Frederick Graves v. State

Opinion issued October 14, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00142-CR

FREDERICK SIMON GRAVES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 900503

O P I N I O N

A jury convicted Frederick Simon Graves of aggravated sexual assault of a

child, and assessed punishment at eight years’ confinement and a $10,000 fine. On

appeal, Graves asserts the following six issues : (1) the trial court erred in admitting

the complainant child’s videotaped interview; (2) the trial court erred in overruling

Graves’s objection to the State’s jury argument referring to “rabbit trails”; (3) the trial

court erred in overruling Graves’s objection to the State’s jury argument referring to

extraneous offenses; (4) the trial court erred in not sua sponte including a reasonable-doubt jury instruction for evidence of extraneous offenses admitted during the

guilt/innocence phase; (5) the trial court erred in not sua sponte including a

reasonable-doubt jury instruction for extraneous offenses during the punishment

phase; and (6) trial counsel rendered ineffective assistance. We affirm.

Facts

T.N., the complainant in this case, is an 11-year-old boy. Graves worked for

T.N.’s father, R.N., at a car dealership. Graves became a family friend and baby-sat

T.N. At trial, T.N. testified that Graves had fondled his penis on two separate

occasions. On the first occasion, Graves and T.N. were alone at R.N.’s house

watching a movie. While the two were lying underneath a blanket, Graves touched

T.N.’s penis. On the second occasion, Graves touched T.N.’s penis “on top” of

T.N.’s clothes while the two were alone in a car. Sometime later, T.N. and Graves

went to buy a digital camera.

That day, while the two were alone at R.N.’s house

lying under a blanket in T.N.’s room , Graves performed oral sex on T.N. On

Christmas Eve 2001, T.N. reported to his father that Graves had assaulted him.

A forensic interviewer with the Children’s Assessment Center interviewed T.N.

The trial court admitted a videotape of this interview into evidence. Both the

videotape and T.N.’s testimony include descriptions of Graves performing oral sex

on T.N. more than once on the day they bought the digital camera . At trial, T.N.

testified that it happened twice that day , while o n the videotape, T.N. stated that it

happened three times that day. On the videotape, but not during trial, T.N. described

that Graves had commented on T.N.’s physical appearance. Both at trial and on the

videotape, T.N. described that Graves moved T.N. “up and down for like a little bit

of time.” Both at trial and on the videotape, T.N. described the two prior fondling

instances that took place at R.N.’s house and in the car.

Graves did not testify during the guilt/innocence phase. The defense called

other teenage boys who had become friends with Graves while racing motor bikes at

motorcross events. Billy Perran, a 17-year-old boy, testified on Graves’s behalf,

explaining that Graves is like a “father figure” to him. Billy explained that Graves

was never sexually inappropriate with him, although Graves had “many chances.”

During the punishment phase, the State introduced evidence of Graves’s prior

theft conviction. During closing argument, the State relied on the prior fondling acts

committed on T.N. to argue that the jury should enhance punishment.

Admission of the Videotaped Statement In his first issue, Graves contends that the trial court erred in admitting T.N.’s

videotaped interview with a Children’s Assessment Center forensic interviewer

detailing his sexual contact with Graves. In addition to the sexual assault, during

direct examination, T.N. testified that Graves fondled him on two previous occasions:

(1) one evening at R.N.’s house while Graves visited and R.N. slept, and (2) one day

while the two were alone in a car. Sometime later, Graves performed oral sex on T.N.

at R.N.’s house while the two were alone. T.N. testified that he was lying under a

blanket watching television during the first fondling offense and the oral sex offense.

During cross-examination, defense counsel impeached T.N. as follows:

Q.And at one point, isn’t it true that Gabby [the interviewer at the

Child’s Assessment Center] became concerned because you said

this had happened and nobody had removed your clothes. And

she said: How did your clothes get off? And you backed up and

said Fred took them off; is that right?

A.I – I don’t remember saying that. I just remember saying Fred

took them off. I’m not real sure.

