                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-18-00147-CR


ROBERT LEE ADAMS, JR.                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR13412

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

      A jury convicted Appellant Robert Lee Adams, Jr., of continuous sexual

abuse of two children, K.S. and J.B., and assessed his punishment at 99 years’

confinement. The trial court sentenced him accordingly. Appellant did not file a

Motion for New Trial.




      1
       See Tex. R. App. P. 47.4.
      Appellant brings a single issue on appeal, arguing that he was deprived of

effective assistance of counsel as guaranteed by the Sixth Amendment to the

United States Constitution by trial counsel’s (1) failing to object to the

prosecutor’s improper argument in opening statement; (2) failing to challenge the

constitutionality of Section 38.37 of the Texas Code of Criminal Procedure;

(3) failing to object to the trial court’s admission of extraneous offenses without

completing the proper rule 403 balancing test; and (4) failing to object to the

testimony of Beth Mohan “based on corpus delicti.” He also suggests the trial

court reversibly erred in failing to conduct the rule 403 balancing test. Appellant

summarizes his argument by stating, “The evidence that was admitted because

of the failure to object was prejudicial to [Appellant] and essentially put him on

trial for offenses outside the purview of the case before the court.”

      Applying the appropriate standards of review to the record before us, we

overrule Appellant’s sole issue.

Brief Facts

      Because Appellant does not challenge the sufficiency of the evidence to

support his conviction, we shall not detail the instances of sexual abuse

described in the record. We shall address the facts as they relate to Appellant’s

complaints of ineffective assistance of counsel.

      A nurse practitioner at the Cook Children’s pediatric clinic in Granbury saw

a 10-year-old female patient named K.S., who told her that her stepdad,

Appellant, had molested her over a period of time. The child described oral,


                                          2
anal, and genital sexual abuse. Investigation revealed that Appellant had also

been abusing K.S.’s young cousin J.B. Both K.S. and J.B. testified at trial. The

jury also heard that Appellant had sexually abused three other children and that

he was a registered sex offender because of a conviction in Colorado. This

extraneous-offense evidence was admitted under Article 38.37 of the Texas

Code of Criminal Procedure.

Ineffective Assistance of Counsel

      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that his counsel’s representation was deficient

and that the deficiency prejudiced the defense.2 An ineffective-assistance claim

must be “firmly founded in the record,” and “the record must affirmatively

demonstrate” the meritorious nature of the claim.3 Direct appeal is usually an

inadequate vehicle for raising an ineffective-assistance-of-counsel claim because

the record is generally undeveloped.4 In evaluating the effectiveness of counsel

under the deficient-performance prong, we look to the totality of the

representation and the particular circumstances of each case.5 The issue is


      2
        Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez
v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999).
      3
       Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
      4
     Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012);
Thompson, 9 S.W.3d at 813–14.
      5
       Thompson, 9 S.W.3d at 813.


                                       3
whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. 6       Review of

counsel’s representation is highly deferential, and the reviewing court indulges a

strong presumption that counsel’s conduct was not deficient.7

      It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel’s reasons

for failing to do something do not appear in the record. 8 Trial counsel “should

ordinarily be afforded an opportunity to explain her actions before being

denounced as ineffective.”9    If trial counsel is not given that opportunity, we

should not conclude that counsel’s performance was deficient unless the

challenged conduct was “so outrageous that no competent attorney would have

engaged in it.”10 As the Texas Court of Criminal Appeals has explained,

      A claimant must generally prove deficiency using affirmative
      evidence in the trial record sufficient to overcome the presumption
      that the challenged action was sound trial strategy. However, “when
      no reasonable trial strategy could justify the trial counsel’s conduct,
      counsel’s performance falls below an objective standard of
      reasonableness as a matter of law, regardless of whether the record

      6
      See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415
S.W.3d at 307.
      7
       Nava, 415 S.W.3d at 307–08.
      8
       Menefield, 363 S.W.3d at 593; Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
      9
       Menefield, 363 S.W.3d at 593.
      10
          Nava, 415 S.W.3d at 308.


