Chandler, Michael Ray Jr. ( 2015 )

mi-tf
. MICHAEL RAY CHANDLER, JR.,
§ 1875978 _^
APPELLANT/PETITIONER, "PRO
STILES UNIT
3060 FM 3514
BEAUMONT, TEXAS $$70§
DATEj DECEMBER 24, 2014 "" _
"—-—• RECEIVED m
HONORABLE JUSTICES FILED IN COURT OF CRIMINAL APPEALS
TEXAS COURT OP CEDHfiOURT OF CRIMINAL APPEALS
.««*«. ; JAN232::5 -'AN 23 2013
P. Ou BOX 1239:8,
CAPITOL STATION Abe, Acosta, Clerk
AUSTIN, TgXAS 78711
^RECEIVED \j Ife Res PETITIONEE FOR DISCRETIONARY REVEIW N@§ 1447-.
JAN 0 5 2015 TRIAL GOURf tfete $H-26-ii^3SS (207 BIsti C*#X
THIRD COURT OF.APPEALS. CHANDLER -v- TEXAS.
\ JEFFREY D.KYLE /
LETTER FORM PLEADING-i APPELLANT /PETITIONER^
"PRO SB"' MOTION TO SUSPEND THE RULES and PEiL
H'10nM*S Pm'l'l'iON BDJBM^itK'l'lOMRl HEVIM
" -•••••••• • •—• •—•••• •, . 1. i., ., ,„.„ h „„,,.— 1, ,,,- ^yjjj,^
BEAR HONORABLE JUSTICES OP THE TEXAS COURT OF CRIMINAL APPEALS*
COMES NOWr KCIAEL RAY CHANDLER, JR*, # J875978 ,. an
Offender wha is- confined Ln TBCJ-CID at the stiles Uhitj
3060 fm 3514 f Beaumont* T.eatas 77705 and located in Jef
fersan Cauntyf Texa&jj; whs. d-aes de.clare.jf statej.jeMi^ plead^ and
petition tinder the penalty of perfutry ©f the laws ©f the United S
ates and.The State of Teatasf in accordance with and pursuant t©
28 U«S»C| sec. 174.6 and $egj Ci%§ Pracl & Relsl Ce?d'ej Seesl 132§0O
1321003 that the contents of this foregoing LETTER FORM PLEABINQ*
APPELLANT/PETITIONER'S "PRO SiE" MOTION; TO SUSPEND THE RULES and
PETITIONERS PETITION FOR DISCRETIONARY REVIEW is declared and km
filmed 1s® be true and correct; $y hereinafter affixing my slgnatur.
and the date @f its eatecutien and do petition and plead as fallow:
II
MOTION TO SUSPEND THE RULES
COMES NOW, MICHAEL RAY CHABDLER, JR*, # 1875978 " $ the Ap-
pel$a*t/Petitianer| wh©- is hereinafter identified as the Petitioner
that d©=es ftalge and file this MOTION TO SUSPEND THE RULES! ifis a©--
os.rdance with and pursuant ta> TEXAS RULES OF APPELLATE PROCEDURE! .
Rule 21 SusfensjQjai a>f Rule as t© the FORM used far making: and the
filing af a "PETITION FOR DISCRETIONARY REVIEW* and otherwise i&
*&b»fe&aa&e with the ruling and mandate ©f the United States Sup*
reiae Ceurt in> the case ®f Haines ^ Kernerg 404 U)«. S» 513 (I§72)
authorising "liberal review and cansideratiaa ®f "pra ae** pleadings
®E a litigant who, is unschooled and untrained irn the art and scieaee
®f the field af Iaw|
WHEREFORE, PRBEESES CONSlDEREDf the Petitioner d©es PRAY this
Bm#rable Texas C©urt of GriMnal Appeals orders that the rules be
suspended and the Petitioner be allswed to> proceed by and. through
this letter farm pleadlja||§
AND FURTBERjf that tM© B®n®rable Texas Court af CriAinal Ap
peals d®:es grant and order any and all srther remedyf: redress* and
relief that the Htesrabie Texas Csurt af Criminal Appeals may under
both law and equity!
Ill
PETITIONER*S PETITION FOR DISCRETIONARY REVIEW
COMES NOWr PETITIONEE! wh@ do^es respectfully makes and sub-
MM* this PETITION FOR DISCRETIONARY REVIEW and ffio^es that this
Honorable Texas dourt @f Criminal Appeals daes grant review ©f this
feause and @ffers the fallowing In support hereoft
STATEMENT REGARDING ORAL ARGUEMENT
The Petitioner* a person who Is cMfned.ln TIC^CID daes sat
refues-fc a>ral arguement and appearenee before the Courtl
B§ -
STATEMENT OF THE CASE
The Pe-bltianei*; Michael Chandler, Jr. was charged with three
(3) counts ©f ihdeeefeey with a child by exposure! SeeTexas Peftal
C@de" seel 2IlH(a>(2)(H)g see also id sectlim 21|ll(d> (exblaia-
mm.
