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

         ______________________________

               No. 06-08-00060-CR
         ______________________________


              ROY LEE FOX, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 258th Judicial District Court
                Trinity County, Texas
                 Trial Court No. 9170




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

        After a jury found Roy Lee Fox guilty of sexual assault, the trial judge sentenced him to life

imprisonment.1 On appeal, Fox argues that the evidence was factually insufficient to support the

jury's verdict. Fox also complains that he was denied effective assistance of trial counsel in several

respects.2

        First, we find the evidence factually sufficient to support the jury's verdict of guilt. We also

determine that Fox has not shown that he received ineffective assistance of counsel. We affirm the

trial court's judgment.

I.      Factual Background

        Patricia Williamson learned that her estranged husband was coming back into town. After

having three to four beers at her sister's house, she put on a new orange sweater and went to Bell's

Camp Marina Bar in Trinity, Texas, where her husband was known to hang out. Williamson ordered

a beer, determined her husband was not there, and asked her bartender friend if she could borrow his

phone. She intended to call the bartender's mother, Jean Dixon, and ask to stay the night with her,

but the bar did not have a telephone. Williamson left the bar and was approached by Fox while

getting into her car. Apparently overhearing her conversation with the bartender, Fox offered

Williamson the use of his phone and invited to take her to breakfast. She then used Fox's cell phone


       1
           Fox's sentence was enhanced due to a previous conviction of aggravated rape.
       2
        This case has been transferred to this Court as part of the Texas Supreme Court's docket
equalization program.

                                                   2
to call Dixon. Williamson climbed into Fox's truck, and they headed to Riverside, Texas, to eat at

Papa Keith's Restaurant. After discovering it was closed, they went back to Trinity to Joseph's

Restaurant, which Williamson then remembered was also closed.

       Fox then turned down a dirt road. Williamson told him she needed to get back to her vehicle.

Fox replied, "[W]e should fool around a little bit." Williamson said, "I don't do that," but offered

to swap numbers so they could go out on a date. Fox simply affirmed that "he was going to get him

some of that." When Williamson said she would just get out and went to open the door of the truck,

Fox grabbed her hair and hit her in the head with such force that it "rang [her] bell." After the blow,

Williamson was in shock. Fox backed his truck into a clearing while repeating, "I'm going to get me

some of that." Unsuccessfully, Williamson tried to talk him into letting her go.

       Williamson testified that Fox forced her to perform oral sex on him. During oral sex,

Williamson feigned shoulder dislocation, began screaming, and said that she needed to get outside

to hit her shoulder against the truck so it could snap into place. When Fox let her out of the truck,

she ran through a pasture trying to escape. Fox caught up to Williamson and shoved her down with

pressure that took the breath out of her and scared her. Fox got on top of Williamson, pushed his

knee on her chest, put one hand on her throat and another on the top of her head, and said, "[W]e can

do this the hard way or the easy way." Fox stood her up, took her back to the truck, slammed her

against the door, and choked her. Then, he removed and neatly folded his pants and shirt, and

removed her panties and pants. Fox pushed Williamson into the driver's side of the truck while



                                                  3
pulling her hair at all times. Fox got in, got on top of Williamson, and had sex with her. He burned

Williamson on the forehead and arm with a cigarette. He forced her to wrap her legs around him and

threatened to have anal intercourse with her if she did not satisfy him. After intercourse, he forced

her to perform oral sex on him again. After Williamson's shoulder actually dislocated, Fox allowed

her to sit up and get dressed. Williamson begged Fox to take her back to her mother's house. Fox

told her that, if she told anyone that it was a fight, he would hurt her because he knew where she

lived. As soon as Williamson arrived, she burst into her mother's house and announced that she had

been raped.

       Officer Steven Casper was dispatched to the mother's home and found Williamson crying

pretty hard on the couch in the fetal position. He saw red markings, which he testified were

consistent with choking, around Williamson's neck. Her clothing was dirty, and it looked like her

sweater was pulled as if she was in some sort of struggle. Casper transported Williamson to Trinity

Hospital and was met by Officer James Gratz and his wife. Gratz observed that Williamson was

"extremely emotional and crying," and her face and lips were swollen. Because Trinity Hospital did

not have a sexual assault nurse examiner (SANE), Gratz and his wife transported Williamson to

Memorial Hermann Hospital in The Woodlands. SANE nurse Nicole Triggs conducted the four-

to five-hour examination.

