       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-17-00504-CR



                                Troy Anthony White, Appellant

                                                 v.

                                  The State of Texas, Appellee


            FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
       NO. CR2015-189, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING


                            MEMORANDUM OPINION


               A jury found appellant Troy Anthony White guilty of three counts of aggravated

sexual assault of a child under the age of six for sexually abusing his five-year-old niece. See

Tex. Penal Code § 22.021(a)(1)(B), (2)(B), (f)(1). Appellant elected to have the trial court

decide his punishment, see Tex. Code Crim. Proc. art. 37.07, § (2)(b), and the trial judge

sentenced him to serve 50 years in the Texas Department of Criminal Justice for each offense,

see Tex. Penal Code § 22.021(e), (f)(1). On appeal, appellant asserts that his trial counsel

rendered ineffective assistance and that the trial court erred in admitting medical reports prepared

by a sexual assault nurse examiner. We find no reversible error. However, through our own

review of the record, we have found non-reversible error in the written judgments of conviction.

We will modify the judgments to correct the error and, as modified, affirm the trial court’s

judgments of conviction.
                                        BACKGROUND1

               After separating from her husband, Sidoney and her five children, three sons and

two daughters, lived with her mother in her mother’s house along with appellant, Sidoney’s adult

brother. One morning as Sidoney was driving her children to school, her youngest daughter,

L.J., indicated that she was going to tell their mom “Troy’s secret.”2 Sidoney asked L.J., “What

secret?” The young girl told her that “he lets us suck his wiener.” When Sidoney questioned her

daughter about where his wiener was, L.J. “pointed to the genital area.” Sidoney then asked her

oldest daughter, K.J., if it was true. K.J. looked at her mother and nodded her head yes. Sidoney

called her mother to inform her about what her daughters had disclosed and then called

the police.

               Two days later, both girls were taken to a sexual assault nurse examiner (SANE)

for a sexual assault exam. During her exam, L.J. told the nurse,


       Me and [K.J.] play with Troy. He makes us suck his penis. Troy put his penis in
       my butt a bunch of times. Troy comes in my room in the middle of the night and
       carries me to his room. He makes me lay on my stomach and tells me to be still.
       He puts his penis in my butt. Sometimes he does it in the daytime, too. Troy tells
       me I can’t tell anyone or I will be in trouble. Sometimes he puts his finger in my
       butt. He likes to play with my butt.


After conducting the sexual assault exam, the SANE noted that L.J.’s anus “had redness in an

irregular shape” at the 7:00 o’clock position and observed that L.J. had anal dilation in less than

       1
          To protect the identities of the child victims in this case, we refer to the children using
only their initials and refer to their mother, who shares the children’s last name, by her first
name. See Tex. R. App. P. 9.10(a)(3).
       2
          According to Sidoney’s testimony, L.J. was upset because her family was discussing
what had happened the night before after L.J. had to go to bed (when she had wanted to stay up).
The young girl said to her sister, “[Y]ou better shut up, [K.J.], or else I’m going to tell Mom
Troy’s secret.”
                                                 2
20 seconds. At trial, the nurse explained that it usually it takes 30 seconds for the anus to relax

when a child is relaxed and that if the anus relaxes before 30 seconds, it can be indicative of

having either a medical condition or having been abused. A copy of the SANE report of L.J.’s

exam was admitted at trial over appellant’s hearsay objection.

               During K.J.’s sexual assault exam, she told the SANE,


       My uncle touches me on my butt. He puts his wiener in my butt. He does it a
       bunch of times. Troy comes in the room every night in his underwear. He takes
       his underwear off and gets in bed with me. He makes me hold his wiener with my
       hand and he makes me suck his wiener. Troy does it sometimes in the daytime,
       too. Troy tells me if I tell, I will get in trouble. We are stay[ing] in a hotel, so he
       has not done it in a few days.


The nurse noted that the young girl “had an irregular shaped opening of the anus” and her anal

dilatation was less than 20 seconds. A copy of the SANE report of K.J.’s exam was admitted at

trial over appellant’s various objections.

