Kevin Ramon Murphy v. State

Opinion issued December 6, 2018

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-17-00588-CR

———————————

KEVIN RAMON MURPHY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Case No. 1511333

MEMORANDUM OPINION

A jury convicted appellant, Kevin Ramon Murphy, of the felony offense of

continuous sexual assault of a child and assessed his punishment at confinement

for fifty years.1 In five issues, appellant argues that: (1) the State failed to provide

1

See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2018).

adequate notice of its intention to offer evidence under Texas Code of Criminal

Procedure article 38.37, violating his due process rights; (2) the trial court abused

its discretion in failing to hold a hearing on the article 38.37 evidence outside the

presence of the jury; (3) the trial court abused its discretion in admitting the

extraneous offense evidence without conducting a Rule 403 balancing test; (4) the

State failed to provide adequate notice under Code of Criminal Procedure article

38.072; and (5) his trial counsel provided constitutionally ineffective assistance.

We affirm.

Background

Appellant met N.L., the complainant in this case, when she was twelve years

old. N.L. was walking around her neighborhood, and appellant stopped to talk to

her and offered to take her to buy some clothes and shoes. After that first

encounter, they continued to spend time together and, eventually, appellant had sex

with N.L., beginning when she was thirteen years old. In February 2016, when

N.L. was fourteen, appellant, N.L., and another young girl, J.J., were all spending

the night in a downtown motel. N.L. came to believe that appellant was making

sexual advances toward J.J., became jealous and angry, and eventually retrieved a

firearm and began shooting in appellant’s direction. Minutes after the shooting,

police detained N.L. and J.J. as they walked away from the motel. N.L. admitted

to the shooting and told police that appellant, who was in his thirties, was her

boyfriend. This prompted an investigation by the child sex crimes unit of the

Houston Police Department (HPD), and appellant was charged with continuous

sexual assault of N.L., a child younger than fourteen years of age.

The first trial witness was N.L. N.L. testified regarding her relationship with

appellant and the incident at the motel that brought the nature of their relationship

to the attention of police. She testified that on February 1, 2016, appellant picked

her up from her home and they spent some time “riding around” while appellant

was “just selling his drugs.” Appellant and N.L. then picked up N.L.’s friend, J.J.,

and drove into downtown Houston, where they spent the night at the Downtowner

Inn. N.L. testified that she and appellant had been to that motel on several other

occasions. On February 1, 2016, appellant and N.L. smoked a “Sherm square”2 and

then “kind of went to sleep,” with N.L. in one bed and J.J. in the other. N.L.

testified that she did not trust appellant, whom she considered her boyfriend,

believing he “was going to do something with [J.J.].” N.L. later saw appellant in

bed with J.J. and “heard noises,” which upset her and led her to call J.J.’s mother

“[t]o come get [J.J.] because something was about to go down.” However, J.J.’s

mother never arrived, and N.L. and appellant began fighting. N.L. testified that

“[t]hings start[ed] getting physical,” stating that she and appellant struck each other

and appellant “took a long, orange speaker and he hit [her]” and made her bleed.

2

N.L. testified that a “Sherm square” is a cigarette dipped in PCP that made her

“feel like [she was] floating on clouds.”

N.L. had “blanked out” and was in a “frustrated state” when she went out to

appellant’s vehicle, retrieved his gun, “cocked it back, and . . . started shooting”

toward appellant.

Appellant ran away, and N.L. and J.J. left the Downtowner Inn on foot. This

resulted in police finding N.L. and J.J. in the Third Ward area of Houston in the

morning hours of February 2, 2016. N.L. was detained by HPD Officer Hall, who

discovered that N.L. had a gun in her purse and that she had discharged the gun in

appellant’s direction. N.L. testified that she was “emotional” while speaking with

police and that she told the officers about her relationship with appellant.

N.L. also testified about her relationship with appellant prior to February 1,

2016. She stated that she met appellant in the summer when she was twelve years

old. N.L. was walking in the neighborhood, and appellant pulled up next to her in

his truck and told her he would buy her some clothes and shoes. She got in the

truck with him, and they went to purchase some clothing. After that day, N.L. and

appellant saw each other “[b]asically every day.” She testified that she and

appellant had sex for the first time “a few weeks later” when they went to the Best

Way Motel. N.L. testified that she had sex with appellant approximately three

times a week, that they had both vaginal and oral sex, that they went to motels or to

appellant’s house when his wife was out working, and that she believed they were

in a dating relationship. She also testified that appellant bought her food and gave

her pocket money during their relationship.

N.L. specifically testified that she and appellant had sex on her thirteenth

birthday, which was November 12, 2014. N.L. also identified one occasion on

which appellant, N.L., and a woman identified only as “Li’l Bit” had a threesome

in a motel. She stated that appellant told her “that we was using [the other woman]

for her school checks because she was going to HCC.” Shortly after this incident,

appellant was arrested and N.L. remained in contact with him via phone calls until

he was released. N.L. stated that her relationship with appellant ended in February

2016.

The State asked N.L. whether appellant had had contact with any other girls

while he was dating her, and she identified three other girls, including J.J.

Appellant had told N.L. that he had sex with two of the girls, including J.J., whom

N.L. believed had just turned thirteen at the time of trial.3 N.L. also testified that

appellant had “tried to pimp out” two of the girls, including J.J., and she stated that

she had personally observed him have a physical relationship with J.J.

Records regarding phone calls that appellant made while he was being held

in jail were also admitted into evidence, and appellant’s wife, Ashley Murphy,

testified regarding her communications with appellant concerning the events on

3

Appellant’s trial counsel objected to N.L.’s testimony about what appellant told

her on hearsay grounds, and the trial court overruled the objection.

