Desmond Ledet v. State ( 2013 )


Menu:
  •                            COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-10-00281-CR
    DESMOND LEDET                                                       APPELLANT
    V.
    THE STATE OF TEXAS                                                        STATE
    ----------
    FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
    ----------
    MEMORANDUM OPINION 1
    ----------
    Appellant filed an appeal of his sexual assault conviction and twenty-year
    sentence.      He brings five points alleging ineffective assistance of his trial
    counsel, one point contending that the State used perjured testimony, and one
    point contending that the evidence is insufficient to support his conviction. We
    affirm.
    1
    See Tex. R. App. P. 47.4.
    Sufficiency of the Evidence
    In his seventh point, appellant claims that the evidence is insufficient to
    support his conviction.
    In our due-process review of the sufficiency of the evidence to support a
    conviction, we view all of the evidence in the light most favorable to the verdict to
    determine whether any rational trier of fact could have found the essential
    elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789 (1979); Isassi v. State, 
    330 S.W.3d 633
    , 638
    (Tex. Crim. App. 2010).
    According to appellant, the complainant testified to facts that supported
    only the offense of aggravated sexual assault, not the lesser-included offense of
    sexual assault. The complainant testified that appellant approached her in his
    truck at Jasmine Food Store on East Berry Street in Fort Worth and asked if she
    wanted a ride; she was walking to find a telephone, so she agreed. She also
    said that appellant told her he needed to stop at a friend’s house along the way.
    Appellant drove to an apartment complex and left the complainant alone in the
    truck for about five minutes. When he returned, he drove to the back of the
    complex, and the complainant started to feel nervous. She told appellant that
    she would find another way home.
    According to the complainant, when she tried to step out of the truck,
    appellant pulled a gun from the driver’s side door, pointed it at her, told her to get
    back in the truck, and threatened to kill her if she screamed.
    2
    The complainant testified that appellant told her to pull off her panties; she
    began to beg him not to “do this.” Appellant became more aggressive, pulled off
    the complainant’s panties, ordered her to face backward in the seat, placed his
    hands around her neck, and forced her to have sex with him. Appellant then got
    back in the driver’s seat and drove off with the complainant still in the truck. She
    jumped out on a bridge and ran across the street to a pay phone where she
    called 911.
    The evidence shows that police took the complainant to the hospital where
    hospital personnel performed a sexual assault examination.              Semen with
    unidentified DNA was taken from the complainant’s vagina, ankle, and panties
    and preserved; that DNA was determined to originate from appellant after the
    complainant identified him in a photo lineup approximately five years later.
    This evidence is sufficient to prove the elements of sexual assault: that
    appellant intentionally or knowingly caused the penetration of the complainant’s
    sexual organ without her consent by compelling her to submit or participate by
    the use of physical force or violence. See Tex. Penal Code Ann. § 22.011 (West
    2011); Horne v. State, 
    46 S.W.3d 391
    , 394 (Tex. App.––Fort Worth 2001, pet.
    ref’d). 2   Moreover, because sexual assault is a lesser-included offense of
    2
    Appellant contends that because the jury charge submitted instructions on
    both aggravated sexual assault and sexual assault, and because the jury found
    him guilty of only sexual assault, the jury effectively acquitted him of using a gun,
    the aggravating element. The complainant had testified that she did not know
    whether the gun was real or not, or if it was real, whether it was loaded.
    Nevertheless, there is sufficient evidence, even without the gun, that appellant
    3
    aggravated sexual assault, if the complainant’s testimony was sufficient to
    support the greater offense, her testimony necessarily also proved the lesser
    offense. See Wasylina v. State, 
    275 S.W.3d 908
    , 909–10 (Tex. Crim. App. 2009)
    (explaining difference between whether lesser-included offense instruction
    warranted and sufficiency of the evidence to prove lesser-included offense). We
    overrule appellant’s seventh point.
    Ineffective Assistance
    In his first through fourth and sixth points, appellant contends that his trial
    counsel was ineffective.
    Standard of Review
    To establish ineffective assistance of counsel, the appellant must show by
    a preponderance of the evidence that his counsel’s representation fell below the
    standard of prevailing professional norms and that there is a reasonable
    probability that, but for counsel’s deficiency, the result of the trial would have
    been different. Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    ,
    2064 (1984); Davis v. State, 
    278 S.W.3d 346
    , 352 (Tex. Crim. App. 2009).
