                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-09-00213-CR


MELVIN HALL JR.                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                I. INTRODUCTION


      Appellant Melvin Hall Jr. appeals his conviction for three counts of

aggravated sexual assault of a child and two counts of indecency with a child. In

two points, Hall argues that the trial court abused its discretion by admitting an




      1
       See Tex. R. App. P. 47.4.
extraneous offense in the guilt/innocence phase and that he was denied his Sixth

Amendment right to effective assistance of counsel. We will affirm.

                              II. FACTUAL BACKGROUND

      Hall, a retired Major League Baseball player, recruited the complainant at

age twelve to play on a competitive basketball team that he coached.                The

complainant began playing on Hall’s basketball team the following fall around the

time that she turned thirteen. During this time, Hall asked if he could move in

with the complainant’s family, and he stayed at their home for three to five

months while a house was allegedly being built for him in Southlake. While Hall

was living with the complainant’s family, he began to masturbate in front of the

complainant, to kiss her, and to tell her that she was pretty. The complainant

testified that she felt like she was in a boyfriend/girlfriend relationship with Hall.

      In the fall after the complainant turned thirteen, Hall moved into an

apartment with a lady named Jodi and his son named Gavin. The complainant

went to Hall’s apartment on many occasions to babysit Gavin. Hall eventually

started putting his hand down the complainant’s pants and put his finger inside

her vagina. When Hall kissed the complainant, he asked her to tell him that she

loved him. Hall also asked the complainant to touch his penis, and he would put

his hand on her hand and show her what to do. Hall exposed the complainant to

pornography on television at his apartment. Throughout this time, Hall continued

to coach the complainant and to take her to basketball practices; on the way

there, Hall would put his hand in the complainant’s shirt to touch her breasts and

                                           2
give her a look, and she would perform oral sex on him while he was driving her

to basketball practice.

      When the complainant turned fifteen, she “felt violated, . . . . like that was

not supposed to happen.” She eventually told a few people but told them not to

tell anyone. In 2007, the complainant talked to the police and gave a statement.

Hall was indicted later that year for the offenses described above.

       III. EXTRANEOUS OFFENSE TESTIMONY CAME IN WITHOUT OBJECTION

      The complainant’s brother testified that sometimes Hall would take off his

pants in front of him and the complainant, would lay on the floor or the bed

without his underwear on, and would put his feet in the air and “sort of kick them.”

Hall objected to this testimony as inadmissible extraneous offense evidence; Hall

did not ask for, and did not receive, a running objection. In his first point, Hall

argues that the trial court abused its discretion by admitting this extraneous

offense testimony by the complainant’s brother during the guilt/innocence phase

of the trial because the State had no need for it and because the unfair prejudice

from the testimony substantially outweighed any minimal probative value it might

have had.    The State argues that Hall waived this contention because the

complainant subsequently testified without objection to these same facts.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d

                                         3
249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070

(1999). Further, the trial court must have ruled on the request, objection, or

motion, either expressly or implicitly, or the complaining party must have objected

to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State,

138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

      To preserve error, a party must continue to object each time the

objectionable evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex.

Crim. App. 2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim.

App. 1991)); Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert.

denied, 528 U.S. 1026 (1999). A trial court’s erroneous admission of evidence

will not require reversal when other such evidence was received without

objection, either before or after the complained-of ruling. Leday v. State, 983

S.W.2d 713, 718 (Tex. Crim. App. 1998). This rule applies whether the other

evidence was introduced by the defendant or the State. Id.

      Here, the complainant testified after her brother, “Well, it first started off, he

[Hall] would lay on his back, and he would have his legs in the air, and he would

shake his legs back and forth, and he didn’t have any clothes on.” Hall did not

object to this testimony by the complainant. Because Hall failed to object each

time the extraneous offense was offered, he failed to preserve his complaint and

has thus forfeited this argument on appeal. See Martinez, 98 S.W.3d at 193; see

also Cole v. State, 987 S.W.2d 893, 895 (Tex. App.––Fort Worth 1998, pet. ref’d)

(holding that appellant’s failure to timely object to victim’s testimony concerning

                                          4
various incidents where appellant touched her waived any error; the record

reflected that appellant did not object until after three questions were asked

about extraneous offenses). We overrule Hall’s first point.

