Troy Anthony White v. State ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00504-CR
Troy Anthony White, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2015-189, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Troy Anthony White guilty of three counts of aggravated
sexual assault of a child under the age of six for sexually abusing his five-year-old niece. See
Tex. Penal Code § 22.021(a)(1)(B), (2)(B), (f)(1). Appellant elected to have the trial court
decide his punishment, see Tex. Code Crim. Proc. art. 37.07, § (2)(b), and the trial judge
sentenced him to serve 50 years in the Texas Department of Criminal Justice for each offense,
see Tex. Penal Code § 22.021(e), (f)(1). On appeal, appellant asserts that his trial counsel
rendered ineffective assistance and that the trial court erred in admitting medical reports prepared
by a sexual assault nurse examiner. We find no reversible error. However, through our own
review of the record, we have found non-reversible error in the written judgments of conviction.
We will modify the judgments to correct the error and, as modified, affirm the trial court’s
judgments of conviction.
BACKGROUND1
After separating from her husband, Sidoney and her five children, three sons and
two daughters, lived with her mother in her mother’s house along with appellant, Sidoney’s adult
brother. One morning as Sidoney was driving her children to school, her youngest daughter,
L.J., indicated that she was going to tell their mom “Troy’s secret.”2 Sidoney asked L.J., “What
secret?” The young girl told her that “he lets us suck his wiener.” When Sidoney questioned her
daughter about where his wiener was, L.J. “pointed to the genital area.” Sidoney then asked her
oldest daughter, K.J., if it was true. K.J. looked at her mother and nodded her head yes. Sidoney
called her mother to inform her about what her daughters had disclosed and then called
the police.
Two days later, both girls were taken to a sexual assault nurse examiner (SANE)
for a sexual assault exam. During her exam, L.J. told the nurse,
Me and [K.J.] play with Troy. He makes us suck his penis. Troy put his penis in
my butt a bunch of times. Troy comes in my room in the middle of the night and
carries me to his room. He makes me lay on my stomach and tells me to be still.
He puts his penis in my butt. Sometimes he does it in the daytime, too. Troy tells
me I can’t tell anyone or I will be in trouble. Sometimes he puts his finger in my
butt. He likes to play with my butt.
After conducting the sexual assault exam, the SANE noted that L.J.’s anus “had redness in an
irregular shape” at the 7:00 o’clock position and observed that L.J. had anal dilation in less than
1
To protect the identities of the child victims in this case, we refer to the children using
only their initials and refer to their mother, who shares the children’s last name, by her first
name. See Tex. R. App. P. 9.10(a)(3).
2
According to Sidoney’s testimony, L.J. was upset because her family was discussing
what had happened the night before after L.J. had to go to bed (when she had wanted to stay up).
The young girl said to her sister, “[Y]ou better shut up, [K.J.], or else I’m going to tell Mom
Troy’s secret.”
2
20 seconds. At trial, the nurse explained that it usually it takes 30 seconds for the anus to relax
when a child is relaxed and that if the anus relaxes before 30 seconds, it can be indicative of
having either a medical condition or having been abused. A copy of the SANE report of L.J.’s
exam was admitted at trial over appellant’s hearsay objection.
During K.J.’s sexual assault exam, she told the SANE,
My uncle touches me on my butt. He puts his wiener in my butt. He does it a
bunch of times. Troy comes in the room every night in his underwear. He takes
his underwear off and gets in bed with me. He makes me hold his wiener with my
hand and he makes me suck his wiener. Troy does it sometimes in the daytime,
too. Troy tells me if I tell, I will get in trouble. We are stay[ing] in a hotel, so he
has not done it in a few days.
The nurse noted that the young girl “had an irregular shaped opening of the anus” and her anal
dilatation was less than 20 seconds. A copy of the SANE report of K.J.’s exam was admitted at
trial over appellant’s various objections.
The day after the sexual assault exams, both girls were taken to the Children’s
Advocacy Center for forensic interviews. The detective assigned to the case observed the
interviews. At trial, he testified that both girls made outcries of sexual abuse, identifying
appellant as the perpetrator.
Several days later, the detective spoke with appellant at his home. During trial,
over appellant’s objection, an audio recording of the conversation was admitted into evidence.3
On the recording, appellant initially denied having any sexual contact with the girls. He then
described L.J. touching his penis on one occasion and her pulling his pants down on another. He
also admitted that K.J. had touched his penis with her hand—“playing with it for 15 minutes”—
3
Appellant objected to the admission of the recording because “it was improper to take
the statement from him without advising him of his constitutional rights.”
3
and then admitted that he took his penis out and “laid it there” and “let it happen.” But, appellant
denied that the girls had any oral contact with his penis.
Three days after the interviews, the detective obtained a warrant for appellant’s
arrest. After appellant was arrested, the detective interviewed appellant at the sheriff’s office.
Before this interview, which was recorded on video, the detective gave appellant his Miranda
warnings. See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966) (holding that prior to custodial
interrogation, law enforcement officers must admonish accused of certain constitutionally
protected rights to secure privilege against self-incrimination). During this interview, appellant
admitted that he “allowed” the girls to put his penis in their mouths but said that he did not
remember “doing anything else.” He described an instance where he put his penis in L.J.’s
mouth, explaining that he asked the young girl to put it in her mouth, but she complained that it
“tasted nasty,” so he offered to wash it. Ultimately, appellant admitted putting his penis in both
girls’ mouths, at one point saying that he “felt like [he] was forcing them to put their mouths on
[him].” He also admitted to the detective that he told the girls to “keep it to themselves” and “to
keep this all secret.” Appellant, however, denied touching either girl near her anus or vagina. At
several points during the interview, appellant said that he wanted to take a test “to prove that he
did not do that,” and, at the end of the interview, the detective agreed to arrange for him to take a
polygraph test.
Appellant was subsequently indicted with three counts of aggravated sexual
assault of a child younger than six years of age for the sexual abuse perpetrated against L.J.4
Count I charged appellant with penetrating or contacting L.J.’s mouth with his penis, see Tex.
4
The record reflects that appellant was indicted in another case for the sexual abuse he
allegedly perpetrated against K.J.