February 2, 2016 and while he was in jail. Ashley stated that she and appellant had

recently separated when he called her around 7:00 a.m. on February 2, 2016,

saying that N.L. had “shot at him” and asking Ashley to come pick him up. Ashley

was aware of N.L. because appellant had told her that N.L. was his cousin’s friend.

Ashley testified that she was concerned about appellant’s relationship with N.L.

because “[i]t just seem[ed] they were together a lot,” but appellant told her that “he

was helping [N.L.] out with his cousin.” Ashley could not understand at the time

of the February 2, 2016 phone call why N.L. would have shot at appellant. Ashley

decided to call the police and then went to pick appellant up from the Downtowner

Inn. He was crying, and when Ashley asked him why N.L. would shoot at him, he

admitted to her that he had “been with” N.L. twice. Ashley elaborated that

appellant meant that he had had sexual relations with N.L.

Ashley also testified that appellant again admitted to her, during recorded

phone calls while he was in jail, that he had sex with N.L. Appellant told Ashley

during recorded phone calls that he intended to “pimp” two other girls, and he

asked Ashley to place a three-way call to N.L., which she did. During these calls,

appellant made statements such as, “Why I got to be a pedophile?” and stated,

regarding his relationship with N.L., “We ain’t sleeping together, but we have had

sex.” Ashley asked him at one time, “What if I did that with a 13-year-old boy,”

and appellant responded, “Shut the fuck up.”

HPD Detective M. Arrington interviewed appellant on February 3, 2016,

regarding some of the events relevant to this case. In his interview with Detective

Arrington, appellant acknowledged knowing N.L. but never admitted to any kind

of sexual relationship with her. Officers Hall and McCloud testified regarding

their interactions with N.L. Officer Hall testified that he responded to a service

call for shots fired relating to the events at the Downtowner Inn and subsequently

encountered N.L. Officer Hall stated that he detained her, that he found the

firearm in her purse, and that N.L. admitted to him that she had gotten into an

altercation with and fired the weapon at appellant, whom she identified to Officer

Hall as “K.J.” Officer McCloud testified regarding the outcry statement made by

N.L. when the two spoke over the phone in May 2016. N.L. told Officer McCloud

that appellant was her boyfriend and they had engaged in a sexual relationship

beginning when she was thirteen years old. N.L. provided specific details to

Officer McCloud regarding sexual activity between herself and appellant,

including identifying information regarding the time or location of specific acts.

J.J. testified at trial, over appellant’s objection that her testimony would

elicit evidence of an overly-inflammatory extraneous offense. J.J. stated that she

was fourteen years old at the time of trial. She testified that she knew N.L. through

a mutual friend and that she, N.L., and appellant would “hang out” and “just ride

around.” J.J. stated that N.L. and appellant had a “boyfriend/girlfriend type”

relationship and that N.L. would act jealous when appellant paid attention to J.J.

Regarding the events on February 1, 2016, J.J. testified that she, N.L., and

appellant were driving around, stating, “Me and [N.L.] was just chilling in the car

while he [appellant] do what he do. We’ll just sit in the car and smoke [weed] . . .

[and] hang out.” They all went together to the Downtowner Inn later that night.

J.J. thought that N.L. was getting a room just for the two of them, but appellant

stayed in the room too. J.J. testified that N.L. “was mad ‘cause she was like he

supposed to be gone.” J.J. stated that, early the next morning, appellant “talked to

her,” by which she meant that appellant asked if she wanted to engage in sexual

behavior with him, but she told him no and “he respect [sic] that he’s not gonna,

you know, he ain’t force hisself or whatever.”

J.J. testified that she and appellant had engaged in sexual behavior before.

As she started testifying about a specific occasion, appellant’s trial counsel

objected, stating, “Your Honor, again, I’m going to object to any extraneouses that

are not related to this incident that occurred on February.” The trial court

overruled the objection, and J.J. testified that, in the winter of 2015, she and

another girl were riding around with appellant, got high, and then went to a motel.

After she slept for a little while, appellant “kept asking” so she agreed to let him

perform oral sex on her.

J.J. testified again that nothing sexual happened between herself and

appellant on the night of February 1, 2016. However, she testified that N.L. was

mad that appellant had talked to J.J. about engaging in sexual behavior. J.J.

testified that eventually N.L. and appellant began fighting, that N.L. left the motel

room first and went down to the car and retrieved the gun from the glove

compartment or somewhere near the steering wheel of appellant’s car, that N.L.

started shooting at appellant, and that the girls then walked out of the motel and

down the street. J.J. stated that they did not get too far away from the motel before

the police stopped them and detained both girls.

J.J. also testified about the investigation that occurred after the events of

February 2, 2016. She testified that she spoke with Claudia Gonzalez, the

Children’s Assessment Center (CAC) interviewer, and told her about the incident

in 2015 in which appellant performed oral sex on her. She testified that Gonzalez

was the first adult she told about that incident. J.J. also testified that she went to

the hospital for an exam.

On cross-examination, J.J. testified that she never had sex in exchange for

money, that during the time she was around appellant she never had sex with

anyone else either, and that, aside from the one instance of oral sex in the winter of

2015, she never had sex with appellant. J.J. also testified that she never personally

observed N.L. and appellant engage in sexual activity. Appellant’s trial counsel

repeatedly asked questions regarding why neither J.J. nor N.L. was in school,

despite the fact that they were school-aged. He also asked J.J. whether her mother

knew where she was and what she was doing during the time that she spent with

N.L. and appellant, and J.J. responded that she did not always listen to her mother

and that her mother was not happy about the time she spent with appellant.

Appellant’s trial counsel also asked J.J. if she looked up to N.L. as someone who

knew how to have a good time and who had street smarts, and J.J. agreed.

