Opinion
NO. 01-19-00906-CR
04-29-2021
DAVID RENE MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Case No. 1586127
MEMORANDUM OPINION
A jury convicted appellant, David Rene Martinez, of indecency with a child by exposure, found two felony enhancements true, and assessed his punishment at 65 years' confinement. In five issues on appeal, appellant contends that (1) the appeal should be abated so that the trial court can supplement the clerk's record; (2) the trial court erred in allowing evidence of an extraneous offense; (3) the evidence is legally insufficient to support the conviction; and (4-5) defense counsel provided ineffective assistance during both the guilt-innocence and punishment phases of trial. We affirm.
TEX. PENAL CODE § 21.11(a)(2)(A), (d).
TEX. PENAL CODE § 12.42(d).
BACKGROUND
On January 23, 2018, six-year-old Katie was in the car with her mother and her four-year-old sister when her mother stopped at the Quick Quack Car Wash. Katie and her sister sat in the back seat while their mother vacuumed the car. While Katie's mother was parked in one of the complimentary vacuum stalls, appellant pulled his red Jeep into the stall next to the driver's side of their vehicle, opened both of his passenger-side doors, and began to clean his vehicle as well. As Katie's mother was busy vacuuming, appellant made eye contact with Katie and pulled his penis out of his sweatpants. He smiled at Katie, put his finger to his lips to "shush" her, and began masturbating. When he was finished, appellant turned toward his car and "peed" in a Taco Bell cup, which he then threw into the garbage. Katie thought appellant "peed" because some went on the ground and she said it was yellow.
In this opinion, we refer to the minor complainant by a pseudonym. See TEX. CONST. art. I, § 30(a)(1) (granting crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process[ ]").
Katie did not say anything to her mother at the time, but later that night she told her mother that a man showed her his "private part." Katie's mother initially though Katie was talking about a man at school, but Katie clarified that it was "the man at the car wash." Katie told her mother that the man made a "scratching" motion, but Katie's mother testified at trial that Katie demonstrated a rubbing motion.
Katie's mother immediately drove back to the car wash and reported the incident to Nicholas Gamboa, the assistant manager on duty. Gamboa told Katie's mother that he would contact his manager and they would check to see if the security system captured anything on video.
Katie's mother returned home and called the police. Deputy S. McIntyre with Precinct 4 of the Harris County Constable's Office responded to the 9-1-1 call and interviewed Katie that same evening. The next day, McIntyre went to the car wash and talked to Gamboa and another employee, Jap Murry. McIntyre also watched the car wash's video, which did not show the vacuum stalls, but did capture appellant's license plate as he drove through the car wash.
Based on this information, Investigator J.E. Craig of the Harris County Sheriff's Office prepared a photo array that included appellant. On February 6, 2018, both Katie and her mother identified appellant as the man they had seen at the car wash. Appellant was then arrested.
At trial, both Gamboa and Murry testified that they had seen appellant on the day of the offense. Gamboa remembered appellant because he was there for an unusually long period of time. While most patrons go through the car wash, then vacuum their car and leave, appellant was there for two to three hours. During that time, he drove through the car wash twice. He also moved his vehicle into several of the vacuum stalls; Gamboa acknowledged that all the vacuum stalls did not always work properly. At least twice, Gamboa saw appellant parked next to Katie's mother. It seemed to Gamboa that appellant was following them. Gamboa also noticed appellant "fiddling with his pants" at one point, but he did not see appellant expose himself. Murry, too, testified that he remembered appellant "fixing his pants as if he just used the bathroom . . . like he was just messing around with his pants, as if he used the bathroom or pulled his pants up, I don't know."
Katie and her mother both testified at trial. Katie's mother identified appellant at trial, though Katie did not. While on the stand, Katie demonstrated appellant "shushing" her and when asked what appellant was doing with his penis, Katie responded, "Yeah. He was, like, um, (indicating) holding it and he was going (indicating), he was like, pulling it up." She also drew a picture of what she saw, which was readily identifiable as a penis.
In his defense, appellant offered medical evidence that, at the time of the offense, he had a large, baseball-shaped umbilical hernia. His defense suggested that Katie did not see his penis but may have mistaken his umbilical hernia for a penis.
