                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00038-CR



         JOHNATHAN J. DARDEN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 115th District Court
                Upshur County, Texas
                Trial Court No. 16,004




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                        MEMORANDUM OPINION
            After his conviction by a jury of two counts of aggravated sexual assault of a child, 1

Johnathan J. Darden was sentenced to life imprisonment on each count. 2                               We affirm the

judgment of the trial court because (1) no error was preserved on the public-trial issue, (2) no

error was preserved regarding testimony that Darden invoked his right to counsel, (3) the trial

court did not abuse its discretion in denying Darden a continuance, (4) failing to read the

enhancement allegation in the jury’s presence was harmless error, and (5) allegations of

ineffective assistance of counsel were not proven.

(1)         No Error Was Preserved on the Public-Trial Issue

            Before jury selection, the State advised the trial court that Darden wanted to have his

mother present during jury selection, but that she was an intended witness for the State. In

response, the trial judge stated, “I can’t do it.” Defense counsel then indicated that he likewise

intended to call Darden’s mother as a witness. 3 The court was advised that Darden’s godfather

was also present and was asked whether he could be present during jury selection. The court

determined that family members who were not to be witnesses could be present during jury

selection. Defense counsel then asked the trial court if he could have a minute to advise Darden

that his mother could not be present in the courtroom during jury selection. No objection to her

exclusion was voiced.


1
    TEX. PENAL CODE ANN. § 22.021 (West Supp. 2012).
2
    The sentences are to run concurrently.
3
    Although Darden’s mother was sworn as a witness, she was not called to testify by either party.

                                                            2
            Darden now complains that his mother’s exclusion from the courtroom during jury

selection violated his right to a public trial. See Steadman v. State, 360 S.W.3d 499 (Tex. Crim.

App. 2012). The Sixth Amendment to the United States Constitution guarantees the accused in a

criminal prosecution “the right to a . . . public trial.” U.S. CONST. amend. VI. The right to a

public trial is incorporated by the Fourteenth Amendment to be binding on the states. Duncan v.

Louisiana, 391 U.S. 145, 148 (1968). The right to a public trial also extends to the jury selection

process. Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 724 (2010) (per curiam) (citing

Waller v. Georgia, 467 U.S. 39 (1984)); see also Steadman, 360 S.W.3d at 504–05. The

violation of a criminal defendant’s right to a public trial is structural error, and thus does not

require a showing of harm to warrant a reversal. Presley, 558 U.S. 209, 130 S.Ct. at 725;

Johnson v. United States, 520 U.S. 461, 468–69 (1997); Lilly v. State, 365 S.W.3d 321, 328

(Tex. Crim. App. 2012); Steadman, 360 S.W.3d at 510.

            Here, Darden never objected to his mother’s exclusion from the courtroom during jury

selection. When the trial court advised that only nontestifying family members could be present

during jury selection, defense counsel asked merely if he could take a moment to advise Darden

that his mother could not be present during jury selection. 4

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

court a timely request, objection, or motion stating the specific grounds for the ruling desired.

TEX. R. APP. P. 33.1(a)(1)(A); Heigelmann v. State, 362 S.W.3d 763, 770 n.9 (Tex. App.—

Texarkana 2012, pet. ref’d). A reviewing court will not consider errors not called to the trial


4
    Darden did not file a motion for new trial complaining of the exclusion.
                                                             3
court’s attention.   Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).             Even

constitutional errors may be forfeited by failing to object at trial. See Fuller v. State, 253 S.W.3d

220, 232 (Tex. Crim. App. 2008); Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002);

Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). A defendant’s right to a public

trial has not been numbered among either the few “systemic requirements” that a trial court must

follow, regardless of the parties’ wishes, or established as a “waiveable” right only, which must

be implemented unless expressly waived. See Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim.