               The day after the sexual assault exams, both girls were taken to the Children’s

Advocacy Center for forensic interviews. The detective assigned to the case observed the

interviews. At trial, he testified that both girls made outcries of sexual abuse, identifying

appellant as the perpetrator.

               Several days later, the detective spoke with appellant at his home. During trial,

over appellant’s objection, an audio recording of the conversation was admitted into evidence.3

On the recording, appellant initially denied having any sexual contact with the girls. He then

described L.J. touching his penis on one occasion and her pulling his pants down on another. He

also admitted that K.J. had touched his penis with her hand—“playing with it for 15 minutes”—

       3
          Appellant objected to the admission of the recording because “it was improper to take
the statement from him without advising him of his constitutional rights.”
                                                 3
and then admitted that he took his penis out and “laid it there” and “let it happen.” But, appellant

denied that the girls had any oral contact with his penis.

                  Three days after the interviews, the detective obtained a warrant for appellant’s

arrest. After appellant was arrested, the detective interviewed appellant at the sheriff’s office.

Before this interview, which was recorded on video, the detective gave appellant his Miranda

warnings. See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966) (holding that prior to custodial

interrogation, law enforcement officers must admonish accused of certain constitutionally

protected rights to secure privilege against self-incrimination). During this interview, appellant

admitted that he “allowed” the girls to put his penis in their mouths but said that he did not

remember “doing anything else.” He described an instance where he put his penis in L.J.’s

mouth, explaining that he asked the young girl to put it in her mouth, but she complained that it

“tasted nasty,” so he offered to wash it. Ultimately, appellant admitted putting his penis in both

girls’ mouths, at one point saying that he “felt like [he] was forcing them to put their mouths on

[him].” He also admitted to the detective that he told the girls to “keep it to themselves” and “to

keep this all secret.” Appellant, however, denied touching either girl near her anus or vagina. At

several points during the interview, appellant said that he wanted to take a test “to prove that he

did not do that,” and, at the end of the interview, the detective agreed to arrange for him to take a

polygraph test.

                  Appellant was subsequently indicted with three counts of aggravated sexual

assault of a child younger than six years of age for the sexual abuse perpetrated against L.J.4

Count I charged appellant with penetrating or contacting L.J.’s mouth with his penis, see Tex.


       4
           The record reflects that appellant was indicted in another case for the sexual abuse he
allegedly perpetrated against K.J.
                                                  4
Penal Code § 22.021(a)(1)(B)(ii), (v); Count II charged appellant with penetrating or contacting

L.J.’s anus with his penis, see id. § 22.021(a)(1)(B)(i), (iv); and Count III charged appellant with

digital penetration of L.J.’s anus, see id. § 22.021(a)(1)(B)(i). The State called five witnesses at

trial: the lead detective, who testified about his investigation and his interviews with appellant;

the sexual assault nurse examiner, who testified about the exams she performed on both girls;

Sidoney, who testified about L.J.’s outcry disclosing the sexual abuse; and L.J. and K.J., who

both described appellant’s sexual abuse of them.5 As the sole witness for the defense, appellant

recalled Sidoney.

               The jury found appellant guilty of all three counts. Because appellant elected to

have the trial court determine his punishment, the court ordered a pre-sentence investigation and

reset the case for sentencing. At the punishment hearing, a family friend testified on behalf of

appellant—explaining that he was “absolutely surprised” by appellant’s conduct and expressing

“[his] hope that the person [he] knew, if given that chance, can again surface ‐‐ surface and he

can be very productive to society and be a changed person”—and appellant testified on his own

behalf. During appellant’s testimony, the State offered evidence reflecting that two weeks before

sentencing, appellant used his commissary money, part of which his mother gave to him, to order

pornographic magazines. In closing argument to the court, appellant asked for the minimum

       5
          L.J., eight years old at the time of trial, told the jury that her Uncle Troy “made us suck
his private and he would stick it in our butt.” She explained that “us” was her and her older
sister. She said that it happened in her uncle’s room in her grandmother’s house. L.J. did not
remember how many times it happened but indicated that it happened “a lot.” She testified that
she knew that appellant did the same thing to her older sister because she saw him do it to her.

