Opinion issued May 20, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00538-CR ——————————— RICARDO ROMANO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 6 Harris County, Texas Trial Court Case No. 2167075
MEMORANDUM OPINION
Ricardo Romano was charged by information with the misdemeanor offense
of indecent exposure. See TEX. PENAL CODE § 21.08. The information alleged that
Romano “unlawfully, expose[d] his genitals to [police officer] R. Gardiner with the
intent to arouse and gratify [Romano’s] sexual desire . . . and [Romano] was reckless about whether another person was present who would be offended and
alarmed by the act, to-wit: [Romano] masturbated in a park, a public place.”
Romano waived his right to a jury. The trial court found Romano guilty of
the charged offense of indecent exposure and sentenced him to three days in jail
and assessed a $1,000 fine. Because he had previously been convicted of indecent
exposure, Romano was ordered to register as a sex offender for ten years. See TEX.
CODE CRIM. PROC. arts. 62.001(5)(F), 62.101(b).
On appeal, Romano raised three issues, asserting: (1) the evidence was not
sufficient to show either that he had exposed his genitals with intent to arouse or
gratify the sexual desire of any person or that he had acted recklessly; (2) the trial
court erred in admitting Gardiner’s testimony that he did not believe Romano’s
claim that Romano had exposed his penis to urinate, not to masturbate; and (3)
Romano received ineffective assistance of counsel during the guilt-innocence
phase of trial.
On original submission, we reversed the trial court’s judgment and rendered
a judgment of acquittal after sustaining Romano’s challenge to the sufficiency of
the evidence on the basis that the evidence was not sufficient to show, beyond a
reasonable doubt, that Romano had acted recklessly. Romano v. State, 01-18-
00538-CR, 2019 WL 4936040, at *6 (Tex. App.—Houston [1st Dist.] Oct. 8,
2019) (mem. op., not designated for publication), rev’d, 610 S.W.3d 30, 31 (Tex.
2 Crim. App. 2020) (Romano I). The Court of Criminal Appeals granted the State’s
petition for discretionary review and held that the evidence was sufficient to
support the recklessness element. Romano v. State, 610 S.W.3d 30, 36 (Tex. Crim.
App. 2020) (Romano II). The court reversed our judgment and remanded the case
to us to consider Romano’s remaining issues. See id.
After considering Romano’s remaining issues, we affirm.
Background
At trial, the State offered the testimony of Sergeant R. Gardiner, the officer
with the Houston Police Department who arrested Romano. The State also offered
video from Gardiner’s body camera related to events surrounding the arrest.
Gardiner testified that, on August 23, 2017, he was working as a mounted
patrol officer in an area of Memorial Park known as the Picnic Loop. At
approximately 10:30 a.m., he positioned himself and his horse in a wooded area
behind trees where he was “mainly concealed” from view. Through an opening in
the trees, Gardiner could see a nearby empty parking lot, picnic tables, and a bike
trail. When asked if there were other people in the area, Gardiner testified, “There
were some cars passing by and some people on bicycles, yes.” Gardiner stated that
he was watching “for certain crimes, I would look for mainly cars circling the area
and cars parking and things of that nature in the back of the park.”
3 Around noon, Romano’s car turned off the park road into the parking lot.
Gardiner saw Romano “park near where I was.” Romano caught his attention
because “it was suspicious” as “there’s very few reasons to park back there.” The
video from Gardiner’s body camera shows Romano’s car entering the parking lot,
but branches and leaves obstruct the camera’s view of the car once it is parked.
Gardiner testified that he observed Romano “get out of his car and walk
around to the back of his car.” Gardiner could see the “side” of Romano. Gardiner
stated that he saw Romano pull the top of his “jogging shorts” down with one hand
and “start masturbating” with the other hand. By “masturbating,” Gardiner testified
that he meant he saw Romano “stroking his penis with his hand.”
On the video, Gardiner can be heard radioing his partner, stating, “[C]ome
this way, he’s jacking off.” Gardiner rode his horse out of the wooded area and
over to Romano to arrest him. Gardiner’s partner also rode his horse over to the
scene. When questioned, Romano denied masturbating, claiming that he had been
“trying to use the bathroom.”
