Opinion issued August 6, 2020




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-19-00633-CR
                             ———————————
                CHRISTOPHER ANTHONY WHITE, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee


                     On Appeal from the 10th District Court
                           Galveston County, Texas
                        Trial Court Case No. 17CR2588


                           MEMORANDUM OPINION

      Christopher White was convicted of continuous sexual abuse of a young child

and sentenced to 65 years’ confinement. See TEX. PENAL CODE § 21.02. In two

issues, White contends that (1) the trial court erred in denying his request to instruct

the jury, in the punishment charge, that he was ineligible for parole; and (2) his trial
counsel’s failure to make certain objections during the guilt-innocence phase of trial

constituted ineffective assistance of counsel.

      We hold that (1) the trial court did not err in omitting White’s requested

instruction from the jury charge, as there was no constitutional or statutory basis for

its inclusion; and (2) White has failed to prove his trial counsel performed

deficiently, as the undeveloped record does not show why counsel failed to make the

objections.

      Therefore, we affirm.

                                    Background

      In this sexual abuse case, the issues presented on appeal require only a

minimal recitation of the background facts.

      In 2017, White’s daughter, Patricia,1 then 15 years old, made an outcry of

sexual abuse to White’s former fiancé, Vickie Cancel. Patricia told Cancel that

White had sexually abused her on two prior occasions, once when she was 11 and

once when she was 13. Cancel then reported Patricia’s outcry to Patricia’s mother,

who in turn reported the outcry to the police. An investigation ensued, resulting in

White’s indictment for continuous sexual abuse of a young child. See id. White

pleaded not guilty, and the case proceeded to trial. The jury found White guilty as



1
      To protect her privacy and for ease of reading, we refer to the complainant by a
      pseudonym.
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charged and assessed punishment at 65 years’ confinement. The trial court entered

a judgment of conviction in accordance with the jury’s verdict.

      White now appeals.

                                     Jury Charge

      In his first issue, White contends that the trial court erred in denying his

request to include an instruction in the punishment charge that he was ineligible for

parole.

A.    Applicable law and standard of review

      “The purpose of the trial court’s jury charge is to instruct the jurors on all of

the law applicable to the case.” Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim.

App. 2015); see also TEX. CODE CRIM. PROC. art. 36.14 (“[I]n each felony case . . .

tried in a court of record, the judge shall, before the argument begins, deliver to the

jury . . . a written charge distinctly setting forth the law applicable to the case[.]”).

However, “special, non-statutory instructions, even when they relate to statutory

offenses or defenses, generally have no place in the jury charge.” Walters v. State,

247 S.W.3d 204, 211 (Tex. Crim. App. 2007). This is especially true for instructions

about the law of parole, given longstanding precedent that “parole is not a proper

matter for jury consideration . . . .” Hankins v. State, 132 S.W.3d 380, 384 (Tex.

Crim. App. 2004). Thus, “[i]n the absence of specific constitutional or statutory

authority to do so, the court should not instruct the jury as to the effect of the parole


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laws or how long a defendant will be required to actually serve under a given

sentence.” Levy v. State, 860 S.W.2d 211, 213 (Tex. App.—Texarkana 1993, pet.

ref’d).

          In reviewing an alleged jury-charge error, we first determine whether error

actually exists. Cortez, 469 S.W.3d at 598. If it does, we then conduct a harm

analysis, with the standard of review dependent on whether the error was preserved

for appeal. Id.

B.        Analysis

          White argues that the trial court erred in denying his requested instruction

because due process entitled him to its inclusion, since the instruction would have

aided the jury in its determination of the appropriate punishment. In support of his

argument, he relies primarily on the plurality opinion issued in Simmons v. South

Carolina, 512 U.S. 154 (1994). In Simmons, the plurality held that, in a capital

murder case in which the defendant’s future dangerousness is at issue and the only

sentencing alternative to death is life imprisonment without the possibility of parole,

due process entitles the defendant to inform the jury of his future parole ineligibility.

See id. at 162. The plurality reasoned that the heightened reliability necessary in a

capital case is not achieved if there is a possibility that the jury, in deciding between

a death sentence and life imprisonment, may make inaccurate assumptions

concerning whether a life sentence in fact means that a convicted defendant would


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never be released. See id. at 163–66. But here, White was not charged with a capital

offense. Simmons is thus inapposite. Cf. Smith v. State, 898 S.W.2d 838, 847–48

(Tex. Crim. App. 1995) (differing instructions for capital and noncapital defendants

about application of parole law does not violate federal equal protection clause).