After the defense rested, the State called Patricia Mehmood as a rebuttal witness, who testified that, over 22 years earlier, she had been walking down the street when appellant pulled up in a truck and asked her if she wanted a ride. When she declined, appellant drove by again and asked the same question; again Mehmood declined. The third time appellant drove by, Mehmood saw that he was masturbating and saying, "Look here. Look-ey here." When Mehmood "cussed at appellant" and told him she had his license plate number, appellant drove off. He was later arrested, charged with, and convicted of, indecent exposure.
ABATEMENT FOR SUPPLEMENTAL CLERK'S RECORD
In issue one, appellant argues that "[d]ue to mistakes in the jury charges this appeal should be abated so the trial court can supplement the clerk's record." Specifically, appellant points out that "[t]he jury charges appeared out of order numerically," "[t]he culpability charge and the punishment charge are also mixed together," and that an abatement was necessary so that the trial court could properly "recreate the charges as given to the jury."
However, after appellant's brief was filed, the Harris County District Clerk's Office filed a supplemental clerk's record that complies with appellant's request.
Accordingly, we overrule issue one as moot.
LEGAL SUFFICIENCY
In issue three, appellant contends that the evidence is legally insufficient to prove that he exposed his penis to Katie with the intent "to arouse or gratify [his] sexual desire[.]" Although raised as his third issue, we address appellant's sufficiency issue first because in it he seeks an acquittal. See Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ("We address appellant's second issue first because it challenges the sufficiency of the evidence and seeks rendition of a judgment of acquittal."); see also King v. State, No. 01-18-00335-CR, 2019 WL 5432053, at *2 (Tex. App.—Houston [1st Dist.] Oct. 24, 2019, pet. ref'd) (mem. op., not designated for publication) (stating same); see also Benavidez v. State, 323 S.W.3d 179, 182 (Tex. Crim. App. 2010) (holding sufficiency of evidence, when raised, must be addressed before trial error because sustaining it results in acquittal and "would interpose a jeopardy bar to retrial").
Standard of Review and Applicable Law
We review the legal sufficiency of the evidence by considering all the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). In assessing the sufficiency of the evidence to support conviction, a reviewing court must consider all evidence that the jury was permitted, whether rightly or wrongly, to consider. Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988); Waggoner v. State, No. 01-09-00215-CR, 2010 WL 3294228, at *3 (Tex. App.—Houston [1st Dist.] Aug. 19, 2010, no pet.) (mem. op., not designated for publication) ("[I]n conducting a sufficiency review, we must consider all the evidence presented to the jury, whether rightly or wrongly admitted."). Our role is that of a due-process safeguard, ensuring only the rationality of the trier-of-fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the factfinder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. The jury, as the judge of the facts and credibility of the witnesses, may choose to believe or not to believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).
A person commits the offense of indecency with a child by exposure if:
(1) with a child younger than seventeen years of age, andTEX. PENAL CODE § 21.11(a)(2)(A); Guzman v. State, 591 S.W.3d 713, 732 (Tex. App.—Houston [1st Dist.] 2019, no pet.). The uncorroborated testimony of either the child or an outcry witness suffices to support a conviction for indecency with a child. Gonzalez v. State, 522 S.W.3d 48, 57 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
(2) with intent to arouse or gratify the sexual desire of any person,
(3) the person exposes the person's anus or any part of the person's genitals, knowing the child is present.
Analysis
Appellant argues that the evidence is legally insufficient to prove the second element of indecent exposure listed above, i.e., that he exposed his penis to Katie with the required criminal "intent to arouse or gratify the sexual desire of any person," here, himself. See TEX. PENAL CODE § 21.11(a)(2)(A). Specifically, appellant points out that Katie testified that she saw a man with his privates out, scratching himself, and peeing in a cup; she knew he was peeing because yellow pee came out of his private and spilled on the ground. Appellant contends that Katie's mother must have "decided that this meant masturbation," but that the only evidence was Katie's testimony, which indicates urination.
However, it is well established that "the requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks and all surrounding circumstances." McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Corporon v. State, 586 S.W.3d 550, 562 (Tex. App.—Austin 2019, no pet.); Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). An oral expression of intent is not required; the conduct itself is sufficient to infer intent. Garcia v. State, 592 S.W.3d 590, 598 (Tex. App.—Eastland 2019, no pet); Villanueva v. State, 209 S.W.3d 239, 246 (Tex. App.—Waco 2006, no pet.).
