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Darrell Glenn Livingston v. State ( 2008 )


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  • Affirmed and Memorandum Opinion filed May 29, 2008

    Affirmed and Memorandum Opinion filed May 29, 2008.

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-06-01031-CR

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    DARRELL GLENN LIVINGSTON, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the 23rd District Court

    Brazoria County, Texas

    Trial Court Cause No. 47741

     

      

     

    M E M O R A N D U M   O P I N I O N

    A jury convicted appellant Darrell Glenn Livingston of sexual assault of a child and assessed punishment at fifty years in prison and a fine of $10,000.  In six issues, appellant complains of error in the jury charge, legal and factual insufficiency of the evidence, ineffective assistance of counsel, denial of his right to self-representation, prosecutorial vindictiveness, and error in using a remote conviction to enhance his punishment.  We affirm the trial court=s judgment.

     

    I.  Background

    M.M., the complainant and appellant=s sixteen year old niece, testified that during the summer of 2004 she began experimenting with marihuana, cocaine, and pills.  Appellant would supply her with pills and crack cocaine in exchange for M.M. showing her breasts to him.  One evening, appellant took M.M. to get her nails done at a nail salon in Pearland, Texas.  M.M. testified that afterward appellant refused to drive her home unless she Astuck [her] mouth on his penis.@  After initially arguing with appellant, M.M. complied.  M.M. testified that when she Adidn=t want to . . . finish@ with her mouth, appellant told her to put her bare feet Aon his penis and finish him off that way,@ which she did.  This occurred around 9:00 p.m. in the parking lot when most of the nearby stores were closed. According to M.M., at some point drugs were exchanged for the act.

    M.M. testified that some time later she went with appellant to obtain pills, but she did not remember where they went that weekend because she was high.  It is not entirely clear from the trial testimony whether M.M. went with appellant voluntarily or under coercion, but apparently M.M. left with appellant for the entire weekend.  As a result, someone placed a phone call to the Pearland police reporting that M.M. was gone and describing appellant=s truck.  Based on this call, Pearland Police Officer Jose Guzman identified appellant=s truck and pulled him over.  After changing his story a couple of times, appellant gave Officer Guzman an address where he could find M.M.  M.M. initially hid from the police when they arrived at this address, but she eventually allowed them to take her back to the police station.  At this point, M.M. told Pearland Police Officer Cecil Arnold that appellant had forced her to perform oral sex. 

     

    Appellant was charged with intentionally or knowingly penetrating the mouth of a child under the age of seventeen and not his spouse with his sexual organ.  The jury returned a guilty verdict.  At punishment, appellant pleaded true to the enhancement paragraph in the indictment alleging a 1969 conviction of felony theft.  Appellant also stipulated to five additional prior convictions for various offenses.  The jury assessed punishment at fifty years in prison and a $10,000 fine. Appellant filed a motion for new trial and an amended motion for new trial, but the record does not indicate that these motions were presented to the judge or that a hearing was conducted.

    Appellant raises the following six issues on appeal: (1) the trial court erred by submitting a charge to the jury that erroneously defined the elements of the offense with which he was charged, (2) the evidence is legally and factually insufficient to sustain his conviction, (3) he received ineffective assistance of counsel, (4) he was denied his Sixth Amendment right to self-representation, (5) amending the indictment to add an enhancement paragraph after appellant rejected the State=s plea bargain constituted prosecutorial vindictiveness, and (6) the trial court erred by allowing the State to enhance appellant=s sentence with a thirty-six year old conviction.

    II.  Legal and Factual Sufficiency

    A. Standard of Review

    In his second issue, appellant contends the evidence is both legally and factually insufficient to support the jury=s finding that he committed the offense of sexual assault of a child as charged in the indictment.  In determining whether legally sufficient evidence supports a verdict, we ask if, after reviewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979); King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  In determining factual sufficiency of the evidence when the State has the burden of proof, the reviewing court views all the evidence in a neutral light. See Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000).  We will reverse only if the evidence is so weak that the finding seems clearly wrong and manifestly unjust, or if after considering conflicting evidence, the finding, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence.  See Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006).

