Daer Amador v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-16-00681-CR

Daer Amador, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT

NO. CR-14-0460, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING

NO. 03-16-00682-CR

Daer Amador, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT

NO. CR-15-0352, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Daer Amador of aggravated robbery, see Tex. Penal Code

§ 29.03(a)(2), and sexual assault of a child, see id. § 22.011(a)(2)(A).1 Appellant elected to have the

trial court decide his punishment, see Tex. Code Crim. Proc. art. 37.07(2)(b), and the trial judge

assessed appellant’s punishment, enhanced pursuant to the repeat offender provisions of the Penal

Code, see Tex. Penal Code § 12.42(b), (c)(1), at confinement for 50 years in the Texas Department

of Criminal Justice for each offense. In four points of error, appellant complains about jury-charge

error, challenges the sufficiency of the evidence regarding venue, claims the trial court erroneously

denied his motion to suppress, and asserts that he suffered ineffective assistance of counsel. We

affirm the trial court’s judgments of conviction.

BACKGROUND2

The jury heard evidence that A.S., a 15-year-old juvenile, met appellant on Facebook

while she was living in a Hays County youth shelter. The first time A.S. met appellant in person was

Thanksgiving Day of 2013, approximately one month after they met online. On that day, appellant

1

The record reflects that appellant was also charged with compelling prostitution, see Tex.

Penal Code § 43.05, but the jury acquitted him of that charge.

2

Because the parties are familiar with the facts of the case, its procedural history, and the

evidence adduced at trial, we provide only a general overview of the facts of the case here. The facts

recited pertain mainly to the sexual-assault charge, as the majority of appellant’s claims on appeal

relate to his sexual-assault conviction. We provide additional facts in the opinion as necessary to

advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.

The facts recited are taken from the testimony and other evidence presented at trial.

2

picked A.S. up at a friend’s house,3 and she “hung out” with appellant and his friend, an individual

named Eric Cordoba,4 drinking and doing drugs.

A.S. testified that Martin Torres, a man whom A.S. knew through her mother, had

been contacting A.S. seeking to have her arrange a paid sexual encounter for him with another

woman. According to A.S., when she informed Torres that she could not make such arrangements,

he asked her if she would have sex with him for money. A.S. said that she initially refused, but he

continued to call and text her seeking to have sex with her for money. On Thanksgiving Day, when

she was with appellant and Cordoba, she shared Torres’s proposition with the two men. A.S.

testified that Cordoba devised a plan to rob Torres to get money for a hotel room. The plan was to

have A.S. agree to meet Torres to have sex in exchange for money, but appellant and Cordoba would

interrupt and rob Torres before the sex occurred.

The evidence showed that Torres arrived at the planned location—near a Motel 6 in

San Marcos in Hays County, Texas—and A.S. got into his vehicle. A.S. testified that Torres

attempted to have sex with her. She said that she resisted, but that he forced himself on her. A.S.

explained that appellant and Cordoba then approached Torres’s vehicle wearing masks and

brandishing guns, and she fled the vehicle. The evidence reflected that appellant and Cordoba

3

The record reflects that by that time A.S. had run away from the Hays County youth shelter

and was staying in Round Rock at the house of a 30-year-old female friend.

4

The record reflects that the last name of appellant’s friend was either “Cordoba” or

“Cordova.” We refer to him as “Cordoba” because that it how the witnesses at trial referred to him.

3

physically assaulted Torres, striking him with a pistol, and stole his belongings.5 Appellant,

Cordoba, and A.S. then left the scene.

A.S. testified that after they left, she was driving the car when she was pulled over

for a traffic stop by San Marcos police. The officers discovered that A.S. was 15 years old and

determined that she was a reported runaway. A.S. was taken into custody and transported to the

Hays County juvenile detention center; appellant and Cordoba were, at that time, released from the

scene. The evidence showed that at the detention center, authorities discovered Torres’s belongings

in A.S.’s backpack, along with a handgun. While in detention, A.S. reported to the juvenile

authorities that she had been “raped” by Torres. As part of the investigation of that sexual assault,

A.S. was examined by a sexual-assault nurse examiner, who collected evidence from A.S., including

a sample from “inside the vaginal wall.” Subsequent DNA testing excluded Torres as a contributor

to the DNA sample recovered from A.S.

By that point, appellant had been arrested for the aggravated robbery of Torres.

Robert Elrod, a detective from the San Marcos Police Department, went to the Hays County jail and

met with appellant to request a DNA sample. The detective explained that they were trying to

identify DNA recovered from A.S. and knew that appellant had been with her. Appellant asked the

detective, “So, y’all found DNA in her?” Detective Elrod confirmed that DNA was found inside

5

Torres, who had already been convicted for his sexual assault of A.S. at the time of trial,

testified pursuant to an order of testimonial immunity. He explained his interaction with A.S. and

described the robbery, although he was unable to identify appellant as one of the perpetrators.

Torres’s stepson also testified, corroborating certain facts about the robbery. In addition, the

neurosurgeon who treated Torres after the robbery testified about the injuries Torres sustained,

including a depressed skull fracture. We omit detailed descriptions of the testimony of these

witnesses as it is not relevant to appellant’s complaints on appeal.

4

A.S. Appellant then admitted that he “did have sexual relations, well, intercourse” with A.S. “about

two days” before the event with Torres. He then agreed to allow the detective to collect a sample

of his DNA. Subsequent Y-STR testing demonstrated that the DNA recovered from the vaginal

sample from A.S. was consistent with appellant’s DNA profile.6

A.S. was compelled to testify at trial pursuant to an order granting testimonial

immunity. After describing the events related to the robbery of Torres, she testified that she never

had sex with appellant. She explained that appellant’s DNA was found inside her because she “put

his semen inside of [herself].” After initially refusing to explain how she accomplished that feat,

A.S. said that she “jacked [appellant] off” and “put [his semen] on [her] hand and put it in [her]

vagina.” She further said that she did this while appellant was passed out or asleep. On cross

examination, A.S. said that she did it because “she just wanted to get pregnant.” A.S.’s testimony

reflected that the sexual activity between her and appellant happened at the motel where she,

appellant, and Cordoba were staying. She initially indicated that she was uncertain where the motel

was located, testifying that it was in Austin or Round Rock and that she “really [did not] remember”

where it was. Later, on cross examination, she maintained that it was in Round Rock.

The sexual-assault nurse examiner testified that during the sexual-assault exam (for

Torres’s sexual assault against her), A.S. indicated that her last consensual sexual encounter was the

6

Specifically, the DNA analyst testified,

The Y-STR profile from the sperm cell fraction of this item is consistent with the

Y-STR profile of [appellant]. The selected profile is found in 0 of 5,259 total

individuals within the database. In addition, any paternally related male relatives of

[appellant] may not be excluded as being the contributor of this male DNA profile.

5

night before the Torres incident. The nurse examiner conceded that one could insert semen into

themselves to become pregnant “if so inclined,” but further expressed that A.S. had availed herself

of the “plan B” treatment to prevent pregnancy.

Appellant was ultimately indicted for aggravated robbery, compelling prostitution,

and sexual assault of a child. The jury found him guilty of aggravated robbery and sexual assault

of a child, but not guilty of compelling prostitution. The trial court sentenced appellant to 50 years

in prison for each offense, ordering the sentences to be served concurrently.

DISCUSSION

Appellant raises four points of error complaining about jury-charge error, insufficient

evidence regarding venue, the denial of his motion to suppress, and ineffective assistance of counsel.

Claims Related to Venue

Appellant’s first two points of error raise issues concerning venue. In his first point

of error, he asserts that the trial court erred by giving an erroneous jury instruction regarding venue.

In his second point of error, appellant argues that the State failed to prove venue by a preponderance

of the evidence.

Appellant was charged by indictment with sexual assault of a child. Specifically, the

indictment alleged that

[o]n or about the 28th day of November, 2013, in Hays County, Texas, [appellant]

did then and there intentionally or knowingly contact or penetrate the female sexual

organ of [A.S.], a child who was then and there younger than 17 years of age, with

[appellant’s] sexual organ[.]

6

In the abstract portion of the court’s jury charge, the trial court included a one-paragraph section

about venue:

Venue is not a criminative fact and therefore not an element of the offense. To

sustain the allegation of venue, it shall only be necessary to prove by the

preponderance of the evidence that by reason of the facts in the case, the county

where such prosecution is carried on has venue. Sexual assault may be prosecuted

in the county in which it is committed, or in any county through or into which the

victim is transported in the course of the sexual assault. If an offense has been

committed within the state and it cannot readily be determined within which county

or counties the commission took place, trial may be held in the county in which the

defendant resides, in the county in which he is apprehended, or in the county to

which he is extradited.

Appellant did not object to the charge on the basis of the instructions regarding venue.

These venue instructions incorporated two venue provisions of the Code of Criminal

Procedure—article 13.15 and article 13.19. Article 13.15 concerns the appropriate venue for

sexual-assault prosecutions and provides, in relevant part:

Sexual assault may be prosecuted in the county in which it is committed, in the

county in which the victim is abducted, or in any county through or into which the

victim is transported in the course of the abduction and sexual assault.

Tex. Crim. Proc. Code art. 13.15. Article 13.19 concerns prosecutions for offenses for which venue

cannot be determined and provides:

If an offense has been committed within the state and it cannot readily be determined

within which county or counties the commission took place, trial may be held in the

county in which the defendant resides, in the county in which he is apprehended, or

in the county to which he is extradited.

7

Id. art. 13.19.

We address appellant’s challenge to the sufficiency of the evidence concerning venue

first, and then address his claim of jury-charge error.

Evidentiary Sufficiency Regarding Venue

In his second point of error, appellant contends that the evidence in the record is

insufficient to establish that the alleged sexual assault occurred in Hays County, which is where the

indictment alleged that the offense occurred.

The allegation that the offense was committed in Hays County is a venue allegation.

Venue is not an element of the offense charged. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim.

