                           NUMBER 13-18-00626-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

JOHNATHON COLBY WHITBY,                                                   Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 377th District Court
                         of Victoria County, Texas.



                       MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

      Appellant Johnathon Colby Whitby was convicted on two counts of sexual assault

of a child, a second-degree felony. See TEX. PENAL CODE ANN. § 22.021. In his sole

issue, Whitby argues that he received ineffective assistance of counsel. We affirm.

                                    I. BACKGROUND
        On June 14, 2018, Whitby was indicted for four counts of sexual assault of a child,

alleged to have occurred on December 29, 2016: sexual penetration of D.G.’s1 sexual

organ by Whitby’s penis (count one), sexual penetration of D.G.’s sexual organ by

Whitby’s finger (count two), sexual penetration of D.G.’s sexual organ by Whitby’s mouth

(count three), and sexual penetration of D.G.’s anus by Whitby’s penis (count four).

Whitby pleaded not guilty to all counts, and the case proceeded before a jury.

        Complainant D.G. testified that she met Whitby online via social media.                           On

December 29, 2016, Whitby messaged D.G. and asked her to meet up with him in person.

She snuck out of her house and entered Whitby’s truck, and they drove around her

neighborhood. At the time, D.G. was fourteen years and one month old; Whitby was

seventeen years and six months old. According to D.G., she told Whitby that they were

not meeting up for sex; nevertheless, after conversing for a while, their conversation

turned sexual. Whitby grabbed D.G.’s phone and threw it in the back of the truck. D.G.

told Whitby that she wanted to go home, but every time she tried to unlock the truck door,

he would lock it again. Whitby told D.G., “suck my dick, and I’ll let you go home.” D.G.

alleged that Whitby grabbed her head and forced her to perform oral sex on him. Whitby

then pulled down D.G.’s leggings to perform oral sex on her. D.G. claimed that Whitby

next penetrated her sexual organ and her anus with his penis. After Whitby ejaculated,

D.G. put her clothes back on and ran home.

        After missing school for several days due to pain from the sexual assault, D.G.

confided in her mother about what happened with Whitby. D.G’s mother took her to be




        1To protect the minor complainant’s identity, we will refer to individuals in this case using aliases.
See TEX. R. APP. P. 9.8.
                                                      2
examined by a sexual assault nurse. The nurse later testified that D.G.’s physical trauma

was consistent with sexual abuse. D.G. then began sexual assault counseling, and the

therapist noted that her behavior was consistent with someone who has experienced

sexual assault trauma.

       Next, V.C. testified that she and Whitby had a child together and that their

relationship has been “[o]n and off for a couple of years.” The State published to the jury

a recorded phone conversation V.C. had with Whitby while he was incarcerated. During

the conversation, Whitby admitted to having sex with D.G. According to V.C., Whitby had

also previously confessed to her that he had sexual relations with D.G.

       After speaking with his attorney and being admonished by the court, Whitby

decided to testify. Whitby claimed that D.G. had known him for a while through mutual

friends. He asserted that D.G. was flirting with him so he suggested they meet on

December 29, 2016.       Another recorded jail phone conversation was entered into

evidence, and Whitby admitted that during the call, he attempted to persuade the other

person on the phone to contact D.G.’s boyfriend “so that he could ask [D.G.] not to come

to court because he could be in big trouble.” He denied having oral or anal sex with D.G.,

claiming that there was no room in his truck for the acts as described by D.G. However,

Whitby admitted to having “conventional” sex with D.G. as alleged in count one and he

admitted that he knew she was fourteen; however, according to Whitby, the sexual

encounter was entirely consensual. He ended his testimony by stating, “I didn’t force

myself upon her. I’m not that kind of person to force myself on somebody.”

      The State challenged Whitby’s statement that he is not the kind of person that

would force himself on a woman. The trial court granted the State’s request to ask Whitby

                                            3
about specific extraneous sex offenses he committed against other underage women.

Whitby denied having grabbed the breast and buttocks of E.S. while he was in middle

school; he asserted that his friend committed the offense and he was simply “in the wrong

place at the wrong time.” Whitby also denied posting nude pictures of A.P. online and

telling her that he would only take them down if she performed sexual favors for him;

again, Whitby claimed that he was “in the wrong place at the wrong time.” However,

Whitby acknowledged that he had been adjudicated for delinquent conduct for posting

nude pictures of J.J. online.

       The State also called several female witnesses to rebut Whitby’s claim that he is

not the “kind of person to force [him]self on somebody.” First, A.P. testified that she knew

Whitby because he was dating her cousin. A.P. claimed that Whitby posted nude pictures

of her on Twitter and told her that he would only take them down if she performed sexual

acts for him on video chat or in person. E.S. testified that Whitby touched her chest

inappropriately on several occasions in middle school, and that as a result, Whitby was

sent to an alternative campus as punishment.

