                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH


                                   NO. 2-06-271-CR


ARTHUR LEE PIERSON, JR.                                           APPELLANT

                                            V.

THE STATE OF TEXAS                                                      STATE

                                        ------------

           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                           MEMORANDUM OPINION 1

                                        ------------

      Appellant Arthur Lee Pierson, Jr. appeals his convictions and sentences

for four counts of aggravated sexual assault of a child under fourteen years of

age. We affirm.

      In 2004, appellant’s former step-daughter B.H. alleged that appellant

sexually assaulted her on three different occasions in October 1999, when she



      1
          See T EX. R. A PP. P. 47.4.
was thirteen years old. Each of the three incidents followed a similar pattern:

appellant woke B.H. from her sleep; had sexual intercourse with her and, on

one occasion, oral sex; and then made B.H. go to the bathroom and give him

her underwear.      Appellant threatened B.H. that he would kill her and other

family members if she told anyone. Following a five-day trial, a jury convicted

appellant of four counts of aggravated sexual assault of a child under fourteen

years of age and sentenced him to four ninety-nine year terms of incarceration.2

      In his first point, appellant argues that the trial court improperly admitted

B.H.’s 2004 statements to sexual assault nurse Donna Duclow over his rule

803(4) objection.3

      Texas Rule of Evidence 803(4) contains a hearsay exception for

statements made for medical diagnosis or treatment.4            Appellant claims

Duclow’s testimony does not fit under this exception. Where substantially the

sam e evidence complained of on appeal is received without objection from a



      2
          The trial court ordered the sentences to run concurrently.
      3
      In the trial court, appellant objected to this testimony based on rules of
evidence 403 and 803(4) and, to some of the testimony, as bolstering. On
appeal, however, appellant’s point of error is limited to rule 803(4). Appellant
argues in passing that “[t]he only purpose . . . was to bolster the testimony of
the complainant,” but he does not cite relevant case law to support a bolstering
argument. Thus, we do not address this ground. See T EX. R. A PP. P. 38.1(h).
      4
      T EX. R. E VID . 803(4).

                                         2
different source, however, an appellant forfeits his complaint regarding

admission of the objectionable testimony.5

       Duclow interviewed B.H. on September 3, 2004 at John Peter Smith

Hospital (“JPS”).   As was her practice, she wrote B.H.’s history “word for

word.” Over appellant’s hearsay objection, Duclow testified that B.H. stated

the following:

   •   The “first event” occurred on October 22, 1999 between 2 and 3 a.m.
       Appellant entered B.H.’s room, woke her, picked her up, placed her on
       the floor, and had sexual intercourse with her. He threatened to kill
       her, her sister, or grandmother if she told anyone. He said he would
       “pop [her] cherry.” Afterwards, appellant told B.H. to get her
       underwear and go into the bathroom, and he asked whether she was
       bleeding.

   •   On October 12, 1999 appellant again woke B.H. from her sleep in the
       middle of the night, got her out of her bed, and laid her down on her
       floor. Appellant performed oral sex on her and then had sexual
       intercourse with her. He told her not to tell because her mom and




       5
        Beheler v. State, 3 S.W.3d 182, 187 (Tex. App.—Fort Worth 1999, pet.
ref’d) (holding that appellant failed to preserve error regarding complainant’s
statements to sexual assault nurse where complainant testified, without
objection, to substantially same facts as nurse related); see also Reyes v. State,
84 S.W.3d 633, 638 (Tex. Crim. App. 2002) (holding that a defendant who
allows evidence to be introduced from one source without objection forfeits any
subsequent complaints about the introduction of the same evidence from
another source); Massey v. State, 933 S.W .2d 141, 149 (Tex. Crim. App.
1996) (same); Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991)
(holding that the admission of one witness’s testimony without objection
rendered the improper admission of another witness’s testimony harmless
because the witnesses’ testimony established substantially the same evidence).

                                        3
       sister would be mad because appellant paid the bills. He directed her
       to go to the bathroom and took her underwear.

   •   Just before Halloween 1999, appellant again came and got B.H. from
       her bed, pushed her toward the living room, and laid her down there.
       He had sexual intercourse with her, first with appellant on top and
       then with B.H. in that position. A woman called “Auntie” was
       sleeping on the couch in the living room. Afterwards, B.H. went to
       the bathroom, and appellant took her underwear.

Duclow did not perform a physical examination because “after a five-year period

any trauma or injury directly related to the assault [would be] healed, gone, or

not visible.”