Q.In any case, you didn’t mention anything about this occasion that

you’re telling us now, this earlier occasion under a blanket, did

you?

A.No, I didn’t. No, I didn’t.

Q.Okay. And you didn’t mention that to Gabby and you didn’t

mention that to the police officers when they interviewed you, did

you?

A.No. I just got interviewed by Gabby.

Q.When you talked to the police officer and when you talked to

Gabby, both times you were asked a lot of questions, weren’t

you?

A.Yeah. I was asked plenty of questions.

Q.And the questions went on for a long time?

A.The questions – yes sir, it did. Took about 45 minutes.

Q.And when they’re asking those questions, one of the things they

kept saying: Every time that you can think of that something

nasty or bad happened, please tell us about it. Is that correct?

A.No.

Q.But they made awfully sure you knew you should tell everything?

A.Yeah. They made sure I should tell them what happened.

To rehabilitate T.N.’s testimony , the State offered T.N.’s videotaped interview

at the Children’s Assessment Center. The defense objected, contending that the

videotape is not admissible under article 38.071, section 1 of the Code of Criminal

Procedure. Article 38.071 allows the admission of a videotaped statement of a child

witness under certain conditions, but section 1 provides:

This article applies only to a hearing or proceeding in which the court

determines that a child younger than 13 years of age would be

unavailable to testify in the presence of the defendant about an offense

defined by any of the following sections of the Penal Code:

. . .

(8) Section 22.021 (Aggravated Sexual Assault).

Tex. Code Crim. Proc. Ann . art. 38.071, § 1(8) (Vernon 2004).

Article 38.071 thus specifically requires that the child be younger than 13 years

of age and unavailable to testify . The defense objected to the introduction of the

videotape on the basis that the State did not meet the requirements of article 38.071,

because T.N. was 13 years old at the time of trial and testified.

Our sister court addressed this issue in Jensen v. State , 66 S.W.3d 528, 535

(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d), in which the trial court admitted

the child’s videotape in evidence even though the child testified at trial. The

Fourteenth Court of Appeals held that, under the plain-language of article 38.071, the

trial court erred in admitting the videotape because the child was available to testify,

and in fact, testified at trial. Id.

We agree that the State did not satisfy the

requirements of article 38.071, because T.N. was 13 years old and testified at trial.

This case is distinguishable, however, from Jensen . Here, the trial court

admitted the videotape on a different basis—as a prior consistent statement of the

witness, after the witness had been impeached on cross-examination. Although the

trial court did not specifically mention Texas Rule of Evidence 801(e)(1)(B), it stated

the basis for its ruling as follows:

[T]he complaining witness and all the witnesses have been

impeached with regards to their prior consistent and inconsistent

statements. I find it ironic that we’ve done that, and now we have a

statement that the witness has given. I’ll anticipate the first note from

the jury is going to be: Where is the child’s statement?

I’m going to find that since his prior statements and ability to

recall are in issue, I’m going to allow the videotape. And there’s no

violation of confrontation clause because you had your chance to cross-examine him, as well as and specifically with regard to those statements

when he gave them, what he said and to whom.

A prior statement may be admitted if it is “consistent with the declarant’s

testimony and is offered to rebut an express or implied charge against the declarant

of recent fabrication or improper influence or motive.” Tex. R. Evid. 801(e)(1)(B).

The defense challenged T.N.’s credibility, raising doubts as to fabrication or improper

influence. For example, as set forth above, the defense impeached T.N., questioning

him whether he told the Child Assessment Center interviewer or the police about the

time Graves fondled him under a blanket. The defense also implied that the

interviewer asked leading questions during the entire 45-minute interview, thus

implying that T.N.’s testimony was not credible. Additionally, the defense implied

that T.N.’s conduct with other children, including his two-year-old brother, were the

real issues during T.N.’s therapy sessions, and thus, that T.N. recently had fabricated

some of the incidents. The defense also questioned T.N. about his school drama

class, implying that T.N. was a good “actor,” and perhaps acting on the witness stand.