       The State abandoned count two, and the jury acquitted Whitby on count four;

however, the jury found Whitby guilty on counts one and three. At the punishment

hearing, J.J. testified that when she was a freshman in high school, she was in a romantic

relationship with Whitby. She sent him “topless pictures” but never gave him permission

to distribute those photos. Whitby, without permission, posted the pictures to Instagram

because J.J. was talking to another boy at school.         J.J. testified that Whitby also

approached her friend J.C. and threatened to post nude pictures of her online if she did




                                             4
not tell Whitby which boy J.J. was talking to. As a result, charges were brought against

Whitby in juvenile court, and he was placed on juvenile probation.

       The State also called B.H., who testified that she had also been romantically

involved with Whitby; however, she ended the relationship when Whitby demanded to

see her phone and forcibly took it from her. B.H. then told Whitby to leave her alone. In

response, Whitby claimed that he had secretly recorded a romantic encounter with her

and threatened to publish the video to social media.

       V.C. testified that on August 19, 2017, Whitby assaulted her by striking her in the

face and in the ribs. Whitby was allegedly jealous of a text message V.C. had received

from a friend. V.C. claims that similar assaults occurred in March of 2017 and September

of 2017 after she refused to let Whitby look at her phone. According to V.C., “right before

[Whitby] went to jail,” he sent V.C.’s brother a sexually intimate video of V.C.

       Whitby’s counsel called a probation officer to testify about the conditions of

community supervision placed upon sex offenders who are granted community

supervision. She testified that remorse is a helpful trait to possess for a candidate hoping

to be successful on community supervision.

       The jury declined to grant Whitby community supervision and assessed

punishment, for both counts one and three, at the maximum twenty years’ imprisonment

in the Institutional Division of the Texas Department of Criminal Justice and a $10,000

fine. The trial court pronounced sentence as assessed by the jury and ordered the

sentences to run concurrently. This appeal ensued.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL




                                             5
       In his sole issue, Whitby argues that he received ineffective assistance of counsel

because his trial counsel was deficient by: (1) “[c]alling [Whitby] to testify”; (2) calling a

probation officer to testify at the punishment phase; (3) failing to object when the State

argued that Whitby was not a good candidate for probation because he had not shown

any remorse; and (4) failing to object to the State’s alleged “bolstering” of the probation

officer’s testimony during closing arguments.

A. Standard of Review and Applicable Law

       For a claim of ineffective assistance of counsel to be sustained, an appellant must

satisfy the two-prong test set forth under Strickland v. Washington, 466 U.S. 668, 687

(1984).   Under the first prong, an appellant must show by a preponderance of the

evidence that counsel’s performance fell below an objective standard of reasonableness

and prevailing professional norms. Id.; Chapa v. State, 407 S.W.3d 428, 431 (Tex. App.—

Houston [14th Dist.] 2013, no pet.).        To evaluate the effectiveness of counsel’s

performance, we look at the totality of the representation. See Robertson v. State, 187

S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). Any claim for ineffectiveness of counsel must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness. See

Thompson, 9 S.W.3d at 814. If the record is silent on the motivation behind counsel’s

tactical decisions, an appellant usually cannot overcome the strong presumption that

counsel’s representation was reasonable. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.

App. 2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).

Because “the record is generally underdeveloped,” direct appeal is usually an inadequate

vehicle for claims of ineffective assistance of counsel. Menefield v. State, 363 S.W.3d

                                              6
591, 593 (Tex. Crim. App. 2012). Additionally, courts are hesitant to declare a counsel’s

performance as deficient until counsel has been afforded an opportunity to explain their

reasoning behind their performance. See id. For that reason, “we commonly assume a

strategic motive if any can be imagined and find counsel’s performance deficient only if

the conduct was so outrageous that no competent attorney would have engaged in it.”

Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

      Under the second prong, an appellant must show that counsel’s performance

prejudiced the defense such that there was a reasonable probability that, but for counsel’s

unprofessional errors, the outcome of the trial would have been different. See Strickland,

466 U.S. at 687.

B. Analysis

      Whitby first claims that his counsel was deficient for allowing Whitby to testify; he

claims that calling Whitby to testify that “his commission of sexual assault of a child was

consensual was an ineffective strategy to mitigate punishment.” However, Whitby did not

file a motion for a new trial due to ineffective assistance of counsel. Because he did not

move for a new trial, his counsel was not given an opportunity to explain any reasoning

behind his conduct. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).

Thus, we will assume a strategic motive if any can be imagined and find his counsel’s

performance deficient only if the conduct was so outrageous that no competent attorney

would have engaged in it. See Andrews, 159 S.W.3d at 101.

      Whitby complains that his counsel was deficient for allowing him to testify on his

own behalf because it ultimately did more harm than good by opening the door for the

State to introduce evidence of extraneous sexual offenses allegedly committed against

                                            7
other women in order to rebut Whitby’s statement that he was not the type of person to

force himself on women. Additionally, Whitby claims that admitting to having a sexual

encounter with D.G. was an ineffective strategy because lack of consent is not an element

of sexual assault with a child. See TEX. PENAL CODE ANN. § 22.011(a)(2).

