Randy Henderson v. State

Court of Appeals of Texas

Randy Henderson v. State

DecidedOctober 13, 2004

Docket06-03-00111-CR

StatusPublished

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Randy Henderson v. State, (Tex. Ct. App. 2004).

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Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00111-CR

RANDY HENDERSON, Appellant

Â

V.

THE STATE OF TEXAS, Appellee

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 03F0146-202

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Before Ross, Carter, and Hadden,* JJ.

Memorandum Opinion by Justice Carter

_______________________

*Roby Hadden, Justice, Sitting by AssignmentÂ

MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Â Â Randy Henderson appeals from his conviction for multiple counts of indecency with a child, one by exposure and four by sexual contact. The jury assessed punishment, and the trial court sentenced Henderson to serve some counts consecutively and some concurrently.

Â Â Â Â Â Â Â Â Â Â Â Â On appeal, Henderson complains only of errors committed during the voir dire of the jury panel. He initially complains that trial counsel's failure to object to the trial court's actions constitutes ineffective assistance of counsel, and then seeks to address the alleged errors on their merits.

Jury Shuffle

Â Â Â Â Â Â Â Â Â Â Â Â Henderson argues that two jury shuffles occurred. This contention is premised on the fact that the clerk's record contains two lists of the jury panel, one of which has the written notation "1st shuffle" and the other a notation "2nd shuffle." Henderson correctly states that Tex. Code Crim. Proc. Ann. art 35.11 (Vernon Supp. 2004â2005) has been interpreted by the Texas Court of Criminal Appeals as allowing one, and only one, shuffle of the panel. See Chappell v. State, 850 S.W.2d 508, 511 (Tex. Crim. App. 1993). It is not clear from the record that two jury shuffles occurred. The State argues that the first "shuffle" was a list of the individual veniremembers randomly selected from the central jury pool, and the list with the notation "2nd shuffle" contained the names of the same panel after the jury shuffle. However, the record does not reveal that any objection was made to the procedure used by the court. In the absence of an objection, nothing is preserved for review. Tex. R. App. P. 33.1. Even with a proper objection, a procedural error is not subject to compulsory reversal. The Texas Court of Criminal Appeals has recently acknowledged that, because the right to a jury shuffle is statutory in nature, any error in connection therewith must be evaluated for harm under the standard for nonconstitutional errors. Ford v. State, 73 S.W.3d 923, 924 (Tex. Crim. App. 2002).

Improper Excusal for Cause?

Â Â Â Â Â Â Â Â Â Â Â Â Henderson also complains about the excusal of African-American panelists for cause without the trial court's hearing excuses offered as required by Tex. Code Crim. Proc. Ann. art. 35.03, Â§Â 1 (Vernon 1989). Again, there was no objection made to the trial court's actions; thus, nothing has been preserved for our review. See Tex. R. App. P. 33.1.

Batson:

Â Â Â Â Â Â Â Â Â Â Â Â Henderson also complains about the State's use of a peremptory strike to remove the only remaining African-American from the panel. This argument, however, is based on counsel's failure to make a Batson objection, and thus will be addressed in the following discussion of his complaint that counsel was ineffective. We note the excused juror stated he knew the defendant and the victim, which appears to provide a race-neutral reason for striking the juror.

Â Â Â Â Â Â Â Â Â Â Â Â In a connected argument, counsel complains that the trial court committed reversible error by collecting and destroying juror information forms that revealed the race of the veniremembersâthus increasing the difficulty of effectively raising a Batson claim on appeal. We find nothing in the record to document that this occurred. Assuming that it did occur, there was also no objection raised; thus, nothing has been preserved for our review. See Tex. R .App. P. 33.1.

Ineffective Assistance of Counsel

Â Â Â Â Â Â Â Â Â Â Â Â The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, Henderson must prove by a preponderance of the evidence (1) that his counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his defense. Id.; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).

Â Â Â Â Â Â Â Â Â Â Â Â Henderson contends counsel was ineffective because he failed to object to a second shuffle of the venire, failed to raise a Batson objection, failed to object to the trial court's sua sponte excusal of eleven veniremembers, failed to attempt to remove a veniremember by use of a peremptory challenge or a challenge for cause, and failed to object to seizure and destruction of juror questionnaires showing the race of each juror.

