                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-13-00533-CR
                             NO. 09-13-00534-CR
                          ____________________

                   JOHN ROBERT MANNING, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________          ______________

                   On Appeal from the 435th District Court
                         Montgomery County, Texas
               Trial Cause No. 13-09-09713 CR (Counts 1 and 2)
________________________________________________________          _____________

                         MEMORANDUM OPINION

      John Robert Manning appeals from a jury trial that resulted in his

convictions for aggravated sexual assault of a child and indecency with a child by

contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011), § 22.021(a)(1)(B)

(West Supp. 2015). In three issues, Manning claims (1) the trial court abused its

discretion by admitting evidence about a sexual assault involving another child

who was not the victim of the crimes for which he was indicted; (2) the evidence


                                        1
failed to prove that the offenses made the subject of his indictment occurred in

2008; and (3) he received ineffective assistance of counsel during a hearing

conducted outside the presence of the jury when his attorney decided not to

question April,1 the child who was the alleged victim of an extraneous offense. We

hold that Manning’s issues are without merit, and we affirm the trial court’s

judgment.

                        Admission of Extraneous Offense

      In issue one, Manning contends that the trial court abused its discretion by

admitting evidence about an incident that allegedly occurred in July 2011

involving a child named April. The testimony about the incident indicates that

April told her mother that Manning had exposed himself while she was alone with

Manning in the bedroom of a relative’s home. According to April’s mother, she

questioned Manning about the incident, and he told her that April was possibly

attempting to relate what she might have seen in a video depicting an encounter

that occurred between two adults on his phone.




      1
         To protect the privacy of the children relevant to Manning’s case, we
identify them by using the aliases “April” and “Jill” to conceal their actual names.
See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the
criminal justice process”).
                                         2
      Before April’s mother testified, the trial court conducted a hearing to

evaluate whether the evidence about the incident involving April should be

admitted before the jury. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West

Supp. 2015). During the hearing on the extraneous offense, the trial court

considered the testimony of April’s mother, a Child Protective Services

investigator, a child sexual abuse case investigator, and a detective who

interviewed Manning about the incident.

      At the conclusion of the hearing, the trial court found the evidence

introduced during the hearing would be sufficient to support a jury finding that

Manning had exposed himself to April. After the trial court informed the parties of

its ruling, Manning stated that he still objected to the testimony about the incident

with April being admitted, and he complained that the trial court had not weighed

whether the evidence about the incident involving April was unduly prejudicial.

See Tex. R. Evid. 403. The trial court responded, “Well, doing the weighing, I’ll

determine -- doing the appropriate weighing, I determined it’s admissible.”

       “Once a Rule 403 objection as to prejudice versus probative value is

invoked, the trial judge has no discretion as to whether or not to engage in the

balancing test required by that rule.” Williams v. State, 958 S.W.2d 186, 195 (Tex.

Crim. App. 1997). “However, a trial judge is not required to sua sponte place any

                                          3
findings he makes or conclusions he draws when engaging in this test into the

record[.]” Id. “Rather, a judge is presumed to engage in the required balancing test

once Rule 403 is invoked[.]” Id. We conclude that the trial court did perform the

required balancing test, and that after doing so, the trial court determined that the

evidence about the incident involving April was admissible.

      In his brief, Manning argues that the extraneous offense evidence was

unduly prejudicial because the purpose of the evidence was to show that when

committing the offenses alleged in the indictment, he was acting in conformity

with his character as a person known to abuse children. See Tex. R. Evid.

404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in

accordance with the character.”). However, in Manning’s case, the State used the

testimony about the incident involving April to explain the circumstances under

which the police learned that Manning committed the offense against Jill. The

testimony before the jury indicates that the incident involving April led to a

forensic interview of Jill, and Jill’s interview revealed that Manning had been

sexually abusing Jill for years before the incident involving April occurred.

      In a prosecution for sexual abuse of a child, the character of the defendant is

relevant, and the tendency that such evidence may have to show that a defendant is

                                          4
the type of person who abuses children does not make the testimony inadmissible.

See Tex. Code Crim. Proc. Ann. art. 38.37, § 2. In cases involving the sexual abuse

of a child, this type of evidence is admissible because article 38.37, section 2

creates an exception to the Rules of Evidence that otherwise makes character

evidence inadmissible. Compare Tex. R. Evid. 404(b) with Tex. Code Crim. Proc.