App. 1981); State v. Blankenship, 170 S.W.3d 676, 681 (Tex. App.—Austin 2005, pet. ref’d); see

Schmutz v. State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014) (“As it is not a ‘criminative fact,’ venue

is not an ‘element of the offense’ under Texas law.”). “Venue means the place where the case may

be tried.” Blankenship, 170 S.W.3d at 681; see Soliz v. State, 97 S.W.3d 137, 141 (Tex. Crim. App.

2003) (“[Venue] means the county or district in which a court with jurisdiction may hear and

determine a case.”); Thomas v. State, 699 S.W.2d 845, 854 (Tex. Crim. App. 1985) (“‘Venue’ means

the place in which prosecutions are to begin.”); Blankenship, 170 S.W.3d at 681 (“Venue denotes

locality, and its prevailing meaning is the place of trial, the geographical location in which an action

or proceeding should be brought to trial.”).

The State is required to prove that the prosecution is being brought in the proper

venue pursuant to Chapter 13 of the Texas Code of Criminal Procedure. See Ex parte Watson,

601 S.W.2d 350, 352 (Tex. Crim. App. 1980); Tex. Code Crim. Proc. art. 13.17. The general rule

8

provides that “[i]f venue is not specifically stated, the proper county for the prosecution of offenses

is that in which the offense was committed.” Tex. Code Crim. Proc. art. 13.18. However, special

venue statutes, which expand the number of counties in which an offense may be prosecuted, have

been enacted.7 See id. arts. 13.01–13.30. These statutes are a “species of codified ‘substantial

contacts’ jurisdiction; thus, for venue to lie, the defendant, his conduct, his victim, or the fruits of

his crime must have some relationship to the prosecuting county.” Murphy v. State, 112 S.W.3d 592,

604 (Tex. Crim. App. 2003) (quoting Soliz, 97 S.W.3d at 141). The Legislature has specified the

types of contacts that satisfy this “substantial contacts” threshold for various offenses. Soliz,

97 S.W.3d at 141. “While some of the special venue statutes expressly apply to identifiable Penal

Code offenses, other special venue provisions apply by virtue of the particular facts of the case rather

than the specifically charged offense.” Murphy, 112 S.W.3d at 604. Compare Tex. Code Crim.

Proc. arts. 13.12 (applicable to false imprisonment and kidnapping prosecution), 13.13 (applicable

to prosecution of criminal conspiracy), 13.14 (applicable when prosecuting bigamy) with id. arts.

13.01 (applicable to “offenses committed wholly or in part outside this State”), 13.04 (applicable to

7

The Court of Criminal Appeals has explained that these special venue statutes have been

enacted for various reasons, such as: (1) the difficulty of proving precisely where the offense was

committed, see, e.g., Tex. Code Crim. Proc. art. 13.04 (offenses committed close to county

boundaries may be prosecuted in either county); (2) the location where evidence of the crime is

found, see, e.g., id. art. 13.08 (theft may be prosecuted in county where actor unlawfully obtained

property or where he transported it); (3) the effect that a crime may have upon several different

counties, see, e.g., id. art. 13.02 (forgery may be prosecuted in county where writing was originally

forged or in any county in which forged document was used or attempted to be used or where it was

deposited for collection, or, if forgery relates to land, in county where land itself is located); or

(4) the effect that the actor may have upon various counties, see, e.g., id. art. 13.13 (criminal

conspiracy may be prosecuted in county in which agreement was made, where it was to be carried

out, or where any conspirator performed any act to achieve an object of conspiracy). Soliz v. State,

97 S.W.3d 137, 141 (Tex. Crim. App. 2003).

9

“offenses committed on the boundaries of two or more counties, or within four hundred yards

thereof”), 13.06 (applicable to offenses committed on rivers or streams), 13.07 (applicable in case

in which victim receives injury in one county and dies in another).

Venue in a criminal case need be proven only by a preponderance of the evidence.

Murphy, 112 S.W.3d at 604; Fairfield, 610 S.W.2d at 779; Dewalt v. State, 307 S.W.3d 437, 457

(Tex. App.—Austin 2010, pet. ref’d); Blankenship, 170 S.W.3d at 681; see Tex. Code Crim. Proc.

art. 13.17 (“To sustain the allegation of venue, it shall only be necessary to prove by the

preponderance of the evidence that by reason of the facts in the case, the county where such

prosecution is carried on has venue.”). Venue may be proven by circumstantial or direct evidence.

Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983), overruled on other grounds by

Schmutz, 440 S.W.3d at 37–39; Stanley v. State, 471 S.W.2d 72, 77 (Tex. Crim. App. 1971), vacated

in part on other grounds by Stanley v. Texas, 408 U.S. 939 (1972); Dewalt, 307 S.W.3d at 457. In

addition, the trier of fact may make reasonable inferences from the evidence to decide the issue of

venue. Dewalt, 307 S.W.3d at 457; Thompson v. State, 244 S.W.3d 357, 362 (Tex. App.—Tyler

2006, pet. dism’d); Edwards v. State, 97 S.W.3d 279, 285 (Tex. App.—Houston [14th Dist.] 2003,

pet. ref’d). Further, “[v]enue will stand if it is sufficient under any one of the venue provisions the

jury was instructed upon.” Murphy, 112 S.W.3d at 605; accord Pizzo v. State, No. 03-14-00701-CR,

2017 WL 1046279, at *9 (Tex. App.—Austin Mar. 10, 2017, pet. ref’d) (mem. op., not designated

for publication); Dewalt, 307 S.W.3d at 457.

On appeal, we presume that venue was proved in the trial court unless it was disputed

in the trial court or the record affirmatively shows the contrary. Tex. R. App. P. 44.2(c)(1); see

10

Meraz v. State, 415 S.W.3d 502, 506 (Tex. App.—San Antonio 2013, pet. ref’d); Hays v. State,

370 S.W.3d 775, 785 (Tex. App.—Texarkana 2012, no pet.); Witt v. State, 237 S.W.3d 394, 398–400

(Tex. App.—Waco 2007, pet. ref’d); Blankenship, 170 S.W.3d at 681. A motion for directed verdict

specifically challenging the proof of venue timely raises and preserves the issue for appeal.8

Thompson, 244 S.W.3d at 362 (citing Black, 645 S.W.2d at 791); see George E. Dix &

John M. Schmolesky, 40 Texas Practice: Criminal Practice and Procedure § 5:73 (3d ed. 2017)

(“If the appellant moved for directed verdict of not guilty when the State rested and included the

claim that venue was not shown, that makes venue an issue and precludes the presumption

from arising.”).

When reviewing whether there is legally sufficient evidence of venue, we view all

the evidence in the light most favorable to an affirmative venue finding and determine whether any

rational trier of fact could have found by a preponderance of the evidence that venue was proper.

Dewalt, 307 S.W.3d at 457; Gabriel v. State, 290 S.W.3d 426, 435 (Tex. App.—Houston [14th

Dist.] 2009, no pet.); Witt, 237 S.W.3d at 398–400; Duvall v. State, 189 S.W.3d 828, 830 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d); Vanschoyck v. State, 189 S.W.3d 333, 336 (Tex.

App.—Texarkana 2006, pet. ref’d). If there is evidence establishing venue by a preponderance, we

are not authorized to reverse the judgment on sufficiency of the evidence grounds. Dewalt,

307 S.W.3d at 457; Gabriel, 290 S.W.3d at 436.

8

Appellant sought a directed verdict on the sexual-assault charge, asserting, “There is no

evidence, whatsoever, that [appellant] ever touched the female sexual organ of [A.S.] There was

some evidence that she touched his. And there is no evidence that it happened in Hays County,

Texas.” We construe this last assertion as a challenge to the proof of venue sufficient to raise the

venue issue to the trial court and preserve this issue for appeal.

11

In this case, article 13.15, the specific venue statute concerning sexual assault, applies

to the identifiable Penal Code offense alleged here—sexual assault of a child. In addition, article

13.19, which provides a special rule when venue cannot otherwise be fixed, applies by virtue of the

particular facts of this case—the facts that create uncertainty about where the sexual-assault offense

occurred, see George E. Dix & John M. Schmolesky, 40 Texas Practice: Criminal Practice and

Procedure § 5:39 (3d ed. 2017) (observing that under article 13.19, “[t]he predicate for placing

venue in the county of the defendant’s residence or other statutory alternatives is uncertainty

concerning where the offense occurred”).

To support his position that the evidence was insufficient to support venue in Hays

County, appellant points to A.S.’s testimony on cross examination in which she stated that the sexual

activity that she and appellant engaged in happened in Round Rock. However, initially, when asked

about the location of the Motel 6 where she stayed with appellant, A.S. testified that the motel was

“[i]n somewhere around Round Rock or Austin. I basically was on -- I was on Xanax and alcohol.

I really don’t remember.” Only on cross examination did A.S. maintain that the sexual conduct

happened in Round Rock. Her statements during her trial testimony concerning where the

sexual activity occurred were inconsistent and equivocal. The jury could have disbelieved A.S.’s

testimony that appellant engaged in sexual activity with her in Round Rock and instead believed her

earlier testimony that she did not remember where the motel was located. See Clayton v. State,

235 S.W.3d 772, 778–79 (Tex. Crim. App. 2007) (observing that jury, as exclusive judge of facts,

is entitled to weigh and resolve conflicts in evidence and draw reasonable inferences therefrom);

Dewalt, 307 S.W.3d at 457 (noting that venue may be proven by circumstantial evidence and that

12

trier of fact may make reasonable inferences from evidence to decide issue of venue). The jury could

have found A.S.’s later certainty that the motel was in Round Rock to be not credible considering

that throughout her testimony A.S. made repeated efforts to protect appellant or minimize his

criminal conduct. In fact, her testimony at trial contradicted other statements that she made to

juvenile detention officials, police, and in prior trial testimony—to the extent that the prosecutor

impeached A.S. with her prior inconsistent statements.9

Contrary to appellant’s contention, the State was not required to prove that the sexual-

assault offense occurred in Hays County. To sustain the allegation of venue, the State’s burden was

only to prove by a preponderance of the evidence that the county where the offense was

prosecuted—Hays County—had venue. See Tex. Code Crim. Proc. art. 13.17. Article 13.19

provides that when an offense has been committed within the state but “it cannot readily be

determined within which county or counties the commission took place,” trial may be held in the

county in which the defendant resides, the county where he is apprehended, or the county to which

he is extradited. Id. art. 13.19. This provision was made a part of the trial court’s jury charge in this

case. The record reflected that appellant was “apprehended” on the sexual-assault charge in Hays

County when he was in the Hays County jail awaiting trial on the aggravated-robbery charge and had

been “extradited” to Hays County from the Texas Department of Criminal Justice to face the pending

robbery charge.10 Given the difficulty of determining exactly where the sexual-assault offense

9

The record also reflected that A.S. continued her relationship with appellant after he was

charged with the instant offenses, visiting him eight times while he was in jail awaiting trial.

