      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00582-CR



                              Michael Ray Chandler, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
          NO. CR2011-365, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Michael Ray Chandler, Jr., was charged with three counts of indecency with a child

by exposure. See Tex. Penal Code § 21.11(a)(2)(A); see also id. § 21.11(d) (explaining that offense

is third-degree felony). In particular, the indictment alleged that with an intent to arouse or gratify

sexual desire Chandler exposed his genitals on three occasions knowing that a child younger

than 17 years old was present. The victim was Chandler’s stepdaughter C.F.B. At the time of the

offenses, C.F.B. was 15 years old. The indictment also contained two enhancement paragraphs

alleging that Chandler had previously been convicted of two felony offenses. After a trial, the jury

found Chandler guilty of two of the three counts. Subsequent to the jury reaching its decision, the

district court found the enhancement allegations to be true and sentenced Chandler to life

imprisonment for the first count and to 98 years and10 months for the second count. See id. § 12.42(d)

(elevating permissible punishment range for person previously convicted of two felony offenses).
The district court ordered that the two sentences be served consecutively. Shortly after the district

court issued its judgment, Chandler appealed his conviction. We will affirm the district court’s

judgment of conviction.


                                           DISCUSSION

                On appeal, Chandler presents three issues challenging his conviction. In his first

issue, Chandler contends that the evidence was legally insufficient to support his conviction

because the evidence did not support the allegations in the indictment that the offenses took place

in Comal County, Texas. In his second issue, Chandler asserts that the district court erred by admitting

into evidence “certain search terms” found in the internet history of a computer retrieved from his

home. Finally, Chandler argues that he was denied effective assistance of counsel because his trial

attorney “failed to object to the introduction of certain search terms on a computer found in” his home.


Venue

                As mentioned above, in his first issue on appeal, Chandler contends that the

evidence was insufficient to support his conviction because the evidence did not show that the

offenses took place in Comal County, Texas, which is where the indictment alleged that the

incidents occurred. Although Chandler acknowledges that the State mentioned Comal County

when making its case, he argues that the State never mentioned Texas, which left “open the

possibility of the offense occurring in another state besides Texas.”

                Venue is not an element of the offense in this case. See Tex. Penal Code § 21.11;

see also Tex. Code Crim. Proc. art. 13.18 (providing that if venue is not specifically stated in

governing statute, proper county for prosecution is where “offense was committed”); State v.

                                                   2
Blankenship, 170 S.W.3d 676, 681 (Tex. App.—Austin 2005, pet. ref’d) (explaining that failure to

prove venue does not negate guilt of accused). During a trial, the State has the burden of proving

venue by a preponderance of the evidence, see Tex. Code Crim. Proc. art. 13.17, and venue may

be proven by circumstantial or direct evidence, Couchman v. State, 3 S.W.3d 155, 161 (Tex.

App.—Fort Worth 1999, pet. ref’d). On the other hand, the defendant has the burden of objecting

to the State’s “failure to prove venue.” Grant v. State, 33 S.W.3d 875, 878 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d). When deciding the issue of venue, the fact-finder is permitted to

“make reasonable inferences from the evidence” presented. Bordman v. State, 56 S.W.3d 63, 70

(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Evidence is sufficient to establish venue if

“‘the jury may reasonably conclude that the offense was committed in the county alleged.’”

Couchman, 3 S.W.3d at 161 (quoting Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964)

and Knabe v. State, 836 S.W.2d 837, 839 (Tex. App.—Fort Worth 1992, pet. ref’d)). On appeal,

reviewing courts are obligated to presume “that venue was proved in the trial court” unless the

issue was “disputed in the trial court” or “unless the record affirmatively shows to the contrary.”

See Tex. R. App. P. 44.2(c)(1).

               In his brief, Chandler contends that he disputed the issue of venue during trial and

points to a portion of the record in which he requested a directed verdict. The exchange at issue

occurred as follows:


       THE COURT: Any motions . . . ?

       CHANDLER’S ATTORNEY: What are we talking about here, Judge? Any motions
       about anything?

       THE COURT: Well, they’ve rested so I mean --

                                                3
       CHANDLER’S ATTORNEY: I guess I could ask for a motion for directed verdict,
       Judge.

       THE COURT: Denied.


