                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00261-CR

DARRELL WILSON JONES,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                           From the 85th District Court
                               Brazos County, Texas
                         Trial Court No. 07-05134-CRF-85


                           MEMORANDUM OPINION


       Darrell Wilson Jones was convicted by a jury of two counts of the offense of

Aggravated Sexual Assault of a Child. TEX. PEN. CODE. ANN. § 22.021(a)(2)(B) (Vernon

2003). Jones elected to have the trial court determine his sentence. After a punishment

hearing, the trial court sentenced Jones to two (2) consecutive life terms in the Texas

Department of Criminal Justice – Institutional Division as a repeat or habitual offender.

TEX. PEN. CODE ANN. § 12.42 (Vernon 2003). Jones was at that time already on deferred

adjudication community supervision for the offense of sexual assault of a child. Jones

complains that the trial court erred in denying his motion for a directed verdict, that the
trial court abused its discretion in allowing the admittance of testimony, and that he

received ineffective assistance of counsel. Because we find that Jones was not entitled to

a directed verdict, that there was no abuse of discretion in the admission of the

testimony, and that the record is insufficient to establish ineffective assistance of

counsel, we affirm the judgment.

Directed Verdict

        Jones complains that the trial court erred in denying his motion for a directed

verdict when the victim was unable to identify him in court as the perpetrator of the

offense. We treat a denial of a motion for directed verdict as a challenge to the legal

sufficiency of the evidence to support a conviction. Williams v. State, 937 S.W.2d 479,

482 (Tex. Crim. App. 1996). When conducting a legal-sufficiency review, we view the

evidence in the light most favorable to the verdict to determine whether any rational

fact finder could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Lane

v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The jury is the exclusive judge

of witness credibility, the determiner of the weight accorded to witness testimony, and

the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.

Crim. App. 1996). Further, all evidence, whether properly or improperly admitted, will

be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson,

488 U.S. 33, 41-42, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988); Johnson v. State, 967 S.W.2d

410, 411 (Tex. Crim. App. 1998).



Jones v. State                                                                        Page 2
        Identity may be proven by direct evidence, circumstantial evidence, or even

inferences. See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) (noting that

victim's misidentification of juror as perpetrator at trial was not fatal where

circumstantial evidence, including testimony of officer who arrested defendant at scene,

pointed to the defendant as the perpetrator). Proof of the accused's identity through

circumstantial evidence is not subject to a more rigorous standard than is proof by

direct evidence, as both are equally probative. McGee v. State, 774 S.W.2d 229, 238 (Tex.

Crim. App. 1989).      The sufficiency of the evidence is then determined from the

cumulative effect of all the evidence. See Alexander v. State, 740 S.W.2d 749, 758 (Tex.

Crim. App. 1987).

        The absence of an in-court identification is merely a factor for the jury to consider

in assessing the weight and credibility of the witnesses' testimony. See Sharp v. State,

707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (even a total failure to identify the defendant

on one occasion goes only to the weight to be given to the identification evidence). The

victim had identified her perpetrator as the person she knew as “Uncle Darrell” at the

time of her outcry. The victim was unable to identify Jones sitting in the courtroom at

the trial as her perpetrator. However, the victim did identify the person she knew as

“Uncle Darrell” when she was shown a photograph taken of Jones at the time of his

arrest. The victim’s mother and another witness identified Jones as the person the

victim called “Uncle Darrell,” and they also confirmed that the victim and her mother

had resided with Jones during the times the victim asserted that the assaults took place.

The photograph of Jones taken when he was arrested was later affirmatively identified

Jones v. State                                                                         Page 3
as being that of Jones through testimony of law enforcement.              Using the above

standards, we find that the trial court did not err in denying Jones’s motion for directed

verdict on this basis. We overrule Jones’s issue one.