    In evaluating the effectiveness of counsel under the first prong, we look to
    the totality of the representation and the particular circumstances of each case.
    Thompson v. State, 
    9 S.W.3d 808
    , 813 (Tex. Crim. App. 1999). The issue is
    whether counsel’s assistance was reasonable under all the circumstances and
    used physical force or violence to compel the complainant to participate without
    her consent.
    4
    prevailing professional norms at the time of the alleged error. See 
    Strickland, 466 U.S. at 688
    –89, 104 S. Ct. at 2065. Review of counsel’s representation is
    highly deferential, and the reviewing court indulges a strong presumption that
    counsel’s conduct fell within a wide range of reasonable representation. Salinas
    v. State, 
    163 S.W.3d 734
    , 740 (Tex. Crim. App. 2005); Mallett v. State, 
    65 S.W.3d 59
    , 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a
    position on direct appeal to fairly evaluate the merits of an ineffective assistance
    claim. 
    Salinas, 163 S.W.3d at 740
    ; 
    Thompson, 9 S.W.3d at 813
    –14. “In the
    majority of cases, the record on direct appeal is undeveloped and cannot
    adequately reflect the motives behind trial counsel’s actions.”         
    Salinas, 163 S.W.3d at 740
    (quoting 
    Mallett, 65 S.W.3d at 63
    ). To overcome the presumption
    of reasonable professional assistance, “any allegation of ineffectiveness must be
    firmly founded in the record, and the record must affirmatively demonstrate the
    alleged ineffectiveness.” Id. (quoting 
    Thompson, 9 S.W.3d at 813
    ). It is not
    appropriate for an appellate court to simply infer ineffective assistance based
    upon unclear portions of the record. Mata v. State, 
    226 S.W.3d 425
    , 432 (Tex.
    Crim. App. 2007).
    The second prong of Strickland requires a showing that counsel’s errors
    were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
    reliable result. 
    Strickland, 466 U.S. at 687
    , 104 S. Ct. at 2064. In other words,
    appellant must show there is a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would have been different. 
    Id. 5 at
    694, 104 S. Ct. at 2068
    . A reasonable probability is a probability sufficient to
    undermine confidence in the outcome. 
    Id. The ultimate
    focus of our inquiry must
    be on the fundamental fairness of the proceeding in which the result is being
    challenged. 
    Id. at 697,
    104 S. Ct. at 2070.
    Suppression of Pretrial Statements
    Appellant’s first through fourth points relate to his second trial counsel’s
    failure to file a motion to suppress statements appellant made to the police in
    2009 and that second counsel’s failure to pursue a motion to suppress that
    appellant’s prior counsel had filed. According to appellant, his statements to
    police should have been suppressed because he invoked his Fifth Amendment
    right to remain silent and because he had invoked his Fifth Amendment right to
    counsel.
    The clerk’s record contains a form signed by appellant and the magistrate,
    entitled, “RIGHT TO COUNSEL,” which states, “DO YOU WANT A COURT-
    APPOINTED LAWYER?” The box that was checked reads as follows:
    YES, I BELIEVE THAT I AM ENTITLED TO AN APPOINTED
    LAWYER. I have been advised by the court of my right to
    representation by a lawyer for the charge pending against me. I
    certify that I am without means to employ a lawyer of my own
    choosing and I now request the court to select and appoint a lawyer
    for me. I understand that I may be required to repay Tarrant County
    for a court-appointed lawyer at a later time, under such terms as a
    court may determine based on my future financial status.
    6
    When appellant was later interviewed by officers, without counsel present, they
    warned him of his Miranda rights, but he did not request counsel at that time in
    connection with the subsequent questioning.
    Once a person invokes his right to have counsel present during custodial
    interrogation, a valid waiver of that right cannot be established by merely
    showing that the suspect responded to police-initiated interrogation after being
    advised of his rights again. Edwards v. Arizona, 
    451 U.S. 477
    , 485, 
    101 S. Ct. 1880
    , 1885 (1981); Pecina v. State, 
    361 S.W.3d 68
    , 75 (Tex. Crim. App.), cert.
    denied, 
    133 S. Ct. 256
    (2012). This prophylactic rule protects a suspect who has
    made the decision not to speak to law-enforcement officers without his lawyer
    and who has clearly communicated that decision to the police from further police
    badgering. 
    Pecina, 361 S.W.3d at 75
    .