Â Â Â Â Â Â Â Â Â Â Â Â Each alleged error is an error of omission. We cannot determine the reason that counsel did not object to a second shuffle, did not raise a Batson objection, why he did not object to the excusal of veniremembers, or why he did not challenge the complained-of veniremember. Further, we cannot determine from this record whether a second shuffle occurred, or whether juror questionnaires were indeed "seized and destroyed."

Â Â Â Â Â Â Â Â Â Â Â Â Direct appeals often present a limited record for review of the typical issues raised in an ineffective assistance point. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Phetvongkham v. State, 841 S.W.2d 928, 932â33 (Tex. App.âCorpus Christi 1992, pet. ref'd, untimely filed). One way to get evidence of counsel's trial strategy or other matters in the direct appeal record is through a motion for new trial. See Motley v. State, 773 S.W.2d 283, 290 (Tex. Crim. App. 1989) (evidence relating to counsel's trial strategy appeared in the record because a motion for new trial was held on the issue of counsel's ineffective assistance). Here, no motion for new trial was filed.

Â Â Â Â Â Â Â Â Â Â Â Â To defeat the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00111-CR

RANDY HENDERSON, Appellant

Â

V.

THE STATE OF TEXAS, Appellee

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 03F0146-202

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Before Ross, Carter, and Hadden,* JJ.

Memorandum Opinion by Justice Carter

_______________________

*Roby Hadden, Justice, Sitting by AssignmentÂ

MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Â Â Randy Henderson appeals from his conviction for multiple counts of indecency with a child, one by exposure and four by sexual contact. The jury assessed punishment, and the trial court sentenced Henderson to serve some counts consecutively and some concurrently.

Â Â Â Â Â Â Â Â Â Â Â Â On appeal, Henderson complains only of errors committed during the voir dire of the jury panel. He initially complains that trial counsel's failure to object to the trial court's actions constitutes ineffective assistance of counsel, and then seeks to address the alleged errors on their merits.

Jury Shuffle

Â Â Â Â Â Â Â Â Â Â Â Â Henderson argues that two jury shuffles occurred. This contention is premised on the fact that the clerk's record contains two lists of the jury panel, one of which has the written notation "1st shuffle" and the other a notation "2nd shuffle." Henderson correctly states that Tex. Code Crim. Proc. Ann. art 35.11 (Vernon Supp. 2004â2005) has been interpreted by the Texas Court of Criminal Appeals as allowing one, and only one, shuffle of the panel. See Chappell v. State, 850 S.W.2d 508, 511 (Tex. Crim. App. 1993). It is not clear from the record that two jury shuffles occurred. The State argues that the first "shuffle" was a list of the individual veniremembers randomly selected from the central jury pool, and the list with the notation "2nd shuffle" contained the names of the same panel after the jury shuffle. However, the record does not reveal that any objection was made to the procedure used by the court. In the absence of an objection, nothing is preserved for review. Tex. R. App. P. 33.1. Even with a proper objection, a procedural error is not subject to compulsory reversal. The Texas Court of Criminal Appeals has recently acknowledged that, because the right to a jury shuffle is statutory in nature, any error in connection therewith must be evaluated for harm under the standard for nonconstitutional errors. Ford v. State, 73 S.W.3d 923, 924 (Tex. Crim. App. 2002).

Improper Excusal for Cause?

Â Â Â Â Â Â Â Â Â Â Â Â Henderson also complains about the excusal of African-American panelists for cause without the trial court's hearing excuses offered as required by Tex. Code Crim. Proc. Ann. art. 35.03, Â§Â 1 (Vernon 1989). Again, there was no objection made to the trial court's actions; thus, nothing has been preserved for our review. See Tex. R. App. P. 33.1.