       The following day, B.H. testified to the following:

   •   On October 2, 1999, appellant came into her room around 2 or 3
       a.m., woke her up, took her off her bed, and put her on the floor.
       Appellant kissed her on her neck and breast, said he would “pop her
       cherry,” and asked her if she wanted to be his girlfriend. He then had
       sexual intercourse with her, threatening that if she told anyone, there
       would be no one to take care of the family. After it ended, he pushed
       her towards the restroom, told her to give him her underwear, and
       asked if she was bleeding.

   •   On October 12, 1999, around 3 a.m., appellant woke B.H. up, picked
       her up off her bed, and put her on the floor. He performed oral sex on
       her and then had sexual intercourse with her. He threatened to kill
       her, her sister, and her grandmother if she told anyone. He then told
       her to go to the bathroom and took her underwear.

   •   At the end of October 1999, before Halloween, around 1 or 2 a.m.,
       appellant woke her up and pushed her into the living room where a
       woman she called “Auntie” was asleep on the couch. There appellant
       had sexual intercourse with B.H.; at first appellant was on top and
       then he moved B.H. to that position. Afterwards, appellant had her go
       to the bathroom and give him her underwear.

                                        4
Appellant did not object to any of this testimony.

      After B.H. described the three occurrences, she explained that she did not

immediately contact the police because of appellant’s threats.6 In 2004, after

graduating from high school, she approached a probation officer who directed

her to CPS and the police, and she eventually spoke to sexual assault nurse

Duclow. After the prosecutor asked, “And obviously you told [Duclow at JPS]

what happened, right?” appellant attempted to “renew” the hearsay objection

he made the day before to Duclow’s testimony.

      The record indicates that appellant’s objection referred to the State’s last

question, “And obviously you told [Duclow at JPS] what happened, right?,” and

if the objection was intended to relate back to B.H.’s descriptions of the sexual

assaults, it was untimely for that purpose and did not preserve error as to that

testimony.7   Thus, appellant did not make a proper objection to B.H.’s

testimony describing the sexual assaults.




      6
       At some point before telling the police, however, B.H. testified that she
had told her mother, her biological father, and three friends.
      7
     See T EX. R. A PP. P. 33.1(a)(1); Lagrone v. State, 942 S.W.2d 602,
617–18 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997).

                                        5
      Duclow and B.H.’s testimony was very similar. Both described sexual

assaults appellant perpetrated on B.H. on three nights in October 1999.8

Details such as appellant’s words, the specific sexual actions he performed (and

the order thereof), the locations of the assaults, the presence of Auntie, and

appellant’s conduct and demands following each assault were practically

identical.

      Because appellant did not object to the relevant portions of B.H.’s

testimony, and it is substantially the same as what he now complains about on

appeal (Duclow’s testimony), he forfeited the error, if any, regarding Duclow’s

testimony. 9 We overrule appellant’s first point.

      In his second point, appellant contends that he was denied effective

assistance of counsel under the United States and Texas Constitutions because

his trial counsel opened the door on cross-examination of Detective Mark Pitt



      8
       There is an inconsistency as to the date of the first assault; Duclow said
B.H. told her that it occurred October 22, whereas B.H. testified that it
occurred October 2. However, Duclow also stated that she believed the
incident B.H. described first was the first assault, and then went on to describe
a second event on October 12 and a third event at the end of October before
Halloween. Further, the details of the two descriptions of the “first event”
match very closely. We conclude that, despite the difference in dates,
Duclow’s testimony regarding the first event was substantially the same as
B.H.’s.
      9
     See Beheler, 3 S.W.3d at 187–88; see also Reyes, 84 S.W.3d at 638;
Massey, 933 S.W.2d at 149; Mayes, 816 S.W.2d at 88.

                                       6
to allow the State to show the jury that appellant was in custody in another

county.

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

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

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

been different.10 The test for ineffective assistance of trial counsel is the same

under the federal and state constitutions. 11

      A reviewing court, however, will rarely be in a position on direct appeal

to fairly evaluate the merits of an ineffective assistance claim.12 In the majority

of cases, the record on direct appeal is undeveloped and cannot adequately

reflect the motives behind trial counsel’s actions.13           To overcome the

presumption      of   reasonable   professional   assistance,   any   allegation   of

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


      10
        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).
      11
      Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Hernandez v. State,
726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986).
      12
           Thompson, 9 S.W.3d at 813–14.
      13
           Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).