            IV. INEFFECTIVE ASSISTANCE NOT SHOWN ON THE RECORD

      In his second point, Hall argues that he was denied his Sixth Amendment

right to effective assistance of counsel because his three attorneys failed to

object to extraneous offense evidence; elicited prejudicial evidence of other

victims; failed to object to bolstering by the State and, in fact, called a witness

who bolstered the complainant’s credibility; failed to request a reasonable doubt

instruction as to extraneous offenses; and failed to request a limiting instruction

as to extraneous offense evidence which permitted the jury to consider character

propensity as guilt evidence.

      A.    Standard of Review

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsels’ representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsels’ deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).



                                        5
      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsels’ assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsels’ representation is highly deferential, and the reviewing court

indulges a strong presumption that counsels’ conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63.   A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at

813–14. “In the majority of cases, the record on direct appeal is undeveloped

and cannot adequately reflect the motives behind trial counsel’s actions.”

Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the

presumption   of   reasonable   professional   assistance,   “any   allegation   of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson, 9

S.W.3d at 813).    It is not appropriate for an appellate court to simply infer

ineffective assistance based upon unclear portions of the record. Mata v. State,

226 S.W.3d 425, 432 (Tex. Crim. App. 2007). “But, when no reasonable trial

strategy could justify the trial counsel’s conduct, counsel’s performance falls

below an objective standard of reasonableness as a matter of law, regardless of

whether the record adequately reflects the trial counsel’s subjective reasons for

                                        6
acting as she did.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.

2005).

      The second prong of Strickland requires a showing that counsels’ errors

were so serious that they deprived appellant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

appellant must show there is a reasonable probability that, but for counsels’

unprofessional errors, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

      B.     Ineffectiveness Not Raised in Motion For New Trial

      Although Hall filed a motion for new trial, he did not raise ineffective

assistance in the motion. Consequently, any trial strategy that Hall’s attorneys

may have had for their challenged actions is not contained in the record. Hall

argues, however, that no reasonable trial strategy exists that could justify his trial

counsels’ conduct.       Accordingly, Hall argues that his failure to raise

ineffectiveness in his motion for new trial and to create a record at a motion for

new trial hearing concerning his trial counsels’ strategy is not fatal to his

appellate ineffectiveness claim. We will address each of Hall’s allegations of

ineffectiveness.



                                          7
      C.      Failure to Object to Extraneous Offense Evidence

      In his first ineffective assistance subissue, Hall argues that his attorneys

were ineffective because they failed to object to the complainant’s testimony

before the jury that Hall had said to her, “Sally [complainant’s basketball

teammate] is having sex with me. Why don’t you?” During a pretrial hearing, the

trial court heard Hall’s motion in limine concerning this statement. The State

objected to the granting of a motion in limine concerning this statement,

explaining, “[W]e would like a clarification . . . [u]nder extraneous offenses, we

would still want to be allowed, before approaching, to go into extraneous conduct

between the victim and defendant, 38.37 information.” The State explained that

it was not offering the statement for the truth of the matter asserted but to show

“the manipulative behavior of this defendant in attempting to persuade the victim

that it was okay to have sex with him, which goes right to the heart of 38.37.”

After allowing both the State and Hall to further summarize their respective

positions, the trial court ultimately ruled that “if [the statement is] being offered,

not for the truth of the matter asserted, but to show relationship of the parties and

the state of mind of the defendant, then I’ll deny your motion in limine as to that

statement.”

      The trial court determined that the statement fit into an exception to the

rule excluding extraneous offense evidence. See Tex. Code Crim. Proc. Ann.

art. 38.37, § 2 (Vernon Supp. 2010) (stating that notwithstanding rules 404 and

405, evidence of other crimes, wrongs, or acts committed by the defendant

                                          8
against the child who is the victim of the alleged offense shall be admitted for its

bearing on relevant matters, including the state of mind of the defendant and the

child). Because the failure to object to admissible evidence is not ineffective

assistance of counsel, see Muniz v. State, 851 S.W.2d 238, 258 (Tex. Crim.

