      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00599-CR




                                   Phill Raije Rian, Appellant

                                                 v.

                                  The State of Texas, Appellee



 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
   NO. 06-1562-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Phill Raije Rian guilty of three counts of sexual assault of a

child for which it assessed prison terms of ten, thirteen, and ten years, respectively, with a

recommendation of probation on the third count only. See Tex. Penal Code Ann. § 22.011 (West

Supp. 2008). Appellant contends that the trial court abused its discretion by ordering the sentences

to run consecutively and by refusing to hold a hearing on her motion for new trial. She further

contends that the trial court erred by overruling the motion to suppress her recorded oral statements

to the police. Finally, appellant contends that her trial counsel rendered ineffective assistance. We

overrule these contentions and affirm the convictions.
                                          BACKGROUND

                Appellant, who was forty-one, and her two children, ages four and two, lived across

the street from the complainant, K.B.C., and his family. K.B.C., who was sixteen, babysat and did

errands for appellant, and the two became friends. During the summer of 2006, this friendship

became a romance. The evidence shows that, on three different occasions, appellant engaged in oral

sex with K.B.C. by putting his penis in her mouth. See id. § 22.011(a)(2)(C).

                K.B.C.’s mother suspected that her son was having a sexual relationship with

appellant, and she reported her suspicions to the Williamson County Sheriff’s office. Detectives

John Foster and Dennis Garrett spoke to K.B.C. on September 11, 2006. After first denying that he

and appellant had been sexually intimate, K.B.C. told the detectives about the oral sex acts and also

disclosed an act of sexual intercourse with appellant that took place at a hotel in Travis County.

                The following day, Foster arranged for K.B.C. to make a recorded telephone call to

appellant. During this call, K.B.C. attempted without success to have appellant acknowledge their

sexual activities. Subsequently, K.B.C. had a face-to-face conversation with appellant that was also

recorded by Foster. During this conversation, appellant told K.B.C. that “you can kill us” and “I’ll

do 25 years.”

                On September 14, Foster and Garrett went to appellant’s house in the early afternoon.

They told appellant what K.B.C. had said and asked her if she would be willing to discuss the matter

at the sheriff’s office. Appellant agreed to do so. Before leaving the house, the officers discovered

that they had a flat tire on their car, and they left appellant alone for fifteen minutes while they put

on the spare. Appellant, with her two children, then followed the detectives to the sheriff’s office



                                                   2
in her own vehicle. Victim’s services personnel watched the children while appellant was

questioned in an interview room.

               Foster began the interview by telling appellant that the door was unlocked and that

she was free to leave at any time.1 Appellant was given a cup of water, and she was provided water

throughout the questioning. During the first hour of the interview, appellant insisted that she had

had no sexual contact with K.B.C., and that the accusations against her were attributable to his

mother’s dislike of her. To this end, appellant described at length her various encounters with

K.B.C.’s mother. After about an hour, Foster and Garrett began to press appellant to tell them the

truth. Foster told appellant, “I don’t want you leaving here without you understanding what’s going

on, okay? And I don’t want you to leave here without me understanding what’s going on. I need

your side. I cannot help you, this man [Garrett] cannot help you unless I have the truth. And you

have not been truthful.”

               At this point, appellant withdrew from her purse two business cards from an attorney,

handed them to the officers, and said, “He said if you have any problem with [K.B.C.’s mother],

have them talk to me. And he said don’t say anything until they talk to me, but when you came to

the door, I wanted to come with you.” At this point, the officers reminded appellant that she was free

to leave whenever she wanted, and the questioning continued. A few minutes later, after appellant

again insisted that she had done nothing wrong, Garrett asked, “Then why would you get an

attorney?” Appellant replied, “To protect my babies,” adding that she had consulted the attorney for




   1
     The entire interview was video-recorded. Our summary of the interview is based on the trial
court’s written findings and our own viewing of the video.

                                                  3
the purpose of getting a restraining order against K.B.C.’s mother. Garrett asked appellant why the

attorney had told her not to talk to the police, and she responded, “He didn’t. He said if you have

any problem with [K.B.C.’s mother].”