                                          7
affirmatively demonstrate the alleged ineffectiveness.14 It is not appropriate for

an appellate court simply to infer ineffective assistance based upon unclear

portions of the record.15

      During cross-examination of Detective Pitt, appellant’s attorney suggested

that the detective did not conduct an impartial, “full and complete”

investigation of B.H.’s allegations before writing an arrest warrant for appellant.

To that end, appellant’s attorney elicited the fact that Detective Pitt did not

speak with the responding officers but only read their report, suggested that the

detective’s training was not as extensive as it could have been, insinuated that

child advocates are predisposed to believe a child is telling the truth, and

questioned the detective’s failure to speak to appellant to get his side of the

story. To the last allegation, Detective Pitt responded, “There were reasons.”

      Outside the presence of the jury, the State argued that defense counsel

opened the door as to why the detective did not interview appellant. The trial

court agreed.      With the trial court’s permission, therefore, Detective Pitt

testified on redirect that he did not interview appellant because he learned that




      14
           Id. (quoting Thompson, 9 S.W.3d at 813).
      15
           Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

                                        8
appellant was “in custody in another county,” and it was not unusual not to

travel outside the county to attempt to speak with a suspect.

      Appellant acknowledges that the record on direct appeal is usually silent

on the question of trial strategy. He argues, however, that the record in this

case reflects trial counsel’s mistaken belief that appellant was in the Tarrant

County Jail at the time of the investigation and that this is an error for which

no explanation of trial strategy is needed because appellant’s trial counsel had

clearly not conducted a thorough investigation.

      To prevail on his ineffective assistance point, appellant must prove by a

preponderance of the evidence that there is “no plausible professional reason

for a specific act or omission.” 16 Indeed, the record shows that trial counsel

appeared to believe appellant was in the Tarrant County Jail at the time of the

investigation.17 The record does not reveal, however, the reason or reasons for

trial counsel’s belief; thus, it is unclear whether this mistake (if it was, in fact,

a mistake) resulted from incorrect information after an investigation, a




      16
           See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).
      17
        Trial counsel inquired of Detective Pitt, for example, “When you located
[appellant] and you knew . . . [appellant] was here in Tarrant County, Texas,
obviously the next thing you did was go speak to him, correct?” He also later
stated to the trial court, “He was in Tarrant County jail. The officer could have
interviewed him if he wanted to.”

                                         9
miscommunication, an inadequate investigation, or some other cause. From

this record, we would have to speculate to conclude that there were no

legitimate and professionally sound reasons for counsel’s conduct.18

      Trial counsel should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective even where the incident

reasonably raises questions as to certain trial preparation and strategy

decisions.19 In the absence of evidence of counsel’s reasoning, the record is

insufficient to overcome the presumption that trial counsel’s conduct falls

within the wide range of professional, competent assistance. 2 0 W e overrule

appellant’s second point.

      In his third and fourth points, appellant argues that the State improperly

commented on appellant’s failure to testify and the trial court erroneously

denied his motion for mistrial.

      When, as here, the trial court sustains an objection and instructs the jury

to disregard but denies a defendant’s motion for a mistrial, the issue is whether



      18
           See Bone, 77 S.W.3d at 836.
      19
       See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App.
2003); Bone, 77 S.W.3d at 836.
      20
       See Freeman v. State, 125 S.W.3d 505, 506–07 (Tex. Crim. App.
2003); Rylander, 101 S.W.3d at 110–11; Bone, 77 S.W .3d at 836–37;
Thompson, 9 S.W.3d at 814.

                                       10
the trial court abused its discretion in denying the mistrial.21 In determining

whether the trial court abused its discretion in denying the mistrial, we balance

three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative

measures, and (3) the certainty of conviction absent the misconduct. 22 Only

in extreme circumstances, when the prejudice is incurable or the comment is

“so prejudicial that expenditure of further time and expense would be wasteful

and futile,” will a mistrial be required.23

      During closing argument, the prosecutor stated, “There is no evidence to

controvert her statement.     Her—[B.H.], what she told you is uncontroverted.

Evelynn, confused.” 24 The trial court sustained appellant’s objection that the

remark commented on appellant’s failure to testify and instructed the jury to

disregard it. The prosecutor then attempted to explain his comment. He said,



      21
           Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
      22
       Id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op.
on reh’g), cert. denied, 526 U.S. 1070 (1999).
      23
       Hawkins, 135 S.W.3d at 77; see also Simpson v. State, 119 S.W.3d
262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).
      24
        Evelynn, appellant’s biological daughter, testified that she lived with
appellant and slept in the same room as B.H. during October 1999, before
moving away in December 1999. Evelynn’s aunt also testified that Evelynn
lived in appellant’s house in October 1999. A Fort Worth ISD records
custodian, however, had records for Evelynn for the 1998–99 school year, but
not for the 1999–2000 school year.