     

    B.  Analysis

    Appellant claims the evidence is legally and factually insufficient on several grounds.  We first address his argument that the evidence is insufficient to support a finding that he penetrated M.M=s mouth, as alleged in the indictment.

    Section 22.011 of the Texas Penal Code describes two means by which a person may commit sexual assault of a child.  One method involves intentionally or knowingly causing the mouth of a child younger than seventeen to contact the sexual organ of the actor.  Tex. Penal Code Ann. _ 22.011(a)(2)(E) (Vernon Supp. 2007).  The other involves causing the penetration of the child=s mouth by the actor=s sexual organ.  Id. _ 22.011(a)(2)(B).  Because section 22.011 is a conduct-oriented statute, each form of conduct described constitutes a separate statutory offense.  See Mathonican v. State, 194 S.W.3d 59, 66 (Tex. App.CTexarkana 2006, no pet.) (holding that section 22.011 of the Texas Penal Code is a conduct‑oriented statute prohibiting distinct yet very specific acts, with each act proscribed constituting an independent unit of prosecution).  Appellant claims that although the indictment alleged that he caused the penetration of M.M.=s mouth with his sexual organ, at most, the evidence presented at trial supported a finding that he contacted M.M.=s mouth, an offense with which he was not charged.  Appellant emphasizes that during voir dire, presentation of the evidence, and closing argument, the State focused on contact instead of penetration.  

     

    We conclude a reasonable factfinder could have determined, beyond a reasonable doubt, that appellant penetrated M.M.=s mouth with his sexual organ.  The State may prove penetration by circumstantial evidence.  See Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990).  The slightest evidence of penetration is sufficient to uphold a conviction so long as it has been shown beyond a reasonable doubt.  See Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974).  M.M. testified that in response to appellant=s command, she Astuck@ her Amouth on his penis.@  Later M.M. testified she Aput@ her mouth on appellant=s penis.  The Miriam Webster Dictionary defines Amouth@ as Athe natural opening through which food passes into the body of an animal and which . . . is typically bounded externally by the lips . . . .@  The mouth, therefore, is a hole or cavity.  A reasonable jury could have concluded that for M.M. to stick her mouth Aon@ appellant=s penis, this necessitated appellant=s penis entering M.M.=s mouth. 

    Moreover, juries are permitted to make reasonable inferences from the evidence.  Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).  They may use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. See Jones v. State, 900 S.W.2d 392, 399 (Tex. App.CSan Antonio 1995, writ ref=d).  M.M. testified that appellant told her they Aweren=t going to drive home unless I stuck my mouth on his penis.@  The prosecutor asked M.M. if her mouth Acame in contact with his sexual organ,@ and M.M. said it did.  M.M. testified the when she Adidn=t want to . . . finish@ with her mouth, appellant told her to put her bare feet Aon his penis and finish him off that way.@  During cross examination, defense counsel asked M.M., AYou were having oral sex with [appellant]?@ to which M.M. responded, AIt was - - yes, ma=am.@  Although M.M. did not specifically use the word Apenetration,@ the victim need not so testify.  See Villalon, 791 S.W.2d at 133. Further, the jury could have reasonably inferred from the evidence that M.M. performed oral sex on appellant and that during the act appellant=s penis penetrated M.M.=s mouth.  See Jones, 900 S.W.2d at 399B400 (holding that despite lack of direct testimony, evidence was sufficient to support finding of contact or penetration because jury could infer such from complainant=s testimony that defendant played Ahorsey@ with her and it hurt when appellant touched his penis to her behind).  We conclude the evidence was legally sufficient to support a finding that appellant penetrated M.M.=s mouth with his sexual organ.

     

    Appellant next contends the State failed to prove beyond a reasonable doubt the venue, the date of the incident, the complainant=s age, and that the complainant was not appellant=s wife. Evidence of venue is sufficient if the jury may reasonably conclude that the offense was committed in the county alleged.  Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964); Sudds v. State, 140 S.W.3d 813, 818 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (applying Rippee standard).  The Aon or about@ language in the indictment allows the prosecution to prove a date other than the one alleged in the indictment, as long as the date proved is prior to the date on which the indictment was presented and is within the statutory limitation period.  See Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 1989); Tex. Code Crim. Proc. Ann. art. 12.01(1)(B) (Vernon Supp. 2007) (no time limit for bringing charge for sexual assault under section 22.011(a)(2)); Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997).  Evidence of a complainant=s age is sufficient if the complainant testifies she was under the age of seventeen on the date of the offense.  See Jason v. State, 589 S.W.2d 447, 449 (Tex. Crim. App. 1979).  