                Appellant then asked to use the restroom. Foster replied, “You can go whenever you

want,” but asked appellant if she could wait, saying, “We’re on a roll right now and we’re getting

some honest answers from you.” The interview continued for another five minutes, when appellant

again asked to use the restroom. The officers agreed, and everyone left the interview room. At this

point, the interview had been going on for an hour and ten minutes. About two minutes later, the

officers can be heard outside the interview room, looking for appellant. Foster says, “She’s gone.”

Garrett replies that appellant’s purse is still in the interview room and suggests that she might be

checking on her children. Eventually, the detectives realize that appellant accidentally went to the

men’s restroom.

                After appellant and the two detectives returned to the interview room, Foster asked

her, “Did you check into a hotel room with [K.B.C.]?” Appellant paused and said, “You know what,

that’s going to sound too bad. I think in that case maybe you should call that attorney cause that’s

gonna sound—.” Foster said, “Well, I’m not going to call an attorney. I think it’s time for you to

start being honest.” Appellant replied, “Well, they said if I had any problem with [K.B.C.’s mother]

for you to call them.” Foster responded, “I’m not having a problem with [K.B.C.’s mother], I’m

having a problem with you.” Appellant said, “Well then, I need to call the attorney. I’m not trying

to be rude.” Foster said, “No,” and began to play one of the recorded conversations from the

previous day.



                                                 4
                The two officers continued to urge appellant to tell them the truth regarding her

relationship with K.B.C., and appellant repeatedly answered that she was afraid to do so. Foster

asked appellant, “Did [K.B.C.] ask you to perform oral sex on him?” Appellant answered, “I’m

afraid. I can’t answer that. I’m afraid.” Appellant expressed the fear that she would lose her

children, saying “I don’t want to trade [K.B.C.] for my kids.” Foster told her, “You’re not going to

be doing that.” Appellant replied, “Yeah, but I hear, like everybody’s been telling me horror stories,

that it doesn’t matter that we’re in love and that they’re going to totally just put me in prison.” When

appellant continued to express her concerns about her children, Garrett promised her that she would

be going home with her children, “100 percent guaranteed.” Later, Garrett told appellant, “You’re

walking away from this room today with your children, trust me.” Foster gave appellant a similar

assurance: “[Y]ou’re getting in that car and you’re taking your kids home.” At another point in the

interview, Garrett asked appellant, “Why do you think your kids will be taken away for the rest of

your life?” Appellant answered, “I don’t know Texas law.” Garrett responded, “Well, we do.”

                Foster told appellant that he could not help her if she did not tell him the truth.

Appellant responded, “How are you gonna help me? I’m screwed.” Appellant told the detectives,

“[I]t’s killing me because I’m not gonna leave here until I tell you the truth.” Eventually, after about

an hour and forty minutes of questioning, appellant told Foster and Garrett that she had “kissed

[K.B.C.] there.” She also acknowledged having sexual intercourse with K.B.C. at the hotel.

                The questioning by the detectives lasted a total of two hours, but appellant remained

in the interview room for another ninety minutes after the officers left. During a portion of this time,

appellant was alone while she prepared a written statement and made a cell phone call to a friend.



                                                   5
Appellant was also interviewed by a child protective services worker. After the questioning ended,

Foster went to a magistrate, who issued a warrant for appellant’s arrest. Foster executed the warrant

in the interview room, three-and-a-half hours after the questioning began. A video recording of the

entire three-and-a-half hours was introduced for record purposes, but only an edited version of the

two-hour interview, ending with appellant’s admissions, was shown to the jury.


                                ADMISSION OF STATEMENT

               In three points of error, appellant contends that the trial court erred by overruling her

motion to suppress her recorded oral statements to the detectives. A trial court’s ruling on a motion

to suppress is reviewed for an abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.

App. 2006). This means that the ruling will be upheld if it is reasonably supported by the record and

is correct under any applicable legal theory. Id. The trial court is the sole trier of fact and judge

of the credibility of the witnesses and the weight to be given their testimony. State v. Ross,

32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). We give almost complete deference to the trial court’s determination of the historical facts,

but we review de novo the trial court’s application of the law to those facts. Carmouche v. State,

10 S.W.3d 323, 327 (Tex. Crim. App. 2000).

               Appellant urges that her oral statements were inadmissible for three reasons: because

she was denied her right to counsel under the Texas Constitution, because she was denied her right

to counsel under the Fifth Amendment, and because the statements were involuntary. We will

address each contention in turn.