    It is the police officer or other law-enforcement agent who administers
    Miranda warnings, and he or she does so immediately before custodial
    interrogation. Miranda v. Arizona, 
    384 U.S. 436
    , 444–45, 
    86 S. Ct. 1602
    , 1612
    (1966); 
    Pecina, 361 S.W.3d at 75
    .       Thus, the police must give the Fifth
    Amendment Miranda warnings during the process of custodial interrogation but
    before questioning actually begins. 
    Miranda, 384 U.S. at 473
    –74, 86 S. Ct. at
    1627; 
    Pecina, 361 S.W.3d at 75
    –76. But the United States Supreme Court has
    never accepted the notion of an anticipatory invocation of Miranda rights
    (1) given by someone other than law-enforcement officers or other state agents
    or (2) outside the context of custodial interrogation. McNeil v. Wisconsin, 501
    
    7 U.S. 171
    , 182 n.3, 
    111 S. Ct. 2204
    , 2211 n.3 (1991); 
    Pecina, 361 S.W.3d at 76
    .
    A preliminary hearing will not usually involve such a custodial interrogation
    context. 
    McNeil, 501 U.S. at 182
    n.3, 111 S. Ct. at 2211 
    n.3; 
    Pecina, 361 S.W.3d at 76
    .
    Thus, “a defendant who does not want to speak to the police without
    counsel present need only say as much when he is first approached and given
    the Miranda warnings.” Montejo v. Louisiana, 
    556 U.S. 778
    , 794, 
    129 S. Ct. 2079
    , 2090 (2009). And if he does invoke his Fifth Amendment right to counsel,
    “not only must the immediate contact end, but ‘badgering’ by later requests is
    prohibited.” 
    Id. at 794–95,
    129 S. Ct. at 2090.
    Because there is no evidence that appellant invoked his Fifth Amendment
    right to have counsel present for police questioning during the course of a
    custodial interrogation, under the Court of Criminal Appeals’s analysis of this
    issue in Pecina, he would not have prevailed on a motion to suppress on the
    ground he raises in his appeal; thus, counsel was not ineffective under Strickland
    for failing to pursue a motion to suppress on that basis. See 
    Pecina, 361 S.W.3d at 76
    ; Jackson v. State, 
    973 S.W.2d 954
    , 957 (Tex. Crim. App. 1998). Moreover,
    even if counsel had pursued such a motion and prevailed, there is not a
    reasonable probability the outcome of the trial would have been different. See,
    infra, Majority Op. at 10–11.
    Contrary to the concurring opinion’s claim that our opinion is advisory as it
    relates to addressing the likely success of his motion to suppress, appellant
    8
    raises the point in the context of his claim of ineffective assistance of counsel.
    As the concurrence knows, under Strickland, this requires us to evaluate whether
    but for counsel’s alleged errors, the result of the proceeding would be different.
    
    Strickland, 466 U.S. at 687
    , 
    694, 104 S. Ct. at 2064
    , 2068. As the Supreme
    Court stated in Strickland,
    there is no reason for a court deciding an ineffective assistance
    claim to approach the inquiry in the same order or even to address
    both components of the inquiry if the defendant makes an
    insufficient showing on one. In particular, a court need not
    determine whether counsel’s performance was deficient before
    examining the prejudice suffered by the defendant as a result of the
    alleged deficiencies. The object of an ineffectiveness claim is not to
    grade counsel’s performance. If it is easier to dispose of an
    ineffectiveness claim on the ground of lack of sufficient prejudice,
    which we expect will often be so, that course should be followed.
    Courts should strive to ensure that ineffectiveness claims not
    become so burdensome to defense counsel that the entire criminal
    justice system suffers as a result.
    
    Id. at 697,
    104 S. Ct. at 2069; see also Ex parte Martinez, 
    330 S.W.3d 891
    , 901
    (Tex. Crim. App.) (“The two prongs of Strickland need not be analyzed in a
    particular order . . . .”), cert. denied, 
    131 S. Ct. 3073
    (2011); Smith v. State, 
    286 S.W.3d 333
    , 342 (Tex. Crim. App. 2009) (declining to analyze whether first prong
    of Strickland met because second prong was not). And Thompson specifically
    states that the failure to make the required showing of “either deficient
    performance    or   sufficient   prejudice       defeats   the   ineffectiveness   claim.”
    
    Thompson, 9 S.W.3d at 813
    (emphasis added).
