Opinion filed July 29, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-09-00066-CR
                                         __________

                          YEDIDIYAH HAWKINS, Appellant

                                               V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 42nd District Court

                                     Callahan County, Texas

                                   Trial Court Cause No. 6641


                              MEMORANDUM OPINION

       The jury convicted Yedidiyah Hawkins of aggravated sexual assault, and the trial court
assessed punishment at thirty years confinement. We affirm.
       There is no challenge to the sufficiency of the evidence. The victim testified that, at the
time of the offense, she was eleven years old and that she lived with her mother, appellant, and
her siblings. On the day of the offense, the victim and appellant were going to Bill and Lisa
Thornton‟s house to watch wrestling.        On the way, appellant took the victim to Rachyl
Hawkins‟s house. No one was at Rachyl‟s house at the time. The victim testified that, at
Rachyl‟s house, appellant “put the speculum inside” her. The victim and appellant then went to
the Thornton‟s house. The victim told her mother about the incident.
       Rachyl testified at trial that, on the day of the offense, she was out of town on a shopping
trip. When she returned from the trip, Rachyl found the victim‟s pink sweater and earring in
Rachyl‟s bedroom. Rachyl also found “feet stirrups” under her bed and also condom and
lubricant packets. None of these items belonged to Rachyl, and none were in her house before
she left on the trip. Rachyl said that the items belonged to appellant and that she confronted him
about the items. Rachyl testified that appellant admitted that he used the speculum on the victim.
       Appellant presented evidence that the victim admitted to fabricating the allegations.
Appellant called witnesses who testified that the victim had a reputation for not telling the truth.
       In his first, second, and third points of error, appellant complains that he received
ineffective assistance of counsel.     In order to determine whether appellant‟s trial counsel
rendered ineffective assistance at trial, we must first determine whether appellant has shown that
counsel‟s representation fell below an objective standard of reasonableness and, if so, then
determine whether there is a reasonable probability that the result would have been different but
for counsel‟s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988
S.W.2d 770 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel‟s
conduct fell within the wide range of reasonable professional assistance, and appellant must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App.
1991). Generally, the record on direct appeal will not be sufficient to show that trial counsel‟s
representation was so lacking as to overcome the presumption of reasonable conduct. Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We do not inquire into trial strategy unless
no plausible basis exists for trial counsel‟s actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.
Crim. App. 1981). When the record contains no evidence of the reasoning behind trial counsel‟s
actions, we cannot conclude that counsel‟s performance was deficient. Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994).
       Appellant first argues that his trial counsel was ineffective in failing to request a charge
on the defense of medical necessity. It is a defense to prosecution for aggravated sexual assault
that the conduct consisted of medical care for the child. TEX. PENAL CODE ANN. §§ 22.011(d),
22.021(d) (Vernon Supp. 2009). The victim testified that appellant gave her a “pap smear” and

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that he “checked” her for cervical cancer. Appellant contends that his trial counsel‟s failure to
request a charge on medical necessity forfeited his right to assert that defense.        The record
shows that appellant‟s trial counsel called several witnesses to testify that the victim was
untruthful and that the victim admitted that she fabricated the allegations.      Appellant has not
shown that trial counsel‟s decision on the defense of medical necessity was not based upon
sound trial strategy. We overrule appellant‟s first point of error.
         Appellant contends in his second point of error that his trial counsel was deficient in
failing to preserve his motion to suppress. In his third point of error, appellant complains that his
trial counsel was ineffective in failing to properly raise the issue of whether the attorney for the
State was properly deputized to litigate for seizure of the victim. Trial counsel filed a motion to
suppress on October 23, 2008. The motion sought to suppress “all evidence gained from the
execution of the illegal TRO served upon [appellant] on or about October 16, 2007, („TRO,‟
herein), all evidence obtained from his illegal incarceration, all evidence obtained by the
unlawful search and seizure of his home, and all evidence that derives from those sources.” Trial
counsel argued in the motion to suppress that the TRO was obtained in violation of the
Constitution and the laws of the State of Texas because Glenna Cordray represented the
Department of Protective and Family Services without being properly deputized. Appellant also
argued that the search warrant for his home did not comply with state law or the federal or state
constitutions. There was no hearing on the motion.
         At the close of the State‟s evidence, trial counsel made a motion for a directed verdict
and also asked the trial court for a ruling on the motion to suppress. Trial counsel argued that
Cordray lacked “the authority to attain TRO pursuant to the Family Code.” The trial court
denied both motions. Trial counsel called Cordray to testify out of the presence of the jury to
further his motion to suppress. Cordray testified that she was an attorney for the department and
that she was deputized by the attorney general for both the current and previous years. Cordray
testified that she handled department matters when there is a conflict with criminal and civil
cases.
         Appellant‟s motion to suppress indicates that the TRO related to the department‟s
removal of the children from appellant‟s home.1 There is nothing in the record to show that
Cordray was not properly deputized. There is nothing in the record to indicate that there was an

