Gregory John Mayhue, A/K/A Farrell v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00444-CR

NO. 03-96-00445-CR

Gregory John Mayhue, a/k/a Farrell, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL

DISTRICT

NOS. 95-699-K368 & 95-700-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

Appellant Gregory John Mayhue appeals his convictions for aggravated sexual assault of

one child and sexual assault of another child. See Tex. Penal Code Ann. §§ 22.011 , .021 (West Supp.

1998). (1) A jury convicted Mayhue and assessed his punishment at fifty years' imprisonment and a $10,000

fine, and twenty years' imprisonment and a $10,000 fine, for the offenses respectively. The sentences run

concurrently. We will affirm the convictions.

BACKGROUND

The events forming the basis of Mayhue's convictions occurred on two separate occasions

and involved two different victims. (2) One victim in this case is J.M., who was thirteen years old at the time

of the alleged offense against her. J.M. is the biological daughter of Mayhue's brother, Michael. After J.M.

was born, her mother married Michael. The couple divorced after a short time. While J.M. was still an

infant, J.M.'s mother became involved with Mayhue. The two eventually became husband and wife at

common law. Thereafter, Mayhue referred to J.M. as his own daughter, and J.M. apparently referred to

Mayhue as her father. Mayhue and J.M.'s mother eventually separated, but the couple had not divorced

at the time of trial. They both lived in the same city during the periods of time relevant to this case. J.M.

sometimes lived with her mother and at other times lived with Mayhue.

The other victim in this case is M.S., who was J.M.'s friend and was in the same grade at

school as J.M.

According to M.S., she and J.M. planned on September 3, 1995 to meet their boyfriends

at a hotel room. M.S. told her mother she would be spending the night with J.M. at Mayhue's apartment.

The girls departed Mayhue's apartment with their boyfriends in the early evening. Soon thereafter, M.S.'s

mother came to the apartment looking for M.S. Mayhue did not disclose that he knew where the girls

were. When M.S.'s mother left, Mayhue called the girls and told them they should return to the apartment.

When they returned, the girls and Mayhue contrived a story to tell M.S.'s mother about where the girls had

been when she came looking for them. After she called her mother, M.S. alleges, J.M. approached her

and told her the only way Mayhue would allow the girls to return to the hotel would be if M.S. had sex with

him. According to M.S., she and Mayhue smoked marijuana in his bedroom and then had sexual

intercourse. Afterwards, M.S. alleges, Mayhue told her to take a shower so she would be "clean and

fresh" for her boyfriend. Mayhue then allowed the girls to return to the hotel room with their boyfriends.

M.S. was fourteen years old at the time of this incident.

Several weeks after the encounter, M.S. told the police about the incident. The police

investigated by questioning the girls' boyfriends. Both men confirmed M.S.'s story with regard to the plan

to spend the evening at the hotel and the fact that the girls had returned to Mayhue's apartment for part of

the evening. Moreover, M.S.'s boyfriend told officers M.S. confided in him at the hotel that she had had

intercourse with Mayhue when the girls returned to Mayhue's apartment that evening.

During their investigation, officers asked M.S. to call Mayhue on the telephone from the

police station; they recorded the conversation. During the course of the conversation, Mayhue made

several comments that can be construed as incriminating. For example, when M.S. told him her mother

suspected something about the night the girls went to the hotel, Mayhue offered to lie to M.S.'s mother and

say the girls were at his apartment all night. He repeatedly suggested that M.S. would get several men or

boys in trouble, including himself, if she continued to allow her mother to receive information. He

referenced another older man M.S. purportedly slept with, noted that the man was only a "couple years"

younger, and suggested it would be "unfair" to get in trouble if that man did not. Furthermore, Mayhue

chastised M.S. that "guys who are older than [her] trust [her] to be a woman, not a little kid." In general,

Mayhue's tone and comments on the recording reveal a strong desire to cover up the events of the evening.

Furthermore, the conversation sometimes included references to M.S.'s prior sexual experiences with

others, suggesting Mayhue may have been concerned about being accused of some sexual offense involving

M.S.

During the course of their investigation of the offense against M.S., officers questioned

J.M.'s boyfriend. He told investigators that the evening M.S. called Mayhue on the phone, Mayhue

summoned J.M. and him to meet with Mayhue and "get their stories straight" about the evening the girls

went to the hotel. In addition, the boyfriend told the investigators facts that suggested Mayhue had also

assaulted J.M. on a different occasion. The boyfriend, who was nineteen years of age, admittedly

maintained a sexual relationship with J.M. himself during the period of time the events between Mayhue and

J.M. came to light.