App.), cert. denied, 510 U.S. 837 (1993), Hall’s trial counsel were not ineffective

for failing to object to this testimony by the complainant.

      D.     Second Strickland Prong Not Established Via Complainant’s
             Answer Implying Other Victims Existed

      In his second ineffective assistance subissue, Hall argues that his trial

counsel provided ineffective assistance when they elicited testimony from the

complainant regarding other victims.       Specifically, Hall complains about the

following testimony:


      Q. Why didn’t you tell your dad right then that this man was abusing
      you or had abused you?

      A. Because people just -- I mean, people that don’t know me, they
      can’t -- I keep everything bottled up inside me. I’m not someone
      who goes and tells things to -- people who know me, they know that.

            So someone who looks on me like that, they wonder why, but
      people that know me understand.

      Q. You didn’t think it was important enough to tell your father that a
      man that he was excited to see was, in fact, your abuser?

      A. Well, I thought it was just me.

      Q. You thought what was just you?

      A. I thought it was only happening to me, and I figured I could
      somehow get through it.

                                           9
           MS. DUNBAR [one               of    Hall’s   attorneys]:   Objection,
      nonresponsive, Your Honor.

             THE COURT: Overruled.

Hall argues that his trial counsel should have objected to the complainant’s

nonresponsive answer before asking, “You thought what was just you?” Hall

further contends that his trial counsel’s follow-up question compounded the

problem.

      Assuming, without deciding, that trial counsel’s questioning above fell

below reasonable professional standards in satisfaction of Strickland’s first

prong, the record before us does not satisfy Strickland’s second prong. That is,

the record does not reflect that this error––assuming it was error––was so

serious that it deprived Hall of a fair trial, i.e., a trial with a reliable result. 466

U.S. at 687, 104 S. Ct. at 2064.        The record reflects that the State did not

mention the possibility of other victims in cross-examination or in closing

arguments.      The complainant’s testimony about the acts that Hall had

perpetrated against her was detailed and graphic and more prejudicial than this

one-sentence insinuation that Hall had molested other girls. The State presented

overwhelming evidence of Hall’s guilt, aside from the complained-of testimony.

Thus, after examining the record as a whole, we have a fair assurance that this

one sentence of testimony by the complainant did not influence the jury or had

but a slight effect. See Prior v. State, 647 S.W.2d 956, 959–60 (Tex. Crim. App.

1983) (holding that evidence of guilt in indecency with a child case was


                                          10
overwhelming, even without the extraneous offenses; thus, the erroneous

admission of the extraneous offenses did not contribute to the finding of guilt or

to the punishment assessed and was therefore harmless); Thomas v. State, No.

01-07-00742-CR, 2008 WL 4757018, at *3 (Tex. App.––Houston [1st Dist.] Oct.

30, 2008, pet. ref’d) (holding any error in admitting extraneous offense testimony

from psychological therapist harmless because complainant’s testimony was

“more detailed and graphic” and State presented overwhelming evidence of guilt,

aside from complained-of evidence). Accordingly, any error by Hall’s counsel in

eliciting this one answer from the complainant does not meet the second

Strickland prong. See Maxie v. State, No. 01-04-00524-CR, 2005 WL 2850228,

at *7 (Tex. App.––Houston [1st Dist.] Oct. 27, 2005, pet. ref’d) (mem. op., not

designated for publication) (stating that although cross-examination that bolsters

rather than challenges the prosecution’s case can be ineffective assistance of

counsel, in this case, appellant failed to show that trial counsel was deficient

when record was silent concerning trial counsel’s motives for asking such

questions; appellate court stated that “this is not one of those rare cases in which

the record shows that no plausible strategy could have been employed”).