At trial, Romano testified that he had stopped in the parking lot to review
some business papers before heading downtown. He had needed to urinate, so he
had gotten out of his car and pulled out his penis. Romano claimed that he did not
urinate because Gardiner emerged from the trees on his horse before he had a
chance to urinate.
4 Regarding his need to urinate, Romano told the officers that he had drunk a
lot of water from a large water jug found inside his car. Gardiner noted that he did
not see any urine on the ground and that there was a public restroom across the
street from the parking lot. When asked why he did not use the public restroom,
Romano said that he did not like those restrooms.
After the officers approached Romano, Gardiner’s body camera continued to
record the officers’ interaction with Romano for approximately 38 minutes. The
video shows cars, pedestrians, and a bicyclist passing by. During that time, the
police officers obtained Romano’s personal information and waited for a patrol
unit to transport Romano to jail. At no point did Romano ask to use the restroom.
Romano was charged by information with the offense of indecent exposure.
The information alleged that Romano had “unlawfully, expose[d] his genitals to R.
Gardiner with the intent to arouse and gratify [Romano’s] sexual desire . . . and
[Romano] was reckless about whether another person was present who would be
offended and alarmed by the act, to-wit: [Romano] masturbated in a park, a public
place.” See TEX. PENAL CODE § 21.08(a). The information also contained the
following extraneous-offense allegation: “Before the commission of the offense
alleged above, on February 25, 1999, in Cause No. 9810010, in the County
Criminal Court at Law No. 8 of Harris County, Texas, [Romano] was convicted of
the misdemeanor offense of Indecent Exposure.”
5 The case was tried to the bench. At the end of the guilt-innocence phase, the
trial court found Romano guilty of the charged offense of indecent exposure.
During the punishment phase, the court found the enhancement allegation to be
true. The court sentenced Romano to three days in jail and assessed a $1,000 fine.
Because this was his second violation of the indecent-exposure statute, the trial
court ordered Romano to register as a sex offender for ten years. See TEX. CODE
CRIM. PROC. arts. 62.001(5)(F), 62.101(b). Romano did not file a motion for new
trial.
Romano appealed, raising three issues. In his first issue, Romano challenged
the sufficiency of the evidence to support the judgment of conviction, raising two
grounds. Romano did not dispute that he exposed his genitals, but he claimed that
the evidence was insufficient to establish the required element that he exposed his
genitals with intent to arouse or gratify the sexual desire of any person.
Specifically, he claimed that the evidence was not sufficient to show that he
exposed his genitals to masturbate rather than to urinate. Romano also asserted that
the evidence was insufficient to establish the element that he was reckless about
whether another person was present who would be offended or alarmed by the act.
On original submission, we reversed the judgment of conviction and
rendered a judgment of acquittal based on our holding that the evidence was
insufficient to show, beyond a reasonable doubt, that Romano had been reckless
6 about whether another person was present who would be offended or alarmed by
the exposure of his genitals. Romano I, 2019 WL 4936040, at *6. After granting
review, the Court of Criminal Appeals held that the evidence was sufficient to
support a finding beyond a reasonable doubt that Romano had acted recklessly.
Romano II, 610 S.W.3d at 36. The court held that we had erred by holding
otherwise. Id. The court reversed our judgment of acquittal and remanded the case
to us to consider Romano’s remaining issues. Id.
Sufficiency of the Evidence
We begin by considering Romano’s remaining argument in his first issue:
that the evidence was insufficient to show that he exposed his genitals with the
intent to arouse or gratify the sexual desire of any person.
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
enunciated in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Winfrey v. State,
393 S.W.3d 763, 768 (Tex. Crim. App. 2013). Pursuant to the Jackson standard,
we “consider all the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable inferences therefrom, a
rational juror could have found the essential elements of the crime beyond a
reasonable doubt.” Alfaro-Jimenez v. State, 577 S.W.3d 240, 243–44 (Tex. Crim.
App. 2019) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007));
7 see Jackson, 443 U.S. at 319. We can hold evidence to be insufficient under the
Jackson standard when (1) the record contains no evidence, or merely a
“modicum” of evidence, probative of an element of the offense, or (2) the evidence
conclusively establishes a reasonable doubt. Britain v. State, 412 S.W.3d 518, 520
(Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 320).