We hold that the videotape is admissible under rule of evidence 801(e)(1)(B) as a

prior consistent statement. See Dowthitt v. State , 931 S.W.2d 244, 264 (Tex. Crim.

App. 1996) (upholding admission of videotape, in capital murder case, as prior

consistent statement under rule 801(e)(1)(B));

see also Wylie v. State , 908 S.W.2d

307, 310 (Tex. App.—San Antonio 1995, pet. ref’d) (holding that videotape was

admissible under rule 801(e)(1)(B) as prior consistent statement because defense

challenged child’s credibility).

Moreover, defense counsel introduced specifics as to the context of the

videotape on cross-examination and questioned the propriety of the interviewer’s

technique. Counsel’s global references to the interview raised issues about the nature

of the videotape, and opened the door to admission of the tape as evidence. See Delk

v. State , 855 S.W.2d 700, 704 (Tex. Crim. App. 1993) (noting that a witness “opens

the door” to otherwise irrelevant past criminal history if his testimony creates a “false

impression” of law-abiding behavior).

Improper Jury Argument During Guilt/Innocence

In his second issue, Graves contends the trial court erred in overruling his

objection to the State’s closing argument during the guilt/innocence phase. Graves

argues that the State’s comments about a “rabbit trail” struck at Graves over the

shoulders of his counsel. The State argued:

[The State]: [The defense] can trash us all day long. Don’t get thrown

down a rabbit trail. Don’t follow the defense’s distractions. They want

to put up all the smoke and mirrors so you do not see the truth.

[Defense counsel]: Your Honor, I have to object to this argument.

We’ve let it go on a while, but it’s inviting the jury to strike the

defendant over the shoulder of the defense counsel.

The Court: That will be overruled.

The State may not use closing argument to strike at a defendant over the

shoulders of his counsel or accuse that counsel of bad faith. Fuentes v. State , 664

S.W.2d 333, 335 (Tex. Crim. App. 1984). The State responds that its jury argument

answered the argument of opposing counsel, who had argued to the jury that the

prosecutor had not offered other witnesses to show that Graves is “bad,” and that the

State “had an answer for everything.”

The Court of Criminal Appeals analyzed a similar jury argument in Mosley v.

State , 983 S.W.2d 249, 258-59 (Tex. Crim. App. 1998) . The prosecutor in Mosley

indicated that the defense counsel was asking the jury to “take a side road, a series of

side roads, rabbit trails, and a rabbit trail that will lead . . . to a dead-end.” Id. at 258 .

The court held that such “mildly inappropriate” comments, strikingly similar to the

comments in this case, constituted harmless error. Id. at 260 . The court cautioned

that defense counsel’s “legitimate arguments” cannot serve as a basis for permitting

prosecutorial comments that “cast aspersion on defense counsel’s veracity.” Id. at

259 (citing Dinkins v. State , 894 S.W.2d 330, 357 (Tex. Crim. App. 1995)). Although

the rule is not precise, the court explained that “a prosecutor runs a risk of improperly

striking at a defendant over the shoulder of counsel when the argument is made in

terms of defense counsel personally and when the argument explicitly impugns

defense counsel’s character.” Id. Mosley requires that we review claims of harm

arising from improper jury argument under the following three-part test: (1) the

severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3)

the certainty of conviction without the misconduct. Id.

In applying the first factor, the severity of the misconduct here, as in Mosley ,

is small, or “mildly inappropriate.” See id . at 260. The comments did not accuse the

defense counsel of lying or suggest that any evidence was manufactured. See id.

Rather, they responded to opposing counsel’s argument that the State had acted

inappropriately. Accordingly, the severity of the misconduct does not weigh heavily

in Graves’s favor.