4
Penal Code § 22.021(a)(1)(B)(ii), (v); Count II charged appellant with penetrating or contacting
L.J.’s anus with his penis, see id. § 22.021(a)(1)(B)(i), (iv); and Count III charged appellant with
digital penetration of L.J.’s anus, see id. § 22.021(a)(1)(B)(i). The State called five witnesses at
trial: the lead detective, who testified about his investigation and his interviews with appellant;
the sexual assault nurse examiner, who testified about the exams she performed on both girls;
Sidoney, who testified about L.J.’s outcry disclosing the sexual abuse; and L.J. and K.J., who
both described appellant’s sexual abuse of them.5 As the sole witness for the defense, appellant
recalled Sidoney.
The jury found appellant guilty of all three counts. Because appellant elected to
have the trial court determine his punishment, the court ordered a pre-sentence investigation and
reset the case for sentencing. At the punishment hearing, a family friend testified on behalf of
appellant—explaining that he was “absolutely surprised” by appellant’s conduct and expressing
“[his] hope that the person [he] knew, if given that chance, can again surface ‐‐ surface and he
can be very productive to society and be a changed person”—and appellant testified on his own
behalf. During appellant’s testimony, the State offered evidence reflecting that two weeks before
sentencing, appellant used his commissary money, part of which his mother gave to him, to order
pornographic magazines. In closing argument to the court, appellant asked for the minimum
5
L.J., eight years old at the time of trial, told the jury that her Uncle Troy “made us suck
his private and he would stick it in our butt.” She explained that “us” was her and her older
sister. She said that it happened in her uncle’s room in her grandmother’s house. L.J. did not
remember how many times it happened but indicated that it happened “a lot.” She testified that
she knew that appellant did the same thing to her older sister because she saw him do it to her.
K.J., who turned ten years old the day before she testified at trial, said that she had a
problem with her Uncle Troy, which was that “[h]e was doing child abuse.” She explained that
appellant “made [her] suck his wiener.” Like her sister, K.J. said that she did not remember how
many times it happened but indicated that it happened “a lot of times” during both the day and
the night.
5
sentence of 25 years; the State sought a life sentence. After expressing its understanding that
appellant is not eligible for parole for his convictions for these offenses, see Tex. Gov’t Code
§ 508.145(a), the trial court sentenced appellant to serve 50 years in prison for each count and
ordered the sentences to be served concurrently, see Tex. Penal Code § 3.03(b)(2).
DISCUSSION
Appellant raises two points of error. First, he claims that he suffered ineffective
assistance of counsel at trial. Second, he challenges the trial court’s admission of the medical
reports completed by the sexual assault nurse examiner in connection with the sexual assault
exams of the girls.
Ineffective Assistance of Counsel
In his first point of error, appellant contends that his trial counsel rendered
ineffective assistance at trial because counsel failed to: (1) request a hearing pursuant to article
38.37 relating to the admission of evidence of extraneous sexual offenses, (2) object to the
prosecutor’s opening statement that referenced extraneous sexual offenses, and (3) object to
evidence relating to appellant taking a polygraph.
To establish ineffective assistance of counsel, an appellant must demonstrate by a
preponderance of the evidence both deficient performance by counsel and prejudice suffered by
the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava, 415 S.W.3d at 307.
The appellant must first demonstrate that counsel’s performance fell below an objective standard
of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687–88; Nava
v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). The appellant must then show the
existence of a reasonable probability—one sufficient to undermine confidence in the outcome—
6
that the result of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308. Failure to make the
required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim. Strickland, 466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex.
Crim. App. 2010).
Appellate review of counsel’s representation is highly deferential; we must
“indulge in a strong presumption that counsel’s conduct was not deficient.” Nava, 415 S.W.3d at
307–08; see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective
assistance must be “firmly founded in the record,” and “the record must affirmatively
demonstrate” the meritorious nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592
(Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Rarely will the trial record by itself be sufficient to demonstrate an ineffective-assistance claim.
Nava, 415 S.W.3d at 308. If trial counsel has not been afforded the opportunity to explain the
reasons for his conduct, we will not find him to be deficient unless the challenged conduct was
“so outrageous that no competent attorney would have engaged in it.” Id. (quoting Menefield,
363 S.W.3d at 593); Goodspeed, 187 S.W.3d at 392.
In this case, appellant did not file a motion for new trial. Thus, the record is silent
as to the reasons underlying trial counsel’s conduct.
Appellant’s first two claims of deficient performance by trial counsel relate to
evidence of appellant’s sexual abuse of K.J. Under section 2(b) of article 38.37 of the Code of
Criminal Procedure, evidence that the defendant has committed one of the child sexual abuse
offenses described by the statute against a child other than the victim of the charged offense is
admissible “for any bearing the evidence has on relevant matters, including the character of the
7
defendant and acts performed in conformity with that character.” Tex. Code Crim. Proc. art.
38.37, § 2(a)(1), (b). Before admitting such evidence, a trial court must conduct a hearing out of
the presence of the jury to determine whether the evidence likely to be admitted at trial
concerning the separate sexual abuse offense will be adequate to support a jury finding that the
defendant committed the separate offense beyond a reasonable doubt. Id. art. 38.37, § 2-a.
Appellant first contends that trial counsel’s performance was deficient because he
failed to request a hearing prior to the admission of evidence of appellant’s sexual abuse of K.J.
The record reflects that when the prosecutor began to question the SANE about the sexual
assault exam she conducted on K.J., appellant objected “to [that] line of questioning with respect
to K.J. since that is not the subject of this particular indictment.” The prosecutor responded that
evidence of the sexual abuse of another child is admissible under article 38.37 and pointed out
that “[t]here’s already been an admission of that on the videotape.”6 Appellant’s counsel told the
court that “if you’d allow us to, we could probably handle the issues that I’ve raised on the
admissibility [of the SANE report related to L.J.’s exam] outside the presence of the jury while ‐‐
and add this issue as well.” The judge responded, “38.37, I believe I’m required to have that
hearing outside the presence of the jury” and removed the jury from the courtroom.