Upon receiving this information from J.M.'s boyfriend, law enforcement officers went to

J.M.'s school to speak with her. One of the officers, Lieutenant Mary Ryle, testified J.M. initially denied

that Mayhue had ever had sexual contact with her. However, upon further questioning, J.M. told Ryle that

Mayhue had in fact made her fellate him.

The day after J.M. first spoke with the police, Lieutenant (now Captain) Dan Lemay went

to speak with Mayhue. Lemay recorded his conversation with Mayhue on an audio cassette. Lemay made

it clear that Mayhue could speak with an attorney if he wanted to, but that Mayhue was not yet under

arrest. When Mayhue told Lemay he was scared, Lemay told Mayhue he should be scared, that this was

a serious matter, and that it was a "done deal." Lemay also told Mayhue he already had evidence Mayhue

had abused J.M. and M.S.; he urged Mayhue to explain his side of the story. Mayhue complied, making

several incriminating statements over the course of the conversation. After the conversation, Lemay asked

Mayhue to come to the police station within fifteen minutes. Mayhue agreed, but fled after Lemay left the

immediate area. Lemay followed Mayhue for some distance, but was unable to apprehend him that day.

J.M.'s mother assisted the police in locating Mayhue, and the police arrested him. Several

weeks later, J.M., her boyfriend, and her mother each wrote letters to the district attorney's office in an

attempt to withdraw their earlier cooperation in the case.

Nevertheless, the State prosecuted Mayhue for committing aggravated sexual assault

against J.M. by penetrating her mouth with his penis. See id. § 22.021. The State also prosecuted him for

committing sexual assault against M.S. by causing his penis to contact her vagina. See Tex. Penal Code

Ann. § 22.011 . The State called as witnesses both victims' boyfriends, Mary Ryle, Dan Lemay, the two

victims, and J.M.'s mother. J.M. and her mother did not cooperate with the State at trial. In fact, J.M.

denied that Mayhue committed the crime and she testified that M.S. was lying about what happened at

Mayhue's apartment on the night the girls went to the hotel. The State also called another thirteen-year-old

girl, S.N., who testified that she had had sexual intercourse with Mayhue several times. Additionally, the

State played the tape of Mayhue conversing with M.S., as well as the tape of Mayhue conversing with

Lemay. The court allowed the State to publish an unofficial transcript of the latter to the jury as an aid while

they listened to the tape. Lemay's testimony corroborated many of the incriminating statements attributed

to Mayhue on the tape and transcript.

Mayhue testified in his own defense, denying that he had ever had sexual contact with any

of the young girls. He attempted to discredit the State's witnesses by showing they had motives to lie and

that they lied in response to improper police questioning.

The jury found Mayhue guilty of aggravated sexual assault of J.M. and sexual assault of

M.S. The court sentenced Mayhue in accordance with the jury's assessment of punishment.

Mayhue appeals in three points of error. First, he contends he did not have effective

assistance of counsel at trial. Second, he argues the trial court erred in allowing the State to publish to the

jury as an aid a transcript of Mayhue's taped conversation with Lemay. Third, Mayhue contends the

evidence is factually insufficient to support his conviction for aggravated sexual assault of J.M.

DISCUSSION

Transcript of Audio Tape as Jury Aid

We first discuss point of error two, concerning the propriety of publishing the transcript of

the audio tape to the jury, because the contents of the tape are important to our resolution of Mayhue's

other two points of error.

The court of criminal appeals has held that the jury may use an authenticated transcript as

an aid while listening to an audio tape. Garrett v. State , 658 S.W.2d 592, 594 (Tex. Crim. App. 1983);

see also Garner v. State , 939 S.W.2d 802, 807 (Tex. App.--Fort Worth 1997, pet. ref'd) ("Counsel

. . . is permitted to use jury aids which are not admitted into evidence. Their purpose is merely to assist

the jury in understanding the evidence actually introduced.")

