                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-07-00083-CR
         ______________________________


       JIMMY LYNN FRANKLIN, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 71st Judicial District Court
               Harrison County, Texas
             Trial Court No. 06-0147X




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION

       Jimmy Lynn Franklin was convicted by a jury on two counts of aggravated sexual assault and

three counts of sexual performance by a child. The jury assessed punishment at various levels for

the different offenses, ranging from thirty years' to five years' imprisonment.

       On appeal, Franklin contends: (1) the evidence is legally and factually insufficient to support

the conviction; (2) the court erred by excluding material cross-examination evidence; and (3) he

received ineffective assistance of counsel at trial. We affirm the judgment of the trial court.

I.     Background

       Franklin, his wife, the wife's two daughters, and Franklin's daughter and son lived together.

It appears that all of the children (except for one of the wife's daughters) were teenagers, between

thirteen and fifteen years of age. Franklin was accused of convincing his daughter and one of his

stepdaughters to make two sexually suggestive videotapes (not in evidence) and of having his son

place a video camera in the attic pointed at one girl's bed (in evidence). He was also accused of

engaging in oral sex with one of his stepdaughters.

II.    Evidence

       The main argument about evidentiary sufficiency involves contradictions and conflicts in the

State's witnesses' testimony. The evidence shows that Franklin is disabled, with an electronic pain-

controlling implant in his spine, and that he uses narcotics as painkillers. There is some testimony




                                                 2
that thirteen-year-old stepdaughter S. used some of his drugs at various times, as well as using

alcohol and marihuana, and inhaling various fumes.

       The alleged sex act was with S. She testified that Franklin had placed his mouth on her sex

organ and that she had placed her mouth on his sex organ. She also testified that she and

stepsister K. made a video of K. holding a vibrator to S.'s genitals and another tape of S. attempting

to perform oral sex on K. But, when taken to a Child Advocacy Center (CAC) and interviewed

about her outcry, S. said nothing about engaging in oral sex with Franklin and also did not mention

it to the investigating officer. In response to questions asked at the CAC, S. specifically denied that

she had ever placed Franklin's penis in her mouth.

       W., Franklin's son, testified that Franklin asked him to place a video camera in the attic. W.

admitted on cross-examination that he had told Franklin's counsel that he made the videotape on his

own, not because of any request by Franklin.

       K. testified that Franklin asked her to videotape S. masturbating, that she and S. had "huffed"

gas before making the video, and that Franklin asked her to make a second video with S., showing S.

having oral sex with K. But, K. testified on cross-examination that she had told the CAC interviewer

about the first videotape, but did not mention a second tape, that S. had never done anything of a

sexual nature to her, and that she had told Franklin's counsel that she lied to the police in her

statement.




                                                  3
        B.H. (a student, friend of W., and acquaintance of the girls) testified that (soon after the

allegations were made) he asked S. why she had made those allegations, and she told him it was

because Franklin was "not gonna tell me who I can and can't hang out with," specifically, that she

was angry with Franklin for trying to keep her from seeing her friend M. B.H. testified that he told

S., "[Y]ou know, he can get into a lot of trouble for all of this that you are saying and she said, I don't

care, as long as I get to be with M." He also testified that he had seen S. use marihuana at home and

that she spent a lot of time talking about other types of drugs she had taken.

        Judy Lemons (S.'s grandmother) testified that, just before S.'s interview with the CAC, S. told

her that, if she told the truth, she would "go to juvie."

        The evidence shows that, before any of this began, Franklin allowed S. and K. to smoke and

supplied them cigarettes, and had twice allowed K. (the older girl) to drink alcoholic beverages. The

two videos made by K. and S. were not in evidence, and their testimony indicated that they were

made so that Franklin could use them as blackmail to keep S. and K. from telling his wife about what

he was permitting them to do. The third video, made from the ceiling by W., was before the jury.

        Franklin's wife, Gina, testified that S. had been spending time with a particular group of

friends with whom she had been getting into trouble and that Franklin had issued an ultimatum

ordering her to separate from those friends, that S. had drug problems, and that Franklin threatened

to have S. tested for drugs.1 Gina testified that S. evidently heard Franklin threaten to take away her

        1
       There was also testimony that police had called the Franklins to come and get both S. and
K., who had been found with some boys in a car drinking, and that S. had gotten into trouble at

                                                    4
friends and do drug tests and that S. was furious. Gina testified that S. asked her to leave Franklin

then, and Gina refused. The next day S. went to a school counselor and made these allegations

against Franklin.

       Franklin testified that he had never given the children either cigarettes or alcohol, but that

S. had taken beer from a refrigerator while they had lived in Huntsville, where they resided before

moving to Marshall. In connection with the video from the girls' room, he testified that he heard a

loud crack and went into their room, that W. was in the attic space above their room, and that W. told

him he had a way to catch them "huffing" or smoking. Franklin testified he told W. to come out of

the attic, and then went over to the crawl space that he would be coming out from. Franklin testified

that he asked W. where the camera was and that W. told him he had left it in the ceiling. Franklin

testified that he told W. to go get it and that he went back downstairs to watch over the smallest

child. According to Franklin, he knew nothing about the tape until the prosecution commenced.