    While the concurring opinion is correct that appellant’s motion to suppress
    was not litigated at trial, we are required to evaluate its likely success to evaluate
    9
    appellant’s point on appeal:     counsel’s effectiveness in light of his failure to
    pursue the motion to suppress at trial. Thus, our opinion on the likelihood of the
    success of that motion is not advisory. See 
    Smith, 286 S.W.3d at 342
    .
    We overrule appellant’s first point.
    In his second through fourth points, appellant contends counsel was
    ineffective for failing to object to, and move to suppress, the part of the interview
    in which he invoked his right to terminate the interview. The State concedes that
    appellant did so and agrees that “the portion of the tape in which [a]ppellant
    invokes his right to terminate the interview was not admissible before the jury.”
    But the State contends that, nevertheless, trial counsel was not ineffective
    because his decision not to object could have been based on reasonable trial
    strategy.
    When the detectives told appellant they were going to check his DNA,
    appellant very clearly told them that he ended and cancelled the interview.
    Nevertheless, the detectives continued to question him, and he continued to
    deny knowing or having committed an offense against the complainant.
    Appellant’s counsel did not object to the playing of the part of the interview that
    included appellant’s termination of the interview and his subsequent denial of the
    detectives’ allegations that he sexually assaulted the complainant. The State
    emphasized appellant’s denial in its closing argument by contrasting it with
    appellant’s testimony at trial that he had consensual sex with her.
    10
    Regardless of the fact that part of the interview was inadmissible, we do
    not believe that the outcome of the proceedings would have been any different.
    The issue of whether the complainant consented was highly disputed at trial. As
    appellant points out, the jury had to decide whether they believed appellant’s
    testimony or the complainant’s; the DNA evidence merely confirmed that the sex
    did occur. Thus, any evidence tending to impeach appellant’s credibility was
    highly probative.    But appellant was able to explain extensively during his
    testimony that he did not recognize the photograph of the complainant shown to
    him by the detectives during the interview. 3 Also, Detective O’Brien admitted on
    cross-examination that he had shown appellant a more recent driver’s license
    photo of the complainant, that the detective did not know what she looked like in
    2004, and that appellant could have been unable to identify her for that reason.
    Appellant was also able to explain that because of the passage of time, the
    complainant had gained a significant amount of weight; thus, he did not
    recognize her in the interview. The complainant had previously testified that she
    had gained weight since the sexual assault. Defense counsel discussed the
    matter during closing argument, pointing to appellant’s testimony that his failure
    to initially recognize the complainant was a mistake and that appellant had later
    written a letter to the district attorney’s office stating that he had previously been
    mistaken. Accordingly, appellant’s counsel had the opportunity to neutralize the
    3
    He also stated a couple of times in the interview that he had no memory of
    the complainant.
    11
    impact of the State’s use of appellant’s statement, bringing the issue back to the
    jury’s choice over whom to believe; the jury chose the complainant. For this
    reason, appellant has not shown that but for counsel’s failure to so object, there
    is a reasonable probability that the outcome of the trial would have been
    different.
    Moreover, we do not believe that there is a reasonable probability the
    trial’s result would have been changed had counsel been able to exclude the part
    of the interview in which appellant invoked his right to terminate it. Appellant’s
    statements after he invoked his right were no different than his statements prior
    to doing so; he continued to deny knowing or having sex with the complainant. In
    fact, he accused the detectives of lying when they told him they knew what he
    had done. Thus, the record does not show a reasonable probability that the
    outcome of the trial would have been different had counsel been successful in
    having that part of the statement excluded. See Ali v. State, 
    26 S.W.3d 82
    , 88
    (Tex. App.––Waco 2000, no pet.); see also Lykins v. State, 
    784 S.W.2d 32
    , 34–
    36 (Tex. Crim. App. 1989) (holding that statements taken in violation of Miranda
    and article 38.22 could be used to impeach defendant).
    Contrary to the concurring opinion’s assertion, we are not approving
    mistakes by the police and prosecutor “by our silence.” Concurring Op. at 1. Nor
    have we looked for a way “to justify the actions of either the State or the
    defense.” 
    Id. We are
    simply following the law and higher courts’ precedent,
    which we are required to do. Sierra v. State, 
    157 S.W.3d 52
    , 60 (Tex. App.––
    12
    Fort Worth 2004) (op. on reh’g), aff’d, 
    218 S.W.3d 85
    (Tex. Crim. App. 2007); see
    Swilley v. McCain, 
    374 S.W.2d 871
    , 875 (Tex. 1964) (holding that a state
    intermediate appellate court is bound to follow precedent of the highest courts of
    the state). Moreover, the State itself concedes that part of the interview was
    inadmissible because the police should have ended it after appellant said he
    wanted to end it, a fact that we have clearly pointed out in our opinion.