Batson:

Â Â Â Â Â Â Â Â Â Â Â Â Henderson also complains about the State's use of a peremptory strike to remove the only remaining African-American from the panel. This argument, however, is based on counsel's failure to make a Batson objection, and thus will be addressed in the following discussion of his complaint that counsel was ineffective. We note the excused juror stated he knew the defendant and the victim, which appears to provide a race-neutral reason for striking the juror.

Â Â Â Â Â Â Â Â Â Â Â Â In a connected argument, counsel complains that the trial court committed reversible error by collecting and destroying juror information forms that revealed the race of the veniremembersâthus increasing the difficulty of effectively raising a Batson claim on appeal. We find nothing in the record to document that this occurred. Assuming that it did occur, there was also no objection raised; thus, nothing has been preserved for our review. See Tex. R .App. P. 33.1.

Ineffective Assistance of Counsel

Â Â Â Â Â Â Â Â Â Â Â Â The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, Henderson must prove by a preponderance of the evidence (1) that his counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his defense. Id.; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).

Â Â Â Â Â Â Â Â Â Â Â Â Henderson contends counsel was ineffective because he failed to object to a second shuffle of the venire, failed to raise a Batson objection, failed to object to the trial court's sua sponte excusal of eleven veniremembers, failed to attempt to remove a veniremember by use of a peremptory challenge or a challenge for cause, and failed to object to seizure and destruction of juror questionnaires showing the race of each juror.

Â Â Â Â Â Â Â Â Â Â Â Â Each alleged error is an error of omission. We cannot determine the reason that counsel did not object to a second shuffle, did not raise a Batson objection, why he did not object to the excusal of veniremembers, or why he did not challenge the complained-of veniremember. Further, we cannot determine from this record whether a second shuffle occurred, or whether juror questionnaires were indeed "seized and destroyed."

Â Â Â Â Â Â Â Â Â Â Â Â Direct appeals often present a limited record for review of the typical issues raised in an ineffective assistance point. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Phetvongkham v. State, 841 S.W.2d 928, 932â33 (Tex. App.âCorpus Christi 1992, pet. ref'd, untimely filed). One way to get evidence of counsel's trial strategy or other matters in the direct appeal record is through a motion for new trial. See Motley v. State, 773 S.W.2d 283, 290 (Tex. Crim. App. 1989) (evidence relating to counsel's trial strategy appeared in the record because a motion for new trial was held on the issue of counsel's ineffective assistance). Here, no motion for new trial was filed.

Â Â Â Â Â Â Â Â Â Â Â Â To defeat the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Where the alleged derelictions are primarily errors of omission outside the record rather than commission revealed in the trial record, collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread on a record. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).

Â Â Â Â Â Â Â Â Â Â Â Â In this case, the record shows no reasons for trial counsel's actions, and we may not presume that they were without reason. The contention of error is overruled.

Â Â Â Â Â Â Â Â Â Â Â Â We affirm the judgment.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Jack Carter

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Date Submitted:Â Â Â Â Â Â Â Â Â Â July 13, 2004

Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â October 13, 2004

Do Not Publish

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In The

Court of Appeals

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Sixth Appellate District of Texas at Texarkana

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________________________

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â No. 06-10-00062-CR

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________________________

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â JESSE WAYNE TURLEY, Appellant

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â V.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â THE STATE OF TEXAS, Appellee

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â On Appeal from the 273rd Judicial District Court

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Sabine County, Texas

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Trial Court No. 6529

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Before Morriss, C.J., Carter and Moseley, JJ.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Memorandum Opinion by Justice Moseley

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Â Jesse Wayne Turley was sentenced to ninety-nine yearsÂ imprisonment and ordered to pay a $10,000.00 fine after a Sabine County jury^{^[1]} found him guilty of aggravated sexual assault of a child.Â Turley appeals his conviction on grounds that:Â (1) the evidence was legally and factually insufficient; (2) the trial court erred in finding the child victim competent to testify; (3) the trial court erred in finding TurleyÂs confession was the product of noncustodial interrogation; and (4)Â his counsel was ineffective.Â We find the evidence to have been legally and factually sufficient to support the trial courtÂs finding that Turley committed aggravated sexual assault.Â We also conclude:Â (1) that Turley failed to preserve his second point of error (in which he maintained that the victim was not competent to testify); (2) that TurleyÂs confessional statement to police was admissible because Turley was not in custody when he gave his confession; and (3) that TurleyÂs counsel did not provide ineffective representation.Â Accordingly, we affirm the trial courtÂs judgment.Â

