Roy Bolinger v. State ( 2021 )

Affirmed and Memorandum Opinion filed January 28, 2021.
In The
Fourteenth Court of Appeals
NO. 14-18-00931-CR
ROY BOLINGER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1337329
MEMORANDUM OPINION
Appellant was convicted of continuous sexual abuse of a child and sentenced
to life imprisonment. Appellant raises three issues on appeal. In his first issue
appellant contends that his counsel rendered ineffective assistance by failing to (1)
object to evidence of extraneous offenses used to impeach appellant on cross-
examination, (2) file and argue a motion in limine on the extraneous offenses, (3)
file a Theus motion, and (3) request a limiting instruction. In his second issue
appellant argues that the trial court erred in denying appellant’s motion to quash
his indictment based on the denial of appellant’s right to a “grand jury indictment”
under the Texas Constitution. In his third issue appellant contends that he was
subjected to cruel and unusual punishment when he was forced to listen to
improper victim allocution after he had been sentenced. We affirm.
I. BACKGROUND
The State indicted appellant for continuous sexual abuse of a child. The
State alleged that appellant:
[D]uring a period of time of thirty or more days in duration,
commit[ed] at least two acts of sexual abuse against a child younger
than fourteen years of age, including an act constituting the offense of
aggravated sexual assault of a child, committed against [complainant]
on or about September 1, 2007, and an act constituting the offense of
aggravated sexual assault of a child, committed against [complainant]
on or about June 30, 2009, and [appellant] was at least seventeen
years of age at the time of the commission of each of those acts.
The State filed a notice that it would use extraneous offenses and prior
convictions to impeach appellant’s credibility under Rules of Evidence 404 and
609 and Articles 37.07 and 38.37 of the Code of Criminal Procedure. Appellant
filed a motion in limine requesting that the State and trial court not mention any of
appellant’s prior convictions, probated sentences, deferred adjudications, or
extraneous or unadjudicated criminal or bad acts in the presence of the jury without
first obtaining a ruling from the trial court outside of the presence of the jury. The
trial court did not sign an order on appellant’s motion in limine. However, prior to
voir dire, appellant’s counsel stated that the trial court “heard [appellant’s] motion
in limine. And I don’t believe it’s on the record, but that part was granted with the
caveat that the State would change that one question.” The trial court
acknowledged that the State would “rephrase [its] question as opposed to stating
that ‘it is a known study,’ ‘studies have shown,’ yes, that’s correct.”
2
Appellant testified in his defense at trial. On cross-examination, the State
elicited the following testimony:
Q. All right, Mr. Bolinger. Let’s start with things that we can agree
are true.
First of all, on August 9, 1995 . . . you were convicted of
misdemeanor theft by check, correct?
A. Yes.
Q. On November 26th of 1996 . . . you were convicted of
misdemeanor possession of marijuana, correct?
A. Yes.
Q. Also on November 26th of 1996 . . . you were convicted of the
misdemeanor offense of theft, correct?
A. That’s correct.
Q. And on June 16th of 1997 . . . you were convicted of the felony
offense of burglary of a habitation, correct?
A. That’s correct.
...
Q. On October 4th of 2010 . . . you were convicted of the
misdemeanor offense of assault of a family member, right?
A. That’s correct.
Appellant’s counsel did not object to the admission of any of appellant’s prior
convictions and did not immediately request a limiting instruction regarding this
testimony. A limiting instruction was included in the jury charge.
On further questioning by his counsel, appellant testified that he “owned up”
to his criminal history. In closing argument, appellant’s counsel argued that the
State “went through [appellant’s] criminal history. [Appellant] never denied that.
He owned up to his mistakes . . . but he is denying this one. He is fighting this
3
one.” The only prior conviction the State mentioned during closing argument was
appellant’s conviction for assault of a family member.1
The jury found appellant guilty of continuous sexual abuse of a child and
sentenced him to life in prison. Immediately after sentencing, the State notified the
trial court that it had two victim impact statements, one from the complainant and
one from the complainant’s mother. Appellant objected to both statements being
read because it is “a violation to do any more than just [the complainant] under
56.02 of the Code of Criminal Procedure. . . . forcing [appellant] . . . to sit here and
listen to more than one statement is unnecessary, it’s cruel, it’s unusual
punishment.” Appellant argued that the rules allow the complainant to give a
statement but objected to complainant’s mother also giving a statement. The trial
court determined that the complainant could give a statement and her mother was
permitted to give a statement as well because the complainant was a minor at the
time of the offense. Appellant did not file a motion for new trial.