Before trial, the State notified the court that it intended to offer the tape of Mayhue's

conversation with Lemay in evidence. The State also revealed it wanted to produce an unofficial transcript

to the jury to use as an aid while they listened to the tape. Mayhue objected to publication of the State's

transcript, arguing it was "rife with error" and that the jury might seize on the erroneous written words rather

than the audible words on the tape. Mayhue did not argue the tape was inaudible or incapable of being

deciphered. Nor did he point out specific discrepancies between the tape and the transcript, or provide

a transcript of his own, even though he had access to the tape and the State's transcript before trial. Lemay

testified that he taped the conversation between himself and Mayhue and then helped an employee of the

district attorney's office transcribe the tape into written form.

The court listened to the tape and read the State's transcript. The court then overruled

Mayhue's objection. The court indicated it would allow the jury to use the transcript while they listened

to the tape but would not allow them to take the transcript to the jury room for deliberations. The court

allowed the State to play the tape and publish the transcript, but first gave the following instruction to the

jury:

Ladies and gentlemen of the jury, before you start reading those and before we start

listening to the tape, let me explain and make sure we're all clear.

What you have in your hands is simply an aid for you to try to help you in understanding

the tape. It's not evidence in and of itself. It was not done by experts. It was done to try

to aid people in listening to the tape because of the background noises.

If you hear something differently than what you have in your hand, then you rely on what

you hear as being the evidence because the evidence is the tape, not this; and this will not

be allowed to go with you back into the jury room. It's simply here hopefully to help you

hear the tape, and you will have the tape with you back in the jury room, but you won't

have this particular written aid.

Mayhue's contention on appeal is not the same as his contention at trial. At trial, he did

not argue the tape was inaudible. Instead, he treated the taped conversation as largely decipherable and

argued the transcript did not accurately mirror the taped statements. He now characterizes the tape as

"virtually incomprehensible, making a transcript necessary as opposed to just useful." Mayhue did not

assert the particular complaint he raises on appeal. See Tex. R. App. P. 52(a); e.g., Martinez v. State ,

867 S.W.2d 30, 35 (Tex. Crim. App. 1993) (point of error must correspond with objection made at trial).

In any event, we disagree with both Mayhue's arguments at trial and on appeal. We have

reviewed the tape. Much of the taped conversation, including incriminating statements made by Mayhue,

is decipherable without the transcript. Parts of the taped conversation are completely inaudible because

of background noise, and the transcript reads "inaudible" where it corresponds with those parts. Other

parts of the taped conversation are audible but difficult to decipher without rewinding the tape and

repeatedly playing it. The sounds on the tape correspond with the written words on the transcript in those

parts. The transcript merely eliminates the need to repeatedly replay those parts of the tape. It aided the

jury in understanding the taped conversation and did not serve as a suggestive substitute for inaudible or

indecipherable conversation.

Furthermore, we do not observe any material differences between the taped conversation

and the transcript. Mayhue did not point out any specific discrepancies between the tape and transcript

at trial. Nor does he on appeal. We also note that Mayhue testified at trial and thus had an opportunity

to explain what he thought the recorded conversation was. He did not deny the accuracy of the State's

transcript. Instead, he admitted he made the incriminating statements but explained that he had been lying

when he made them. We hold that the trial court did not err in allowing the jury to read the unofficial

transcript while they listened to the tape recording. (3) We therefore overrule Mayhue's second point of

error. (4)

Sufficiency of Evidence of Aggravated Sexual Assault

In his third point of error, Mayhue contends the evidence is factually insufficient to support

his conviction for aggravated sexual assault of J.M. When reviewing a challenge to the factual sufficiency

of the evidence, we view all the evidence objectively and set aside the verdict only if it is so against the

weight of the evidence as to be clearly unjust. Cain v. State , 958 S.W.2d 404, 407-08 (Tex. Crim. App.

1997) (citing Clewis v. State , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).

A person commits the offense of aggravated sexual assault if he intentionally or knowingly

causes his penis to penetrate the mouth of a child younger than fourteen years of age. Tex. Penal Code

Ann. 22.021(a)(1)(B)(ii), (2)(B).