Here, Katie testified that she and her younger sister were in the backseat of their mother's car at the car wash when an "old man showed [her]" his "private area." She said the man, who she later identified as appellant in a police line-up, "kept telling [her] to be quiet" and "putting his finger over his mouth and telling [her] to shush." Katie said the man pulled his "private area" out of his sweatpants and showed her. She indicated that the man was holding his "private area" and was "pulling it up." Katie also said that the man had a Taco Bell cup and that he faced toward his car and peed in it. When asked how she knew he peed, she said that she "saw a little bit of it go on to the ground" and that it was yellow. The man then threw the cup away "so no one could see it." When asked what appellant's private part looked like, Katie drew a picture that was readily identifiable as a penis. She testified that the penis did not look anything "like a baseball shape." A photo of appellant's umbilical hernia showed a baseball-shaped lump near appellant's navel.
Katie's mother testified as an outcry witness. She testified that she took her two children to the Quick Quack Car Wash so that she could clean the car before returning it to her father-in-law. When she arrived, she parked in the vacuum section; there was no one in the stall on the right side of her car, but appellant pulled into the stall on the left side and had both passenger doors open. She thought appellant, who was driving a red Jeep, was vacuuming his car. However, when she got home, Katie told her that "the man at the car wash" showed her his private part and she demonstrated to her mother what the man had been doing. Katie told her mother that the man was "scratching," but the motion she showed her mother was not a scratching motion. Instead, Katie indicated to her mother that the man made a rubbing motion, was "moving his hands back and forth," and "had both hands on [his penis]." In court, Katie's mother identified appellant as the man she had seen at the car wash.
Katie's mother immediately returned to the car wash and spoke to a man who worked there. The man told her "that this man had been banned from there from doing something to a girl that previously worked there." He also told her he would talk to his boss the next day and see if anything had been caught on camera. Katie's mother then called the police, who came to her home to question Katie.
Nicholas Gamboa testified that he was an employee at the Quick Quack Car Wash, and that he remembered appellant as a regular customer who drove a red Jeep. On the day of the offense, Gamboa noticed that appellant was at the car wash for two and one-half to three hours, which was an unusually long time for the express car wash. He said that customers usually "drive the car [through the car wash], [] vacuum the car, and [] leave." Gamboa noticed that appellant "moved a couple of times, [he] moved from stall-to-stall multiple times"; Gamboa acknowledged that some of the vacuums did not always work properly. Gamboa also noticed that twice appellant was parked next to Katie's mother. It seemed to Gamboa that appellant was following them. Gamboa also noticed appellant "fiddling with his pants," but did not see appellant expose himself.
Jap Murry, another employee at the Quick Quack Car Wash, also testified that he was at work on the day of the offense. Murry testified that he had "seen a red Jeep parked next to [Katie's mother's] car and a guy fidgeting with, like, his pants as if he just pulled them up or down." Murry said that appellant was standing "in between his vehicle and the woman's vehicle" at the time. Murry testified, "I didn't see [appellant] actually pull his private parts out. I just seen him fidgeting."
After the defense rested, the State requested the opportunity to call Patricia Mehmood as a rebuttal witness regarding appellant's prior conviction for indecent exposure. The State argued that appellant's suggestion that he lacked criminal intent because Katie saw his hernia and not his penis "absolutely opens the door to allow this one prior in, to show clear 404, to show intent, motive, identity." The court then permitted the State to call Mehmood as a rebuttal witness, and Mehmood testified that, 20 years before, appellant had followed her while she was walking along a road, asked her if she wanted a ride, and said, "Look-ey here! Look-ey here!" while masturbating. Mehmood wrote appellant's license plate down, identified appellant as her assailant, and appellant was subsequently convicted of indecent exposure.
We hold that the evidence detailed above is legally sufficient to show appellant's criminal intent. While Katie described appellant's action as "scratching," her mother testified that Katie made a rubbing motion while demonstrating that appellant was moving his hands "back and forth." See Mastrangelo v. State, No. 09-05-337-CR, 2007 WL 1052438, at *1-2 (Tex. App.—Beaumont Apr. 4, 2007, no pet.) (mem. op., not designated for publication) (holding evidence that defendant touched his penis and "moved his hand up and down" sufficient to prove intent to arouse or gratify his sexual desire). The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given their testimony. See TEX. CODE CRIM. PROC. arts. 36.13, 38.04. As such, the jury was entitled to accept or reject any or all of the testimony of any witness. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). Thus, it was within the jury's province to determine the credibility of Katie and her mother and to resolve inconsistencies, if any, between their testimony.