       However, the record reflects that Whitby conferred with his counsel and was

admonished by the trial court before testifying. Whitby acknowledges that his counsel

warned him that he was not entitled to an instruction under Penal Code § 22.011(e). See

id. § 22.011(e) (“It is an affirmative defense to prosecution under Subsection (a)(2) . . .

that the actor was not more than three years older than the victim.”). There is no indication

that Whitby was strong-armed into testifying; rather, the record reflects that Whitby

intentionally and voluntarily waived his right against self-incrimination and decided to

testify on his own volition. Ultimately, the decision to testify rested solely on Whitby. See

Smith v. State, 286 S.W.3d 333, 338 n.9 (Tex. Crim. App. 2009); Johnson v. State, 169

S.W.3d 223, 235 (Tex. Crim. App. 2005). In fact, trial counsel may be held deficient for

depriving a defendant of his right to testify. See Johnson, 169 S.W.3d at 235. The

decision to allow Whitby to testify was not so outrageous that no attorney would engage

in it. See Andrews, 159 S.W.3d at 101.

       Whitby also claims that his counsel was deficient for calling a probation officer

during the punishment phase of trial. However, decisions over presenting witnesses is

largely a matter of trial strategy. See Robinson v. State, 514 S.W.3d 816, 824 (Tex.

App.—Houston [1st Dist.] 2017, pet. ref’d). Because we do not have a record of counsel’s

strategy for calling a probation officer during the punishment phase, we will only find

counsel’s decision deficient if it was so outrageous that no competent attorney would have

                                             8
engaged in it. See Andrews, 159 S.W.3d at 101. The Texas Court of Criminal Appeals

has held that a defendant may call a probation officer during the punishment phase of

trial to help establish the defendant’s suitability for community supervision. See Ellison

v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). Whitby’s counsel might have

theorized that Whitby’s best chance of receiving probation was by calling a probation

officer.   Therefore, under the circumstances of this case, we cannot conclude that

Whitby’s counsel’s decision to call a probation officer was so outrageous that no attorney

would engage in it. See id.; Andrews, 159 S.W.3d at 101.

       Whitby further complains that his counsel was deficient by failing to object when

the probation officer testified that, to be successful on community supervision, a person

needs to be remorseful. See Mares v. State, 52 S.W.3d 886, 892–93 (Tex. App.—San

Antonio 2001, pet. ref’d) (concluding that counsel was deficient where counsel called a

probation officer as a witness but then failed to object when the probation officer opined

that a person in the defendant’s situation would not make a good candidate for community

supervision). However, unlike in Mares, the probation officer in the present case did not

opine about whether a hypothetical person similar to Whitby would do well on community

supervision. Instead, the probation officer, calling upon her six years of experience,

simply offered her opinion that remorse for one’s crimes is a helpful attribute to be

successful on community supervision. We cannot conclude that the decision not to object

was so outrageous that no attorney would engage in it. See Andrews, 159 S.W.3d at

101.

       Whitby additionally claims that his counsel was deficient for failing to object during

the State’s closing arguments at the punishment phase. More specifically, Whitby asserts

                                             9
that his counsel should have objected when the State said during closing, “This is not a

defendant that is remorseful and truly apologetic. He testified in guilt/innocence. You got

to see him on the stand. Did you see any remorse? Did you see any regret? No. It was

just excuses, minimizing, trying to dodge responsibility.”         However, “[d]uring jury

argument, a party may allude to a testifying witness’s demeanor if the jury had an equal

opportunity to observe the witness.” Orcasitas v. State, 511 S.W.3d 213, 222 (Tex.

App.—San Antonio 2015, no pet.) (quoting Good v. State, 723 S.W.2d 734, 736 (Tex.

Crim. App. 1986)). Therefore, Whitby’s counsel was not deficient for failing to object to

said statements. See Strickland, 466 U.S. at 687.

       Lastly, Whitby argues that his counsel failed to object when the prosecutor stated

at closing argument that “[the probation officer] was very honest. There’s no hundred

percent guarantee with probation. . . . I can give you a hundred percent guarantee . . . if

that defendant is sitting in a prison cell, he’s not going to rape a woman while he’s in that

cell.” However, “a prosecutor may argue his opinion concerning a witness’s credibility or

the truth of witness’s testimony if the opinion is based on reasonable deductions from the

evidence and does not constitute unsworn testimony.” Thomas v. State, 445 S.W.3d 201,

211 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (citing McKay v. State, 707 S.W.2d

23, 37 (Tex. Crim. App. 1985)). Whitby does not explain how the prosecutor’s statements

went beyond reasonable deductions from the evidence or how the statements constituted

unsworn testimony. Therefore, we conclude that Whitby’s counsel was not deficient for

failing to object.

       In summary, Whitby’s counsel performed within the range of professional norms.

See Strickland, 466 U.S. at 687; Andrews, 159 S.W.3d at 103. Because we conclude

                                             10
that Whitby failed on the first Strickland prong, we do not need to analyze the second

prong. See Mata v. State, 226 S.W.3d 425, 433 (Tex. Crim. App. 2007) (finding it

unnecessary to address the second Strickland prong if the first prong has clearly not been

met); see also TEX. R. APP. P. 47.1. We overrule his sole issue.

                                     III. CONCLUSION

       We affirm the trial court’s judgment.



                                                       NORA L. LONGORIA
                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
22nd day of August, 2019.




                                               11