II. INEFFECTIVE ASSISTANCE
In his first issue appellant contends that his counsel rendered ineffective
assistance by allowing the State to introduce otherwise inadmissible prior
convictions to impeach appellant’s testimony when counsel failed to object, failing
to urge or secure a ruling on a previously filed motion in limine, failing to file a
“Theus motion,” and failing to request a contemporaneous limiting instruction
when the State offered the prior convictions. Appellant argues that because
credibility was a key issue, trial counsel’s deficiency caused him prejudice.
1
Instead, most of the State’s closing argument was focused on building the credibility
and story of the complainant and attacking appellant’s credibility through the testimony of
appellant’s other alleged victims.
4
A. Legal Principles
To prevail on a claim of ineffective assistance, an appellant must show that
(1) counsel’s performance was deficient by falling below an objective standard of
reasonableness and (2) counsel’s deficiency caused the appellant prejudice—there
is a probability sufficient to undermine confidence in the outcome that but for
counsel’s errors, the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687–88 (1984); Perez v. State, 310 S.W.3d 890, 892–
93 (Tex. Crim. App. 2010). An appellant must satisfy both prongs by a
preponderance of the evidence. Perez, 310 S.W.3d at 893.
Generally, a claim of ineffective assistance may not be addressed on direct
appeal because the record usually is not sufficient to conclude that counsel’s
performance was deficient under the first Strickland prong. See Andrews v. State,
159 S.W.3d 98, 103 (Tex. Crim. App. 2005); see also Salinas v. State, 163 S.W.3d
734, 740 (Tex. Crim. App. 2005) (“A reviewing court will rarely be in a position
on direct appeal to fairly evaluate the merits of an ineffective assistance claim.”).
Ordinarily, trial counsel should be afforded an opportunity to explain counsel’s
actions “before being denounced as ineffective.” Rylander v. State, 101 S.W.3d
107, 111 (Tex. Crim. App. 2003). A defendant is not entitled to “errorless or
perfect counsel whose competency of representation is to be judged by hindsight.”
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
“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, 163 S.W.3d at 740. “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. (quotation omitted).
5
It is the “rare case” when an appellant raises a claim of ineffective assistance
on direct appeal and the record is sufficient to make a decision on the merits.
Andrews, 159 S.W.3d at 103. We must presume that trial counsel’s performance
was adequate unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” State v. Morales, 253 S.W.3d 686, 696-97
(Tex. Crim. App. 2008) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005)). “The record must demonstrate that counsel’s performance fell
below an objective standard of reasonableness as a matter of law, and that no
reasonable trial strategy could justify counsel’s acts or omissions, regardless of
[counsel’s] subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.
Crim. App. 2011). If there is a potential reasonable trial strategy that counsel
could have been pursuing, we cannot conclude that counsel performed deficiently.
See Andrews, 159 S.W.3d at 103.
B. Admissibility of Prior Convictions
Appellant argues that none of his prior convictions were admissible and,
therefore, defense counsel could not have had a reasonable trial strategy for failing
to object. The State argues that the prior convictions were admissible and that
defense counsel had a reasonable trial strategy for failing to object by using “the
criminal history evidence elicited by the State in appellant’s favor when he
successfully argued that appellant pled guilty in each of the prior convictions
because he was guilty, but he pled not guilty in [this case] because he had not
engaged in any sexual abuse. Appellant’s attorney attempted the same strategy in
the second trial that had worked in the first, albeit with less success the second
time around . . . .”
Admitting to prior convictions can be a matter of sound trial strategy if the
prior convictions are admissible. Donald v. State, 543 S.W.3d 466, 481 (Tex.
6
App.—Houston [14th Dist.] 2018, no pet.); see Huerta v. State, 359 S.W.3d 887,
891 (Tex. App.—Houston [14th Dist.] 2012, no pet.). It is a common strategy to
admit a prior admissible conviction because it “removes the sting from an attack
that would otherwise come from the state.” Huerta, 359 S.W.3d at 891–92.
