Opinion filed May 28, 2009




                                                In The


   Eleventh Court of Appeals
                                              __________

                                       No. 11-07-00194-CR
                                            ________

                           ROBERT LEE WORTHY, Appellant

                                                   V.

                                STATE OF TEXAS, Appellee


                             On Appeal from the 35th District Court
                                     Brown County, Texas
                                Trial Court Cause No. CR17633


                                             OPINION
        Robert Lee Worthy appeals his conviction by a jury following his plea of guilty of two
offenses of sexual assault. The jury assessed his punishment for each offense at eight years in the
Texas Department of Criminal Justice, Institutional Division. The trial court ordered that his
sentences be served concurrently. He contends in eight points of error that (1) the trial court erred
in admitting evidence that his stepbrother was a registered sex offender because such evidence was
not relevant since the probative value of such evidence was substantially outweighed by the danger
of unfair prejudice and since the State failed to give notice of its intent to offer such evidence (Points
One, Two, and Three); (2) his attorney rendered ineffective assistance of counsel by failing to object
to a misstatement of law made by the trial court and by failing to request an instruction in the jury
charge correcting the trial court’s misstatement of the law regarding concurrent versus consecutive
sentencing in his case (Points Four and Five); (3) the trial court abused its discretion in admitting
testimony by the investigating detective that Worthy had engaged in a “grooming” process and
thereby caused the complainant to engage in sexual relations because the testimony was not
admissible under either Rule 701 or Rule 702 of the Texas Rules of Evidence (Points Six and
Seven); and (4) the trial court violated TEX . CODE CRIM . PROC. ANN . art. 26.13(b) (Vernon 2009)
by continuing to rely on guilty pleas that no longer appeared free and voluntary, rather than granting
Worthy’s motion for a mistrial (Point Eight). We affirm.
       Worthy contends in Points One and Two that the trial court erred in admitting testimony that
his stepbrother was a registered sex offender because the evidence was not relevant and because the
probative value of the evidence was substantially outweighed by the danger of unfair prejudice.
       When the complainant was fourteen years of age, Worthy and his wife took her into their
family. The complainant’s aunts advised the Worthys that the complainant was acting out and had
been promiscuous. Over time, before the complainant became seventeen years of age, Worthy and
the complainant developed a sexual relationship. He sometimes brought the complainant to his
stepbrother’s house or apartment. Worthy testified that the house or apartment was split into two
sections with two entrances. He indicated that he installed a lock on the connecting door to his
room. Worthy stated that his stepbrother had no access to his room and had no knowledge about
what was going on. Worthy acknowledged that, at the time he brought the complainant to his
stepbrother’s house, he knew one of the conditions of his stepbrother’s community supervision was
that he could not have unsupervised children under the age of seventeen in his home and that he
knew, when he took the complainant over to his stepbrother’s house, it was a violation of his
stepbrother’s community supervision.
       Before a jury, Worthy pleaded guilty to the indictment, which charged that he intentionally
and knowingly caused the penetration of the complainant’s sexual organ by his sexual organ when
she was younger than seventeen and not his spouse. He filed an application for community
supervision. Consequently, one of the issues for the jury to determine was whether Worthy should
receive community supervision or be assessed punishment in the Texas Department of Criminal
Justice, Institutional Division. We agree with the State’s contention that evidence of Worthy’s


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disregard for the conditions of his stepbrother’s community supervision and lack of care for the
complainant by leaving her unsupervised at the home or apartment of his stepbrother, a registered
sex offender, was relevant to the issue of whether he would follow the conditions of his own
community supervision, should the jury determine that he should be placed on community
supervision, and relevant to show the context in which he committed the offense in order for the jury
to properly assess punishment.
       TEX . R. EVID . 403 provides that evidence, although relevant, may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. When the State initially sought
to introduce evidence that Worthy’s stepbrother was a registered sex offender, Worthy’s counsel
objected that the testimony would be inappropriate, irrelevant, and prejudicial. He further indicated
that the testimony was so prejudicial and inflammatory that it would have absolutely no probative
effect on the jury except to inflame its passions and to make some inappropriate suggestions. The
trial court sustained the objection on the basis that the probative value of the testimony was
outweighed by its prejudicial nature. The trial court instructed the jury at that time to disregard any
testimony offered concerning the alleged criminal record of Worthy’s brother.
       When the State later sought to introduce evidence that Worthy’s stepbrother was a registered
sex offender, counsel for Worthy again raised the issue of relevance. In the context of his discussion
of the issue, Worthy’s counsel argued that the State “can’t suggest anything else that it provides any
probative information before the jury. It’s only prejudicial. And I suggest it’s only offered for its
prejudicial effect and should not be permitted before the jury.” In his objection and argument,
counsel made no specific reference to Rule 403 and did not succinctly state that the probative value
of the evidence was substantially outweighed by the danger of unfair prejudice. We believe,
however, that his statements were sufficient to bring before the trial court the issue of whether the
probative value of the testimony was substantially outweighed by the danger of unfair prejudice. The
State makes no argument to the contrary.
       Either a trial court or a reviewing court, when undertaking a proper Rule 403 analysis, must
balance (1) the inherent probative force of the proffered item of evidence along with (2) the
proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on
an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main