10

Concerning extradition under article 13.19, one of our sister court of appeals

has explained,

13

occurred, a rational jury could have relied on this provision and concluded that venue was proper in

Hays County, the county of appellant’s apprehension and extradition. See, e.g., Murphy, 112 S.W.3d

at 605 (given difficulty of determining where capital murder occurred, venue proper in county of

appellant’s residence); Witt, 237 S.W.3d at 398–400 (because evidence showed that appellant

sexually assaulted child in unknown Texas counties, venue was proper in county to which he was

extradited). Thus, viewed in a light most favorable to an affirmative venue finding, a rational trier

of fact could have found by a preponderance of the evidence that venue was proper in Hays County.

Moreover, even assuming arguendo that the evidence was insufficient to support an

affirmative venue finding, the failure of proof of venue by the prosecution does not negate the guilt

of the accused. Fairfield, 610 S.W.2d at 779; Blankenship, 170 S.W.3d at 681; see Schmutz,

440 S.W.3d at 35 (“Because venue is not an element of the offense, . . . the failure to prove venue

does not implicate sufficiency of the evidence, nor does it require acquittal under Jackson.”). Rather,

venue error is non-constitutional and is subject to harm analysis under Texas Rule of Appellate

Procedure 44.2(b). Schmutz, 440 S.W.3d at 39. Non-constitutional error requires reversal only if

“Extradition” is customarily understood as the interstate or international transfer of

an alleged criminal to face charges in the receiving jurisdiction. See Black’s Law

Dictionary 623 (8th ed. 2004) (defining “extradition” in pertinent part as “[t]he

official surrender of an alleged criminal by one state or nation to another having

jurisdiction over the crime charged”); see also Tex. Code Crim. Proc. ch. 51

(providing for interstate extradition of fugitives from justice). As used in

article 13.19[,] however, the term necessarily refers to the transfer of alleged

criminals from one Texas county to another. See Black’s Law Dictionary 623

(defining “extradite” in pertinent part as the “surrender or deliver[y of] (a fugitive)

to another jurisdiction”).

Witt v. State, 237 S.W.3d 394, 400 (Tex. App.—Waco 2007, pet. ref’d).

14

it affects the substantial rights of the accused. See Tex. R. App. P. 44.2(b); Gonzalez v. State,

544 S.W.3d 363, 373 (Tex. Crim. App. 2018); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim.

App. 2011); Sandoval v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no pet.). “A

substantial right is affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict.” Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016)

(quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). We will not overturn a

criminal conviction for non-constitutional error if, after examining the record as a whole, we have

fair assurance the error did not influence the jury, or influenced the jury only slightly. Gonzalez,

544 S.W.3d at 373; Barshaw, 342 S.W.3d at 93; Sandoval, 409 S.W.3d at 287.

We first observe that the record in this case demonstrates that both A.S. and appellant

had a relationship with Hays County, the prosecuting county. The evidence showed that A.S. resided

in Hays County at the youth shelter before she ran away, was apprehended as a runaway in Hays

County, and then was detained in the Hays County juvenile detention center. Further, the evidence

demonstrated that appellant and A.S. committed the aggravated robbery against Torres in Hays

County. In addition, the alleged compelling-prostitution charge against appellant was based on

conduct that occurred, in part, in Hays County. Finally, the record reflected that appellant was

incarcerated in the Hays County jail, first on the aggravated-robbery charge and later on the

compelling-prostitution and sexual-assault charges. Given those connections with Hays County,

prosecution of the sexual assault in Hays County was consistent with the purpose underlying the

venue statutes. See Murphy, 112 S.W.3d at 604; Soliz, 97 S.W.3d at 141. The Hays County

community had a connection to the prosecution and the individuals involved, and, thus, Hays County

15

jurors had a natural interest in the case. See Thompson, 244 S.W.3d at 366 (“Venue rules are

intended to ensure that jurors have a natural interest in the case because it touched their community.”

(citing George E. Dix & Robert O. Dawson, 40 Texas Practice: Criminal Practice and Procedure

§ 2.02 (2001)).

Further, there was no indication in the record that the trial in Hays County was the

result of forum shopping or that it particularly inconvenienced or misled appellant, prevented him

from presenting a defense, or deprived him of a fair judge or jury. See Schmutz v. State,

No. 06-12-00059-CR, 2013 WL 1188994, at *3 (Tex. App.—Texarkana Mar. 22, 2013) (mem. op.,

not designated for publication), aff’d, 440 S.W.3d 29 (Tex. Crim. App. 2014); Thompson,

244 S.W.3d at 366.

Moreover, at trial the contested issue concerning the sexual assault was not where the

offense occurred but whether the offense occurred at all. The evidence in the record supporting the

jury’s guilty verdict was strong. Appellant admitted to Detective Elrod that he had sexual

intercourse with A.S., and appellant’s DNA profile matched the DNA evidence recovered from

inside A.S.’s vagina during the sexual-assault exam.

Based on the record before us, we have fair assurance that any insufficiency in the

evidence concerning venue did not influence the jury, or influenced the jury only slightly. See

Gonzalez, 544 S.W.3d at 373; Barshaw, 342 S.W.3d at 93; Sandoval, 409 S.W.3d at 287.

For the above reasons, we overrule appellant’s second point of error.

16

Jury-charge Error

We review alleged jury-charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State, 175 S.W.3d 738,

743–44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the

jury-charge error was preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843 (Tex.

Crim. App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)

(setting forth procedure for appellate review of claim of jury-charge error). If the jury-charge error

has not been properly preserved by an objection or request for instruction, as it was not here, the

error must be “fundamental” and requires reversal only if it was “so egregious and created such harm

that the defendant was deprived of a fair and impartial trial.” Marshall, 479 S.W.3d at 843; accord

Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Almanza, 686 S.W.2d at 171.

A trial court is statutorily obligated to instruct the jury on the “law applicable to the

case.” See Tex. Code Crim. Proc. art. 36.14; Arteaga, 521 S.W.3d at 334. The jury charge should

tell the jury what law applies and how it applies to the case. Delgado v. State, 235 S.W.3d 244, 249

(Tex. Crim. App. 2007). The trial court’s duty to instruct the jury on the “law applicable to the case”

exists even when defense counsel fails to object to inclusions or exclusions in the charge. Vega

v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 486 (Tex.

Crim. App. 2011). The trial court is “ultimately responsible for the accuracy of the jury charge and

accompanying instructions.” Vega, 394 S.W.3d at 518 (quoting Delgado, 235 S.W.3d at 249);

Taylor, 332 S.W.3d at 488.

17

In his first point of error, appellant asserts that the trial court’s instruction on the

venue provision concerning sexual assault was erroneous because it omitted portions of the statutory

provision. He further contends that the erroneous instruction “substantially lowered the State’s

burden of proof, causing [appellant] egregious harm.”

The venue statute concerning sexual assault provides that venue lies in the county in

which the sexual assault was committed, the county in which the sexual-assault victim was abducted,

or “in any county through or into which the victim is transported in the course of the abduction and

sexual assault.” Tex. Code Crim. Proc. art. 13.15. However, concerning counties involving

transportation of the victim, the trial court here instructed the jury that venue lies “in any county

through or into which the victim is transported in the course of the sexual assault.” (Emphasis

added). This language omitted reference to the abduction of the victim. Thus, the trial court

described counties of transportation in terms of counties through or into which the victim was

transported in the course of the sexual assault; rather than in the course of the abduction and sexual

assault. Appellant maintains that the omission of the abduction language constituted error in the jury

charge. We agree.

Having found error in the jury charge, we must next consider whether appellant was

harmed by the error. Appellant concedes that he did not object at trial to the instructions in the jury

charge concerning venue. Consequently, the jury-charge error was not preserved, and reversal is

required only if the error was “fundamental” in that it was “so egregious and created such harm that

the defendant was deprived of a fair and impartial trial.” Marshall, 479 S.W.3d at 843; Villarreal,

453 S.W.3d at 433; Almanza, 686 S.W.2d at 171; see also State v. Ambrose, 487 S.W.3d 587, 595

18

(Tex. Crim. App. 2016) (reaffirming that under precedent of Court of Criminal Appeals, unpreserved

jury-charge error does not require new trial unless error causes “egregious harm”).

Jury-charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory. Arteaga, 521 S.W.3d

at 338; Marshall, 479 S.W.3d at 843; Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App.

2015). “Egregious harm is a ‘high and difficult standard’ to meet, and such a determination must

be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d at 433 (quoting Reeves v. State,

420 S.W.3d 812, 816 (Tex. Crim. App. 2013)); see Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.

App. 2013) (“[Egregious harm] is a difficult standard to meet and requires a showing that the

defendants were deprived of a fair and impartial trial.”). We will not reverse a conviction unless the

defendant has suffered “actual rather than theoretical harm.” Villarreal, 453 S.W.3d at 433; see

Marshall, 479 S.W.3d at 843 (“[C]ourts are required to examine the relevant portions of the entire

record to determine whether appellant suffered actual harm, as opposed to theoretical harm, as a

result of the error.”); Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) (“An egregious

harm determination must be based on a finding of actual rather than theoretical harm.”).