Finally, Franklin denied all allegations that he had engaged in any sexual touching with S.

       Franklin also testified he had found a few of his pills missing, and then just before the

argument with Gina when he demanded that S. and K. be drug tested, he had found more missing.

III.   Sufficiency of the Evidence

       In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light

most favorable to the verdict and determine whether any rational trier of fact could have found the



school while hanging around with her friend M.

                                                  5
essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.

Crim. App. 2000).

       In a factual sufficiency review, we review all the evidence, but do so in a neutral light and

determine whether the evidence supporting the verdict is so weak or is so outweighed by the great

weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly

unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210

S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim.

App. 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In a factual sufficiency

review, we are to afford "due deference" to a jury's determinations. Marshall, 210 S.W.3d at 625.

       "Although an appellate court reviewing factual sufficiency has the ability to second-guess

the jury to a limited degree, the review should still be deferential, with a high level of skepticism

about the jury's verdict required before a reversal can occur." Roberts, 220 S.W.3d 521.

       Franklin does not allege that the evidence fails to prove the elements of each offense and does

not focus his argument on any particular one of the five counts involved in this prosecution. Instead,

he contends that the evidence is insufficient to allow a rational finder of fact to find guilt beyond a

reasonable doubt because of the inconsistent statements, contradictions, and admissions made by the

State's witnesses. Specifically, he complains that S.'s testimony was untrustworthy since she had

admitted to both her grandmother and a schoolmate that her allegations against Franklin were untrue.




                                                  6
Franklin also points out that W. admitted he had told Franklin's trial counsel that Franklin had

nothing to do with the attic videotape.

       Even though the record shows that there are discrepancies in the testimony and that S.'s and

W.'s testimonies were particularly contrary to statements they had previously made out of court, the

question before us is whether any of those discrepancies or inconsistencies is of such overwhelming

strength to allow us to set aside the jury's determination of guilt. It is the province of the jury to

judge the credibility of witnesses and the weight to be given their testimony, and reconciliation of

conflicts in the evidence is within the exclusive province of the jury. Margraves v. State, 34 S.W.3d

912, 919 (Tex. Crim. App. 2000). The jury may choose to believe some testimony and disbelieve

other testimony. Id.

       The jury made its determination after being confronted with these conflicts and

inconsistencies in the testimony. The testimony of the witnesses was subjected to cross-examination

and the jury's scrutiny. Under these facts, we will not intrude into that determination. The points

of error are overruled.

IV.    Cross-Examination Denied?

       Franklin next contends that the court committed reversible error by denying him the

opportunity to cross-examine one of the complaining witnesses about her motive for making false

accusations against him. He complains because he was not permitted to introduce evidence that S.

was angry at Franklin (and thus had fabricated the allegations) because Franklin had forbade her



                                                  7
from seeing M., with whom he contends S. was having a homosexual relationship. The specific

complaint was that he was not allowed to introduce evidence that the relationship was not merely

that of a friend, but was sexual in nature, and a hearing outside the presence of the jury was

conducted, expressly pursuant to Rule 412 of the Texas Rules of Evidence. See TEX . R. EVID . 412.

       The argument is: proof of a sexual relationship makes it much more likely that S. would

have an emotional meltdown and lash out by fabricating such lies against the person who forbade

her to see a lover than against a person who forbade her to see a friend. Thus, the efficacy of

Franklin's cross-examination was severely damaged by the court's decision not to allow that matter

to be presented to the jury.

       The court noted that no evidence of the existence of a homosexual relationship had been

presented and concluded that it was more prejudicial than probative, and refused to allow counsel

to question S. on that topic.

       Neither at trial nor on appeal has the constitutional dimension of confrontation and cross-

examination been raised. Thus, we restrict our review to the admissibility of the evidence under the

Texas Rules of Evidence.2

       2
        The Texas Court of Criminal Appeals has made it clear that an objection or argument that
evidence is admissible to attack a witness' credibility may involve both the constitutional right of
confrontation or evidentiary rules. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).
In order to assert the confrontation objection, it is necessary that a party clearly articulate that the
Confrontation Clause demanded admission of the evidence to allow the trial court to rule on the
issue. Id. at 179–80. In failing to present such an argument or objection to the trial court, the
confrontation issue was not preserved for appeal. See Perry v. State, 236 S.W.3d 859 (Tex.
App.—Texarkana 2007, no pet.).