    M.M. testified that the alleged offense occurred in the parking lot of a nail shop in Pearland, Texas and that Pearland is located in Brazoria County.  The indictment alleged the offense took place Aon or about the 25th day of August, 2004,@ and M.M. testified that the alleged offense occurred in the summer of 2004.  M.M. testified that she was sixteen during the summer of 2004 and that she was under the age of seventeen at the time of the alleged offense.[1] Finally, although M.M. stated appellant sometimes referred to her as his wife, she also testified that he did this as a joke and that she had never been married to appellant.  M.M.=s testimony was sufficient to prove the elements of venue, the date of the incident as alleged in the indictment, that M.M. was under the age of seventeen, and that M.M. was not appellant=s wife.  See Tex. Code Crim. Proc. Ann. art. 21.02(6); Jason, 589 S.W.2d at 449; Sudds, 140 S.W.3d at 818.

     

    Finally, appellant claims that because the primary evidence of his guilt came from the uncorroborated testimony of a complainant who was not credible, the evidence is insufficient to support a finding of guilt. M.M. testified that during the summer of 2004, she was so addicted to drugs that at times she was unaware of what was going on around her.  Appellant argues that if M.M. was not aware of the events as they occurred, it is implausible that she could accurately recall them at trial two years later.

    M.M. testified unequivocally to the details of the alleged offense, that she had completed a drug treatment program, that she was not using drugs at the time of the trial, and that she was being honest with the jury regarding what happened in 2004.  The jury chose to believe M.M.=s testimony, and we decline to intrude upon the jury=s role as the sole judge of the weight and credibility of witness testimony.  See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Moreover, a conviction for sexual assault of a child under section 22.011 of the Texas Penal Code may be supported by the uncorroborated testimony of the victim alone, if reported within a year of the offense.  See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005).  M.M. reported the incident approximately a month after it occurred. Appellant=s contention that the evidence was legally and factually insufficient because M.M.=s uncorroborated testimony lacked credibility is therefore without merit.

    Viewing the evidence in a light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant committed each element of the offense of sexual assault of a child under the age of seventeen.  See King, 895 S.W.2d at 703.  Viewing the same evidence in a neutral light, we hold that the proof of guilt was not so obviously weak as to undermine our confidence in the jury=s determination and that the proof of appellant=s guilt was not greatly outweighed by contrary evidence.  See Watson, 204 S.W.3d at 414B15. Accordingly, we hold that the evidence was legally and factually sufficient to support appellant=s conviction for the offense of sexual assault of a child.  We overrule appellant=s second issue.

    III.  The Jury Charge

     

    In his first issue, appellant contends the trial court erred by submitting a jury charge  in which the abstract portion of the charge included a definition of sexual assault not charged in the indictment.  Because appellant did not raise this objection at trial, he must establish that egregious harm arose from the alleged error, that is, that he was denied a fair trial.  See Medina v. State, 7 S.W.3d 633, 639 (Tex. Crim. App. 1999).  The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole.  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).  Under the Almanza standard, the record must show that a defendant has suffered actual, rather than merely theoretical, harm from the jury instruction error.  Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005).  Absent a showing to the contrary, we may presume that the jury acted rationally.  Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993).