                                         11
      What I mean is that in cross-examination . . . there was nothing to
      controvert [B.H.]’s story. What—what defense counsel has you
      believe is Larry Valone . . . our investigator, I couldn’t bring you
      that because it was hearsay. It was not admissible. He had every
      chance to call Larry himself and ask him those questions. 25

      When assessing the prejudicial effect of a statement, it is important to

view it in context. 26 The argument at issue could have referred to appellant’s

failure to call the State’s investigator as a witness, and the State may properly

comment on an accused’s failure to produce testimony from sources other than

himself.27 Thus, the comment at issue was arguably proper and constituted at

worst an indirect comment on the defendant’s failure to testify.28 Further, the

allegedly improper argument only occurred at one point, in rebuttal, and the

objectionable line of reasoning was not pursued or emphasized.



      25
        Evelynn testified that Valone, the State’s investigator, telephoned her,
but the trial court sustained the State’s hearsay objections as to details of the
conversation.
      26
        See Hawkins, 135 S.W.3d at 78–80; Kosick v. State, No. 02-06-
00056-CR, 2007 WL 2460351, at *13 (Tex. App.—Fort Worth Aug. 31, 2007,
no pet.) (mem. op. on reh’g, not designated for publication).
      27
        Wolfe v. State, 917 S.W.2d 270, 279 (Tex. Crim. App. 1996) (“A
prosecutor cannot comment on the lack of evidence presented where that
comment necessarily refers to the defendant’s failure to testify, but language
that can reasonably be construed as a failure to present evidence other than the
defendant’s testimony is not a comment on the failure to testify.”); Harris v.
State, 122 S.W.3d 871, 884 (Tex. App.—Fort Worth 2003, pet. ref’d).
      28
           See Wolfe, 917 S.W.2d at 279.

                                       12
      Secondly, the trial court and the prosecutor both attempted to cure any

prejudice from the comment. After sustaining the objection, the trial court

instructed the jury to “disregard that last statement by [the prosecutor].”

Generally, a prompt instruction to disregard will cure any prejudice associated

with an improper argument. 29 Further, the prosecutor explained his argument

to the jury, indicating that he meant to say that appellant could have brought

the State’s investigator to testify. A prosecutor’s curative comment is relevant

in determining harm and can, in appropriate circumstances, render an improper

comment harmless.30

      Finally, absent the prosecutor’s comment, the State still had a solid case.

The main issue at trial was whether B.H.’s claims, made five years after the

sexual assaults occurred, were credible, and appellant emphasized the delay in

her outcry. Although the State’s case rested mainly on B.H.’s testimony, there

was some corroboration: one of B.H.’s friends noticed a dramatic change in her

behavior and acts of self-mutilation around the time of the alleged assaults.



      29
      Hawkins, 135 S.W .3d at 84; Longoria v. State, 154 S.W.3d 747,
763–64 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).
      30
        Hawkins, 135 S.W.3d at 84 (characterizing a prosecutor’s apology and
retraction after improper argument as curative measures); Canales v. State, 98
S.W.3d 690, 696–97 (Tex. Crim. App.) (holding that any error was harmless
where prosecutor corrected any misstatements of the law immediately
following objectionable comments), cert. denied, 540 U.S. 1051 (2003).

                                      13
The jury, who is the sole judge of the credibility of the witnesses, 31 evidently

believed B.H.

      In summary, nothing in the record suggests that this is an “extreme

circumstance” where the prejudice from the allegedly improper argument was

incurable.32     Accordingly, we hold that the instruction to disregard and

prosecutor’s curative comment cured the prejudice, if any, and the trial court

did not abuse its discretion in denying appellant’s motion for mistrial.      We

overrule appellant’s fourth point.33

      In his fifth point, appellant argues that the trial court erred when it

allowed the State to introduce, during punishment, extraneous offenses without

proper notice as required by Texas Code of Criminal Procedure article 37.07,

section 3(g).