App. 2004); see also Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993), rev’d on

other grounds, 891 S.W.2d 267 (Tex. Crim. App. 1994); Fletcher v. State, No. 14-96-01158-CR,

1998 WL 651616, at *3 (Tex. App.—Houston [14th Dist.] Sept. 24, 1998, pet. ref’d) (not

designated for publication) (right to public trial). By failing to object at the time the trial court

excluded his mother, a potential trial witness for both sides, Darden forfeited the right to present

this complaint on appeal, even if it was error. Mendez, 138 S.W.3d at 342; see also Levine v.

United States, 362 U.S. 610, 619–20 (1960) (closure of courtroom during grand jury hearing that

continued into contempt hearing did not violate defendant’s public-trial right absent request to

open court to preserve error for appeal); Brandley v. State, 691 S.W.2d 699, 707 (Tex. Crim.

App. 1985) (complaint that hearing in chambers violated right to public trial not preserved for

review when trial objection addressed refusal of trial court to allow appellant to make bill of

exceptions in courtroom). Because Darden did not object to the exclusion of his mother from the

courtroom during jury selection, he has failed to preserve error, if any, resulting from such

exclusion. This point of error is overruled.

                                                 4
(2)    No Error Was Preserved Regarding Testimony that Darden Invoked His Right to Counsel

       Darden also contends that the State improperly placed before the jury the evidence that he

had invoked the right to counsel. During the State’s direct examination of Roxanne Warren, an

officer with the Gilmer Police Department, the following testimony was elicited:

               Q.     [The State] Did he indicate after you told him that allegation, did
       he indicate he wanted to speak to you?

              A.      [Warren] No, he stated he had already requested an attorney.

              Q.     And did he think it was best that he spoke to an attorney before he
       spoke to you?

              A.      Yes.

              Q.      So that interview was ended and ceased and never really began.

              A.      Correct.

       Darden did not move to strike and request an instruction that the jury disregard Warren’s

testimony to the effect that he had requested an attorney at the time of the interview. Darden

further failed to object to the succeeding question, asking if Darden thought it best to speak to

any attorney before he spoke with Warren. Generally, in order to preserve a complaint for

appellate review, the record must show (1) that the complaint was made to the trial court by a

request, objection, or motion that was timely and sufficiently specific to make the trial court

aware of the grounds of the complaint and (2) that the trial court ruled adversely. Tucker v.

State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). If the objection is sustained, counsel must

then ask for an instruction to disregard. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App.

1985); Schumacher v. State, 72 S.W.3d 43, 47 (Tex. App.—Texarkana 2001, pet. ref’d). If the

                                               5
instruction is given, counsel must then move for a mistrial. Nethery, 692 S.W.2d at 701;

Schumacher, 72 S.W.3d at 47. If counsel does not pursue the objection to an adverse ruling,

error is not preserved. TEX. R. APP. P. 33.1; Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim.

App. 1991). Error, if any, was not preserved for appellate review.

(3)         The Trial Court Did Not Abuse Its Discretion in Denying Darden a Continuance

            After trial commenced, Darden filed a written motion for continuance complaining that

the State failed to turn over all discovery material. Darden claimed surprise and the inability to

obtain a fair trial. 5 The State responded that it had, with the exception of some letters which

contained no exculpatory matter or evidence that would assist the State’s case, turned over all the

discovery. However, the State tendered the undisclosed letters to Darden in open court. The

motion for continuance was overruled. 6

            On appeal, Darden contends the trial court abused its discretion in overruling his motion

for continuance because an expectation that trial counsel could adequately review forty to fifty

letters and upwards of 3,000 audio recordings provided shortly before trial is unreasonable. The

written motion for continuance filed and presented to the trial court is based on the assertion that




5
 Darden also presented an oral motion for continuance after all witnesses were sworn, but before commencement of
testimony, contending the State provided him with discovery on the eve of trial, including over 3,000 recorded
telephone calls Darden made from jail. The discovery also included several letters written by Darden to an
individual the State intended to call as a witness. The State responded that it disclosed the discovery the day after it
became known. The State further indicated that it intended to introduce only one of those letters and one of the
audio recordings of a telephone call placed by Darden, both of which were specifically identified by the State. The
trial court overruled the oral motion for continuance. On appeal, Darden concedes that the oral motion for
continuance preserved nothing for appellate review. Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App.
2009). The written motion for continuance was filed the following day.
6
    The State responded that all discovery material was provided to Darden.
                                                           6
the State was in possession of discovery material which was not provided to Darden. 7 It does not

complain of the challenge of reviewing the just-produced data. An objection stating one legal

basis may not be used to support a different legal theory on appeal. Taylor v. State, 20 S.W.3d