If a prior conviction is clearly inadmissible, “there can be no reasonable trial
strategy for introducing it before the jury.” Id. at 892 (citing Robertson v. State,
187 S.W.3d 475, 485–86 (Tex. Crim. App. 2006)); see Ex Parte Skelton, 434
S.W.3d 709, 722 (Tex. App.—San Antonio 2014, pet. ref’d) (“Where a
defendant’s credibility is central to her defensive strategy, it is not sound trial
strategy to allow the introduction of inadmissible evidence that directly impairs the
defendant’s credibility without objection.”). However, it may be strategic to pass
over the admission of prejudicial and arguably inadmissible evidence. Ex Parte
Menchaca, 854 S.W.2d 128, 132 (Tex. Crim. App. 1993) (quoting Lyons v.
McCotter, 770 F.2d 529, 534 (5th Cir. 1985)). It may also be strategic, for
example, if trial counsel “at that moment may have reasonably decided that the
testimony was not inadmissible.” Thompson v. State, 9 S.W.3d 808, 814 (Tex.
Crim. App. 1999) (performance not deficient on silent record as to why trial
counsel failed to object to the State’s “artful questions” as the State “doggedly
pursued the introduction of inadmissible hearsay”). Thus, we must evaluate
whether evidence of the prior convictions was clearly inadmissible or only
arguably inadmissible. See Ex Parte Menchaca, 854 S.W.2d at 132; McCook v.
State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)
(counsel may strategically decline to object to an “arguably inadmissible prior
conviction”).
The question of admissibility is determined pursuant to the Rules of
Evidence and their interpretative cases. See Tex. R. Evid. 609; Theus v. State, 845
7
S.W.2d 874 (Tex. Crim. App. 1992). Under Rule 609, evidence of a prior
conviction “must be admitted” if “(1) the crime was a felony or involved moral
turpitude, regardless of punishment; (2) the probative value of the evidence
outweighs its prejudicial effect to a party; and (3) is it elicited from the witness or
established by public record.” Tex. R. Evid. 609(a). However, when ten years has
“passed since the witness’s conviction or release from confinement,” such
evidence is “admissible only if its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect.” Tex. R. Evid.
609(b). In considering whether the probative value outweighed its prejudicial
effect, we review five nonexclusive factors: (1) the impeachment value of the prior
crime; (2) the temporal proximity of the past crime to the charged offense and the
witness’s subsequent history; (3) the similarity between the past crime and the
offense being prosecuted; (4) the importance of the defendant’s testimony; and (5)
the importance of the credibility issue. Theus, 845 S.W.2d at 880. The party
seeking to introduce the evidence has the burden to demonstrate that the probative
value of the conviction outweighs its prejudicial effect. Id.
The State impeached appellant with five prior convictions. At the time of
trial, the only conviction within the ten-year period of Rule 609 was the 2010
assault of a family member.2 Because this is a crime of moral turpitude and within
the ten-year period provided in Rule 609, evidence of this prior conviction was
admissible if its probative value outweighed its prejudicial effect. See Tex. R.
Evid. 609; Ludwig v. State, 969 S.W.2d 22, 30 (Tex. App.—Fort Worth 1998, pet.
ref’d) (“[M]isdemeanor assault by a man against a woman is considered a crime of
moral turpitude.”).
2
The record reveals that the family violence perpetrated in this instance was by appellant
against his wife. Appellant testified that he “threw a cake box” at his wife ( the complainant’s
mother).
8
Appellant’s convictions for theft by check and misdemeanor theft are
considered crimes of moral turpitude, and his conviction for burglary was a felony.
However, each of these convictions were outside of the ten-year period provided
under Rule 609(b). Thus, these three convictions were only admissible if their
probative value, supported by specific facts and circumstances, substantially
outweighed their prejudicial effect. See Tex. R. Evid. 609. Appellant’s conviction
for misdemeanor possession of marijuana was neither a felony nor crime of moral
turpitude and thus is inadmissible under Rule 609.
Because four of the convictions were either a crime of moral turpitude or a
felony, we now determine whether those convictions are clearly inadmissible or
arguably inadmissible under the Theus factors. See Ex Parte Menchaca, 854
S.W.2d at 132; McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th
Dist.] 2013, pet. ref’d).
1. Impeachment Value
Impeachment with a prior conviction is an issue of a defendant’s credibility.
See Tex. R. Evid. 609(a); Pierre v. State, 2 S.W.3d 439, 442 (Tex. App.—Houston
[1st Dist.] 1999, pet. ref’d). Offenses involving deception are more probative of
credibility than offenses involving violence. See Theus, 845 S.W.2d at 881;
Pierre, 2 S.W.3d at 442. Burglary, theft, and theft by deception are all considered
crimes involving deception. See Medina v. State, 367 S.W.3d 470, 475 (Tex.