Improper Admission of Testimony

          Jones complains that the trial court erred in allowing the testimony of a neighbor

of Jones pursuant to Texas Rules of Evidence 401, 403, and 404(b). TEX. R. EVID. 401, 403,

404(b).     The neighbor described conversations between Jones and herself when they

discussed the fact that Jones preferred “new, young boobs” and that he preferred to

perform oral sex over regular intercourse. Jones objected that the statements were not

relevant, that the statements constituted impermissible character evidence, and that

their probative value was substantially outweighed by the danger of unfair prejudice.

          We review a trial court's decision to admit or exclude evidence under an abuse of

discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Burden

v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a

trial court's ruling unless that ruling falls outside the zone of reasonable disagreement.

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Burden, 55 S.W.3d at 615.

Texas Rule of Evidence 401

          Rule of Evidence 401 defines relevant evidence as "evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence." TEX. R.

EVID. 401.       Jones was accused of fondling the breast of his victim and of performing

oral sex on the victim who was ten or eleven years old at the time of the offense.

Jones v. State                                                                        Page 4
Certainly, Jones’s interest in “new, young boobs” and preference for oral sex tends to

make the occurrence of these incidents more probable than it would be without the

evidence. The evidence is relevant.      However, not all evidence that is relevant is

admissible. Chaddock v. State, 203 S.W.3d 916, 923 (Tex. App.—Dallas 2006, no pet.).

Texas Rule of Evidence 404(b)

        To constitute an extraneous offense, the evidence must show a crime or bad act

and must connect the defendant to it. Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim.

App. 1992); Castillo v. State, 59 S.W.3d 357, 361 (Tex. App.—Dallas 2001, pet. ref'd). The

evidence must include some sort of extraneous conduct on behalf of the defendant that

forms a part of the alleged extraneous offense. Moreno v. State, 858 S.W.2d 453, 463 (Tex.

Crim. App. 1993). Statements concerning a defendant's thoughts of wrongdoing are

merely inchoate thoughts and nothing more. Id. To implicate Rule 404(b), there must

be actual conduct that alone or in combination with these thoughts could constitute a

bad act, wrong, or crime. Massey v. State, 933 S.W.2d 141, 154 (Tex. Crim. App. 1996);

Moreno, 858 S.W.2d at 463; Castillo, 59 S.W.3d at 361. Jones's statements about his

preference for “new, young boobs” and his preference for performing oral sex over

regular intercourse pertained to his thoughts and did not implicate any conduct on his

part that would invoke Rule 404(b), and therefore Rule 404(b) does not apply to these

objections. See McGrath v. State, No. 14-03-00510-CR, No. 14-03-00511-CR, No. 14-03-

00512-CR, No. 14-03-00513-CR, 2004 Tex. App. LEXIS 8924 at *40 (Tex. App.—Houston

[1st Dist.] October 7, 2004, pet ref’d.) (not designated for publication) (Rule 404(b) does



Jones v. State                                                                       Page 5
not apply to a statement by a defendant that he was attracted to thirteen and fourteen

year old girls).

Texas Rule of Evidence 403

        Rule 403 of the Texas Rules of Evidence provides as follows: "Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence." TEX.

R. EVID. 403. "Rule 403 favors admissibility of relevant evidence, and the presumption

is that relevant evidence will be more probative than prejudicial." Montgomery v. State,

810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g).

        Although the Texas Rules of Evidence are intentionally slanted toward the

inclusion of all relevant evidence, Rule 403 gives the trial court considerable discretion

to exclude evidence when it appears to that individual judge, in the context of that

particular trial, to be insufficiently probative when measured against the countervailing

factors specified in the rule. Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App.

2007); see Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1991) (op. on

orig. submission); 810 S.W.2d at 391-92 (op. on reh'g); Johnson v. State, 263 S.W.3d 405,

426-427 (Tex. App.—Waco 2008, pet. ref’d).

        In a Rule 403 analysis, a trial court must balance (1) the inherent probative force

of the proffered item of evidence along with (2) the proponent's need for that evidence

against (3) any tendency of the evidence to suggest decision on an improper basis, (4)

any tendency of the evidence to confuse or distract the jury from the main issues, (5)

Jones v. State                                                                       Page 6
any tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.