51, 56 (Tex. App.—Texarkana 2000, pet. ref’d). Here, however, a liberal reading of Darden’s

appellate point can be seen to fairly encompass the complaint made in the trial court. The record

indicates that “a stack of letters” was turned over to Darden in open court.

            The decision on whether to grant a motion for continuance is left to the sound discretion

of the trial court. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). We, therefore,

apply an abuse-of-discretion standard of review to the trial court’s ruling. Id. To establish an

abuse of discretion, there must be a showing that the defendant was actually prejudiced by the

denial of his or her motion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (per

curiam) (citing Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995)). Prejudice will

be found from the lack of a continuance “only if the record shows with considerable specificity

how the defendant was harmed by the absence of more preparation time than he actually had.”

Gonzales v. State, 304 S.W.3d 838, 842–43 (Tex. Crim. App. 2010). Such a showing ordinarily

is made at a hearing on a motion for new trial, where, almost always, the defendant will “be able

to produce evidence as to what additional information, evidence or witnesses the defense would

have had available if the motion for delay had been granted.” Id. at 842. In addition to

establishing harm as a prerequisite to obtaining appellate relief, a defendant must also

demonstrate error in the denial of the motion for continuance:


7
    Darden does not claim that the State failed to disclose Brady material. Brady v. Maryland, 373 U.S. 83 (1963).
                                                            7
         In addition to this necessary showing of harm, an appellant must apparently also
         show that the trial judge’s ruling on the motion was error. This most likely
         requires a showing that the case made for delay was so convincing that no
         reasonable trial judge could conclude that scheduling and other considerations as
         well as fairness to the State outweighed the defendant’s interest in delay of the
         trial.

Id. at 843.

         Here, the trial court could reasonably have rejected Darden’s motion because all

undisclosed discovery, represented to be material which was not helpful to the State or to the

defense, was tendered to Darden in open court. We cannot say that the case made for delay was

so compelling that no reasonable trial judge could conclude the trial should not be delayed. 8

Moreover, Darden has not established “specific prejudice to his cause arising from the trial

court’s failure to continue the trial.” Heiselbetz, 906 S.W.2d at 511. A showing of specific

prejudice “can ordinarily be made only at a hearing on a motion for new trial . . . .” Gonzales,

304 S.W.3d at 842–43. In the instant case, Darden did not file a motion for new trial or otherwise

articulate what specific prejudice he suffered based on the denial of the motion for continuance.

We conclude Darden has failed to demonstrate that the trial court erred in denying the motion for

continuance and that the lack of a continuance harmed him. We overrule this point of error.




8
 At trial, the State elicited testimony from Christy Thomas, the recipient of the letters, indicating Thomas met with
the investigator for the State Saturday, February 18, 2012, at which time the letters were turned over to the State.
The State contacted defense counsel the following day and provided counsel with the documents that were admitted
into evidence. These events took place before the time the jury was sworn.
                                                         8
(4)     Failing to Read the Enhancement Allegation in the Jury’s Presence Was Harmless Error

        After returning a guilty verdict on both counts of aggravated sexual assault of a child, the

jury was returned to the jury room, at which time the State read the enhancement paragraph in

open court in Darden’s presence. 9 Darden pled true to the enhancement allegation.

        Darden claims the trial court erred in failing to have the enhancement allegation read in

the presence of the jury in violation of Article 36.01 of the Texas Code of Criminal Procedure,

which provides, in relevant part:

        The indictment or information shall be read to the jury by the attorney
        prosecuting. When prior convictions are alleged for purposes of enhancement
        only and are not jurisdictional, that portion of the indictment or information
        reciting such convictions shall not be read until the hearing on punishment is held
        as provided in Article 37.07.

TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1) (West 2007). Darden claims that, because the

enhancement allegation was never presented to the jury, the case should be reversed and a new



9
 The State filed its notice of intention to seek enhancement of the range of punishment January, 9, 2012. The
enhancement paragraph, as read by the State, alleged, in part:

        [T]he state of Texas . . . hereby gives notice to the defendant and his counsel of the state’s
        intention to seek, prove and have submitted to the jury in the punishment phase of trial the issue of
        whether the defendant had previously been convicted of the felony offense listed below.
        Paragraph one, and it is further presented in and to said court that prior to the commission of the
        offense in this cause, hereinafter called the primary offense, that on or about the 23rd day of
        November, 2004, in Cause Number 7103503 in the 7th District Court of Smith County, Texas the
        defendant was convicted of the felony offense of injury to a child, elderly, or disabled, a final
        felony conviction and sentenced to seven years’ confinement in the Institutional Division of the
        Texas Department of Corrections. That should the jury find from the evidence and say so by their
        verdict that the defendant is the same person previously convicted of the offense set forth in
        paragraph one above, the range of punishment for this offense in this cause would be confinement
        for life or for a term not to exceed 99 years nor less than fifteen years in the Institutional Division
        of the Texas Department of Corrections if convicted under count one or count two of the
        indictment. Additionally, a fine not to exceed $10,000 will be within the range of punishment
        prescribed by law.

                                                          9
trial should be granted, or alternatively, he should receive a new punishment hearing. We

disagree.

         Darden reasons that the decision in Turner v. State, 897 S.W.2d 786 (Tex. Crim. App.

1995), controls. In that case, the trial court neither required the enhancement allegation to be

read nor received the defendant’s plea to the enhancement allegation. Turner found that the trial

court’s action was error and that the error was not subject to a harm analysis. Id. at 789. Darden

asks that we apply the same reasoning here.

         Since Turner, however, the high criminal court has determined that all errors with the

exception of certain federal constitutional errors labeled “structural” are subject to a harmless-

error analysis. 10 See High v. State, 964 S.W.2d 637, 638 (Tex. Crim. App. 1998) (per curiam);

Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (overruling “any other decision

[that] conflicts with the present opinion”). Although Turner has never been explicitly overruled,

subsequent cases have held that a violation of Article 36.01 is subject to harmless error analysis.

See Mendez v. State, 212 S.W.3d 382, 388 (Tex. App.—Austin 2006, pet. ref’d); Hernandez v.

State, 190 S.W.3d 856, 868 (Tex. App.—Corpus Christi 2006, no pet.); Linton v. State,

15 S.W.3d 615, 620 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

         This Court has previously stated that entirely failing to read an indictment should be

classified as a structural error. Simmons v. State, 106 S.W.3d 756, 760 (Tex. App.—Texarkana

2003, no pet.). In this case, however, the enhancement allegation was read to Darden, after


10
  Structural errors include the total deprivation of the right to counsel at trial, a judge who is not impartial, unlawful
exclusion of members of the defendant’s race from a grand jury, the right to self-representation at trial, and the right
to a public trial. See Arizona v. Fulminante, 499 U.S. 279, 309–10 (1991) (Rehnquist, C.J., dissenting in part).
                                                           10
which he pled true. Darden complains only of the fact that the jury was not present at the time

the enhancement allegation was read. This was not tantamount to a complete failure to read the

enhancement allegations as required by the rule. Although it is error, it is not structural error and

should be reviewed to determine if it was harmful.

        When reviewing nonconstitutional error under Rule 44.2(b), we determine whether the

error affected the defendant’s substantial rights. See Llamas v. State, 12 S.W.3d 469, 471 n.2

(Tex. Crim. App. 2000). In determining this, we must decide whether the error had a substantial

or injurious effect on the jury’s verdict. Id.; Hernandez, 190 S.W.3d at 868; Simmons, 106

S.W.3d at 760.