      Under article 37.07, sections 3(a) and (g), a trial court abuses its

discretion in admitting evidence of an extraneous offense during the punishment

stage if the State failed to provide notice of its intent to introduce the offense




      31
           E.g., Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
      32
           See Hawkins, 135 S.W.3d at 77.
      33
        We, therefore, need not address appellant’s third point in which he
contends that the State’s argument was improper. See T EX. R. A PP. P. 47.1;
Harris, 122 S.W.3d at 887.

                                        14
after a “timely request” by the defendant.34 On July 18, 2006, appellant filed

a motion requesting notice of the State’s intent to introduce evidence of other

crimes, wrongs, and acts. On July 24, 2006, the State filed a response, giving

notice of its intent to offer thirty-seven extraneous offenses and bad acts

including the following:

      (26) On or about April 30, 1989, in Taylor County, Texas, the
      Defendant kidnapped Aurora Annette Ballenger [sic] at gun point.

      During the punishment phase, Annette Royal, an ex-girlfriend of appellant

who was previously known as Aurora Ballinger, took the stand. Royal testified

that, among other acts of violence committed by appellant, in April 1989

appellant hit her in the face with the butt of a shotgun, kidnapped her and her

son, and drove her from Taylor County to Tarrant County. During the course

of this ordeal, Royal testified, appellant raped her twice, once in view of her

child. Appellant objected to this testimony, arguing it did not appear in the

State’s notice of extraneous offenses. The trial court overruled the objection.

      The State’s duty to provide notice under Article 37.07, section 3(g) is




      34
       T EX. C ODE C RIM. P ROC. A NN . art. 37.07, § 3(a), (g) (Vernon 2006 &
Supp. 2007); Mitchell v. State, 982 S.W.2d 425, 426 n.1 (Tex. Crim. App.
1998); Scott v. State, 57 S.W.3d 476, 481 (Tex. App.—Waco 2001, pet.
ref’d).

                                      15
triggered only if the defendant makes a timely request. 35 When a document

seeks trial court action (as opposed to being a “self-executing request”), it

cannot also serve as a request for notice triggering the State’s duty under

section 3(g).36     If a document’s substantive form is like a motion and the

movant does not obtain a ruling by the trial court, the document will not

constitute a timely request sufficient to trigger the State’s duty to provide

notice.37

       Here, appellant’s request for notice was clearly a motion. It was titled

“Defendant’s Motion Requesting Notice of Prsecutions [sic] Intent to Introduce

Evidence of Other Crimes, Wrongs or Acts,” and it was filed with the trial

court. It was also addressed to the trial court, and its certificate of service

characterized it as a “motion.” It included a fill-in-the-blank “order” for the trial

court to grant or deny the request.

       The trial court apparently never ruled on the motion. We have found no

indication in the clerk’s record that the trial court granted or denied the motion,




       35
       T  EX. C ODE C RIM . P ROC. A NN. art. 37.07, § 3(g); Mitchell, 982 S.W.2d at
427.
       36
       See Mitchell, 982 S.W.2d at 427; Woodward v. State, 170 S.W.3d
726, 728–29 (Tex. App.—Waco 2005, pet. ref’d).
       37
            Mitchell, 982 S.W.2d at 427; Woodward, 170 S.W.3d at 728–29.

                                         16
and the court’s docket does not reflect a ruling. The reporter’s record does not

contain any hearing or oral ruling on the motion.38

      Because appellant’s request was a motion filed with the court and he

failed to obtain a ruling, the State was not required to provide notice of its

intent to introduce extraneous offenses at punishment.39 The fact that the

State provided notice of some extraneous offenses or bad acts does not relieve

the defendant from having to make a timely request for notice of other

extraneous offenses.40 Accordingly, we hold that the trial court did not abuse

its discretion in overruling appellant’s objections to the testimony at issue, and

we overrule his fifth point.




      38
        It is usually the appealing party’s burden to present a record showing
properly preserved, reversible error. Word v. State, 206 S.W.3d 646, 651–52
(Tex. Crim. App. 2006).
      39
           See Mitchell, 982 S.W.2d at 427; Woodward, 170 S.W.3d at 728–29.
      40
       See Woodward, 170 S.W.3d at 729 (rejecting appellant’s argument that
because the State provided notice of some extraneous offenses or bad acts
without a proper request, it was obligated to provide reasonable notice as to all
bad acts it would use).

                                       17
      Having overruled appellant’s first, second, fourth, and fifth points, which

are dispositive of the appeal, we affirm the trial court’s judgment.41




                                                 PER CURIAM

PANEL F: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: March 13, 2008




      41
           See T EX. R. A PP. P. 47.1.

                                         18