Ing. that offense is third-degree felony)! In partlcularf the Lxm
dietment alleged that with an intent to arase or gratify sexual de
sire Petitioner exposed Ms genifals ©n three ($) accasloms i$m@w-
ing that a child younger than 17 years aid was present! The mctil;
was the Petitioner*& stepdaughter C,F»BU As the time ©>f the @ffense|
C»F»BV was 15 years aid. The IMictment als©> eantained two* enhance
ment paragraphs alleging that Petitioner had been previously coeh-*
dieted ®)f tw® feloaiy ©ffinses;. After a trialf the fury/ found the
Petitioner; guilty ©>f twa ®f the three c©untsf Subsefuently to the glur
reaching its deeisiafif the district court found the enhancement ta
allegations to be true and sentenced the Petitioner to. life i&pria*
anment; for the first cou#t and $j$ years and 1© months for the sees
ond count! (See id| se^tioni 12|42(d)(elevating permissble puniahr-
ment range for perso>n previously convicted ®f t.*« felony ©ffemses)!
The District: Court ordered that the two sentences be served eetim
secmtivelyf Shortly after the district court issued its .fudges
mentf Petitioner ga^e t mely notice ®f the appeal of the §udgement
and sentence of the 207th Judicial District Court whieftL the Hon
ourable Dib Waldripf Judge Presiding over the trial of TS&i CR-20ijfe
365 did appoint counsel to perfect appeal to the Third Court oif
Appeals at Austi&f Texas!
The Third Court Of Appeals did affirm the trial co^rt*s Judge
ment and sentence in a MEMORANDUM OpXHUOll of Justices Puryear, Gtoodw
winf anf Field and the same being entered on or about the date of
October lg 2014 with Justice Dav d Puryear having ordered the opin
ion; hot t® be published!. As the Petitioner sought additional
time to^ file this pleadingand he same is due on December 30* 20141
Cl.
STATEMENT OF PROCEDURAL HISTORY
The indlci|liemt lin The State of Texas -v- MICHAEL RAY CHAND*
LER, N®,. CR-2011-365 e f©r the offense of iMecehsey with a child by exposure three
esuntsl And subje&t to this indictment! the Petitoner was tried
©^ JHPy 23, |. 20 ij of which the Petitioner did pr®-*
ceed to trial by §ury who>se verdict was returned on or about the
mte
date of July 27 ^ 2013 .. For it was the entry ®f this eh-
try o;f the verdict of "guilty" that the punishment phase of the
Petitionees trial was gone into where the proceedings were then
held before the Court! The Petitioner did/did hot ^aife the §ury
for punishment prie* to; beginning the punishment phase! Which the
remaining portion of the indictment was read into the record which
the Petitioner did make and enter Ms plea o>f "hat true"/^true™ t©
allegations, of enhancement which the Court allegedly found the en
hancement allegations to> be true and praeeeded by sentencing the
Petitioner ta> liiFe iftprlsonment fo>r the firs* count and. for the sel**
ond count a term* of sentence of 98 years and lOmonths was so imposed
^r the Court pursuant to T^xas Penal Codef seel 12>42(d)r with the
Coutt ordering the sentences to be served eons©cative3iy^ And with
Coiiurt having so sentenced the Petitioner^ the entered h.is timely
and proper notice of appeal of the Judgement and sentence im the
ease* For upon appeal the Third Q;ourt of Appeals of Texas did make
and entefe a MEMORANDUM OPINION on October If 2014 ta< be unpublished*
BW
GROUNDS FOR REVIEW
ll • •
PETITIONER'S FIRST GROUND FOR REVIEW
DID THE THIRD COURT OF APPEALS ABUSE ITS DISCRETION AND ERROR IN
RULING THE EVIDENCE WAS SUFFICENT TO SUPPORT. CONVICTION SHOWING;
THE OFFENSE TOOK PLACE IN COMAL COUNTY, TEXAS?
2j
PETITIONERS SECOND GROUND FOR REVIEW
DID THE THIRD COURT OF APPEALS ABUSE ITS DISCRETION AND ERROR IN
RULING THERE WAS NO ERROR BY THE DISTRICT COURT IN ALLOWING COM*
PUTER GENERATED EVIDENCE, "CERTAIN SEARCH TERMS« THAT WAS A PART
INTERNET HISTORY OF A COMPUTER FOUND IN THE PETITIONERS HOME
WHERE IT HAD BEEN RETRIEVED?