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An
appellate court presumes that the factfinder resolved any conflicts in the evidence
in favor of the verdict and defers to that resolution, provided that the resolution is
rational. See Jackson, 443 U.S. at 326.
In our review of the record, direct and circumstantial evidence are treated
equally; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Hooper, 214 S.W.3d at 13. Finally, “[e]ach fact need not point
directly and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the conviction.”
Id.
8 B. Analysis
A person commits the offense of indecent exposure when he “exposes his
anus or any part of his genitals with intent to arouse or gratify the sexual desire of
any person, and he is reckless about whether another is present who will be
offended or alarmed by his act.” TEX. PENAL CODE § 21.08(a). The requisite
specific intent to arouse or gratify the sexual desire of any person can be inferred
from an accused’s conduct, remarks, and all surrounding circumstances. See
Turner v. State, 600 S.W.2d 927, 929 (Tex. Crim. App. [Panel Op.] 1980); Cate v.
State, 124 S.W.3d 922, 931 (Tex. App.—Amarillo 2004, pet. ref’d). Here, the State
asserts that Gardiner’s testimony that he saw Romano masturbating—that is, he
saw Romano “stroking his penis with his hand”—was sufficient to establish,
beyond a reasonable doubt, that Romano exposed himself with the intent to arouse
or gratify his own sexual desire.
In his brief, Romano states that, “[i]f he exposed his penis to urinate, he did
not intend to arouse or gratify the sexual desire of any person. However, if he
exposed his genitals to masturbate, he intended to arouse or gratify someone’s
sexual desire.” Romano asserts that “[t]he resolution of this element of the offense
turned on whether the evidence was sufficient to establish that he was
masturbating.” Romano claims that the evidence was not sufficient to establish that
fact.
9 Romano acknowledges that Gardiner testified that he saw Romano
masturbating. Romano attacks the credibility of Gardiner’s testimony by pointing
to evidence that Gardiner remarked, at the scene, that he saw Romano “messing
with” his penis and that it “looked like” Romano was masturbating. Romano
contends that Gardiner was too far away to discern whether he was urinating or
masturbating and claims that Gardiner’s “sight line. . . was obscured by tree
branches and bushes.” Romano posits that Gardiner’s remarks at the scene that
Romano was “‘messing with’ his penis and that it ‘looked like’ he was
masturbating are equally consistent with removing his penis from his shorts and
holding it to urinate.”
Romano also claims that the video from Gardiner’s body camera “rebuts”
Gardiner’s testimony. He claims that the video “shows that Gardiner was too far
away from [Romano] to see what he was doing and that Gardiner could not have
seen that [Romano] was masturbating, even if he was.” Romano asserts that the
video shows that “it was impossible for [Gardiner] to determine that [Romano] was
masturbating” because “the tree branches and bushes obscured Gardiner’s view.”
Romano concludes, “[w]ith the benefit of the video, the Court cannot credit
Gardiner’s testimony over what the video actually depicts.”
We note that Romano’s analysis fails to consider the entirety of the
evidence, and it does not properly view the evidence in the light most favorable to
10 the verdict. At trial, Gardiner testified that he was “sure” that Romano was
masturbating. He stated that he saw Romano pull the top of his jogging shorts
down with one hand and “start masturbating” with the other hand. Gardiner
testified, “I saw that he was not using the bathroom, that he was masturbating.”
Gardiner explained that by stating that he saw Romano masturbating, he meant that
he saw Romano “stroking his penis with his hand.”
Gardiner also testified that it was a clear day, and he confirmed that, even
though he was concealed behind trees, he had “a good vantage point and line of
sight” of Romano because “there was an opening in the wood line where I was
looking.” The trial court, as the factfinder, could have reasonably inferred that the
video did not necessarily rebut Gardiner’s testimony because the body camera did
not record from Gardiner’s eye level. In other words, the fact that the camera’s
view was obscured by branches did not necessarily mean that Gardiner’s view was
likewise obscured. And, based on what is depicted in the video and the video’s
quality, it was the trial court’s prerogative to weigh the evidence and to determine
whether Gardiner was close enough to Romano to see him engage in the act of
masturbation.