Outside the presence of the jury, the court established that appellant had received
the requisite notice under the statute. See id. art. 38.37, § 3. The court then observed that
“[t]here doesn’t really appear to be any limitation, [defense counsel], about the type of evidence
regarding a separate offense” and noted that “there is certain evidence already in the record in
that regard.” The court then reviewed the SANE reports for the exams conducted on both girls,
6
At that point in the trial, the detective had already testified, and the audio and video
recordings of his interviews with appellant had been admitted.
8
and the SANE summarized what her testimony about K.J.’s exam would be. The trial court then
made the requisite finding, see id. art. 38.37, § 2-a(1), and overruled appellant’s objection.
We observe several things about appellant’s first claim of deficient performance.
First, under the statute, a hearing outside the presence of the jury before the admission of the
evidence of an extraneous sexual offense is mandatory, not dependent upon any request by
defense counsel. Second, appellant did, in fact, request a hearing outside the presence of the jury
to address his objection to the admission of the SANE’s testimony relating to K.J. Third, the
trial court conducted a hearing outside the presence of the jury as mandated by the statute.
However, as both the prosecutor and the court noted, evidence of appellant’s extraneous sexual
abuse of K.J.—appellant’s admissions to the detective that K.J. “play[ed] with his penis” and that
he “allowed” K.J. to put his penis in her mouth—had already been admitted on the recordings of
the detective’s interviews with appellant. Arguably, appellant’s trial counsel erred in failing to
ensure that the requisite hearing occurred in a timely manner—that is, before any evidence of the
extraneous sexual offenses was admitted—but, ultimately, appellant received the hearing, and
the trial court made the relevant findings, per the statute.
In a related claim, appellant asserts that his trial counsel’s performance was
deficient because he failed to object to the portions of the prosecutor’s opening statement that
referenced appellant’s sexual abuse of K.J. However, the State’s opening statement in a criminal
case is an outline of facts which the prosecution in good faith expects to prove. Fisher v. State,
220 S.W.3d 599, 603 (Tex. App.—Texarkana 2007, no pet.); Ketchum v. State, 199 S.W.3d 581,
597 (Tex. App.—Corpus Christi 2006, pet. ref’d); see Opening Statement, BLACK’S LAW
DICTIONARY (10th ed. 2014) (“At the outset of a trial, an advocate’s statement giving the fact-
finder a preview of the case and of the evidence to be presented.”). The State has the statutory
9
right to tell the jury the nature of the accusations against the defendant and the facts that are
expected to be proven. See Tex. Code Crim. Proc. art. 36.01(a)(3). Here, the prosecutor’s
comments, which did include references to appellant’s extraneous sexual offenses against K.J.,
simply outlined the anticipated evidence and facts to be proved. “When evidence about a matter
mentioned in opening is properly admitted in a trial, the prosecutor’s mention of the evidence in
opening statement is not error.” Comeaux v. State, 413 S.W.3d 176, 185 (Tex. App.—Beaumont
2013), aff’d, 445 S.W.3d 745 (Tex. Crim. App. 2014); see Banks v. State, 643 S.W.2d 129, 133
(Tex. Crim. App. 1982) (“The [State’s] opening remarks about evidence which was thereafter
properly admitted did not constitute error.”); cf. Matamoros v. State, 901 S.W.2d 470, 475 (Tex.
Crim. App. 1995) (“It is not error for a prosecutor to tell the jury in opening statement what he
expects to prove, even if he does not later offer such proof at trial.” (citing Marini v. State,
593 S.W.2d 709, 715 (Tex. Crim. App. 1980))).
We do not find that counsel acted below any reasonable level of professionalism
by failing to object to the prosecutor’s opening statement. First, as noted above, the complained-
of remarks outlined the State’s anticipated evidence. Further, as the trial court ultimately
concluded, the evidence of appellant’s extraneous sexual abuse of K.J. was admissible under
article 38.37. Therefore, trial counsel might have reasonably concluded that, because the
evidence was admissible, references to it during opening statement were not objectionable.
Moreover, even if trial counsel believed such comments were objectionable, there are possible
reasons why counsel may have decided not to object, including wanting to avoid appearing as
though he was attempting to hide evidence that would eventually be presented to the jury. In the
absence of anything in the record to show the tactics or strategic reasoning of counsel, we cannot
conclude counsel’s performance was deficient in this instance.
10
Appellant’s final allegation of deficient performance involves trial counsel’s
failure to object to evidence regarding appellant’s failure to take a polygraph examination. The
record reflects that evidence concerning a polygraph first arose in the audio recording of
appellant’s interview at his house when appellant asked the detective if there was “a test” he
could take. They then discussed the possibility of appellant taking a polygraph test. At the end
of the conversation, appellant again brought up taking a polygraph test and asked the detective if
he was going to set one up for him. The detective agreed to do so. The subsequently admitted
video recording of the detective’s interview with appellant after his arrest presented further
evidence concerning the polygraph. At the beginning of the interview, appellant asked the
detective if he was ever going to get a polygraph. At the end of the interview, appellant and the
detective again discussed appellant taking a polygraph, and the detective explained that he would
have to contact a polygraph examiner to schedule it. After both recordings were played for the
jury, the prosecutor asked the detective about further actions he had taken in the case. The
detective related that he had contacted a DPS agent to schedule the polygraph. He then
explained that, ultimately, appellant chose not to take the polygraph because his lawyer advised
him not to.
“It has long been the rule in this state that references to a polygraph test, or to its
results, are inadmissible for all purposes.” Martinez v. State, 272 S.W.3d 615, 626 (Tex. Crim.