        In Turner, the court expressed concern that a defendant could be misled into believing the

State has abandoned its intent to seek an enhanced sentence when the enhancement paragraphs

are not read and the defendant does not plead to them. See Turner, 897 S.W.2d at 789. If so

misled, “the defendant might take the stand and incriminate herself . . . for purposes other than to

subject herself to an enhanced sentence.”        Id.   Because of the inherent danger of self-

incrimination, strict compliance with Article 36.01 was required to ensure a fair and impartial

trial. Id.

        Because Darden did not testify during the punishment phase of trial, there was no danger

of self-incrimination.   Further, the enhancement allegation was read to Darden outside the

presence of the jury, and he pled true to that allegation. Therefore, Darden could not have been

misled into believing the State intended to abandon the enhancement allegation.




                                                 11
            Turner also recognized that “a defendant’s right, under Article 36.01, to stand before the

jury and plead ‘untrue’ to the enhancement paragraphs is a valuable right.” Id. Because Darden

pled true to the enhancement allegation, the effect of the denial of such right is not an issue

here. 11

            In addition, the primary offenses here were both first degree felonies, each carrying a

punishment range of life or for any term of not more than ninety-nine years or less than five

years. See TEX. PENAL CODE ANN. § 12.32(a) (West 2011). The effect of the enhancement was

to raise the minimum punishment from five years in prison to fifteen years in prison. See TEX.

PENAL CODE ANN. § 12.42(c)(1) (West Supp. 2012). The punishments assessed by the jury—life

imprisonment on each count—was the maximum Darden could receive, and both fell within the

unenhanced punishment range, which suggests this error was harmless.

            Given these circumstances, we conclude the failure to read the enhancement allegation

and to receive Darden’s plea of true to that allegation in the presence of the jury was harmless.

We overrule this point of error.

(5)         Allegations of Ineffective Assistance of Counsel Were Not Proven

            Darden contends he received ineffective assistance of counsel. The Sixth Amendment to

the United States Constitution grants an accused the right to have the assistance of counsel for

his or her defense, a right that has been interpreted to require the effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686 (1984). The Sixth Amendment’s guarantee of

assistance of counsel is binding on the states by operation of the Fourteenth Amendment.


11
     The jury was instructed that Darden pled true to the enhancement allegation.
                                                            12
McCoy v. Court of Appeals, Dist. 1, 486 U.S. 429, 435 (1988). A conviction resulting from

ineffective assistance of counsel is constitutionally infirm. Strickland, 466 U.S. at 688.

       Ineffective assistance of counsel claims are evaluated under the two-part test formulated

by the United States Supreme Court in Strickland, requiring a showing of both deficient

performance and prejudice. Strickland, 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 812

(Tex. Crim. App. 1999); Fox v. State, 175 S.W.3d 475, 485 (Tex. App.—Texarkana 2005, pet.

ref’d). Claims of ineffective assistance of counsel “are not built on retrospective speculation,”

but must be firmly rooted in the record, with the record itself affirmatively demonstrating the

alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).

       To prevail on this claim, Darden must prove by a preponderance of the evidence (1) that

his counsel’s representation fell below an objective standard of reasonableness and (2) that the

deficient performance prejudiced the defense. Strickland, 466 U.S. at 688; Tong v. State, 25

S.W.3d 707, 712 (Tex. Crim. App. 2000). We indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable, professional assistance and was motivated by

sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). “If

counsel’s reasons for his conduct do not appear in the record and there is at least the possibility

that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions

and deny relief on an ineffective assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d

79, 88–89 (Tex. Crim. App. 2002). Rarely will a reviewing court be provided the opportunity to

make its determination on direct appeal with a record capable of providing an evaluation of the

merits of ineffective assistance claims.    Thompson, 9 S.W.3d at 813. “In the majority of

                                                13
instances, the record on direct appeal is simply undeveloped and cannot adequately reflect” the

reasoning of trial counsel. Id. at 813–14.