In addition, other evidence supported a finding that Romano did not expose
his penis to urinate. Gardiner testified that he did not see urine on the ground in the
parking lot. Romano acknowledged that he had not urinated when he saw Gardiner
11 ride his horse out of the wooded area. The evidence also showed that there was a
public restroom across the street from where Romano parked his car. And, during
the final 38 minutes of the video, Romano did not ask to use the restroom despite
indicating to the officers that he had been drinking a lot of water from a large jug
of water in his car.
In our review, we are mindful that it is the exclusive role of the factfinder
“to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences[.]” Buentello v. State, 512 S.W.3d 508, 516 (Tex. App.—
Houston [1st Dist.] 2016, pet. ref’d) (quoting Jackson, 443 U.S. at 319). We “may
not re-evaluate the weight and credibility of the record evidence and thereby
substitute our judgment for that of the fact-finder.” Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999). Even contradictory evidence in the record will
not diminish the sufficiency of evidence that otherwise supports a factfinder’s
verdict. Buentello, 512 S.W.3d at 516. By returning a guilty verdict, we must infer
that the trial court believed Gardiner’s testimony that he saw Romano
masturbating. We defer to that determination. See Jackson, 443 U.S. at 318–19.
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational factfinder could have found, beyond a reasonable doubt, that
Romano exposed his genitals with the intent to arouse or gratify his sexual desire.
See id.; see also TEX. PENAL CODE § 21.08(a) (providing elements of offense).
12 Accordingly, we hold that the evidence was sufficient to support the judgment of
conviction.
We overrule Romano’s remaining ground raised in his first issue.
Evidentiary Challenge
In his second issue, Romano contends that the trial court erred in admitting
Gardiner’s testimony that Gardiner did not believe Romano’s claim at the scene
that he was urinating and not masturbating.
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Colone v. State, 573 S.W.3d 249, 263–64 (Tex. Crim. App. 2019). A
trial court “abuses its discretion when it acts without reference to any guiding rules
and principles or acts arbitrarily or unreasonably.” Rhomer v. State, 569 S.W.3d
664, 669 (Tex. Crim. App. 2019); see Martinez v. State, 327 S.W.3d 727, 736
(Tex. Crim. App. 2010) (stating that trial court does not abuse its discretion unless
its determination “lies outside the zone of reasonable disagreement”). We uphold
the trial court’s ruling if it is reasonably supported by the record and correct under
any theory of law applicable to the case. See Willover v. State, 70 S.W.3d 841, 845
(Tex. Crim. App. 2002).
13 B. Analysis
During direct examination, the State questioned Officer Gardiner regarding
his arrest of Romano:
Q. Did you tell him what he was under arrest for?
A. Yes; Indecent Exposure.
Q. How did the defendant respond to this news?
A. He denied it and said that he was trying to use the bathroom.
Q. Did you believe this?
A. No.
[Defense counsel]: Objection, Your Honor, to his belief.
THE COURT: Overruled.
Q. [By the prosecutor] Why didn’t you believe this?
A. Because I saw him; and I saw that he was not using the bathroom, that he was masturbating.
Q. Were there any other clues to indicate that he was not using the restroom?
A. There was no urine on the ground, and there was also a restroom directly across the street from where we were at.
Q. So, what substance was the ground composed of? You said this was a parking lot. Was it sand? Can you just give me a description?
A. It was a concrete, like a gravel-type of—well, not gravel but a concrete parking lot.
Q. Would you have been able to see any liquid on the ground?
14 A. Yes.
Romano contends that, because “[a] witness may not give an opinion
regarding the truth or falsity of another witness’s testimony,” the trial court abused
its discretion in admitting Gardiner’s testimony that he did not believe Romano’s
claim that he was urinating and not masturbating. See Blackwell v. State, 193
S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“It is generally
improper for a witness to offer a direct opinion as to the truthfulness of another
witness and such opinion is therefore inadmissible evidence.”). Romano also cites
Rule of Evidence 702, which provides, in part, that “[a] witness who is qualified as
an expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if the expert’s . . . specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue.” TEX. R.