      E.    Bolstering Complainant’s Credibility

      In his third ineffective assistance subissue, Hall argues that his trial

counsel provided ineffective assistance by calling a witness that the State used

to bolster the complainant’s credibility and by failing to object when the State



                                        11
bolstered the complainant’s credibility through a rebuttal witness, Derrick.2 Hall’s

trial counsel called Jodi––the woman whom Hall lived with subsequent to staying

at the complainant’s house––to testify that she had never observed Hall viewing

pornography with the complainant and had never been present during any such

alleged viewing.     During Jodi’s cross-examination, the following exchange

occurred:

      Q. [THE STATE] Let me ask you this: Have you ever found [the
      complainant] to be anything but credible to you?

      A. No.

Hall also complains that Derrick’s testimony bolstered the complainant’s

credibility without objection from Hall’s counsel:

      Q. [THE STATE] So of all of those girls, [the complainant] would be
      the most truthful of all of those young ladies?

      A. Without a doubt.

             ....

      Q. [THE STATE] There’s no question as to her credibility?

      A. No, none whatsoever.

      Hall relies on Greene v. State, in which defense counsel elicited

inadmissible evidence, the appellant raised an ineffectiveness claim on appeal,

and the appellate court held that no coherent trial strategy was at work in

defense counsel’s conduct.      928 S.W.2d 119, 124 (Tex. App.––San Antonio


      2
        To protect the complainant’s privacy as much as possible, we use only the
first names of witnesses throughout the opinion.
                                         12
1996, no pet.). Here, however, unlike in Greene, in the two exchanges Hall

complains of, Hall’s trial counsel did not elicit the testimony he claims constitutes

bolstering; the prosecutor did. And although the court of criminal appeals has on

many occasions condemned any effort on the part of the State to bolster the

credibility of its witnesses by unsworn testimony, see Hill v. State, 659 S.W.2d

94, 96 (Tex. App.––Houston [14th Dist.] 1983, no pet.) (listing five court of

criminal appeals’ decisions), the testimony here was not unsworn. Nor was the

brief testimony about the complainant’s credibility given by an expert.            See

generally Sessums v. State, 129 S.W.3d 242, 248 (Tex. App.––Texarkana 2004,

pet. ref’d) (relying on rule of evidence 702––i.e., expert testimony that a particular

witness is truthful is inadmissible––and holding that trial counsel’s performance

was deficient because he failed to object to four experts’ testimony that child

victim was telling the truth). Additionally, Hall’s trial counsel did not delve into the

reasoning behind the witnesses’ beliefs that the complainant was telling the truth.

See generally Fuller v. State, 224 S.W.3d 823, 835–36 (Tex. App.––Texarkana

2007, no pet.) (holding that there was no trial strategy for trial counsel to allow

the State’s witnesses to testify to the credibility and truthfulness of the victim’s

allegations and then, on cross-examination, to explore the foundation for that

witness’s belief in the credibility, believability, or truthfulness of the victim’s

allegations).

      Finally, Hall’s trial counsel effectively challenged the complainant’s

credibility, especially during closing argument. Hall’s trial counsel argued,

                                          13
             So what they’re doing is they’re bolstering their witnesses.
      They’re bolstering [the complainant] by saying that she’s the most - -
      not only is she honest; she’s a good person; she tells the truth.
             But now, the last day, when they reopen their case, she’s the
      most honest person ever. That’s what they brought you.
             Do you think they might be overshooting their mark a little
      here . . . .
             Think about that when you go back there. Where is her mom?
      Where is the detective in this case? A criminal case with no
      detective.
             No law enforcement personnel at all came in here and said,
      “You know what? I looked at the evidence in this case. I evaluated
      this case. Then I filed this case. I talked with the complainant in this
      case. I decided to file the case.”
             No detective put up here by the State in a criminal case. [The
      complainant] said she mailed her statement in. That’s exactly what
      the State did. They mailed it in. The detective mailed it in.

            ....