In examining the record to determine whether jury-charge error has resulted in

egregious harm, we consider (1) the entirety of the jury charge; (2) the state of the evidence,

including the contested issues and weight of probative evidence; (3) the arguments of counsel; and

(4) any other relevant information revealed by the trial record as a whole. Arteaga, 521 S.W.3d at

338; Marshall, 479 S.W.3d at 843; Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171. The

19

analysis is “fact specific and is done on a ‘case-by-case basis.’” Arrington, 451 S.W.3d at 840

(quoting Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013)).

Entirety of the Jury Charge

In considering the jury charge as a whole, we observe that the jury-charge instructions

concerning venue also included an instruction pursuant to article 13.19 regarding venue when it

cannot be determined where the offense occurred.

As we discuss in more detail below, the record contained ample evidence that

appellant engaged in sexual intercourse with A.S., although the location where he had sex with her

is not entirely clear. Based on the evidence presented, the jurors could have concluded that the

sexual assault occurred, but that where it occurred could not be determined. Consequently, the

article 13.19 venue provision applied.

Accordingly, we conclude that consideration of the entirety of the jury charge, which

included the article 13.19 venue provision applicable to the factual context of this case, weighs

against a finding of egregious harm.

State of the Evidence

We next consider the state of the evidence, including the contested issues and weight

of probative evidence. See Villarreal, 453 S.W.3d at 433. Under this factor, “we look to the state

of the evidence to determine whether the evidence made it more or less likely that the jury charge

caused appellant actual harm.” Arrington, 451 S.W.3d at 841.

20

Th record reflects that A.S. told the sexual-assault nurse examiner that her last

consensual sexual contact (before the sexual assault Torres perpetrated against her on

November 28th) was the night of November 27th at around midnight but she did not indicate where

that sexual encounter occurred. During the sexual-assault exam, the nurse examiner obtained

evidentiary samples from A.S. Subsequent DNA testing indicated that the Y-STR profile from the

sperm sample recovered from “inside the vaginal wall” of A.S. was consistent with appellant’s

Y-STR profile. Moreover, appellant admitted to the detective that he had “sexual intercourse” with

A.S. two days before the incident involving Torres, though he did not indicate where the act

occurred. Further, in her testimony, while A.S. denied having sexual intercourse with appellant—in

contradiction of appellant’s statements—she indicated that the sexual conduct they engaged in

happened in a motel that was “in Austin or Round Rock” and expressed that she did not remember

where it was located. While she backtracked in her apparent efforts to protect appellant and

subsequently stated that the sexual encounter happened in Round Rock, she initially indicated

uncertainty about the location of the motel and where the sexual contact occurred.

We also observe that the contested issue at trial was not where the sexual assault

occurred but whether it happened at all. The defense theory asserted that appellant never contacted

or penetrated A.S.’s female sexual organ at all, let alone with his sexual organ, but that his DNA got

inside of A.S. when she masturbated him (while he was unaware) and then put his semen inside of

her vagina with her own finger.

However, notwithstanding the defensive theory based on A.S.’s explanation, the

record contains ample evidence that appellant engaged in sexual intercourse with A.S.—including

21

appellant’s admissions that he had sexual intercourse with her and his DNA inside of her. Because

the location of where he had sex with A.S. is not entirely clear, particularly given A.S.’s equivocal

testimony, the jurors could have concluded that the sexual assault occurred in a location that could

not be determined. Thus, as we noted above, the article 13.19 venue provision applied.

After reviewing the evidence and the contested issues at trial, and given the article

13.19 venue provision included in the jury charge and its applicability to the facts of this case, we

conclude that the state of the evidence weighs against a finding of egregious harm.

Arguments of Counsel

Under this factor, we consider whether any statements made during the trial by the

prosecutor, the defense counsel, or the trial court may have exacerbated or ameliorated the error in

the jury charge. Arrington, 451 S.W.3d at 844.

Regarding the arguments of counsel, the State briefly discussed the issue of venue,

but referred only to the “catchall” provision that applied if “we can’t figure out exactly where this

sexual assault occurred.” The State did not refer to the instruction concerning the sexual-assault

venue provision at all; thus, the State did not refer to the erroneous instruction that omitted the

language regarding abduction.

Defense counsel’s closing argument focused on the failure of the evidence to

demonstrate that appellant contacted or penetrated A.S.’s sexual organ with his sexual organ,

emphasizing A.S.’s testimony that she masturbated him and inserted the ejaculate inside herself with

her finger. Counsel never addressed the issue of venue and never discussed where that sexual

activity occurred.

22

We perceive nothing in the closing arguments or other statements by the parties or

the trial court during trial that exacerbated the trial court’s failure to include the entirety of the

statutory language of the sexual-assault venue provision. Neither the State nor defense counsel

highlighted or relied on the erroneous jury-charge instruction; neither party erroneously applied (or

even discussed) the instruction concerning the sexual-assault venue provision. The arguments of

counsel weigh against a finding of egregious harm.

Other Relevant Information in the Record

As to the fourth factor, our review of the record has disclosed no other relevant

information that requires our consideration in the egregious harm analysis.

Conclusion Regarding Harm

After reviewing the record and considering the relevant factors, we hold that the trial

court’s erroneous instruction concerning the sexual-assault venue provision did not egregiously harm

appellant. We overrule appellant’s first point of error.

Denial of Motion to Suppress

Appellant filed a pretrial motion to suppress seeking to suppress the incriminating

statements that he made to Detective Elrod when the detective visited appellant in the jail to request

a voluntary sample of appellant’s DNA.

The record reflects that while appellant was incarcerated in the Hays County jail

awaiting trial for the aggravated robbery against Torres, Detective Elrod met with appellant in the

jail for the purpose of requesting a DNA sample. The audio recording of the encounter reflects that

23

the detective introduced himself to appellant and then explicitly told him that he was not there to

question appellant about the aggravated-robbery charge. The detective explained that he was “here

about [A.S.].” He then discussed the fact that because A.S. had made a report of a sexual assault by

Torres, a sexual-assault exam had been conducted “looking for evidence.” Detective Elrod further

explained that “foreign DNA” was found and that he was “trying to get known samples from people

who were with her or may have had sex with her.” He stated, “We don’t know -- we know that y’all

were together.”11 The detective told appellant that they were trying to identify the DNA and that he

was there to ask if appellant would consent to giving “a known sample” to the detective.

Detective Elrod then explained the process of obtaining the DNA sample (by using buccal swabs)

and indicated that the sample would be sent off to DPS to see if it “matched” the sample they had.

The following exchange then ensued:

DETECTIVE: Does that make sense? Any questions on that?

APPELLANT: Um, yes. So, y’all found DNA in her?

DETECTIVE: Yes.

APPELLANT: Ok. Um. Because I did have sexual relations, well,

intercourse with her about two days prior to that [night of the

robbery] maybe.

11

At the suppression hearing, Detective Elrod said that he did not suspect appellant of

having had sex with A.S. when he went to request the DNA sample but knew that appellant had been

with A.S. He explained to the trial court that he meant that he knew that appellant had had contact

with A.S. because they were involved in the robbery together; he did not mean contact “in a

sexual manner.”

24

The detective followed up by asking, “So, you’re saying that you did have sex with her two days

prior to the event that she’s saying happened?” Appellant responded, “Yes, sir.” Detective Elrod

said, “Ok,” and then asked if appellant would be willing to give a DNA sample. Appellant

consented, and the detective obtained the sample by buccal swabs. After the collection, the detective

asked if appellant “had any questions for [him] that [he] could answer,” indicating that he did not

know anything about appellant’s case. Appellant expressed concerns, saying that he did not know

“if he should be worried if [his] DNA pops up since she’s got this charge going on.” Appellant’s

next comments are difficult to discern on the recording, but he appears to be asking about what will

happen “since his DNA popped up.” Detective Elrod explained that he did not know if appellant’s

DNA had “popped up,” and that he was just trying to get a known sample to try to identify the

foreign DNA. Appellant then stated, “Cause I know I did have intercourse with her prior to the day

after I picked her up.”

In his motion to suppress and at the suppression hearing, appellant asserted that the

encounter with Detective Elrod was, in reality, a custodial interrogation. Thus, according to

appellant, the incriminating statements that he made to the detective were inadmissible because he

had been subjected to custodial interrogation without being given the requisite constitutional and

statutory warnings in violation of his constitutional rights under Miranda and the Fifth Amendment

and his statutory rights under article 38.22. Therefore, appellant argued, his statements should

be suppressed.

The trial court conducted a hearing on the motion at which Detective Elrod testified

and the audio recording of the detective’s encounter with appellant at the jail was admitted.

25

Appellant maintained that he was in custody because he was incarcerated in the jail on the pending

aggravated-robbery charge and was not free to leave. He further argued that the encounter was an

interrogation because the detective’s interaction with appellant was likely to elicit an incriminating

statement. Relying on Herrera v. State, 241 S.W.3d 520 (Tex. Crim. App. 2007), the State asserted

that appellant was not in custody for purposes of the sexual assault but only for the aggravated

robbery, an unrelated charge. The State further contended that appellant was not interrogated

because the detective’s only purpose in meeting with appellant was to obtain physical evidence. At

the conclusion of the suppression hearing, the trial judge took the case under advisement, indicating

that he intended to listen to the audio recording of the encounter again and review the case law

provided by the parties. Subsequently, the trial court denied appellant’s motion to suppress. The

court later issued findings of facts and conclusions of law, in which the trial court concluded that

appellant was not in custody for purposes of the encounter with Detective Elrod and that appellant

was not subjected to interrogation. Thus, the court concluded that appellant’s incriminating

statements were admissible notwithstanding the absence of Miranda and article 38.22 warnings.

In his third point of error, appellant contends that the trial court erred by admitting

his incriminating statements, contending that “it was constitutional error for the trial court not to

suppress” the audio recording of the jail encounter.12 Appellant first challenges the trial court’s

findings that he was not in custody and that he was not subjected to interrogation and asserts that the

12

Although appellant phrases his claim in terms of an erroneous admission of evidence, he

relies on evidence adduced at the suppression hearing, challenges the trial court’s subsequent

findings, and complains about the trial court’s “failure to suppress” this evidence. Therefore, we

construe his complaint as a challenge to the trial court’s denial of his motion to suppress.