                                                  6
Article I, Section 10

                Article I, section 10 of the Texas Constitution guarantees the right to counsel in

criminal prosecutions. This right does not attach, however, until formal charges are brought.

McCambridge v. State, 778 S.W.2d 70, 76 (Tex. Crim. App. 1989). Appellant acknowledges in her

brief that she was not formally charged until after the questioning had ended and the statements at

issue had been made. For this reason, appellant’s contention that she was denied her state

constitutional right to counsel must necessarily fail.


Fifth Amendment

                The Fifth Amendment guarantee against self-incrimination contains an implicit right

to counsel during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 469-70 (1966). When

a suspect in custody asserts the right to counsel, all interrogation must cease until counsel is provided

or until the suspect personally reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477,

484-85 (1981). Appellant contends that she was in custody when she made her incriminating oral

statements, and that she made two requests for counsel that were disregarded by the officers. The

trial court concluded that appellant was not in custody at any time during her questioning by the

detectives and was free to leave up until the moment she was arrested on the warrant. The

conclusion that appellant was not in custody is subject to de novo review by this Court. Herrera

v. State, 241 S.W.3d 520, 527 (Tex. Crim. App. 2007).

                A person is in custody if, under the circumstances, a reasonable person would believe

that her freedom of movement was restrained to the degree associated with a formal arrest.

Stansbury v. California, 511 U.S. 318, 322 (1994); Herrera, 241 S.W.3d at 525; Dowthitt v. State,


                                                   7
931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The initial determination of custody depends on the

objective circumstances of the interrogation, not the subjective views of the police or the person

being questioned. Stansbury, 511 U.S. at 323; Dowthitt, 931 S.W.2d at 254. The subjective views

of the police officers regarding custody may become relevant if those views are conveyed to the

suspect, but only to the extent that the officer’s subjective views would affect a reasonable person’s

understanding of her freedom of action. Houston v. State, 185 S.W.3d 917, 920 (Tex. App.—Austin

2006, pet. ref’d). Station-house questioning does not, in itself, constitute custody for Miranda

purposes. Dowthitt, 931 S.W.2d at 255. Police conduct during the course of an interrogation may

escalate an initially voluntary inquiry into custodial interrogation. Id.

               Appellant accepted the detectives’ invitation or request to go to the sheriff’s office

to answer questions regarding her alleged sexual contact with K.B.C. Appellant acknowledges that

she went to the sheriff’s office voluntarily and that the initial questioning by the detectives was

noncustodial. See Anderson v. State, 932 S.W.2d 502, 505 (Tex. Crim. App. 1996). She contends,

however, that the interrogation became custodial when her requests for counsel (assuming that is

what they were) were not honored. But the officers had no obligation under the Fifth Amendment

to honor those requests if appellant was not in custody. See Oregon v. Mathiason, 429 U.S. 492, 495

(1977). Appellant’s argument in support of her contention is a form of bootstrapping: she asserts

that she was in custody because she was not allowed to speak to the lawyer, and that she was entitled

to speak to the lawyer because she was in custody. Appellant does not refer us to any authority

holding that a person’s request to speak with counsel, in and of itself, transforms a noncustodial

interrogation into a custodial interrogation under the Fifth Amendment. We believe that the proper



                                                  8
question under Stansbury is whether a reasonable person in appellant’s position would have believed

that her freedom of movement was restrained to the degree associated with a formal arrest when the

officers declined her suggestion that they call her attorney and, later, when they continued to question

her after she told them that she needed to call the attorney.

                Appellant was never physically restrained or told that she was under arrest. The only

evidence even suggesting that appellant was in custody at the time she gave the officers the

attorney’s business card was Foster’s statement, “I don’t want you leaving here without you

understanding what’s going on, okay? And I don’t want you to leave here without me understanding

what’s going on.” The trial court found that these statements “did not mean that [appellant] could

not leave,” but that instead they “represented Detective Foster’s objectives for the interview, or what

he desired to accomplish during the non-custodial interview of [appellant].” We agree with the trial

court that a reasonable person would not have understood the officer to be saying that she was under

arrest or its functional equivalent.