The State presented several witnesses whose testimony suggests Mayhue was guilty of

committing aggravated sexual assault against J.M. For example, J.M.'s boyfriend testified J.M. told him

and her mother that Mayhue had committed the offense. According to the boyfriend, J.M. told him during

the summer of 1995 that her "dad" (indicating Mayhue) "made her suck his penis," and that if she practiced

and became good at it, men would appreciate it. She further told him that Mayhue had told her he would

not ask her to do it anymore "after she turned thirteen." However, according to J.M.'s boyfriend, she said

the activity continued after her thirteenth birthday. At her boyfriend's urging, J.M. told her mother about

the abuse the same day she told him. The boyfriend purportedly heard the conversation between J.M. and

her mother and at one point, heard J.M. say Mayhue would "kill her" if she ever told anyone. J.M.'s

boyfriend also testified he overheard J.M. tell her mother the abuse had been occurring since she was about

seven years old. J.M.'s mother admitted in her testimony that J.M. once told her Mayhue had been

"messing with her." Furthermore, Mary Ryle testified that although J.M. initially denied having any sexual

contact with Mayhue, upon further questioning J.M. admitted that Mayhue had had oral sex with her in the

past. J.M. herself confirmed she made those statements to her mother and the officer.

Most importantly, the State presented the recorded conversation between Mayhue and

Lemay as well as Lemay's testimony recounting the conversation. The tape reveals that Lemay strongly

warned Mayhue of the gravity of the allegations and investigation. Despite these warnings, Mayhue

volunteered information tending to incriminate himself. After Lemay stated that he had evidence of the

offense and urged Mayhue to explain his side of the story, Mayhue volunteered that he "needed help"

because he "wanted to stop." He offered several explanations for his behavior. For instance, after Lemay

asked Mayhue why he abused M.S. and J.M., Mayhue said he had had cancer since he was a child and,

therefore, he had been "robbed of his youth." He explained that he was "hurt" when his girlfriends made

derogatory comments about the size of his penis. Finally, Mayhue offered that he had been sexually abused

himself when he was a child.

Later in the conversation, Lemay admitted he was recording the conversation. Lemay

continued to question Mayhue about J.M.'s allegations that she had fellated Mayhue. Knowing he was

being recorded, Mayhue indicated the abuse occurred about "once a month." He continued to explain that

J.M. would "do it" to get out of trouble, to get off restriction, and to gain permission to see her boyfriend.

When Lemay asked Mayhue if he got an erection with J.M., Mayhue responded "somewhat." When

Lemay asked Mayhue whether he had the contact with J.M. for a sexual release, Mayhue responded that

he did not want a release -- he wanted "control."

Lemay also testified that despite Mayhue's agreement to go to the police station after the

conversation, Mayhue fled. Evidence of flight can circumstantially support an inference of guilt. E.g.,

Bigby v. State , 892 S.W.2d 864, 884 (Tex. Crim. App. 1994); Foster v. State , 779 S.W.2d 845, 859

(Tex. Crim. App. 1989).

The defense offered several explanations for the above-detailed evidence. Mayhue

attempted to establish that he, J.M., and her boyfriend had motives to lie or lied as a result of inappropriate

police questioning. Mayhue attempted to discredit J.M's boyfriend's testimony by pointing out that the

boyfriend himself was guilty of having illegal sexual contact with J.M. According to Mayhue, the boyfriend

cooperated with the police in exchange for immunity from prosecution. The record contains a letter the

boyfriend sent to the district attorney's office months before trial, attempting to withdraw the statements

he originally made to investigators. The State later granted J.M.'s boyfriend immunity from prosecution

and he fully cooperated with the State at trial. He testified at trial that the State had granted him immunity.

Mayhue also relied upon the fact that J.M. recanted her accusations after her initial meeting

with police. J.M. testified at trial that she initially told her mother Mayhue had been "messing with her"

because her mother had caught her and her boyfriend having sex. According to J.M., she made these

"false" allegations so that her mother would no longer be angry with her for having sex with her boyfriend.

According to both J.M. and her mother, J.M. recanted her story when her mother threatened to confront

Mayhue with the allegations. J.M. further testified at trial that she told the police Mayhue had molested her

only because they called her a liar when she initially denied the allegations. According to J.M., she lied to

the police and made up details about the alleged sexual contact so that she would sound believable. After

Mayhue's arrest and throughout trial, J.M. steadfastly maintained that Mayhue never touched her sexually.

She so testified despite her acknowledgment of Mayhue's tape-recorded statements.

Mayhue attempted to discredit his own tape-recorded statements by testifying that he was

extremely scared when the officer approached him for a conversation. According to Mayhue, he

incriminated himself to "calm" the officer down.

The State presented evidence to explain J.M.'s recantation. The State elicited testimony

from several witnesses that supports the inference that J.M. might have preferred to live with her father

because the accommodations were more comfortable and because he gave her more "privileges."