       Nurse Triggs reported that Williamson was quiet, anxious, had minimal eye contact, was

nauseated, and was crying. She noticed Williamson had bruising on her right upper lip and lower



                                                 4
left lip, which she testified could be consistent with a blow to the face. Williamson had abrasions

on her left hip, upper left hip, left shoulder back area, lower right arm, forehead, and right back area.

The abrasions on her upper arm and forehead were consistent with cigarette burns. Triggs

determined Williamson had been strangled at maximum force after viewing an abrasion on

Williamson's neck and noticing that she was coughing, had difficulty breathing and swallowing, and

exhibited a hoarse, raspy voice. The genital examination revealed bruises at Williamson's hymen

and urethral meatus, two tears at the posterior fourchette, and redness in the cervix caused by acute

or recent trauma. Triggs concluded that Williamson had suffered physical and genital trauma which

was consistent with sexual assault rather than typical consensual sex.

II.     Factually Sufficient Evidence Supports the Jury's Verdict

        A.      Standard of Review

        This Court has the ability to second-guess the jury to a limited degree when reviewing factual

sufficiency. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We view the evidence

in a neutral light and determine whether the proof of guilt is obviously weak as to undermine

confidence in the verdict, or, if taken alone, is greatly outweighed by contrary proof so as to be

clearly wrong and unjust. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts,

220 S.W.3d at 524; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Cain v. State, 958

S.W.2d 404, 407 (Tex. Crim. App. 1997); Harris v. State, 133 S.W.3d 760, 764 (Tex.

App.—Texarkana 2004, pet. ref'd).



                                                   5
       However, since factual sufficiency is an issue of fact, we are not free to reweigh the evidence

and set aside a jury verdict merely because we feel a different result is more reasonable. Clewis v.

State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Instead, we give due deference to the jury's

determinations and will find the evidence factually insufficient only when necessary to prevent

manifest injustice. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Johnson, 23

S.W.3d at 8–9 & 12; Clewis, 922 S.W.2d at 133 & 135. A high degree of skepticism about the

verdict is required before reversal can occur. Roberts, 220 S.W.3d at 524; Martin v. State, 252

S.W.3d 809, 820 (Tex. App.—Texarkana 2008, pet. granted).

       B.      Analysis

       Instead of addressing the factual sufficiency of the evidence presented above, Fox restates

his defensive theory, consensual sex, in an attempt to convince us that the evidence was insufficient.

The facts supporting this theory are: Gratz finally located Fox's sister after trying for six weeks and

asked her to have Fox call Gratz. When Fox called, he said that, if Gratz wanted to speak with him

"regarding having sex with a women at -- from Bell's Camp, that it was a voluntary sex and that he

didn't do anything . . . inappropriate with her." Fox also stated that "when he tried to have anal

intercourse . . . she told him she was going to say he raped her." Fox argues that this admission,

combined with the fact that Fox dropped Williamson at her mother's house, supports his theory that

sex with Williamson was consensual.




                                                  6
        In addition, Fox points out that Williamson had been drinking and left the bar with a man she

did not know. Fox also discusses what he considers to be inconsistencies that he argues should lead

this Court to a high degree of skepticism of the jury's verdict. He directs us to Williamson's

testimony that she went to the bar to look for her husband, who was violent and had beaten her in

the past, but she never told the bartender or Gratz that fact. He states that, while Williamson testified

Fox choked her with both hands, with what Triggs described as maximum force, there was only a

.5 centimeter bruise on Williamson's neck. Fox attempts to de-emphasize Triggs' conclusions that

the genital trauma suffered was not typical of consensual sex and could be consistent with sexual

assault by stating Triggs could not testify whether the bruises or abrasions she observed were recent.