26

trial court erred in concluding that the incriminating statements were not obtained in violation of

article 38.22.13 Appellant also asserts that his Sixth Amendment right to counsel was violated by the

encounter with Detective Elrod because he was represented by counsel on the aggravated-robbery

charge at the time the detective requested his DNA.

We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013); State v. Dixon,

206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We apply a bifurcated standard of review, State

v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017); Weems v. State, 493 S.W.3d 574, 577 (Tex.

Crim. App. 2016), giving almost total deference to a trial court’s findings of historical fact and

credibility determinations that are supported by the record, but reviewing questions of law de novo,

Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016); Weems, 493 S.W.3d at 577. We view

the evidence in the light most favorable to the trial court’s ruling, Furr, 499 S.W.3d at 877; State

v. Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011), and overturn the ruling only if

it is arbitrary, unreasonable, or “outside the zone of reasonable disagreement,” State v. Story,

445 S.W.3d 729, 732 (Tex. Crim. App. 2014); Dixon, 206 S.W.3d at 590. In our review, “[t]he

prevailing party is afforded the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from it.” Matthews v. State, 431 S.W.3d 596, 601 n.5 (Tex. Crim.

App. 2014). Further, we will uphold the ruling if it is correct on any theory of law applicable to the

case, Weems, 493 S.W.3d at 577; Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015),

even if the trial judge made the ruling for a wrong reason, Story, 445 S.W.3d at 732.

13

Appellant does not re-urge his Miranda and Fifth Amendment complaint on appeal.

27

Custodial Interrogation

Appellant first contends that the interview with Detective Elrod at the jail during

which the detective requested a sample of his DNA constituted a custodial interrogation and,

therefore, absent the requisite statutory warnings, the incriminating statements that he made during

the encounter were inadmissible.

The Fifth Amendment privilege against self-incrimination prohibits the government

from compelling a criminal suspect to bear witness against himself. Pecina v. State, 361 S.W.3d 68,

74–75 (Tex. Crim. App. 2012) (citing U.S. Const. amend. V); see Miranda v. Arizona, 384 U.S. 436,

444 (1966). In Miranda v. Arizona, the United States Supreme Court crafted safeguards to protect

the privilege against self-incrimination in the inherently coercive atmosphere of custodial

interrogations. Pecina, 361 S.W.3d at 75 (citing Miranda, 384 U.S. at 441). Texas has incorporated

the requirements of Miranda into article 38.22 of the Code of Criminal Procedure, which sets out

specific warnings that must be provided to an accused during a custodial interrogation. See Tex.

Code Crim. Proc. art. 38.22, §§ 2–3. Both Miranda and article 38.22 require that the accused be

properly admonished of certain constitutional rights in order for any statements “stemming from

custodial interrogation” to be admissible as evidence against him. See Miranda, 384 U.S. at 444;

Tex. Code Crim. Proc. art. 38.22, §§ 2–3.

However, “[t]he warnings required by Miranda and article 38.22 are intended to

safeguard a person’s privilege against self-incrimination during custodial interrogation.” Gardner

v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009) (emphasis added); see Herrera v. State,

241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (explaining Miranda warnings “safeguard an

28

uncounseled individual’s constitutional privilege against self-incrimination during custodial

interrogation”). Thus, the warnings set out in Miranda and article 38.22 are required only when a

person is subjected to “custodial interrogation.” See Miranda, 384 U.S. at 442–57, 467–79

(warnings apply only to use of statements obtained from suspect during police-initiated “custodial

interrogation”); Tex. Code Crim. Proc. art. 38.22, §§ 2–3 (setting out requirements for admissibility

of defendant’s statement resulting from “custodial interrogation”).

Under Miranda “custodial interrogation” refers to “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his freedom

of action in any significant way.” Miranda, 384 U.S. at 444. What constitutes “custodial

interrogation” under article 38.22 is the same as it is under Miranda and the Fifth Amendment.

Thai Ngoc Nguyen v. State, 292 S.W.3d 671, 677 n.27 (Tex. Crim. App. 2009); see Bass v. State,

723 S.W.2d 687, 691 (Tex. Crim. App. 1986) (court’s construction of “custodial interrogation” for

purposes of article 38.22 was consistent with meaning of “custodial interrogation” under Fifth

Amendment). Thus, the concerns raised by a failure to comply with Miranda or article 38.22 only

arise when the individual is subject to both (1) custody by a law enforcement officer and (2) an

interrogation. See Miranda, 384 U.S. at 444; Tex. Code Crim. Proc. art. 38.22, §§ 2–3. The

threshold issue in this case, then, is whether the interview during which Detective Elrod requested

a sample of appellant’s DNA amounted to a custodial interrogation.

29

In denying appellant’s motion to suppress, the trial court found that appellant was not

in custody when Detective Elrod asked for his DNA sample and, further, that the detective’s request

for a DNA sample did not subject appellant to interrogation. Appellant challenges both of

these findings.

A person is in “custody” when he is placed under arrest or if, under all of the

objective circumstances, a reasonable person would believe that his freedom of movement has been

restricted to the degree associated with a formal arrest. State v. Saenz, 411 S.W.3d 488, 496 (Tex.

Crim. App. 2013) (citing Stansbury v. California, 511 U.S. 318 (1994)); Dowthitt v. State,

931 S.W.2d 244, 254 (Tex. Crim. App. 1996). At least four general situations may constitute

custody: (1) the suspect is physically deprived of his or her freedom of action in any significant way,

(2) a law enforcement officer tells the suspect that he or she cannot leave, (3) law enforcement

officers create a situation that would lead a reasonable person to believe that his or her freedom of

movement has been significantly restricted, and (4) there is probable cause to arrest and law

enforcement officers do not tell the suspect that he or she is free to leave. Saenz, 411 S.W.3d at 496;

Dowthitt, 931 S.W.2d at 255. “We evaluate whether a person has been detained to the degree

associated with arrest on an ad hoc, or case-by-case, basis.” State v. Ortiz, 382 S.W.3d 367, 372

(Tex. Crim. App. 2012); accord Dowthitt, 931 S.W.2d at 255. In making a custody determination,

the primary question is whether a reasonable person would perceive the detention to be a restraint

on his or her movement comparable to formal arrest, given all the objective circumstances. Ortiz,

382 S.W.3d at 372 (citing Berkemer v. McCarty, 468 U.S. 420, 441 (1984)); see Stansbury, 511 U.S.

at 323; see also Herrera, 241 S.W.3d at 532 (“We evaluate ‘custody’ ‘on an ad hoc basis, after

30

considering all of the (objective) circumstances’ and apply the ‘reasonable person’ standard.”

(quoting Dowthitt, 931 S.W.2d at 254–55)). We look only to the objective factors surrounding the

detention; the subjective beliefs of the detaining officer or person being questioned are not included

in the calculation of whether a person is in custody. Ortiz, 382 S.W.3d at 372–73; Dowthitt,

931 S.W.2d at 255; see Stansbury, 511 U.S. at 323.

Appellant argues that he was in custody at the time he met with Detective Elrod and

the detective sought his DNA sample because he was not free to leave as he was incarcerated in the

jail. In response, the State argues, as it did at the suppression hearing, that appellant was not in

“custody” at the time he spoke with Detective Elrod. Despite the fact that appellant was incarcerated

in the jail at the time of the encounter, the State’s argument is not unfounded. The Court of Criminal

Appeals has distinguished custody in the Miranda sense from its literal meaning, and held that the

interview of a jail inmate is not per se a custodial interrogation. Herrera, 241 S.W.3d at 527–32;

see id. at 532 (refusing to equate incarceration with “custody” for purposes of Miranda when inmate

is questioned by state agent about offense unrelated to inmate’s incarceration); see also Howes

v. Fields, 565 U.S. 499, 508–09 (2012) (“As used in our Miranda case law, ‘custody’ is a term of

art that specifies circumstances that are thought generally to present a serious danger of coercion.”).

Rather, a court should look to a number of factors to determine whether a prison inmate is in

custody, including (1) the language used to summon the inmate, (2) the physical setting of the

interrogation, (3) the extent to which the inmate is confronted with evidence of his or her guilt,

(4) the additional pressure exerted to detain the inmate or the change in the surroundings of the

inmate which results in an added imposition on the inmate’s freedom of movement, and (5) the

31

inmate’s freedom to leave the interview and the purpose, place, and length of the questioning.

Herrera, 241 S.W.3d at 532; Fields, 565 U.S. at 514 (“When a prisoner is questioned, the

determination of custody should focus on all of the features of the interrogation. These include the

language that is used in summoning the prisoner to the interview and the manner in which the

interrogation is conducted.”).

The record does not reflect the manner in which appellant was summoned to the

meeting with Detective Elrod. The detective testified that he did not know what language the jailors

used to bring him to the room where the encounter took place or what appellant was told about the

meeting. According to Detective Elrod’s testimony, the room where they met was the former “DWI

room,” which measured approximately six by ten feet and had a door with a small window. The

detective testified that the meeting lasted “five to ten minutes.” The audio recording of the encounter

demonstrates that the entire encounter lasted just under six minutes.14 The record does not indicate

that appellant was handcuffed or in any way physically restrained, although the meeting did occur

in the jail facility. Detective Elrod explained that the door to the room was not locked and testified

that appellant was free to end the meeting with him, did not have to meet with him, and did not have

to give the DNA sample. He indicated that appellant could have “just got[ten] up and walked out,”

although he (the detective) would have had to let the jailers know so they could “take [appellant]

back to wherever they’re housing him.” The detective stated that he did not, at any time during the

14

Approximately two minutes and 20 seconds into the encounter appellant agreed to give

his DNA sample; the collection took less than two minutes; the final exchange lasted approximately

one and a half minutes; the detective left the room five minutes and 50 seconds after the

encounter began.

32

encounter, confront appellant with any evidence or statement related to the aggravated robbery. He

testified that his sole purpose for meeting with appellant was to seek physical evidence, not to get

any testimonial statements or to interview appellant.