The State also presented evidence from outcry witnesses, including

Gonzalez, who testified regarding the outcry that J.J. made to her. Gonzalez

testified that J.J. was referred to the CAC by law enforcement and that she spoke to

J.J. on February 4, 2016, when J.J. was twelve years old. Gonzalez testified that

J.J. told her that appellant “had eaten her out one time at a hotel room” in

December 2015. J.J. also provided a few additional details regarding the incident,

and Gonzalez testified, “Based on my training and experience, I didn’t have a

reason to doubt what she was saying.” Gonzalez also testified that she had not met

with any other minor witnesses involved in the present case. However, Gonzalez

also testified that it was not her job to figure out whether a child was telling her the

truth; rather, it was “to allow them to give their statement.”

At the close of the State’s case, appellant’s trial counsel moved for a

directed verdict of acquittal, which the trial court denied. Trial counsel made a

closing argument on appellant’s behalf. The jury convicted appellant of

continuous sexual assault of N.L., and it assessed his punishment at fifty years’

confinement. This appeal followed.

Extraneous Offense Evidence

In his first, second, and third issues, appellant complains of the trial court’s

admission of extraneous offense evidence—evidence of his alleged sexual assault

of J.J.—under Code of Criminal Procedure article 38.37.

A. Article 38.37 and Extraneous Offense Evidence

“[A] trial court’s ruling on the admissibility of extraneous offenses is

reviewed under an abuse-of-discretion standard.” Devoe v. State, 354 S.W.3d 457,

469 (Tex. Crim. App. 2011). If the trial court’s ruling is within the “zone of

reasonable disagreement,” there is no abuse of discretion, and we will uphold the

trial court’s ruling. Id.

Extraneous-offense evidence generally is not admissible to prove a person’s

character or his conformity therewith on a particular occasion. TEX. R. EVID.

404(b)(1). Code of Criminal Procedure article 38.37 provides an exception to the

general rule prohibiting character conformity evidence in certain prosecutions,

including, as here, prosecutions under Penal Code section 21.02 for continuous

sexual assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.37, §2(a) (West

2018). Article 38.37 provides:

[Sec. 2] (b) Notwithstanding Rules 404 and 405, and subject to

Section 2-a, evidence that the defendant has committed a separate

offense described by Subsection (a)(1) or (2) may be admitted in the

trial of an alleged offense described by Subsection (a)(1) or (2)

[listing various offenses for sexual misconduct involving children] for

any bearing the evidence has on relevant matters, including the

character of the defendant and acts performed in conformity with the

character of the defendant.

Sec. 2-a. Before evidence described by Section 2 may be introduced,

the trial judge must:

(1) determine that the evidence likely to be admitted at trial will be

adequate to support a finding by the jury that the defendant committed

the separate offense beyond a reasonable doubt; and

(2) conduct a hearing out of the presence of the jury for that purpose.

Sec. 3. The state shall give the defendant notice of the state’s intent to

introduce in the case in chief evidence described by Section 1 or 2 not

later than the 30th day before the date of the defendant's trial.

Id. art. 38.37, §2–3.

B. Relevant Facts

Following the lunch break on the second day of testimony, after N.L. and

Ashley Murphy had already testified but before J.J. testified, the following hearing

occurred outside the presence of the jury:

[trial court]: Now the defense has an objection . . . to [J.J.] testifying

about any extraneous offenses. Obviously she’s a

witness to some of the incidents that we are here in trial

on in the primary case; but it’s my understanding that the

State, through the outcry witness that we had and through

[J.J.]’s testimony, is planning on offering an extraneous

act of sexual misconduct.

[the State]: That is correct.

[counsel]: That is what I’m objecting to. I think it’s an extraneous

offense that’s basically going to inflame the jury more

than be helpful in the resolution of the case. So, I think

the State should avoid getting into the extraneous

indecency or possible sexual assault of [J.J.].

[trial court]: Because it would be inflammatory?

[counsel]: Well, it would be an extraneous offense being brought in,

and I think the result is going to inflame the jury rather

than to actually prove the case that the State is attempting

to prove.

[trial court]: Your response?

[the State]: Under 38.37, we’re allowed to get evidence in. It’s

already been brought in front of the jury as far as what

[N.L.] saw, what [appellant] admitted to [N.L.] as far as

sleeping with [J.J.]. Especially under 38.37 because this

is a case [involving] an individual under the age of 17,

the State is allowed statutorily to talk about extraneous

[offenses] that involve other minors.

[trial court]: I think that relatively the statute is clear, that they’re

allowed to get into that type of evidence; and I think

particularly here because it was all kind of wrapped up

with that incident that happened at the hotel. I overrule

your objection.

J.J. went on to testify before the jury regarding the nature of her relationship

with N.L. and the time they would spend with appellant. She also described the

events as they occurred on February 1 and 2, 2016. She stated that appellant did

not pursue any sexual activity on February 1, 2016, after she told him no, but she

testified that she and appellant had engaged in sexual behavior before. As she

started testifying about a specific occasion, appellant’s trial counsel objected again.

He stated, “Your Honor, again, I’m going to object to any extraneouses that are not

related to this incident that occurred in February.” The trial court overruled the

objection, and J.J. testified that in the winter of 2015, appellant performed oral sex

on her.

C. Preservation of Article 38.37 Complaints

In his first issue, appellant complains that the State failed to provide

adequate notice of its intent to use extraneous offense evidence against him under

article 38.37, violating his due process rights. In his second issue, he argues that

the trial court abused its discretion by not holding a required hearing outside the

presence of the jury to determine whether the evidence was sufficient that the jury

could determine that appellant committed the extraneous offense beyond a

reasonable doubt. The State, however, argues that appellant failed to preserve

these complaints, and we agree.

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). For a party to preserve an issue for appeal, it must

make a timely, specific objection to the alleged error and obtain a ruling. See TEX.