               In light of the general nature of this exchange, we cannot agree with Chandler’s

assertion that he disputed the issue of venue during the trial. See Whalon v. State, 725 S.W.2d 181,

188-89 (Tex. Crim. App. 1986) (concluding that defendant did not raise issue of venue in trial court

by moving for directed verdict and asserting that evidence was “wholly insufficient to support a

verdict of guilty and does not establish guilt beyond a reasonable doubt”); Grant, 33 S.W.3d at 879

(determining that motion for “instructed verdict ‘asserting that State did not succeed in showing

each and every element of the offense’” as set forth in the indictment was insufficient “to preserve

the issue of venue”).

               Moreover, the record does not affirmatively show “to the contrary.” See Tex. R.

App. P. 44.2(c)(1). The indictment alleged that Chandler committed the offenses in Comal County,

Texas. Consistent with that allegation, C.F.B. explained in her testimony that during the relevant

time she lived in Comal County and went to a high school located in Comal County. Further, she

related that the home that she lived in with her mom and Chandler was in Comal County and that

the offenses occurred at the home when her mom left for work. Similarly, C.F.B.’s mother testified

that until she learned of the offenses, she lived in a home with Chandler and C.F.B. in “Fischer,

Texas,” which was in “Comal County.” In addition, Texas Ranger Keith Pauska explained in his

testimony that he was asked to investigate the offenses in this case and that he was informed

that the offenses occurred in Comal County. See Woodward v. State, 931 S.W.2d 747, 752 (Tex.

App.—Waco 1996, no pet.) (rejecting argument that venue was not established when witness to

                                                 4
crime testified that she saw defendant commit offense in Brazos County, when investigating officers

testified that they worked for Bryan Police Department, and when victim stated that he worked for

Texas A&M University and lived in Bryan); Hewitt v. State, 734 S.W.2d 745, 747 (Tex. App.—Fort

Worth 1987, pet. ref’d) (concluding that evidence was sufficient to show that offense took place in

Tarrant County, Texas, where witnesses testified that offense occurred in “Tarrant County” and

where other witnesses made references to Texas and to well-known aspects of Tarrant County).

                In light of the preceding, we conclude that the presumption that venue was proven

at trial applies. See Tex. R. App. P. 44.2(c)(1). Accordingly, we overrule Chandler’s first issue

on appeal.


Admission of Evidence

                In his second issue, Chandler argues that the district court erred by allowing into

evidence particular search terms that were obtained from the internet history on a computer that

was in his home. The evidence pertained to searches that were made on the computer before the

offenses at issue.

                During the trial, Detective Brian Morgan testified that he used forensic software to

locate the internet search history for the computer, and the State offered to admit as an exhibit a list

of the search terms found in that history. Among other things, the list contains searches for sexual

subject matters, including searches regarding teenage girls and searches pertaining to teenage girls

having sex with their fathers and other family members.1 In addition, the list also includes the


       1
          The list contains dozens of graphic searches for sexual subject matters. Among other
topics, the list contains the following search terms: “incest,” “sleep teen vs. huge dick,” “daddy
fucks step daughter,” and “mom and daughter.”

                                                   5
following internet searches that form the basis for this issue on appeal: “reality of fallen angels

from heaven,” “demon of lust,” “demons behind sexual lust,” “sex demon[]s in the bible,” “raped

by demon,” “succubus demon,” “demon[]s having sex with women today,” and “devil possessed.”

When the State offered to admit the list of the search terms found in the internet history, Chandler

objected on the grounds that the searches were not relevant and that they were more prejudicial

than probative. See Tex. R. Evid. 401-03. After overruling Chandler’s objections, the district court

admitted the list of terms.

                When challenging the district court’s ruling, Chandler essentially concedes that the

searches for some of the sexual material “might be relevant” to the issue of intent, but he urges that

the searches regarding demons and sex with demons should not have been admitted and were only

introduced to “inflame the minds of the jurors.”

                We review a trial court’s ruling on the admission of evidence under an abuse-of-

discretion standard of review. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010).

Under that standard, a trial court’s ruling will only be deemed an abuse of discretion if it is so clearly

wrong as to lie outside the zone of reasonable disagreement, Lopez v. State, 86 S.W.3d 228, 230

(Tex. Crim. App. 2002), or is arbitrary or unreasonable, State v. Mechler, 153 S.W.3d 435, 439 (Tex.