it
PETITIONEE^ THIRD GROUND FOR REVIEW
DID THE THIRD COURT OF "APPEALS ABUSE ITS DISCRETION AND ERROR IN
RULING THAT THE PEEISBaBHBE WAS NOT DENIED EFFECTIVE ASSISTANT OF
AT TRIAL WHEN BIS TRIAL ATTORNEY "FAILED TO OBJECT TO THE INTRO*
ARGUMENT NUMBER ONE
The Petitoner in support of PETITIONER*^ FIRST GROUND FOR
REVIEW would prdffex to this Honorable Texas Court of Criminal
Appeals the express and implied mandate of the United States Con
stitution, Amendnets VI and XTV section If as well asf The State
Of Tgxas Constutionf Article If Sections If IQg and IS of which
this Honorable Texas Court of Criminal Appeals is requested t©
take and give fudlciall notice of their; Mandate as having been de
termined by the Fnited States Supreme CeuJHs by and through: 0/pinions.f
rulihgsf and authorities of which this Honorable Texas Court of Crim
inal Appeals rulings^ovpinions^ and authorities! although independent,^
must otherwise conform to; UNITED STATES CONSTITU2I0N; Article VI £
of which the Petitioned advances is relevant and applicable in his
Instant and foregoing arguementl For in spite of the fact that: the
State of Texas has codified within the Texas C;o.de of Criminal Pro>-
eedureli Article llfef tlie express and implied mandate ®f United St
ates Constitutionall Amendment VI which mandates in relevant and
pertinent part, statingf "blithe accused shall en-|oy the right t® a
speedy and public trial.|: by an impartial .jury of the State and dis*;
triet wherein the crime shall have been committedf**.;!"*
Accordingly! the Petitioner; would beg t® differ with the ruling:
and ©jfiimioh of the Honorable Third Court Of Appeals Of Texas which
it Is ruled and ©pinioned by the Third Court of Appeals Of Texas
that "H,f.Venue Is not an element of the offense in this case..i*"'
The Petitioner takes pssitiiaija and standing that the United States
Constqttutiony Amendment VI expressly andimplleitedly mandates that
venue is a part of every criminal, prosecution contrary to the Hon
orable Third Court of Appeals of Texas setting forth as authority
Texas Penal Codef Section 2llll; Texas Code Criminal Procedure,
Art., 13.18 (providing that if venue is not specifically stated in
governoring statue* prosper county for prosecution Is where "offense
was committed")! State -v- Blanken ship, 170 SWjd 676, 68l(Tex. Appa-
Austin 2005, pet, ref'd) (explaining that failure to prove venue does
not negate guilt of accused). For the issue as having been advanced
by the Petitioner on appeal was a matter of proving the elements of
the offense which by virtue of the provisions of The State of Texas
Constitution, Article I, Section 10 which reads and mandates in rel-
evant partstates, "...and no person shall be held to answer for
a criminal offense, unless on an indictment of a grand jury, ex
cept in ases in which the punishment is by fine or imprisonment,
otherwise t&an in the penitentiary..„" and which this same express
and Implied mandate is found in Tgxas Code Criminal Procedure, Art
icle 1.05, For the mandate is actively and coancertively applied in
eongunction with Texas Code of Criminal Procedure; Chapter 21 which
governs "indictments" and the provis on of Texas Penal. Code, Sec
tions, 2.01; 2.02; 2.03; 2.04; and 2gQ5 which do not by either ex
press and/oa-implied mandate dismiss the requirement ©f proving the
reqiaiired venuel For merely reading of the indictment do.es not con
stitute a showing of proof of venue and nor do;es the circumsstntial
an/or direct e-evidence meet the United States Constitutional Mandate.
As it is the posit on and standing of the Petitioner the error as com
plained is "structural" in light of the rul;.ng made anu entered by
the United States Supreme Court in the case of KOTTEAgpS, et al. -v>-
UNITED STATES, 328 U, S. 750 (1946) where the Third Court of Appeals
Of Texas in its ruling has otherw.se abused its discretion and error*
ed diminishing the required proof Inflicting substantial prejudice
and denying the Petitioner a fair and impartial trial!