Furthermore, one of the letters J.M. wrote to the district attorney's office after Mayhue's arrest supports

the inference that J.M. recanted because she did not want to be the reason her "dad" (Mayhue) would not

be home for Christmas. There is also evidence in the record that J.M.'s mother had financial trouble and

often had to rely on Mayhue's mother to house and support herself and her family. This suggests J.M. had

a motive to protect Mayhue despite his guilt. In other words, the evidence shows J.M. might have been

in the unenviable position of choosing between (1) protecting her "father" despite his guilt and (2) accusing

him of molesting her, but consequently risking loss of both her preferred, stable home with him and her fall-back home with her mother and paternal grandmother. We also note the evidence suggesting Mayhue

threatened J.M. not to tell anyone he abused her.

Based on an objective evaluation of the evidence detailed above, we hold the evidence is

factually sufficient to support the determination that Mayhue is guilty of aggravated sexual assault of J.M.

We reiterate that the most compelling evidence came not from the hearsay statements of third parties, but

from the defendant himself and the actions he took upon accusation. We overrule point of error three.

Effectiveness of Counsel

In his final point of error, Mayhue alleges he did not have effective assistance of counsel

at the guilt stage of trial. Mayhue contends his counsel was ineffective because he:

• failed to object to extraneous offense evidence alleging that Mayhue had sexual intercourse with

S.N., a thirteen-year-old girl, and that he smoked marihuana with her and drank alcoholic

beverages with her;

• failed to object to many hearsay statements of M.S., her boyfriend, J.M.'s boyfriend, and two

police officers;

• failed to object to J.M.'s boyfriend's extraneous offense testimony implying that Mayhue

threatened him for cooperating with the prosecution;

• failed to object to extraneous offense testimony alleging Mayhue fondled M.S. (an incident not

charged in the State's case concerning M.S.);

• failed to object to extraneous offense testimony alleging Mayhue had been sexually abusing J.M.

for several years (conduct not charged in the State's case concerning J.M.);

• left a second-chair attorney in charge for one afternoon of trial because lead counsel was scheduled

to appear in federal court for a bankruptcy proceeding;

• failed to conduct a meaningful voir dire;

• failed to object to an allegedly erroneous limiting instruction in the jury charge concerning the use

of extraneous offense evidence; and

• failed to seek an instruction limiting the jury's consideration of evidence admitted to impeach J.M.

We measure claims of ineffective assistance of counsel against the standard set forth by the

Supreme Court of the United States in Strickland v. Washington , 466 U.S. 668, 687 (1984), and

adopted by the court of criminal appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986). (5) In Strickland , the court set forth a two-element standard that requires the defendant to show both

that his counsel made serious errors and that those errors caused serious harm:

First, the defendant must show that counsel's performance was deficient. This requires

showing that counsel made errors so serious that counsel was not functioning as the

"counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This requires showing that

counsel's errors were so serious as to deprive the defendant of fair trial, a trial whose result

is reliable.

Strickland , 466 U.S. at 687 .

In determining whether an appellant has satisfied the first element of the test, we decide

whether the record establishes that counsel failed to provide reasonably effective assistance. See

Strickland , 466 U.S. at 687-88 ; Hernandez , 926 S.W.2d at 55; Wilkerson v. State , 726 S.W.2d 542,

548 (Tex. Crim. App. 1986). The appellant must demonstrate that counsel's performance was

unreasonable under the prevailing professional norms and that the challenged action was not sound trial

strategy. Strickland , 466 U.S. at 688 ; Stafford v. State , 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).

We do not evaluate the effectiveness of counsel in hindsight, but from counsel's perspective at trial.

Strickland , 466 U.S. at 689 ; Ex Parte Kunkle , 852 S.W.2d 499, 505 (Tex. Crim. App. 1993);

Stafford, 813 S.W.2d at 506 . We assess the totality of the representation, rather than isolated acts or

omissions. E.g., Wilkerson , 726 S.W.2d at 548 . The court of criminal appeals has explained that we

presume defense counsel provides reasonable professional assistance and the defendant must present proof

to overcome this presumption:

Under the Strickland test, the defendant bears the burden of proving ineffective assistance.

In addition, when reviewing a claim of ineffective assistance, "a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound trial strategy.'"