                The trial court found, and the record confirms, that the door to the interview room was

unlocked while appellant was being questioned. Appellant was repeatedly told by the officers that

she was free to leave at any time. Appellant was allowed to leave the interview room to use the

restroom—apparently without supervision, as the video shows that the detectives briefly lost track

of her and believed that she had left the building. Although appellant had the attorney’s business

card and her cell phone, she never attempted to call the attorney either from the interview room, from

the hallway outside the interview room, or from the bathroom. In fact, even after the questioning

ended and appellant was alone in the interview room, she called a friend but not the attorney.



                                                   9
                We hold that under the circumstances shown by this record, a reasonable person in

appellant’s position would not have believed that her freedom of movement was restrained to the

degree associated with a formal arrest at the time she was being questioned by the two detectives.

Because appellant was not in custody, she had no Fifth Amendment right to counsel and the officers

were not obligated to stop questioning her when she asked to speak to her attorney.2


Voluntariness

                Appellant contends that her recorded statements to Foster and Garrett were

involuntary under two different theories. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex.

Crim. App. 2008) (stating that statement can be involuntary under three different theories).

First, she contends that her statements were involuntary under the Due Process Clause.

U.S. Const. amend. XIV. Second, she contends that the statements were involuntary under article

38.22, section 6. Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West 2005). The voluntariness

requirement applies to both custodial and noncustodial statements. State v. Terrazas, 4 S.W.3d 720,

727 (Tex. Crim. App. 1999).

                A confession is involuntary under the Due Process Clause only when there is official,

coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the

product of an essentially free and unconstrained choice by its maker.           Alvarado v. State,

912 S.W.2d 199, 211 (Tex. Crim. App. 1995). Statements that have been found to be involuntary




   2
    For the same reason, the officers’ failure to advise appellant of her rights before or during the
course of the questioning did not render her statements inadmissible. See Miranda v. Arizona,
384 U.S. 436 (1966); Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (West 2005).

                                                 10
under the Due Process Clause involve the crucial element of police overreaching and involve fact

scenarios in which the suspect was subjected to threats, physical abuse, or extended periods of

interrogation without rest or nourishment. See Oursbourn, 259 S.W.3d at 170-71 (collecting cases).

Absent coercive police activity, a statement is not involuntary within the meaning of the Due Process

Clause even if it was not the product of a meaningful choice by the speaker. Id. at 170 (citing

Colorado v. Connelly, 479 U.S. 157 (1986)).

                Article 38.22, section 6 provides that only voluntary statements may be admitted in

evidence. The statute works in tandem with article 38.21, which provides that an accused’s

statement may be used in evidence against him “if it appears that the same was freely and voluntarily

made without compulsion or persuasion.” Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005).

Claims of involuntariness under these statutes can be, but need not be, predicated on police

overreaching of the sort required under due process analysis. Oursbourn, 259 S.W.3d at 172. Under

article 38.21 and 38.22, section 6, courts may consider, in addition to any allegedly coercive conduct

by the police, factors such as the suspect’s youth, intoxication, mental retardation, or other disability

that would not raise a federal due process claim. Id. at 172-73.

                To determine the voluntariness of a confession or other statement, all of the

circumstances surrounding its acquisition must be considered. Wyatt v. State, 23 S.W.3d 18, 23

(Tex. Crim. App. 2000). After making its findings of fact, the trial court concluded that appellant’s

statements to the detectives were voluntary. Once again, we are bound by the trial court’s findings

of historical fact and consider only whether the court properly applied the law to those facts. Id.




                                                   11
               Appellant contends that her oral admissions to the officers were coerced and

involuntary for several reasons. First, she contends that she was not permitted to use the restroom.

The record shows that when appellant first said she needed to use the restroom, Foster asked her if

she could wait because they were “on a roll.” Appellant agreed to wait, only to ask again a few

minutes later. This time, appellant was allowed to go to the restroom without further delay. We find

nothing in this record that could reasonably be considered police overreaching of the sort that would

render a statement involuntary in either the due process or statutory sense.