App.––Texarkana 2012, no pet); Huerta, 359 S.W.3d at 892 (“Theft is a crime of
moral turpitude involving elements of deception.”); Baca v. State, 223 S.W.3d 478,
484 (Tex. App.—Amarillo 2006, no pet.) (“Burglary cases are offenses involving
deception.”). Because the burglary and theft convictions are more probative for
purposes of impeachment this factor weighs in favor of admissibility for these
convictions. However, the misdemeanor family assault offense, while a crime of
9
moral turpitude,3 is a crime of violence. Dale v. State, 90 S.W.3d 826, 830 (Tex.
App.—San Antonio 2002, pet. ref’d); see also Guerra v. State, No. 01-15-00650-
CR, 2016 WL 6212999, *10–11 (Tex. App.—Houston [1st Dist.] Oct. 25, 2016, no
pet.) (mem. op., not designated for publication) (assault-family-violence against
woman is crime of moral turpitude, but in considering Theus factors is not a crime
of deception). Because the family assault offense is less probative for purposes of
impeachment, this factor weighs against admissibility.
2. Temporal Proximity and Subsequent History
Evidence of a prior offense is more probative of credibility if the prior
offense is recent and the defendant has shown a propensity for breaking the law.
Theus, 845 S.W.2d at 881; Pierre, 2 S.W.3d at 442. We determine whether the
offense is recent by reviewing the “temporal proximity of the past crime relative to
the charged offense and the witness’s subsequent history.” Huerta v. State, 359
S.W.3d 887, 892 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Appellant’s
assault family violence conviction occurred on October 4, 2010, and the offense he
was charged with in this case occurred between September 2007 and June 2009.
Thus, this conviction was recent and weighs in favor of admitting appellant’s
assault family violence conviction. See Theus, 845 S.W.2d at 881 (determining
that arson conviction that became final in 1985 had “occurred recently” relative to
the “instant offense which happened in February 1990”); Huerta, 359 S.W.3d at
892 (defendant’s prior convictions in 2005 and 2006 were “near in time to the
charged offense” and favored admissibility when the charged offense was
committed in 2009). However, appellant’s convictions for theft by check, theft,
3
See Campos v. State, 458 S.W.3d 120, 149 (Tex. App.—Houston [1st Dist.] 2015)
(listing what courts have defined as crimes involving moral turpitude including, dishonesty,
deceit, deliberate violence, and matters of “personal morality,” as a few examples), vacated on
other grounds, 466 S.W.3d 181, 182 (Tex. Crim. App. 2015).
10
and burglary of a habitation occurred in 1995, 1996, and 1997, respectively. These
convictions occurred between ten and twelve years prior to the charged offense.
Thus, these convictions are not considered recent and fall outside of the ten-year
period provided under Rule 609(b). See Tex. R. Evid. 609(b). However, a court
may consider all relevant specific facts and circumstances, including whether
intervening convictions dilute the prejudice of a remote conviction. Meadows v.
State, 455 S.W.3d 166, 170 (Tex. Crim. App. 2015). This factor weighs against
admitting appellant’s convictions for theft by check, theft, and burglary.
3. Similarity
When a defendant’s prior offense and the charged offense are similar, a
danger arises that the jury will convict based on a perception of a pattern of past
conduct rather than upon the facts of the charged offense. Theus, 845 S.W.2d at
881 (“If . . . the past crime and the charged crime are similar, the third factor will
militate against admission); Pierre, 2 S.W.2d at 443. Appellant’s convictions for
theft by check, theft, and burglary of a habitation are not similar to the charged
offense of continuous sexual abuse of a child. Thus, this factor weighs in favor of
admission. Appellant’s conviction for assault family violence against the
complainant’s mother is similar in that both crimes were committed against
females and involved violence. However, because appellant’s testimony that the
assault family violence conviction was a result of his having thrown a cake box at
the complainant’s mother, the danger that the jury would convict on the perception
of past conduct instead of based on the facts of the charged offense was mitigated.