Jackson , 877 S.W.2d at 771 (quoting Strickland , 466 U.S. at 689 ); Hernandez , 726 S.W.2d at 55 ;

O'Hara v. State , 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). The standard of proof

for ineffectiveness of counsel is a preponderance of the evidence. E.g., Moore v. State , 694 S.W.2d 528,

531 (Tex. Crim. App. 1985). This burden is not a light one:

[i]n determining whether counsel's trial performance was deficient, judicial scrutiny must

be highly deferential. A reviewing court must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance.

Oestrick v. State , 939 S.W.2d 232, 237 (Tex. App.--Austin 1997, pet. ref'd); Bohnet v. State , 938

S.W.2d 532, 536 (Tex. App.--Austin 1997, pet. ref'd) (citing Strickland , 466 U.S. at 689 ); see also

Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Generally, we will not speculate about trial counsel's trial strategy. See Jackson , 877

S.W.2d at 771 ; Delrio v. State , 840 S.W.2d 443 (Tex. Crim. App. 1992). (6) An appellant, however, may

rebut the presumption of effectiveness by providing a record from which we may determine that trial

counsel's performance was not based on sound strategy. See Jackson , 877 S.W.2d at 771-72 ; Bohnet ,

938 S.W.2d 532 at 536 .

In this case, we have no record from which we may discern trial counsel's strategy.

Mayhue did not file a motion for new trial and request a hearing at which he could have developed such

a record. See Reyes v. State , 849 S.W.2d 812 (Tex. Crim. App. 1993) (defendant may raise ineffective

assistance of counsel claim and develop record in proceeding on motion for new trial). (7) Nothing in the trial

record reveals counsel's trial strategy with regard to the above-enumerated acts and omissions that Mayhue

alleges show the ineffectiveness of counsel's representation. In the absence of such a record, Mayhue

cannot in this direct appeal overcome the strong presumption that his trial counsel's strategy was reasonable

from counsel's perspective at trial. The record before us is insufficient to support such a conclusion. See

Jackson , 877 S.W.2d at 771-72 ; Bohnet , 938 S.W.2d at 536 ; Oestrick , 939 S.W.2d at 237-38 .

Moreover, Mayhue has not satisfied the second element of the test. Mayhue must prove

a reasonable probability that his counsel's alleged errors caused a different result. Strickland , 466 U.S.

at 694 ; Hernandez , 726 S.W.2d at 55 . A reasonable probability is a likelihood sufficient to undermine

confidence in the outcome. Strickland , 466 U.S. at 694 ; Hernandez , 726 S.W.2d at 55 . We first note

that the jury properly had before it Mayhue's tape-recorded admissions to having illegal sexual contact with

both M.S. and J.M., (8) as well as Lemay's testimony regarding his conversation with Mayhue. Second, we

note that the trial court instructed the jury, in the charge, as follows:

Evidence has been introduced in this case regarding the defendant's having committed

offenses other than the offense now alleged against him. You cannot consider this

testimony for any purpose unless you believe beyond a reasonable doubt that the

defendant committed such other offenses, if any. Even then you may only consider the

same in determining the identity of the defendant, or the issues of intent, motive, system,

scheme, or design, in connection with this offense, and for no other purpose.

See Tex. R. Evid. 404(b). Based on this record, which includes direct evidence of Mayhue incriminating

himself and the above instruction limiting the jury's consideration of extraneous-offense evidence, we cannot

say any errors made by trial counsel probably caused the rendition of an improper verdict. Accordingly,

we overrule Mayhue's point of error one.

CONCLUSION

We have concluded that the trial court properly allowed the jury to reference a transcript

of the audio taped conversation between Mayhue and Lemay, the evidence is factually sufficient to support

the conviction for aggravated sexual assault, and Mayhue failed to establish his counsel was ineffective at

trial. Having so concluded, we affirm the convictions.

_____________________________________________

Lee Yeakel, Chief Justice

Before Chief Justice Yeakel, Justices Aboussie and Jones

Affirmed on Both Causes

Filed: May 7, 1998

Publish

1. The legislature amended the applicable sections of the Penal Code after the alleged offenses

occurred. The prior version of the law is applicable to this case. See Act of May 29, 1993, 73d Leg.,

R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586 , 3618, Act of May 16, 1995, 74th Leg., R.S., ch. 273,

§ 1, 1995 Tex. Gen. Laws 2611 , and Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 6, 1995 Tex.

Gen. Laws 2734 , 2736 ( Tex. Penal Code Ann. § 22.011 , since amended); Act of May 29, 1993, 73d

Leg., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586 , 3620 ( Tex. Penal Code Ann. § 22.021 , since

amended). However, post-offense amendments are not relevant to this case. We, therefore, cite the

current code for convenience.