      White concedes that he was not entitled to his requested instruction under

Code of Criminal Procedure, article 37.07, which requires trial courts to instruct

juries in certain non-capital felony trials about the law of parole but does not apply

to trials for continuous sexual abuse of a child. See TEX. CODE CRIM. PROC. art.

37.07, § 4; Luquis v. State, 72 S.W.3d 355, 361–62 (Tex. Crim. App. 2002). And he

does not identify an alternative constitutional or statutory basis for instructing the

jury that he was ineligible for parole. We therefore hold that the trial court did not

err in refusing to include White’s requested instruction in the charge. See Cross v.

State, No. 09-11-00406-CR, 2012 WL 6643832, at *4–5 (Tex. App.—Beaumont

Dec. 19, 2012, pet. ref’d) (mem. op., not designated for publication) (holding no

charge error in continuous sexual abuse of young child conviction when trial court

refused to include instruction on defendant’s parole ineligibility).

      We overrule White’s first issue.




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                          Ineffective Assistance of Counsel

       In his second issue, White contends that trial counsel’s failure to make certain

objections during the guilt-innocence phase of trial constituted ineffective assistance

of trial.

A.     Applicable law and standard of review

       To prevail on a claim for ineffective assistance of counsel, a defendant must

satisfy the two-prong test set forth by the United States Supreme Court in Strickland

v. Washington, 466 U.S. 668 (1984). Macias v. State, 539 S.W.3d 410, 415 (Tex.

App.—Houston [1st Dist.] 2017, pet. ref’d). Under the first prong, “the defendant

must show that counsel’s performance was deficient.” Strickland, 466 U.S. at 687.

This requires the defendant to prove “that counsel’s performance fell below an

objective standard of reasonableness, considering the facts of the particular case and

judged at the time of counsel’s conduct.” Ex parte Gonzales, 204 S.W.3d 391, 393

(Tex. Crim. App. 2006). Under the second prong, “the defendant must show that the

deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. This

requires the defendant to prove “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

       In reviewing a claim for ineffective assistance of counsel, we are “highly

deferential” to trial counsel. Macias, 539 S.W.3d at 415–16. We indulge a “strong


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presumption” that trial counsel’s performance “fell within the wide range of

reasonable professional assistance.” Ex parte LaHood, 401 S.W.3d 45, 50 (Tex.

Crim. App. 2013). To prove that counsel’s performance was deficient, “the

defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” Blackwell v. State, 193

S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (quoting Strickland,

466 U.S. at 689). “Any allegation of ineffectiveness must be firmly founded in the

record,     which      must      demonstrate       affirmatively      the     alleged

ineffectiveness.” Blackwell, 193 S.W.3d at 21. And “trial counsel should ordinarily

be afforded an opportunity to explain his actions before being denounced as

ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Thus,

if the record does not contain affirmative evidence of counsel’s reasoning or

strategy,   we   normally     presume   that   counsel’s    performance     was   not

deficient. Blackwell, 193 S.W.3d at 21. “In rare cases, however, the record can be

sufficient to prove that counsel’s performance was deficient, despite the absence of

affirmative evidence of counsel’s reasoning or strategy.” Id.

B.    Analysis

      White contends that trial counsel rendered ineffective assistance by failing to

object to (1) prejudicial statements made by the prosecutor and (2) evidence of

extraneous crimes and bad acts. We consider each contention in turn.


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      1.     Failure to object to prejudicial statements

      We begin with White’s contention that trial counsel performed deficiently by

failing to object to prejudicial statements made by the prosecutor. The entirety of

this part of White’s ineffective-assistance claim consists of a single sentence in his

brief: “Appellant received ineffective assistance of counsel at the guilt-innocence

phase of trial . . . [b]y trial attorney not objecting to prosecutor’s prejudicial

statements that appellant had a ‘drug habit’ and was ‘on drugs’ despite nothing in

the record to support such statements.” White does not support his contention with

any argument, authority, or citations to the record.

      We hold that this part of White’s ineffective-assistance claim has been

inadequately briefed and presents nothing for us to review. See TEX. R. APP. P.