ARGUEMENT NUMBER TWQ
The Petitioner for reason of brevity refers back to the pre
vious Arguement where the Petitioner has cited both Federal and St
ate Constitutional Provisions which; the Petitioner has requested
this Honorable Tgxas Court Of Criminal Appeals to take Judicial not
ice of the express and implied mandate as ruled and interpretated \yy
opinions and rulings af the United States Supreme Court! For the
Petitioner is of position and standing that the ruling and opinion
of the Honorable Third Court of Appeals is not only in errorj but
an overt and blatant abuse of discretion where the evidence itselif
was a dire-t and indirect violation of itfee Petitioner* s right to
a "fair and impartial trial" as projected and guranteed by the Un*
ited Spates Constitution; Amendment VI and EV section 1 and the
comparative equivalent: under The State of Texas Constut ions. Arti
cle I section; 10 where the express and implied terminology of the
Texas Rules of Evidence, Rules 401-4.03 could have rationally and rea-
*6—
sonably deducted the imptted Injury and harm under the abuse of
discretion standard as set forth and Identified in Davis -v- St
ate? 32§ SW3d798f 803 (TexrCrimrApp. 2010). Which the Petit
ioner Is of posit on and standing that where the burden of proof
rest upon the State; the use of such evidence clearly rested upon*
playing to the emotions and sentiments of emotions of the furyi
This in itself surely was clearly calculated to harm and prejudice
the Petitioner where the abuse of discretion on pat of the Court
rested clearly upon a chain of events which; was not and has not
yet come before the Court for appropriate and adequate review
that would give deeper insight as to this Court not having made
a ruling; that was not flawed and errored in light of the rulings
made in both LopeS -v- State! 86 SW3d #228. SJfe (tax. Crim Atm£ 2008)
and State -v- Mecaier. 153 S.W.3d 4351 439 (Tex.: Crim. Appt 2005)1
Because the fact the minds of the Jurrors have been unduly in
flamed with biased and prejudicial Information that the Sfate pur
ports to; be evidence which does not show and/or' substantiate the
commission of the offense as alleged in the indictmentI For what
was and had been researched on a computer did exactly as the rule
expressly and implicitedly prohibits.; where the State*s evidence
purportedly included a showing of the Petitiesir having allegedly
admitted to violation of the law*
Aetedlnpyl with the Third Court of Appeala of Te^xas having
recodified this in the records the re o^rds and identified such in
its opinion on Page 9t As the admission of commissionof the of
fense affirmatively demonstrates the intent without the need of:
the use of lm£lamatory and prejudicial internet materials! The
errcr and abuse of discretion on part of the District Court is
contrary to; the fundamental basis and premises of fairness of wh*
ich the United States Constitution., Amendment VI and XIV sec 1 does
prohibit^
The foregoing being the reason and purpose for this Honorable
Texas Court of Criminal Appeals should grant the Petitionees dis
cretionary review where the trial went from the norms of fairness
to; bolstering of the Jury heedlessly^
S*7*
ARGUEMENT NUMBER THREE
The petitioner cont nues to urge that thid Honorable Texas
Court of Criminal Appeals take judicial notice of both the Fgderal
and State Constitutions and their respective authorities as rel
evant to ineifecti^e assistance of counsell Foxr the Petitioner
acknowledges that the relevant core deeds on as made and entered
by the United Spates Supreme Court in Strickland -v- Washington.
466 U.S., 668 (1984) established a twos part test of effective assis
tance of counsel., For the Petitioner eoneeeds that this Honor
able Texas Court of Criminal Appeals has rarely ruled upon direct
appeal that the trial counsel has been ineffective without a specif
ic showing that the counsel's performance had fallen beyond an ob
jective standard of reasonableness* For in making this showing the
present venue is both inadequate and inappropriate for making such
a showing. Yet, in coneeeding that the present venue does not
as recognised by the Third Court of Appeals afford none of the
parties of interest and relevan-e the needed and required review
of the totality of circumstances and should not be the determining:
factor of this discretionary review.
And relying upon those authorities cited by the Honorable
Third Court of Appeals the Petitioner does leave this matter to;>
be determined in accordance with Strickland -v- Washington! 466 '
U. S, 66B(1984) which has been cited in Davis, -y- State. 413 S.W.3d
816 (Tex^; App—^Austin 2013, pet, ref'd); Frangias -v- States 392
S.W.3d 642 (Tex. Criml App., 2013) ; Menefieid -v- State, 363 S.W.3d 591
(tex» Crim^ App> 2012); Garcia -v- State, m SW3d 436 (Tex. Crim. App.)
and Thompson -v¥ State, 9 S.W.3d 80S (tex. rim. App. 1999)1 For the
Petitioner admits that Post Conviction Habeas Corpus Is better venue
for addressment of this Isssie which the Petitioner should hope the
Court does not imput any prejudice and harm for such acknowledgement.
In conclusion the Petitioner reqquest that this Honorable
Texas Court of Criminal Appeals give review of all issues in the
best interest of Justiue and that the rel ef as preayed for be
granted*
PRAYER FOR RELIEF
For reasons stated above,; it is, respectfully submitted that
Texas Court of Criminal Appeals should grant this PETITION FOR
Discretionary R|view»
AND FURTHER^ It is PRAYED that this Court grant and order
any and all other remedy, redress, and relief it may deem Just.;
appropriate; and equitable under Law and equity. For the Petit
ioner does hereinafter affix his signature on this the December
24 Mi ~ !
?4th ; 2014 declaring, confirming; petitioning, and pleading
the foregoing to; be true and correct.