2. The State investigated both offenses together and several of the State's witnesses had information

about both offenses. The State prosecuted both offenses in a single trial. Mayhue agreed to the single trial

in order to avoid the possibility that any sentences imposed be stacked. See Tex. Penal Code Ann. § 3.02 ;

Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586 , 3592 ( Tex. Penal

Code Ann. § 3.03 , since amended) (subsequent amendment allows court to stack sentences for convictions

of this type, even when tried in single trial). Furthermore, Mayhue briefed his appeals of both convictions

in a single brief. For these reasons, we address the appeals together.

3. Mayhue recognizes the authority of Garrett and Garner , but attempts to analogize his situation to

that in Leal v. State , 782 S.W.2d 844 (Tex. Crim. App. 1989), where the court disapproved the

publication of an unsworn translation of a Spanish tape into an English transcript. Leal is inapposite. The

court's basis for its ruling was that the trial court did not comply with article 38.30 of the Code of Criminal

Procedure in producing the translation .

4. We also observe that federal courts have considered this issue on several occasions. See, e.g.,

United States v. Polk , 56 F.3d 613, 631-32 (5th Cir. 1995); United States v. Wilson , 578 F.2d 67, 69-71 (5th Cir. 1978); United States v. Onori , 535 F.2d 938, 946-49 (5th Cir. 1976). In Onori , the Fifth

Circuit held an authenticated transcript of a tape recording is admissible for the limited purpose of aiding

the jury while they listen to the recording. Onori , 535 F.2d at 946-49 ; see also Wilson , 578 F.2d at 69 .

The court explained that such transcripts are useful both to identify the speakers and to understand portions

of the tape that are difficult to hear. Onori , 535 F.2d at 947 . The court then suggested a procedure by

which trial courts should accommodate parties who disagree about the accuracy of a given transcript: the

trial court and the parties should first endeavor to produce a stipulated transcript that satisfies both sides;

if those efforts fail, each side should prepare its own transcript and produce evidence both supporting its

version and challenging the accuracy of that produced by the other side. Onori , 535 F.2d at 948-49 , cited

in Wilson , 578 F.2d at 70 . Because the jury as fact-finder must ultimately reconcile discrepancies between

the transcripts and recording, the trial court need not decide whether a transcript is accurate before the jury

reviews a transcript along with the tape. Onori , 535 F.2d at 948 , cited in Wilson, 578 F.2d at 70 . The

instructions to the jury in Onori were similar to those given by the trial court here. See Onori , 535 F.2d

at 946 . We find Onori and its progeny to be consistent with Garrett and Garner and reiterate that at no

point during the trial did Mayhue produce a transcript he deemed to be accurate.

5. The court of criminal appeals first used this test in Butler v. State , 716 S.W.2d 48, 54 (Tex. Crim.

App. 1986); see also Wilkerson v. State, 726 S.W.2d 542, 528 (Tex. Crim. App. 1986); Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

6. Although the court of criminal appeals did speculate about trial counsel's strategy in Delrio v.

State , 840 S.W.2d 443, 446-47 (Tex. Crim. App. 1992), the fruit of the court's speculation was not

material to the court's determination of whether trial counsel was ineffective. See id .; see also Jackson ,

877 S.W.2d at 771 .

7. A defendant may also develop such a record in the context of a hearing held in relation to an

application for writ of habeas corpus. See Jackson , 877 S.W.2d at 772 , 772 n.2 (Baird, J., concurring).

8. We have already detailed Mayhue's comments regarding the offense alleged against J.M. Mayhue

also made comments regarding the offense alleged against M.S. When confronted with the allegation that

he had had intercourse with M.S., Mayhue denied having intercourse "because [he] couldn't even get hard

with" her, but he admitted fondling her. When later asked if M.S. objected to having intercourse, Mayhue

responded that "she did it on her own free will," he knew what he was doing was wrong, and that she did

not mind and was "gettin' it from everybody else."

enal Code Ann. § 22.021, since

amended). However, post-offense amendments are not relevant to this case. We, therefore, cite the

current code for convenience.

2. The State investigated both offenses together and several of the State's witnesses had information

about both offenses. The State prosecuted both offenses in a single trial. Mayhue agreed to the single trial

in order to avoid the possibility that any sentences imposed be stacked.