         1
          The TRO is not part of the record before us.

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unlawful search of appellant‟s home. Appellant has not shown that he should prevail on the
motion to suppress. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). The
record shows that trial counsel called witnesses on appellant‟s behalf, made appropriate
objections, and conducted thorough cross-examination. Appellant has not shown that his trial
counsel was ineffective. We overrule appellant‟s second and third points of error.
       Appellant argues in his fourth point of error that the trial court erred in overruling his
motion for mistrial. We review the trial court‟s ruling on a motion for mistrial for an abuse of
discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Appellant specifically
complains that the trial court erred in refusing to grant a mistrial because “members of the
motorcycle club „Bikers Against Child Abuse‟ were attempting to influence the jury.”
       Appellant notified the trial court that there was a motorcycle club, Bikers Against Child
Abuse, present. Trial counsel expressed concern that the group was attempting to influence the
jury. Prior to any witnesses being called, the trial court commented on the presence of the group.
The trial court instructed the jury that the group was to have no effect on the jury and that
appellant was not affiliated with the group.
       Later on during the trial, appellant‟s trial counsel asked the trial court to “do something
about the motorcycle people that are in the hallway.” Trial counsel stated that the group was
“wearing motorcycle gear” and that trial counsel believed it was an attempt to intimidate the
jury. Trial counsel requested that the group be removed or ordered to “take off their motorcycle
jackets that say anything about motorcycle club against child abuse.”           Trial counsel also
requested that the group not be in the hallway in the presence of the jury and witnesses. The trial
court overruled both appellant‟s request to remove the group from the courtroom and his motion
for mistrial. The trial court instructed the jury again not to pay attention to the group and not to
let the group influence their verdict.
       Appellant cites Ites v. State, 923 S.W.2d 675 (Tex. App.—Houston [1st Dist.] 1996, pet.
ref‟d), which holds that, when a juror communicates with an unauthorized person about the case
at trial, the appellate court presumes the defendant was injured. However there is nothing in the
record to show that any member of the group communicated with the jury. There is no evidence
that the group made any verbal remarks or any gestures that would influence the jury. Appellant
has not shown that the trial court erred in denying his motion for mistrial.          We overrule
appellant‟s fourth point of error.

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        In his fifth point of error, appellant complains that the trial court erred in “overruling
objection to the State‟s introduction of other conduct during its case in chief.” During the
testimony of Lisa Thornton, the following exchange occurred:
                Q: Lisa, you testified in response to defense‟s questions that you didn‟t
        report this to law enforcement?

                A: Yes.

                Q: And was that common at the House of Yahweh?

                A: Yes.

                Q: If you knew of something illegal, would you be allowed to report that
        to law enforcement?

                A: No.

               Q: In fact were there other occasions where you knew something was
        going on and you didn‟t report it?

                [DEFENSE COUNSEL]: I‟m going to object as going into extraneous
        collateral matters, 404B.

                [PROSECUTOR]: I am not planning on getting into the details.

Appellant contends that the trial court allowed the State to introduce evidence of an extraneous
offense.
        Lisa did not answer the question to which appellant objected. Moreover, the testimony
did not show evidence of other crimes, wrongs, or acts as set out in TEX. R. EVID. 404(b). We
overrule appellant‟s fifth point of error.
        Appellant argues in his sixth point of error that the trial court erred in overruling his
objection to the State‟s closing argument. Rachyl testified that she secretly recorded appellant
when he confessed that he used the speculum on the victim. Rachyl played the recording for
others. Rachyl said that appellant told her to take the recorder to Bill Thornton Jr. to delete the
recordings. Bill testified at trial that Rachyl brought him a digital recording device and that he
deleted the files on the recorder at the request of appellant. Bill stated that he did not listen to the
recorded files before deleting them.




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        During closing arguments, the State argued that Bill‟s testimony that he erased the re-
cording without knowing what was on it was not believable. Appellant did not object to that
comment. The State then argued that the testimony was comparable to “the guy at the border
who‟s going to carry over a big huge brown paper wrapping that smells awful funny, but he
doesn‟t really want to know what‟s inside.” Appellant then objected that the argument was
outside the evidence. The trial court overruled the objection.
        Appellant specifically complains on appeal that the State‟s argument was improper in
stating that Bill‟s testimony was not believable. Appellant did not timely object to the State‟s
argument that Bill‟s testimony was not believable; therefore, he has waived this complaint.
TEX. R. APP. P. 33.1. Moreover, we find that the argument was a proper summation of the
evidence. See Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). We overrule
appellant‟s sixth point of error.
        In his seventh point of error, appellant contends that the trial court allowed the State to
strike at him over the shoulders of counsel. Appellant specifically complains of the State‟s final
argument that discussed the State introducing records at trial to support the case. The State
argued that the records “were gotten by us, and why? Because we knew the kind of slash and
burn, trash victim tactics that would be used by the defense.” Appellant argued that the victim
was not telling the truth, that the State based its case upon bias and prejudice, and that the State
was “going to try to stir a bunch of smoking mirrors.” We find that the State‟s final argument
was an answer to the argument of opposing counsel. Id. We overrule appellant‟s seventh point
of error.
        We affirm the trial court‟s judgment.




                                                             JIM R. WRIGHT
                                                             CHIEF JUSTICE


July 29, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.


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