Respectfully submitted,
S/
APPELLANT /Mi'l'I) IONS% "PRO SE"
STIT.BES Unit/TDCJ-CID
3060 FM 3514
BEAUmMT, TiliLAti 77705
CERTIFICATE OF SERVICE
•'•••'• " " •"•* in'i—^—•••«'•• 11 1 ii mi 1 mil
I| Michael Ray Chandler; #1875978 : an offender, who Is
confined in TDCJ-CID at the stiles Unit, 3060 Fm 3514
Beaumont; Texas 77705 which is located in Jefferson County, Texas;
who.- is the App ell ant /Petite oner,: who do>es certify that a true end
copy of this letter form pleading has been served by placing the
same in a postage prepaid envelope addressed to Comal County Dis
trict Attorney^ cSomal County District Attorney^ Office,. 150 n.
seguiNjAVE. suite 3O.ygissBjEgg a Dy piacing the same in the
new braunfft.f. TRYaqUnlt Mail Box for subsequent pickup by the
stiles Unit Mail. Room Personel. to subsequently log the
same and Subsequent to such logging deposit the same in the United
Spates P|,stal Servi e for delivery as set forth anal certified t:o
be a true and corre t service under the penalty of perjury of the
laws of he United States andThe S+ate of Texas as declared, con
firmed! and certified by affixing my signature below on this date
Of JiECEMBER 24th _;. 2014 ?
a//
IICHAEL HAY CMDLEV
MICHAEL^ /
# 167597),
XEP^n3TiW7pW13aJN171IT PRO SE
STttXS UNIT/TDaJ-giD
BjStefcff tMS 77705—"
-»
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00582-CR
Michael Ray Chandler, Jr., Appellant
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2011-365, HONORABLE DIB WALDRIP, JUDGE PRESIDING
MEMORANDUM OPINION
Michael Ray Chandler, Jr., was charged with three counts of indecency with a child
by exposure. See Tex. PenalCode §21.11(a)(2)(A); see also z'd. § 21.11 (d) (explaining that offense
is third-degree felony). In particular, the indictment alleged that with an intent to arouse or gratify
sexual desire Chandler exposed his genitals on three occasions knowing that a child younger
than 17 years old was present. The victim was Chandler's stepdaughter C.F.B. At the time of the
offenses, C.F.B. was 15 years old. The indictment also contained two enhancement paragraphs
alleging that Chandler had previously beenconvicted of two felony offenses. Aftera trial, thejury
found Chandler guilty of two of the three counts. Subsequent to thejury reaching its decision, the
district court found the enhancement allegations to be true and sentenced Chandler to life
imprisonment for the first count and to98 years andlO months for the second count. See id. § 12.42(d)
(elevating permissible punishment range for person previously convicted of two felony offenses).
The district court ordered that the two sentences be served consecutively. Shortly after the district
court issued its judgment, Chandler appealed his conviction. We will affirm the district court's
judgment of conviction.
DISCUSSION
On appeal, Chandler presents three issues challenging his conviction. In his first
issue, Chandler contends that the evidence was legally insufficient to support his conviction
because the evidence did not support the allegations in the indictment that the offenses took place
in ComalCounty, Texas. Inhis secondissue,Chandlerassertsthatthe districtcourterredby admitting
into evidence "certain search terms" found in the internet history of a computer retrieved from his
home. Finally, Chandler argues thathe was denied effective assistance of counsel because his trial
attorney "failedto objectto the introduction of certain search termson a computer found in" his home.
Venue
As mentioned above, in his first issue on appeal, Chandler contends that the
evidence was insufficient to support his conviction because the evidence did not show that the
offenses took place in Comal County, Texas, which is where the indictment alleged that the
incidents occurred. Although Chandler acknowledges that the State mentioned Comal County
when making its case, he argues that the State never mentioned Texas, which left "open the
possibilityof the offense occurring in another state besides Texas."
Venue is not an element of the offense in this case. See Tex. Penal Code § 21.11;
see also Tex. Code Crim. Proc. art. 13.18 (providing that if venue is not specifically stated in
governing statute, proper county for prosecution is where "offense was committed"); State v.
Blankenship, 170 S.W.3d 676, 681 (Tex. App.—Austin 2005, pet. refd) (explaining that failure to
prove venue does not negate guilt of accused). During a trial, the State has the burden of proving
venue by a preponderance of the evidence, see Tex. Code Crim. Proc. art. 13.17, and venue may
be proven by circumstantial or direct evidence, Couchman v. State, 3 S.W.3d 155, 161 (Tex.
App.—Fort Worth 1999, pet. ref d). On the other hand, the defendant has the burden of objecting
to the State's "failure to prove venue." Grant v. State, 33 S.W.3d 875, 878 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref d). When deciding the issue of venue, the fact-finder is permitted to
"make reasonable inferences from the evidence" presented. Bordman v. State, 56 S.W.3d 63, 70
(Tex. App.—Houston [14th Dist.] 2001, pet. refd). Evidence is sufficient to establish venue if
'"the jury may reasonably conclude that the offense was committed in the county alleged.'"
Couchman, 3 S.W.3dat 161 (quotingRippeev. State, 384 S.W.2d717, 718 (Tex. Crim. App. 1964)
and Knabe v. State, 836 S.W.2d 837, 839 (Tex. App.—Fort Worth 1992, pet. ref d)). On appeal,
reviewing courts are obligated to presume "that venue was proved in the trial court" unless the
issue was "disputed in the trial court" or "unless the record affirmatively shows to the contrary."