Crim. App. 2006); see State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005);

Montgomery, 810 S.W.2d at 389-90 (op. on reh'g).         "The rule gives the trial court

considerable latitude to assess the courtroom dynamics, to judge the tone and tenor of

the witness' testimony and its impact upon the jury, and to conduct the necessary

balancing." Winegarner, 235 S.W.3d at 791.

        Jones's statement that he liked “new, young boobs” and that he preferred oral

sex over regular intercourse was highly probative of his motive, intent, and state of

mind. In looking at the relevant criteria, Jones's admission was the primary evidence of

his intent and state of mind, and, the State has a significant need for the evidence. Jones

argues the statement was not probative because there was no description of how new or

young he preferred breasts to be. Jones's distinction, however, does not decrease the

probative value of his statements.

        An extraneous sexual assault can certainly present the danger of the jury making

a decision on an improper, emotional basis. See Wheeler v. State, 67 S.W.3d 879, 889 (Tex.

Crim. App. 2002); Montgomery, 810 S.W.2d at 397 (op. on reh'g). But the presentation of

the witness's testimony did not take such a great amount of time as to confuse or

distract the jury from the main issue of the case. There is nothing to suggest that the

jury was not equipped to evaluate the probative force of the evidence, the evidence was

Jones v. State                                                                       Page 7
not unduly lengthy, and it did not present unnecessary cumulative evidence. We find

that the trial court’s admission of the evidence is not outside of the zone of reasonable

disagreement. Accordingly, we hold the trial court did not abuse its discretion in

admitting Jones's statements into evidence. We overrule issue two.

Ineffective Assistance of Counsel

        Jones complains that he received ineffective assistance of counsel due to his

attorney’s failure to call witnesses at Jones’s punishment hearing who could testify to

Jones’s success on community supervision. Jones did not file a motion for new trial.

To prevail on an ineffective-assistance claim, Jones must prove (1) counsel's

representation fell below the objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel's deficiency, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). In considering an ineffective-assistance claim, we indulge a strong presumption

that counsel's actions fell within the wide range of reasonable professional behavior and

were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d

at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this

presumption, a claim of ineffective assistance must be firmly demonstrated in the

record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle

for raising such a claim because the record is generally undeveloped and cannot

adequately reflect the motives behind trial counsel's actions.    Rylander v. State, 101

S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813-14.

Jones v. State                                                                     Page 8
        When the record is silent regarding trial counsel's strategy, we will not find

deficient performance unless the challenged conduct was "so outrageous that no

competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005); Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000).

In rare cases, however, the record can be sufficient to prove that counsel's performance

was deficient, despite the absence of affirmative evidence of counsel's reasoning or

strategy. Id.

        It is critical that the defendant obtain the necessary record in the trial court to

rebut the Strickland presumption that counsel's conduct was strategic for purposes of

appeal. Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref'd.). This kind of record is best developed in a hearing

on a motion for new trial, or by an application for a writ of habeas corpus. See Jackson v.

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92.

Without evidence of the strategy and methods involved concerning counsel's actions at

trial, the appellate court will presume sound trial strategy. See Thompson, 9 S.W.3d at

814. The record is silent as to any trial strategy by counsel. When the record is silent as

to counsel's reason for failing to act in some manner, the appellant fails to rebut the

presumption that counsel acted reasonably.        See Thompson, 9 S.W.3d at 814.       We

overrule issue three.

Conclusion

        We find that the trial court did not err in denying Jones’s motion for directed

verdict. We further find that the trial court did not abuse its discretion in allowing the

Jones v. State                                                                       Page 9
testimony regarding Jones’s physical and sexual preferences. Finally, the record does

not affirmatively establish that Jones received ineffective assistance of counsel. We

affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed November 18, 2009
Do not publish
[CRPM]




Jones v. State                                                                Page 10