38.1(i) (appellant’s brief “must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record”);

Williams v. State, 937 S.W.2d 479, 487 (Tex. Crim. App. 1996) (in appeal from

conviction for capital murder, holding that defendant inadequately briefed whether

autopsy photographs were unfairly prejudicial when brief stated that photographs

caused jury to “rely upon emotion in rendering its verdict” but did not otherwise

“explain why [defendant] believe[d] the photographs were unfairly prejudicial”);

Wilson v. State, 473 S.W.3d 889, 900–01 (Tex. App.—Houston [1st Dist.] 2015, pet.

ref’d) (holding that defendant waived issue of whether trial court erred in admitting


                                          8
extraneous-offense evidence when defendant’s brief failed to identify “the harm that

he suffered as a result of the admission of the complained-of evidence”); see also

Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008) (reviewing court “has

no obligation to construct and compose appellant’s issues, facts, and arguments”

with citations to authorities and record).

      2.     Failure to object to evidence of extraneous crimes and bad acts

      We now turn to White’s contention that trial counsel performed deficiently by

failing to object to certain evidence of extraneous crimes and bad acts. White’s

contention is based on two lines of questioning by the prosecutor. In the first, the

prosecutor questioned Patricia about occasions on which White had hugged and

kissed her in a way that made her “feel uncomfortable.” In the second, the prosecutor

questioned Patricia about a fight she had witnessed between White and his ex-

girlfriend. White contends that Patricia’s answers to these questions were prejudicial

and irrelevant to any issue at trial and that trial counsel’s failure to object to the

prosecutor’s questioning constituted ineffective assistance.

      The record is not sufficiently developed for us to determine whether White’s

trial counsel’s performance fell below an objective standard of reasonableness.

White has failed to present evidence showing why trial counsel did not object to the

prosecutor’s questioning. Nor has White argued or otherwise demonstrated that this

is one of those “rare cases” in which “the record can be sufficient to prove that


                                             9
counsel’s performance was deficient, despite the absence of affirmative evidence of

counsel’s reasoning or strategy.” Blackwell, 193 S.W.2d at 21. We therefore

presume that trial counsel pursued a sound trial strategy, such as:

   • reasonably concluding the evidence was admissible and any objection to it
     would have been overruled, see, e.g., TEX. CODE CRIM. PROC. art. 38.37,
     § 1(b) (“[E]vidence of other crimes, wrongs, or acts committed by the
     defendant against the child who is the victim of the alleged offense [of
     continuous sexual abuse] shall be admitted for its bearing on relevant matters,
     including: (1) the state of mind of the defendant and the child; and (2) the
     previous and subsequent relationship between the defendant and the child.”);

   • reasonably deciding not to object in an effort to portray White as more honest
     and forthright, see Lemons v. State, 426 S.W.3d 267, 273 (Tex. App.—
     Texarkana 2013, pet. ref’d) (“[Counsel] may have also decided not to object
     in ‘an effort to build rapport with the jury and prevent the jury from
     concluding he was attempting to hide information from them.’” (quoting
     Haagensen v. State, 346 S.W.3d 758, 766 (Tex. App.—Texarkana 2011, no
     pet.))); Huerta v. State, 359 S.W.3d 887, 894 (Tex. App.—Houston [14th
     Dist.] 2012, no pet.) (“Counsel may have decided to permit the challenged
     testimony in an effort to make appellant appear more honest and forthright . .
     . .”); or

   • reasonably deciding not to object to avoid drawing unwanted attention to the
     issues, see Lemons, 426 S.W.3d at 273 (“[C]ounsel may have decided not to
     emphasize the evidence by raising an objection on the theory that once a bell
     has been rung, it cannot be unrung and that the more a jury hears of a matter,
     the more importance they may attach to it.”); Huerta, 359 S.W.3d at 894
     (“Counsel may have also decided to withhold objections to avoid drawing
     unwanted attention to a particular issue, or to prevent the impression that she
     was objecting at every opportunity as a means of stonewalling evidence.”).

      Because the record is silent as to why trial counsel did not make the

evidentiary objections, we hold that White has failed to rebut the “strong




                                         10
presumption” that counsel’s performance “fell within the wide range of reasonable

professional assistance.” LaHood, 401 S.W.3d at 50.

      We overrule White’s second issue.

                                   Conclusion

      We affirm.




                                                Gordon Goodman
                                                Justice

Panel consists of Justices Lloyd, Goodman, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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