Affirmed and Opinion Filed July 27, 2018




                                          S    In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                       No. 05-17-00693-CR

                          RICHARD DAMON MARTINI, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 282nd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F15-76096-S

                              MEMORANDUM OPINION
                          Before Justices Francis, Fillmore, and Whitehill
                                    Opinion by Justice Francis
       Richard Damon Martini appeals his conviction for attempted sexual performance by a

child. In three issues, appellant contends he received ineffective assistance of counsel and the trial

court erred in overruling his objection to testimony by a Dallas police detective. We affirm the

trial court’s judgment.

       In 2015, appellant was living in the same apartment complex as his niece, Franchesca

Carothers, Carothers’s fiancé, and their six children. Carothers was the mother of three of the

children. The other three, including the complainant, S.T., were the fiancé’s children. Appellant

frequently visited with his niece’s family and he became close with S.T. At the time, S.T. was

sixteen years old and appellant was thirty-six.
       On one occasion in early 2015, appellant and S.T. were found in bed together with their

clothes on. Later, appellant and S.T. were found together in a closed closet. Appellant claimed

he was trying to prevent S.T. from stealing one of his t-shirts. After the closet incident, appellant

and S.T. were forbidden from being alone together.

       In July 2015, S.T. got into trouble for not performing her household duties properly and,

as punishment, she was not allowed to use her electronic devices. When Carothers saw S.T. using

her cell phone, she took the phone away and saw sexually explicit text messages between S.T. and

appellant. Carothers immediately contacted the police and took S.T. to the Dallas Children’s

Advocacy Center for an interview and counseling.

       After Carothers gave the police permission to search S.T.’s phone, they found hundreds of

text messages between appellant and S.T. discussing being together as husband and wife, sexual

acts, and plans to meet to have sexual intercourse. Other messages indicated S.T. was depressed

and had a difficult relationship with her parents. Appellant was indicted for attempted sexual

performance by a child. He pleaded not guilty to the charge and the case was tried to a jury.

       At trial, appellant admitted exchanging sexually explicit messages with S.T., but explained

they were just “stupid things” and he was trying to “lighten the mood because she was so upset”

and “wanting to commit suicide.” He said their talk of a future together was “just a bunch of made-

up nonsense” to make her feel better. S.T. told the jury that appellant’s emotional support was one

of the reasons she didn’t commit suicide; she didn’t feel guilty or ashamed of anything they said

or did together.

       Many of the text messages between appellant and S.T., including some that were

graphically sexual, were read to the jury. Afterwards, Dallas police detective Kristin Alvarado, an

investigator specializing in physical and sexual crimes against children, testified she saw signs of

“grooming” by appellant. Alvarado stated the text messages and S.T.’s statements during her

                                                –2–
interview at the children’s advocacy center demonstrated appellant’s attempts to make an

emotional connection with S.T. She also said appellant was trying to isolate S.T. from her parents

and normalize their sexual behavior. After Alvarado testified at length regarding the grooming

process, defense counsel objected stating the detective’s testimony was “pure speculation” and no

evidence showed she had any expertise or psychological training other than being a detective. The

State responded that Alvarado had already established her training with regard to child abuse cases

and the questions were limited to that field. The trial court overruled defense counsel’s objection.

       After hearing the evidence, the jury found appellant guilty and the trial court sentenced him

to six years in prison. Appellant filed a motion for new trial that was denied. This appeal followed.

       In his first and second issues, appellant contends his trial counsel rendered ineffective

assistance by “failing to understand the allegations against [him]” and not requesting an affirmative

defense jury instruction. To succeed in showing ineffective assistance of counsel, an appellant

must demonstrate both that (1) his counsel’s representation fell below an objective standard of

reasonableness and (2) the alleged deficient performance prejudiced the defense. See Strickland

v. Washington, 466 U.S. 668, 687 (1984). Appellant bears the burden of proving both prongs by

a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). There is a strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance and was motivated by legitimate trial strategy. See Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

       Claims of ineffective assistance of counsel are generally not successful on direct appeal

because the record is inadequately developed for an appellate court to fairly evaluate the merits of

such a serious allegation. See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). The

court of criminal appeals has made clear that, in most cases, a silent record which provides no

explanation for counsel’s actions will not overcome the strong presumption of reasonable

                                                –3–
assistance. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Counsel should

ordinarily be afforded the opportunity to explain his actions before being denounced as ineffective.

See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).

       Although appellant filed a motion for new trial in this case, he did not urge ineffective

assistance as one of the grounds. Accordingly, the record is silent as to the reasons for defense

counsel’s actions. Because the record is not developed, we will not find defense counsel’s

performance deficient unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Id.

       In addition, even assuming deficient assistance, appellant must affirmatively prove

prejudice. See Thompson, 9 S.W.3d at 812. He 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 a probability sufficient to undermine confidence in the outcome. Id. The

ultimate focus of the inquiry is on the fundamental fairness of the proceeding. See Ex parte

Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). The failure of the appellant to show

either deficient performance or prejudice defeats his claim of ineffective assistance.          See

Thompson, 9 S.W.3d at 813.

       Appellant first contends his counsel was ineffective because he allegedly did not

understand the charged crime. Appellant bases this assertion on statements made by his counsel

during his motion for directed verdict and closing arguments. Appellant argues his counsel’s

statements on both occasions indicated he believed appellant had been charged with the completed

act of sexual performance by a child instead of merely the attempted offense.