In applying the second factor , we consider the measures adopted to cure the

misconduct. As in Mosley , the trial court here did not take any curative action. As

the Mosley court noted, however, the jury is in a position to evaluate the truthfulness

of the prosecutor’s assertion, and such comments could backfire if the jury disagrees

with them. Id. Regarding the third factor , we look at the certainty of conviction

absent the misconduct. The case lacked physical evidence of a sexual assault, and

only the complainant actually witnessed the sexual assault. T.N. testified at trial,

however, and his statements are consistent with R.N.’s testimony as the outcry

witness.

The jury found T.N.’s testimony to be credible. In the larger context of the

State’s entire argument, the statements about “rabbit trails” did not inject new facts.

In a case such as this one that largely turns on credibility, this argument could not

have caused a different result. Given the evidence and the mild nature of the

inappropriate comments, we conclude that the comments do not cause uncertainty in

the jury’s conviction. After examining the argument in light of the Mosely factors,

we hold that the prosecutor’s comments were mildly inappropriate, and insufficient

to warrant a new trial.

Improper Jury Argument During Punishment

In his third issue, Graves contends the trial court erred in overruling his

objection to the State’s jury argument, during the punishment phase, regarding

“implied” extraneous offenses.

During the guilt/innocence phase, Billy Perran testified on Graves’s behalf.

Billy testified that he met Graves while racing motor bikes at a motorcross event. He

explained that Graves is a “really good friend,” like a “father figure.” Graves took

Billy and other young boys to Europe to watch racing events . He paid for the

apartment where Billy and his mom previously had lived, and bought Billy’s

furniture, which Graves now keeps at his house. He also paid for Billy’s racing

lessons and offered to pay for Billy to go college in England to learn about the motor

sport industry. Billy spent the night at Graves’s house “about ten to twelve times.”

During those overnight visits, Billy slept on the bed and Graves slept on the floor.

Billy testified that Graves was never sexually inappropriate with him, although

Graves “had many chances.”

During closing argument at the punishment phase, the prosecutor argued as

follows:

[The State]: [Graves] is a 37-year-old man who took advantage of an 11-year-old and tested the waters and took it one step further and one step

further. Who knows where he would have gotten if [T.N.] wasn’t brave

enough to come forward. If [T.N.] had the same structure he had and his

parents had – these boys don’t have that kind of family. They don’t

have that kind of support. Who is Billy Perran going to tell what

happened to him? He has a free ticket out of town. A free ticket to

college. A free ticket to a dream to be a famous racer.

[Defense counsel]: Objection to that being outside the evidence. Mr.

Perran denied it ever happened.

The Court: That will be overruled.

[The State] : Why would Billy Perran ever tell you, so that he can live in

the situation he’s in now? He’s got a lot to lose by telling. All those

kids do.

One permissible area of jury argument is to make reasonable deductions from

the evidence. Campbell v. State , 610 S.W.2d 754, 756 (Tex. Crim. App. 1980).

Counsel is allowed wide latitude in drawing inferences from the evidence, so long as

the inferences drawn are reasonable, fair, legitimate, and offered in good faith.

Gaddis v. State , 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). The purpose of

closing argument is to assimilate the evidence to assist the fact-finder in drawing

proper conclusions from the evidence. Id. at 400 . The jury is then free to accept or

reject such conclusions and inferences. Id.

“A prosecutor is allowed to argue that the witnesses for the defense are not

worthy of belief.” Satterwhite v. State , 858 S.W.2d 412, 425 (Tex. Crim. App. 1993).

Jury argument that vouches for or questions the credibility of a witness is proper if

it involves a reasonable deduction from the evidence. George v. State , 117 S.W.3d

285, 288 (Tex. App.—Texarkana 2003, pet. ref’d).

Billy Perran testified on Graves’s behalf. Having done so, his credibility as a

witness became an issue and was the proper subject of comment by the prosecutor.

See Satterwhite , 858 S.W.2d at 425 . The prosecutor reasonably could have deduced

that Billy had a financial incentive to lie— if Graves went to jail, he would no longer

pay for Billy’s housing, motorcross races, trips to Europe, and his college education.