EVID. 702. Romano contends that “[p]olice opinion testimony that [Romano] was
not telling the truth, and by inference that the police believed that he committed
indecent exposure, was inadmissible under Rule of Evidence 702.” Romano further
asserts that “Gardiner was not qualified as an expert on masturbation, urination, or
determining whether a person is truthful. He could not properly give an expert
opinion that [Romano] was untruthful when he denied masturbating and said that
he was urinating.”
15 The State correctly counters that Rule 702 does not apply because Gardiner,
although testifying as a police officer, was not testifying as an expert. Instead,
Gardiner was testifying about his perception of Romano’s conduct at the scene.
It is well established that “[b]oth lay and expert witnesses can offer opinion
testimony.” Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002). Under
Rule of Evidence 701, a lay witness can offer opinion testimony if his opinions or
inferences are rationally based on his perceptions and helpful to the clear
understanding of testimony or the determination of a fact in issue. Id. (citing TEX.
R. EVID. 701). Even a witness with specialized knowledge or experience may offer
lay opinion testimony if he testifies regarding events that he personally perceived.
Id. at 536. “Thus, although police officers have training and experience, they are
not precluded from offering lay testimony regarding events which they have
personally observed.” Id. Permissible testimony, drawn from the witness’s own
observations or experiences, can include opinions, beliefs, or inferences. Id. at 535.
Here, Gardiner testified that he witnessed Romano masturbating, that is, he
witnessed Romano stroking his penis. Romano also testified that, after he
approached Romano, he did not see urine on the ground. And he testified that there
was a public restroom across the street. Gardiner’s testimony that he did not
believe Romano’s claim that he exposed his penis to urinate was a permissible
belief drawn from his observation of Romano in the act of masturbation and the
16 surrounding circumstances. See James v. State, 335 S.W.3d 719, 725 (Tex. App.—
Fort Worth 2011, no pet.) (holding officer’s testimony—that defendant’s claim of
self-defense did not “make any sense” based on his observations of defendant’s
lack of injury and complainant’s injuries—was admissible under Rule 701). The
trial court could have reasonably concluded that Gardiner’s complained-of
testimony was admissible under Rule 701 because it was rationally based on his
perception of the act involved in the charged offense and was helpful to “the
determination of a fact in issue.” See TEX. R. EVID. 701; James, 335 S.W.3d at 725.
Even if the trial court abused its discretion by permitting Gardiner to testify
that he did not believe Romano’s claim that he exposed his penis to urinate, the
error was harmless. “The erroneous admission of evidence is non-constitutional
error.” Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018). Non-
constitutional errors are harmful, and thus require reversal, only if they affect an
appellant’s substantial rights. TEX. R. APP. PROC. 44.2(b). This means that an error
is reversible only when it has a substantial and injurious effect or influence in
determining the factfinder’s verdict. Gonzalez, 544 S.W.3d at 373. If we have a
fair assurance from an examination of the record, as a whole, that the error did not
influence the factfinder, or had but a slight effect, we will not overturn the
conviction. Id. In making this determination, we consider (1) the character of the
alleged error and how it might be considered in connection with other evidence;
17 (2) the nature of the evidence supporting the verdict; (3) the existence and degree
of additional evidence indicating guilt; and (4) whether the State emphasized the
complained of error. Id.
We have reviewed the entire record. Even in the absence of Gardiner’s
complained-of testimony, the trial court, as the factfinder, could have reasonably
concluded that Romano exposed his penis to masturbate and not to urinate. As
discussed, Gardiner testified that he was “sure” that he saw Romano masturbating.