See Theus, 845 S.W.2d at 881 (“The rationale behind this is that the admission for
impeachment purposes of a crime similar to the crime charged presents a situation
where the jury would convict on the perception of a past pattern of conduct, instead
of on the facts of the charged offense.”). But cf. Pierre, 2 S.W.3d at 442–43
11
(reasoning first and third factors “dispositive” because prior convictions involved
violence and misdemeanor assaults causing bodily injury, reckless conduct, and
terroristic threat against women were similar to the charged crime of sexual assault
against a woman). Under the circumstances of this case, this factor weighs in
favor of admittance of the prior convictions.
4. Importance of Defendant’s Testimony and Credibility
The last two factors are related and depend on the nature of the defense
asserted. Theus, 845 S.W.2d at 881. Where a defendant’s defense relies on alibi
witnesses, then his credibility is not likely a crucial issue. Id. “When the case
involves the testimony of only the defendant and State’s witnesses, however, the
importance of the defendant’s credibility escalates, so will the need to allow the
State an opportunity to impeach the defendant’s credibility. Id.
Aside from his own testimony, appellant called three witnesses in his
defense. Appellant’s defense at trial was that the complainant’s mother convinced
the complainant to fabricate the alleged sexual assaults in order to obtain custody
of mother and appellant’s son. Thus, appellant’s testimony was important because
he denied any inappropriate behavior with the complainant. See Mireles v. State,
413 S.W.3d 98, 103 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d), overruled
on other grounds by Meadows v. State, 455 S.W.3d 166 (Tex. Crim. App. 2015).
Although appellant’s prior roommates testified that they did not see appellant
exhibit any inappropriate behaviors toward the complainant, appellant’s defense
boiled down to credibility between himself and the complainant. See id. Because
the need of the State to impeach appellant’s credibility was high, this factor weighs
in favor of admitting appellant’s prior convictions. Theus, 845 S.W.2d at 881.
5. Weighing the Theus Factors
12
While each prior conviction has at least one factor weighing against
admission, without further development of the record on appeal through an
explanation of trial counsel’s actions in failing to object, we cannot say that any of
the prior convictions, except for the misdemeanor possession of marijuana
discussed below, are clearly inadmissible under Rule 609. At most, based on the
record here, the prior convictions are only arguably inadmissible. See Ex Parte
Menchaca, 854 S.W.2d at 132; McCook, 402 S.W.3d at 52 (counsel may
strategically decline to object to an “arguably inadmissible prior conviction”).
Trial counsel reasonably may have believed that there would be at least reasonable
disagreement about whether the prior convictions would be admissible under Rule
609. See Donald, 543 S.W.3d at 481. Trial counsel is not deficient for allowing
the admission of extraneous-offense evidence when the trial court’s admission of
the evidence would be within the realm of reasonable disagreement. See id.; Parks
v. State, 463 S.W.3d 166, 172 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
6. Prejudice
Appellant’s conviction for misdemeanor possession of marijuana is neither a
felony nor a crime of moral turpitude. Hernandez v. State, 976 S.W.2d 753, 755
(Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (discussing State’s use of prior
misdemeanor possession of marijuana conviction as not being a felony or crime of
moral turpitude). Thus, this conviction was clearly inadmissible under Rule 609.
Where a prior conviction is clearly inadmissible there can be no reasonable trial
strategy for failing to object. See Huerta, 359 S.W.3d at 892. Under the second
prong of Strickland, a defendant must show that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” 466 U.S. at 694. In the context of deficient performance in
the guilt-innocence stage of trial, the question is whether there is a reasonable
13
probability that, absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.” Id. at 695. This test does not require a defendant to show
that “counsel’s deficient conduct more likely than not altered the outcome of the
case.” Id. at 693. Rather, a “reasonable probability” of a different outcome is a
“probability sufficient to undermine the confidence in the outcome.” Id. at 694.
In making the prejudice determination, we must consider the totality of the
evidence before the jury. Id. at 695. “Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the entire evidentiary
picture, and some will have had an isolated, trivial effect.” Id. at 695–96. A
verdict weakly supported in the record is “more likely to have been affected by
errors than one with overwhelming record support.” Id. at 696.
Considering all of the evidence before the jury, we cannot conclude that this
error had a pervasive effect on the inferences to be drawn from the evidence or
altered the entire evidentiary picture. Appellant’s prior conviction of misdemeanor
possession of marijuana is not similar to the crime for which he was on trial. See
Herring v. State, 147 S.W.3d 390, 396 (Tex. Crim. App. 2004) (“While general
criminality is a prohibited inference, it is not a strong or inflammatory an inference
as the conformity inference that arises from substantially similar offenses . . . .”).