            Darden claims that his trial counsel was ineffective because he (a) failed to move to

quash the indictment, (b) advised the jury panel that Darden would not testify, (c) failed to object

to improper questions, (d) failed to redact a recorded interview viewed by the jury, (e) failed to

object to testimony informing the jury that Darden invoked his right to counsel before a second

interview, (f) failed to object to the introduction of letters from Darden to Thomas, (g) called

Ramona Lacy, the mother of the victim, to testify, (h) failed to object to the court’s charge,

(i) called Wade French as a witness during the punishment phase, and (j) failed to object to

comments made by the State during closing argument. He also claims these cumulative failings

demonstrate a pattern of ineffectiveness.

            (a)      Motion to Quash Indictment

            In support of his claim that trial counsel was ineffective in failing to file a motion to

quash the indictment, Darden asserts that the rather imprecise language utilized in the second

count of the indictment required correction. The second count recites that the victim’s sexual

organ was penetrated by “defendant’s organ.” 12 Darden admits, however, that the statute setting

out the offense allows for a crime to be committed by penetration “by any means.” 13 We do not

find the failure to file a motion to quash the indictment to be deficient representation.




12
     Count one of the indictment alleges that the victim’s sexual organ was penetrated by “defendant’s sexual organ.”
13
     TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(1).

                                                           14
            (b)      Disclosure to Jury Panel that Darden Would Not Testify

            Deficient performance is likewise not supported by the disclosure to the jury panel that

Darden would not testify at trial. Darden concedes that this matter, taken alone, does not

constitute ineffective assistance.

            (c)      Failure to Object to Improper Questions

            Among other issues Darden claims reveal a pattern of ineffectiveness is the failure to

object to certain questioning of the sexual assault nurse examiner (SANE), 14 as well as certain

testimony offered by Thomas 15 and investigator Warren. 16 Trial counsel’s failure to object can

be presumed to be reasonable trial strategy. Strickland, 466 U.S. at 689. “The review of defense

counsel’s representation is highly deferential and presumes that counsel’s actions fell within a

wide range of reasonable professional assistance.” Mallett v. State, 65 S.W.3d 59, 63 (Tex.

Crim. App. 2001). As is typically true, trial counsel’s reasons for not objecting do not appear in

the record. “If counsel’s reasons for his conduct do not appear in the record and there is at least

the possibility that the conduct could have been legitimate trial strategy, we will defer to

counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.” Ortiz,

93 S.W.3d at 88–89. Because trial counsel’s failure to object may have been based on trial




14
  Susan Hinson, the SANE who interviewed the child victim, was asked if she has testified in other cases in which a
defendant was found guilty even though the victim did not want to disclose everything to the nurse during an
interview. The nurse responded affirmatively.
15
  Thomas testified that she was engaged in a romantic relationship with Darden while Darden was living with the
victim’s mother. Thomas also testified about a certain letter she received from Darden which attempts to explain the
circumstances of the assault.
16
     Warren testified that lying is common for those accused of a crime of this nature.
                                                            15
strategy, we are unable to conclude counsel’s actions fell outside the wide range of reasonable

professional assistance.

       (d)     Failure to Redact Recorded Interview

       Other complaints center on the substance of the interview between Warren and Darden.

Darden complains that the interview, which was published to the jury, should have been redacted

by deleting certain information, including a discussion regarding a physical altercation between

Darden and the child victim’s mother on the day before Darden’s arrest, a disclosure that Darden

was on parole at the time of the interview, and information indicating Darden was involved in a

romantic relationship with Thomas while he was living with the victim’s mother. Darden claims

that the referenced information is irrelevant and that, even if marginally relevant, it should have

been excluded. See TEX. R. EVID. 403.

       It is not enough to show that, with the benefit of hindsight, counsel’s actions or omissions

during trial “were merely of questionable competence.” Lopez v. State, 343 S.W.3d 137, 142–43

(Tex. Crim. App. 2011). Here, as in most direct appeals, the record is silent as to why trial

counsel did not object to the inclusion of the portions of the Warren/Darden interview of which

Darden complains. The record could have been supplemented through a hearing on a motion for

new trial, but such a motion was not filed. Darden has thus failed to meet his burden under the

first prong of Strickland.