Ann. art. 38.37, § 2.

      In our view, the evidence about the incident involving April had probative

value in the context of a trial involving the sexual offenses committed by Manning

against Jill. See Tex. R. Evid. 403. As used in Rule 403, “[t]he term ‘probative

value’ refers to the inherent probative force of an item of evidence—that is, how

strongly it serves to make more or less probable the existence of a fact of

consequence to the litigation—coupled with the proponent’s need for that item of

evidence.” Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “‘Unfair

prejudice’ refers to a tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.” Id.

      In Manning’s case, the trial court determined that the danger of unfair

prejudice did not substantially outweigh the probative value of the evidence of the

incident involving April. See Tex. R. Evid. 403. “[A] ruling on the balance

between probative value and the counter factors set out in Rule 403, . . . is always

                                         5
slanted toward admission, not exclusion, of otherwise relevant evidence.” De La

Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “As long as the trial

court’s ruling is within the ‘zone of reasonable disagreement,’ there is no abuse of

discretion, and the trial court’s ruling will be upheld.” Id. at 343-44. We hold the

trial court did not abuse its discretion by allowing the testimony addressing

Manning’s exposure of himself to April. See id. Issue one is overruled.

                             Legal Sufficiency Challenge

      In issue two, Manning argues that although the indictment charged him with

committing crimes on or about September 1 and October 1, 2008, the evidence

failed to show that he committed either offense in 2008. We disagree that the

evidence is insufficient to show that Manning was guilty of committing the crimes

charged in the indictment.

      The indictment includes a date for the offense to show that the prosecution is

not barred by limitations. Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App.

1998). When an indictment alleges that a crime occurred “on or about” a certain

date, the State may prove an offense “with a date other than the one specifically

alleged so long as the date is anterior to the presentment of the indictment and

within the statutory limitation period and the offense relied upon otherwise meets

the description of the offense contained in the indictment.” Yzaguirre v. State, 957

                                         6
S.W.2d 38, 39 (Tex. Crim. App. 1997) (citing Sledge v. State, 953 S.W.2d 253,

256–57 (Tex. Crim. App. 1997)). No variance exists between the indictment that

alleges a date couched in terms of “on or about” when the evidence from the trial

shows that the offense occurred on a date before the indictment was presented and

before the statute of limitations expired. See Thomas v. State, 444 S.W.3d 4, 10

(Tex. Crim. App. 2014).

      In this case, the indictment alleged that Manning committed aggravated

assault on or about September 1, 2008, and that he committed indecency with a

child on or about October 1, 2008. In the charge, the trial court instructed the jury

that, “[t]he phrase ‘on or about’ in this case means any time after September 1,

2007, and prior to the presentment of the indictment.” 2 The trial court included this

instruction in the charge on guilt or innocence because Manning was arguably

eligible for community supervision had the jury concluded he committed the

offenses with which he was charged before September 1, 2007. See Act of May 18,

2007, 80th Leg., R.S., ch. 593, §§ 1.05-1.07, 2007 Tex. Gen. Laws 1120, 1122-24

(codified at Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d)(5) (West Supp. 2015)).

Also, the charge instructed the jury that for the aggravated sexual assault the State

elected to rely on evidence of “the incident alleged to have occurred during the end
      2
       The record shows that the indictment was presented to the grand jury on
September 12, 2013.
                                          7
of the time that the defendant was living with [Jill] when she was playing with

toys,” and the charge instructed the jury to consider only the evidence of that

alleged incident in determining Manning’s guilt on the charge of aggravated

assault. On the indecency offense, the charge instructed the jury that the State

elected to rely on evidence of “the incident alleged to have occurred when [Jill]

demonstrated with her hands on the defendant’s genitals,” and it required the jury

to consider only the evidence of that alleged incident in determining Manning’s

guilt with respect to the count alleging indecency.

      In evaluating whether the evidence before the jury showed that Manning

committed the offenses prior to the presentment of his indictment, we evaluate the

evidence before the jury based on a hypothetically correct jury charge. See Malik v.

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Given that Jill was a minor

when the offenses were alleged to have occurred, limitations does not apply to the

offenses. See Yzaguirre, 957 S.W.2d at 39; Sledge, 953 S.W.2d at 256. Manning

does not argue that the evidence was insufficient to prove he committed the

offenses against Jill at a date anterior to the presentment of the indictment; instead,

Manning presents a narrow argument, claiming the evidence is insufficient to

prove that he committed the offenses in 2008.