             Now, you have to remember how old she is when she wrote
      that statement. This is 2007. This isn’t 1999. This is a person with
      a 3.6 GPA from the University of Southern Mississippi.
             But guess what? Four days - - two days before we start trial,
      that statement changes. She’s had two years to call the detective
      and change her statement. Never did it. But its’ changed after the
      District Attorney’s office interviews Jodi.
             And when Jodi[’s] story didn’t match up with [the
      complainant’s] story, [the complainant] changed her story. Now,
      what do y’all think about that?
             Eight years, never went to authorities. Two years, didn’t
      change her statement. Three weeks before this trial, the DAs
      interview Jodi []. Four days - - or two days before trial, the story
      changes.

      Thus, the record reflects that Hall’s counsels’ trial strategy very well could

have been to permit the State to predicate its entire case on the credibility of the

complainant, in fact to entice the State to overstate the complainant’s credibility–

–the State elicited testimony and pointed it out in closing argument, that the


                                        14
complainant was “[i]n the 200, girls, hundreds of girls I’ve coached, the most

truthful”––and to then undermine the complainant’s credibility. The record before

us simply does not support Hall’s contention that no reasonable trial strategy

could have existed for his counsels’ failure to object when the State twice elicited

testimony from witnesses bolstering the complainant’s credibility. Based on the

record before us, Hall has failed to overcome the “strong presumption” that his

trial counsel provided reasonably professional assistance. See Salinas, 163

S.W.3d at 740.

      F.      Failure to Request Reasonable Doubt Instruction and Failure to
              Request Appropriate Limiting Instruction

      In his fourth and fifth ineffective assistance subissues, Hall argues that his

trial counsel rendered ineffective assistance by failing to request a reasonable

doubt instruction as to any extraneous offense admitted and by failing to request

that the trial court contemporaneously instruct the jury on the limited purpose and

reason for admissibility of any extraneous offense evidence. Specifically, Hall

contends that his trial counsel failed to request a limiting instruction when the

complainant’s brother testified that Hall would take off his pants and underwear,

put his feet in the air, and kick and shake them.

      As pointed out by the State, the complained-of testimony concerned

background contextual evidence that was properly admissible pursuant to Texas

Code of Criminal Procedure article 38.37. See Tex. Code Crim. Proc. Ann. art.

38.37, § 2.    Moreover, Hall does not argue that his trial counsels’ failure to


                                        15
request a limiting instruction was so far below the range of professional norms

that no trial strategy could exist justifying the conduct. The record before us

contains no explanation for trial counsels’ decision not to object.       Absent an

explanation for trial counsels’ omissions, the failure to request a limiting

instruction does not compel a conclusion that trial counsels’ performance was

deficient. See Boyd v. State, 811 S.W.2d 105, 112 (Tex. Crim. App.) (overruling

appellant’s claims of ineffective assistance of counsel after concluding that

appellant was not deprived of effective assistance of counsel because he was

not prejudiced by trial counsel’s failure to request additional limiting instructions;

“there was no error attendant to the omission of additional instructions”), cert.

denied, 507 U.S. 971 (1991); Beheler v. State, 3 S.W.3d 182, 185–86 (Tex.

App.––Fort Worth 1999, pet. ref’d) (holding that because the record was devoid

of anything that reflected the defense counsel’s reasoning for failing to request a

limiting instruction on extraneous offenses, appellate court must defer to the

Strickland presumption that defense counsel’s decisions were a part of a sound

trial strategy).

       G.     Cumulative Effect of Counsels’ Deficient Performance

       In his sixth ineffective assistance subissue, Hall argues that the cumulative

effect of his trial counsels’ performance was prejudicial to the outcome of his

case. Because we have held above that the acts complained of by Hall do not

meet both prongs of Strickland and thus do not constitute ineffective assistance,



                                         16
the cumulative effect of Hall’s trial counsels’ performance was not prejudicial to

the outcome of his case.

      Having disposed of all of Hall’s ineffective assistance subissues, we

therefore overrule Hall’s second point.

                                 V. CONCLUSION

      Having overruled both of Hall’s points, we affirm the trial court’s judgment.




                                                   SUE WALKER
                                                   JUSTICE


PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)


DELIVERED: November 4, 2010




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