           K.J., who turned ten years old the day before she testified at trial, said that she had a
problem with her Uncle Troy, which was that “[h]e was doing child abuse.” She explained that
appellant “made [her] suck his wiener.” Like her sister, K.J. said that she did not remember how
many times it happened but indicated that it happened “a lot of times” during both the day and
the night.
                                                 5
sentence of 25 years; the State sought a life sentence. After expressing its understanding that

appellant is not eligible for parole for his convictions for these offenses, see Tex. Gov’t Code

§ 508.145(a), the trial court sentenced appellant to serve 50 years in prison for each count and

ordered the sentences to be served concurrently, see Tex. Penal Code § 3.03(b)(2).


                                          DISCUSSION

               Appellant raises two points of error. First, he claims that he suffered ineffective

assistance of counsel at trial. Second, he challenges the trial court’s admission of the medical

reports completed by the sexual assault nurse examiner in connection with the sexual assault

exams of the girls.


                                Ineffective Assistance of Counsel

               In his first point of error, appellant contends that his trial counsel rendered

ineffective assistance at trial because counsel failed to: (1) request a hearing pursuant to article

38.37 relating to the admission of evidence of extraneous sexual offenses, (2) object to the

prosecutor’s opening statement that referenced extraneous sexual offenses, and (3) object to

evidence relating to appellant taking a polygraph.

               To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by

the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava, 415 S.W.3d at 307.

The appellant must first demonstrate that counsel’s performance fell below an objective standard

of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687–88; Nava

v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). The appellant must then show the

existence of a reasonable probability—one sufficient to undermine confidence in the outcome—

                                                 6
that the result of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308. Failure to make the

required showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim. Strickland, 466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex.

Crim. App. 2010).

               Appellate review of counsel’s representation is highly deferential; we must

“indulge in a strong presumption that counsel’s conduct was not deficient.” Nava, 415 S.W.3d at

307–08; see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective

assistance must be “firmly founded in the record,” and “the record must affirmatively

demonstrate” the meritorious nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592

(Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

Rarely will the trial record by itself be sufficient to demonstrate an ineffective-assistance claim.

Nava, 415 S.W.3d at 308. If trial counsel has not been afforded the opportunity to explain the

reasons for his conduct, we will not find him to be deficient unless the challenged conduct was

“so outrageous that no competent attorney would have engaged in it.” Id. (quoting Menefield,

363 S.W.3d at 593); Goodspeed, 187 S.W.3d at 392.

               In this case, appellant did not file a motion for new trial. Thus, the record is silent

as to the reasons underlying trial counsel’s conduct.

               Appellant’s first two claims of deficient performance by trial counsel relate to

evidence of appellant’s sexual abuse of K.J. Under section 2(b) of article 38.37 of the Code of

Criminal Procedure, evidence that the defendant has committed one of the child sexual abuse

offenses described by the statute against a child other than the victim of the charged offense is

admissible “for any bearing the evidence has on relevant matters, including the character of the

                                                 7
defendant and acts performed in conformity with that character.” Tex. Code Crim. Proc. art.

38.37, § 2(a)(1), (b). Before admitting such evidence, a trial court must conduct a hearing out of

the presence of the jury to determine whether the evidence likely to be admitted at trial

concerning the separate sexual abuse offense will be adequate to support a jury finding that the

defendant committed the separate offense beyond a reasonable doubt. Id. art. 38.37, § 2-a.

               Appellant first contends that trial counsel’s performance was deficient because he

failed to request a hearing prior to the admission of evidence of appellant’s sexual abuse of K.J.

The record reflects that when the prosecutor began to question the SANE about the sexual

assault exam she conducted on K.J., appellant objected “to [that] line of questioning with respect

to K.J. since that is not the subject of this particular indictment.” The prosecutor responded that

evidence of the sexual abuse of another child is admissible under article 38.37 and pointed out

that “[t]here’s already been an admission of that on the videotape.”6 Appellant’s counsel told the

court that “if you’d allow us to, we could probably handle the issues that I’ve raised on the

admissibility [of the SANE report related to L.J.’s exam] outside the presence of the jury while ‐‐

and add this issue as well.” The judge responded, “38.37, I believe I’m required to have that

hearing outside the presence of the jury” and removed the jury from the courtroom.

