 33 S.W.3d at 879
(determining that motion for “instructed verdict ‘asserting that State did not succeed in showing
each and every element of the offense’” as set forth in the indictment was insufficient “to preserve
the issue of venue”).
Moreover, the record does not affirmatively show “to the contrary.” See Tex. R.
App. P. 44.2(c)(1). The indictment alleged that Chandler committed the offenses in Comal County,
Texas. Consistent with that allegation, C.F.B. explained in her testimony that during the relevant
time she lived in Comal County and went to a high school located in Comal County. Further, she
related that the home that she lived in with her mom and Chandler was in Comal County and that
the offenses occurred at the home when her mom left for work. Similarly, C.F.B.’s mother testified
that until she learned of the offenses, she lived in a home with Chandler and C.F.B. in “Fischer,
Texas,” which was in “Comal County.” In addition, Texas Ranger Keith Pauska explained in his
testimony that he was asked to investigate the offenses in this case and that he was informed
that the offenses occurred in Comal County. See Woodward v. State, 931 S.W.2d 747, 752 (Tex.
App.—Waco 1996, no pet.) (rejecting argument that venue was not established when witness to
4 crime testified that she saw defendant commit offense in Brazos County, when investigating officers
testified that they worked for Bryan Police Department, and when victim stated that he worked for
Texas A&M University and lived in Bryan); Hewitt v. State, 734 S.W.2d 745, 747 (Tex. App.—Fort
Worth 1987, pet. ref’d) (concluding that evidence was sufficient to show that offense took place in
Tarrant County, Texas, where witnesses testified that offense occurred in “Tarrant County” and
where other witnesses made references to Texas and to well-known aspects of Tarrant County).
In light of the preceding, we conclude that the presumption that venue was proven
at trial applies. See Tex. R. App. P. 44.2(c)(1). Accordingly, we overrule Chandler’s first issue
on appeal.
Admission of Evidence
In his second issue, Chandler argues that the district court erred by allowing into
evidence particular search terms that were obtained from the internet history on a computer that
was in his home. The evidence pertained to searches that were made on the computer before the
offenses at issue.
During the trial, Detective Brian Morgan testified that he used forensic software to
locate the internet search history for the computer, and the State offered to admit as an exhibit a list
of the search terms found in that history. Among other things, the list contains searches for sexual
subject matters, including searches regarding teenage girls and searches pertaining to teenage girls
having sex with their fathers and other family members.1 In addition, the list also includes the
1 The list contains dozens of graphic searches for sexual subject matters. Among other topics, the list contains the following search terms: “incest,” “sleep teen vs. huge dick,” “daddy fucks step daughter,” and “mom and daughter.”
5 following internet searches that form the basis for this issue on appeal: “reality of fallen angels
from heaven,” “demon of lust,” “demons behind sexual lust,” “sex demon[]s in the bible,” “raped
by demon,” “succubus demon,” “demon[]s having sex with women today,” and “devil possessed.”
When the State offered to admit the list of the search terms found in the internet history, Chandler
objected on the grounds that the searches were not relevant and that they were more prejudicial
than probative. See Tex. R. Evid. 401-03. After overruling Chandler’s objections, the district court
admitted the list of terms.
When challenging the district court’s ruling, Chandler essentially concedes that the
searches for some of the sexual material “might be relevant” to the issue of intent, but he urges that
the searches regarding demons and sex with demons should not have been admitted and were only
introduced to “inflame the minds of the jurors.”
We review a trial court’s ruling on the admission of evidence under an abuse-of-
discretion standard of review. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010).
Under that standard, a trial court’s ruling will only be deemed an abuse of discretion if it is so clearly
wrong as to lie outside the zone of reasonable disagreement, Lopez v. State, 86 S.W.3d 228, 230
(Tex. Crim. App. 2002), or is arbitrary or unreasonable, State v. Mechler, 153 S.W.3d 435, 439 (Tex.
Crim. App. 2005). Moreover, the trial court’s ruling will be upheld provided that the trial court’s
decision “is reasonably supported by the record and is correct under any theory of law applicable
to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
When objecting to the admission of the list, Chandler first argued that the evidence
was not relevant. “‘Relevant evidence’ means evidence having any tendency to make the existence
6 of any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Tex. R. Evid. 401; see id. R. 402 (stating that, in general,
all “relevant evidence is admissible”). As mentioned by Chandler, the search terms concerning
teenagers and concerning sexual activity between teenage girls and their relatives, particularly with
their stepfathers, were relevant to the issue of whether Chandler intended to commit the offenses
at issue in this case. See id. R. 401. However, during the trial, Chandler argued that several people
had access to the computer and could have made those searches. The admission into evidence of the
searches pertaining to demons helped link Chandler to the use of the computer and to the relevant
internet searches. Specifically, the searches regarding demons used language that was similar to
language found in letters written by Chandler to C.F.B.’s mother that were admitted into evidence.