Without mentioning that Triggs found acute trauma on the cervix, Fox states Triggs found no acute

trauma on the vagina. Although her clothes were dirty, stretched, and burned, Fox argues that the

clothes were not torn or ripped. Finally, Fox directs the Court to an alleged lack of evidence by

stating that there were no photographs of Williamson's bruises and her panties were never recovered.

According to Fox, the evidence of consensual sex greatly outweighed proof of his guilt such that the

jury's verdict was clearly wrong and unjust.

        We do not agree. The testimony elicited from Williamson, Casper, Gratz, and Triggs

described above is factually sufficient to support the jury's finding that the encounter with Fox was

not consensual. The jury was free to consider and believe Williamson's recollection of the incident,

Casper's and Gratz's testimony about Williamson's demeanor and appearance, and Triggs' description



                                                   7
and findings from her observation and physical examination of Gratz. Fox's first point of error is

overruled.

III.   Fox Failed to Prove That Ineffective Assistance of Counsel Damaged His Defense

       A.      Standard of Review

       From the record received by this Court, Fox bears the burden of proving that counsel was

ineffective by a preponderance of the evidence. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005) (any allegation of ineffectiveness must be firmly founded in record); Thompson

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Cannon v. State, 668 S.W.2d 401, 403 (Tex.

Crim. App. 1984). We apply the two-pronged Strickland test handed down by the United States

Supreme Court to determine whether Fox received ineffective assistance of counsel. Strickland v.

Washington, 466 U.S. 668 (1984). Failure to satisfy either prong of the Strickland test is fatal. Id.

at 697; Ex parte Martinez, 195 S.W.3d 713, 730 (Tex. Crim. App. 2006). Thus, we need not

examine both Strickland prongs if one cannot be met. Strickland, 466 U.S. at 697.

       Fox must first show counsel's performance fell below an objective standard of reasonableness

when considering prevailing professional norms.          Id. at 687–68.    Our review of counsel's

performance is highly deferential, and there is a strong presumption that counsel's conduct fell within

the wide range of reasonable professional assistance. Id. at 689; Tong v. State, 25 S.W.3d 707, 712

(Tex. Crim. App. 2000). Therefore, we will not second-guess through hindsight the strategy of

counsel at trial. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v. State, 161



                                                  8
S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet. ref'd). Where the record is silent as to why

counsel failed to make an objection or take certain actions, we will assume it was due to any strategic

motivation that can be imagined, and the appellant will have failed to rebut the presumption that trial

counsel's actions were in some way reasonable.3 Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim.

App. 2007); Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001); Fox v. State, 175 S.W.3d

475, 485–86 (Tex. App.—Texarkana 2005, pet. ref'd). In other words, we will not conclude that the

challenged conduct is deficient unless it was so outrageous that no competent attorney would have

engaged in it. Thompson, 9 S.W.3d 808; Fox, 175 S.W.3d at 485–86.

       Next, it is not enough for Fox to show that the errors had some conceivable effect on the

outcome of the proceeding. Strickland, 466 U.S. at 693. To meet the second prong of the Strickland

test, Fox must show that the deficient performance damaged his defense such that there is a

reasonable probability that the result of the trial would have been different. Id.; Tong, 25 S.W.3d

at 712. We evaluate this factor while taking into consideration the totality of representation and the

particular circumstances of this case. Thompson, 9 S.W.3d at 813; Ex parte Felton, 815 S.W.2d 733,

735 (Tex. Crim. App. 1991). Using these guiding principles, we will examine Fox's claims of

ineffective assistance of counsel.




       3
         Even though a motion for new trial was filed, it did not raise ineffective assistance of
counsel and no hearing was conducted on the motion. Consequently, the record is silent concerning
the rationale for trial counsel's actions during trial.

                                                  9
        B.      Failure to Object to Evidence That Fox Retained an Attorney

        Gratz testified that he received a call from an attorney hired by Fox. Fox argues that

counsel's failure to object to this testimony fell below the range of reasonable professional assistance.

Article 38.38 of the Texas Code of Criminal Procedure states:

                Evidence that a person has contacted or retained an attorney is not admissible
        on the issue of whether the person committed a criminal offense. In a criminal case,
        neither the judge nor the attorney representing the state may comment on the fact that
        the defendant has contacted or retained an attorney in the case.