I.Â Â Â Â Â Â Â Â Â The Evidence Is Legally and Factually Sufficient to Support TurleyÂs Conviction

Â Â Â Â Â Â Â Â Â Â Â In considering legal sufficiency, we review the evidence, both properly and improperly admitted, supporting TurleyÂs conviction in the light most favorable to the juryÂs verdict to determine whether any rational jury could have found the essential elements of aggravated sexual assault beyond a reasonable doubt.Â Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.ÂTexarkana 2010, pet. filed) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We must give deference to the responsibility of the jury Âto fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.ÂÂ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318Â19 (1979)).Â

Â Â Â Â Â Â Â Â Â Â Â In conducting a factual sufficiency review, we consider the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).Â The verdict will be set aside only if (1) it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust, or (2) it is against the great weight and preponderance of the evidence.Â Id. at 414Â15 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).

Â Â Â Â Â Â Â Â Â Â Â Both legal and factual sufficiency are measured by the elements of the offense as defined by a hypothetically-correct jury charge.Â Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).Â Under a hypothetically-correct jury charge, Turley committed the offense of aggravated sexual assault of D.S. if he intentionally or knowingly caused the penetration of the mouth of D.S. by his sexual organ and D.S. was younger than fourteen years of age at the time.Â Tex. Penal Code Ann. Â§Â 22.021(a)(1)(B)(ii), (2)(B) (Vernon Supp. 2009).Â A person acts intentionally with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct; a person acts knowingly with respect to the nature of his conduct when he is aware of the nature of his conduct.Â Tex. Penal Code Ann. Â§ 6.03 (Vernon 2003).

Â Â Â Â Â Â Â Â Â Â Â ÂThe testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault.Â^{^[2]}Â Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.ÂCorpus Christi 2006, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978)).Â D.S. took the stand and testified Turley made her Â[s]uck his private.ÂÂ Exhibits demonstrate that D.S. defined TurleyÂs private as his penis.Â D.S. was in the second grade at the time of her testimony.Â Intent to commit sexual assault can be inferred from acts done.Â Cook v. State, 99 S.W.3d 310, 316 (Tex. App.ÂEastland 2003, no pet.).Â D.S. said the incident lasted Â[a]bout thirty minutesÂ and ended when something Âwhite . . . . [went] into my mouth and I had to spit it out.ÂÂ We determine that a rational jury hearing this evidence could have found beyond a reasonable doubt that Turley intentionally or knowingly caused the penetration of the childÂs mouth by his sexual organ.

Â Â Â Â Â Â Â Â Â Â Â TurleyÂs arguments related to factual sufficiency posit that Âthere was no actual physical evidence whatsoever of the alleged crime,Â and that D.S.Âs statements were unclear as to the time the incident occurred and also varied from her motherÂs statements, which elaborated on additional accusations of sexual abuse.Â Physical evidence of the aggravated sexual assault is not needed to satisfy the StateÂs burden of proof.Â Ozuna, 199 S.W.3d 601; Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990).Â Â Further, we do not believe TurleyÂs contentions demonstrate that the juryÂs verdict was clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence.Â

Â Â Â Â Â Â Â Â Â Â Â Because we find the evidence legally and factually sufficient, we overrule TurleyÂs first point of error.Â

II.Â Â Â Â Â Â Â Argument that D.S. Was Incompetent to Testify Was Not Preserved

Â Â Â Â Â Â Â Â Â Â Â The Texas Rules of Evidence state that every person is competent to be a witness except Â[c]hildren or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.ÂÂ Tex. R. Evid. 601(a)(2).Â This rule creates a presumption that a person is competent to testify.Â Reyna v. State, 797 S.W.2d 189, 191 (Tex. App.ÂCorpus Christi 1990, no pet.); Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.ÂHouston [14th Dist.] 1989, pet. refÂd).Â Thus, an objection is required to preserve error in the admission of testimony before we can address the issue of whether the witness was competent to testify. Â Montoya v. State, 811 S.W.2d 671, 673 (Tex. App.ÂCorpus Christi 1991, no pet.) (citing Carr v. State, 475 S.W.2d 755, 757 (Tex. Crim. App. 1972)).Â