App. 2008); see Nesbit v. State, 227 S.W.3d 64, 66 (Tex. Crim. App. 2007) (“Neither the results
of a polygraph test nor the ‘fact’ of failing a polygraph test are admissible in a Texas criminal
proceeding.”). “Regardless of whether the case involves the results of a polygraph test or a
defendant’s willingness to take a polygraph test, evidence of either will result in the same
problem: the fact finder will speculate about its outcome or a witness or defendant’s position will
11
be bolstered.” Ex parte Huddlestun, 505 S.W.3d 646, 664 (Tex. App.—Texarkana 2016, pet.
ref’d). Therefore, it is generally error to allow the introduction of evidence of polygraph results
or a defendant’s willingness to submit to a polygraph. Requena-Castaneda v. State,
No. 10-17-00125-CR, 2018 WL 4925774, at *4 (Tex. App.—Waco Oct. 10, 2018, no
pet.) (mem. op., not designated for publication) (citing Tennard v. State, 802 S.W.2d 678,
684 (Tex. Crim. App. 1990)); Martinez v. State, No. 08-14-00242-CR, 2018 WL 2328242, at *2
(Tex. App.—El Paso May 23, 2018) (not designated for publication), cert. denied,
139 S. Ct. 1196 (2019).
However, allowing the introduction of polygraph evidence does not constitute
deficient performance by trial counsel as a matter of law. Ex parte Bryant, 448 S.W.3d 29, 40
(Tex. Crim. App. 2014); see Martines v. State, 371 S.W.3d 232, 250 (Tex. App.—Houston [1st
Dist.] 2011, no pet.) (“The mere mention of a polygraph examination does not, however,
automatically constitute reversible error, even if the results of the exam are revealed.”). Instead,
the Court of Criminal Appeals has recognized that, “although the introduction of polygraph
evidence almost always falls below an objective standard of reasonableness because most
attorneys will have no reasonable strategy in allowing the introduction of such evidence,
[appellate courts] cannot categorically exclude the possibility that a trial attorney, under certain
circumstances, could use the admission of polygraph evidence to his client’s favor.” Bryant,
448 S.W.3d at 40.
Here, the record is devoid of any information about trial counsel’s reason for
allowing the introduction of the complained-of polygraph evidence. Thus, we cannot discern
what counsel’s strategy was or whether it was a reasonable strategy under these circumstances—
that is, whether it was reasonable to attempt to use the admission of the evidence to somehow
12
benefit appellant. Appellant’s arguments in his brief would have us apply the categorical rule
that the Court of Criminal Appeals has rejected. See Bryant, 448 S.W.3d at 40. We decline to
do so, particularly on the limited record in this case. See Mata v. State, 226 S.W.3d 425, 431
(Tex. Crim. App. 2007) (“[T]he fact remains that the appellate record is still silent as to why trial
counsel failed to so object. Therefore, the appellant has failed to rebut the presumption that trial
counsel’s decision was in some way—be it conceivable or not—reasonable.”); see, e.g., Shaw
v. State, No. 03-08-00506-CR, 2009 WL 1896068, at *13 (Tex. App.—Austin July 3, 2009, no
pet.) (mem. op., not designated for publication) (concluding that appellant failed to overcome
presumption that attorney’s conduct was reasonable professional assistance where record was
silent as to why trial counsel failed to take complained-of certain action).
The record before this Court is not sufficiently developed to allow us to evaluate
the purported failures of trial counsel to act because “[n]either [his] counsel nor the State have
been given an opportunity to respond to” the claims of ineffectiveness. See Menefield,
363 S.W.3d at 593. Appellant’s trial attorney was not afforded an opportunity to explain his
reasons for the complained-of conduct. The record is silent as to whether there were strategic
reasons for counsel’s conduct or what the particular strategies were. Appellant’s assertion that
there was no conceivable trial strategy for the alleged failures is mere speculation. Such
speculation does not constitute a demonstration, founded in the record, that no reasonable trial
strategy existed. See Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App. 2013) (“[C]ounsel’s
alleged deficiency must be affirmatively demonstrated in the trial record.”); Lopez v. State,
343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (“[C]ounsel’s deficiency must be affirmatively
demonstrated in the trial record; the court must not engage in retrospective speculation.”).
13
Absent record evidence regarding counsel’s strategy or reasoning, we will
presume he exercised reasonable professional judgment. See Hill v. State, 303 S.W.3d 863, 879
(Tex. App.—Fort Worth 2009, pet. ref’d); Poole v. State, 974 S.W.2d 892, 902 (Tex. App.—
Austin 1998, pet. ref’d); see also Lopez, 343 S.W.3d at 143. Appellant has failed to rebut the
strong presumption of reasonable assistance because without explanation for trial counsel’s
decisions, the complained-of conduct does not compel a conclusion that his performance was
deficient. We cannot say that “no reasonable trial strategy could justify” or explain his decision
to engage in the complained-of conduct. See Lopez, 343 S.W.3d at 143. Nor can we conclude
that his conduct was “so outrageous that no competent attorney would have engaged in it.” See
Menefield, 363 S.W.3d at 592; see also Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.
2012) (“The mere fact that another attorney might have pursued a different tactic at trial does not
suffice to prove a claim of ineffective assistance of counsel.”).
Furthermore, the right to effective assistance is not a guarantee of errorless or
perfect assistance. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Cox
v. State, No. 03-12-00751-CR, 2014 WL 4362952, at *2 (Tex. App.—Austin Aug. 26, 2014, no
pet.) (mem. op., not designated for publication); see Frangias v. State, 450 S.W.3d 125, 136
(Tex. Crim. App. 2013) (“an accused is not entitled to representation that is wholly errorless”);
Lopez, 343 S.W.3d at 142 (“the right does not provide a right to errorless counsel”). Even if an
appellant shows that particular errors of counsel were unreasonable, he must further show that
they actually had an adverse effect on the defense. Strickland, 466 U.S. at 693–95; Villalobos
v. State, No. 03-13-00687-CR, 2015 WL 5118369, at *2 (Tex. App.—Austin Aug. 26, 2015, pet.
ref’d) (mem. op., not designated for publication); Cochran v. State, 78 S.W.3d 20, 24 (Tex.
App.—Tyler 2002, no pet.); see Strickland, 466 U.S. at 691 (“An error by counsel, even if
14
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.”). It is not sufficient that a defendant
show, with the benefit of hindsight, that his counsel’s actions or omissions during trial were of
questionable competence. Lopez, 343 S.W.3d at 142–43. Further, merely showing that the
errors had some conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at
693; Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Instead, he must prove
that counsel’s errors, judged by the totality of the representation—not by isolated instances of
error or by a portion of the trial—denied him a fair trial. Strickland, 466 U.S. at 695.
In his argument regarding prejudice resulting from counsel’s failure to object to
the State’s opening statement and failure to request an article 38.37 hearing, appellant argues
Nothing could have harmed the Appellant more than evidence that he had
perpetrated acts against another child. To simply allow the State to present such
evidence without ever exercising the Appellant’s statutory right to a hearing
violates his most fundamental Constitutional right to a fair trial. Failure of his
trial attorney to timely file the motions in limine, to object to the State’s
presentation of such extraneous act evidence, or to make a request for a motion
for new trial caused Appellant profound harm, in that it ensured that the jury
would hear this evidence no matter what—beginning with opening statement.