               Next, appellant urges that her statements were involuntary because the detectives did

not allow her to call her attorney. The record reflects that appellant first gave the officers the

attorney’s business card and asked them to call. Later, reluctant to answer Foster’s question as to

whether she checked into a hotel with K.B.C., appellant said, “I need to call the attorney. I’m not

trying to be rude.” Foster said, “No” and began to play a recorded telephone call. It is unclear

whether Foster was saying, “No, you may not call the lawyer” or “No, you are not being rude,” and

the trial court did not make a finding of fact with regard to this.

               We have already held that appellant was not in custody. As the trial court found,

appellant could have left the interview room at any time and called the attorney on her cell phone.

Appellant also could have called from the restroom during that break in the questioning, which

preceded her incriminating statements. And the strength of appellant’s desire to speak to the attorney

must be considered in light of her failure to call the attorney even after she was left alone in the

interview room. If appellant felt constrained from calling the attorney in the detectives’ presence,

there is no evidence of coercive conduct by the detectives of such a nature that appellant’s statements



                                                  12
were unlikely to have been the product of an essentially free and unconstrained choice. Similarly,

there is no evidence that appellant’s frustrated desire to speak with the attorney produced in her a

state of mind that would render her later statements involuntary within the meaning of articles 38.21

and 38.22, section 6.

               Appellant further argues that her incriminating oral statements were involuntary

because Foster and Garrett repeatedly assured her that she would be allowed to leave the sheriff’s

office and go home with her children after the questioning ended, when in fact she was arrested and

jailed. The trial court found that at the time the officers made those statements to appellant, they

believed that she and her children would in fact be going home after the interview. This finding of

fact is supported by Foster’s testimony and is binding on this Court. Appellant also cites the

detectives’ statements to the effect that appellant had no reason to fear losing custody of her children

if she admitted engaging in sexual activities with K.B.C. The trial court made no finding of fact as

to whether the officers actually believed this to be true.

               A promise in itself does not necessarily render a statement involuntary as a matter of

due process, but it is a factor to consider in applying “totality of the circumstances” analysis.

41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice & Procedure § 13.193

(2d ed. 2001) (citing Arizona v. Fulminante, 499 U.S. 279, 285-88 (1991)). A promise will render

a statement involuntary under articles 38.21 and 38.22, section 6 if it was positive, made or

sanctioned by someone in authority, and of such an influential nature that it would cause a person

to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004). In Alvarez

v. State, the district attorney’s promise to the suspect that he would be allowed to go home after



                                                  13
giving a statement, when in fact he was arrested, was held not to be the primary incentive for the

defendant to confess, and thus it did not render the confession involuntary. 649 S.W.2d 613, 620-21

(Tex. Crim. App. 1982). In Gonzales v. State, an officer’s promise to the suspect that he would

be allowed to go home after signing his statement, which he was allowed to do, was held not to

be of such an influential nature as to cause the suspect to speak untruthfully. 4 S.W.3d 406, 414

(Tex. App.—Waco 1999, no pet.).

                It is difficult to believe that Foster and Garrett truly thought that appellant had no

reason to fear losing custody of her children as a result of her sexual relationship with K.B.C.

However, trickery or deception does not make a statement involuntary unless the method was

calculated to produce an untruthful confession or was offensive to due process. Creager v. State,

952 S.W.2d 852, 856 (Tex. Crim. App. 1997). We are satisfied that the detectives’ promises and

assurances to appellant did not constitute police coercion rendering appellant’s inculpatory

statements involuntary in the due process sense. We are also satisfied that these assurances would

not have caused appellant to falsely confess to engaging in oral sex with K.B.C. Although the

officers’ assurances may have allayed some of appellant’s fears regarding the potential consequences

of her admissions, we do not believe that the were such as to render those admissions involuntary

under articles 38.21 and 38.22, section 6.