R. APP. P. 33.1(a); Alvarez v. State, 491 S.W.3d 362, 367 (Tex. App.—Houston

[1st Dist.] 2016, pet. ref’d). The party must (1) tell the trial judge what the party

wants, (2) inform the judge why the party is entitled to that relief, and (3) be clear

enough so that the judge understands the party’s position in time for the judge to

correct the error. See Reyna v. State, 168 S.W.3d 173, 177–78 (Tex. Crim. App.

2005); Alvarez, 491 S.W.3d at 367. To meet these requirements, the party must

“state[] the grounds for the ruling that the complaining party sought from the trial

court with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context.” TEX. R. APP. P.

33.1(a)(1)(A); Alvarez, 491 S.W.3d at 367–68.

Texas courts have held that points of error on appeal must correspond or

comport with objections and arguments made at trial. Dixon v. State, 2 S.W.3d

263, 273 (Tex. Crim. App. 1998); Wright v. State, 154 S.W.3d 235, 241 (Tex.

App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with

the issue raised on appeal, the appellant has preserved nothing for review.”

Wright, 154 S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex.

Crim. App. 2003) (holding that issue was not preserved for appellate review

because appellant’s trial objection did not comport with issue he raised on appeal);

Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) (same).

Here, appellant objected prior to J.J.’s testimony only on the ground that her

testimony regarding appellant’s sexual assault of her was an “extraneous offense

that’s basically going to inflame the jury more than be helpful in the resolution of

the case.” The trial court clarified that appellant was complaining about J.J.’s

testimony “[b]ecause it would be inflammatory.” The State responded that,

“[u]nder 38.37, we’re allowed to get [the] evidence in.” The State also pointed out

that the jury had already heard N.L.’s testimony regarding the sexual relationship

between appellant and J.J. The trial court stated, “I think that relatively the statute

is clear, that they’re allowed to get into that type of evidence; and I think

particularly here because it was all kind of wrapped up with that incident that

happened at the hotel. I overrule your objection.”

Appellant’s counsel never objected on the basis that he did not receive

adequate notice pursuant to article 38.37. He did not seek a continuance or

otherwise complain that he was surprised by the State’s use of the evidence of

appellant’s sexual assault of J.J., nor did he complain that he was unprepared to

defend appellant from the allegations. He failed to make a specific objection that

would make the trial court aware that he received inadequate notice of the State’s

intent to use extraneous offense evidence pursuant to article 38.37. Accordingly,

he failed to preserve for appellate review his complaint that the evidence was

inadmissible due to lack of notice. See TEX. R. APP. P. 33.1(a); Alvarez, 491

S.W.3d at 367–68; Belcher v. State, 474 S.W.3d 840, 849–50 (Tex. App.—Tyler

2015, no pet.) (holding that defendant forfeited his complaint about notice of

extraneous offenses required by article 38.37 because he did not raise complaint in

trial court); Gregory v. State, 56 S.W.3d 164, 176 (Tex. App.—Houston [14th

Dist.] 2001, pet. dism’d) (holding that appellant failed to preserve complaint

regarding adequacy of article 38.37 notice because he failed to object on that basis

in trial court); see also Hartson v. State, 59 S.W.3d 780, 787–88 (Tex. App.––

Texarkana 2001, no pet.) (complaint of lack of notice of intent to use prior bad act

not preserved because no similar objection made at trial).

Likewise, appellant’s counsel never objected on the basis that appellant was

entitled to a hearing other than the one held by the trial court prior to J.J.’s

testimony on the admissibility of evidence of appellant’s sexual assault of J.J. He

did not ask for an article 38.37 hearing or object to the adequacy of the trial court’s

hearing. Accordingly, he also failed to preserve for appellate review his complaint

that the trial court erred in failing to hold an article 38.37 hearing. See TEX. R.

APP. P. 33.1(a); Alvarez, 491 S.W.3d at 367–68; see also Carmichael v. State, 505

S.W.3d 95, 103 (Tex. App.—San Antonio 2016, pet. ref’d) (concluding that article

38.37, section 2-a hearing requirement is subject to general requirement of

preservation and is therefore subject to forfeiture).

Appellant argues that he preserved his complaints by objecting to the

extraneous offense evidence on the basis that it was inflammatory. He argues that

“[a] general hearsay objection is sufficient to preserve all appellate claims under

Article 38.072,” and he cites the fact that “the Courts of Appeals have compared

the similarity in terms of preservation of error requirements between Article

38.072 and Article 38.37.” Appellant relies on Long v. State, which acknowledged

the “rule that an objection must be specific in order to inform the trial judge of the

basis of the objection and to afford counsel the opportunity to remove the objection

or supply other testimony” and held that the appellant preserved error by raising an

objection on hearsay grounds, thus shifting the burden to the State “to show the

evidence was admissible pursuant to either the provisions of Article 38.072 or to

some other exception to the hearsay rule.” 800 S.W.2d 545, 548 (Tex. Crim. App.

1990); see also Carmichael, 505 S.W.3d at 102–03 (noting similarities between

articles 38.37 and 38.072 in concluding that failure to make specific objection to

lack of adequate hearing is subject to general requirement of preservation and is

therefore subject to forfeiture); Taylor v. State, 509 S.W.3d 468, 472–73 (Tex.

App.—Austin 2015, pet. ref’d) (examining article 38.072’s hearing requirement

and holding that appellant waived any alleged error). This argument is unavailing

for several reasons.

