Opinion
No. 09-03-566 CR
Submitted on January 26, 2005.
Opinion Delivered March 9, 2005. DO NOT PUBLISH.
On Appeal from the 410th District Court, Montgomery County, Texas, Trial Cause No. 03-08-05840-CR. Affirmed.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
A jury convicted William Roy Redwine on two counts of aggravated sexual assault of a child, and assessed punishment at fifty years' confinement in the Texas Department of Criminal Justice, Correctional Institutions Division. The sole issue raised on appeal asserts ineffectiveness of trial counsel for failing to request burden of proof and limiting instructions regarding use of extraneous bad acts admitted as evidence at trial. Because the appellate record does not establish counsel's ineffectiveness, we affirm. Under the two-prong test articulated by the U.S. Supreme Court and adopted by the Texas Court of Criminal Appeals, the appellant has the burden of proving by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the appellant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To establish the first prong, he must show "that there is, in fact, no plausible professional reason for a specific act or omission." Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). "Any allegation of ineffectiveness must be firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In most cases, a silent record will not overcome the strong presumption of reasonable assistance. Id. To establish the second prong, Redwine must also show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). Redwine identifies seven deficiencies in counsel's performance: (1) failing to request a hearing outside the presence of the jury; (2) failing to make a Rule 401 relevance objection; (3) failing to make a Rule 404b improper character evidence objection; (4) failing to object to improper character evidence under Article 38.37; (5) failing to raise a Rule 403 unfair prejudice objection; (6) failing to request a jury instruction on the proper burden of proof before considering extraneous offenses; and (7) failing to obtain limiting instructions. See George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App. 1994); Harrell v. State, 884 S.W.2d 154, 157 (Tex.Crim.App. 1994); Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2005); Tex. R. Evid. 401, 403, 404b. Because each of the alleged deficiencies is premised upon the admission of evidence of extraneous acts of bad conduct, Redwine must identify evidence of bad acts that are extraneous to the charged conduct. The two count indictment alleged that "on or about January 01, 2001," Redwine caused the penetration of the victim's mouth by the defendant's sexual organ, and Redwine caused the penetration of the victim's female sexual organ by his finger. On appeal, Redwine identifies the following evidence he argues should have been subject to extraneous offense objections and instructions: (1) that the defendant made the victim perform oral sex on him several times a week beginning in the summer of 1999 and continuing until October 2002; (2) that the defendant showed the victim a pornographic movie in the summer of 1999; (3) that in late 2001 or early 2002, the defendant attempted to have sexual intercourse with the victim, then inserted his finger into her sexual organ; and (4) that the defendant made numerous threats to harm the victim, members of her family, or himself. Redwine was the victim's stepfather. In the summer of 1999, when the victim was ten years old, her mother's hospitalization left Redwine as the caretaker for the victim and the five boys in the household. The victim testified, without objection, that while her mother was hospitalized, Redwine asked her to sleep with him in his bed, then played a pornographic videotape depicting oral sex and said he wanted to do what the video depicted. The victim testified that Redwine removed their clothing and committed the act described in the first count of the indictment. The victim testified this was not a one time occurrence, as the appellant committed the same act upon her two or three times a week until October 2002 when the Redwines separated. In addition to the charged oral and digital penetration, the victim described two instances in which the appellant attempted sexual intercourse with her. Asked why she acquiesced to his sexual demands, the victim testified, she felt threatened because "he's bigger than me and stronger and I didn't want to get hurt." After the first assault, Redwine warned the victim "if I ever told anybody, that he would make my life miserable." Finally, the victim explained that she told her mother about the sexual abuse in May 2003, months after the Redwines separated, because "he kept calling my mom saying that he was going to kill himself." Defense counsel did not object to any of this testimony, nor did he request an extraneous offense instruction at admission or in the charge. When an indictment alleges that a crime occurred "on or about" a certain date, the State may prove an offense occurring on any date anterior to the presentment of the indictment and within the statutory limitation period, provided the offense proved meets the allegations stated in the indictment. Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex.Crim.App. 1997); Sledge v. State, 953 S.W.2d 253, 256-57 (Tex.Crim.App. 1997). Under the precedent established by Sledge and Yzaguirre, none of the evidence regarding repeated instances of the sexual act described in the indictment is extraneous because it is the charged conduct. Yzaguirre, 957 S.W.2d at 39; Sledge, 953 S.W.2d at 255-57. Similarly, no limiting instruction is required for same transaction contextual evidence. Camacho v. State, 864 S.W.2d 524, 535 (Tex.Crim.App. 1993). Under Rule 404(b), same transaction contextual evidence is admissible to the extent it is necessary to make sense of the charged offense. Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App. 2000); Tex. R. Evid. 404(b). In this case, evidence the accused showed the child a pornographic video explains how the child's father figure approached the ten-year-old sexually. In Howk v. State, 969 S.W.2d 46, 50 (Tex.App.-Beaumont 1998, no pet.), we held that sexually explicit cartoons were admissible because the defendant used them to assist in the commission of the offense. In this case, the State produced the videotape but did not display it to the jury. Given the defensive theory that the child fabricated the charges in the course of the Redwines' divorce, the State's ability to produce a piece of physical evidence to support the victim's testimony outweighed the prejudice inherent in matters concerning pornography. As was the case in Howk, testimony that the defendant showed the child pornography is not unfairly prejudicial. See Tex.R.App.P. 403. The same transaction contextual evidence offered to prove the circumstances surrounding the commission of the crime also includes testimony that the defendant attempted to have sexual intercourse with the victim after a year of abusing the victim in the matter alleged in the indictment, and in the course of committing conduct alleged in the indictment. It is, however, more prejudicial than the evidence about the videotape, in particular because Redwine has a venereal disease and did not use a prophylactic device. Assuming the State's need for the evidence to explain sexual nature of the contact between the accused and the victim is outweighed by the prejudicial nature of such deviant conduct, and was therefore subject to a Rule 403 objection, we must consider the fact that defense counsel used the evidence defensively. Defense counsel depended heavily on the fact that the child presented normal findings on gynecological examination and was free of disease despite her claim of years of sexual contact to undermine the victim's testimony and to support the defensive theory that no sexual contact ever occurred. Thus, the decision not to object to the evidence of attempted sexual intercourse could have been the product of sound trial strategy. The evidence of threats explains how the defendant was able to coerce the victim's compliance and explained the delayed outcry. Thus, Redwine's threats to the victim are directly related to the commission of the charged offense, not extraneous to it. The evidence was in the record for all purposes, not for a limited purpose, so Redwine would not have been entitled to a limiting instruction. Camacho, 864 S.W.2d at 535. Furthermore, an additional burden of proof instruction is not required. Garza v. State, 2 S.W.3d 331, 335 (Tex.App.-San Antonio 1999, pet. ref'd); Norrid v. State, 925 S.W.2d 342, 349 (Tex.App.-Fort Worth 1996, no pet.). In contrast to the threats made to suppress the child's outcry, the defendant's threat to kill himself because his wife had left him is the specific event that triggered the victim's outcry. The circumstances of the outcry are admissible and counsel was not deficient in failing to object. That evidence is not particularly prejudicial, so counsel was not deficient in failing to raise a Rule 403 objection. To the extent his evidence might be considered an extraneous act of bad conduct, the lack of instructions regarding the jury's use of this evidence would have minimal impact. Assuming deficient performance in not requesting instructions on the jury's consideration of this particular evidence, the appellant fails to establish prejudicial effect. The case relied upon by Redwine to support his Strickland claim is a habeas corpus proceeding in which trial counsel disavowed the employment of strategy in his failure to request instructions on the use of extraneous offense evidence. Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App. 2001). That same case had been affirmed on direct appeal because the record did not affirmatively establish deficient conduct. Id. Redwine did not raise ineffective assistance in his motion for new trial. As a result, we do not have the benefit of a record of a hearing in which counsel explains any trial strategy upon which his decisions may have been based. Because we have no record to reveal trial counsel's reasons for acting or failing to request extraneous offense instructions, we hold Redwine failed to establish that his counsel's assistance was ineffective. The issue is overruled and the judgment is affirmed.