After asking appellant whether he had been convicted of the offense, the State did
not bring up this specific offense again in cross-examination or closing argument.
Without referencing a specific offense, on re-direct appellant’s trial counsel asked
appellant whether he had “owned up to” his criminal history as well as his other
prior extraneous offenses. In closing argument, appellant’s counsel argued that
appellant had owned up to his past mistakes, but “he is denying this one. He is
fighting this one. That is also character and conformity.” Excluding the
complained-of offense, the evidence amply supported appellant’s conviction. See
14
McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] pet. ref’d).
The complainant detailed the multiple instances of sexual assault committed
against her by appellant from the time she was six years old through the age of
nine. Her brother testified as to the opportunities appellant had to be alone with
the complainant in their home and further corroborated her testimony of being
locked in a room alone with appellant when some of the assaults occurred in their
home. The complainant’s mother testified that during this period the complainant
came to her complaining about pain in her vaginal area. We conclude that
appellant has failed to show that a reasonable probability exists that, absent trial
counsel’s error, the jury would have had a reasonable doubt respecting guilt. See
id.C. Limiting Instruction
A contemporaneous limiting instruction prevents the jury from
contemplating evidence in an inappropriate manner. Webb v. State, 995 S.W.3d
295, 300 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Even when a limiting
instruction is given to the jury in the jury charge, as it was in this case, this is less
effective than requesting a simultaneous limiting instruction immediately after the
evidence is admitted. See id. However, ‘[t]he failure of trial counsel to request a
limiting instruction is not, by itself, ineffective assistance.” Straight v. State, 515
S.W.3d 553, 573 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (citing
Agbogwe v. State, 414 S.W.3d 820, 837 (Tex. App.—Houston [1st Dist.] 2013, no
pet.)). Acknowledging that the best practice is to request a contemporaneous
limiting instruction, we cannot say based on this record that trial counsel’s failure
rendered his representation of appellant unreasonably deficient. See Webb, 995
S.W.3d at 301. A reasonable explanation for trial counsel’s action in not
requesting a limiting instruction is the concern that the instruction may have
15
highlighted the issue. Straight, 515 S.W.3d at 573; Agbogwe, 414 S.W.3d at 837;
Ali v. State, 26 S.W.3d 82 (Tex. App.—Waco 2000, no pet.); Webb, 995 S.W.2d at
301; Abbott v. State, 726 S.W.2d 644, 649 (Tex. App.—Amarillo 1987, pet. ref’d).
Based on the record, appellant has not “overcome the strong presumption that
counsel’s conduct fell within a wide range of reasonable representation.” Salinas,
163 S.W.3d at 740.
D. Motion in Limine
Appellant complains that counsel should have had a “specific motion in
limine filed and ruled upon” with regard to the prior convictions the State sought to
use against appellant. The record reflects that appellant’s counsel filed a motion in
limine regarding prior convictions, but the record does not contain any argument
on the motion or the trial court’s rulings. Thus, we are not privy to the reasoning
provided by trial counsel or the State, or the trial court’s ruling. Further, without
explanation from trial counsel, we do not know whether the arguments or rulings
made off the record support his decision not to pursue the objections to the
admission of this evidence. Even if appellant’s counsel had obtained a ruling on
the record, such ruling is not on the merits and does not preserve error when
granted or denied. Wert v. State, 383 S.W.3d 747, 757 (Tex. App.—Houston [14th
Dist.] 2012, no writ).
Without a more fully developed record, we cannot conclude trial counsel
was deficient for failing to obtain a ruling on appellant’s motion in limine
regarding his prior convictions on the record. As concluded above, it may have
been strategic to pass over the admission of prejudicial and arguably inadmissible
evidence. Ex Parte Menchaca, 854 S.W.2d at 132 (Tex. Crim. App. 1993)
(quoting Lyons v. McCotter, 770 F.2d 529, 534 (5th Cir. 1985)); McCook, 402
S.W.3d at 52. It may also be strategic, for example, if trial counsel “at that
16
moment may have reasonably decided that the testimony was not inadmissible.”
Thompson, 9 S.W.3d at 814.
E. Conclusion
Trial counsel has not been afforded the opportunity to explain his actions,
and the record does not demonstrate the alleged ineffectiveness as a matter of law.