We conclude that it was not improper during closing argument for the prosecution to

contend that Billy could have a financial incentive to testify favorably for Graves.

Accordingly, the trial court did not err in overruling Graves’s objection.

Reasonable-Doubt Instruction During Guilt/Innocence

In his fourth issue, Graves contends the trial court erred in not instructing the

jury during the guilt/innocence phase that the State must prove extraneous offenses

beyond a reasonable doubt. In support of this contention, Graves asserts that the

State introduced evidence that he committed extraneous offenses not alleged in the

indictment, including the two fondling offenses against T.N. and “inappropriate”

relationships with other young boys . Graves asserts that the trial court sua sponte

should have included a reasonable-doubt instruction for any extraneous offense

evidence admitted during the guilt/innocence phase, even though Graves’s counsel

admittedly did not make such a request .

In cases of sexual assault of minors, article 38.37, section 2 of the Code of

Criminal Procedure provides:

Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence,

evidence of other crimes, wrongs, or acts committed by the defendant

against the child who is the victim of the alleged offense shall be

admitted for its bearing on relevant matters, including:

(1)the state of mind of the defendant and the child; and

(2)the previous and subsequent relationship between the

defendant and the child.

Tex. Code Crim. Proc. Ann . art. 38.37, § 2 (Vernon Supp. 2004).

In support of his position, Graves cites Huizar v. State , 12 S.W.3d 479, 483-85

(Tex. Crim. App. 2000) , in which the Court of Criminal Appeals holds that , in the

punishment phase of non-capital cases, a trial court is statutorily required under Code

of Criminal Procedure article 37.07, section 3(a), but not constitutionally required,

to instruct a jury sua sponte that it may not consider extraneous-offense evidence, in

assessing punishment, unless it finds the extraneous offenses have been proven

beyond a reasonable doubt.

Id. ; see also Bolden v. State , 73 S.W.3d 428, 431 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d).

Article 37.07, section 3(a), entitled, “Evidence of Prior Criminal Record in all

Criminal Cases After a Finding of Guilty,” governs the admissibility of evidence at

punishment in all non-capital cases. See Rogers v. State , 991 S.W.2d 263, 265 (Tex.

Crim. App. 1999) (“[i]n addition to the Rules of Evidence, Article 37.07 Section 3(a)

governs the admissibility of evidence during the punishment stage”); see also Kutzner

v. State , 994 S.W.2d 180, 188 (Tex. Crim. App. 1999) (“[non-capital cases are

governed by Article 37.07, which requires that extraneous offenses be proven beyond

a reasonable doubt”); Sonnier v. State , 913 S.W.2d 511 , 521 n.5 (Tex. Crim. App.

1995) (noting that Article 37.07 “governs the punishment charge in non-capital

trials”). Extraneous offenses thus get a limiting instruction under article 38.37 during

the guilt/innocence phase. A reasonable-doubt instruction under article 37.07 applies

to punishment because it is the only time those offenses can be used to enhance the

punishment of the charged offense.

Graves urges this court to extend the duty discussed in Huizar to the

guilt-innocence phase of trial . We declined to do so in Rodriguez v. State , 137

S.W.3d 228, 231 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that trial

court did not err). Following our court’s decision in Rodriguez , and noting that

article 37.07 expressly relates only to the punishment phase of a trial, we hold that the

trial court in this case did not err in failing to give, sua sponte, a reasonable-doubt

instruction for extraneous offenses during the guilt-innocence phase.

Reasonable-Doubt Instruction During Punishment

In his fifth issue, Graves contends the trial court erred in failing to instruct the

jury, sua sponte, during the punishment phase, that the State must prove extraneous

offenses beyond a reasonable doubt in order to consider such offenses in assessing

punishment, even though Graves’s counsel admittedly did not make such a request .