                                        4
      adequately reflect[s] the trial counsel’s subjective reasons for act[ing]
      as [he] did.”11

State’s Opening Statement

      Appellant argues trial counsel rendered ineffective assistance of counsel

by failing to object to the State’s Opening Statement informing the jury that

      [f]rom the doctor’s office, [K.S.] was taken to the Children’s
      Advocacy Center, where she was interviewed by a specially-trained
      forensic interviewer. You’re not going to hear that interview today,
      because it is hearsay and inadmissible under the rules of evidence.”
      He argues that the argument did not fall within the permissible areas of jury

argument as explained by the Texas Court of Criminal Appeals.12 The argument

was manifestly improper, he argues, because

      [t]he prosecutor was attempting to inform the jury that there was a
      paramount piece of evidence that she had seen and which helped in
      their investigation, but due to the rules of evidence, she could not
      introduce it at trial.

      After a close examination of the entire record, we fail to see what

“paramount piece of evidence” Appellant was talking about. It was not improper

for the prosecutor to present a timeline of the investigation into the allegations

against Appellant. It is hard to understand why the prosecutor informed the jury

that the substance of the interview was hearsay.         And, in an abundance of

caution, we shall examine the statement as a suggestion that there was harmful


      11
        Ex parte Bryant, 448 S.W.3d 29, 39–40 (Tex. Crim. App. 2014) (citations
and internal quotation marks omitted).
      12
         Todd v. State, 598 S.W.2d 286, 296–297 (Tex. Crim. App. [Panel Op.]
1980).

                                         5
evidence the jury would not hear, as Appellant contends. Appellant suggests the

harm lies in the possibility that

      if the error would have been preserved, the State’s argument would
      have been submitted as improper to the Court of Appeals. The
      proper standard of review is whether, in light of the record as a
      whole, there is a reasonable possibility the argument complained of
      might have contributed to appellant’s conviction or punishment.

      The jury heard J.B. testify about the events forming the basis of the

criminal allegations against Appellant. They heard her testify about being taken

to the Child Advocacy Center and about being interviewed there. They heard the

testimony of various other witnesses regarding the investigation of the offense

and the surrounding circumstances. They heard Appellant was a registered sex

offender and that he had sexually abused other children.          Applying the

appropriate standard of review, trial counsel’s decision not to object to the

complained-of State’s opening statement was not unreasonable trial strategy.

Article 38.37 Code of Criminal Procedure

      Appellant complains, in part, that trial counsel rendered ineffective

assistance to him because he did not challenge the constitutionality of article

38.37.13 The complaint on appeal appears to be aimed at subsection 2(b) of

38.37.14 As our sister court in Houston explains,

      Code of Criminal Procedure article 38.37, section 1, applicable in
      cases in which the defendant is charged with continuous sexual

      13
        Tex. Code Crim. Proc. Ann. art. 38.37 (West 2018).
      14
        Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b).


                                        6
      abuse of a child, provides that, notwithstanding Rule of Evidence
      404, evidence that the defendant has committed other crimes,
      wrongs, or acts against the child who is the victim of the charged
      offense shall be admitted for its bearing on relevant matters
      including (1) the state of mind of the defendant and the child and
      (2) the previous and subsequent relationship between the defendant
      and the child. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b). In
      2013, the Texas Legislature amended article 38.37 to add sections 2
      and 2-a. Section 2 provides that in trials for certain sexual offenses,
      including continuous sexual abuse of a child:

            Notwithstanding Rules 404 and 405, Texas Rules of
            Evidence, and subject to Section 2-a, evidence that the
            defendant has committed a separate offense described
            by Subsection (a)(1) or (2) [including an offense of
            indecency with a child] may be admitted in the trial of an
            alleged offense described by Subsection (a)(1) or (2)
            [including a trial for continuous sexual abuse] for any
            bearing the evidence has on relevant matters, including
            the character of the defendant and acts performed in
            conformity with the character of the defendant.15

Section 2-a provides a procedural safeguard and requires:

      Before evidence described by Section 2 may be introduced, the trial
      judge must:

            (1) determine that the evidence likely to be admitted at
                trial will be adequate to support a finding by the jury
                that the defendant committed the separate offense
                beyond a reasonable doubt; and

            (2) conduct a hearing out of the presence of the jury for
                that purpose.