               Outside the presence of the jury, the court established that appellant had received

the requisite notice under the statute. See id. art. 38.37, § 3. The court then observed that

“[t]here doesn’t really appear to be any limitation, [defense counsel], about the type of evidence

regarding a separate offense” and noted that “there is certain evidence already in the record in

that regard.” The court then reviewed the SANE reports for the exams conducted on both girls,


       6
           At that point in the trial, the detective had already testified, and the audio and video
recordings of his interviews with appellant had been admitted.
                                                8
and the SANE summarized what her testimony about K.J.’s exam would be. The trial court then

made the requisite finding, see id. art. 38.37, § 2-a(1), and overruled appellant’s objection.

               We observe several things about appellant’s first claim of deficient performance.

First, under the statute, a hearing outside the presence of the jury before the admission of the

evidence of an extraneous sexual offense is mandatory, not dependent upon any request by

defense counsel. Second, appellant did, in fact, request a hearing outside the presence of the jury

to address his objection to the admission of the SANE’s testimony relating to K.J. Third, the

trial court conducted a hearing outside the presence of the jury as mandated by the statute.

However, as both the prosecutor and the court noted, evidence of appellant’s extraneous sexual

abuse of K.J.—appellant’s admissions to the detective that K.J. “play[ed] with his penis” and that

he “allowed” K.J. to put his penis in her mouth—had already been admitted on the recordings of

the detective’s interviews with appellant. Arguably, appellant’s trial counsel erred in failing to

ensure that the requisite hearing occurred in a timely manner—that is, before any evidence of the

extraneous sexual offenses was admitted—but, ultimately, appellant received the hearing, and

the trial court made the relevant findings, per the statute.

               In a related claim, appellant asserts that his trial counsel’s performance was

deficient because he failed to object to the portions of the prosecutor’s opening statement that

referenced appellant’s sexual abuse of K.J. However, the State’s opening statement in a criminal

case is an outline of facts which the prosecution in good faith expects to prove. Fisher v. State,

220 S.W.3d 599, 603 (Tex. App.—Texarkana 2007, no pet.); Ketchum v. State, 199 S.W.3d 581,

597 (Tex. App.—Corpus Christi 2006, pet. ref’d); see Opening Statement, BLACK’S LAW

DICTIONARY (10th ed. 2014) (“At the outset of a trial, an advocate’s statement giving the fact-

finder a preview of the case and of the evidence to be presented.”). The State has the statutory

                                                   9
right to tell the jury the nature of the accusations against the defendant and the facts that are

expected to be proven. See Tex. Code Crim. Proc. art. 36.01(a)(3). Here, the prosecutor’s

comments, which did include references to appellant’s extraneous sexual offenses against K.J.,

simply outlined the anticipated evidence and facts to be proved. “When evidence about a matter

mentioned in opening is properly admitted in a trial, the prosecutor’s mention of the evidence in

opening statement is not error.” Comeaux v. State, 413 S.W.3d 176, 185 (Tex. App.—Beaumont

2013), aff’d, 445 S.W.3d 745 (Tex. Crim. App. 2014); see Banks v. State, 643 S.W.2d 129, 133

(Tex. Crim. App. 1982) (“The [State’s] opening remarks about evidence which was thereafter

properly admitted did not constitute error.”); cf. Matamoros v. State, 901 S.W.2d 470, 475 (Tex.

Crim. App. 1995) (“It is not error for a prosecutor to tell the jury in opening statement what he

expects to prove, even if he does not later offer such proof at trial.” (citing Marini v. State,

593 S.W.2d 709, 715 (Tex. Crim. App. 1980))).

                 We do not find that counsel acted below any reasonable level of professionalism

by failing to object to the prosecutor’s opening statement. First, as noted above, the complained-

of remarks outlined the State’s anticipated evidence.      Further, as the trial court ultimately

concluded, the evidence of appellant’s extraneous sexual abuse of K.J. was admissible under

article 38.37.    Therefore, trial counsel might have reasonably concluded that, because the

evidence was admissible, references to it during opening statement were not objectionable.