TEX . CODE CRIM . PROC. ANN . art. 38.38 (Vernon 2005).

        We conclude that trial counsel may have failed to object to this inadmissible evidence for

strategic reasons. Fox told Gratz that he would meet him at the police station on January 1, 2007,

but failed to do so. Fox called and rescheduled for January 2, failed to show up, called to reschedule

the meeting for January 3, and again failed to meet with Gratz. This testimony was in front of the

jury before Gratz stated he received a call from Fox's counsel on January 4, that he was assured Fox

would contact him on the 5th, but that Gratz never heard from either one again. In Gratz's

cross-examination, the strategy for failing to object was revealed:

                 Q.     If I'm a police officer, and I call you up on the phone and say, I want
        to talk to you about a rape.
                        Tell the ladies and gentlemen of the jury what's the first thing you're
        going to do.

                A.      Call an attorney.

                Q.      Absolutely. Why is that?



                                                   10
               A.      Because I know how the police operate.

              Q.       They can trick people. They can cajole them into saying things that
       can be used, when necessarily taken out of context, it wouldn't be any big deal; but
       the way it's used, it hurts them, right?

               A.      That's correct. It could be.

               ....

              Q.       . . . So the fact that he called David Ryan -- now, you got to remember
       the context that this is the very first part of the year. Nobody's -- not many attorneys
       would be working on December 31st or January 1st, right?

               A.      Not that I know of.

              Q.      . . . So, the fact that you don't hear from an attorney until, what,
       January the 4th, that shouldn't come as any surprise to you, should it?

               A.      No, sir, that didn't.

               ....

                Q.     And nobody should take any negative inference from the fact that he
       hired a lawyer, didn't want to talk to you without a lawyer, and Mr. Ryan did or didn't
       get ahold of you quick enough. That's not my client's fault, is it?

               A.      No, sir.

It is possible that counsel wanted the jury to determine that Fox's delay in meeting with Gratz was

due to his need to find an attorney so that he would not be tricked by the police, and was not due to

fear because of possible knowledge of guilt. Without testimony that it may have been difficult to

hire an attorney around the holiday season, Fox's counsel may have had a hard time explaining Fox's

broken promises to meet with Gratz.


                                                 11
       Since it is conceivable that counsel used this strategy, we will not second-guess it through

hindsight. Further, Fox failed to brief or otherwise demonstrate how this error would have resulted

in a different outcome, especially in light of evidence that was factually sufficient to support the

verdict. Because Fox failed to meet either prong of the Strickland test, this point of error is

overruled.

       C.      Extraneous Offense Objection

       Next, Fox complains that extraneous offense evidence was introduced through testimony by

Williamson that Fox was "very controlling, very -- very instructive, very controlling. He had done

this. He knew what he was doing." Fox's counsel objected to the statement, and an instruction to

disregard was given. Now, Fox complains of his counsel's failure to ask for a mistrial.

       Here, counsel protected Fox's rights by objecting and obtaining an instruction from the trial

court that the jury was to "disregard the last statement made by the witness." This was accomplished

without mentioning an extraneous offense or a prior bad act. Counsel obtained the desired relief

without calling to the jury's attention the specific rationale -- that it might be interpreted that the

witness was insinuating that Fox had sexually assaulted others. "The asking of an improper question

will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to

disregard." Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (quoting Hernandez v. State,

805 S.W.2d 409 (Tex. Crim. App. 1990)). A mistrial is required only when the improper question




                                                  12
is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of

withdrawing the impression produced on the minds of the jurors. Id.

        Fox focuses generally on extraneous offense caselaw, but does not establish how

Williamson's specific testimony was clearly prejudicial. The statement "[h]e had done this" could

simply mean that Fox instructed Williamson in a controlling manner. The statement that Fox "knew

what he was doing" could also just mean that he was in control. We do not think these statements

clearly establish an introduction of another crime, wrong, or act as contemplated under Rule 404 of

the Texas Rules of Evidence. Based on this ambiguous testimony, it is highly unlikely that a mistrial

would have been granted. See TEX . R. EVID . 404. Therefore, counsel's action in objecting and

obtaining an instruction to disregard the evidence was not deficient performance even though a

motion for mistrial was not requested. This point of error is overruled.