See Tex. R. App. P. 44.2(c)(1).
In his brief, Chandler contends that he disputed the issue of venue during trial and
points to a portion of the record in which he requested a directed verdict. The exchange at issue
occurred as follows:
THE COURT: Any motions . . . ?
CHANDLER'S ATTORNEY: What are we talking about here, Judge? Anymotions
about anything?
THE COURT: Well, they've rested so I mean ~
CHANDLER'S ATTORNEY: I guess I could ask for a motion for directed verdict,
Judge.
THE COURT: Denied.
In light of the general nature of this exchange, we cannot agree with Chandler's
assertion that he disputed the issue of venue during the trial. See Whalon v. State, 725 S.W.2d 181,
188-89 (Tex. Crim. App. 1986) (concluding that defendant did not raise issue of venue in trial court
by moving for directed verdict and asserting that evidence was "wholly insufficient to support a
verdict of guilty and does not establish guilt beyond a reasonable doubt"); Grant, 33 S.W.3d at 879
(determining that motion for "instructed verdict 'asserting that State did not succeed in showing
each and every element of the offense'" as set forth in the indictment was insufficient "to preserve
the issue of venue").
Moreover, the record does not affirmatively show "to the contrary." See Tex. R.
App. P. 44.2(c)(1). Theindictment alleged thatChandler committed the offenses in Comal County,
Texas. Consistent with that allegation, C.F.B. explained in her testimony that during the relevant
time she lived in Comal County and went to a high school located in Comal County. Further, she
related that the home that she lived in with her mom and Chandler was in Comal County and that
the offenses occurred at the home when her mom left for work. Similarly, C.F.B.'s mother testified
that until she learned of the offenses, she lived in a home with Chandler and C.F.B. in "Fischer,
Texas," which was in "Comal County." In addition, Texas Ranger Keith Pauska explained in his
testimony that he was asked to investigate the offenses in this case and that he was informed
that the offenses occurred in Comal County. See Woodward v. State, 931 S.W.2d 747, 752 (Tex.
App.—Waco 1996, no pet.) (rejecting argument that venue was not established when witness to
crime testified that she saw defendant commit offense in Brazos County, when investigating officers
testified that they worked for Bryan Police Department, and when victim stated that he worked for
Texas A&M University and lived in Bryan); Hewitt v. State, 734 S.W.2d 745,747 (Tex. App.—Fort
Worth 1987, pet. ref d) (concluding that evidence was sufficient to show that offense took place in
Tarrant County, Texas, where witnesses testified that offense occurred in "Tarrant County" and
where other witnesses made references to Texas and to well-known aspects of Tarrant County).
In light of the preceding, we conclude that the presumption that venue was proven
at trial applies. See Tex. R. App. P. 44.2(c)(1). Accordingly, we overrule Chandler's first issue
on appeal.
Admission of Evidence
In his second issue, Chandler argues that the district court erred by allowing into
evidence particular search terms that were obtained from the internet history on a computer that
was in his home. The evidence pertained to searches that were made on the computer before the
offenses at issue.
During the trial, Detective Brian Morgan testified that he used forensic software to
locate the internet search history for the computer, and the State offered to admit as an exhibit a list
of the search terms found in that history. Among other things, the list contains searches for sexual
subject matters, including searches regarding teenage girls and searches pertaining to teenage girls
having sex with their fathers and other family members.1 In addition, the list also includes the
1 The list contains dozens of graphic searches for sexual subject matters. Among other
topics, the list contains the following search terms: "incest," "sleep teen vs. huge dick," "daddy
fucks step daughter," and "mom and daughter."
following internet searches that form the basis for this issue on appeal: "reality of fallen angels
from heaven," "demon of lust," "demons behind sexual lust," "sex demon[]s in the bible," "raped
by demon," "succubus demon," "demon[]s having sex with women today," and "devil possessed."
When the State offered to admit the list of the search terms found in the internet history, Chandler
objected on the grounds that the searches were not relevant and that they were more prejudicial
than probative. See Tex. R. Evid. 401-03. After overruling Chandler's objections, the district court
admitted the list of terms.
When challenging the district court's ruling, Chandler essentially concedes that the
searches for some of the sexual material "might be relevant" to the issue of intent, but he urges that
the searches regarding demons and sex with demons should not have been admitted and were only
introduced to "inflame the minds of the jurors."
We review a trial court's ruling on the admission of evidence under an abuse-of-
discretion standard of review. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010).
Under that standard,a trial court's ruling will only be deemed an abuse of discretion if it is so clearly
wrong as to lie outside the zone of reasonable disagreement, Lopez v. State, 86 S.W.3d 228, 230
(Tex. Crim. App. 2002), orisarbitrary orunreasonable, State v. Mechler, 153 S.W.3d 435,439(Tex.
