                             NUMBER 13-09-00006-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JAMES RANKIN ROBERTSON A/K/A
JAMES FRANKLIN ROBERTSON,                                                     Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                    On appeal from the 24th District Court
                          of Goliad County, Texas.


                          MEMORANDUM OPINION

             Before Justices Rodriguez, Garza, and Benavides
                 Memorandum Opinion by Justice Garza

       Appellant, James Rankin Robertson a/k/a James Franklin Robertson, appeals his

conviction for aggravated sexual assault, a first-degree felony. See TEX . PENAL CODE ANN .

§ 22.021(a)(1)(B)(ii), (a)(2)(A), (e) (Vernon Supp. 2009). By three issues, which can be

categorized as two, appellant contends that his conviction should be reversed because:

(1) his retained trial counsel was ineffective; and (2) the trial court erred in admitting a
taped recording of a conversation between appellant and the alleged victim in this case.

We affirm.

                                      I. BACKGROUND

       Appellant was charged by indictment on May 30, 2008, for one count of aggravated

sexual assault wherein it was alleged that appellant forced R.R., his thirteen-and-a-half

year old granddaughter, to engage in oral sex with him and threatened her with a knife

while telling her not to tell anyone about the incident. The case proceeded to trial, and the

jury returned a guilty verdict on the underlying charge. The jury sentenced appellant to

ninety-nine years’ incarceration in the Institutional Division of the Texas Department of

Criminal Justice. After appellant retained new counsel, this appeal ensued.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his first issue, appellant contends that he was denied effective assistance

because his trial counsel opened the door to damaging extraneous offense testimony.

Appellant further contends that he was denied effective assistance because of his trial

counsel’s allegedly “outrageous” courtroom behavior.

A.     Applicable Law

       To establish ineffective assistance of counsel, appellant must show:          (1) his

attorney’s representation fell below an objective standard of reasonableness; and (2) there

is a reasonable probability that, but for his attorney’s errors, the result of the proceeding

would have been different. See Strickland v. Washington, 466 U.S. 668, 684 (1984);

Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999) (holding that appellant must

show a reasonable probability that, but for counsel’s errors, the fact finder would have had

a reasonable doubt as to appellant’s guilt); Jaynes v. State, 216 S.W.3d 839, 851 (Tex.

App.–Corpus Christi 2006, no pet.). Whether this test has been met is to be judged on

                                             2
appeal by the totality of representation, not by any isolated acts or omissions. Jaynes, 216

S.W.3d at 851. Appellant has the burden to prove ineffective assistance of counsel by a

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

1999) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).

       Our review of counsel’s representation is highly deferential, and we will find

ineffective assistance only if the appellant overcomes the strong presumption that his

counsel’s conduct fell within the wide range of reasonable professional assistance. See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. The right to “reasonably effective

assistance of counsel” does not guarantee errorless counsel or counsel whose

competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.

Crim. App. 1983). Moreover, the acts or omissions that form the basis of appellant’s claim

of ineffective assistance must be supported by the record. Thompson, 9 S.W.3d at 814;

Jaynes, 216 S.W.3d at 851. A silent record which provides no explanation for counsel’s

actions usually will not overcome the strong presumption of reasonable assistance.

Thompson, 9 S.W.3d at 813-14.           To warrant reversal without affording counsel an

opportunity to explain his actions, “the challenged conduct must be ‘so outrageous that no

competent attorney would have engaged in it.’” Roberts v. State, 220 S.W.3d 521, 533

(Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005)).

B.     Extraneous Offense Evidence

       Appellant first complains about his trial counsel’s questioning of one of appellant’s

friends, Don Mitchell. Mitchell testified as to appellant’s demeanor and standing in the

community; however, he also testified to the following:

       Q: [Appellant’s trial counsel]      Ever known this man to be violent?

                                              3
          A: [Mitchell]                                Never have I known this man to be
                                                       violent.

          Q:                                           Anything in his character that has ever
                                                       indicated to you he’s capable of raping
                                                       a n yo n e , m u c h le ss h is o wn
                                                       granddaughter?

          A:                                           Absolutely not.