       The offense of attempted sexual performance by a child is committed if: (1) the defendant;

(2) with specific intent to commit sexual performance by a child; (3) does an act amounting to

more than mere preparation; (4) that tends but fails to effect the commission of sexual performance

                                                –4–
by a child. See Chen v. State, 42 S.W.3d 926, 929 (Tex. Crim. App. 2001). An attorney is charged

with knowing the law that applies to his client’s case. See Ex parte Welch, 981 S.W.2d 183, 185

(Tex. Crim. App. 1998). At the close of the State’s evidence, defense counsel urged that appellant

be granted a directed verdict stating the texts were “innocent” and “the evidence [appellant]

induced her to perform is scant and fully insufficient to maintain a finding of guilt.” He further

stated “there may have been some kissing, but there wasn’t anything involving any kind of sexual

activity.” During closing argument, defense counsel stressed before the jury that there was no

actual sexual conduct by S.T. which he stated cast doubt on whether appellant was inducing her to

commit sexual performance.

       Because defense counsel focused on the absence of sexual activity between appellant and

S.T. in his arguments, appellant argues he appeared unaware appellant had been charged with the

attempted rather than completed offense. Reading the record as a whole, however, it appears

defense counsel was attempting to raise reasonable doubt as to appellant’s intent in sending the

text messages. Despite the fact appellant had extensive access to S.T. before they were forbidden

from seeing each other, the State had no evidence any sexual performance occurred. It is a

reasonable trial strategy to suggest appellant lacked the intent to commit the completed offense, a

necessary element of the attempted offense with which appellant was charged. Furthermore,

although appellant generally states his counsel “did not and could not effectively defend against

the accusations” against him, he makes no argument as to what else defense counsel could or

should have done or how the outcome of the case was affected.

       Appellant next argues his counsel was ineffective because he failed to request a jury

instruction on an affirmative defense. Defense counsel presented evidence at trial that the text

messages appellant sent to S.T. were intended to be emotionally supportive and help with her

severe depression and thoughts of suicide. According to appellant, such evidence raised the issue

                                               –5–
of whether his conduct was for a “bona fide psychological purpose” which is an affirmative

defense under section 43.25(f)(2) of the Texas Penal Code.          See TEX. PENAL CODE ANN.

§ 43.25(f)(2) (West Supp. 2017). But merely being entitled to a jury instruction and not requesting

it is not the test for ineffective assistance of counsel. See Dannhaus v. State, 928 S.W.2d 81, 85

(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). The test is whether it was objectively

unreasonable for counsel not to ask for the instruction. Id.

       Even if appellant’s text messages offering S.T. emotional support were sufficient to raise

the affirmative defense of “bona fide psychological purpose,” which we do not decide, there is no

cognizable argument that his messages containing graphic sexual content would fall under this

category. Accordingly, the evidence to support appellant’s proposed affirmative defense was not

strong. Defense counsel chose instead to rely on the emotional support aspects of appellant’s

messages to show he lacked the intent to actually commit the offense of sexual performance by a

child. Counsel is not deficient for choosing to focus the jury’s attention on the absence of the

required mental state rather than risk confusion with instructions on affirmative defense theories

not supported by the evidence. Id. at 87. Where the evidence of guilt is overwhelming, and the

evidence to support an affirmative defense is weak, a strategy of focusing the jury on the strongest

theory of innocence supported by the evidence is not objectively unreasonable. See id. We resolve

appellant’s first and second issues against him.

       In his third issue, appellant contends the trial court erred in overruling his objection to

Detective Alvarado’s testimony regarding his “grooming” of S.T. Appellant argues Alvarado was

not qualified to offer the testimony because she “lacked sufficient depth of experience and training

to support an expert opinion.”

       To preserve error for appellate review, a timely specific objection must be made and a

ruling obtained. See Cruz v. State, 238 S.W.3d 381, 385 (Tex. App.—Houston [1st Dist.] 2006,

                                                –6–
pet. ref’d). To be considered timely, the objection must be made at the first opportunity or as soon

as the basis of the objection becomes apparent. See Moore v. State, 999 S.W.2d 385, 403 (Tex.

Crim. App. 1999). An objection made after the prosecutor has elicited the testimony typically

comes too late. See Cruz, 238 S.W.3d at 385.

       Here, defense counsel did not object to Alvarado’s grooming testimony until long after the

basis for his objection became apparent. The State questioned Alvarado at length about the

grooming process before counsel objected that she was not qualified to testify on the subject.

Because there was no objection until substantial testimony had already been elicited, we conclude

the objection was untimely and did not preserve the complaint for review. Id. We resolve

appellant’s third issue against him.

       We affirm the trial court’s judgment.




                                                  /Molly Francis/
                                                  MOLLY FRANCIS
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
170693F.U05




                                                –7–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 RICHARD DAMON MARTINI, Appellant                  On Appeal from the 282nd Judicial District
                                                   Court, Dallas County, Texas
 No. 05-17-00693-CR        V.                      Trial Court Cause No. F15-76096-S.
                                                   Opinion delivered by Justice Francis.
 THE STATE OF TEXAS, Appellee                      Justices Fillmore and Whitehill
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered July 27, 2018.




                                             –8–