     

    The indictment tracked the language of section 22.011(a)(2)(B) of the Texas Penal Code and charged appellant with Aintentionally or knowingly caus[ing] the penetration of the mouth of . . . a child younger than seventeen (17) years of age and not the defendant=s spouse, by the sexual organ of the defendant.@  Tex. Penal Code Ann. _ 22.011(a)(2)(B) (emphasis added).  The application paragraph mirrored the indictment.[2]  However, the abstract portion of the jury charge defined the proscribed conduct as Aintentionally or knowingly caus[ing] the actor=s sexual organ to contact the mouth of a child,@ as defined in section 22.011(a)(2)(E).  Id. _ 22.011(a)(2)(E) (emphasis added).  According to appellant, this charge error caused egregious harm because it lessened the State=s burden of proof and authorized his conviction if the jury found that he only contacted, rather than penetrated,  M.M.=s mouth.[3]  Appellant claims the prosecutor=s comments during voir dire and closing argument in the guilt-innocence phase regarding contact with M.M.=s mouth further misled the jury to conclude they could find appellant guilty if the evidence merely proved contact.

     

    We disagree that the purported error was so egregious and created such harm that appellant was deprived of a fair and impartial trial.  We have already determined that the weight of the probative evidence was legally and factually sufficient to support a finding of penetration.  In addition, despite the language in the abstract section, the jury charge still correctly informed the jury as to the elements of the offense.  The application paragraph clearly and properly instructed the jury that they must find beyond a reasonable doubt that appellant Aintentionally or knowingly cause[d] the penetration of the mouth of [M.M.]@ before they could convict.  Where the application paragraph properly instructs the jury, error in the abstract does not rise to the level of egregious harm.  See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (holding that because application paragraph correctly instructed jury, error in abstract instruction was not egregious); Williams v. State, 226 S.W.3d 611, 618 (Tex. App.CHouston [1st Dist.] 2007, no pet.) (same). Finally, the application paragraph tracked the indictment, both of which limited the offense to penetration.  See Edwards v. State, 228 S.W.3d 450, 454 (Tex. App.CAmarillo 2007, pet. ref=d) (finding no egregious harm where abstract definition differed from application paragraph of jury charge, but application paragraph tracked indictment and record supported conviction).  Although the prosecutor referred to contact rather than penetration during voir dire and closing argument, the indictment language and application paragraph restricted the jury=s consideration to only those allegations contained in the indictment.  Because we conclude a rational jury would have understood that a finding of penetration was necessary to convict appellant, we hold that the error in the charge did not deprive appellant of a fair and impartial trial.  See Almanza, 686 S.W.2d at 171.  We overrule appellant=s first issue.

    IV.  Amendment of the Indictment

    In his sixth issue, appellant claims the trial court erred in allowing the State to amend the indictment to add an old conviction because it denied appellant equal application of the law, deprived him of the protection afforded all defendants, and resulted in a punishment range that was unfair.  In his fifth issue, appellant contends that by adding the enhancement paragraph, the prosecutors retaliated against him for abandoning the plea agreement and asserting his constitutional right to trial. 

    According to the record, the State filed its Notice of Enhancement Paragraph on October 14, 2005, informing appellant of the State=s intent to use his thirty-six year old felony theft conviction to seek an enhanced sentence.  Almost one year later, on September 18, 2006, appellant entered a plea agreement with the State.  On September 19, 2006, the State moved to amend the indictment to add an enhancement paragraph alleging the felony theft conviction.  The record is unclear as to the precise date, but at some point between September 18 and 22, appellant withdrew from the plea agreement.  At a hearing on the State=s Motion to Amend the Indictment, appellant objected to amending the indictment.  The court overruled appellant=s objection and granted the State=s motion.

    The Texas Court of Criminal Appeals has directly addressed this issue and held that prior convictions may be used to enhance, no matter how remote.  See Joles v. State, 563 S.W.2d 619, 621B22 (Tex. Crim. App. 1978) (holding that a previous DWI conviction could be used for enhancement purposes, no matter how remote); Hicks v. State, 545 S.W.2d 805, 810 (Tex. Crim. App. 1977) (holding remote convictions may be utilized for enhancement purposes).  We conclude the trial court did not abuse its discretion by allowing the State to amend the indictment with an enhancement paragraph alleging a thirty-six year old conviction.  We overrule appellant=s sixth issue.