Appellant asserts that Mitchell’s testimony regarding appellant’s capability of raping others

opened the door for the State to introduce the rebuttal testimony of Leigh Ann Soderholtz,

appellant’s adult daughter.1

          Soderholtz testified that appellant sexually abused her “[m]any, many, many times”

while she lived with appellant and his wife. She stated that appellant sexually abused her

from when she was six or seven years old until she moved out of appellant’s house when

she was eighteen years old. She also testified that appellant’s sexual abuse of her was

frequent and involved fondling, oral sex, and an instance of sexual intercourse. Appellant’s

trial counsel did not cross-examine Soderholtz.

          While we recognize that Soderholtz’s testimony was damaging to appellant’s case,

trial counsel’s questioning of Mitchell was not the only instance in which the door was

opened for the State to submit extraneous offense evidence.2 Appellant himself testified

during the guilt-innocence phase and, in response to the State’s questioning, denied ever


          1
              Soderholtz later testified that appellant raised her for eighteen years, but he was not her biological
father.

          2
          Generally, “evidence of other crim es, wrongs, or acts is not adm issible to prove the character of a
person in order to show action in conform ity therewith”; however, such evidence “m ay . . . be adm issible for
other purposes, such as proof of m otive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of m istake or accident . . . .” T EX . R. E VID . 404(b); see Bass v. State, 270 S.W .3d 557, 563 (Tex. Crim . App.
2008) (“The issue [of perm itting the introduction of extraneous offense evidence] does not necessarily turn
on the type of defense presented, but on whether the extraneous offense evidence has noncharacter-
conform ity relevance by, for exam ple, rebutting a defensive theory or m aking less probable defensive
evidence that underm ines an elem ental fact.”).



                                                           4
having sex with Soderholtz or sexually contacting R.R., the victim in this case.3 See Bass

v. State, 270 S.W.3d 557, 563 (Tex. 2008) (citing Daggett v. State, 187 S.W.3d 444, 453-

54 (Tex. Crim. App. 2005) (holding, in a prosecution for sexual assault of a child under

seventeen, that defendant’s sweeping direct-examination testimony denying any sexual

misconduct with minors opened the door to admission of extraneous offense evidence of

defendant’s sexual misconduct with another minor to rebut this sweeping testimony)).

Therefore, appellant’s own testimony during the guilt-innocence phase belies his

contention that his trial counsel’s alleged wrongful questioning of Mitchell was the sole

cause for opening the door to the admission of Soderholtz’s rebuttal testimony.

Furthermore, because the record is silent as to trial counsel’s strategy, we cannot say that

trial counsel’s questioning of Mitchell regarding appellant’s capability to rape others, his

demeanor, and his standing in the community was not the result of a sound and

reasonable trial strategy. See Thompson, 9 S.W.3d at 813-14; Dewberry, 4 S.W.3d at 757

(“Failure to make the required showing of either deficient performance or sufficient

prejudice defeats the ineffectiveness claim.”); see also Moreno v. State, 1 S.W.3d 846, 865

(Tex. App.–Corpus Christi 1999, pet. ref’d) (noting that “we must presume that trial counsel

is better positioned than the appellate court to judge the pragmatism of the particular case,”

and that trial counsel “made all significant decisions in the exercise of reasonable

professional judgment”).

        Based on the foregoing, we conclude that appellant has not met his burden in

overcoming the strong presumption that trial counsel provided professional and objectively

reasonable assistance with respect to the questioning of Mitchell. See Thompson, 9
        3
             Appellant later adm itted, in an attem pt to secure a reduced punishm ent, that he com m itted
indecency with a child by intentionally fondling the breasts of R.R. on one occasion. See T EX . P EN AL C O DE
A N N . § 21.11(a)(1) (Vernon Supp. 2009).