      15
        Caston v. State, No. 01-16-00260-CR, 2017 WL 3298320, *5 (Tex.
App.—Houston [1st Dist.] Aug. 3, 2017) (citing Code of Criminal Procedure art.
38.37, § 2(b); citing also Belcher v. State, 474 S.W.3d 840, 844 (Tex. App.—
Tyler 2015, no pet.)). (noting that section 2(b) allows admission of evidence that
defendant has committed certain sexual offenses against children who are not
complainants of charged offense).

                                        7
      Outside the presence of the jury, the trial court held a pretrial hearing on

the admissibility of extraneous-offense evidence the State intended to offer

before the jury pursuant to article 38.37. The trial court made the appropriate

determinations mandated by the statute.          Appellant’s trial counsel did not

challenge the constitutionality of the statute, nor was he obligated to. As to the

constitutionality of the statute, our sister court in Houston has explained,

      The Court of Criminal Appeals has not addressed the
      constitutionality of section 2(b).          However, several of the
      intermediate courts of appeals, including this Court, have addressed
      constitutional challenges to this statute and have uniformly found
      that section 2(b) is constitutional. See, e.g., Buxton v. State, No. 01-
      15-00857-CR, --- S.W.3d ----, ---- - ----, 2017 WL 2872490, at *14–17
      (Tex. App.—Houston [1st Dist.] July 6, 2017, no pet. h.); Bezerra v.
      State, 485 S.W.3d 133, 139–40 (Tex. App.—Amarillo 2016, pet.
      ref’d); Robisheaux v. State, 483 S.W.3d 205, 213 (Tex. App.—Austin
      2016, pet. ref’d); Harris, 475 S.W.3d at 403; Belcher, 474 S.W.3d at
      847; see also Baez v. State, 486 S.W.3d 592, 599–600 (Tex. App.—
      San Antonio 2015, pet. ref’d) (holding that section 2(b) does not
      violate ex post facto provision of United States Constitution); Alvarez
      v. State, 491 S.W.3d 362, 367–70 (Tex. App.—Houston [1st Dist.]
      2016, pet. ref’d) (holding that defendant failed to preserve due
      process challenge to section 2(b), but noting that all Texas cases
      “addressing the constitutionality of Article 38.37 have held that it is
      constitutional”).16

      Indeed,    this   court   has   specifically   addressed    and   upheld   the

constitutionality of sections 1 and 2 of article 38.37.17 Nothing in our research

suggests a challenge to the constitutionality of this provision would be

      16
        Caston, 2017 WL 3298320, at *6.
      17
        Gregg v. State, No. 02-16-00117-CR, 2016 WL 7010931, at *5 (Tex.
App.—Fort Worth Dec. 1, 2016, pet. ref’d) (mem. op., not designated for
publication).


                                          8
successful. Nor has Appellant explained to us why such a challenge would be

successful.    We find no requirement that counsel do a useless act to

demonstrate his effectiveness.18

Rule 403 Balancing Test

      On appeal, Appellant argues that trial counsel rendered ineffective

assistance by failing to request a rule 403 balancing test regarding extraneous-

offense evidence involving three other children, M.T., E.H., and C.E. He also

argues that the trial court reversibly erred in failing to perform such a balancing

test sua sponte.