The cases appellant cites largely construe article 38.072, not article 38.37—

the provision on which he relies here—and appellant did not make a general

hearsay objection, as occurred in Long. All of these cases affirm the general

principle that “an objection must be specific in order to inform the trial judge of the

basis of the objection and to afford counsel the opportunity to remove the objection

or supply other testimony.” See, e.g., Long, 800 S.W.2d at 548. And, in both

Carmichael and Taylor, the Courts of Appeals held that the appellant in those

cases waived his complaint by failing to make a specific objection to the lack of a

hearing or other inadequacy. See Carmichael, 505 S.W.3d at 102–03; Taylor, 509

S.W.3d at 472–73. Appellant has cited to no authority indicating that an objection

under Rule of Evidence 403 to extraneous offense evidence for its inflammatory

nature is sufficient to preserve complaints that the State or trial court failed to

follow the statutory requirements of article 38.37, and we have found none. See

Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (“Except for

complaints involving systemic (or absolute) requirements, or rights that are

waivable only, . . . all other complaints whether constitutional, statutory, or

otherwise, are forfeited by failure to comply with Rule 33.1(a).”).

We overrule appellant’s first and second issues.

D. Rule 403 Complaint

In his third issue, appellant argues that the trial court abused its discretion in

admitting the extraneous offense evidence without conducting a balancing test

under Rule 403. He objected, prior to J.J.’s testimony, that her testimony would

“inflame the jury more than be helpful in the resolution of the case,” implicating

Rule 403. The trial court stated, “I think that relatively the statute is clear, that

they’re allowed to get into that type of evidence; and I think particularly here

because it was all kind of wrapped up with that incident that happened at the hotel.

I overrule your objection.”

Under Rule of Evidence 403, the court may exclude otherwise relevant and

admissible evidence, including evidence that is admissible under article 38.37, if

its probative value is substantially outweighed by the danger of unfair prejudice,

confusing the issues, misleading the jury, undue delay, or needless presentation of

cumulative evidence. TEX. R. EVID. 403; Alvarez, 491 S.W.3d at 370. A trial court

is afforded discretion in determining whether evidence is admissible under Rule

403. Alvarez, 491 S.W.3d at 370; Burke v. State, 371 S.W.3d 252, 257 (Tex.

App.—Houston [1st Dist.] 2011, pet. dism’d). We presume that the probative

value of this evidence outweighs any prejudicial effect. Burke, 371 S.W.3d at 257;

see Alvarez, 491 S.W.3d at 370 (applying deferential standard “because trial courts

are usually in the best position to make the call on whether certain evidence should

be admitted or excluded”) (citation omitted).

Furthermore, in performing a Rule 403 balancing test, the trial court is not

required to “orally run through a list of factors on either side of the issue” or

otherwise articulate its reasoning on the record. See Hung Phuoc Le v. State, 479

S.W.3d 462, 469 (Tex. App.—Houston [14th Dist.] 2015, no pet.). When the

record reflects that the trial court entertained the objection and made a ruling on it,

we presume that it properly performed a balancing test. Id.; see also Santellan v.

State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997) (“Although appellant asserts

that the trial court did not perform the balancing test, the trial court did not

explicitly refuse to do the test, it simply overruled appellant’s Rule 403 objections.

We find nothing in the record to indicate that the trial court did not perform a

balancing test, albeit a cursory one.”); Williams v. State, 958 S.W.2d 186, 195

(Tex. Crim. App. 1997) (“[A] judge is presumed to engage in the required

balancing test once Rule 403 is invoked and we refuse to hold that the silence of

the record implies otherwise.”); Hinojosa v. State, 995 S.W.2d 955, 957 (Tex.

App.––Houston [14th Dist.] 1999, no pet.) (“Because appellant objected on

specific grounds and the trial court overruled the objection, we assume that the trial

court applied Rule 403 and determined that the probative value of the evidence was

not substantially outweighed by any danger of unfair prejudice.”).

Appellant argues that the trial court abused its discretion in admitting the

extraneous offense evidence without conducting a Rule 403 balancing test.

However, the record reflects that the trial court entertained appellant’s objection

that the evidence would improperly inflame the jury, and it overruled appellant’s

objection. The trial court determined that J.J.’s testimony was particularly relevant

here “because it was all kind of wrapped up with that incident that happened at the

hotel.” Nothing in the record indicates that the trial court refused to consider

appellant’s objection or otherwise refused to balance Rule 403 considerations.

Based on this record, appellant has not overcome the assumption that the trial court

properly performed a balancing test. See Hung Phuoc Le, 479 S.W.3d at 469; see

also Williams, 958 S.W.2d at 195 (“[A] judge is presumed to engage in the

required balancing test once Rule 403 is invoked and we refuse to hold that the

silence of the record implies otherwise.”).

To the extent that appellant is also challenging the admissibility of J.J.’s

testimony under Rule 403, appellant does not provide any reasoning or authority

indicating that the evidence was overly prejudicial. On this record and in light of

article 38.37, we cannot conclude that appellant has overcome the presumption that

the probative nature of the evidence outweighed any prejudicial effect. See

Alvarez, 491 S.W.3d at 370 (noting that Rule 403 does not allow “a trial court to

exclude otherwise relevant evidence when that evidence is merely prejudicial” and

rule “should be used sparingly,” only when prejudicial effects substantially

outweigh probative nature of evidence).

We overrule appellant’s third issue.

Outcry Testimony

In his fourth issue, appellant argues that the State failed to provide adequate

notice of an outcry witness’s testimony under Code of Criminal Procedure article

38.072 and the trial court abused its discretion in admitting extraneous hearsay

testimony under article 38.072. Specifically, he argues that the State did not

provide notice that Claudia Gonzalez was the outcry witness who would testify

regarding J.J.’s outcry of abuse, as required under article 38.072, section 2(b)(1).

He further argues that the trial court abused its discretion in admitting Gonzalez’s

outcry testimony for an extraneous matter under article 38.072. Again, the State

argues that appellant failed to preserve this complaint for consideration on appeal

and that, even if he had, any error was harmless.