                                          8
      Even though Manning does not present an argument that is premised on

reviewing the case through the lens of a hypothetically correct charge, the evidence

before the jury, when viewed in the light most favorable to the verdict, allowed the

jury to conclude that Manning committed the crimes against Jill between

September 1, 2007, and September 12, 2013, the period identified in the charge.

Manning relies on Jill’s testimony regarding when the offenses occurred to support

his argument that the evidence is insufficient to show the offenses occurred in

2008. On cross-examination, Manning’s attorney asked Jill if she remembered

when she was interviewed by Kari Prihoda, the person who conducted Jill’s

forensic interview on August 24, 2011. Jill could not recall the date the interview

occurred, but agreed when counsel asked if she thought it was two years ago.

According to Jill, she told Prihoda during the interview that her last sexual contact

with Manning occurred four years earlier. Counsel asked, “So if you were there in

2011, that would mean that four years before that was 2007. Right?” Jill replied,

“Yeah.”

      However, the evidence before the jury regarding the date the offenses were

committed is not limited to the testimony provided by Jill. Prihoda also testified

during Manning’s trial. Prihoda discussed what she learned during her interview of

Jill, who was eleven years old when the interview occurred. According to Prihoda,

                                         9
Jill told her about various sexual assaults that Manning committed against her

when she was six to eight years old. According to Prihoda, Jill indicated that

Manning abused her until she was eight years old, and the assaults ended when

Manning moved from her home. Testimony from Manning and from Jill’s mother

established that Manning left the home in April 2008.

      When viewed in the light most favorable to the verdict, the record contains

evidence of abuse that occurred in 2008. Moreover, the evidence admitted at trial

was also sufficient to prove that Manning committed the offenses prior to the

presentment of the indictment, so it is sufficient to support his convictions. We

overrule issue two.

                        Ineffective Assistance of Counsel

      In issue three, Manning contends he received ineffective assistance of

counsel. The conduct Manning identifies as ineffective concerns the choice

Manning’s attorney made during the hearing where the trial court considered if

testimony about the incident involving April would be admitted before the jury.

      To show that trial counsel was ineffective, Manning must demonstrate that

trial counsel’s performance was deficient because it fell below an objective

standard of reasonableness, and he must show that but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Strickland v.

                                        10
Washington, 466 U.S. 668, 687 (1984). On appeal, we “analyze the

reasonableness of counsel’s conduct on the facts of the particular case, viewed at

the time of the conduct.” Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App.

2013). Once an appellant has identified counsel’s acts or omissions that he

contends were ineffective, the reviewing court must “determine whether, in light of

all the circumstances, the acts or omissions were outside the wide range of

professionally competent assistance.” Id. When the record does not indicate that

counsel had an opportunity to explain the conduct that is being challenged on

appeal, we assume the explanation for the conduct relates to a matter of trial

strategy unless the conduct was so outrageous that no competent attorney would

have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

      In Manning’s case, we do not have the benefit of an evidentiary hearing

where trial counsel received an opportunity to explain why he chose not to call

April as a witness during the hearing the trial court conducted to determine

whether testimony about the incident involving April would be allowed to be

introduced to the jury. However, the record of the hearing indicates that Manning’s

counsel chose not to call April as a matter of trial strategy. During the hearing, trial

counsel stated that he was not going to call the child as a witness, adding, “I don’t

believe that’s my burden, to get into admissible evidence.” This statement suggests

                                          11
that Manning’s attorney decided not to call April because he was concerned that

her testimony would be unfavorable to his effort to obtain a ruling to prevent the

testimony about the incident with April to be introduced to the jury.

      In deciding whether to call April as a witness, Manning’s attorney was

entitled to consider that April’s answers might damage Manning’s chances to

obtain a favorable ruling. We hold that Manning failed to overcome the strong

presumption that he received reasonable professional assistance. See Thompson v.

State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). We overrule issue three, and

we affirm the trial court’s judgments.

      AFFIRMED.


                                                    _________________________
                                                        HOLLIS HORTON
                                                             Justice

Submitted on November 30, 2015
Opinion Delivered December 9, 2015
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




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