He also testified that there was a public restroom nearby and that he did not see
urine on the ground near Romano. In addition, the video shows that after Gardiner
initiated Romano’s arrest, Romano did not ask to use the restroom for the
remaining 38 minutes that he was at the scene, despite indicating to the officers
that he had been drinking a lot of water from a large jug in his car. Also, the
complained-of testimony aside, the trial court could have reasonably assumed that
Gardiner did not believe Romano’s claim that he exposed his penis to urinate,
given that Gardiner arrested Romano for the offense of indecent exposure. See
Brown v. State, 580 S.W.3d 755, 767 (Tex. App.—Houston [14th Dist.] 2019, pet.
ref’d) (holding that improper admission of investigating officer’s opinion that
defendant was not credible was harmless error, in part, because officer called
district attorney’s office to accept charges against defendant after investigation and
“the jury could reasonably assume that [the investigating officer] did not find [the
18 defendant] credible and believed he was guilty of sexual assault”). Finally, we note
that the State did not emphasize the complained-of testimony.
Having reviewed the entire record, we have a fair assurance that the
admission of Gardiner’s testimony that he did not believe Romano’s claim that he
exposed himself to urinate had but a slight effect on the trial court’s verdict;
therefore, we do not find that Romano’s substantial rights were affected. We hold
that any error in admitting the complained-of testimony was harmless.
We overrule Romano’s second issue.
Ineffective Assistance of Counsel
In his third issue, Romano contends that his trial counsel rendered
ineffective assistance during the guilt-innocence phase of trial.
A. Legal Principles
To prevail on a claim of ineffective assistance of counsel, an appellant must
show the following: (1) counsel’s performance fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. In reviewing counsel’s performance, we look to the totality of the
representation to determine the effectiveness of counsel, indulging a strong
19 presumption that counsel’s performance falls within the wide range of reasonable
professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,
482–83 (Tex. Crim. App. 2006).
Romano has the burden to establish both prongs by a preponderance of the
evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An
appellant’s failure to satisfy one prong of the Strickland test negates a court’s need
to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.
App. 2009).
B. Analysis
During the guilt-innocence phase of trial, testimony was elicited about
Romano’s 1999 conviction for indecent exposure. During cross-examination of
Gardiner, defense counsel attempted to show the reason why Romano had not
chosen to use the nearby public restroom but had instead chosen to urinate in the
parking lot. With respect to the public restroom, Gardiner testified that Romano
told him at the scene that he “didn’t want to go over there [to the public
restroom],” but Gardiner did not remember whether Romano had stated the reason
why he did not want to use the public restroom. Defense counsel followed-up by
asking Gardiner if he knew that Romano had been “previously arrested at a
bathroom in 1999,” and Gardiner responded affirmatively.
20 On re-direct, the State asked Gardiner whether he knew, at the time he
arrested Romano, that Romano had a prior conviction for indecent exposure.
Gardiner answered that he did not know at that time but had learned later that day
about Romano’s prior indecent-exposure conviction.
Romano testified on cross-examination that his prior conviction was the
reason why he had not wanted to use the public restroom to urinate and had instead
chosen to urinate in the parking lot. The State asked Romano, “So, why were you
wanting [to] avoid the bathroom?” Romano had earlier indicated on direct
examination that he had seen a “news clip” about sexual activity in the Memorial
Park restrooms. He responded to the State’s question about the restroom as
follows: “Well, prior conviction. I just—I wanted nothing to do with that kind of
bathroom.”
On appeal, Romano asserts that his trial counsel’s performance was deficient
because counsel “mentioned, elicited, and failed to object to testimony” about
Romano’s 1999 conviction for indecent exposure, which, he claims, was
inadmissible during the guilt-innocence phase of trial under Rule of Evidence 609.1
1 A second violation of the indecent-exposure statute requires a defendant to register as a sex offender for 10 years. See TEX. CODE CRIM. PROC. arts. 62.001(5)(F), 62.101(b). As mentioned, the information charging Romano with the instant offense contained an enhancement paragraph alleging that Romano had been convicted of indecent exposure in 1999. During the punishment phase, evidence of Romano’s 1999 conviction for indecent exposure, including the judgment of conviction, was admitted for the purpose of determining whether Romano would 21 See TEX. R. EVID. 609 (governing admissibility of prior criminal convictions for
impeachment purposes). Even if we assume, without deciding, that evidence of
Romano’s prior conviction was inadmissible, we cannot conclude, on this record,
that counsel’s performance was deficient.