However, as we noted, the trial court ultimately conducted the requisite article 38.37 hearing.
See Tex. Code Crim. Proc. art. 38.37, § 2-a(2). Further, the record supports the trial court’s
determination that the evidence of appellant’s sexual abuse of K.J. would be adequate to support
a jury finding that appellant had committed the separate sexual offenses beyond a reasonable
doubt. See id. art. 38.37, § 2-a(1). Thus, the evidence was properly admitted under article 38.37,
and, it logically follows, that the trial court would have deemed it admissible—and admitted it—
even had the trial court made its determination earlier or if counsel had objected to the
15
challenged comments in the State’s opening statement. The prosecutor anticipated the admission
of the evidence in the State’s opening statement, and the anticipation was borne out. Arguably,
any prejudicial effect of the remarks was eliminated by the admission of the evidence. See
Hullaby v. State, 911 S.W.2d 921, 928 (Tex. App.—Fort Worth 1995, pet. ref’d) (observing that
once objectionable evidence is presented to jury, “it removes any error there may have been in
the making of the opening statement” that referred to such evidence). Appellant has not
demonstrated that, but for counsel’s failure to request the hearing earlier or failure to object to
the prosecutor’s comments, the outcome of the trial would have been different.
Concerning counsel’s failure to object to the polygraph evidence, appellant argues
that the “result of this exchange in front of the jury . . . was to impress upon [the jury] the guilt of
the Appellant in a way that was so highly prejudicial that he could not overcome it.” He
maintains, “There was nothing before the jury other than the Appellant’s refusal to take the
[polygraph] test, giving the clear impression that he did so because he was guilty. The
substantial harm to the Appellant was absolute and completely uncured, unaddressed by his
counsel or the court in any way.” However, the evidence reflects that it was appellant who
initially sought and then continued to pursue taking a polygraph examination during the
investigation. The evidence further reflects that, once the polygraph was scheduled, appellant
was undecided about taking it until he ultimately declined to do so upon the advice of counsel.
We are not persuaded that desiring to take a polygraph, discussions about scheduling it, or the
ultimate decision not to take it—which the record explicitly reflects was a decision made on the
advice of his counsel—necessarily conveyed the “clear impression” that appellant “refused” to
take a polygraph “because he was guilty.”
16
Given the record here, appellant has failed to show that trial counsel’s failures to
object—to the prosecutor’s opening statement, to the court’s failure to timely conduct the
requisite article 38.37 hearing, or to the polygraph evidence—actually had an adverse effect on
the defense. See Strickland, 466 U.S. at 693–95. The record contains ample evidence that
appellant engaged in the alleged sexual acts with L.J.—including appellant’s admissions that he
penetrated the child’s mouth with his penis, L.J.’s testimony describing appellant penetrating her
mouth and anus with his penis, L.J.’s outcry to her mother disclosing that appellant made her
perform oral sex on him, L.J.’s statements to the SANE indicating that appellant penetrated her
anus with his penis and finger, and medical evidence that corroborated L.J.’s account of
appellant penetrating her anus. Moreover, we must look to the totality of the representation in
gauging the adequacy of counsel’s performance. Frangias, 450 S.W.3d at 136; see Martinez,
330 S.W.3d at 901 (“The reviewing court must look to the totality of the representation, and its
decision must be based on the facts of the particular case, viewed at the time of counsel’s
conduct so as to eliminate hindsight bias.” (citing Strickland, 466 U.S. at 690)).
Before trial, appellant’s trial counsel filed several pretrial motions, including a
request for disclosure of the State’s expert witnesses, a motion seeking to suppress L.J.’s
statements to the SANE, and several motions for continuance in order to obtain a sex offender
risk assessment. During voir dire, trial counsel questioned the members of the jury panel
regarding their ability to serve on the jury. Counsel explained the function of the jury, including
evaluating witness credibility generally and assessing the credibility of police officers and
children in particular. Counsel questioned the venire about prior investigative experience,
medical experience, and experience dealing with sexually abused children. Counsel also
discussed the notion of false accusations and the legal concept of proof “beyond a reasonable
17
doubt.” At the end of jury selection, counsel successfully removed disqualified panel members
by agreeing with several of the State’s challenges for cause and, the record indicates, counsel
proficiently exercised peremptory challenges against panel members potentially unfavorable to
the defense.
Further, the record shows that, throughout trial, counsel ably presented and
developed the defense theories, which involved attacking the credibility of L.J. and her sister,
challenging the police investigation, contesting the medical evidence, and presenting an
alternative explanation for the girls’ sexual knowledge. In support of these defenses, trial
counsel, through cross examination of the State’s witnesses, emphasized the weaknesses in the
State’s case; emphasized the flawed police investigation, highlighting the biased and incomplete
nature of the detective’s investigation and criticizing the detective’s investigative protocol and
interrogation techniques; challenged the SANE’s medical opinion and suggested alternative
causes for the corroborating medical evidence; stressed the lack of corroborating evidence in the
form of behavioral signs of abuse or other indications of trauma; and presented evidence of an
alternative source for the girls’ sexual knowledge—the pornography on appellant’s cell phone
that the girls had access to. Counsel also attempted to minimize appellant’s incriminating
statements to the detective, observing that appellant only admitted to part of the alleged
criminal conduct.
During closing argument, trial counsel discussed the State’s failure to meet its
burden of proof; the weakness of the medical evidence; the plausibility of an alternate source for
the girls’ sexual knowledge; the limited nature of appellant’s incriminating statements; and the
bias and credibility (or lack thereof) of the State’s witnesses, including the inconsistencies and
inaccuracies in the girls’ trial testimony and prior statements. The fact that trial counsel’s
18
strategies ultimately proved unsuccessful—or that appellate counsel disagrees with them—does
not render trial counsel’s assistance ineffective.
Finally, during the punishment phase, trial counsel presented favorable character
evidence as well as mitigating evidence, including appellant’s lack of a prior criminal history.