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issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of
the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). As previously noted,
Worthy acknowledged that one of the conditions of his stepbrother’s community supervision was
that he was not allowed to have children under seventeen at his house unsupervised and that he knew
when he took the complainant to his stepbrother’s house it was a violation of his stepbrother’s
community supervision.
       The jury could reasonably determine from this evidence that Worthy had little regard for his
stepbrother’s conditions of community supervision and little regard for the safety of the complainant
if, as Worthy’s testimony implied, he had left her unsupervised at his stepbrother’s place of
residence. We find the evidence to be highly probative of that fact. We know of no other way for
the State to show that Worthy had little regard for conditions of community supervision for sex
offenders and to show the danger he put the complainant in by having her unsupervised at his
stepbrother’s place of residence other than to show that his stepbrother was a registered sex offender.
Although the introduction of the evidence that Worthy’s stepbrother was a registered sex offender
might have had the potential to distract the jury from the main issue or cause it to be given undue
weight, little time was consumed in presenting evidence that Worthy’s stepbrother was a registered
sex offender, and the evidence was not repetitive. Having considered all of these factors, we
conclude that the probative value of the evidence that Worthy’s brother was a registered sex offender
is not substantially outweighed by the danger of unfair prejudice.
       Worthy argues that there is no evidence that he ever left the complainant unsupervised at his
stepbrother’s place of residence, ignoring his own testimony that, when he brought her to his
stepbrother’s place of residence, it violated the conditions of community supervision that did not
allow an unsupervised child under seventeen to be present there. Worthy contends that this evidence
did not relate to what punishment would be appropriate, but we conclude that his disregard of his
stepbrother’s conditions of community supervision and his placing the complainant in danger by
leaving her at his stepbrother’s residence unsupervised were relevant and highly probative with
respect to the jury’s determination of punishment. We overrule Points One and Two.


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        Worthy insists in Point Three that the trial court erred in admitting evidence that his
stepbrother was a registered sex offender because the State failed to give notice of its intent to offer
such evidence as required by the trial court’s standing pretrial order. Under the trial court’s order,
the district attorney was to give reasonable notice of several things, including “any other evidence
of an extraneous offense, crime or bad act shown to have been committed by the defendant.” The
evidence that Worthy, in committing the offense for which he was charged, violated the conditions
of his stepbrother’s community supervision that an unsupervised child under seventeen not be at his
place of residence – showing his disregard for conditions of community supervision and placing the
complainant in jeopardy – is part of the context of the crime for which he was being tried and is not
an extraneous bad act. Consequently, the State’s introduction of this evidence was not in violation
of the trial court’s order, which only related to extraneous bad acts. As the State notes, the trial court
appears to have been under the impression that the evidence was not contextual and was subject to
the notice requirement and that adequate notice had been given. Because the evidence related to the
context of the offense for which he was charged and not conduct that was extraneous to his
commission of that offense, we conclude that the trial court was in error in its reasoning. We reject
the assumption in Worthy’s arguments that this evidence consists of extraneous bad acts. We
overrule Point Three.
        In Points Four and Five, Worthy contends that his attorney rendered ineffective assistance
of counsel by failing to object to a misstatement of law made by the trial court and by failing to
request an instruction in the jury charge to correct the trial court’s misstatement of the law regarding
concurrent versus consecutive sentencing in his case. In order to prevail on his claim of ineffective
assistance of counsel, an appellant must first show that his counsel’s performance was deficient.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 832 (Tex. Crim.
App. 2002). An appellant must prove, by a preponderance of the evidence, that his counsel’s
representation fell below the objective standard of professional norms. Mitchell v. State, 68 S.W.3d
640, 642 (Tex. Crim. App. 2002). Second, an appellant must show a reasonable probability that, but
for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id.
A “reasonable probability” is one sufficient to undermine confidence in the outcome. Id.