See Lopez, 343 S.W.3d at 143; Rylander, 101 S.W.3d at 111. Under the
circumstances presented herein, appellant has not rebutted the strong presumption
that the decisions of counsel during trial fell within the wide range of reasonable
professional assistance. See Thompson, 9 S.W.3d at 814. Absent counsel’s
explanation, the record does not contain sufficient evidence to evaluate the
ineffective assistance issue. See id. at 814–15. We overrule appellant’s first issue.
III. GRAND JURY
Appellant argues that in his indictment there is no finding that he probably
committed any specific offense and was thus denied his “state-constitutional right
to a grand jury indictment on the charge for which he was tried and convicted.”
Appellant argues that this “omission” denied him of his state-constitutional right to
a grand jury indictment on the charge for which he was tried and convicted.
“A defendant has a right to have a grand jury pass upon the question of
whether there is probable cause to believe that he committed a particular offense.”
Duron v. State, 956 S.W.2d 547, 550 (Tex. Crim. App. 1997). “The requisite of
indictment by grand jury was designed to protect an individual against unjust
prosecution without sufficient cause, said indictment informing the accused of the
nature of the charges against him so that he may adequately prepare his defense.”
Tex. Const. art. I, § 10 commentary; see also Batiste v. State, 785 S.W.2d 432, 436
(Tex. App.—Corpus Christi–Edinburg 1990, pet. ref’d) (grand jury’s purpose is to
17
protect citizens from commencement of arbitrary or unreasonable felony
prosecutions by the State).
“The sufficiency of an indictment is a question of law that is reviewed de
novo.” Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009). An
indictment is sufficient if it charges the commission of an offense “in ordinary and
concise language of common understanding to know what is meant, and with that
degree of certainty that will give the defendant notice of the particular offense with
which he is charged.” Tex. Code Crim. Proc. art. 21.11. Generally, an indictment
is legally sufficient if it tracks the language of the statute in question. Moff, 154
S.W.3d at 602. “A written instrument is an indictment . . . under the constitution if
it accuses someone of a crime with enough clarity and specificity to identify the
penal statue under which the State intends to prosecute, even if the instrument is
otherwise defective.” Id.
An indictment serves two functions. First, it is the “written statement of a
grand jury accusing a person therein named of some act or omission which, by law,
is declared an offense.” Tex. Code Crim. Pro. 21.01; see also Ex Parte Patterson,
740 S.W.2d 766, 775 (Tex. Crim. App. 1987) (“This provision gives statutory
substance to the right conferred in Article I, § 10 of the Texas Constitution to have
a grand jury screening before a person may ‘be held to answer for a criminal
offense’ of the magnitude of felony.”), overruled on other grounds by Ex Parte
Beck, 769 S.W.2d 525 (Tex. Crim. App. 1989). Second, it is the State’s primary
pleading in a felony criminal action. Ex Parte Patterson, 740 S.W.3d at 775.
The grand jury does not necessarily need to pass on matters that are purely
evidentiary. See Flowers v. State, 815 S.W.2d 724, 729 (Tex. Crim. App. 1991)
(because statutory definition added to amended indictment was not an “element of
the offense” and did not “describe an act or omission,” the statutory definition did
18
not need to be included in the indictment); Berg v. State, 747 S.W.2d 800, 809
(Tex. Crim. App. 1984) (pleading evidentiary matters “which are surplusage . . .
give the accused more notice than is constitutionally required.”). Under section
21.02, it is the commission of two or more acts of sexual abuse over the specified
period that is the actus reus element of the offense as to which the jurors must be
unanimous in order to convict. Jacobsen v. State, 325 S.W.3d 733, 736 (Tex.
App.—Austin 2010, no pet.). “The individual acts of sexual abuse that make up
this pattern of behavior or series of acts are not themselves elements of the offense,
but are merely evidentiary facts, the manner and means by which the actus reus
element is committed.” Id.Appellant was indicted and convicted of continuous sexual abuse of a child.
