Affirmed and Opinion Filed February 10, 2017.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-15-01211-CR

                       JAMES VERNON HARPER, Appellant
                                               V.
                          THE STATE OF TEXAS, Appellee

                       On Appeal from the Criminal District Court No. 2
                                    Dallas County, Texas
                             Trial Court Cause No. F-1262208-I

                               MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Stoddart
                                  Opinion by Justice Stoddart

       A jury convicted James Vernon Harper of sexual assault of a child and assessed

punishment at ten years in prison. In three issues, Harper contends the trial court erred by not

giving the jury an instruction on extraneous offense evidence in the punishment charge, and that

he received ineffective assistance of counsel. We affirm.

                                         BACKGROUND

       Harper was a middle school coach and hall monitor. L.R. testified that when she was

sixteen years old, Harper sent her a note to come to his office. She was uncomfortable but went

because Harper was friendly to her and gave her things. When she arrived, Harper kissed her

neck, dimmed the lights, and backed her into a corner. He unzipped her pants, laid her on the

floor and pulled down her pants. She pushed him away and told him “No,” but Harper told her
he did not want her to leave his office. Eventually, Harper put his mouth on her sexual organ.

L.R. was able to push him off of her and get dressed. She left the office and went to the

bathroom where she cried about what had happened.

       L.R. also testified that when she was in his office, Harper told her about a case where a

girl accused him of rape. L.R. thought Harper was found not guilty and the girl was harassed by

other students and left the school. Because of this, L.R. was initially afraid to tell anyone what

happened and felt no one would believe her. However, she told her principal a week later

because Harper was following her around school.

       The jury was instructed in the guilt-innocence charge that it could not consider any

extraneous offense evidence unless it believed Harper committed the offense beyond a

reasonable doubt. At the punishment stage, Harper requested the jury place him on community

supervision and testified he had never been in trouble before L.R. accused him of sexual assault.

On cross-examination, Harper denied telling L.R. he had been accused of rape, but admitted that

another student accused him of rape. Harper did not request and the trial court did not include an

instruction on extraneous offense evidence in the punishment charge. Harper did not object to

this omission from the charge.

                                          DISCUSSION

   A. Extraneous Offense Instruction

       Harper argues in his first issue the trial court erred by not instructing the jury at

punishment about the burden of proof for extraneous offense evidence under article 37.07,

section (3)(a). See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). The State counters that

the instruction was not required because the evidence was same transaction contextual evidence.

       We first determine whether there is error in the charge, and, if we find error, we assess

the harm from the error. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo


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v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Almanza v. State, 686 S.W.2d 157,

171 (Tex. Crim. App. 1984) (op. on reh’g). If we conclude there is no error in the charge, we do

not assess the degree of harm. See Middleton v. State, 125 S.W.3d 450, 453–54 (Tex. Crim.

App. 2003).

       Article 37.07, section 3(a)(1) provides in relevant part:

       Regardless of the plea and whether the punishment be assessed by the judge or the
       jury, evidence may be offered by the state and the defendant as to any matter the
       court deems relevant to sentencing, including but not limited to [1] the prior
       criminal record of the defendant, [2] his general reputation, [3] his character, [4]
       an opinion regarding his character, [5] the circumstances of the offense for which
       he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of
       Evidence, [6] any other evidence of an extraneous crime or bad act that is shown
       beyond a reasonable doubt by evidence to have been committed by the defendant
       or for which he could be held criminally responsible, regardless of whether he has
       previously been charged with or finally convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (numbering added).

       In Bluitt v. State, the court of criminal appeals noted that of the six types of evidence

listed in article 37.07 section 3(a), only extraneous offenses and bad acts have an articulated

burden of proof. Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004). Based on the

unambiguous language of the statute, other forms of evidence, such as the circumstances of the

offense, do not require proof beyond a reasonable doubt. See id. If evidence of an extraneous

crime or bad act is admitted during punishment, the trial court must, even if not requested,

instruct the jury not to consider the evidence unless the evidence shows beyond a reasonable

doubt the defendant committed the offense. See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim.

App. 2000); see also TEX. CODE CRIM. PROC. ANN. art. 36.14.

       Same transaction contextual evidence is evidence of another crime that is so “intermixed,

blended, or connected with” the charged crime that it forms an indivisible criminal transaction.

Lamb v. State, 186 S.W.3d 136, 141 (Tex. App.–Houston [1st Dist.] 2005, no pet.). It is

background evidence admitted to show the context in which the criminal act occurred. See
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Prible v. State, 175 S.W.3d 724, 731–32 (Tex. Crim. App. 2005); Rogers v. State, 853 S.W.2d

29, 32 (Tex. Crim. App. 1993).            Such evidence gives the jury information “essential to

understanding the context and circumstances of events which, although legally separate offenses,

are blended or interwoven.” Camacho v. State, 864 S.W.2d 524, 534–35 (Tex. Crim. App.

1993); see also Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986) (“the jury is

entitled to know all relevant surrounding facts and circumstances of the charged offense because

an offense is not tried in a vacuum”).

        Because same transaction contextual evidence serves to explain the circumstances

surrounding the offense, it falls within the “circumstances of the offense” language of section

3(a)(1) rather than the “other evidence of an extraneous crime or bad act” language. See TEX.

CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1); see also Camacho, 864 S.W.2d at 532; Lamb, 186

S.W.3d at 142.       Thus, same transaction contextual evidence admitted or used during the

punishment phase does not require a reasonable doubt instruction under section 3(a)(1) of article

37.07. See Atkinson v. State, 404 S.W.3d 567, 574 (Tex. App.–Houston [1st Dist.] 2010, pet

ref’d); Garza v. State, 2 S.W.3d 331, 335 (Tex. App.—San Antonio 1999, pet. ref’d).1

        L.R. testified at the guilt-innocence phase that she was afraid to tell anyone what

happened to her because Harper told her about the rape accusation. In response to Harper’s

testimony during punishment that he had never been in trouble with the law, other than an

evading arrest misdemeanor several years ago, the State asked whether he told L.R. he was

accused of rape by another student.          Harper denied telling L.R. about the accusation, but

admitted a student accused him of rape. This evidence served to explain the circumstances


        1
           This Court reached the same conclusion in an unpublished opinion. See Duchane v. State, No. 05-00-
01141-CR, 2002 WL 232851, at *4–5 (Tex. App.—Dallas Feb. 8, 2002, no pet.) (not designated for publication)
(“We therefore hold that ‘same transaction contextual evidence’ is not subject to the reasonable doubt charge
instruction requirement of article 37.07, section 3(a).”).


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surrounding the offense for which Harper was charged, why L.R. delayed reporting the offense,

and whether Harper told L.R. about the accusation to intimidate her and prevent her from telling

anyone about his conduct. We conclude the evidence was same transaction contextual evidence

and the trial court was not required to sua sponte give a reasonable doubt instruction. See

Atkinson, 404 S.W.3d at 574–75. We overrule Harper’s first issue.

   B. Ineffective Assistance

          Harper argues in his second and third issues that his trial counsel was ineffective because

he failed to request the reasonable doubt instruction discussed above and failed to object to the

State eliciting Harper’s opinion that anyone committing sexual assault of a child should go to

prison. The State contends the record is insufficient to support the ineffective assistance of

counsel arguments.

          To successfully assert an ineffective assistance of counsel claim on direct appeal,

appellant must show that (1) counsel’s representation fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced him; that is, but for the deficiency,

there is a reasonable probability that the result of the proceeding would have been different. See

Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). The “claim must be firmly

founded in the record and the record must affirmatively demonstrate the meritorious nature of the

claim.”     Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).               Absent an

opportunity for trial counsel to explain the conduct in question, an appellate court should not find

deficient performance unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Id. Appellant has the burden to prove his claim by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

We indulge in a strong presumption that counsel’s conduct was not deficient. Nava v. State, 415

S.W.3d 289, 308 (Tex. Crim. App. 2013). Failure to make the required showing of either


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deficient performance or sufficient prejudice defeats an ineffective assistance claim.       See

Andrews, 159 S.W.3d at 101.

       Harper’s motion for new trial did not assert a claim of ineffective assistance of counsel

and there is no record of an evidentiary hearing on the motion. Thus, there is no record of trial

counsel’s strategies or reasons for the allegedly ineffective conduct.      Because there is no

evidence as to trial counsel’s strategy, we cannot determine on this record whether counsel’s

performance fell below the standard of reasonable assistance. See Menefield v. State, 363

S.W.3d 591, 593 (Tex. Crim. App. 2012) (court could not know on silent record whether counsel

had a good or bad reason for failing to raise Confrontation Clause objection).

       Silent record notwithstanding, the trial court was not required to give the reasonable

doubt instruction thus counsel’s failure to request the instruction was not so outrageous that no

competent attorney would have done the same. Further, Harper does not identify a specific

objection counsel should have raised to the hypothetical question about punishment for someone

who sexually assaulted one of Harper’s daughters. Appellate counsel candidly admits he was

unable to find any case law relevant to the issue, but asserts “it cannot be that a prosecutor is

entitled to commit a defendant in this manner.” Without authority to support a valid objection to

the evidence, we cannot conclude the failure to object was outrageous conduct by Harper’s trial

counsel. See Wert v. State, 383 S.W.3d 747, 758 (Tex. App.—Houston [14th Dist.] 2012, no

pet.) (appellant required to provide authority to support contention that objections would have

been meritorious to support ineffective assistance claim). Appellant has not shown on this

record that his counsel’s conduct was “so outrageous that no competent attorney would have

engaged in it.” Goodspeed, 187 S.W.3d at 392.

       The record before us does not rebut the strong presumption that counsel rendered

effective assistance. See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003);

                                               –6–
Thompson, 9 S.W.3d at 814 (appellant failed to rebut presumption of reasonable assistance

because record was silent as to “why appellant’s trial counsel failed to object to the State’s

persistent attempts to elicit inadmissible hearsay”). Thus, Harper has failed to establish his claim

of ineffective assistance of counsel. We overrule Harper’s second and third issues.

                                          CONCLUSION

       Having overruled all of appellant’s issues, we affirm the trial court’s judgment.




                                                      /Craig Stoddart/
                                                      CRAIG STODDART
                                                      JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
151211F.U05




                                                –7–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                       JUDGMENT

JAMES VERNON HARPER, Appellant                      On Appeal from the Criminal District Court
                                                    No. 2, Dallas County, Texas
No. 05-15-01211-CR        V.                        Trial Court Cause No. F-1262208-I.
                                                    Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                        Justices Francis and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 10th day of February, 2017.




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