Though appellant did not receive the minimum sentence requested, counsel successfully obtained
a lesser sentence than the State’s recommendation.
On the record before us, we conclude that appellant has failed to demonstrate
constitutionally deficient performance on the part of his trial counsel or that he suffered prejudice
because of the alleged errors of counsel. Thus, he has not shown himself entitled to reversal
based on ineffective assistance of counsel. We overrule appellant’s first point of error.
Admission of SANE Reports
During the SANE’s testimony at trial, the State offered the nurse’s reports relating
to the sexual assault exams conducted on the girls. When the State offered State’s Exhibit #6,
the SANE report for L.J.’s exam, appellant’s counsel expressed that he “under[stood] the
medical diagnosis exception” but objected “on the basis that it contains other aspects of hearsay”
and complained that “because the witness has already testified to receiving other information
from other sources, it’s undocumented and actually has hearsay within hearsay.” The following
exchange ensued:
TRIAL COURT: Why don’t we wait until the next break and then we can
point those things out possibly or if you think you need to
ask some questions regarding the source of that
information. I don’t know. I haven’t seen it. I don’t know
precisely what ‐‐
COUNSEL: Right.
19
TRIAL COURT: ‐‐ contents you may be referring to that might be hearsay.
COUNSEL: Particularly with respect to medical history of the child,
that is coming from another source that ‐‐
TRIAL COURT: Well, I’m saying I’ll have to look at them. But if you think
there are some questions, then I’ll allow you to take her on
voir dire or we could do that possibly at a break, too.
COUNSEL: We can do that.
TRIAL COURT: Okay. I’ll just hold off on the admission at this time.
The prosecutor then began questioning the nurse about the sexual assault exam that she
conducted on K.J. Appellant’s counsel objected to the admission of the extraneous sexual
offense evidence. The trial court then conducted the requisite hearing pursuant to article 38.37.
After the court made its ruling regarding the admissibility of the extraneous sexual offense
evidence under article 38.37, the court asked defense counsel, “But as to the admissibility of that
exhibit that’s been marked regarding L.J.’s exam report, you had some other concerns?”
Counsel indicated that he did and questioned the nurse about her reports:
Q. All right. [Sexual Assault Nurse Examiner], so you indicate that you
received the medical history from the mother for both children; correct?
A. That’s correct.
Q. And that would have been contained, which ‐‐ which do you have in front
of you right now?
A. I ‐‐ the ‐‐ the history that I obtained from her is on page six of ten.
Q. Are you talking about [L.J.] or ]K.J.]’s?
A. I’m looking at [L.J.]’s.
Q. [L.J.]’s. All right?
20
A. I can look at [K.J.]’s, too, if you would like me to.
Q. No. No. That’s ‐‐ let’s focus on one at a time because we’ve already got
that one to work with. And specifically, if you’ll ‐‐ let’s go to your page, I
guess, six or page seven of ten, the step two, the body surface diagram
descriptions.
A discussion concerning the nurse’s finding of “redness with irregular shaping” reflected on the
anus depiction on the body diagram followed, which included questions about literature on anal
assault and information obtained from L.J.’s mother concerning constipation issues. During the
questioning, counsel referenced two pages of the report: one of the body-diagram pages and one
of the pages containing medical history questions. Counsel also referred to another page of the
report, asking the nurse about the written comments on that page:
Q. Okay. Now with respect to your report on [K.J.] ‐‐ and by the way ‐‐
excuse me, before I move to [K.J.]’s, on your page two of ten on [L.J.]’s,
Mother indicates to you, at least according to your report, that ‐‐ there is
quotation marks as to what [L.J.] said. In your sexual history given by
[L.J.], what [L.J.] is reporting to have said in quotation marks is he makes
us suck his penis.
A. Well, that’s part of it.
Q. Yes. Mother reports, he makes me and [K.J.] suck his wiener. Your
report indicates ‐‐ is your sexual history given by [L.J.] a verbatim report?
A. It is verbatim as much as possible. And it’s ‐‐ it’s not unusual for a child
to use two different names for a body part.
Counsel then questioned the nurse about the body diagram in the SANE report of K.J.’s exam.
They discuss the nurse’s finding of discoloration marks on various parts of K.J.’s body, which
were related to a hereditary skin condition. The SANE indicated that she was not familiar with
the condition at the time but had since researched it. Counsel also asked about the finding of an
21
“irregularly shaped opening” of K.J.’s anus, referring the nurse to the page of the body diagram
with the anus depiction.
After counsel finished questioning the nurse, the following exchange occurred
between the trial court and appellant’s counsel:
TRIAL COURT: But all of the information that you were concerned about in
the exhibit that’s been marked currently about history,7 as
I’m understanding it, either came from the child or the
mother?
COUNSEL: Yes, sir. That’s what I understand.
TRIAL COURT: And it’s all for the purposes of just medical history,
diagnosis, prognosis?
COUNSEL: Right.
TRIAL COURT: The objection is overruled and it’s admitted.
Subsequently, when the State offered the SANE report for K.J.’s SANE exam, State’s Exhibit
#7, appellant objected as follows:
Renew the former objections, Your Honor, as to ‐‐ as to not only the hearsay
within hearsay, but also under Rules 404 and 405(b). Rules of evidence in 403
run the risk of ‐‐ probative value is not ‐‐ the prejudicial value outweighs the
probative value and ‐‐ as well as the confusion of the issues before the jury with
respect to the indicted case that we are here on.
The trial court overruled the objections and admitted the exhibit.
In his second point of error, appellant argues that the trial court erred in admitting
the SANE reports, raising several claims. Concerning both exhibits, he asserts that the reports
7
The record reflects that the marked exhibit in question was State’s Exhibit #6, the
SANE report related to L.J.’s exam.
22
contained inadmissible hearsay and “significant portions of information that were extraneous and
not offered for the purpose of medical diagnosis or treatment.” Concerning State’s Exhibit #7,
he further complains that the trial court failed to conduct a Rule 403 balancing test.