A. Standard of Review

Texas Code of Criminal Procedure article 38.072, the outcry statute,

provides that a child abuse victim’s statement to another is not inadmissible

hearsay if the statement describes the alleged offense and the person to whom the

statement is made is at least 18 years old and is the first person the child informed

about the offense. TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2018).

Article 38.072, section 2 provides:

(a) This article applies only to statements that:

(1) describe:

(A) the alleged offense; or

(B) if the statement is offered during the punishment

phase of the proceeding, a crime, wrong, or act other than

the alleged offense that is:

(i) described by Section 1;

(ii) allegedly committed by the defendant against

the child who is the victim of the offense or

another child younger than 14 years of age; and

(iii) otherwise admissible as evidence

under Article 38.37, Rule 404 or 405, Texas Rules

of Evidence, or another law or rule of evidence of

this state;

(2) were made by the child or person with a disability against

whom the charged offense or extraneous crime, wrong, or act

was allegedly committed; and

(3) were made to the first person, 18 years of age or older, other

than the defendant, to whom the child or person with a

disability made a statement about the offense or extraneous

crime, wrong, or act.

(b) A statement that meets the requirements of Subsection (a) is not

inadmissible because of the hearsay rule if:

(1) on or before the 14th day before the date the proceeding

begins, the party intending to offer the statement:

(A) notifies the adverse party of its intention to do so;

(B) provides the adverse party with the name of the

witness through whom it intends to offer the statement;

and

(C) provides the adverse party with a written summary of

the statement;

(2) the trial court finds, in a hearing conducted outside the

presence of the jury, that the statement is reliable based on the

time, content, and circumstances of the statement; and

(3) the child or person with a disability testifies or is available

to testify at the proceeding in court or in any other manner

provided by law.

Id.

Thus, article 38.072 allows statements that might otherwise be inadmissible

hearsay statements—here, statements that “were made by the child . . . against

whom the . . . extraneous crime . . . was allegedly committed”—provided that the

witness testifying to the statement is “the first person, 18 years of age or older,

other than the defendant, to whom the child . . . made a statement about the . . .

extraneous crime.” Id. art. 38.072, § 2(a)(2)–(3). The State is required to provide

timely notice of its intent to use outcry testimony, including the name of the outcry

witness and a written summary of the witness’s statement. Id. art. 38.072,

§ 2(b)(1).

Courts have also held that complaints under article 38.072 must be preserved

by a specific objection. “When the State offers an out-of-court statement pursuant

to article 38.072 of the Texas Code of Criminal Procedure, a defendant must object

to the statement to preserve error for appellate review.” Rosas v. State, 76 S.W.3d

771, 776–77 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing Holland v.

State, 802 S.W.2d 696, 699–700 (Tex. Crim. App. 1991)). Failure to object waives

the complaint on appeal. Id. at 777; see also Taylor, 509 S.W.3d at 472–73

(holding that appellant waived any alleged error regarding admission of evidence

concerning outcry statements because he made no objection before the trial court).

B. Relevant Facts

Following appellant’s indictment, the State filed pre-trial notice of its

intention to use a child abuse victim’s hearsay statement, indicating that, pursuant

to Code of Criminal Procedure 38.072, N.L.’s hearsay statements of abuse would

be offered through the HPD officers who responded to the shooting call and who

investigated N.L.’s allegations of a relationship with appellant—Officers Hall and

McCloud, respectively. The State provided a summary of N.L.’s statement as

including her statement that appellant “was having sex with her friend [J.J.] while

she laid in the other bed at the Downtowner Inn Motel,” leading up to the shooting

that brought the nature of N.L.’s relationship with appellant to the attention of

police.

Appellant then moved for a “hearing outside the presence of the jury on [an]

outcry statement of [a] child pursuant to [Code of Criminal Procedure] art.

38.072,” based on the State’s notice of “its intent to use the outcry hearsay

statement of the Complainant, N.L.” The trial court granted this motion.

After N.L. and Ashley Murphy testified on the first day of the trial, the trial

court discussed the outcry hearing that was scheduled for the next morning, asking,

“Is it just one witness?” The State responded, “There are going to be a couple

more now, Judge. So total State expects for there to be three witnesses.”

The next morning, the trial court conducted a hearing regarding the

reliability of an outcry witness, Claudia Gonzalez.4 Gonzalez was an interviewer

with the Children’s Assessment Center who was assigned to interview J.J. on

February 4, 2016. J.J. told Gonzalez that she was twelve years old at the time of

the interview, and J.J. initially thought she was there to speak to Gonzalez about

the shooting incident that had occurred on February 2, 2016. During this

interview, J.J. “disclosed sexual abuse by [appellant], and described that he ate her

out one time at a motel room.” J.J. indicated that this occurred in December 2015.

Appellant’s trial counsel cross-examined Gonzalez and established that

Gonzalez had not interviewed the complainant in the case, N.L., and he further

established that J.J. did not provide any statements to Gonzalez regarding

appellant’s conduct toward N.L.

The trial court gave both sides an opportunity to present argument on the

outcry issue. Appellant’s counsel did not object that he had not received proper

notice of the hearing pursuant to Code of Criminal Procedure article 38.072, nor

did he object on the basis that article 38.072 did not apply to Gonzalez or in any

other way refer to the requirements of article 38.072. Instead, the following

interchange occurred:

4

The State also presented Officers Hall and McCloud as outcry witnesses

addressing N.L.’s statement of abuse, but appellant does not challenge the trial

court’s ruling regarding those witnesses.

[counsel]: Judge, on Ms. Gonzalez, I think that only refers to [J.J.],

and that certainly would be an extraneous that would be

brought into this case, which we would object to as being

an extraneous offense.