                Referring to her statement to the detectives, “[I]t’s killing me because I’m not gonna

leave here until I tell you the truth,” appellant argues that she believed that she would not be allowed

to leave the interview room until she had told the truth as Foster and Garrett saw, that is, until she

confessed to engaging in sexual activities with K.B.C. The trial court found, on the other hand, that



                                                  14
this statement showed that appellant was “trying to work up the nerve . . . and overcome her

hesitancy to admit her guilt . . . .” Considering the totality of the circumstances, including all of the

circumstances cited by appellant and discussed above, we conclude that appellant’s recorded oral

statements during the noncustodial police questioning on September 14, 2006, were freely and

voluntarily made.

                We hold that the trial court did not err by overruling appellant’s motion to suppress

her recorded oral statements. Issues three, four, and five are overruled.


                 CUMULATION ORDER AND MOTION FOR NEW TRIAL

                After the jury returned its punishment verdicts, the State moved that the sentences be

cumulated. The motion was granted over appellant’s objection. Subsequently, appellant filed a

motion for new trial asking that the court order a new trial as to punishment or, alternatively, set

aside the cumulation order, and requesting a hearing. In the motion, appellant urged that the State,

by requesting the cumulation order without prior notice to the defense, vindictively sought to punish

her for declining the State’s plea bargain offer and for exercising her right to a jury trial.3 In

two issues, appellant contends that the trial court abused its discretion by ordering that the sentences

be served consecutively and by overruling her motion for new trial without conducting a hearing.

                A trial court abuses its discretion in denying a hearing on a timely motion for new

trial if the motion raises a matter outside the record upon which relief could be granted. Flores

v. State, 18 S.W.3d 796, 798 (Tex. App.—Austin 2000, no pet.). Appellant argues that she was


   3
     According to the motion for new trial, the State had offered appellant a seven-year probated
sentence in exchange for a guilty plea.

                                                   15
entitled to a hearing in this case in order to further develop her prosecutorial vindictiveness claim.

We disagree because the State’s motive for requesting the cumulation order does not affect the

validity of the order.

                It is undisputed that the trial court was statutorily authorized to cumulate the three

sentences in this cause. See Tex. Penal Code Ann. § 3.03(b)(2)(A) (West Supp. 2008). Section 3.03

does not condition the trial court’s authority to cumulate sentences on the filing of a motion by the

State. The task of cumulating sentences is assigned exclusively to the trial court. Beedy v. State,

250 S.W.3d 107, 110 (Tex. Crim. App. 2008). Whatever the State’s motivation in moving for the

sentences to be cumulated, the decision to have the sentences run consecutively was the trial court’s

alone. Further, a defendant does not have a due process right to advance notice that the sentences

might be cumulated. Millslagle v. State, 150 S.W.3d 781, 784-85 (Tex. App.—Austin 2004, pet.

dism’d, untimely filed). The trial court did not abuse its discretion by failing to conduct a hearing

on appellant’s motion for new trial. Issue one is overruled.

                Appellant argues that the trial court’s order imposing what is, in effect, a

twenty-three-year prison term followed by a ten-year period of probation was, under the

circumstances, outside the zone of reasonable disagreement. But absent an Eighth Amendment

disproportionality claim, which appellant does not make, the court of criminal appeals has held that

a trial court’s decision to cumulate sentences is unassailable on appeal:


        Subject only to a very limited, “exceedingly rare,” and somewhat amorphous Eighth
        Amendment gross-disproportionality review, a punishment that falls within the
        legislatively prescribed range, and that is based upon the jury’s (or trial court’s, in a
        bench trial) informed normative judgment, is unassailable on appeal. The same thing
        is true for the discretionary decision whether to cumulate sentences.

                                                   16
Barrow v. State, 207 S.W.3d 377, 381 (Tex. Crim. App. 2006) (footnote omitted); see also Beedy,

250 S.W.3d at 110. Issue two, by which appellant contends that the cumulation order was an abuse

of the trial court’s discretion, is overruled.


                                  INEFFECTIVE ASSISTANCE

                Appellant contends that she was denied her federal and state constitutional right to

effective assistance of counsel at her trial. Appellant acknowledges that the Texas Constitution is

no more protective of the right to counsel than the Sixth Amendment. See Hernandez v. State,

988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.

App. 1986). Therefore, we will review appellant’s contention under the Sixth Amendment standard

enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Appellant must show that her

trial attorneys made such serious errors that they were not functioning effectively as counsel and that

these errors prejudiced her defense to such a degree that she was deprived of a fair trial. Id.