Crim. App. 2005). Moreover, the trial court's ruling will be upheld provided that the trial court's
decision "is reasonably supported by the record and is correct under any theory of law applicable
to the case." Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
When objecting to the admission of the list, Chandler first argued that the evidence
was not relevant. '"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; see id. R. 402 (stating that, in general,
all "relevant evidence is admissible"). As mentioned by Chandler, the search terms concerning
teenagers and concerning sexual activity between teenage girls and their relatives, particularly with
their stepfathers, were relevant to the issue of whether Chandler intended to commit the offenses
at issue in this case. See id. R. 401. However, during the trial, Chandler argued that several people
had access to the computer and could have made those searches. The admission into evidence ofthe
searches pertaining to demons helped link Chandler to the use of the computer and to the relevant
internet searches. Specifically, the searches regarding demons used language that was similar to
language found in letters written by Chandler to C.F.B.'s mother that were admitted into evidence.
In those letters, Chandler repeatedly mentioned demons and demons of lust.
Accordingly, we cannot conclude that the district court abused its discretion by
overruling Chandler's relevance objection.
When objecting to the admission of the search terms, Chandler also argued that they
should not be admitted due to their prejudicial nature. Under Rule 403, relevant "evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair prejudice."
Id. R. 403. As used in the Rule, the term "probative value" refers to how strongly the evidence
makes the existence of a fact more or less probable and to how much the proponent needs the
evidence, and "unfair prejudice" refers to how likely it is that the admission of the evidence might
result in a decision based on an improper basis, including an emotional one. Davis, 329 S.W.3d
at 806. The Rule "favors admission of relevant evidence and carries a presumption that relevant
evidence will be more probative than prejudicial." Id.
When determining whether evidence should have been excluded, reviewing courts
must bear in mind that trial courts are afforded "an especially high level of deference" for Rule 403
determinations. United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007). After objectively
reviewing the governing criteria, a reviewing court should determine that the trial court abused
its discretion only if the record shows "a risk that the probative value of the tendered evidence
is substantially outweighed by unfair prejudice." Montgomery v. State, 810 S.W.2d 372, 393 (Tex.
Crim.App. 1991) (op. on reh'g). When makingthis determination, a reviewing court shouldconsider
the tendency of the evidence to induce a decision on an improper basis, to confuse the jury or distract
it from the main issues, and "to be given undue weight by a jury that has not been equipped to
evaluate the probative force of the evidence" as well as the amount of time needed to present the
evidence, the evidence's inherent probative value, and the proponent's need for the evidence.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
In this case, Chandler was charged with indecency for exposing himself to his
stepdaughter on more than one occasion. In particular, the testimony and the evidence presented,
including a video of a confession made by Chandler when he was being interviewed by the police
as well as letters written by Chandler to C.F.B.'s mother in which he admits that he committed the
alleged offenses, indicated that Chandler repeatedly removed his clothing andmasturbated in front
of C.F.B. while watching pornographic videos. In addition, the letters written by Chandler to
C.F.B.'s mother reveal that when Chandler performed these acts, he fantasized that C.F.B. was her
mother when she was a teenager. More specifically, the letters revealed that C.F.B.'s mother had
confided in Chandler that she had been repeatedly sexually abused by her uncle when she was
younger and that Chandler was attempting to recreate those events with C.F.B. In light of the
allegations against Chandler and the evidence and testimony presented during trial, we do not
believe that the evidence of internet searches related to demons had a tendency to induce a decision
on an improper basis, to induce the jury to give undue weight to the evidence, or to confuse or
distract the jury.
In addition, as mentioned above, due to the letters that Chandler wrote to C.F.B.'s
mother in which he repeatedly discussed demons, the evidence of search terms regarding demons
and regarding demons having sex with individuals had a tendency to link Chandler to the computer
and to the other searches performed on the computer that were relevant to Chandler's intent.
Moreover, the internet searches were only mentioned during Detective Morgan's testimony, and
in its closing argument, the State did not emphasize the search terms and explained that the searches
were not evidence of a crime and were offered only to show Chandler's intent.
Arguably, the State's need for the evidence and testimony concerning internet
searches for demons was not great given, as mentioned above, that the State presented evidence
showingthat Chandlerhad admittedto committing the offenses. In addition, the State was able to
link Chandler to the internet searches of teenage sexual activity through another means. Regarding
the other link, Detective Morgan testified that an email account with a username corresponding to
Chandler' s full name was being used when the internet searches were performed; however, evidence
that an email program was open and active when the internet searches were performed, without
more, is not necessarily the strongest type of linking evidence.
After objectively reviewing the record and the governing criteria for Rule 403
determinations, we do not believe that the record in this case demonstrates a risk that the probative
value ofthe evidence of the internet searches pertaining to demons was substantially outweighed by
the danger of unfair prejudice. Accordingly, we cannot conclude that the district court abused its
discretion by overruling Chandler's objection asserting that the evidence should not have been
admitted because it was too prejudicial.