[trial court]: But whether or not it’s admissible is a different issue.

We’re talking about whether or not the outcry was

reliable based on the time and circumstances, whether or

not she is the appropriate outcry witness.

[counsel]: As to [J.J.], I don’t have any objection.

[trial court]: Okay. We’ll take up whether or not it’s admissible at a

later time.

When J.J. subsequently testified on the record, appellant objected to the

admission of evidence of an extraneous offense that would unduly inflame the

jury—an objection which the trial court overruled, as discussed above. When

Gonzalez then testified regarding J.J.’s outcry of abuse to her, appellant did not

object on any basis.

C. Analysis

Appellant argues on appeal that the State’s article 38.072 notice was

inadequate because it did not list Gonzalez. However, appellant failed to make any

objections that comport with the complaints that he now raises on appeal—that he

did not receive adequate notice under article 38.072 or that Gonzalez’s testimony

was not admissible pursuant to article 38.072. See TEX. R. APP. P. 33.1(a);

Resendiz, 112 S.W.3d at 547; see also Bargas v. State, 252 S.W.3d 876, 895 (Tex.

App.—Houston [14th Dist.] 2008, no pet.) (holding that appellant failed to

preserve complaint about notice provided by State pursuant to article 38.072 by

failing to object on that basis in trial court); Sharp v. State, 210 S.W.3d 835, 839

(Tex. App.—Amarillo 2006, no pet.) (holding that appellant failed to preserve his

complaint that State failed to give him notice required by article 38.072).

Furthermore, when the trial court heard appellant’s objection that

Gonzalez’s testimony went to an extraneous offense, it clarified that the issue

before the court at the outcry witness hearing was “whether or not the outcry was

reliable based on the time and circumstances, whether or not she is the appropriate

outcry witness.” Appellant’s counsel affirmatively stated, “As to [J.J.], I don’t

have any objection.” The trial court stated that they could address admissibility

later, but when Gonzalez testified appellant never objected to her testimony on the

ground that it was inadmissible. He never made any objection, either at the outcry

hearing or when Gonzalez’s testimony was presented to the jury, that implicated

the provisions of article 38.072. Accordingly, we conclude that he waived those

complaints. See See TEX. R. APP. P. 33.1(a); Resendiz, 112 S.W.3d at 547.

Appellant, citing Long, argues that, by his filing his motion for an article

38.072 hearing, the burden shifted to the State to show that it had met all the

requirements of article 38.072. See 800 S.W.3d at 548. However, Long is

factually distinguishable. In Long, the Court of Criminal Appeals addressed

whether a hearsay objection was sufficient to preserve the defendant’s complaint

regarding evidence purportedly admitted pursuant to article 38.072. Id. at 546–47.

The court concluded that the hearsay objection preserved error and put the burden

on the State “to show the evidence was admissible pursuant to either the provisions

of Article 38.072 or to some other exception to the hearsay rule.” Id. at 548. In

reaching this conclusion, the court “acknowledge[d] our rule that an objection must

be specific in order to inform the trial judge of the basis of the objection and to

afford counsel the opportunity to remove the objection or supply other testimony.”

Id.

Here, appellant did not make a hearsay objection. Unlike in Long, the

record here demonstrates that the State did file notice under article 38.072 and

appellant’s motion for an outcry witness hearing was granted. The State presented

evidence from multiple witnesses demonstrating that the evidence was admissible

pursuant to article 38.072. Appellant had an opportunity to question the witnesses

and to provide legal argument. He never raised any objections pertaining to notice

under the statute, he never expressed surprise at Gonzalez’s appearance during the

hearing, and he did not seek a continuance. Appellant has not identified any

authority indicating that this complaint should fall outside the general rule,

acknowledged in Long and many cases since then, that “an objection must be

specific in order to inform the trial judge of the basis of the objection and to afford

counsel the opportunity to remove the objection or supply other testimony.” Id.;

see also TEX. R. APP. P. 33.1(a); Resendiz, 112 S.W.3d at 547.

We overrule appellant’s fourth issue.

Ineffective Assistance of Counsel

In his fifth issue, appellant contends that his trial counsel provided

ineffective assistance of counsel. He asserts that his trial counsel was ineffective

for failing to object to extraneous bad acts and for failing to preserve error for

appeal. He further argues that the “totality of trial counsel’s representation

undermines the court’s confidence in the conviction.”

A. Standard of Review

We evaluate ineffective assistance claims under the two-pronged test set

forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail

on a claim of ineffective assistance, an appellant must show that (1) counsel’s

performance fell below an objective standard of reasonableness based on

prevailing professional norms, and (2) but for counsel’s deficient performance,

there is a reasonable probability that the result of the proceeding would have been

different. Id. at 692, 104 S. Ct. at 2067. An appellant must prove deficient

performance and sufficient prejudice by a preponderance of the evidence. Perez v.

State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (citing Salinas v. State, 163

S.W.3d 743, 740 (Tex. Crim. App. 2005)).

In reviewing ineffective-assistance claims, we begin with a strong

presumption that counsel’s behavior fell within the range of reasonable

professional conduct. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.

1994). “[I]n the absence of evidence of counsel’s reasons for the challenged

conduct, an appellate court commonly will assume a strategic motivation if any can

possibly be imagined.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001) (internal quotations omitted). To overcome this presumption, “allegation[s]

of ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999).

When the record is silent regarding counsel’s strategy, we will not find

deficient performance unless the challenged conduct is “so outrageous that no

competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440.

Consequently, the record on direct appeal will ordinarily not give reviewing courts

enough information to evaluate the merits of an ineffectiveness claim. See Andrews

v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).