                                                      5
S.W.3d at 813; Dewberry, 4 S.W.3d at 757; see also Strickland, 466 U.S. at 684; Jaynes,

216 S.W.3d at 851.

C.      Trial Counsel’s Behavior at Trial

        Appellant also complains about trial counsel’s conduct and performance during the

trial. Specifically, appellant contends that trial “counsel’s courtroom performance and

behavior was so deficient, no reasonable trial strategy could justify it, and his courtroom

conduct was so outrageous and serious, it undermined the proper functioning of the

adversarial process, deprived [a]ppellant of a fair trial, and prejudiced and harmed him.”

        In support of his contentions, appellant cites to portions of the record where trial

counsel made various sidebar comments, in an apparent effort to get the trial court to hold

him in contempt and throw him in jail in order to stop the trial. In addition, appellant argues

that trial counsel provided ineffective assistance because he: (1) claimed ignorance with

respect to the indictment that was being tried4; (2) accused the State, in open court, of lying

and “vindictive prosecution”; (3) complained to the trial court about the grand jury

proceedings5; (4) noted, in open court, that appellant was not applying for probation; (5)

conducted voir dire rapidly; (6) accused the State of fabricating evidence; (7) made sidebar

comments regarding the complaining witness; (8) improperly impeached a non-testifying

witness; (9) accused the State and police of impropriety in his closing argument; and (10)

criticized, in open court, many of the trial court’s evidentiary rulings. We disagree.

        Appellant has not directed us to portions of the record conclusively demonstrating

        4
         The record reveals that appellant had several other indictm ents pending pertaining to the alleged
sexual abuse of his children and grandchildren.

        5
           In particular, appellant com plains that trial counsel dem onstrated his ignorance of the law by arguing
to the trial court that the State had im properly brought charges against appellant to the grand jury without
presenting the testim ony of a fact witness.



                                                        6
that, but for trial counsel’s alleged ignorance regarding the grand jury proceedings, the

outcome would have been different. See Thompson, 9 S.W.3d at 814; Jaynes, 216

S.W.3d at 851; see also Strickland, 466 U.S. at 684; Dewberry, 4 S.W.3d at 757. With

respect to appellant’s remaining arguments regarding trial counsel’s alleged ignorance of

the law, it appears that trial counsel’s strategy may have been to obtain jury sympathy by

blaming the district attorney’s office for various alleged misdeeds. Furthermore, trial

counsel admitted, during one of his lengthy statements made in open court, that his

behavior was designed to encourage the trial court to continue the case or order a mistrial.6

While we do not condone the statements made by trial counsel, the record reflects that trial

counsel: (1) vigorously defended appellant from the underlying charge; (2) moved for

mistrial on several occasions; (3) actively participated in the trial; (4) adequately questioned

witnesses; and (5) made numerous objections to the questioning of witnesses. See

Jaynes, 216 S.W.3d at 851 (holding that we must review the totality of the representation

when analyzing an ineffective assistance claim). Therefore, we cannot say that appellant

has met his burden in overcoming the strong presumption that trial counsel provided

professional and objectively reasonable assistance. See Thompson, 9 S.W.3d at 813;

Saylor, 660 S.W.2d at 824; see also Fuller v. State, 224 S.W.3d 823, 828 (Tex.

App.–Texarkana 2007, no pet.) (“In the absence of counsel’s reasons for the challenged

conduct, we will assume a strategic motivation if any can be imagined.”) (citing Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)); Newsome v. State, 703 S.W.2d 750,

755 (Tex. App.–Houston [14th Dist.] 1985, no pet.) (holding that, if there is any basis for

          6
            W hen he received an unfavorable ruling from the trial court, trial counsel repeatedly inform ed the
trial court of his disagreem ent with the ruling and stated that he was not going to desist from com plaining and
m aking sidebar com m ents unless he was held in contem pt and thrown in jail. The trial court steadfastly
refused to send trial counsel to jail for contem pt.



                                                       7
trial strategy to have been a reason for counsel’s action, then further inquiry is improper).

Accordingly, we overrule appellant’s first issue.

                              III. ADMISSION OF THE TAPED RECORDING

        In his second issue, appellant argues that the trial court abused its discretion in

admitting a taped recording of a conversation between appellant and R.R. Specifically,

appellant contends that the recording should not have been admitted because it was

illegally obtained given that R.R. lacked the capacity to consent to the recording and the

record does not support the application of “vicarious-consent.”7 The State asserts that

R.R., a party to the conversation in question, consented to the recording and that R.R.’s

stepmother, by dropping R.R. off at the police station, vicariously consented to R.R.’s

interview by law enforcement and the recording of the conversation between R.R. and

appellant.