                In reviewing a claim of ineffective assistance, we must indulge a strong presumption

that counsel’s conduct fell within the wide range of reasonable professional assistance. Jackson

v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption, an allegation

of ineffectiveness must be firmly founded in the record and the record must affirmatively

demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

This burden is made more difficult when, as in this cause, the issue was not raised by motion for new

trial and there is no record focused on the motives behind trial counsel’s actions. Id.

                Appellant contends that her trial attorneys were ineffective in three respects.

First, she complains that they failed to timely object to K.B.C.’s testimony regarding the extraneous

                                                  17
act of sexual intercourse that occurred in Travis County. In fact, appellant’s lead counsel not only

did not object to K.B.C.’s testimony, he cross-examined K.B.C. about the incident. It was only

during Detective Foster’s testimony that counsel objected that the Travis County incident was an

inadmissible extraneous offense under rule 404(b). Tex. R. Evid. 404(b). The trial court overruled

the objection on the ground that it was not timely.

                Notwithstanding rule 404, evidence of other crimes, wrongs, or acts committed

against the child who is the alleged victim of a sexual assault is admissible for its bearing on the state

of mind of the defendant and the child and on the relationship between the defendant and the child.

Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp. 2008). Thus, even a timely objection to the

extraneous offense would have properly been overruled. Counsel was not ineffective for failing to

timely object. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004).

                Next, appellant contends that her attorneys were ineffective because they did not

object to the admission of State’s exhibit 8, the recordings of her conversations with K.B.C. on

September 12, 2006, on the ground of untimely notice. The record reflects, however, that before the

State offered the exhibit in evidence, defense counsel cross-examined both K.B.C. and Foster

regarding the content of these conversations. Moreover, when the State offered the exhibit, the trial

court agreed to delay its ruling on the admission of the exhibit to give counsel more time to listen

to the recordings. The following day, when the State reoffered the exhibit, appellant’s attorney said

that he had no objection. At the very least, there is no basis in this record for concluding that the

defense was prejudiced by counsel’s failure to object to the admission of exhibit 8.




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                Finally, appellant contends that her attorneys were ineffective “in failing to realize

that these sentences could be cumulated without prior notice by the prosecution and in failing to

advise Appellant that the sentences could be cumulated.” As evidence supporting this claim,

appellant cites trial counsel’s written reply to the State’s response to the motion for new trial. In this

unsworn reply, appellant’s lead trial counsel stated:


        [T]he State did not indicate that it would seek to stack the sentences in the event of
        a conviction. Rather, the State contra-indicated that it would seek to stack by
        offering a plea deal of probation/deferred adjudication. Consequently, defense
        counsel did not advise defendant of the possibility that the sentences could be
        stacked, thus exposing her to a significantly greater potential punishment than she
        would have been exposed to had she elected to reject a plea offer and go to trial in
        a case where stacking the sentences was not an option for the State. Thus, the State’s
        failure to provide such notice inadvertently misled defense counsel, and thus assumed
        constitutional dimensions, ultimately depriving defendant of due process.


Appellant argues that if she had been advised by counsel that the sentences on the three counts might

be cumulated, she could have made a better-informed decision regarding whether to accept the

State’s plea offer.

                Appellant’s brief implies, although it does not explicitly state, that she would have

accepted the offered plea bargain if she had known that her sentences on each count could be

cumulated. But assertions of fact in an appellate brief that are not supported by the record do not

constitute evidence that may be considered on appeal. McDonald v. State, 64 S.W.3d 86, 89 (Tex.

App.—Austin 2001, no pet.). Similarly, counsel’s unsworn pleading does not constitute evidence.

See Perales v. State, 226 S.W.3d 531, 536 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). The

record before us is inadequate to determine what trial counsel told or did not tell appellant regarding



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her potential punishment exposure, or the effect that this advice or lack of advice might have had on

her decision to refuse the State’s proffered plea bargain.

               Appellant has not demonstrated that her trial counsel rendered constitutionally

inadequate assistance. Issues six and seven are overruled.

               The judgments of conviction are affirmed.




                                              __________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: August 11, 2009

Do Not Publish




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