        D.      State's Punishment Reference

        In its opening statement, the State argued, "I think after you've heard all of this evidence,

you'll agree with me that this -- this jury will be convinced beyond a reasonable doubt and that this

man needs to spend the rest of -- as long as he can in the penitentiary." During closing statement at

the guilt/innocence phase, the State contended Fox "doesn't need to be on the streets. He needs to

spend the rest of his life in the penitentiary."

        It is proper for the prosecution to make a plea for law enforcement. Jackson v. State, 17

S.W.3d 664, 673 (Tex. Crim. App. 2000). For this reason, not every reference to punishment at the



                                                   13
guilt/innocence stage is improper. Wright v. State, 178 S.W.3d 905, 930 (Tex. App.—Houston [14th

Dist.] 2005, pet. ref'd). The argument that the jury should get the defendant off the streets has been

held to be a proper plea for law enforcement.            Smith v. State, 114 S.W.3d 66, 72 (Tex.

App.—Eastland 2003, pet. ref'd). Where, as here, the State's argument does not encourage the jury

to ignore its duties to decide guilt or innocence or suggest that punishment is the only real issue, the

punishment reference is not necessarily improper. Wright, 178 S.W.3d at 930; Francis v. State, No.

02-05-00046-CR, 2006 WL 2034280, at *2 (Tex. App.—Fort Worth July 20, 2006, no pet.) (mem.

op., not designated for publication).

        More importantly, declining to object to a portion of the State's argument is an inherently

tactical decision based on the way the trial is unfolding and the trial strategy employed. Taylor v.

State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. ref'd). Counsel could have made a

tactical decision not to draw attention to, or re-enforce the prosecutor's argument in front of the jury.

Absent a record stating the reasons for counsel's failure to object, we will not second-guess counsel

through hindsight.

        Further, Fox failed to brief or otherwise demonstrate how counsel's failure to object to these

statements would have resulted in a different outcome. This point of error is overruled.

        E.      Failure to Object to State's Use of the Word "Predator"

        During closing argument, the State referred to Fox as a "predator" six times. Fox contends

his counsel's failure to object to the use of this term constituted ineffective assistance of counsel.



                                                   14
       There are four proper areas for jury argument: 1) summation of the evidence presented at

trial; 2) reasonable deduction drawn from the evidence; 3) answer to the opposing counsel's

argument; and 4) a plea for law enforcement. Jackson, 17 S.W.3d at 673. We have previously

explained that the use of the term "predator" can be interpreted as a description or deduction based

on the evidence.     Smith v. State, No. 06-05-00148-CR, 2006 WL 3246487, at *3 (Tex.

App.—Texarkana Nov. 10, 2006, no pet.) (mem. op., not designated for publication); see also Hines

v. State, 144 S.W.3d 90, 95 (Tex. App.—Fort Worth 2004, no pet.) (court decided failure to object

to use of term "predator" during closing argument not ineffective assistance of counsel because

failure to object could have been part of strategy not to draw attention to term).

       While we do not condone the use of this term and even assuming this argument was

improper, Fox has failed to demonstrate how the alleged deficient performance damaged his defense

such that there was a reasonable probability that the jury's verdict would have been different. This

point of error is overruled.

       F.      Failure to Object to Prosecutor's Personal Opinion

       Fox asserts that he was denied effective assistance of counsel when there was a failure to

object to the prosecutor's statements projecting his personal opinion that Fox was guilty. The

following remarks were made to the jury in closing argument:

       C       Our evidence isn't perfect, but I don't see how any of you could have any
               reasonable doubt.
       C       I don't think any of you have any doubt.
       C       He needs to spend the rest of his life in the penitentiary.


                                                 15
       C       And I think the only possible verdict you can return is one of guilt.
       C       I don't think there's any reasonable doubt on the essential elements in this
               case.
       C       And if you don't find this person guilty, then I don't think justice will have
               been done.