Â Â Â Â Â Â Â Â Â Â Â Additionally, the Texas Rules of Appellate Procedure mandate that the record show a complaint as to D.S.Âs competence was made to the trial court by a timely request, objection, or motion, with sufficient specificity.Â Tex. R. App. P. 33.1(a)(1).Â D.S. was examined outside the presence of the jury.Â When asked to elaborate on the difference between the truth and a lie, the child said, Âwhen you tell a lie, itÂs like when you hurt somebody and you donÂt tell the truth say: No, I didnÂt.Â YouÂre telling a truth if you tell the truth, you say: Â Yes, I did it.Â Â The trial court found the child competent to testify.Â Turley failed to object to the trial courtÂs finding, and D.S. began her testimony without complaint.Â

Â Â Â Â Â Â Â Â Â Â Â ÂUsually, the competence of a witness is waived when she is permitted to testify without objection.ÂÂ Carr, 475 S.W.2d at 757; see also McGinn v. State, 961 S.W.2d 161, 166 (Tex. Crim. App. 1998). Â Unless D.S.Âs testimony shows on its face that she was incompetent to testify, Âcomplaint as to her incompetency raised for the first time on motion for new trial^{^[3]} or on appeal comes too late.ÂÂ Id.Â Turley argues D.S. was incompetent because she could not recollect her outcry to her mother, could not remember what she related to a caseworker during an interview, did not have Âa clear time referenceÂ in which the events and interviews occurred, and did not remember the exact location of this particular assault.Â Our review of D.S.Âs testimony referenced above, which demonstrated her ability to observe intelligently the sexual assault by Turley, recall the event, and narrate it, leads us to conclude that the record does not establish, on its face, that D.S. was incompetent to testify.Â

Â Â Â Â Â Â Â Â Â Â Â Therefore, we find that Turley failed to preserve this issue for our review.Â This second point of error is overruled.Â

III.Â Â Â Â Â Â Trial Court Did Not Err in Admitting TurleyÂs Confession

Â Â Â Â Â Â Â Â Â Â Â Turley filed a motion to suppress his confession alleging that his waiver of Miranda^{^[4]} rights was involuntary because he had a sixth-grade education and could not read or write.Â ÂNo written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unlessÂ the accused Âknowingly, intelligently and voluntarily^{^[5]} waived the rightsÂ defined in Article 38.22, Section 2 of the Texas Code of Criminal Procedure.^{^[6]}Â Tex. Code Crim. Proc. Ann. art. 38.22, Â§ 2(a)(b) (Vernon 2005).Â Where voluntariness of a custodial statement is challenged, the trial court must make a finding outside of the juryÂs presence, and Âthe court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause.ÂÂ Â Tex. Code Crim. Proc. Ann. art. 38.22, Â§ 6 (Vernon 2005).Â However, the article does not preclude admission of statements that do not stem from custodial interrogation.Â Tex. Code Crim. Proc. Ann. art. 38.22, Â§ 5 (Vernon 2005); see Crivello v. State, 4 S.W.3d 792, 803 (Tex. App.ÂTexarkana 1999, no pet.).