The trial court made the following findings relevant to the issue of custody:

• The Court finds that defendant, at the time of the oral statements, was not in-custody

[sic] for the offense of sexual assault of a child, but that he was in a Hays County jail

charged with aggravated robbery.

• The Court further finds that the defendant’s meeting with Detective Elrod was not

inherently coercive.

• The Court finds that the defendant was told that he did not have to speak to Detective

Elrod or provide him with his buccal DNA swab sample.

• The Court finds that, at the time of the meeting with Detective Elrod, the defendant

was not incarcerated for the sexual assault of A.S. The defendant was incarcerated

for the aggravated robbery of Martin Torres. The sexual assault of a child is a

separate and distinct offense from the offense for which the defendant was

incarcerated at the time he made the statements to Detective Elrod.

• The Court finds that Detective Elrod did not confront the defendant with evidence

of his guilt in the aggravated robbery.

• The Court also finds that Detective Elrod did not confront the defendant with

evidence of guilt concerning the sexual assault of A.S.

• The Court fails to find that any additional pressure was exerted on the defendant or

that the defendant was un[a]ware he could end the meeting at any time.

These findings concern some, but not all, of the factors we are to consider in determining custody

of an incarcerated person for purposes of Miranda and article 38.22. These findings are supported

by the record and support the trial court’s conclusion that appellant was not in custody at the time

he made his incriminating statements to Detective Elrod.

33

Furthermore, even assuming arguendo that appellant was in custody when he met

with Detective Elrod, the question remains whether the interview during which the detective

requested a voluntary sample of appellant’s DNA qualified as an “interrogation” under Miranda and

article 38.22.

When a person is in custody, “the Miranda safeguards come into play whenever [that

person] is subjected to either express questioning or its functional equivalent.” Rhode Island

v. Innis, 446 U.S. 291, 300–01 (1980). Thus, in the context of Miranda (and therefore article 38.22),

interrogation “refers not only to express questioning, but also to any words or actions on the part of

the police . . . that the police should know are reasonably likely to elicit an incriminating response

from the suspect.” Id.; accord State v. Cruz, 461 S.W.3d 531, 536 & n.15 (Tex. Crim. App. 2015);

Alford v. State, 358 S.W.3d 647, 653 (Tex. Crim. App. 2012); see also United States v. Briggs,

273 F.3d 737, 741 (7th Cir. 2001) (explaining that “not all direct questions constitute ‘interrogation’”

and that only questions that are reasonably likely to elicit incriminating response from suspect are

improper without administration of Miranda warnings).

Appellant contends that the detective’s request for a voluntary DNA sample was

intended to elicit an incriminating response because of comments the detective made during his

explanation of why he was requesting a DNA sample—that police were “trying to get known

samples from people who were with [A.S.] or may have had sex with her.” However, according to

Detective Elrod, he met with appellant for the sole purpose of requesting a voluntary DNA sample.

He explained that the purpose of obtaining the sample was to identify foreign DNA found during

A.S.’s sexual-assault exam. He testified that he had no reason at that time to suspect that appellant

34

had had sexual intercourse with A.S., and only knew that appellant had been in A.S.’s company

because the two had robbed Torres together. The record reflects that the detective did not ask

appellant any questions beyond confirming that appellant understood what the detective was

requesting and the sample-collection process. He did not ask any questions unrelated to the DNA

request until after appellant voluntarily made incriminating statements.

In its written findings, the trial court explicitly found Detective Elrod to be credible

and further found “that Detective Elrod did not question the defendant in an effort to elicit an

incriminating response.” The record—including the detective’s credible testimony and the audio

recording of the encounter—supports the court’s finding. These findings support the trial court’s

conclusion that Detective Elrod did not interrogate appellant when he met with appellant to request

the DNA sample.

Moreover, police practices “seek[ing] only physical evidence, not testimonial

confessions of guilt” are excluded from the scope of incriminating responses. Jones v. State,

795 S.W.2d 171, 175 (Tex. Crim. App. 1990); Martinez-Hernandez v. State, 468 S.W.3d 748,

757-58 (Tex. App.—San Antonio 2015, no pet.); see Soni v. State, No. 03-96-00086-CR,

1997 WL 124139, at *2 (Tex. App.—Austin Mar. 20, 1997, no pet.) (mem. op., not designated for

publication) (“The constitutional right [against self-incrimination] extends, however, only to

testimonial evidence and does not encompass purely physical evidence or evidence of physical

characteristics.”). “The United States Supreme Court has excluded several police practices from the

scope of the self-incrimination privilege because they seek only physical evidence, not testimonial

confessions of guilt.” Jones, 795 S.W.2d at 175; see Schmerber v. California, 384 U.S. 757, 764

35

(1966) (Fifth Amendment privilege against self-incrimination “is a bar against compelling

‘communications’ or ‘testimony’” but does not bar “that compulsion which makes a suspect or

accused the source of ‘real or physical evidence’”); see, e.g., United States v. Dionisio, 410 U.S. 1,

7 (1973) (voice exemplars may be compelled without offending the Fifth Amendment privilege);

Gilbert v. California, 388 U.S. 263, 266 (1967) (handwriting samples may be taken from unwilling

suspect without violating self-incrimination privilege); Schmerber, 384 U.S. at 761–65 (extraction

and chemical analysis of blood sample did not violate Fifth Amendment privilege against

self-incrimination); Jones, 795 S.W.2d at 175 (sobriety test was merely another example of

collection of physical evidence, both visual and aural, and did not violate privilege against

self-incrimination).

Here, the trial court found that “Detective Elrod asked the defendant if he would agree

to give a buccal swab DNA sample” and that “a known DNA buccal swab is physical evidence.”

These findings, supported by the record, support the trial court’s conclusion that Detective Elrod did

not interrogate appellant when he met with appellant to request the DNA sample but only sought

“physical evidence,” which is excluded from the scope of incriminating responses.

Reviewing the trial court’s ruling under the applicable standard of review, we agree

with the trial court’s conclusion that appellant was not in custody. We further agree with the trial

court’s conclusion that there was no interrogation because the detective’s request for a voluntary

DNA sample was not reasonably likely to elicit an incriminating response, and, more importantly,

the detective sought only physical evidence not protected by the Fifth Amendment privilege against

self-incrimination that is embodied in article 38.22.

36

The defendant bears the burden of proving that a statement was the product of a

custodial interrogation. Gardner, 306 S.W.3d at 294; Herrera, 241 S.W.3d at 526; Wilkerson

v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005). We conclude that appellant failed to meet

that burden. Because appellant’s statement did not stem from “custodial interrogation,” the lack of

Miranda and article 38.22 warnings did not require the suppression of appellant’s incriminating

statements. Accordingly, the trial court did not abuse its discretion by denying the motion to

suppress on this basis.

Sixth Amendment Right to Counsel

Appellant next contends that his incriminating statements should have been

suppressed because his Sixth Amendment right to counsel was violated because he was represented

by counsel on the aggravated-robbery charge at the time Detective Elrod met with him to request a

DNA sample.

To preserve error for appellate review, a party must timely object and state the

grounds for the objection with enough specificity to make the trial judge aware of the complaint,

unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A); see

Thomas, 505 S.W.3d at 924; Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). While

no “magic words” or citation to specific statutes or rules is required to preserve a complaint for

appeal, a party must convey the substance of the complaint to the trial court clearly enough to

provide the judge and the opposing party an opportunity to address and, if necessary, correct the

purported error. Ex parte Marascio, 471 S.W.3d 832, 842 (Tex. Crim. App. 2015); Pena v. State,

353 S.W.3d 797, 807 (Tex. Crim. App. 2011). The record must make it clear that both the trial court

37

and the opposing party understood the legal basis for the complaint. Thomas v. State,

408 S.W.3d 877, 884 (Tex. Crim. App. 2013); see Pena, 353 S.W.3d at 807. Further, the complaint

on appeal must comport with the specific objection made at trial or error has not been preserved.

Thomas, 505 S.W.3d at 924; Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996); see also

Yazdchi, 428 S.W.3d at 844.

A motion to suppress is a specialized objection to the admissibility of evidence. See

Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012); Galitz v. State, 617 S.W.2d 949, 952

n.10 (Tex. Crim. App. 1981); Moore v. State, No. 03-13-00792-CR, 2016 WL 3361477, at *3 (Tex.

App.—Austin June 9, 2016, no pet.) (mem. op., not designated for publication); Thomas v. State,

482 S.W.3d 235, 240 (Tex. App.—Eastland 2015, no pet.); Moreno v. State, 409 S.W.3d 723, 727

(Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). As such, a motion to suppress must meet all of

the requirements of an objection, including that it be both timely and sufficiently specific to inform

the trial court of the complaint. Moore, 2016 WL 3361477, at *3; Thomas, 482 S.W.3d at 240;

Krause v. State, 243 S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Johnson

v. State, 171 S.W.3d 643, 647 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); see Tex. R. App.

P. 33.1(a).

We note that appellant did assert in his motion to suppress that his statements “were

obtained in violation of his rights under the Fifth, Sixth, and 14th [sic] Amendments to the United

States Constitution; and Article I, Sections 10 and 19 of the Texas Constitution.” In addition, at the

suppression hearing, in introductory remarks, appellant’s counsel told the trial court,

38

When [appellant] was in custody in the Hays County Jail on the robbery charge, he

-- and had already been represented by counsel at pretrial motions -- I mean, at

pretrial hearings on that case, Detective Elrod went to the Hays County Jail and asked

for a consent to obtain a DNA sample.

...

The -- the rights that we assert have been violated are the Fifth Amendment right

against self-incrimination, the Fifth Amendment right to counsel, as well -- to have

counsel present during interrogation -- custodial interrogation, as well as the Sixth

Amendment right to counsel whenever a charge has been initiated.

...

And then, of course, we’re going to argue that it also violated the applicable

provisions of the Texas Constitution.