                                                    5
        Our review of defense counsel’s representation is highly deferential and presumes that
counsel’s actions fell within the wide range of reasonable and professional assistance. Bone, 77
S.W.3d at 832. Under normal circumstances, the record on direct appeal will not be sufficient to
show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-
making as to overcome the presumption that counsel’s conduct was reasonable and professional.
Id. Rarely will the trial record contain sufficient information to permit a reviewing court to fairly
evaluate the merits of such a serious allegation. Id.
        When Worthy was admonished before the jury, the trial court instructed him that, given the
fact that the two counts with which he was charged were part of the same indictment, in the event
of his conviction, his punishment “would run concurrent and not consecutive.” Worthy presented
no objection. Later, in the charge conference, the trial court acknowledged that perhaps the
sentences could be stacked and that this could pose a problem. The trial court afforded counsel the
opportunity to address that in the charge, but neither the State nor Worthy requested any amendment
to the charge to address that issue. The trial court ordered that the sentences be served concurrently.
        Given the fact that our record does not reflect the reason for trial counsel’s failure to object
to the trial court’s misstatement of the law and the failure to correct it in the charge, we decline to
find that Worthy was afforded ineffective assistance at trial. Citing Andrews v. State, 159 S.W.3d
98, 102-03 (Tex. Crim. App. 2005), Worthy suggests that we are required to find his trial counsel
ineffective because there could have been no trial strategy for failing to correct the trial court’s
misstatement. We find that Andrews is distinguishable. In Andrews, the court held that, where the
State had filed a motion for the trial court to stack Andrews’s sentences, defense counsel could have
had no sound strategy for failing to object to the State’s representation to the jury that his sentences
could not be stacked. Id. at 103. The court concluded that, in view of the lack of any sound trial
strategy and in view of the fact that the trial court stacked Andrews’s sentences, the judgment should
be reversed, and the cause remanded for a new hearing on punishment. Id. In the case at bar, there
is no indication that the State was seeking to stack the sentences, and the trial court did not stack the
sentences. Worthy’s trial counsel could have reasonably believed that, if the jury did not award
Worthy community supervision as he sought, the trial court would seek to avoid reversal by not
stacking his sentences and that, whether the trial court did or did not stack the sentences, there was


                                                   6
a reasonable possibility that Worthy could receive a new trial based upon the decision in Andrews.
Counsel could reasonably have believed that under the decision in Andrews he would not have to
ever give his reason for his failure to object. We overrule Points Four and Five.
        Worthy urges in Points Six and Seven that the trial court abused its discretion when it
admitted testimony by the investigating detective that he had engaged in a “grooming” process and
thereby caused the complainant to engage in sexual relations because the testimony was not
admissible under either Rule 701 or Rule 702. After the investigating detective testified that Worthy
had worked at his relationship with the complainant in a process called grooming, Worthy testified
that he agreed that he was grooming the complainant. We hold that, even if the trial court abused
its discretion in admitting this evidence, the admission of the evidence did not affect Worthy’s
substantial rights in view of his acknowledgment that he was grooming the complainant. We
overrule Points Six and Seven.
        Worthy contends in Point Eight that the trial court violated Article 26.13(b) by continuing
to rely on his guilty plea that no longer appeared free and voluntary, rather than granting his request
for a mistrial. Article 26.13(b) provides that no plea of guilty or nolo contendere shall be accepted
by the trial court unless it appears that the defendant is mentally competent and the plea is free and
voluntary. Upon Worthy’s testimony that his plea of guilty was free and voluntary and upon his
counsel’s representation that he had not observed anything that would lead him to believe that
Worthy was incompetent or insane, the trial court accepted his plea of guilty. However, prior to
accepting that plea, the trial court stated:
                Now, the two counts being part of the same indictment, if you are found
        guilty of each of these, as is likely with a plea of guilty, then, the punishment would
        run concurrent and not consecutive. That is, it wouldn’t be stacked on top of each
        other, but would be running side by side if you’re found guilty of each count.
As previously noted, Worthy made no objection to this statement by the trial court.
        At the conclusion of testimony, during the formal charge conference, the trial court noted its
error in misstating the law but offered to give the parties the opportunity to address that problem in
the charge if they had any concern about it.          Worthy’s counsel objected to the improper
admonishment at that time, asserting that it had rendered his client’s plea involuntary. Instead of
seeking any instruction to disregard the trial court’s comments and instead of seeking to withdraw


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his plea of guilty, Worthy requested a mistrial. The trial court denied both counsel’s objection and
his request for a mistrial. It has been held that, when a matter presented in a jury trial upon a guilty
plea calls that guilty plea into question, the defendant has the right to change the plea, but the trial
court has no duty to change the plea on the court’s own motion. Mendez v. State, 138 S.W.3d 334,
336 (Tex. Crim. App. 2004). We hold that, if the trial court’s erroneous admonition rendered
Worthy’s guilty plea involuntary, as he urges on appeal, he had the right to change his plea but that
the trial court had no duty to do so on its own motion. Worthy waived his objection to the trial court
continuing to rely upon his guilty plea by not withdrawing his plea and by not objecting to the trial
court’s failure to withdraw his plea on its own motion. See id. at 339. We overrule Point Eight.
       The judgment is affirmed.




                                                                                JOHN G. HILL
                                                                                JUSTICE


May 28, 2009
Publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1




       1
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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