     

    Next, in his fifth issue appellant raises a claim of prosecutorial vindictiveness with respect to the amended indictment. Prosecutors have broad discretion in deciding which cases to prosecute.  Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004).  Courts must presume that a criminal prosecution is undertaken in good faith and in nondiscriminatory fashion to fulfill the State=s duty to bring violators to justice.  Id.  However, a decision to prosecute violates due process when criminal charges are brought in retaliation against the defendant for exercising his legal rights.  Id.  Appellant points to the State=s Motion to Amend the Indictment, filed the day after he withdrew from the plea agreement, as evidence of the prosecutors= vindictiveness.  The State argues that because appellant raises his prosecutorial misconduct claim for the first time on appeal, he has failed to preserve error with respect to this issue.  We agree.

    Appellant objected to amending the indictment based on the remoteness of the conviction, the lack of similarity between the offenses, his youthful age at the time of the older felony theft offense, that under current laws the offense would likely be a misdemeanor or state jail felony, and that appellant had no other felony convictions between the prior conviction and present offense.  At no point did appellant raise an objection on grounds of prosecutorial misconduct or due process violation.  See Tex. R. App. P. 33.1.  We hold that because appellant never presented his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review.  See id.; Neal, 150 S.W.3d at 180 (holding appellant waived argument on appeal because he failed to raise prosecutorial misconduct claim in trial court).  We overrule appellant=s fifth issue.

    V.  Ineffective Assistance of Counsel

    A. Standard of Review

     

    In his third issue, appellant claims his trial counsel=s performance fell below a reasonable professional standard.  Ineffective assistance of counsel claims are governed by the two‑pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984).  To prove ineffective assistance, appellant must show by a preponderance of the evidence (1) that counsel=s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland, 466 U.S. at 687B96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  A Strickland claim must be firmly founded in the record, and the record must affirmatively demonstrate the meritorious nature of the claim.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).  Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Id.  Where counsel=s reasons for failing to do something do not appear in the record, we review counsel=s conduct with great deference and without the distorting effects of hindsight.  Id.  Absent an opportunity for a trial attorney to explain his actions, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.  Id.

    B.  Analysis

     

    Appellant begins by listing several instances when trial counsel allegedly rendered ineffective assistance.  He claims counsel (1) failed to formulate a sound trial strategy, (2) failed to be prepared to defend against other extraneous offenses, (3) made prejudicial statements to the jury, (4) opened the door to extraneous offenses during cross examination of the complainant, (5) proved up the complainant=s age when the prosecution failed to do so, and (6) failed to request an instruction to strike the testimony of a State witness.  Appellant also alleges counsel failed to object to (1) prejudicial and incorrect statements during voir dire, (2) prejudicial and leading questions asked by the prosecution during trial, (3) amendment of the indictment on grounds of prosecutorial vindictiveness,[4] (4) improper, incorrect, and prejudicial statements during closing arguments at the guilt-innocence phase, (5) error in the jury charge, (6) procedural error when the enhancement paragraph of the indictment was not read at the start of the punishment phase, and (7) improper and inflammatory questions and comments posed by the prosecution during the punishment phase.  Finally, appellant claims that counsel=s trial strategy was unreasonable, implausible, and unsound.  In support of this argument, appellant claims counsel (1) attempted to portray the sexual assault as consensual, despite the fact that a child under the age of seventeen cannot consent, (2) failed to develop the theory that the complainant was lying about the offense, (3) failed to adequately prepare for trial by locating witnesses and preparing appellant to testify, and (4) allowed the prosecution to control the direction and tempo of the trial, as evidenced by inadmissible and prejudicial evidence that was admitted without objection.

    An appellant=s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.  See Tex. R. App. P. 38.1(h).  When an appellant fails to make a viable complaint with argument and authorities, the appellate court is not required to perform an independent review of the record and applicable law to determine whether the error complained of occurred. See Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex. App.CHouston [1st Dist.] 1995, no pet.).  Such failure to adequately brief an issue results in waiver on appeal.  See Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003). 