In those letters, Chandler repeatedly mentioned demons and demons of lust.
Accordingly, we cannot conclude that the district court abused its discretion by
overruling Chandler’s relevance objection.
When objecting to the admission of the search terms, Chandler also argued that they
should not be admitted due to their prejudicial nature. Under Rule 403, relevant “evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”
Id. R. 403. As used in the Rule, the term “probative value” refers to how strongly the evidence
makes the existence of a fact more or less probable and to how much the proponent needs the
evidence, and “unfair prejudice” refers to how likely it is that the admission of the evidence might
result in a decision based on an improper basis, including an emotional one. Davis, 329 S.W.3d
at 806. The Rule “favors admission of relevant evidence and carries a presumption that relevant
evidence will be more probative than prejudicial.” Id.
7 When determining whether evidence should have been excluded, reviewing courts
must bear in mind that trial courts are afforded “an especially high level of deference” for Rule 403
determinations. United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007). After objectively
reviewing the governing criteria, a reviewing court should determine that the trial court abused
its discretion only if the record shows “a risk that the probative value of the tendered evidence
is substantially outweighed by unfair prejudice.” Montgomery v. State, 810 S.W.2d 372, 393 (Tex.
Crim. App. 1991) (op. on reh’g). When making this determination, a reviewing court should consider
the tendency of the evidence to induce a decision on an improper basis, to confuse the jury or distract
it from the main issues, and “to be given undue weight by a jury that has not been equipped to
evaluate the probative force of the evidence” as well as the amount of time needed to present the
evidence, the evidence’s inherent probative value, and the proponent’s need for the evidence.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
In this case, Chandler was charged with indecency for exposing himself to his
stepdaughter on more than one occasion. In particular, the testimony and the evidence presented,
including a video of a confession made by Chandler when he was being interviewed by the police
as well as letters written by Chandler to C.F.B.’s mother in which he admits that he committed the
alleged offenses, indicated that Chandler repeatedly removed his clothing and masturbated in front
of C.F.B. while watching pornographic videos. In addition, the letters written by Chandler to
C.F.B.’s mother reveal that when Chandler performed these acts, he fantasized that C.F.B. was her
mother when she was a teenager. More specifically, the letters revealed that C.F.B.’s mother had
confided in Chandler that she had been repeatedly sexually abused by her uncle when she was
8 younger and that Chandler was attempting to recreate those events with C.F.B. In light of the
allegations against Chandler and the evidence and testimony presented during trial, we do not
believe that the evidence of internet searches related to demons had a tendency to induce a decision
on an improper basis, to induce the jury to give undue weight to the evidence, or to confuse or
distract the jury.
In addition, as mentioned above, due to the letters that Chandler wrote to C.F.B.’s
mother in which he repeatedly discussed demons, the evidence of search terms regarding demons
and regarding demons having sex with individuals had a tendency to link Chandler to the computer
and to the other searches performed on the computer that were relevant to Chandler’s intent.
Moreover, the internet searches were only mentioned during Detective Morgan’s testimony, and
in its closing argument, the State did not emphasize the search terms and explained that the searches
were not evidence of a crime and were offered only to show Chandler’s intent.
Arguably, the State’s need for the evidence and testimony concerning internet
searches for demons was not great given, as mentioned above, that the State presented evidence
showing that Chandler had admitted to committing the offenses. In addition, the State was able to
link Chandler to the internet searches of teenage sexual activity through another means. Regarding
the other link, Detective Morgan testified that an email account with a username corresponding to
Chandler’s full name was being used when the internet searches were performed; however, evidence
that an email program was open and active when the internet searches were performed, without
more, is not necessarily the strongest type of linking evidence.
After objectively reviewing the record and the governing criteria for Rule 403
determinations, we do not believe that the record in this case demonstrates a risk that the probative
9 value of the evidence of the internet searches pertaining to demons was substantially outweighed by
the danger of unfair prejudice. Accordingly, we cannot conclude that the district court abused its
discretion by overruling Chandler’s objection asserting that the evidence should not have been
admitted because it was too prejudicial.