Ordinarily, counsel should have an opportunity to explain his actions before
being held ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003). Here, because no motion for new trial was filed, trial counsel did not have
an opportunity to explain his actions relating to the admission of evidence of
Romano’s prior conviction.
To satisfy the first prong of Strickland on a silent record, it must be apparent
“that counsel’s performance fell below an objective standard of reasonableness as a
matter of law, and that no reasonable trial strategy could justify trial counsel’s acts
or omissions, regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at
143; see Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (stating
that, to be deficient, attorney’s conduct must “so outrageous that no competent
attorney would have engaged in it”). This is not such a case. Failure to object to
be required to register as a sex offender. After hearing evidence of the prior conviction during the punishment phase, the trial court found the enhancement allegation to be true and ordered Romano to register as a sex offender for 10 years. Romano makes no complaint about the admission of the evidence regarding his 1999 conviction during the punishment phase. He complains only of his trial counsel’s performance with respect to the admission of evidence of his prior conviction during the guilt-innocence phase. 22 inadmissible extraneous-offense evidence may be sound trial strategy. See
Williams v. State, 417 S.W.3d 162, 183–84 (Tex. App.—Houston [1st Dist.] 2013,
pet. ref’d) (recognizing that failure to object to extraneous-offense evidence may
constitute “sound and plausible trial strategy”); Heiman v. State, 923 S.W.2d 622,
626 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (holding it was within scope
of plausible trial strategy that trial counsel did not object to extraneous offense
because record showed trial counsel’s strategy was to use extraneous offense to
undermine complainant’s credibility).
Here, the record suggests that admission of the evidence related to
Romano’s prior conviction was part of defense counsel’s trial strategy. The
evidence showed that a restroom was available across the street from the parking
lot where Romano exposed himself, casting doubt on Romano’s claim that he
exposed his penis because he needed to urinate. The evidence also lent support to
Gardiner’s testimony that Romano exposed his penis to masturbate.
The record suggests that defense counsel’s trial strategy regarding the
admission of the extraneous-offense evidence was to neutralize the effect of the
availability of the public restroom by showing that Romano had an aversion to
public restrooms in Memorial Park because he associated them with his prior
conviction for indecent exposure. Accordingly, it is possible that trial counsel’s
decisions relating to the complained-of testimony was part of a reasonable trial
23 strategy. See Ex parte Ellis, 233 S.W.3d 324, 335–36 (Tex. Crim. App. 2007)
(concluding that extraneous-crimes testimony “served a strategic purpose” and was
based on “sound trial strategy” even though “risky”); Cedillos v. State, No. 08-14-
00180-CR, 2018 WL 4113169, at *7 (Tex. App.—El Paso Aug. 29, 2018, pet.
ref’d) (not designated for publication) (holding that admission of evidence of
extraneous offense by defense was possible trial strategy “to get in front of” State’s
evidence about extraneous offense in order to allow appellant to present “his side
of the story first” and to show jury appellant “was not hiding anything”); Riggs v.
State, No. 05-16-01503-CR, 2017 WL 5167653, at *3–*4 (Tex. App.—Dallas
Nov. 8, 2017, no pet.) (mem. op., not designated for publication) (holding that
appellant failed to demonstrate that his counsel’s representation fell below
objective standard of reasonableness in eliciting testimony from appellant about his
criminal history because testimony was important to his defensive theory); see also
Barfield v. State, 464 S.W.3d 67, 74 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d) (holding ineffective assistance not shown where defense counsel offered
evidence of appellant’s invocation of right to counsel “to support two of the
defense’s main theories”). Based on the record, we cannot conclude that the
suggested trial strategy was so outrageous that no competent attorney would have
engaged in it, particularly when, as here, trial counsel was not provided a chance to
24 explain his conduct. See Goodspeed, 187 S.W.3d at 392; Lopez, 565 S.W.3d at
887.
We conclude that Romano has not demonstrated that his trial counsel’s
performance fell below an objective standard of reasonableness; thus, he has not
satisfied the first Strickland prong. We hold that Romano has failed to show, by a
preponderance of the evidence, that he received ineffective assistance of counsel at
trial. See Strickland, 466 U.S. at 687–88, 694.
We overrule Romano’s third issue.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).