      Texas Rule of Evidence 403 provides:

      The court may exclude relevant evidence if its probative value is
      substantially outweighed by a danger of one or more of the
      following: unfair prejudice, confusing the issues, misleading the jury,
      undue delay, or needlessly presenting cumulative evidence.19

      A trial court’s rule 403 decision to admit extraneous-offense evidence is

reviewed for an abuse of discretion.20 A reviewing court will “reverse the trial

court’s judgment [based on the trial court’s rule 403 analysis] rarely . . . because


      18
        See, e.g., In re G.P., 503 S.W.3d 531, 535 (Tex. App.—Waco 2016, pet.
denied); Hernandez v. State, 663 S.W.2d 5, 8 (Tex. App.—El Paso 1983, pet.
dism’d) (“[I]t is a settled principle of law that one is not penalized for the failure to
perform a useless act.”).
      19
        Tex. R. of Evid. 403.
      20
       See Patterson v. State, Nos. 02-10-00350-CR, 02-10-00351-CR, 2012
WL 171115, at *7 (Tex. App.—Fort Worth Jan. 19, 2012, no pet.) (mem. op., not
designated for publication).


                                           9
the trial court is in a superior position to gauge the impact of the relevant

evidence.”21

      When extraneous-offense evidence is offered, the trial court must conduct

a rule 403 analysis that includes the following nonexclusive factors:     (1) the

probative value of the evidence; (2) the potential to impress the jury in some

irrational, yet indelible, way; (3) the time needed to develop the evidence; and

(4) the proponent's need for the evidence.22          In Thompson v. State,23 an

unpublished opinion from our sister court in Corpus Christi, the court recognized

that in a child sexual abuse case, the proponent’s need for the extraneous-

offense evidence to combat the defendant’s challenge to the complainant’s

credibility is considered in determining admissibility.24 As this court has noted,

this language echoes the Montgomery test for admissibility of extraneous acts of

misconduct offered in the guilt phase of a trial.25




      21
         See Thompson v. State, No. 13-13-00558-CR, 2014 WL 4049892, at *4
(Tex. App.—Corpus Christi Aug. 14, 2014, pet. ref’d) (mem. op., not designated
for publication).
      22
       See Gonzales v. State, 477 S.W.3d 475, 481 (Tex. App.—Fort Worth
2015, pet. ref’d).
      23
        Thompson, 2014 WL 4049892, at *6.
      24
        Id.; see also Tex. R. Evid. 404(b); Alba v. State, 905 S.W.2d 581, 585
(Tex. Crim. App. 1995), cert. denied, 516 U.S. 1077 (1996).
      25
       Gonzales, 477 S.W.3d at 481; Montgomery v. State, 810 S.W.2d 372,
389–90 (Tex. Crim. App. 1991) (op. on reh’g).

                                          10
      At trial, Appellant challenged the veracity of the complainants, the

sufficiency of the evidence, and the quality of the investigation. The source of

the evidence regarding Appellant’s having committed extraneous offenses and of

his status as a registered sex offender as a result of a Colorado conviction was

Appellant’s pretrial statement made during the investigation.     Additionally, a

certified copy of the Colorado judgment was admitted as State’s Exhibit 3.

Viewing the record in light of the Montgomery26 standard, we cannot conclude

the evidence would not have withstood a rule 403 inquiry. Appellant has not

shown and, based on the record as a whole, this court cannot conclude, that trial

counsel’s decision not to make further objection under rule 403 was not a

legitimate trial strategy or that his conduct that was “so outrageous that no

competent attorney would have engaged in it.”27 Nor can we conclude that the

trial court’s not announcing a rule 403 balancing constituted reversible error,

based on the record before us.

Corpus Delicti Rule

      Appellant argues that trial counsel rendered ineffective assistance by

failing to object under the corpus delicti rule to Beth Mohan’s testimony that

Appellant committed separate sexual-abuse offenses against C.E., a child not




      26
       Montgomery, 810 S.W.2d at 389–90.
      27
       Nava, 415 S.W.3d at 308.


                                       11
named in the indictment. Ms. Mohan testified that in 2005, Appellant confessed

to abusing C.E.