A.      Standard of Review and Applicable Law

        When reviewing a trial court’s ruling to admit or exclude evidence, we give great

deference to the trial court’s decision and will reverse only when the record shows that the

trial court abused its discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1990) (op. on reh’g). Further, we will uphold a trial court’s ruling if it was correct under

any theory of law applicable to the case. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim.

App. 2005). “Appellate courts will uphold a trial court’s ruling on the admissibility of

evidence ‘as long as the trial court’s ruling was at least within the zone of reasonable

disagreement . . . .’” Id. (quoting Montgomery, 810 S.W.2d at 391).
        7
          The court of crim inal appeals has held that a parent m ay give vicarious consent to record a child’s
telephone conversations if the parent has a good-faith basis for believing that the recording is in the best
interest of the child. See Alameda v. State, 235 S.W .3d 218, 223 (Tex. Crim . App. 2007) (citing Pollock v.
Pollock, 154 F.3d 601, 608-10 (6th Cir. 1998)).



                                                      8
       Article 38.23(a) of the code of criminal procedure states that “[n]o evidence obtained

by an officer . . . in violation of any provisions of the Constitution or laws of the State of

Texas, or of the Constitution or laws of the United States of America, shall be submitted

in evidence against the accused on the trial of any criminal case.” TEX . CODE CRIM . PROC .

ANN . art. 38.23(a) (Vernon 2005). Moreover, section 16.02(b) of the penal code provides

that a person commits an offense if he intentionally intercepts a wire, oral, or electronic

communication. See TEX . PENAL CODE ANN . § 16.02(b) (Vernon Supp. 2009).

B.     Discussion

       In arguing that the recorded conversation between appellant and R.R. was illegally

obtained and therefore inadmissible, appellant does not point to, nor are we aware of, any

authority that specifically holds that a minor cannot consent to the recording of his or her

own conversations.8 See TEX . R. APP . P. 38.1(i); see also TEX . PENAL CODE ANN . §

16.02(c)(4) (providing that it is an affirmative defense to prosecution if the individual

intercepting a wire, oral, or electronic communication is a party to the communication or

one of the parties to the communication has given prior consent to the interception).

Nevertheless, as non-constitutional error, we review the alleged erroneous admission of

evidence under rule 44.2 of the Texas Rules of Appellate Procedure and disregard the

error unless it affects appellant’s substantial rights. TEX . R. APP. P. 44.2; see TEX . R. EVID .

103(a); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). The admission of

inadmissible evidence becomes harmless error if other evidence proving the same fact is

properly admitted elsewhere or comes in elsewhere without objection. See Brooks v.


       8
           R.R. testified at trial that she consented to the recording of her conversation with appellant.



                                                       9
State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Sanchez v. State, 269 S.W.3d 169,

172 (Tex. App.–Amarillo 2008, pet ref’d). We conclude that error, if any, in admitting the

recording is harmless because the information contained on the recording is cumulative

of testimony from R.R. regarding the incident in question and appellant’s admission that

he had touched her inappropriately on the breast.9 See Lane v. State, 151 S.W.3d 188,

193 (Tex. Crim. App. 2004) (stating that “[a]n error [if any] in the admission of evidence is

cured where the same evidence comes in elsewhere without objection”). Accordingly, we

overrule appellant’s second issue.

                                               IV. CONCLUSION

        Having overruled all of appellant’s issues on appeal, we affirm the judgment of the

trial court.


                                                             ________________________
                                                             DORI CONTRERAS GARZA
                                                             Justice

Do Not Publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
11th day of February, 2010.




        9
          Though hotly contested at trial, R.R. testified that appellant: (1) adm itted to touching her and hurting
her in the recording; and (2) told her, during the taped conversation, that he believed that God had forgiven
him for his transgressions.



                                                       10