Â Â Â Â Â Â Â Â TurleyÂs point of error on appeal involves evidence given of an interrogation during anÂ interview; Turley claims that there was no explicit finding that the interview was noncustodial,^{^[7]} and therefore, that the court erred in failing to provide a written order as to its finding that the statement was voluntarily made.Â When a trial court denies a motion to suppress and does not enter findings of fact, the evidence is viewed Âin the light most favorable to the trial courtÂs rulingÂ and we Âassume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.Â Â Herrera v. State, 241 S.W.3d 520, 527 (Tex. Crim. App. 2007).Â Â The determination of whether TurleyÂs interrogation was custodial presents a mixed question of law and fact. Â Id. at 526. Â We afford almost total deference to a ÂcustodyÂ determination when questions of historical fact turn on credibility and demeanor, but will review application to the law de novo.Â Id. at 526Â27.Â

Â Â Â Â Â Â Â Â Â Â Â Turley was Âin ÂcustodyÂ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.Â Â Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318 (1994)). Â Â Just because police question someone at a police station does not necessarily constitute proof in and of itself that the person being questioned is in custody at that time. Â There are four general situations in which custody may have occurred: Â (1) if Turley was physically deprived of his freedom of action in any significant way, (2) if law enforcement officers told Turley that he could not leave, (3) if law enforcement officers created a situation that would lead a reasonable person to believe that freedom of movement was significantly restricted, and (4)Â if there was probable cause to arrest and law enforcement officers did not tell Turley that he was free to leave.Â Id. at 255. Â With regard to the first three situations, Ârestriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention.ÂÂ Id. Â With regard to the last of the four situations, Âthe police must manifest the information to the suspect, so that a reasonable person would believe he or she is under restraint to the degree associated with an arrest.ÂÂ Martinez v. State, 171 S.W.3d 422, 430 (Tex. App.ÂHouston [14th Dist.] 2005, no pet.); State v. Rodriguez, 986 S.W.2d 326, 330 (Tex. App.ÂEl Paso 1999, pet. refÂd).

Â Â Â Â Â Â Â Â Â Â Â Officer George Griffith initially met with Turley on September 10, 2009, and obtained a statement denying sexual assault, the admission of which was not challenged.Â On September 30, Turley voluntarily went to the police station and submitted to a polygraph examination.Â After that examination had been completed, Griffith was advised that Turley wanted to speak with him.Â Turley was read his Miranda rights and submitted to an interview.^{^[8]}Â The warnings, which Turley initialed after they were read to him, included his right to remain silent, right to have a lawyer present, and right to terminate the interview at any time.Â Griffith explained that no force was used, Turley was not in handcuffs, was not arrested, and was free to leave at any point.Â He could not remember if the interview lasted for more than an hour or two.Â Because Turley could not read or write due to his illiteracy, his statements were typed by Griffith and were read back to him in the presence of notary public Kellee Horn.Â The statement read:

I, Jessee Wayne Turley was at Lake View Park with my 2 kids Aron Turley and [D.S.].Â While we were swimming [D.S.] jerked my shorts down and grabbed my penis and tried to stick it in her mouth.Â [D.S.] may have got my penis in her mouth I am not sure because I jerked back, and told her that I needed to get her some help.Â This happe[ne]d this past summer while she was staying with me . . . .

Â Â Â Â Â Â Â Â Â Â Â Horn testified that after the statement was read, Griffith asked, ÂIs that what you wanted me to put in there,Â to which Turley responded, ÂYes, sir.ÂÂ Horn witnessed and notarized TurleyÂs signature on the statement, and believed that he made the statement knowingly and intelligently in the absence of duress.Â Because Turley was free to leave, he departed the station and was not arrested until October 6, 2009.Â

Â Â Â Â Â Â Â Â Â Â Â Â ÂAt trial, the defendant bears the initial burden of proving that a statement was the product of Âcustodial interrogation.ÂÂÂ Herrera, 241 S.W.3d at 526.Â Â There was no evidence establishing Turley was physically deprived of his freedom of action in any significant way, or that he was told he could not leave.Â GriffithÂs testimony demonstrates Turley voluntarily arrived at the police station and asked to speak with Griffith.Â No physical restraints or duress were used, and no other facts suggest that Griffith created a situation that would lead a reasonable person to believe that freedom of movement was significantly restricted.Â The fact that Turley was allowed to leave the police station after the interview is further evidence that he was not in custody at that time.Â Although there may have been probable cause to arrest Turley because D.S.Âs outcry was known to officers, there is no evidence suggesting Griffith failed to tell Turley that he was free to leave.Â Thus, we find that TurleyÂs statement was the product of a noncustodial interview.Â See Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010) (interrogation of over five hours not custodial where defendant came to station voluntarily and told he was free to leave); Dancy, 728 S.W.2d at 778Â79 (thirty-eight-minute interview not custodial interrogation even where suspect accompanied officers to police station and gave hair samples). Â As such, the trial court was not required to enter a written order finding TurleyÂs statements to be voluntary.^{^[9]}Â