       The jury heard this testimony, as well as evidence that Appellant later

abused four more children: E.H., M.T., K.S., and J.B.

       The Texas Court of Criminal Appeals has explained,

       The corpus delicti rule is one of evidentiary sufficiency affecting
       cases in which there is an extrajudicial confession. The rule states
       that, “[w]hen the burden of proof is ‘beyond a reasonable doubt,’ a
       defendant’s extrajudicial confession does not constitute legally
       sufficient evidence of guilt absent independent evidence of the
       corpus delicti.” To satisfy the corpus delicti rule, there must be
       “evidence independent of a defendant’s extrajudicial confession
       show[ing] that the ‘essential nature’ of the charged crime was
       committed by someone.”

             The purpose of this judicially fashioned rule is to ensure “that
       a person would not be convicted based solely on his own false
       confession to a crime that never occurred.” 28

       Appellant does not explain how the corpus delicti rule applies to the

circumstances of this case, and we fail to see how it applies. Appellant was not

convicted based on his judicial confession to a crime that never occurred. Nor

does Appellant contend that the sexual abuse allegations charged in the

indictment in the instant case were the subject of a false judicial confession by

him.

       To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that his counsel’s representation was deficient

       28
        Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim. App. 2015) (citations
omitted).


                                        12
and that the deficiency prejudiced the defense.29 An ineffective-assistance-of-

counsel claim must be “firmly founded in the record,” and “the record must

affirmatively demonstrate” the meritorious nature of the claim.30 Direct appeal is

usually an inadequate vehicle for raising an ineffective-assistance-of-counsel

claim because the record is generally undeveloped.31           In evaluating the

effectiveness of counsel under the deficient-performance prong, we look to the

totality of the representation and the particular circumstances of each case. 32

The issue is whether counsel’s assistance was reasonable under all the

circumstances and prevailing professional norms at the time of the alleged

error.33     Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct was not

deficient.34

       It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel’s reasons

       29
       Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Coffman v. State, 465
S.W.3d 797, 800 (Tex. App.—Fort Worth 2015, no pet.); Nava, 415 S.W.3d at
307; Hernandez, 988 S.W.2d at 770 n.3.
       30
           Thompson, 9 S.W.3d at 813.
       31
           Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14.
       32
           Thompson, 9 S.W.3d at 813.
       33
           Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at
307.
       34
           Nava, 415 S.W.3d at 307–08.


                                         13
for failing to do something do not appear in the record. 35 Trial counsel “should

ordinarily be afforded an opportunity to explain her actions before being

denounced as ineffective."36 If trial counsel is not given that opportunity, we

should not conclude that counsel’s performance was deficient unless the

challenged conduct was “so outrageous that no competent attorney would have

engaged in it.”37 As the Texas Court of Criminal Appeals has explained,

      A claimant must generally prove deficiency using affirmative
      evidence in the trial record sufficient to overcome the presumption
      that the challenged action was sound trial strategy. However, when
      no reasonable trial strategy could justify the trial counsel’s conduct,
      counsel’s performance falls below an objective standard of
      reasonableness as a matter of law, regardless of whether the record
      adequately reflects the trial counsel’s subjective reasons for acting
      as he did.38

      Applying the appropriate standard of review, we hold trial counsel’s

performance does not constitute a denial of effective assistance. We overrule

Appellant’s complaints on appeal and affirm the trial court’s judgment.




                                                   /s/ Lee Ann Dauphinot
                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

      35
        Menefield, 363 S.W.3d at 593; Mata, 226 S.W.3d at 432.
      36
        Menefield, 363 S.W.3d at 593.
      37
        Nava, 415 S.W.3d at 308.
      38
       Coffman, 465 S.W.3d at 800–801 (citing Ex parte Bryant, 448 S.W.3d at
39–40 (citations and internal quotation marks omitted)).

                                        14
PANEL: MEIER and PITTMAN, JJ.; and LEE ANN DAUPHINOT (Senior Justice,
Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 26, 2018




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