    We overrule appellant’s second through fourth points.
    Failure to Object to Prosecutor’s Wheel of Fortune Example
    In his sixth point, appellant contends that his trial counsel was ineffective
    because he did not object or seek curative instructions but instead
    allowed the State to indoctrinate . . . [the] jury with a prejudicial
    definition of proof beyond a reasonable doubt using the Wheel of
    Fortune as an example, which violated [a]ppellant[’]s [constitutional]
    right to a fair trial, the due process right to be convicted of proof of all
    the elements [necessary] to constitute an offense beyond a
    reasonable doubt, the right to an impartial tribunal, lessened the
    State[’]s burden of proof and tainted [a]ppellant[’]s “presumption of
    innocence[.]”
    During voir dire, the State used the following example to explain the
    concept of proof beyond a reasonable doubt:
    [STATE]: . . . Judge Vick mentioned this, and these are rights that
    are based on our [C]onstitution. We all have these rights. If we
    were committed - - convicted of a crime, accused of a crime, we
    each and every one have these rights. If you get a traffic ticket, you
    still have these rights.
    A defendant has a presumption of innocence, and that stays
    with him until and unless we prove beyond a reasonable doubt that
    he is guilty.
    13
    It’s our burden, it’s always our job to bring evidence, but it’s
    not beyond all doubt. It’s not a hundred percent.
    [Juror], how could I prove something to you beyond any
    question whatsoever?
    [JUROR]: Evidence.
    [STATE]: Okay. But, I mean, you’d still have a question in your
    mind, wouldn’t you? Because you don’t know these people, right?
    [JUROR]: Right.
    [STATE]: I mean, you have to make the best decision you can. So
    to prove it to you beyond all doubt, [Second Juror]? . . .
    ....
    [STATE]: How could I prove it to you beyond all doubt, to get any
    doubt out of your mind?
    [SECOND JUROR]: I’m not sure. I’d have to see - - I’d have to see
    a big picture of all the evidence and then make a decision. You
    know, just talking, I don’t know what would be in my mind. I would
    have to see everything to come up with that.
    [STATE]: Okay. Thank you.
    For most people, it’s like, you know, I’m going to have to see
    it. I’m going to have to see it with my own eyes to have no doubt
    whatsoever.
    And so, you know, until they invent my time machine and I can
    take every one of y’all back to the crime itself and let y’all see it, this
    is the standard we have. There’s no way I could ever prove to
    anyone beyond all doubt. So this is the burden that we have.
    Because if y’all saw the crime, you wouldn’t be able to be jurors,
    would you? You would be witnesses. I’d have a lot of good
    witnesses.
    So it’s not certainty. It’s somewhere short of that. Where are
    my Wheel of Fortune watchers?
    14
    (Hands raised)
    [STATE]: Oh, come on. I’m not the only one that watches that
    show, am I? I got through law school on this thing. [Third Juror].
    [THIRD JUROR]: I love Wheel of Fortune.
    [STATE]: Okay. Wheel of Fortune. Vanna turns the letter over as
    people guess and say, give me an M, she’ll turn letters over. And at
    some point before the puzzle is complete, usually you can guess it.
    All the letters might not be turned over, but you know what it says,
    you know what the answer is.
    Tim had a hard time with the second one, but he got the first one.
    We had Julia Roberts. The thrill of victory and the agony of defeat,
    that’s an old one. So at some point before you get all the letters you
    know what the answer is. Is it [Fourth Juror]?
    ....
    [STATE]: Would you agree with that?
    [FOURTH JUROR]: That at a certain point all reasonable doubt is
    gone or - -
    [STATE]: At a certain point the picture becomes clear.
    [FOURTH JUROR]: Yes.
    [STATE]: At some point it’s earlier than others. You can guess what
    the - - what it is before you get very many letters. Sometimes you
    need almost all of them.
    [FOURTH JUROR]: It’s always good to have all of them.
    [STATE]: Yeah. It’s always good to have all of them, but sometimes
    you don’t. Are you comfortable making a decision without all the
    letters?
    [FOURTH JUROR]: Not a hundred percent sure on that one. I
    would have to, like I say, see all the evidence, see what kind of light
    it’s presented in.