See Tex. Pen. Code § 21.02. “A person commits an offense if: (1) during a period
that is 30 or more days in duration, the person commits two or more acts of sexual
abuse . . . .” Id. § 21.02(a) (emphasis added). This section defines an “act of
sexual abuse” as “any act that is a violation of one or more” penal laws enumerated
within the statute. Id. § 21.02(c). Appellant’s indictment charged that appellant
had committed “at least two acts of sexual abuse . . . including an act constituting
the offense of aggravated sexual assault of a child” against the complainant
between January 5, 2006 and June 30, 2009. See id. § 21.02(c)(4). The probable
cause affidavit attached to the complaint and submitted by an officer with the
Harris County Sherriff’s Department further detailed the aggravated sexual assaults
alleged to have been committed by appellant against complainant during the time
referenced in the indictment.4
4
The probable cause affidavit enumerated several acts of aggravated sexual assault of a
child, including the following:
[Appellant] . . . committed the offense of aggravated sexual assault of a child by
penetrating his sexual organ, penis into the sexual organ, vagina of the
19
The indictment tracked the language of the statute in question. See Moff,
154 S.W.3d at 602. Because the individual acts of sexual abuse that make up the
pattern of behavior or series of acts are not themselves elements of the offense, but
are merely evidentiary facts, it is not necessary that the grand jury pass on them.
See Flowers, 815 S.W.2d at 729; Jacobsen, 325 S.W.3d at 736.
We overrule appellant’s second issue.
IV. CRUEL AND UNUSUAL PUNISHMENT
Appellant’s third issue is that the trial court “visited cruel and unusual
punishment” upon him by allowing improper victim allocution. After punishment
had been assessed and sentenced pronounced, over objection by trial counsel that
such allocution was cruel and unusual, the trial court allowed the complainant and
her mother to appear and present to the defendant their statements about the effects
of appellant’s offense on the complainant.
“What is necessary to show sufficient harm for purposes of the Cruel and
Unusual Punishments Clause depends upon the claim at issue . . . .” Hudson v.
McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992). “The
general requirement that an Eighth Amendment claimant allege and prove the
unnecessary and wanton infliction of pain should . . . be applied with due regard
for differences in the kind of conduct against which an Eighth Amendment
objection is lodged.” Whitley v. Albers, 475 U.S. 312, (1986).
complainant. . . . [Complainant] stated that [appellant] had began (sic) touching
her breasts and genitals with his hands when she was six years old . . . and
eventually began penetrating her vagina with his hands and penis several times a
week. . . . complainant disclosed that [appellant] put his finger and his private part
(penis) in her private (vagina) several times. . . . the last time he penetrated her
vagina was around June after her fourth grade year (approx. 06/30/2009).
20
Article 42.03 allows “a victim, . . . or guardian of a victim, . . . to appear in
person to present the court and the defendant a statement of the person’s views
about the offense, the defendant, and the effect of the offense on the victim.” Tex.
Code Crim. Pro. art. 42.03(b). Questions may not be directed at the defendant
while making the statement. Id.Appellant’s sole argument is that having to listen to his ex-wife give a victim
statement after their contentious divorce and custody battle and after receiving a
life sentence without parole was cruel and unusual punishment in violation of the
Eighth Amendment, citing to Furman v. Georgia, 408 U.S. 238 (1972). In
Furman, the Supreme Court reversed and remanded three cases where death
sentences were imposed. Id. at 239–40. In his concurring opinion, Justice Douglas
stated that the “primary principle is that a punishment must not be so severe as to
be degrading to the dignity of human beings.” Id. at 271 (Douglas, J., concurring).
In this case there is no record from which we can assess whether the statement rose
to the level of “degrading to the dignity of human beings.” See id. In Payne v.
Tennessee, the Supreme Court concluded that the Eighth Amendment presents no
per se bar to presentation of a victim impact statement prior to sentencing of the
defendant. 501 U.S. 808, 824–25 (1991) (“The States remain free, in capital cases,
as well as others, to devise new procedures and new remedies to meet felt needs.
Victim impact evidence is simply another form or method of informing the
sentencing authority about the specific harm caused by the crime in question,
evidence of a general type long considered by sentencing authorities.”). The fact
that the victim statement was from appellant’s ex-wife and that they had a
tumultuous relationship does not render the statement from her cruel and unusual
per se.5
5
Appellant also notes that the trial court erred in admitting more than one victim
21
We overrule appellant’s third issue.
V. CONCLUSION
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
Do Not Publish — TEX. R. APP. P. 47.2(b).
statement under Article 42.03 but fails to make any argument as to what harm such alleged error
caused. As a result, to the extent that appellant tries to raise this issue on appeal it is
inadequately briefed. See Tex. R. App. P. 38.1(i).
22