       (e)     Failure to Object to Invocation-of-Counsel Testimony

       Additionally, Darden complains of trial counsel’s failure to object to testimony informing

the jury that Darden invoked his right to counsel before a second interview with Warren. When

                                                16
counsel is not provided an opportunity to explain his actions, this Court will not find deficient

performance unless the challenged conduct was “so outrageous that no competent attorney would

have engaged in it.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Because the record is silent

as to why counsel failed to object, we employ the strong presumption that counsel’s conduct, in

possibly refusing to draw the jury’s attention to the invocation issue through an objection, could

be considered sound trial strategy.

            (f)      Failure to Object to Introduction of Letters

            Darden further complains that trial counsel failed to object to testimony from Thomas

that she was engaged in a romantic relationship with Darden while Darden was living with the

victim’s mother. 17 In the same connection, certain letters were admitted into evidence through

Thomas, to which counsel did not object. While Darden fails to explain or to otherwise analyze

the damaging evidence in the letters, it is apparent that they were intended as an attempt by

Darden to explain the circumstances of his encounter with the victim in order to maintain his

relationship with Thomas. 18 The letters were properly authenticated by Thomas and were clearly

relevant to the issue of Darden’s guilt. See Simpson v. State, 181 S.W.3d 743, 749 (Tex. App.—

17
  As previously discussed, the record is silent as to why counsel did not object to testimony regarding the allegedly
romantic relationship between Darden and Thomas.
18
     Both letters are incriminating. In the initial letter, Darden explained to Thomas:

            I am sorry for lying in the begining [sic] . . . . I didn’t do this s[ ]t on purpose!! . . . . I had drinked
            [sic] myself asleep and when I woke up [the victim] was in bed and it happen [sic], but I stope
            [sic] myself when I realize what was going on she try to ge [sic] me to keep going I didn’t I made
            her get out . . . . This only happen [sic] one time . . . and I’am [sic] not liying [sic] about that . . . .

Defense counsel stated that he had no objection to Exhibits 34 and 35 (a second letter from Darden to Thomas,
proclaiming, in part, that “I will NOT DO IT ANYMORE”).
                                                                17
Tyler 2005, pet ref’d) (excerpt of letter appellant wrote to girlfriend while in jail was material

because it was declaration made by appellant regarding his guilt).

       Even assuming the letters were inadmissible, the failure to object does not necessarily

constitute ineffective assistance of counsel. Greene v. State, 928 S.W.2d 119, 123 (Tex. App.—

San Antonio 1996, no pet.). Because the record is silent as to counsel’s possible strategies, we

decline to speculate why no objection was made.         We may not “reverse a conviction on

ineffective assistance of counsel grounds when counsel’s actions or omissions may have been

based on tactical decisions, but the record contains no specific explanation for counsel’s

decisions.” Bone, 77 S.W.3d at 830. Because the record does not affirmatively demonstrate that

this omission was attributable to ineffectiveness, the presumption of reasonable professional

assistance has not been defeated.

       (g)     Decision to Call Lacy as a Defense Witness

       Darden further contends trial counsel was ineffective in calling the victim’s mother,

Lacy, to testify.   Darden contends that damaging evidence was elicited from this witness

regarding an altercation between Darden and Lacy the day before Darden’s arrest. We cannot

conclude trial counsel was ineffective merely because he made the tactical decision to call Lacy

as a witness for the purpose of impugning her credibility. The decision to call a witness is

generally a matter of trial strategy. See, e.g., Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d). Moreover, counsel was pursuing a strategically legitimate

line of questioning when Lacy volunteered that she and Darden became involved in an




                                               18
altercation. 19 Absent a record of the reason for counsel’s conduct, we must defer to counsel’s

decisions. See Bone, 77 S.W.3d at 830.