Â Â Â Â Â Â Â Â Â Â Â TurleyÂs points of error with regard to his confession are overruled.Â

IV. Â Â Â Â Turley Was Not Denied Effective Assistance of Counsel

Â Â Â Â Â Â Â Â Â Â Â Turley alleges that his counsel rendered ineffective assistance.Â In analyzing this point of error, we start with the rule that any allegation of ineffectiveness must be firmly founded in the record.Â Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.ÂTexarkana 2002), affÂd, 106 S.W.3d 103 (Tex. Crim. App. 2003); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).Â From the record received by this Court, which does not include counselÂs reasons for the alleged failures, Turley bears the burden of proving that counsel was ineffective by a preponderance of the evidence.Â Goodspeed, 187 S.W.3d at 392; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984); Thompson, 9 S.W.3d at 813.

Â Â Â Â Â Â Â Â Â Â Â We apply the two-pronged Strickland test handed down by the United States Supreme Court to determine whether Turley received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984).Â First, Turley must show counselÂs performance fell below an objective standard of reasonableness when considering prevailing professional norms.Â Id. at 687Â88.Â There is a strong presumption that counselÂs conduct fell within the wide range of reasonable professional assistance and that the challenged action could be considered sound trial strategy.Â Id. at 689; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).Â Therefore, we will not second guess the strategy of TurleyÂs counsel at trial through hindsight.Â Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.ÂTexarkana 2005, pet. refÂd).

Â Â Â Â Â Â Â Â Â Â Â Without analysis, Turley provides the following laundry list of alleged errors committed by counsel:

i.Â Â Â Â Â Â Â Â Â Failing to call witnesses for the Defendant at the guilt/innocence phase of trial, although witnesses had been subpoenaed;

ii.Â Â Â Â Â Â Failing to call witnesses for the Defendant at the punishment phase of the trial;

iii. Â Â Â Â Â Â Failing to seek to admit the video interrogation of the child witness;

iv. Â Â Â Â Â Â Failing to lodge proper objections to the competency of the child witness Â to testify;

v. Â Â Â Â Â Â Â Failing to file proper pre-trial motions;

vi. Â Â Â Â Â Â Failing to file a motion to dismiss the indictment;

vii.Â Â Â Â Â Â Failing to hire a defense expert;

viii. Â Â Â Â Failing to properly cross-examine witnesses; and

ix. Â Â Â Â Â Â Filing a Notice of Appeal and Motion to Withdraw as Counsel Â Â Â Â Â simultaneously, without first filing a Motion for New Trial.

In this case, since the record is silent as to why counsel failed to make an objection or take certain actions, we will assume it was due to any strategic motivation that can be imagined. Â Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Fox v. State, 175 S.W.3d 475, 485Â86 (Tex. App.ÂTexarkana 2005, pet. refÂd).Â There is no indication that calling any witnesses for Turley during either the guilt/innocence or punishment phase would be helpful to Turley.Â The decision not to call witnesses could have been a strategic choice.Â We cannot fathom, absent argument to the contrary, why TurleyÂs counsel would prefer admission of D.S.Âs video recorded interview; the interview itself might have elicited sympathy from the jury and would certainly have been redundant of the same story the child gave from the stand, further impressing it on the minds of the jurors.Â The finding that D.S. was competent was made in front of the jury.Â TurleyÂs counsel could have decided not to object because he believed D.S. was competent and reasoned that an objection in front of the jury might give the appearance Turley was attempting to hide key evidence and/or that D.S.Âs credibility might be bolstered if the trial court overruled his objection.Â Next, Turley does not elaborate on what pretrial motions should have been filed, what basis would support a motion to dismiss the indictment, and why he would be entitled to a defense expert.Â The record demonstrates that counsel adequately cross-examined each of the StateÂs witnesses, and there is no indication as to why his examination was inadequate.Â Finally, the trial court imposed its sentence on February 23, 2010, trial counsel withdrew on March 18, 2010, and appellate counsel was appointed on the same day.Â Thus, appellate counsel was free to file a motion for new trial.Â See Tex. R. App. P. 21.4.Â Trial counsel might have been aware of the timing of the appointment and could have decided to let appellate counsel (presumably skilled in appellate work and cognizant of the steps which would further the chances for a successful appeal) file a motion for new trial if it was deemed by appellate counsel to be advisable or necessary.Â In addition, TurleyÂs brief fails to address what meritorious grounds would be available to support the motion for new trial.Â We find that Turley failed to establish the first Strickland prong.Â Failure to satisfy either prong of the Strickland test is fatal. Â Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006).Â