In Huizar , the Court of Criminal Appeals held that a trial court must include

a reasonable-doubt instruction regarding extraneous offenses during the punishment

phase, even if the defense does not request it. Huizar , 12 S.W.3d at 483 -85 . Graves

contends that, during the punishment phase , the State introduced extraneous offense

evidence, in particular: (1) T.N.’s testimony that Graves fondled him on two previous

occasions, (2) R.N.’s testimony implying that Graves had “inappropriate”

relationships with other young boys, including Billy Perran, and (3) jail cards,

judgments, and sentences showing Graves’s prior convictions.

Fondling

Graves contends that the trial court sua sponte should have included a beyond

a reasonable doubt jury instruction, because at the guilt/innocence phase, T.N.

testified that Graves fondled him in addition to committing the sexual assault of oral

sex, as alleged in the indictment. During the guilt/innocence phase, T.N. testified that

Graves touched “his private parts” with his hands on two different occasions before

he performed oral sex on T.N. T.N. made similar statements during his videotaped

interview.

Fondling falls within the category of indecency with a child under Penal Code

section 21.11(c). Tex. Pen. Code Ann . § 21.11(c) (Vernon 2003). Oral sex is an

aggravated sexual assault under Penal Code section 22.021 . Tex. Pen. Code Ann .

§ 22.021 (Vernon Supp. 2004). Separate instances of fondling are different offenses

under the penal code, not merely multiple occasions of the same offense. See Brown

v. State , 6 S.W.3d 571, 575-76 (Tex. App.—Tyler 1999, pet. ref’d) .

The State responds that the trial court did not err, because the State introduced

no new extraneous offense evidence during the punishment phase . Unlike the Huizar

case, the State here introduced the fondling offenses through T.N.’s testimony during

the guilt-innocence phase . Compare Huizar v. State , 966 S.W.2d 702, 705 (Tex.

App.—San Antonio 1998), rev’d , 12 S.W.3d 479 (Tex. Crim. App. 2000) (noting that

State introduced new evidence of extraneous sexual assault offenses during

punishment) . Courts have required the reasonable-doubt instruction, however,

regardless of whether the evidence of extraneous acts had been introduced during the

guilt-innocence or the punishment phase of the trial. See Allen v. State , 47 S.W.3d

47, 50 (Tex. App.—Fort Worth 2001, pet. ref’d) ; see also Guzman v. State , No.

04-02-00198-CR, 2003 WL 22336052 , *4 (Tex. App.—San Antonio Oct. 15, 2003,

pet. ref’d) (not designated for publication).

Moreover, the State referred to the extraneous offense evidence on cross-examination during the punishment phase, and suggested that these extraneous

offenses merited a heavier sentence. The State cross-examined Graves’s stepmother

during the following exchange:

Q.Are you aware there’s three incidents?

A.Three incidents of oral sex?

Q.Of improper behavior of a child of a sexual —

A.I was talking about the main charge, which is oral sex.

Q.You knew there was three then?

A.I do now.

In addition, the State argued during closing argument to the jury:

Remember how it started? Remember how the predator set this

up? First, he just tries on the outside of the clothing and touches him in

the car. That was the start. Then this predator, in his mind, goes one

step further. He touches [T.N.] underneath his clothes as they’re laying

down watching a Halloween movie. Then the predator takes it one step

further and performs oral sex on [T.N.].

The State thus relied upon extraneous offense evidence to argue that the jury should

enhance punishment. We hold that, under Huizar , the trial court should have

instructed the jury pursuant to article 37.07 during the punishment phase.

Under Huizar , w e next determine whether the error was harmful under the

standard set forth in Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

See Huizar , 12 S.W.3d at 483-85 ; see also Ellison v. State , 86 S.W.3d 226, 227-28

(Tex. Crim. App. 2002) (remanding cause to court of appeals for harm analysis of

trial court’s failure sua sponte to give reasonable-doubt instruction) . Jury charge

error does not require reversal unless it is so egregious that the defendant is denied

a fair and impartial trial. Almanza , 686 S.W.2d at 171 . “Errors which result in

egregious harm are those which affect ‘the very basis of the case,’ deprive the

defendant of a ‘valuable right,’ or ‘vitally affect a defensive theory.’ ” Hutch v. State ,

922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (quoting Almanza , 686 S.W.2d at 172 ).