Crim. App. 2005). Moreover, the trial court’s ruling will be upheld provided that the trial court’s

decision “is reasonably supported by the record and is correct under any theory of law applicable

to the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

                When objecting to the admission of the list, Chandler first argued that the evidence

was not relevant. “‘Relevant evidence’ means evidence having any tendency to make the existence



                                                    6
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; see id. R. 402 (stating that, in general,

all “relevant evidence is admissible”). As mentioned by Chandler, the search terms concerning

teenagers and concerning sexual activity between teenage girls and their relatives, particularly with

their stepfathers, were relevant to the issue of whether Chandler intended to commit the offenses

at issue in this case. See id. R. 401. However, during the trial, Chandler argued that several people

had access to the computer and could have made those searches. The admission into evidence of the

searches pertaining to demons helped link Chandler to the use of the computer and to the relevant

internet searches. Specifically, the searches regarding demons used language that was similar to

language found in letters written by Chandler to C.F.B.’s mother that were admitted into evidence.

In those letters, Chandler repeatedly mentioned demons and demons of lust.

               Accordingly, we cannot conclude that the district court abused its discretion by

overruling Chandler’s relevance objection.

               When objecting to the admission of the search terms, Chandler also argued that they

should not be admitted due to their prejudicial nature. Under Rule 403, relevant “evidence may

be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”

Id. R. 403. As used in the Rule, the term “probative value” refers to how strongly the evidence

makes the existence of a fact more or less probable and to how much the proponent needs the

evidence, and “unfair prejudice” refers to how likely it is that the admission of the evidence might

result in a decision based on an improper basis, including an emotional one. Davis, 329 S.W.3d

at 806. The Rule “favors admission of relevant evidence and carries a presumption that relevant

evidence will be more probative than prejudicial.” Id.

                                                 7
               When determining whether evidence should have been excluded, reviewing courts

must bear in mind that trial courts are afforded “an especially high level of deference” for Rule 403

determinations. United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007). After objectively

reviewing the governing criteria, a reviewing court should determine that the trial court abused

its discretion only if the record shows “a risk that the probative value of the tendered evidence

is substantially outweighed by unfair prejudice.” Montgomery v. State, 810 S.W.2d 372, 393 (Tex.

Crim. App. 1991) (op. on reh’g). When making this determination, a reviewing court should consider

the tendency of the evidence to induce a decision on an improper basis, to confuse the jury or distract

it from the main issues, and “to be given undue weight by a jury that has not been equipped to

evaluate the probative force of the evidence” as well as the amount of time needed to present the

evidence, the evidence’s inherent probative value, and the proponent’s need for the evidence.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

               In this case, Chandler was charged with indecency for exposing himself to his

stepdaughter on more than one occasion. In particular, the testimony and the evidence presented,

including a video of a confession made by Chandler when he was being interviewed by the police

as well as letters written by Chandler to C.F.B.’s mother in which he admits that he committed the

alleged offenses, indicated that Chandler repeatedly removed his clothing and masturbated in front

of C.F.B. while watching pornographic videos. In addition, the letters written by Chandler to

C.F.B.’s mother reveal that when Chandler performed these acts, he fantasized that C.F.B. was her

mother when she was a teenager. More specifically, the letters revealed that C.F.B.’s mother had

confided in Chandler that she had been repeatedly sexually abused by her uncle when she was



                                                  8
younger and that Chandler was attempting to recreate those events with C.F.B. In light of the

allegations against Chandler and the evidence and testimony presented during trial, we do not

believe that the evidence of internet searches related to demons had a tendency to induce a decision

on an improper basis, to induce the jury to give undue weight to the evidence, or to confuse or

distract the jury.

                In addition, as mentioned above, due to the letters that Chandler wrote to C.F.B.’s

mother in which he repeatedly discussed demons, the evidence of search terms regarding demons

and regarding demons having sex with individuals had a tendency to link Chandler to the computer

and to the other searches performed on the computer that were relevant to Chandler’s intent.

Moreover, the internet searches were only mentioned during Detective Morgan’s testimony, and

in its closing argument, the State did not emphasize the search terms and explained that the searches

were not evidence of a crime and were offered only to show Chandler’s intent.

                Arguably, the State’s need for the evidence and testimony concerning internet

searches for demons was not great given, as mentioned above, that the State presented evidence

showing that Chandler had admitted to committing the offenses. In addition, the State was able to

link Chandler to the internet searches of teenage sexual activity through another means. Regarding

the other link, Detective Morgan testified that an email account with a username corresponding to

Chandler’s full name was being used when the internet searches were performed; however, evidence

that an email program was open and active when the internet searches were performed, without

more, is not necessarily the strongest type of linking evidence.

                After objectively reviewing the record and the governing criteria for Rule 403

determinations, we do not believe that the record in this case demonstrates a risk that the probative

                                                 9
value of the evidence of the internet searches pertaining to demons was substantially outweighed by

the danger of unfair prejudice. Accordingly, we cannot conclude that the district court abused its

discretion by overruling Chandler’s objection asserting that the evidence should not have been

admitted because it was too prejudicial.