Â Â Â Â Â Â Â Â Â Â Â Nevertheless, to meet the second prong of the Strickland test, Turley was required to show that the deficient performance damaged his defense such that there was a reasonable probability^{^[10]} that the result of the proceeding would have been different. Â Strickland, 466 U.S. at 687; Tong, 25 S.W.3d at 712.Â Turley fails to adequately brief this second Strickland prong.Â Given the evidence which we found sufficient to support his conviction, we conclude Turley did not meet his burden to prove, by a reasonable probability, that the result of the proceeding would have been different.Â

Â Â Â Â Â Â Â Â Â Â Â We overrule TurleyÂs last point of error.Â

V.Â Â Â Â Â Â Â Conclusion

Â Â Â Â Â Â Â Â Â Â Â We affirm the trial courtÂs judgment.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Bailey C. Moseley

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Date Submitted:Â Â Â Â Â Â Â Â Â August 13, 2010

Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â September 1, 2010

Do Not Publish

^{^[1]}Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.Â See Tex. GovÂt Code Ann. Â§Â 73.001 (Vernon 2005).Â We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.Â See Tex. R. App. P. 41.3.

^{^[2]}D.S.Âs mother also testified about several other incidents of sexual abuse in addition to D.S.Âs outcry that Â[Turley] also had her suck his private, made her lick him.ÂÂ We may also consider TurleyÂs confession when determining sufficiency of the evidence.Â The written confession is addressed in the third point of error.Â

^{^[3]}No motion for new trial was filed in this case.Â

^{^[4]}Miranda v. Arizona, 384 U.S. 436 (1966).

^{^[5]}Nowhere does Turley argue that his waiver of rights was unknowing and unintelligent.Â The mere fact that he could not read or write does not make his oral statement involuntary where it was reduced to writing, read back to him, and agreed to by him after acknowledgement that he understood and waived his rights.Â

^{^[6]}Article 38.22 of the Texas Code of Criminal Procedure Ârequires a slightly more elaborate set of warnings than Miranda.Â Â Wilkerson v. State, 173 S.W.3d 521, 527 n.14 (Tex. Crim. App. 2005).

^{^[7]}TurleyÂs point of error alleges that the trial court erred in failing to determine whether the interrogation was custodial or noncustodial.Â Because the statement was admitted without entry of an order, we imply the finding that the statement was noncustodial.Â Had the court found the interrogation was custodial, it would be required to enter a written order complying with the mandatory requirements of Article 38.22 Âregardless of whether or not defendant objects to failure to do so.ÂÂ Lacca v. State, 696 S.W.2d 645 (Tex. App.ÂHouston [14th Dist.] 1985, pet. refÂd) (remedy of trial courtÂs error is abatement of appeal and order to trial court to make required findings).Â

^{^[8]}ÂMere recitation of such [Miranda] warnings is more indicative of proper cautiousness than it is of the officerÂs intent to arrest.Â Â Dancy v. State, 728 S.W.2d 772, 777 (Tex. Crim. App. 1987).

^{^[9]}Again, we note that Turley does not allege on appeal that the statement was made involuntarily.Â

^{^[10]}A reasonable probability Âis a probability sufficient to undermine confidence in the outcome.ÂÂ Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).Â

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