       The prosecutor may tell a jury that a conviction is expected based on the evidence. Murray

v. State, 861 S.W.2d 47, 54 (Tex. App.—Texarkana 1993, pet. ref'd). We believe these statements

amount to a plea for law enforcement based on a reasonable deduction from the evidence rather than

the prosecutor's personal opinion on guilt. See McGee v. State, 689 S.W.2d 915, 918 & 920–21

(Tex. App.—Houston [14th Dist.] 1985, pet. ref'd) (Prosecution's statement, "I will tell you

something. If we can't get a conviction in that type of situation, we might as well forget trying to get

the drug pushers convicted in Galveston," was a summation of the evidence and a proper plea for

law enforcement.).

       Nevertheless, in McGee, failure to object to closing argument when the prosecutor offered

a personal opinion of the defendant's guilt by stating, "You know as well as I do, in your hearts, that

Don Carols McGee is guilty," was held not to constitute ineffective assistance of counsel. 689

S.W.2d at 919–21; see Goodspeed v. State, 167 S.W.3d 899, 904 (Tex. App.—Texarkana 2005, no

pet.); see also Dockery v. State, No. 01-93-00956-CR, 1996 WL 32871, at *3 (Tex. App.—Houston

[1st Dist.] Jan. 25, 1996, no pet.) (not designated for publication) (Even though statement that "I

prosecute cases that we believe the defendant is guilty" was error, it was an isolated incident and did

not constitute ineffective assistance of counsel.).



                                                  16
       As with the other points of error, Fox failed to demonstrate that failure to object was not part

of his counsel's strategy. Counsel may have wanted to mitigate attention to the prosecutor's

comments or possibly feared the risk an overruled objection from which the jury might improperly

infer the judge's agreement with the prosecution. Fox also failed to demonstrate his defense was

prejudiced in such a manner that the jury would have rendered a not guilty verdict absent the State's

comments. This point of error is overruled.

       G.      Failure to Object to the State's Remarks Regarding Fox's Attorney

       Next, Fox contends that the following comments made by the State during closing were

improper:

       C       Davis is a good lawyer. He did a good job in this case. He didn't have much
               to work with, but he did as good as he could.
       C       I'd like for you to not get sidetracked because he's [Fox's counsel] good at
               that.
       C       Well, I may change my opinion of the lawyer. I thought he was a good
               lawyer. That insults my intelligence, and I hope that it insults your
               intelligence, every one of you.
       C       That insults my intelligence. They have to come up with something, though.

       The State has a right to respond to arguments made by defense counsel. A review of the

record clarifies that these statements were made to respond to Fox's consent defense. Moreover,

even if these statements can be read as sidebar remarks, we do not think the absence of these

statements would have caused a different result, and we will not speculate on whether defense

counsel's inaction was contrary to any possible trial strategy. Thomas v. State, 693 S.W.2d 7, 11




                                                 17
(Tex. App.—Houston [14th Dist.] 1985, pet. ref'd) (failure to object to sidebar remarks not

ineffective assistance).

       H.      Failure to Object to Use of Pen Packet During Punishment Phase

       Pen packets are admissible to show a defendant's prior criminal record if they are properly

authenticated. Cuddy v. State, 107 S.W.3d 92, 96 (Tex. App.—Texarkana 2003, no pet.).

Certification by "the record clerk of the Texas Department of Criminal Justice, Institutional Division

. . . constitutes proper authentication of the copies of the judgment and sentence found in a pen

packet." Id.; see Reed v. State, 811 S.W.2d 582, 586 (Tex. Crim. App. 1991).

       Fox asserts that his counsel's failure to object to the authentication of the pen packet used to

enhance his sentence amounted to ineffective assistance of counsel. The argument is that certified

copies of judgments for various cause numbers were attached, but the cause number for the

aggravated rape conviction used in the enhancement, number 340190,4 was not included in the

certification. When the State sought to admit the pen packet, Fox's defense counsel objected to it

as hearsay, but did not object to the authentication of the pen packet.5

       The indictment alleged that Fox had been previously convicted in cause number 0340190 in

the 185th Judicial District Court of Harris County, Texas, of aggravated rape. During the


       4
       For court record-keeping purposes, cause numbers 0340190 and 340190 are mathematically
the same. This variance is not complained of on appeal.
       5
        This was not an improper objection. If the record was actually not authenticated, then it
would have been subject to a hearsay objection. But we agree counsel should make a more specific
objection to preserve the issue of authentication.