     

    Appellant makes conclusory assertions that the above conduct was deficient, but he fails to provide any argument or authority supporting these allegations.  Regarding counsel=s numerous alleged failures to object, appellant fails to identify the specific objection that counsel should have made and provide authority in support of his argument that the objection would have been meritorious.  See Melonson v. State, 942 S.W.2d 777, 782 (Tex. App.CBeaumont 1997, no writ) (overruling claim of ineffective assistance for failure to object to leading questions because appellant did not specify objections counsel should have made or provide supporting legal authority for making those objections).  He also fails to provide any argument or authority illustrating how counsel=s alleged deficiencies prejudiced the outcome of the proceedings.  See Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006) (noting that failure to set forth any legal or factual arguments regarding how counsel=s alleged failures prejudiced appellant authorized court to deny relief based on briefing waiver); Thomas v. State, No. 14-06-00540-CR, 2008 WL 596228, at *5 (Tex. App.CHouston [14th Dist.] Mar. 6, 2008, no pet.) (mem. op., not designated for publication) (overruling ineffective assistance claim, even though facts indicated that counsel=s performance fell below prevailing professional norms, because appellant failed to present facts and legal authority demonstrating prejudice); Bessey v. State, 199 S.W.3d 546, 555 (Tex. App.CTexarkana 2006) (finding briefing waiver where appellant made no effort to show how record demonstrated prejudice under Strickland=s second prong), aff=d, 239 S.W.3d 809 (Tex. Crim. App. 2007).  Appellant failed to adequately brief these claims on appeal, thus they are waived. 

     

    Even if appellant did adequately brief these arguments, he has not rebutted the presumption that counsel=s conduct was motivated by sound trial strategy.  In the absence of direct evidence of counsel=s reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined.  See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).  Counsel=s allegedly prejudicial statements may have been motivated by a reasonable trial strategy to gain credibility with the jury by admitting the heinous nature of the alleged offense.  See Turner v. State, 932 S.W.2d 622, 626 (Tex. App.CHouston [14th Dist.] 1996, no writ) (recognizing attempt to appear open and honest to jury as a plausible trial strategy).  To show ineffective assistance for failure to object during trial, appellant must show the trial judge would have committed error in overruling the objection.  Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004).  Appellant makes no attempt to show how the objections he claims counsel should have made would have been meritorious.  Morever, the failure to object can be a valid trial strategy.  See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (finding failure to object not ineffective because counsel may have reasonably decided an objection was not appropriate); Johnson v. State, 233 S.W.3d 109, 116 (Tex. App.CHouston [14th Dist.] 2007, no pet.) (presuming, absent a contrary showing in the record, that counsel=s failure to object to State=s argument was part of a valid, considered trial strategy); Hernandez v. State, 127 S.W.3d 206, 215 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (holding decision to not object to testimony by detective that he thought appellant had lied to him could have been valid trial strategy); Henderson v. State, 704 S.W.2d 536, 538 (Tex. App.CHouston [14th Dist.] 1986, writ ref=d) (holding that not objecting to prosecutor=s opening statement could have been trial strategy and that failure to object to every introduction of improper evidence or questioning does not indicate ineffective representation).  Finally, appellant argues that counsel failed to formulate a valid trial strategy. However, beyond this general assertion he makes no effort to call our attention to any evidence counsel could have presented or explain how the strategy could have been further developed.  This is insufficient to support an ineffective assistance claim.  See Goodspeed, 187 S.W.3d at 392.

    We hold appellant has not satisfied his burden on appeal of rebutting the strong presumption that his counsel acted reasonably, nor has he shown a reasonable probability that but for counsel=s alleged failures the outcome of the proceeding would have been different.  See Strickland, 466 U.S. at 687; Green v. State, 191 S.W.3d 888, 895 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (holding that where record did not illustrate why counsel did not object, appellant failed to rebut presumption that counsel was effective).  We overrule appellant=s third issue.

    VI.  Right to Self-Representation

     

    In his fourth issue, appellant claims the trial court deprived him of his Sixth Amendment right to self-representation by failing to conduct a hearing and rule on pre-trial motions appellant filed in a pro se capacity.  The Sixth Amendment guarantees an accused the right to forego counsel and represent himself.  See Williams v. State, ___ S.W.3d ___, 2008 WL 141910, at *2 (Tex. Crim. App. Jan. 16, 2008).  However, the right to self‑representation does not attach until it has been clearly and unequivocally asserted.  See id.