We must first address whether appellant properly preserved error, if any, in the
court below concerning the various complaints he now raises on appeal. See Reynolds v. State,
423 S.W.3d 377, 383 (Tex. Crim. App. 2014); Blackshear v. State, 385 S.W.3d 589, 590 (Tex.
Crim. App. 2012); Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009); Haley v. State,
173 S.W.3d 510, 515 (Tex. Crim. App. 2005). We conclude that, as to some of the complaints
raised in his second point of error, he did not.
To preserve error for appellate review, a party must timely object and state the
grounds for the objection with enough specificity to make the trial judge aware of the complaint,
unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A);
see Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016); Yazdchi v. State,
428 S.W.3d 831, 844 (Tex. Crim. App. 2014). While no “magic words” or citation to specific
statutes or rules is required to preserve a complaint for appeal, a party must convey the substance
of the complaint to the trial court clearly enough to provide the judge and the opposing party an
opportunity to address and, if necessary, correct the purported error. Ex parte Marascio,
471 S.W.3d 832, 842 (Tex. Crim. App. 2015); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim.
App. 2011). The record must make it clear that both the trial court and the opposing party
understood the legal basis for the complaint. Thomas v. State, 408 S.W.3d 877, 884 (Tex. Crim.
App. 2013); see Pena, 353 S.W.3d at 807. Further, the complaint on appeal must comport with
the specific objection made at trial or error has not been preserved. Thomas, 505 S.W.3d at 924;
23
Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996); see also Yazdchi, 428 S.W.3d
at 844.
In addition, when an exhibit contains both admissible and inadmissible material,
the objection to the exhibit must specifically refer to the challenged material to apprise the trial
court of the exact objection. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995);
Human v. State, 749 S.W.2d 832, 838 (Tex. Crim. App. 1988); Brown v. State, 692 S.W.2d 497,
501 (Tex. Crim. App. 1985); see George E. Dix & John M. Schmolesky, 43A Texas Practice:
Criminal Practice and Procedure § 53:74, at 1049 (3d ed. 2011) (“If a unit of evidence—such as
an exhibit—contains both admissible and inadmissible parts, an objection to the inadmissible
portion must specifically refer to that part or portion of the evidence.”). A trial court is not
obligated to search through an exhibit and segregate the admissible evidence from the
inadmissible. See Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009); Jones
v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992), overruled on other grounds by Maxwell
v. State, 48 S.W.3d 196, 198 (Tex. Crim. App. 2001). If the objecting party does not specify
which part of the exhibit is not admissible, any asserted error in admitting the evidence is not
preserved for review. Whitaker, 286 S.W.3d at 369; Sonnier, 913 S.W.2d at 518; Human,
749 S.W.2d at 838; Brown, 692 S.W.2d at 501; Wintters v. State, 616 S.W.2d 197, 202 (Tex.
Crim. App. 1981); Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. 1980) (op.
on reh’g).
At trial, appellant objected to both exhibits claiming that the SANE reports
contained hearsay within hearsay, although counsel conceded that the reports—including the
mother’s and the child’s statements to the nurse—fell within the hearsay exception for medical
24
diagnosis or treatment.8 The objection indicated that, beyond the applicable medical diagnosis or
treatment exception, portions of the exhibit were still inadmissible hearsay within hearsay.
However, appellant did not specifically identify any particular statements in either report that
were, according to appellant, inadmissible hearsay within hearsay. Although he reviewed
various portions of the reports during his voir dire of the nurse, he never directed the trial court
to the specific portions of the reports that he maintained were inadmissible. At no time—either
at trial or on appeal—has appellant specifically identified the objectionable portions of
the SANE reports that appellant maintains were hearsay within hearsay. See Hernandez,
599 S.W.2d at 617 (“While it might be conceded that appellant’s objection sufficiently stated
grounds for the objection, it did not identify what was objected to.”); see also Barnes v. State,
876 S.W.2d 316, 329 (Tex. Crim. App. 1994) (“The trial court was not required, in the face of a
global hearsay objection, to cull through the [exhibit] and exclude whatever particular matters he
may find there that meet that description.”). Consequently, appellant failed to preserve error, if
any, in the trial court’s admission of the challenged exhibits over his hearsay within hearsay
objection. See Tex. R. App. P. 33.1(a); see, e.g., Whitaker, 286 S.W.3d at 369 (holding trial
objections were insufficient to preserve error in admission of portions of audiotapes
because objections did not specifically point out which portions of tapes were allegedly
inadmissible); Rosales v. State, No. 03-15-00735-CR, 2017 WL 5247497, at *4 (Tex. App.—
Austin Nov. 10, 2017, pet. ref’d) (mem. op., not designated for publication) (concluding that
appellant failed to preserve error concerning admission of exhibit containing handwritten notes
8
When asserting his hearsay-within-hearsay objection to State’s Exhibit #6, appellant’s
counsel expressed that he “under[stood] the medical diagnosis exception.” Subsequently, after
questioning the SANE on voir dire, he agreed with the trial court that the information that “[he
was] concerned about” “either came from the child or the mother” and was “all for the purposes
of just medical history, diagnosis, prognosis.”
25
of counseling sessions because appellant made global hearsay objection to entire exhibit without
specifying statements that he found to be objectionable); Wilkinson v. State, 523 S.W.3d 818,
826–27 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (concluding that appellant failed to
preserve hearsay complaint for appellate review because he objected to entire exhibit containing
Facebook posts and “did not highlight specific objectionable statements for the trial court”).
Regarding his contention that the exhibits were inadmissible because portions of
the exhibits contained information, statements, or extraneous acts that “should not have been
admitted because they did not meet the hearsay exception[] for medical diagnosis or treatment
under Rule 803(4),” see Tex. R. Evid. 803(4)(A) (establishing hearsay exception for statement
that “is made for—and is reasonably pertinent to—medical diagnosis or treatment”); Taylor
v. State, 268 S.W.3d 571, 590–91 (Tex. Crim. App. 2008) (discussing pertinence component of
medical diagnosis or treatment exception), the record reflects that this complaint is not preserved
for appellate review for several reasons. First, appellant did not object on this ground at trial. At
no point during trial did appellant assert that the exhibits, or any portion thereof, were not
admissible because the SANE reports, or portions therein, did not meet the medical diagnosis or
treatment hearsay exception. In fact, as we noted previously, the record reflects that counsel
agreed that the medical diagnosis or treatment exception applied. Second, because appellant
failed to object on this ground at trial, he also failed to specify any particular statements in either
report that were, as he now contends, inadmissible hearsay because they were not made for the
purpose of medical diagnosis or treatment.