However, “a general or imprecise objection will not preserve error for appeal unless

‘the legal basis for the objection is obvious to the court and to opposing counsel.’” Vasquez v. State,

483 S.W.3d 550, 554 (Tex. Crim. App. 2016) (quoting Buchanan v. State, 207 S.W.3d 772, 775

(Tex. Crim. App. 2006)) (emphasis in original). It is not obvious from appellant’s global assertion

of a Sixth Amendment violation in the written motion that appellant was claiming that his right to

counsel was purportedly violated because he was represented by counsel on the unrelated

aggravated-robbery charge when Detective Elrod requested a voluntary DNA sample. Further, at

the suppression hearing, appellant failed to complain about being asked to give a DNA sample while

he had counsel representing him on a separate unrelated charge. Instead, he simply asserted that his

statements were inadmissible because of a violation of “the Sixth Amendment right to counsel

whenever a charge has been initiated.” Again, it is not obvious from this assertion that he was

39

claiming that his Sixth Amendment right to counsel was violated because he was represented by

counsel on the aggravated-robbery charge when Detective Elrod requested a voluntary DNA sample.

Appellant never articulated to the trial court how his Sixth Amendment right to

counsel was violated, but instead merely made global assertions. Although the courts “have long

eschewed hyper-technical requirements for error preservation,” the party must “let the trial court

know what he wants and why he feels himself entitled to it clearly enough for the judge to

understand him.” Vasquez, 483 S.W.3d at 554; see Everitt v. State, 407 S.W.3d 259, 263 (Tex.

Crim. App. 2013) (“[A]ll the party has to do to avoid the forfeiture of a complaint on appeal is to let

the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for

the judge to understand him at a time when the trial court is in a proper position to do something

about it.” (quoting Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim. App. 2009)). Appellant’s

global assertions—in both his pretrial motion to suppress and at the suppression hearing—were not

sufficiently specific to apprise the trial court (or the State) of his complaint or to preserve the

argument he now makes on appeal. See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App.

2005) (observing that arguments in written motion to suppress and assertions at suppression hearing

“were global in nature” and “contained little more than citations to constitutional and statutory

provisions” and were not sufficiently specific to preserve arguments made on appeal). None of the

trial court’s findings of fact or conclusions of law relate to the issue of a Sixth Amendment

right-to-counsel violation. This omission indicates that the trial court was not aware of this

complaint. Furthermore, other than counsel’s initial global remarks, the entirety of the suppression

hearing, including closing arguments to the court, focused on appellant’s contention that his

40

incriminating statements to Detective Elrod were the result of a custodial interrogation and, absent

Miranda and article 38.22 warnings, were inadmissible.15

Based on the record before us, we conclude that appellant did not preserve his

complaint concerning a Sixth Amendment right-to-counsel violation. See Vasquez, 483 S.W.3d at

554; Swain, 181 S.W.3d at 365. Preservation of error is a systemic requirement on appeal. Darcy

v. State, 488 S.W.3d 325, 327 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295, 299

(Tex. Crim. App. 2014). A reviewing court should not address the merits of an issue that has not

been preserved for appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012);

Wilson v. State, 311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010).

For the above reasons, we overrule appellant’s third point of error complaining about

the denial of his motion to suppress.

15

At the suppression hearing, appellant offered no testimony or other evidence in support

of this alleged Sixth Amendment violation. The only evidence concerning whether appellant had an

attorney was Detective Elrod’s testimony, during cross examination, that he did not know “if

[appellant] had an attorney or not.”

We observe that the clerk’s record in the aggravated-robbery case contains a letter of

representation addressed to the trial judge. However, this letter was not referenced at the hearing,

nor was it offered as evidence.

Furthermore, while the Sixth Amendment right to counsel attaches after adversarial judicial

proceedings have begun and extends to all “critical stages” of criminal proceedings, including

interrogation, Montejo v. Louisiana, 556 U.S. 778, 786 (2009), the right is limited; it is “offense

specific” and does not extend to all future prosecutions, Texas v. Cobb, 532 U.S. 162, 167–68

(2001); see McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (“The Sixth Amendment right, however,

is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until

a prosecution is commenced[.]”). Appellant was not charged with sexual assault at the time

Detective Elrod requested his DNA; thus, his Sixth Amendment right to counsel had not attached

for that crime.

41

Ineffective Assistance of Counsel

At trial appellant was represented by three attorneys. In his fourth point of error,

appellant contends that his trial counsel rendered ineffective assistance at trial because: (1) counsel

failed to object to the erroneous sexual-assault venue instruction in the jury charge, (2) failed to

publish a defense exhibit during trial or mention it in closing argument, (3) one of his trial attorneys

failed to have copies of “key evidence” at trial, (4) one of his trial attorneys had a conflict of

interest because of a prior professional relationship with A.S., and (5) one of his trial attorneys

was inexperienced.

To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by the

defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava, 415 S.W.3d at 307. The

appellant must first demonstrate that counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687–88; Nava,

415 S.W.3d at 307. The appellant must then show the existence of a reasonable probability—one

sufficient to undermine confidence in the outcome—that the result of the proceeding would have

been different absent counsel’s deficient performance. Strickland, 466 U.S. at 694; Nava,

415 S.W.3d at 308. Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; see Perez v. State,

310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

Appellate review of counsel’s representation is highly deferential; we must “indulge

in a strong presumption that counsel’s conduct was not deficient.” Nava, 415 S.W.3d at 307–08;

42

see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must

be “firmly founded in the record,” and “the record must affirmatively demonstrate” the meritorious

nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012);

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record by

itself be sufficient to demonstrate an ineffective-assistance claim. Nava, 415 S.W.3d at 308. If trial

counsel has not been afforded the opportunity to explain the reasons for his conduct, we will not find

him to be deficient unless the challenged conduct was “so outrageous that no competent attorney

would have engaged in it.” Id. (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d

at 392.

In this case, appellant filed a motion for new trial. However, he did not raise a claim

of ineffective assistance of counsel in the motion. Thus, concerning appellant’s first three allegations

of deficient performance (the alleged failures of counsel), the record is silent as to why trial counsel

failed to act in the manner that appellant now complains about on appeal. Consequently, the record

before this Court is not sufficiently developed to allow us to evaluate those purported failures to act

because “[n]either [his] counsel nor the State have been given an opportunity to respond to” the

claims of ineffectiveness. See Menefield, 363 S.W.3d at 593. The record is silent as to whether there

was a strategic reason for counsels’ conduct or what the particular strategy was. Appellant’s

repeated assertions that “there is absolutely no plausible strategy” for the alleged failures are mere

speculation. Such speculation does not constitute a demonstration, founded in the record, that no

reasonable trial strategy existed. See Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App. 2013)

(“[C]ounsel’s alleged deficiency must be affirmatively demonstrated in the trial record.”); Lopez v.

43

State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (“[C]ounsel’s deficiency must be affirmatively

demonstrated in the trial record; the court must not engage in retrospective speculation.”).

Appellant’s trial attorneys were not afforded an opportunity to explain their reasons

for the complained-of conduct. Absent record evidence regarding counsels’ strategy or reasoning,

we will presume they exercised reasonable professional judgment. See Hill v. State, 303 S.W.3d 863,

879 (Tex. App.—Fort Worth 2009, pet. ref’d); Poole v. State, 974 S.W.2d 892, 902 (Tex.

App.—Austin 1998, pet. ref’d); see also Lopez, 343 S.W.3d at 143. Appellant has failed to rebut

the strong presumption of reasonable assistance because without explanation for trial counsels’

decisions, the complained-of conduct does not compel a conclusion that their performance was

deficient. We cannot say that “no reasonable trial strategy could justify” or explain their decision

to engage in the complained-of conduct. See Lopez, 343 S.W.3d at 143. Nor can we conclude that

their conduct was “so outrageous that no competent attorney would have engaged in it.” See

Menefield, 363 S.W.3d at 592; see also Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.

2012) (“The mere fact that another attorney might have pursued a different tactic at trial does not

suffice to prove a claim of ineffective assistance of counsel.”). Accordingly, on this record, we

conclude that appellant has failed to demonstrate deficient performance on the part of his trial

counsel regarding the complained-of failures. See Frangias v. State, 450 S.W.3d 125, 136 (Tex.

Crim. App. 2013) (“[U]nless there is a record sufficient to demonstrate that counsel’s conduct was

not the product of an informed strategic or tactical decision, a reviewing court should presume that

trial counsel’s performance was constitutionally adequate ‘unless the challenged conduct was so

44

outrageous that no competent attorney would have engaged in it.’”) (quoting Goodspeed, 187 S.W.3d

at 392).

Concerning appellant’s fourth allegation of deficient performance, the purported

conflict of interest, appellant fails to demonstrate how a prior professional relationship with A.S.

created an actual conflict of interest with appellant. The record reflects that one of appellant’s trial

attorneys is also a nurse and that A.S. was her former patient. During cross examination of A.S.,

defense counsel attempted to question A.S. concerning information, apparently privileged patient

information, that she obtained during her treatment of A.S. Appellant asserts that counsel’s

performance was deficient because she failed to recognize that “a clear conflict existed” and

attempted to use privileged information obtained through her professional relationship with A.S. to

impeach her.

An actual conflict of interest which adversely affects a lawyer’s performance is one

way in which a counsel’s assistance may be rendered constitutionally ineffective. Strickland,

466 U.S. at 684–85; Petetan v. State, — S.W.3d —, No. AP-77,038, 2017 WL 915530, at *42 (Tex.

Crim. App. Mar. 8, 2017), reh’g granted on other grounds, No. AP-77,038, 2017 WL 4678670 (Tex.

Crim. App. Oct. 18, 2017); Routier v. State, 112 S.W.3d 554, 581 (Tex. Crim. App. 2003). To

prevail on an ineffective-assistance claim due to a conflict of interest, an appellant must show that

trial counsel had an actual conflict of interest, and the conflict actually affected the adequacy of

counsel’s representation in specific instances. Cuyler v. Sullivan, 446 U.S. 335, 349 (1980);

Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim. App. 2014); Acosta v. State, 233 S.W.3d 349,

356 (Tex. Crim. App. 2007); Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997). An

45

“actual conflict of interest” exists “if counsel is required to make a choice between advancing his

client’s interest in a fair trial or advancing other interests (perhaps counsel’s own) to the detriment

of his client’s interest.” Acosta, 233 S.W.3d at 355 (quoting Monreal v. State, 947 S.W.2d 559, 564

(Tex. Crim. App. 1997)); accord Odelugo, 443 S.W.3d at 136.