           During Lacy’s cross-examination, further evidence of the altercation between Lacy and

Darden was elicited. Trial counsel objected to the introduction of photographs depicting injuries

to Lacy as a result of that altercation. After the trial court overruled the objection, further

information regarding the altercation came to light. Trial counsel may have made a decision, as

a matter of sound trial strategy, to draw no further attention to this matter by way of additional

objections, in light of the trial court’s ruling on the photographic evidence.

           (h)      Failure to Object to Court’s Charge

           It is further claimed counsel was ineffective in failing to object to the court’s charge. The

sole argument made here is that the instruction regarding extraneous evidence appears to be

improper. We are not told why the instruction is improper or what objection should have been

made to this instruction. We thus overrule this issue as inadequately briefed. See TEX. R. APP. P.

38.1(h), (i) (brief must contain clear and concise argument for contentions, with appropriate

citations to authorities and to record). An inadequately briefed issue may be waived on appeal.

McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001).

           (i)      Decision to Call French as a Witness During Punishment Phase

           Darden next complains counsel was ineffective in calling French as a witness in the

punishment phase of the trial. French had no opinion on whether Darden posed a danger to

society, so Darden complains the evidence had no value. As previously explained, we cannot


19
     Lacy volunteered that, when Darden emerged from a locked room, “he immediately jumped on me.”
                                                        19
conclude that a tactical decision to call a witness amounts to ineffective assistance of counsel.

See, e.g., Rodd, 886 S.W.2d at 384.

            (j)      Failure to Object to State’s Comments in Closing

            Finally, Darden complains of counsel’s failure to object to suggestions he claims were

made by the State during closing argument that the jury should consider how parole applies in

this case, as such was forbidden by the court’s charge. The court’s charge included an extensive

discussion of how parole applies in this case 20 and advised the jury that the application of parole

law will depend on decisions made by prison and parole authorities. In closing, the State

informed the jury that Darden “will be entitled to parole at some point.” The State then clarified

that Darden will “get a chance at parole.”

            The court’s charge specifically stated that “eligibility for parole does not guarantee that

parole will be granted.” When read in context, the complained-of argument did not suggest to

the jury that they should consider the possibility of parole in a manner forbidden by the court’s

charge.

20
     The charge of the court indicated:

                      It is also possible that the length of time for which the defendant will be imprisoned
            might be reduced by the award of parole.
                      Under the law applicable in this case, if the defendant is sentenced to a term of
            imprisonment, he will not become eligible for parole until the actual time served plus any good
            conduct time earned equals one-half of the sentence imposed or 30 years, whichever is less,
            without consideration of any good conduct time he may earn. Eligibility for parole does not
            guarantee that parole will be granted. It cannot be accurately predicted how the parole law and
            good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment
            because the application of these laws will depend on decisions made by prison and parole
            authorities.
                      You may consider the existence of parole law and good conduct time. However, you are
            not to consider the extent to which good conduct time may be awarded to or forfeited by this
            particular defendant. Such matters come within the exclusive jurisdiction of the Pardon and
            Parole Division of the Texas Department of Criminal Justice and the governor of Texas.
                                                           20
       (k)     Pattern of Ineffectiveness

       Darden maintains that the matters outlined above illustrate a pattern that establishes

ineffectiveness of counsel. Because the record before us does not support a conclusion that the

complained-of conduct by trial counsel fell below the standard of prevailing professional norms,

the alleged conduct cumulatively did not fall below that standard. See Rodriguez v. State, 336

S.W.3d 294, 303 (Tex. App.—San Antonio 2010, pet. ref’d) (because “appellant did not meet

her burden of establishing individual instances of ineffective assistance of counsel, we hold that

she cannot show an adverse cumulative effect from the actions of trial counsel”).

       We overrule Darden’s ineffective assistance of counsel claims.

       We affirm the judgment of the trial court.




                                             Josh R. Morriss, III
                                             Chief Justice

Date Submitted:       December 27, 2012
Date Decided:         March 1, 2013

Do Not Publish




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