    Appellant filed numerous pre-trial motions, including a Motion to Dismiss Court-Appointed Counsel, a Motion to Require Defendant to Assist Counsel in Pro-Se at Every Stage of the Proceedings Herein, and Defendant=s Continuing Motion for the Trial Court to Make Specific Rulings on All Defense Motions.  The trial court did not rule on any of these motions.  Appellant claims that through these motions he waived his right to counsel and asserted his right to proceed pro se.  The State contends that appellant failed to preserve error on this issue because appellant never clearly asserted his desire to represent himself.  The State further argues that even if appellant did assert this right, he waived it by proceeding to trial with his court-appointed counsel without objection.  We agree.

     

    In his Motion to Dismiss Court-Appointed Counsel, appellant asked the trial court to dismiss his court-appointed counsel and appoint new counsel from a list of three names he provided.  In his Motion to Require Defendant to Assist Counsel, appellant requested that he be permitted to assist his counsel Ain a pro-se status at every stage of the trial proceedings.@[5]  The Motion for the Trial Court to Make Specific Rulings asked the trial court to rule on appellant=s other motions.  Nowhere in these motions does appellant expressly state a desire to proceed solely in a pro se status without any assistance from an attorney.  We conclude appellant=s motions did not clearly and unequivocally assert his right to self-representation.  See Nelson v. State, No. 11‑03‑00235‑CR, 2005 WL 2156630, at *2B3 (Tex. App.CEastland Sept. 8, 2005, pet. dism=d) (not designated for publication) (holding that filing a motion to act as co‑counsel does not clearly and unequivocally assert right to self‑representation); Thomas v. State, No. 05‑04‑01289‑CR, 2006 WL 1624393, at *2 (Tex. App.CDallas June 13, 2006, pet. ref=d) (mem. op., not designated for publication) (finding that defendant who told trial court he did not agree with counsel=s strategy and did not want that attorney representing him, but who made no request that he be allowed to represent himself without counsel, failed to assert his right to proceed pro se). 

    Moreover, even if these motions could be construed as clearly and unequivocally asserting the right to proceed pro se, we find appellant waived this right.  By proceeding to trial and allowing counsel to represent him without objection and without expressing an unwavering desire to conduct his own defense, appellant waived any inferred request for self-representation.  See Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986) (holding that waiver of right to self-representation may be found if it reasonably appears to court that defendant has abandoned his initial request to represent himself).  We overrule appellant=s fourth issue.

    We affirm the trial court=s judgment.

     

     

    /s/ Leslie B. Yates

    Justice

     

     

    Judgment rendered and Memorandum Opinion filed May 29, 2008.

    Panel consists of Justices Yates, Guzman, and Lee.*

    Do Not Publish C Tex. R. App. P. 47.2(b).

     

    * Senior Justice Norman Lee sitting by assignment.


    [1]  Appellant=s counsel also asked M.M. about her age, and she confirmed that she was sixteen when she went with appellant to get her nails done.  As we will discuss later, appellant claims his counsel rendered ineffective assistance by having the complainant prove up her age.  Even without this additional evidence, we conclude the State put forth sufficient evidence of M.M.=s age.

    [2]  If you believe from the evidence beyond a reasonable doubt, that the defendant . . . as alleged in the indictment, did then and there intentionally or knowingly cause the penetration of the mouth of . . . a child younger than seventeen (17) years of age and not the defendant=s spouse, by the sexual organ of the defendant, then you will find the defendant guilty. . . . (emphasis added).

     

    [3]  As stated above, section 22.011 of the Texas Penal Code is a conduct‑oriented statute that prohibits distinct yet very specific acts, with each act proscribed constituting an independent unit of prosecution.  See Mathonican, 194 S.W.3d at 66.

     

    [4]  We have already determined that amending the indictment was not a retaliative act against appellant for exercising his right to a jury trial.  Failure to make a frivolous objection is not ineffective assistance.  See Edmond v. State, 116 S.W.3d 110, 115 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).

    [5]  This motion was apparently a request that defendant be allowed to assist counsel during trial.  While a trial court has discretion to permit hybrid representation, there is no absolute right to such representation.  See Ganther v. State, 187 S.W.3d 641, 648 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d).