Nothing in the record demonstrates an actual conflict of interest as outlined in Acosta.

In fact, contrary to advancing another’s interests to the detriment of appellant, it appears from the

record that counsel was attempting to advance appellant’s interests over those of her former patient.

While the record fails to show the nature of the information that counsel sought to use, the record

suggests that counsel was attempting to use the privileged information to explain why A.S. would

have inserted appellant’s semen insider of her in an attempt to impregnate herself. Such information

would have bolstered A.S.’s credibility concerning her explanation of how appellant’s DNA came

to be inside her and, thus, would have reinforced appellant’s defensive theory that he did not sexually

assault A.S. because he did not contact or penetrate her sexual organ with his sexual organ. Because

the record reflects that counsel attempted to use the information at issue for the benefit—not the

detriment—of appellant, we cannot conclude that counsel’s prior professional relationship with A.S.

constituted an actual conflict.16 At best, appellant’s claim raises the possibility of a conflict of

interest. However, “[t]he possibility of conflict of interest is insufficient to impugn a criminal

conviction; a defendant must establish that an actual conflict of interest adversely affected his

lawyer’s performance.” Cuyler, 446 U.S. at 350; accord Routier, 112 S.W.3d at 582. Thus, in this

16

We express no opinion regarding whether counsel’s attempt to use the privileged patient

information of a former patient for the benefit of her client violated ethical standards of the

nursing profession.

46

case appellant must show that counsel actually acted on behalf of those other interests—that is,

A.S.’s interest—during the trial. See Odelugo, 443 S.W.3d at 136 (“[T]he appellant must show that

his trial counsel had an actual conflict of interest, and that the conflict actually colored counsel’s

actions during trial.” (quoting Acosta, 233 S.W.3d at 356)). In the circumstances present here,

appellant has failed to make such a showing.

Finally, appellant cites the inexperience of one of his trial attorneys as his last claim

of deficient performance, asserting that counsel “was not in a position in which she should have been

trying serious felony cases that put [appellant’s] liberty at stake” because this was counsel’s first

criminal jury trial. Essentially, appellant urges us to assume that simple inexperience with a

particular proceeding (here, a criminal jury trial) constitutes deficient performance. We decline to

do so. The record reflects that the complained-of counsel indicated that she was a criminal defense

attorney for 27 years, but simply had not participated in a criminal jury trial. The record does not

indicate whether she had participated in criminal bench trials (or how many) or whether she had

participated in civil jury trials (or how many). Moreover, the record shows that the complained-of

counsel enlisted the assistance of two other attorneys, one of whom, the record indicates, was an

experienced criminal defense attorney.17 We cannot conclude that the inexperience of one of

his three trial attorneys regarding a particular proceeding resulted in deficient performance by

defense counsel.

Deficient performance means “errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. A

17

The record does not indicate the level of experience of the third attorney.

47

reviewing court must apply a strong presumption that counsel’s representation was within the wide

range of reasonable professional assistance. Id. at 689. “The question is whether an attorney’s

representation amounted to incompetence under ‘prevailing professional norms,’ not whether it

deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105

(2011) (citing Strickland, 466 U.S. at 690). We conclude that appellant has failed to demonstrate

deficient performance on the part of his trial counsel.

Because appellant failed to meet his burden on the first prong of Strickland

concerning prejudice, we need not consider the requirements of the second prong—prejudice. Lopez,

343 S.W.3d at 144; see Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to consider the

other prong.”). Nevertheless, we also conclude that appellant failed to demonstrate that he suffered

prejudice as a result of trial counsels’ alleged errors.

Even if an appellant shows that particular errors of counsel were unreasonable, he

must further show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at

693–95; Villalobos v. State, No. 03-13-00687-CR, 2015 WL 5118369, at *2 (Tex. App.—Austin

Aug. 26, 2015, pet. ref’d) (mem. op., not designated for publication); Cochran v. State, 78 S.W.3d 20,

24 (Tex. App.—Tyler 2002, no pet.); see Strickland, 466 U.S. at 691 (“An error by counsel, even

if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding

if the error had no effect on the judgment.”). It is not sufficient that a defendant show, with the

benefit of hindsight, that his counsel’s actions or omissions during trial were of questionable

competence. Lopez, 343 S.W.3d at 142–43. Further, merely showing that the errors had some

48

conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at 693; Ex parte

Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Instead, he must prove that counsel’s

errors, judged by the totality of the representation—not by isolated instances of error or by a portion

of the trial—denied him a fair trial. Strickland, 466 U.S. at 695.

In his argument regarding prejudice, appellant asserts that “it cannot be reasonably

disputed” that trial counsels’ failure to object to the erroneous sexual-assault venue instruction in

the jury charge “significantly lowered the State’s burden [of proof], by allowing the jury to find

[appellant] guilty without [the State] proving that the alleged [sexual-assault] offense occurred in

Hays County.” Though not expressly stated, appellant implies that the failure of counsel to object

to this alleged “lowering of the burden” caused him prejudice. We concluded in our discussion of

appellant’s first point of error that the erroneous sexual-assault venue instruction did not cause

appellant egregious harm. For similar reasons, we conclude that trial counsels’ failure to object to

the erroneous jury-charge instruction did not cause prejudice to appellant. The record contains ample

evidence that appellant engaged in sexual intercourse with A.S.—including appellant’s admissions

that he had sexual intercourse with her and his DNA inside of her—in an unknown Texas county.

The jury charge included instructions pursuant to the article 13.19 venue provision, which applied

given the uncertainty concerning where the sexual-assault offense occurred, and the evidence was

sufficient to support an affirmative venue finding under this provision. Accordingly, given the

record here, appellant has failed to show that trial counsels’ failure to object to the erroneous

jury-charge instruction actually had an adverse effect on the defense. See Strickland, 466 U.S.

at 693–95.

49

Appellant claims that “trial counsel was not prepared for trial in a multitude of

respects.” Thus, even as he acknowledges that he was acquitted on the compelling-prostitution

charge, he contends that had he “had trial counsel that had even a small amount of trial experience,

and [was] prepared for trial, he may very well have received a not guilty from the jury on his other

two charges as well.” This contention is mere speculation without support in the record.

Appellant further argues that this Court should find prejudice because the cumulative

effect of trial counsels’ alleged errors caused “a breakdown in the adversarial process.” We disagree.

An accused is not entitled to entirely errorless representation, and we look to the totality of the

representation in gauging the adequacy of counsel’s performance. Frangias, 450 S.W.3d at 136.

Appellant was represented by three attorneys at trial, who each actively participated in

his representation.

During voir dire, trial counsel questioned the members of the jury panel regarding

their ability to serve on the jury: they discussed important legal concepts such as the State’s burden

of proof, the meaning of “beyond a reasonable doubt,” and appellant’s Fifth Amendment right not

to testify; they explored possible bias or preconceptions regarding issues factually relevant to the

case such as gang membership, drug or alcohol use, and stereotypes based on appearances; and they

examined the jurors’ views concerning concepts such as individual choice, personal accountability,

and the ability to change character. At the conclusion of jury selection, counsel successfully

challenged panel members for cause and, the record indicates, proficiently exercised peremptory

challenges against panel members potentially unfavorable to the defense.

50

Further, the record shows that, throughout trial, counsel ably presented and developed

the defense theories, which involved attacking the credibility of Torres’s version of the events,

emphasizing the biased and incomplete nature of the police investigation, and presenting an

alternative explanation for the presence of appellant’s DNA in A.S.’s vagina. In support of these

defenses, trial counsel emphasized, through cross examination of the State’s witnesses, the

weaknesses in the State’s case, the flawed police investigation, the lack of corroborating evidence

for the robbery, and the bias and lack of credibility of the State’s witnesses. Counsel also attempted

to minimize appellant’s involvement in the robbery and provide an alternative explanation for the

presence of appellant’s DNA inside A.S. Further, counsel attempted to demonstrate through cross

examination of Detective Elrod that appellant’s incriminating statements were involuntary.

During closing argument, trial counsel discussed the State’s failure to meet its burden

of proof; the weak nature of the evidence against appellant concerning the robbery, including the

inability of Torres to identify appellant as the perpetrator despite appellant’s obviously tattooed (and

therefore memorable) appearance; the plausibility of A.S.’s explanation for the presence of

appellant’s DNA inside her; the involuntary nature of appellant’s incriminating statements to

Detective Elrod; the impact of drugs and alcohol on appellant’s conduct at the time of the offenses

and his subsequent incriminating statements to the detective; and the credibility (or lack thereof) of

Torres and A.S. as well as the inconsistencies and inaccuracies in their testimony. The record

reflects that trial counsels’ strategies ultimately proved successful as to the compelling-prostitution

charge, as appellant was acquitted of that charge. The fact that the strategies proved unsuccessful

51

as to the other two charges—or that appellate counsel disagrees with them—does not render trial

counsels’ assistance ineffective.

Finally, during the punishment phase, trial counsel challenged the evidence of

appellant’s prior convictions, disputed his gang affiliation, and presented evidence focusing on the

positive role appellant has in his family.

On the record before us, appellant has failed to demonstrate deficient performance

on the part of his trial counsel or that he suffered prejudice because of the alleged errors of counsel.

Thus, he has not shown himself entitled to reversal based on ineffective assistance of counsel. We

overrule appellant’s fourth point of error.

CONCLUSION

Having concluded that the evidence was sufficient to support an affirmative venue

finding, that the complained-of jury-charge error did not cause appellant egregious harm, that the

trial court did not abuse its discretion in denying appellant’s motion to suppress, and that appellant

failed to demonstrate that he received ineffective assistance of counsel, we affirm the trial court’s

judgments of conviction.

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__________________________________________

Cindy Olson Bourland, Justice

Before Justices Puryear, Field, and Bourland

Affirmed

Filed: October 5, 2018

Do Not Publish

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