“[T]he actual degree of harm must be assayed in light of the entire jury charge, the

state of the evidence, including the contested issues and weight of probative evidence,

the argument of counsel, and any other relevant information revealed by the record

of the trial as a whole.” Almanza , 686 S.W.2d at 171 .

The State introduced no physical evidence of a sexual assault, nor did anyone

other than the complainant witness the sexual assault. T.N., however, testified at

trial, and his statements are consistent with R.N.’s testimony as the outcry witness.

The jury found T.N.’s testimony to be credible. Moreover, the range of punishment

in this case was 5 to 99 years or life. Although the prosecutor discussed the

extraneous offenses during closing argument, he did not seek the maximum

punishment available.

The jury assessed punishment at eight years’ confinement, far

below the maximum, and only three years above the minimum. See Jones v. State ,

111 S.W.3d 600, 609-10 (Tex. App.—Dallas 2003, pet. ref’d) (holding that trial

court’s failure to give reasonable-doubt instruction sua sponte during punishment

phase for extraneous offenses offered during punishment was harmless error in part

because the jury assessed punishment far below maximum available, despite State’s

plea for maximum); Tabor v. State , 88 S.W.3d 783, 788-89 (Tex. App.—Tyler 2002,

no pet.) ( holding that trial court’s failure sua sponte to give reasonable-doubt

instruction during punishment phase about “pen packets” offered during punishment

was harmless error because sentence imposed was well within punishment range and

prosecutor had asked for greater sentence). Graves contends that, had the trial court

properly instructed the jury, Graves might have received community supervision.

Graves’s motion for new trial, however, fails to adduce evidence as to how the failure

to instruct the jury resulted in harmful error. After reviewing the record in this case

in its totality, we cannot conclude that the trial court’s failure to give an article 37.07

reasonable-doubt instruction deprived Graves of a fair and impartial punishment

hearing.

Inappropriate Relationships With Other Boys

Graves also contends that the State introduced evidence “implying” that Graves

had inappropriate relationships with other young boys, including Billy Perran. These

boys testified on behalf of Graves, explaining that Graves had never been sexually

inappropriate with them, nor had they witnessed Graves engaging in any

inappropriate sexual behavior. Billy specifically testified that Graves was never

sexually inappropriate with him, although Graves “had many chances.” R.N., T.N.’s

father, testified that Graves’s behavior with Billy was “very peculiar,” such as “riding

around the countryside when he should be in school. Putting him up in an apartment.

And telling other people that that’s his son.” R.N. further testified that he was “not

alleging” that Graves used Billy for “sexual reasons.” None of these statements

constitutes evidence of an extraneous offense. Rather, each of the witnesses denied

knowledge of any improper conduct with other boys. Accordingly, with respect to

Graves’s relationships with other boys, the trial court did not err in failing to instruct

the jury, sua sponte, that the State must prove extraneous offenses beyond a

reasonable doubt. See Bluitt v. State , 137 S.W.3d 51, 54 (Tex. Crim. App. 2004)

(holding that “such an instruction is a useless act if no unadjudicated offenses have

been introduced”).

Prior Convictions

During punishment, the State introduced evidence of Graves’s prior theft

conviction. Article 37.07, section 3, of the Code of Criminal Procedure provides that,

after a finding of guilt, evidence may be offered by either party as to any matter that

the court deems relevant to sentencing, including: (1) the prior criminal record of the

defendant; (2) the general reputation of the defendant; (3) the character of the

defendant; (4) an opinion regarding the reputation of the defendant; (5) the

circumstances of the offense on trial; and (6) extraneous offenses and bad acts that

are shown beyond a reasonable doubt to have been committed by the defendant or for

which he could be held criminally responsible. Tex. Code Crim. Proc. Ann . art.