We also note that, during her testimony, Katie demonstrated what she saw appellant doing, though the record is unclear regarding what she demonstrated. In such a case, we presume that the demonstration supports the jury's verdict. See Wawrykow v. State, 866 S.W.2d 87, 90 (Tex. App.—Beaumont 1993, pet. ref'd) (citing Rogers v. State, 756 S.W.2d 332, 336 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd) and Gaona v. State, 733 S.W.2d 611, 613 n. 1 (Tex. App.—Corpus Christi 1987, pet. ref'd)) (noting that when parties do not elicit for record details explaining meaning of demonstrations, appellate court presumes demonstrations support jury's verdict.).
When asked whether appellant was doing anything with his private part when she saw it, Katie stated, "Yeah. He was, like, um, (indicating) holding it and he was going (indicating), he was like, pulling it up."
The evidence also showed that appellant "shushed" appellant, so that she would not tell anyone else what he was doing. Such an action could indicate to a reasonable jury appellant's consciousness of guilt. Gregory v. State, 56 S.W.3d 164, 172 (Tex. App.—Houston [14th Dist.] 2001, pet. dism'd). ("That appellant instructed the children not to reveal the event to anyone shows a consciousness of wrongdoing, which, in turn, leads to an inference that when he touched or exposed himself to children as he did, appellant harbored a specific intent to arouse and gratify his own sexual desire."); see also Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus Christi 1993, pet. ref'd) (noting that consciousness of guilt "is perhaps one of the strongest kinds of evidence of guilt"). "[A]ny conduct on the part of a person accused of a crime subsequent to its commission, which indicates a "consciousness of guilt," may be received as a circumstance tending to prove that he committed the act with which he is charged." Id.
Additionally, there were other circumstances from which a jury could have inferred appellant's criminal intent. For example, appellant was seen at the car wash for an unusually long period of time, he moved his car several times—twice parking next to Katie's mother's car, and two disinterested witnesses saw appellant "fidgeting with his pants."
Finally, the jury heard evidence of the extraneous, indecent-exposure offense against Mehmood and was instructed that it could consider such evidence in determining appellant's motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]" (Emphasis added).
In issue two, appellant contends this extraneous-offense evidence was erroneously admitted. However, we consider all evidence, rightly or wrongly admitted, when we conduct a legal-sufficiency review. See Thomas, 753 S.W.2d at 695. --------
A rational fact finder could have determined that, considering the defendant's conduct and all the surrounding circumstances, he possessed the requisite specific intent to arouse or gratify his own sexual desire. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981).
We overrule issue three.
EXTRANEOUS-OFFENSE EVIDENCE
As mentioned above, the trial court permitted the State to call Mehmood as a rebuttal witness to testify about a 20-plus-year-old indecent-exposure conviction against appellant in which she was the complainant. In issue two, appellant contends that "the trial court erred in allowing the state to present evidence of an extraneous offense under [Texas Rule of Evidence] 404(b)."
Standard of Review and Applicable Law
Rule 404(b) prohibits the admission of extraneous-offense evidence at the guilt/innocence phase of a trial to prove that a defendant committed the charged offense in conformity with bad character. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (citing TEX. R. EVID. 404(b)). However, extraneous-offense evidence may be admissible when it has relevance apart from character conformity. Id. (citing Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003)). Such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." TEX. R. EVID. 404(b)(2). The exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively exhaustive. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). "'Rule 404(b) is a rule of inclusion rather than exclusion.' The rule excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad character and hence conduct in conformity with that bad character." Id. (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)).
When reviewing a trial court's decision to admit extraneous-offense evidence under rule 404, an appellate court uses an abuse-of-discretion standard. See Sells v. State, 121 S.W.3d 748, 766 (Tex. Crim. App. 2003). Under that standard, an appellate court should reverse the decision only if it concludes that "by no reasonable perception of common experience can it be concluded that proffered evidence has a tendency to make the existence of a fact of consequence" other than character conformity "more or less probable than it would otherwise be." See Montgomery v, State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g); see also TEX. R. EVID. 401 (defining "[r]elevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence").