                                                   8
        At trial, Franklin proffered the cross-examination of S. for the purpose of testing her

credibility, by seeking to show motive for lying. Several Rules of Evidence mention or allude to

testing a witness' credibility or to impeaching the witness. See, e.g., TEX . R. EVID . 607 ("The

credibility of a witness may be attacked by any party . . . ."), 611(b) ("A witness may be

cross-examined on any matter relevant to any issue in the case, including credibility."). During the

argument to the trial court, a discussion of Rule 609 concerning the admissibility of previous sexual

conduct took place. The court evidently accepted counsel's position that the exception applied, as

it related to the motive or bias of the alleged victim, but then concluded that its probative value did

not outweigh the danger of unfair prejudice. See TEX . R. EVID . 412(b)(2)(C), (b)(3), 609.

        A trial court has considerable discretion in determining whether to exclude or admit

evidence. See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1991) (op. on reh'g).

Absent an abuse of discretion, we will not disturb a trial court's decision to admit or exclude

evidence. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). Under this standard,

we will uphold a trial court's evidentiary ruling so long as the ruling is within the "zone of reasonable

disagreement." Id.; State v. Dudley, 223 S.W.3d 717, 724 (Tex. App.—Tyler 2007, no pet.).

        The State argues that this issue has not been preserved for review because counsel did not

make an adequate offer of proof, citing Kennedy v. State, 184 S.W.3d 309, 315 (Tex.

App.—Texarkana 2005, pet. ref'd). To preserve for review a ruling on evidence, the record must

contain a timely, specific objection and, if the ruling excludes evidence, an offer of proof. See TEX .



                                                   9
R. EVID . 103(a); TEX . R. APP . P. 33.1(a). As we recognized there, Rule 103 does allow a proponent

of the evidence in question to forego an offer of proof when the substance of the excluded evidence

was apparent from the context. TEX . R. EVID . 103(a)(2). Error can be preserved either by an offer

of proof in question-and-answer form or in the form of a concise statement by counsel. TEX . R.

EVID . 103(b); Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993). If an offer of proof is

made in the form of a concise statement, the concise statement must include a reasonably specific

summary of the proposed testimony. Love, 861 S.W.2d at 901; Harty v. State, 229 S.W.3d 849, 854

(Tex. App.—Texarkana 2007, no pet.).

       Franklin made no offer of proof indicating S.'s answers to the questions, and unlike the

situations where the questions have been found sufficient to preserve the claimed error, in this case

the substance of the evidence is not apparent from the context within which the questions were

asked. Compare Fairow v. State, 943 S.W.2d 895, 905 (Tex. Crim. App. 1997).

       We reiterate, to preserve error, the substance of the excluded evidence must be shown by

offer of proof unless it is apparent from the context of the questions asked. TEX . R. EVID . 103(a)(2);

TEX . R. APP . P. 33.2. In this case, we know what the question would have been. What we do not

know is what the answer would have been. Franklin did not proffer any other evidence that S. was

a lesbian or that she and M. were lovers, and there is no offer of proof to show that such evidence

could have been elicited.

       We find this issue has not been preserved for our consideration on appeal.



                                                  10
V.     Ineffective Assistance of Counsel

       Franklin next contends that he received ineffective assistance of counsel both at the

guilt/innocence and the punishment stages of trial. The standard of testing claims of ineffective

assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this

claim, an appellant must prove by a preponderance of the evidence (1) that his or her counsel's

representation fell below an objective standard of reasonableness and (2) that the deficient

performance prejudiced the defense. Strickland, 466 U.S. at 689; Rosales v. State, 4 S.W.3d 228,

231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove that the attorney's

representation fell below the standard of prevailing professional norms and that there is a reasonable

probability that, but for the attorney's deficiency, the result of the trial would have been different.

Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant must

prove that counsel's representation so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

       Franklin complains that counsel was ineffective because he did not ask specific questions,

because he did not record or take a statement from his son W. about lying to the police and the CAC,

by failing to call Franklin's sister to refute certain testimony about the video, and other unspecified

matters.

       Where an appellate record is silent as to why trial counsel failed to take certain actions, the

appellant has failed to rebut the presumption that trial counsel's decision was in some way—be it



                                                  11
conceivable or not—reasonable. See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007).

In this case, there is no record at any level to indicate why counsel chose to take or declined to take

any of these actions.3 The ineffectiveness of counsel is a matter that must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness. Smith v. State,

51 S.W.3d 806, 812 (Tex. App.—Texarkana 2001, no pet.). In the absence of such a record, and in

the lack of anything that would indicate such completely ineffective assistance as could be shown

without such a record, we overrule the point of error.

       We affirm the judgment.




                                               Jack Carter
                                               Justice

Date Submitted:        January 11, 2008
Date Decided:          February 20, 2008

Do Not Publish




       3
        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. Mallett v.
State, 65 S.W.3d 59, 65 (Tex. Crim. App. 2001). In addressing this reality, the Texas Court of
Criminal Appeals has explained that appellate courts can rarely decide the issue of ineffective
assistance of counsel because the record almost never speaks to the strategic reasons that trial
counsel may have considered. The proper procedure for raising this claim is therefore almost always
habeas corpus. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); Aldrich v. State,
104 S.W.3d 890, 896 (Tex. Crim. App. 2003).

                                                  12
13