Having determined that the district court did not abuse its discretion by overruling
either objection, we overrule Chandler’s second issue on appeal.
Effectiveness of Counsel
In his third issue on appeal, Chandler contends that his trial attorney provided
ineffective assistance of counsel. In particular, Chandler argues that his attorney was ineffective
because he failed to object to the portion of Detective Morgan’s testimony in which he related that
one of the search terms found on the computer concerned demons “having sex with women today.”
Although Chandler acknowledges that his attorney generally objected to the admission of the
exhibit containing the list of all of the internet searches recovered from the computer, Chandler insists
that his attorney should have specifically objected to testimony concerning this particular search
and should have argued that the testimony was not relevant and was more prejudicial than probative.
To succeed on an ineffectiveness claim, the defendant must overcome the strong
presumption that his trial “counsel’s conduct falls within the wide range of reasonable professional
assistance” and must show that the attorney’s “representation fell below an objective standard of
reasonableness . . . under prevailing professional norms” and that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 689, 694 (1984). Evaluations of effectiveness are based
10 on the totality of the representation. Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim. App. 2013);
see also Davis v. State, 413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref’d) (providing that
assessment should consider cumulative effect of counsel’s deficiencies). Furthermore, even though
a defendant is not entitled to representation that is error free, a single error can render the
representation ineffective if it “was egregious and had a seriously deleterious impact on the balance
of the representation.” Frangias, 392 S.W.3d at 653.
In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness
claims because the record for that type of claim is usually undeveloped. Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005). “This is true with regard to the question of deficient
performance . . . where counsel’s reasons for failing to do something do not appear in the record.”
Id. (stating that “counsel’s conduct is reviewed with great deference, without the distorting effects
of hindsight”). In addition, before their representation is deemed ineffective, trial attorneys should
be afforded the opportunity to explain their actions. Id. If that opportunity has not been provided,
as in this case, an appellate court should not determine that an attorney’s performance was ineffective
unless the conduct at issue was “so outrageous that no competent attorney would have engaged in
it.” See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
As set out above, Chandler’s ineffectiveness claim is based on his trial attorney’s
failure to act, and the record before this Court is not sufficiently developed to evaluate the alleged
failure to act because “[n]either [his] counsel nor the State have been given an opportunity to
respond to” the claim. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Moreover,
in the prior issue, Chandler contended that the district court erred by overruling his objections to the
11 admission of the list of search terms obtained from the computer in his home. When challenging the
district court’s ruling, Chandler contended that those search terms, including the search that is in
dispute in this final issue, were not relevant and were more prejudicial than probative. Ultimately,
we decided that the district court did not abuse its discretion by admitting the evidence. The reasoning
behind our resolution of the prior issue would seem to foreclose Chandler’s contention that his trial
counsel was ineffective for failing to specifically raise those same objections to the portion of
Detective Morgan’s testimony in which he read the particular search term in dispute here.
Moreover, even though it is not necessary to further address the issue, we do note that
effectiveness challenges must be considered in light of “the totality of the representation” provided
by the attorney. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). During voir dire,
Chandler’s trial attorney discussed the presumption of innocence, the State’s burden of proof,
and the reasons why a defendant might choose not to testify. In addition, his attorney extensively
questioned the panelists about their ability to serve on the case and actively participated in the
selection process. During the trial, his attorney successfully moved to have portions of the video of
Chandler’s interview with the police edited out before the video was played for the jury, emphasized
the State’s burden during his opening statement, cross-examined the State’s witnesses, objected to
portions of the testimony offered by the State’s witnesses, questioned Chandler’s father outside
the presence of the jury to ascertain whether his testimony would be beneficial to Chandler, and
emphasized the elements of the jury charge and the State’s burden during his closing argument. In
the punishment phase, Chandler’s attorney objected to the admission of evidence regarding logs of
Chandler’s misdeeds during his prior incarceration, cross-examined the State’s witnesses, argued
12 that Chandler’s sexual-impulse-control problem resulted from his prior incarceration, and
undermined the testimony of the State’s witnesses during his closing argument. Finally, his attorney
asked the district court to order that any punishments imposed for the two counts run concurrently.
In light of the preceding, we overrule Chandler’s final issue on appeal.
CONCLUSION
Having overruled Chandler’s issues on appeal, we affirm the district court’s judgment
of conviction.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: October 1, 2014
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