Concerning his assertion that the exhibits were inadmissible because the reports
contained “extraneous acts”—the sexual acts perpetrated against K.J., who was not the indicted
victim—we note that appellant once again failed to specify any particular portions of State’s
26
Exhibit #6, the SANE report relating to L.J.’s exam, that were inadmissible because they
referenced extraneous sexual offenses. Moreover, with respect to both exhibits and any portions
describing extraneous sexual acts that appellant perpetrated against K.J., evidence of such acts
was, as previously discussed, admissible under section 2(b) of article 38.37 of the Code of
Criminal Procedure. As we noted earlier, that statute explicitly allows evidence that a defendant
has committed one of the enumerated child sexual abuse offenses against a child other than the
victim of the charged offense to be admitted “for any bearing the evidence has on relevant
matters, including the character of the defendant and acts performed in conformity with that
character.” Tex. Code Crim. Proc. art. 38.37, § 2(a)(1), (b). As the trial court observed, nothing
in the statute limits the type of evidence regarding the separate offense—that is, nothing in the
statute indicates that only testimony rather than documentary evidence is admissible under the
statute. See Evidence, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “evidence” as
“[s]omething (including testimony, documents, and tangible objects) that tends to prove or
disprove the existence of an alleged fact; anything presented to the senses and offered to prove
the existence or nonexistence of a fact.”). Thus, the evidence of the extraneous sexual offenses
that appellant perpetrated against K.J.—as documented in the SANE reports—was admissible.
Appellant contends that even if the SANE reports were admissible under article
38.37, “this still does not excuse the evidence from being subject to the rules of evidence.”
However, article 38.37 unambiguously states that such evidence of extraneous sexual offenses is
admissible under the statute “[n]otwithstanding Rules 404 and 405 [of the] Texas Rules of
Evidence.” Id. art. 38.37, § 2(b); see Tex. R. Evid. 404 (governing admissibility of character
evidence and extraneous bad acts); Tex. R. Evid. 405 (establishing methods of proving
character); see also Robisheaux v. State, 483 S.W.3d 205, 210 (Tex. App.—Austin 2016, pet.
27
ref’d) (noting that article 38.37 section 2(b) allows admission of separate sexual offense evidence
“[n]otwithstanding Rules 404 and 405”). Additionally, to the extent that such evidence in the
exhibits was in the form of hearsay, the statements were admissible under exceptions to the
hearsay rule. See Tex. R. Evid. 803(4)(A) (establishing exception to hearsay rule for statements
made for medical diagnosis or treatment), 803(6) (establishing exception to hearsay rule for
business records).
Finally, appellant complains in this point of error that the trial court failed to
conduct the requisite balancing test under Rule 403 before admitting State’s Exhibit #7, the
SANE report relating to K.J.’s exam. Once a Rule 403 objection is asserted, the trial court must
engage in the balancing test required by that rule. Williams v. State, 958 S.W.2d 186, 195 (Tex.
Crim. App. 1997); Stevens v. State, No. 03-14-00483-CR, 2016 WL 3752915, at *9 (Tex.
App.—Austin July 7, 2016, no pet.) (mem. op., not designated for publication). However, Rule
403 does not require that the balancing test be performed on the record. Distefano v. State,
532 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Belcher v. State,
474 S.W.3d 840, 848 (Tex. App.—Tyler 2015, no pet.); Hitt v. State, 53 S.W.3d 697, 706 (Tex.
App.—Austin 2001, pet. ref’d); see Perez v. State, 562 S.W.3d 676, 688 (Tex. App.—Fort Worth
2018, pet. ref’d) (recognizing that “[c]ourts have uniformly held that a [R]ule 403 analysis does
not have to be conducted on the record”). In overruling a Rule 403 objection, the trial court is
assumed to have applied a Rule 403 balancing test and determined the evidence was admissible.
Distefano, 532 S.W.3d at 31; Belcher, 474 S.W.3d at 848; Hitt, 53 S.W.3d at 706; see Williams,
958 S.W.2d at 195.
The record here reflects that the trial court entertained appellant’s 403 objection
and made its ruling, so we assume the court properly performed a balancing test even in the
28
absence of a recitation on the record. See 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.”); 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.”); see Simmang v. State, No. 03-11-00455-CR,
2013 WL 5272919, at *7 n.17 (Tex. App.—Austin Sept. 11, 2013, pet. ref’d) (mem. op., not
designated for publication) (“[T]he trial court is not required to perform the Rule 403 balancing
test on the record, and when the record is silent, appellate courts must presume that the trial court
performed the required balancing test.”).
For the above reasons, we conclude that the trial court did not abuse its discretion
in admitting either of the SANE reports. Accordingly, we overrule appellant’s second point of
error complaining about the trial court’s admission of State’s Exhibits #6 and #7.
Error in Written Judgments
On review of the record, we observe that the written judgments of conviction in
this case contain non-reversible clerical error. Each of the judgments states that the “Statute for
Offense” is “22.021(f)(1) Penal Code.” This statutory provision establishes that the minimum
term of imprisonment for aggravated sexual assault of a child is increased to 25 years if the child
victim is younger than six years of age, which is the case here. However, the applicable statutory
provisions for the offenses of aggravated sexual assault of a child for which appellant was
29
convicted also include section 22.021(a)(1)(B) of the Penal Code, the statutory provision that
defines the offense of aggravated sexual assault of a child.
This Court has authority to modify incorrect judgments when the necessary
information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,
27–28 (Tex. Crim. App. 1993). Accordingly, we modify the judgments of conviction to reflect
that the “Statute for Offense” is “22.021(a)(1)(B), (f)(1) Penal Code.”
CONCLUSION
Having concluded that appellant failed to demonstrate that he received ineffective
assistance of counsel and that the trial court did not abuse its discretion in admitting the SANE
reports but having found non-reversible clerical error in the written judgments of conviction, we
modify the trial court’s judgments as described above and affirm the trial court’s judgments of
conviction as modified.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Kelly
Modified and, as Modified, Affirmed
Filed: June 19, 2019
Do Not Publish
30