    15
    [STATE]: Okay. Anyone else who just doesn’t think they would be
    able to do that? You’re going to have to have all doubt removed?
    Okay. I’m going to - - don’t see any hands or any head nods.
    [Fifth Juror].
    [FIFTH JUROR]: Yes.
    [STATE]: Are you comfortable with making a decision maybe if you
    still have questions, but you’re to the point where you’re beyond a
    reasonable doubt?
    [FIFTH JUROR]: If I’m to the point beyond a reasonable doubt, then
    I feel comfortable making a decision.
    [STATE]: Okay. Thank you.
    Appellant contends that the prosecutor’s use of the word “letters” in the analogy
    encouraged the jury to convict even if all of the elements of the offense were not
    proved.
    The use of a hypothetical fact situation during voir dire is permissible if it is
    used “to explain the application of the law.” Atkins v. State, 
    951 S.W.2d 787
    , 789
    (Tex. Crim. App. 1997); Lee v. State, 
    176 S.W.3d 452
    , 461 (Tex. App.––Houston
    [1st Dist.] 2004), aff’d, 
    206 S.W.3d 620
    (Tex. Crim. App. 2006). Because the
    court of criminal appeals has held that the better practice is for the trial court not
    to give a definition of reasonable doubt to the jury, it is permissible for the State
    to inquire into the jury’s understanding of the parameters of that burden of proof.
    Fuller v. State, 
    363 S.W.3d 583
    , 586 (Tex. Crim. App. 2012); Paulson v. State,
    
    28 S.W.3d 570
    , 573 (Tex. Crim. App. 2000); Wilder v. State, 
    111 S.W.3d 249
    ,
    252–53 (Tex. App.––Texarkana 2003, pet. ref’d) (holding that prosecutor’s
    16
    explanation that State did not have to prove one hundred percent certainty was
    permissible). This area of inquiry is designed not to “assign a precise meaning”
    to the term “beyond a reasonable doubt,” which is left to the jurors themselves to
    apply in their own common sense understanding, but instead is to test whether
    the prospective jury members will hold the State to an impermissibly high or low
    burden of proof. 
    Fuller, 363 S.W.3d at 587
    .
    Here, the prosecutor’s colloquy with the panel shows that she was
    engaging in a permissible inquiry into the prospective jurors’ understanding of the
    proper parameters of the beyond a reasonable doubt burden of proof and how
    that relates to using circumstantial evidence to prove a case. It does not show
    that the State was urging the prospective jurors that they could convict upon less
    than the appropriate standard or if not all of the elements were proven. See id.;
    
    Wilder, 111 S.W.3d at 252
    –53. Regardless, even if counsel could be considered
    deficient for failing to object to this hypothetical, the court’s charge properly
    instructed the jury that it must find “each and every element of the offense
    charged beyond a reasonable doubt” to convict; thus, we cannot say that such a
    failure would have affected the trial’s outcome.
    Accordingly, we conclude and hold that counsel was not ineffective by not
    objecting to the Wheel of Fortune hypothetical and that even if he was, the
    outcome of the trial would not have been different. We overrule appellant’s sixth
    point.
    17
    Alleged Use of Perjured Testimony
    In his fifth point, appellant claims that the State knowingly used the
    perjured testimony of the complainant because of inconsistencies between her
    testimony at trial and what she told officers after the sexual assault. Appellant
    did not preserve this argument for review. See Tex. R. App. P. 33.1(a)(1); Devoe
    v. State, 
    354 S.W.3d 457
    , 472 (Tex. Crim. App. 2011). Additionally, to the extent
    his complaint might encompass his counsel’s failure to so object, there is no
    evidence or other indication in the record that the complainant lied in her
    testimony as opposed to her being mistaken, having remembered additional
    details that she did not initially tell the police, or having a hazy memory of details.
    See Ex parte Chabot, 
    300 S.W.3d 768
    , 771 (Tex. Crim. App. 2009); Vasquez v.
    State, 
    67 S.W.3d 229
    , 239 (Tex. Crim. App. 2002). In fact, counsel questioned
    one of the investigating detectives about apparent inconsistencies in the
    complainant’s testimony. We overrule appellant’s fifth point.
    18
    Conclusion
    Having overruled all of appellant’s points, we affirm the trial court’s
    judgment.
    PER CURIAM
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
    DAUPHINOT, J., filed a concurring opinion.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: May 2, 2013
    19