Rule 404(b) Law and Analysis
Appellant argues that the rebuttal evidence should not have been permitted under any of the exceptions listed in Texas Rule of Evidence 404(b). However, as acknowledged by appellant in his appellate brief, "[t]he most challenged element [in this case] is . . . whether [appellant's] intent in exposing his genitals (if he did) was to arouse his sexual desire." (Emphasis added). Appellant also argues that the evidence suggests that appellant was merely urinating, not masturbating; therefore, he did not have the requisite criminal intent. As such, appellant's intent was clearly a contested issue in the case. Intent is a permissible purpose for which extraneous-act evidence may be admissible. See TEX. R. EVID. 404(b). However, the proffered evidence must be relevant to the non-character-conformity purpose. See id. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401.
Thus, the issue we decide is whether appellant's previous conviction for indecent exposure made the issue of whether he possessed the criminal intent to arouse his own sexual desire more or less probable. We believe that it does. Nevertheless, appellant argues that appellant's prior conviction for indecent exposure should not have been admitted because (1) it was too remote and (2) the victim in one case was an adult and the victim in the present case was a child.
Regarding the remoteness, we find the following discussion from a sister court of appeals to be helpful:
The remoteness of an extraneous offense does impact its probative value. However, Rule 404 does not impose any presumptive time limitation which must be met for an extraneous offense to have probative value.
Evidence either has probative value, or it does not. See 1 STEVEN GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE § 401.3 (3d ed. 2002) ("Relevancy is an absolute. Either it is present or it is not.").
Thus, remoteness is of import not when determining whether extraneous-offense evidence has probative value but when assessing whether the probative value of such evidence is substantially outweighed by the danger of unfair prejudice or similar concerns under Rule 403. Accordingly, we will address the remoteness of the extraneous-offense evidence in our analysis under Rule 403.Newton v. State, 301 S.W.3d 315, 318 (Tex. App.—Waco 2009, pet. ref'd) (internal citations omitted). Because we consider remoteness in connection with Rule 403, not 404(b), we turn to whether appellant's prior conviction was relevant to the issue of his "intent to gratify [his own] sexual desire."
The extraneous-offense evidence regarding [the victim in that case] is sufficiently similar to the charged offenses to be admissible under Rule 404(b) to rebut [the defendant's] fabrication defense. Remoteness is not a consideration under Rule 404(b).
To be admissible "'the extraneous misconduct must be at least similar to the charged one.'" Newton, 301 S.W.3d at 317 (quoting Wheeler v. State, 67 S.W.3d 879, 887 n.22 (Tex. Crim. App. 2002)). The requisite degree of similarity is not exacting, and the extraneous conduct need only be sufficiently similar to the charged offense. Dennis v. State, 178 S.W.3d 172, 178 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd); see Newton, 301 S.W.3d at 317 ("Although some similarity is required, the requisite degree of similarity is not as exacting as necessary when extraneous-offense evidence is offered to prove identity by showing the defendants 'system' or modus operandi.").
Appellant argues that the cases are not sufficiently similar because the present case involves exposure of his penis to a child, while Mehmood's case involved exposure of his penis to an adult. Appellant also points out that "[t]he indecency took place while [appellant] was standing up, while the Indecent Exposure happened while he was passing by in a moving vehicle." Finally, appellant contends that "[the] Indecency's underlying events took place in a crowded public space with the complainant's sister and mother in the car with her, while Ms. Mehmood was walking alone."
Acknowledging the differences in the two cases, we also note that the gist of both incidents was the same: Both involve appellant, in a public place, in or near his vehicle, exposing his penis to a female and masturbating, while making eye contact with her and smiling. See Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987) (holding degree of similarity required between charged and extraneous offense is not as great when intent, as opposed to identity, is material issue).