B. Analysis

Appellant identifies several instances as demonstrating that his trial counsel

was constitutionally ineffective. He asserts that trial counsel was ineffective for

failing to object to numerous extraneous and prejudicial matters, including N.L.’s

testimony that appellant spent time “just selling his drugs” and evidence that

appellant used drugs with N.L. and J.J.; N.L.’s testimony that appellant was

involved in prostitution; evidence of his sexual activity with other minors; and

evidence of his possession of a firearm. He also argues that his counsel was

ineffective for failing to make objections that would have preserved his complaints

regarding articles 38.37 or 38.072 for review on appeal.

Appellant argues that extraneous offenses are inherently prejudicial, and

when counsel fails to object to numerous extraneous and prejudicial matters,

counsel may be ineffective, citing Brown v. State, 974 S.W.2d 289 (Tex. App.—

San Antonio 1998, pet. ref’d). However, the record is silent as to trial counsel’s

strategy in failing to object on these grounds, and none of the identified failures are

“so outrageous that no competent attorney would have engaged in [them].” See

Garcia, 57 S.W.3d at 440. Many of the extraneous offenses that appellant argues

his trial counsel should have objected to were likely admissible. See West v. State,

474 S.W.3d 785, 792 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding

that defense counsel’s failure to object to evidence that was likely admissible did

not rise to level of deficient performance).

The evidence of appellant’s sexual assault of J.J. and the passing mention of

prostitution of minors were likely admissible under article 38.37 or for some

purpose other than showing that appellant was acting in conformity with his

character. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2; TEX. R. EVID.

404(b)(2) (providing that evidence of crimes, wrongs, or other bad acts may be

admissible for purpose other than to prove character or that he acted in accordance

with character, “such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident”); see also Wyatt v.

State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (explaining that evidence of

another crime, wrong, or act may be admissible as same-transaction contextual

evidence where several crimes are intermixed, or blended with one another, or

connected so that they form indivisible criminal transaction, and full proof by

testimony of any one of them cannot be given without showing others). Appellant

has failed to demonstrate that, if his trial counsel had objected, the trial court

would have erred in overruling the objection. See Vaughn v. State, 931 S.W.2d

564, 566 (Tex. Crim. App. 1996) (appellant must demonstrate that if counsel had

objected on indicated grounds, trial court would have erred in overruling

objection).

Furthermore, even the failure to object to inadmissible evidence may be a

sound trial strategy. See West, 474 S.W.3d at 791–92; Haagensen v. State, 346

S.W.3d 758, 766 (Tex. App.—Texarkana 2011, no pet.). Several of the extraneous

offenses or bad acts—such as the references to appellant selling drugs, smoking

drugs, or possessing a firearm—were mentioned in passing and were not dwelt

upon by the State; thus, counsel might have believed that it would be better not to

draw attention to those acts by objecting to them. See Huerta v. State, 359 S.W.3d

887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that counsel

“may have . . . decided to withhold objections to avoid drawing unwanted attention

to a particular issue, or to prevent the impression that she was objecting at every

opportunity as a means of stonewalling evidence”); Haagensen, 346 S.W.3d at 766

(“Trial counsel’s strategy in not objecting may have been an effort to build rapport

with the jury and prevent the jury from concluding he was attempting to hide

information from them.”). The record does not provide any insight into defense

counsel’s true reasoning, and so we will defer to counsel’s decisions. See Ortiz v.

State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002). Appellant has failed to

overcome the strong presumption that counsel performed within reasonable

standards. See Thompson, 9 S.W.3d at 813.

Finally, appellant argues that the totality of his trial counsel’s representation

undermined confidence in his conviction, citing Brown, in which the court held

that counsel was ineffective for failing to properly voir dire jurors, eliciting

extraneous offenses, making no effort to object to inadmissible evidence, admitting

his own lack of preparation, and misstating the burden of proof. See 974 S.W.3d at

294. This case is materially different from Brown. Here, appellant’s trial counsel

participated appropriately in voir dire, filed motions, made objections to evidence,

cross-examined witnesses, and presented legal arguments on appellant’s behalf.

Appellant’s argument that counsel’s performance undermined confidence in

the outcome of his trial is essentially an argument that he has proven sufficient

harm under the Strickland standard for proving an ineffective-assistance claim.

See Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012) (holding that, in

evaluating ineffective-assistance claims, courts must examine “the totality of the

circumstances as they existed at trial,” and appellant must show both deficient

performance and “a reasonable probability”—i.e., “one sufficient to undermine

confidence in the outcome”—that, but for counsel’s unprofessional errors, result of

proceedings would have been different). We have already determined that the

specific alleged failures do not support a claim of ineffectiveness.

Even to the extent that appellant’s trial counsel’s failure to object in the

instances or on the particular grounds identified cannot be explained as trial

strategy and fell below an objective standard of reasonableness, without a showing

of a reasonably probability that the result of the proceedings would have been

different, we cannot conclude that appellant was prejudiced by his counsel’s

inaction. See Thompson, 9 S.W.3d at 813. Appellant’s trial counsel did object to

the admission of extraneous offense evidence on several occasions, and the

objections were overruled. But even without considering the complained-of

evidence—the passing statements regarding drugs and weapons, J.J.’s testimony,

and Gonzalez’s outcry testimony—the State nevertheless presented a compelling

and thorough case against appellant. N.L.’s testimony, the testimony of N.L.’s

outcry witness Officer McCloud, the testimony of Ashley Murphy, and recordings

of appellant’s conversations that occurred over the jailhouse phone line were

sufficient to establish the elements of the offense for which appellant was

convicted. See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2018).

We cannot say that any failure of counsel materially impacted the outcome

of appellant’s case. See Strickland, 466 U.S. at 692, 104 S. Ct. at 2067; Flores,

387 S.W.3d at 633–34.

We overrule appellant’s fifth issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).