                Having determined that the district court did not abuse its discretion by overruling

either objection, we overrule Chandler’s second issue on appeal.


Effectiveness of Counsel

                In his third issue on appeal, Chandler contends that his trial attorney provided

ineffective assistance of counsel. In particular, Chandler argues that his attorney was ineffective

because he failed to object to the portion of Detective Morgan’s testimony in which he related that

one of the search terms found on the computer concerned demons “having sex with women today.”

Although Chandler acknowledges that his attorney generally objected to the admission of the

exhibit containing the list of all of the internet searches recovered from the computer, Chandler insists

that his attorney should have specifically objected to testimony concerning this particular search

and should have argued that the testimony was not relevant and was more prejudicial than probative.

                To succeed on an ineffectiveness claim, the defendant must overcome the strong

presumption that his trial “counsel’s conduct falls within the wide range of reasonable professional

assistance” and must show that the attorney’s “representation fell below an objective standard of

reasonableness . . . under prevailing professional norms” and that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 689, 694 (1984). Evaluations of effectiveness are based

                                                   10
on the totality of the representation. Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim. App. 2013);

see also Davis v. State, 413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref’d) (providing that

assessment should consider cumulative effect of counsel’s deficiencies). Furthermore, even though

a defendant is not entitled to representation that is error free, a single error can render the

representation ineffective if it “was egregious and had a seriously deleterious impact on the balance

of the representation.” Frangias, 392 S.W.3d at 653.

               In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness

claims because the record for that type of claim is usually undeveloped. Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005). “This is true with regard to the question of deficient

performance . . . where counsel’s reasons for failing to do something do not appear in the record.”

Id. (stating that “counsel’s conduct is reviewed with great deference, without the distorting effects

of hindsight”). In addition, before their representation is deemed ineffective, trial attorneys should

be afforded the opportunity to explain their actions. Id. If that opportunity has not been provided,

as in this case, an appellate court should not determine that an attorney’s performance was ineffective

unless the conduct at issue was “so outrageous that no competent attorney would have engaged in

it.” See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

               As set out above, Chandler’s ineffectiveness claim is based on his trial attorney’s

failure to act, and the record before this Court is not sufficiently developed to evaluate the alleged

failure to act because “[n]either [his] counsel nor the State have been given an opportunity to

respond to” the claim. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Moreover,

in the prior issue, Chandler contended that the district court erred by overruling his objections to the



                                                  11
admission of the list of search terms obtained from the computer in his home. When challenging the

district court’s ruling, Chandler contended that those search terms, including the search that is in

dispute in this final issue, were not relevant and were more prejudicial than probative. Ultimately,

we decided that the district court did not abuse its discretion by admitting the evidence. The reasoning

behind our resolution of the prior issue would seem to foreclose Chandler’s contention that his trial

counsel was ineffective for failing to specifically raise those same objections to the portion of

Detective Morgan’s testimony in which he read the particular search term in dispute here.

                Moreover, even though it is not necessary to further address the issue, we do note that

effectiveness challenges must be considered in light of “the totality of the representation” provided

by the attorney. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). During voir dire,

Chandler’s trial attorney discussed the presumption of innocence, the State’s burden of proof,

and the reasons why a defendant might choose not to testify. In addition, his attorney extensively

questioned the panelists about their ability to serve on the case and actively participated in the

selection process. During the trial, his attorney successfully moved to have portions of the video of

Chandler’s interview with the police edited out before the video was played for the jury, emphasized

the State’s burden during his opening statement, cross-examined the State’s witnesses, objected to

portions of the testimony offered by the State’s witnesses, questioned Chandler’s father outside

the presence of the jury to ascertain whether his testimony would be beneficial to Chandler, and

emphasized the elements of the jury charge and the State’s burden during his closing argument. In

the punishment phase, Chandler’s attorney objected to the admission of evidence regarding logs of

Chandler’s misdeeds during his prior incarceration, cross-examined the State’s witnesses, argued



                                                  12
that Chandler’s sexual-impulse-control problem resulted from his prior incarceration, and

undermined the testimony of the State’s witnesses during his closing argument. Finally, his attorney

asked the district court to order that any punishments imposed for the two counts run concurrently.

                 In light of the preceding, we overrule Chandler’s final issue on appeal.


                                           CONCLUSION

                 Having overruled Chandler’s issues on appeal, we affirm the district court’s judgment

of conviction.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: October 1, 2014

Do Not Publish




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