We also note numerous other cases in which extraneous offenses were admissible under Rule 404(b) to show intent in an indecency-with-a-child case. For example, in Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on reh'g), the defendant was prosecuted for indecency with a child for acts he committed against his daughters. The State introduced testimony from the defendant's ex-wife that the defendant would "quite frequently walk around in the nude in front of his children [w]ith erections" and testimony from others that the defendant, when talking with his daughters, used inappropriate language about them. Id. at 393 (internal quotations omitted; alteration in original). The court held that Rule 404(b) did not require the exclusion of this evidence because the testimony about the defendant's past behavior showed an "intent to arouse and gratify his sexual desire" with his daughters that the alleged acts of the offense were "a specific manifestation of." Id. at 394. (internal citations omitted); see also Vidaurri v. State, No. 11-14-00291-CR, 2016 WL 6652785, at *3 (Tex. App.—Eastland Oct. 31, 2016, pet. ref'd) (mem. op., not designated for publication) (holding prior conviction for aggravated sexual assault of child admissible under Rule 404(b) in defendant's indecency case to prove defendant's intent to arouse or gratify his sexual desire, which could not be inferred from act itself); Arteaga v. State, No. 04-13-00398-CR, 2014 WL 866461, at *3-4 (Tex. App.—San Antonio Mar. 5, 2014, no pet.) (mem. op., not designated for publication) (holding defendant's prior indecent exposure admissible in indecency-with-child case to rebut defensive theory that he lacked ability to intend to sexually arouse or gratify himself); Bryan v. State, No. 11-07-00086-CR, 2008 WL 4684682, at *3 (Tex. App.—Eastland Oct. 23, 2008, no pet.) (mem. op., not designated for publication) (holding extraneous-offense admissible in indecency-with-a-child case to rebut defensive theory of lack of intent to gratify sexual desire); Sanders v. State, No. 05-03-01556-CR, 2004 WL 2824216, at *2 (Tex. App.—Dallas Nov. 30, 2004, no pet.) (not designated for publication) (holding extraneous offense evidence admissible in indecency-with-a-child case to prove appellant exposed himself with intent to arouse or gratify sexual desire); Gipson v. State, No. 05-02-01771-CR, 2004 WL 772414, at *3 (Tex. App.—Dallas Apr. 13, 2004, pet. ref'd) (not designated for publication) (holding evidence of extraneous offense admissible in indecency-with-a-child case to show, among other things, appellant's intent).
Here, the trial court did not abuse its discretion in concluding that Mehmood's testimony was admissible under Rule 404(b) because it was relevant to show appellant's intent to arouse or gratify his sexual desire by intentionally exposing his genitals to females in public while masturbating.
Rule 403 Law and Analysis
Having determined that the extraneous-offense evidence was admissible under Rule 404(b), we turn to the issue of unfair prejudice under Rule 403. Rule 403 states that the "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." TEX. R. EVID. 403. The Texas Court of Criminal Appeals has set forth a four-factor balancing test to determine whether unfair prejudice substantially outweighs the probative value of an extraneous offense under Rule 403:
(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable—a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;De La Paz, 279 S.W.3d at 348-49 (citing Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000)); Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).
(2) the potential the other offense evidence has to impress the jury in some irrational but nevertheless indelible way;
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and
(4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.
The Court of Criminal Appeals has cautioned that Rule 403 "should be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the credibility of either the defendant or complainant in such 'he said, she said' cases." Hammer v. State, 296 S.W.3d 555, 562-63 (Tex. Crim. App. 2009).
"[T]he plain language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial." Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (citing TEX. R. EVID. 403); Alvarez v. State, 491 S.W.3d 362, 370 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd). "Indeed, all evidence against a defendant is, by its very nature, designed to be prejudicial." Pawlak, 420 S.W.3d at 811. Rather, Rule 403 only authorizes a court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . ." TEX. R. EVID. 403 (emphasis added); see Wheeler, 67 S.W.3d at 888 (noting trial court abuses its discretion in admitting otherwise relevant and admissible testimony "only if the danger of unfair prejudice substantially outweigh[s] the probative value of [the] testimony"). With these principles in mind, we examine the Rule 403 factors and we consider the remoteness of the extraneous offense.
(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable
Appellant argues that "having exposed himself to a grown woman over two decades before the case at issue has little, if any bearing on whether he was exposing himself for his sexual gratification[.]" However, as appellant has acknowledged, "[t]he most challenged element [in this case] is . . . whether Mr. Martinez's intent in exposing his genitals (if he did) was to arouse his sexual desire." Appellant vigorously contested his lack of intent by emphasizing the discrepancies between the witnesses' testimonies, introducing evidence to suggest that Katie mistook his umbilical hernia for his penis, and pointing out on appeal that he may have been merely urinating, not masturbating. And, the only State's witness who saw what appellant did was a six-year-old child. "Because it is sometimes difficult . . . to show intent in an indecency-with-a-child case, the probative value of the evidence and the State's need for the evidence may be high." Vidaurri, 2016 WL 6652785, at *3.