                                                 18
punishment trial, counsel for Fox acknowledged that he had previously been furnished a copy of the

pen packet. The pen packet contained a copy of the conviction for aggravated rape in cause number

340190 from the 185th Judicial District Court of Harris County, Texas.

       The pen packet was certified by an affidavit of record clerk Larry LeFlore, who was

"employed as the Chairman of Classification and Records for the Texas Department of Criminal

Justice - Correctional Institutions Division." LeFlore stated, "I do hereby certify that the attached

information provided on inmate FOX, ROY LEE, TDCJ/BPP# 331714 Cause # 340100, 16989,

12845, 12514 are true and correct copies of the original records now on file in my office maintained

in the regular course of business." LeFlore then attached records to his affidavit that he intended to

authenticate. There was no cause number 340100. Instead, an attached judgment for cause number

340190, the aggravated rape cause, was included. It appears from the record that LeFlore simply

made a clerical error in stating that cause number 340100 was attached when in reality cause number

340190 was the attached judgment. We do not find counsel's conduct deficient. Even if a variance

existed between the cause number alleged in the enhancement count and that on the judgment,

reversal would be required only if Fox could show "prejudicial surprise." Robinson v. State, 739

S.W.2d 795, 800 (Tex. Crim. App. 1987). Here, there was no variance between the enhancement

allegation and the copy of the judgment of conviction in cause number 340190. The proper

judgment of the prior conviction on Fox was contained in the pen packet that was certified by the




                                                 19
Department of Criminal Justice. We do not believe it is incumbent on counsel to object to a matter

that clearly appears to be no more than a typographical error.

        Also, at the punishment phase in front of the trial court, Joseph Willis, a certified investigator

with the special prosecution unit, testified that the fingerprints he took of Fox in court matched the

fingerprint card attached to the pen packet in question. He also testified that the records showed that

Fox was convicted of aggravated rape in Harris County in cause number 340190 and received a

twenty-five-year sentence on February 9, 1982.

        This punishment trial was presented to the trial court, not a jury. Even if Fox had objected

to the typographical error and even if the trial court had sustained the objection, the State likely could

have been granted an opportunity to obtain a correction of this clerical error. On these facts, we

cannot say that counsel's failure to object specifically to the authentication of the pen packet

constituted ineffective assistance of counsel. See Hahn v. State, No. 05-06-00366-CR, 2007 WL

530007, at *1 (Tex. App.—Dallas Feb. 22, 2007, pet. ref'd) (not designated for publication) (when

other evidence of previous conviction presented, failure to object to admissibility of pen packet

during punishment hearing not ineffective assistance of counsel). This point of error is overruled.

        I.      Cumulative Error

        Finally, Fox argues that the cumulative effect of the foregoing matters resulted in an unfair

trial. We are to judge the totality of the representation and the particular circumstances of each case

in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. In this case, we have



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reviewed the entire record and find that, among other things, counsel for Fox filed a motion to allow

Fox to testify without being impeached, cited the trial court proper authority, obtained rulings from

the trial court, requested and was allowed a pretrial hearing on the chain of custody of evidence,

presented a thorough voir dire examination of the jury panel, successfully challenged several jurors

for cause, cross-examined the witnesses, objected to many of the State's exhibits, including the

medical history and the SANE records, presented proper jury arguments, and essentially acted in a

professional and competent manner. We do not find the overall actions of counsel to be deficient.

       Because we find the evidence factually sufficient to support the jury's verdict of guilt and

determine that Fox had effective assistance of counsel, we affirm the judgment of the trial court.




                                              Jack Carter
                                              Justice

Date Submitted:        November 10, 2008
Date Decided:          November 13, 2008

Do Not Publish




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