37.07, § 3(a)(1) (Vernon Supp. 2004). In Bluitt , the Court of Criminal Appeals held

that a trial court does not err in refusing to give a beyond a reasonable-doubt

instruction if, as here, the defendant’s criminal behavior “was in the form of prior

offenses which had been subjected to judicial testing under the proper burden and the

burden had been met.” 137 S.W.3d at 54. The court explained:

The criminal record of the defendant is not grouped with

extraneous offenses, and therefore we presume that the legislature did

not intend to require the same burden of proof that it attached to

extraneous, unadjudicated offenses. While the prior convictions must

be properly proved, to require that prior convictions be re-proved

beyond a reasonable doubt would be an absurd result, as the very fact of

conviction is evidence that the burden of proving guilt beyond a

reasonable doubt has already been met in a prior proceeding. The

critical issue is that testing of the proof. If an offense has been subject

to such scrutiny and the burden of proof has been met, regardless of

whether the judicial proceeding concluded with a final conviction, it is

part of a defendant’s criminal record, and Art. 37.03, § 3, does not

require further proof of guilt beyond a reasonable doubt.

Id. ; see also Willover v. State , 84 S.W.3d 751, 753 (Tex. App.—Houston [1st Dist.]

2002, pet. ref’d). We hold that the trial court did not err in failing to give a

reasonable-doubt instruction for Graves’s prior convictions.

Ineffective Assistance of Counsel

In his sixth issue, Graves contends his trial counsel was ineffective because

counsel failed to request a reasonable doubt extraneous offense jury instruction

during the guilt/innocence and punishment phases.

To establish ineffective assistance of counsel, an appellant must show that (1)

trial counsel’s representation was so deficient that it fell below the objective standard

of professional norms and (2) but for counsel’s error, there is a reasonable probability

that the result of the proceedings would have been different. Strickland v.

Washington , 466 U.S. 668, 687-96 , 104 S. Ct. 2052, 2064-69 (1984). Graves has the

burden to prove ineffective assistance of counsel and to rebut the presumption that

counsel was acting according to sound trial strategy. Id. at 466 U.S. at 689 , 104 S.

Ct. at 2065 .

Guilt/Innocence Phase

Following our court’s decision in Rodriguez , we hold that the trial court did not

err in failing to give, sua sponte, a reasonable-doubt instruction for extraneous

offenses during the guilt-innocence phase . See Rodriguez , 137 S.W.3d at 231 .

Graves was not entitled to the instruction; therefore, his counsel was not ineffective

for failing to request it. See Hardin v. State , 951 S.W.2d 208, 211 (Tex.

App.—Houston [14th Dist.] 1997, no pet.) (holding that failure to request jury

instruction about manner in which evidence was obtained was not error and thus did

not constitute ineffective assistance because defendant was not entitled to

instruction).

Punishment Phase

With regard to the punishment phase, we hold that, under Huizar , the trial court

should have instructed the jury pursuant to article 37.07 during the punishment phase

about the prior fondling offenses. See Huizar , 12 S.W.3d at 483 -85 . Graves was

therefore entitled to a reasonable-doubt instruction during the punishment phase.

As set forth above in issue five, we hold that the absence of a reasonable-doubt

instruction during the punishment phase did not deprive Grave of a fair and impartial

trial. See Almanza , 686 S.W.2d at 171 . Graves therefore fails to satisfy the second

prong of Strickland— that the result of the proceedings would have been different had

counsel requested the instruction. See Allen v. State , 47 S.W.3d 47, 54-55 (Tex.

App.—Fort Worth 2001, pet. ref’d) (holding that defendant did not satisfy second

prong of Strickland because court analyzed that error was harmless under Almanza ).

Graves does not show how the results of his proceedings would have been different

if counsel would have objected to the jury charge and the trial court had given the

reasonable-doubt instruction for extraneous offenses . See id. We hold that Graves

fails to show he received ineffective assistance of counsel.

Conclusion

We affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Taft, Jennings, and Bland. Publish. Tex. R. App. P. 47.2( b ).