Here, Mehmood's testimony that appellant also exposed his penis to her while masturbating in public serves to make it more probable that Katie was not mistaken when she described seeing appellant's penis and that he was, in fact, masturbating, not urinating, both of which are relevant to the issue of appellant's intent to expose his genitals to arouse his sexual desire.
(2) the potential the other offense evidence has to impress the jury in some irrational but nevertheless indelible way
Appellant argues that Mehmood's testimony was likely to impress the jury in some irrational but indelible way because "[s]exual offenses are among the most heinous in our society and evidence of such is inherently inflammatory." The Texas Court of Criminal Appeals has acknowledged that "sexually related misconduct and misconduct involving children are inherently inflammatory." Montgomery, 810 S.W.2d at 397. However, the extraneous offense against Mehmood was arguably no more inflammatory, perhaps even less so, than that alleged in the indictment, a factor that may lessen the prejudicial effect of such extraneous-offense evidence. See West v. State, 554 S.W.3d 234, 241 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (noting prejudicial effect of prior sexual offenses against children "was ameliorated somewhat . . . [because the extraneous offense] showed sexual misconduct that was no more serious than the allegations forming the basis for the indictments against appellant in today's case").
(3) the time the proponent will need to develop the evidence
The State did not need an inordinate amount of time to develop the extraneous-offense evidence. Mehmood was the only witness to testify about the extraneous offense; she was called on rebuttal; and her testimony took only five pages of the record of the trial.
(4) the force of the proponent's need for this evidence to prove a fact of consequence
As discussed in considering the relevancy of the extraneous-offense evidence, the only person who saw what appellant did on the day of the offense was a six-year-old child. Whether appellant possessed the requisite intent to gratify his own sexual desire by exposing his penis was highly contested, indeed appellant's intent was "[t]he most challenged element [in this case]." While the State's other witnesses were able to provide evidence about the circumstances of the offense, Katie alone claimed to have seen appellant's exposed penis. See Harris v. State, 475 S.W.3d 395, 402 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (quoting Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 12, 83d Leg., R.S. (2013)) ("Children often are targeted for [sexual] crimes, in part because they tend to make poor witnesses."). Mehmood's testimony was relevant and necessary to show that Katie was not mistaken when describing what she saw, and that was she saw was appellant masturbating in public.
(5) remoteness
Appellant argues that the probative value of Mehmood's testimony is diminished because the conduct she testified about occurred over 20 years before trial. See West v. State, 554 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2018, no pet.) ("Remoteness can lessen significantly the probative value of extraneous-offense evidence."). We agree that the remoteness of the extraneous offense diminishes its probative value, but we do not agree that remoteness alone requires its exclusion. See West, 554 S.W.3d at 239-40 (explaining that "remoteness is but one aspect of an offense's probativeness" and concluding that evidence that defendant had previously committed unspecified "lewd or lascivious" acts with two juveniles 29 to 30 years prior to trial was admissible).
(6) conclusion
A review of the Rule 403 factors leads to the following conclusions: The relevance of Mehmood's testimony was somewhat lessened by its remoteness in time; the State had an appreciable need for the evidence given the heated dispute over appellant's criminal intent and the fact that its sole eyewitness was a six-year-old child; the evidence of a prior sexual crime, though inflammatory, was no worse than the allegations in the indictment. Considering these circumstances, we cannot conclude that the trial court abused its discretion in admitting the extraneous-offense evidence. See Sells, 121 S.W.3d at 766.
We overrule issue two.
INEFFECTIVE ASSISTANCE OF COUNSEL
In issues four and five, appellant contends that he received ineffective assistance of counsel (1) at the guilt-innocence phase of trial because his defense counsel did not object to extraneous-offense evidence and hearsay and (2) at the punishment phase of trial because his defense counsel did not object to admission of a jail card containing an aggravated kidnapping allegation.
Standard of Review and Applicable Law
The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient and (2) a reasonable probability exists that but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). The defendant bears the burden of proof on both issues, and failure to make either showing by a preponderance of the evidence will defeat his ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We apply the same two- prong Strickland standard of review for ineffective-assistance-of-counsel claims in both the guilt-innocence phase of trial and the punishment phase of trial. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).