Having determined that the district court did not abuse its discretion by overruling
either objection, we overrule Chandler's second issue on appeal.
Effectiveness of Counsel
In his third issue on appeal, Chandler contends that his trial attorney provided
ineffective assistance of counsel. In particular, Chandler argues that his attorney was ineffective
because he failed to object to the portion of Detective Morgan's testimony in which he related that
one of the search terms found on the computer concerned demons "having sex with women today."
Although Chandler acknowledges that his attorney generally objected to the admission of the
exhibit containing the list of all ofthe internet searches recovered from the computer, Chandler insists
that his attorney should have specifically objected to testimony concerning this particular search
and should have argued that the testimony was not relevant and was more prejudicial than probative.
To succeed on an ineffectiveness claim, the defendant must overcome the strong
presumption that his trial "counsel's conduct falls within the wide range of reasonable professional
assistance" and must show that the attorney's "representation fell below an objective standard of
reasonableness ... under prevailing professional norms" and that "there is a reasonable probability
that, but for counsel's unprofessionalerrors,the result of the proceedingwould have been different."
Stricklandv. Washington, 466U.S. 668,688, 689,694 (1984). Evaluations of effectiveness arebased
10
on the totality of the representation. Frangiasv. State, 392 S.W.3d642, 653 (Tex. Crim. App. 2013);
see also Davis v. State, 413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref d) (providing that
assessment should consider cumulative effect ofcounsel's deficiencies). Furthermore, even though
a defendant is not entitled to representation that is error free, a single error can render the
representation ineffective if it "was egregious and had a seriously deleterious impact on the balance
of the representation." Frangias, 392 S.W.3d at 653.
In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness
claims because the record for that type of claim is usually undeveloped. Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005). "This is true with regard to the question of deficient
performance . .. where counsel's reasons for failing to do something do not appear in the record."
Id. (stating that "counsel's conduct is reviewed with great deference, without the distorting effects
of hindsight"). In addition, before their representationis deemed ineffective, trial attorneys should
be afforded the opportunity to explain their actions. Id. If that opportunity has not been provided,
as in this case, an appellate court shouldnot determine that an attorney's performance was ineffective
unless the conduct at issue was "so outrageous that no competent attorney would have engaged in
it." See Garcia v. State, SI S.W.3d 436, 440 (Tex. Crim. App. 2001).
As set out above, Chandler's ineffectiveness claim is based on his trial attorney's
failure to act, and the record before this Court is not sufficiently developed to evaluate the alleged
failure to act because "[n]either [his] counsel nor the State have been given an opportunity to
respondto" the claim. Menefieldv. State, 363 S.W.3d591,593 (Tex. Crim.App. 2012). Moreover,
in the prior issue, Chandler contended that thedistrict court erred byoverruling hisobjections to the
11
admission ofthe list of search terms obtained from the computer in his home. When challenging the
district court's ruling, Chandler contended that those search terms, including the search that is in
dispute in this final issue, were not relevant and were more prejudicial than probative. Ultimately,
we decided that the district court did not abuse its discretion by admitting the evidence. The reasoning
behind our resolution of the prior issue would seem to foreclose Chandler's contention that his trial
counsel was ineffective for failing to specifically raise those same objections to the portion of
Detective Morgan's testimony in which he read the particular search term in dispute here.
Moreover, even though it is not necessary to further address the issue, we do note that
effectivenesschallenges must be considered in light of "the totality of the representation" provided
by the attorney. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). During voir dire,
Chandler's trial attorney discussed the presumption of innocence, the State's burden of proof,
and the reasons why a defendant might choose not to testify. In addition, his attorney extensively
questioned the panelists about their ability to serve on the case and actively participated in the
selection process. During the trial, his attorney successfully moved tohave portions ofthe video of
Chandler's interview with thepolice edited outbefore thevideo wasplayed forthejury,emphasized
the State's burden during his opening statement, cross-examined the State's witnesses, objected to
portions of the testimony offered by the State's witnesses, questioned Chandler's father outside
the presence of the jury to ascertain whether his testimony would be beneficial to Chandler, and
emphasized the elements ofthe jury charge and the State's burden during his closing argument. In
the punishment phase, Chandler's attorney objected to the admission ofevidence regarding logs of
Chandler's misdeeds during his prior incarceration, cross-examined the State's witnesses, argued
12
that Chandler's sexual-impulse-control problem resulted from his prior incarceration, and
undermined the testimony ofthe State's witnesses during his closing argument. Finally, his attorney
asked the district court to order that any punishments imposed for the two counts run concurrently.
In light of the preceding, we overrule Chandler's final issue on appeal.
CONCLUSION
Having overruled Chandler's issues on appeal, we affirm the district court's judgment
of conviction.
David Puryear, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: October 1, 2014
Do Not Publish
13
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MICHAEL RAY CHANDLER JR. # 1875978
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3RD COURT OF APPEALS
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OUT DECEMBER 24, 2014
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