Under the first Strickland prong, any judicial review of whether counsel's performance was deficient must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Thompson, 9 S.W.3d at 813. We begin by presuming that trial counsel performed within professional norms. Id. We do not assume that counsel lacked a sound reason for making the choices he did; on the contrary, the defendant must demonstrate that no plausible reason exists for a particular act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Toledo v. State, 519 S.W.3d 273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). When the record is silent as to trial counsel's strategy, we will not conclude that appellant received ineffective assistance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. See Bone, 77 S.W.3d at 833. In most cases, the appellant is unable to meet the first prong of the Strickland test because the record is underdeveloped and does not adequately reflect the alleged failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
Ineffective assistance of counsel prejudices a criminal defendant if there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." Strickland, 466 U.S. at 670.
Guilt-Innocence
In issue four, appellant contends that twice during the guilt-innocence phase his trial counsel should have objected but did not. First, appellant contends that defense counsel should have objected when Katie's mother testified that a carwash employee told her that "this man had been banned there from (sic) doing something to a girl that previously worked there." Second, appellant contends that defense counsel should have objected when the State asked Mehmood, "And did anyone ever tell you [that the reason for the long delay between the time she reported the incident and appellant's subsequent indecent-exposure conviction was] because the defendant didn't show up for court?" When Mehmood responded that she did not know that, the State asked, "Did anyone ever tell you it is because he had an open warrant for years?" Mehmood answered, "I don't know. I don't know. I don't remember." Appellant analyzes these claimed "lapses" by defense counsel together under Strickland and contends that "[a]n extraneous allegation of sexual misconduct is highly prejudicial in light of the indicted offense, and there is no strategic reason for not objecting to it."
First, we note that appellant's characterization of the two instances as "sexual misconduct" is not supported by the record. There is nothing in the record or before the jury to show that what appellant did "to a girl that previously worked there" was a sexual offense; likewise, there is nothing in the record or before the jury to show that appellant's "open warrant" was for a sexual offense. If, as appellant suggests on appeal, these two references were to sexual offenses, defense counsel may have, as a matter of trial strategy, decided not to object to the obscure references to them so that no further damaging information was placed before the jury. Even the failure to object to inadmissible evidence may be a sound trial strategy. See Haagensen v. State, 346 S.W.3d 758, 766 (Tex. App.—Texarkana 2011, no pet.); Murphy v. State, No. 01-17-00588-CR, 2018 WL 6378004, at *14 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (mem. op., not designated for publication).
Second, we note that the right to effective assistance of counsel ensures the right to "reasonably effective assistance[,]" and it does not require that counsel must be perfect or that the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). The appropriate context is the totality of the representation; counsel is not to be judged on isolated portions of his representation. See Thompson, 9 S.W.3d at 813; Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). Isolated failures to object to improper evidence or argument ordinarily do not constitute ineffective assistance of counsel. See id.; Ewing v. State, 549 S.W.2d 392, 395 (Tex. Crim. App. 1977).
Faced with a silent record on direct appeal and no explanation for defense counsel's decisions not to object, we conclude appellant has failed to rebut the strong presumption that his defense counsel's conduct was reasonable. See Thompson, 9 S.W.3d at 813. Nor has appellant established that his defense counsel's failure to object was so outrageous that no competent attorney would have made the same decision. See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).
Accordingly, we overrule issue four.
Punishment
In issue five, appellant contends that defense counsel should have objected, but did not, when the State introduced Exhibit 11, which consists of several pages of "jail cards" from the Harris County Jail. Specifically, appellant complains that even though page 3 of the exhibit mentions that he was arrested for aggravated kidnapping, he was never convicted of aggravated kidnapping; he was convicted of aggravated robbery.
The State argues that appellant fails prong one of Strickland because defense counsel's decision not to object may have been sound trial strategy. We agree. The reference to an arrest for "agg kidnapping" is a single line in a six-page exhibit that also includes references to arrests for "agg robbery—deadly wpn," "agg robb—deadly wpn," "escape after felony arrest," "agg robbery of indv," "robbery threats," and "indecent exposure." Defense counsel may have chosen, as a matter of trial strategy, not to draw attention to the single-line reference to "agg kidnapping" by objecting to it. 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").
Faced with a silent record on direct appeal and no explanation for defense counsel's decision not to object, we conclude appellant has failed to rebut the strong presumption that his defense counsel's conduct was reasonable. See Thompson, 9 S.W.3d at 813. Nor has appellant established that his defense counsel's failure to object was so outrageous that no competent attorney would have made the same decision. See Menefield, 363 S.W.3d at 593.
We overrule issue five.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Goodman and Farris. Do not publish. TEX. R. APP. P. 47.2(b).