Moreover, even if trial counsel believed such comments were objectionable, there are possible

reasons why counsel may have decided not to object, including wanting to avoid appearing as

though he was attempting to hide evidence that would eventually be presented to the jury. In the

absence of anything in the record to show the tactics or strategic reasoning of counsel, we cannot

conclude counsel’s performance was deficient in this instance.

                                                10
               Appellant’s final allegation of deficient performance involves trial counsel’s

failure to object to evidence regarding appellant’s failure to take a polygraph examination. The

record reflects that evidence concerning a polygraph first arose in the audio recording of

appellant’s interview at his house when appellant asked the detective if there was “a test” he

could take. They then discussed the possibility of appellant taking a polygraph test. At the end

of the conversation, appellant again brought up taking a polygraph test and asked the detective if

he was going to set one up for him. The detective agreed to do so. The subsequently admitted

video recording of the detective’s interview with appellant after his arrest presented further

evidence concerning the polygraph. At the beginning of the interview, appellant asked the

detective if he was ever going to get a polygraph. At the end of the interview, appellant and the

detective again discussed appellant taking a polygraph, and the detective explained that he would

have to contact a polygraph examiner to schedule it. After both recordings were played for the

jury, the prosecutor asked the detective about further actions he had taken in the case. The

detective related that he had contacted a DPS agent to schedule the polygraph.              He then

explained that, ultimately, appellant chose not to take the polygraph because his lawyer advised

him not to.

               “It has long been the rule in this state that references to a polygraph test, or to its

results, are inadmissible for all purposes.” Martinez v. State, 272 S.W.3d 615, 626 (Tex. Crim.

App. 2008); see Nesbit v. State, 227 S.W.3d 64, 66 (Tex. Crim. App. 2007) (“Neither the results

of a polygraph test nor the ‘fact’ of failing a polygraph test are admissible in a Texas criminal

proceeding.”). “Regardless of whether the case involves the results of a polygraph test or a

defendant’s willingness to take a polygraph test, evidence of either will result in the same

problem: the fact finder will speculate about its outcome or a witness or defendant’s position will

                                                 11
be bolstered.” Ex parte Huddlestun, 505 S.W.3d 646, 664 (Tex. App.—Texarkana 2016, pet.

ref’d). Therefore, it is generally error to allow the introduction of evidence of polygraph results

or a defendant’s willingness to submit to a polygraph.              Requena-Castaneda v. State,

No. 10-17-00125-CR, 2018 WL 4925774, at *4 (Tex. App.—Waco Oct. 10, 2018, no

pet.) (mem. op., not designated for publication) (citing Tennard v. State, 802 S.W.2d 678,

684 (Tex. Crim. App. 1990)); Martinez v. State, No. 08-14-00242-CR, 2018 WL 2328242, at *2

(Tex. App.—El Paso May 23, 2018) (not designated for publication), cert. denied,

139 S. Ct. 1196 (2019).

               However, allowing the introduction of polygraph evidence does not constitute

deficient performance by trial counsel as a matter of law. Ex parte Bryant, 448 S.W.3d 29, 40

(Tex. Crim. App. 2014); see Martines v. State, 371 S.W.3d 232, 250 (Tex. App.—Houston [1st

Dist.] 2011, no pet.) (“The mere mention of a polygraph examination does not, however,

automatically constitute reversible error, even if the results of the exam are revealed.”). Instead,

the Court of Criminal Appeals has recognized that, “although the introduction of polygraph

evidence almost always falls below an objective standard of reasonableness because most

attorneys will have no reasonable strategy in allowing the introduction of such evidence,

[appellate courts] cannot categorically exclude the possibility that a trial attorney, under certain

circumstances, could use the admission of polygraph evidence to his client’s favor.” Bryant,

448 S.W.3d at 40.

               Here, the record is devoid of any information about trial counsel’s reason for

allowing the introduction of the complained-of polygraph evidence. Thus, we cannot discern

what counsel’s strategy was or whether it was a reasonable strategy under these circumstances—

that is, whether it was reasonable to attempt to use the admission of the evidence to somehow

                                                12
benefit appellant. Appellant’s arguments in his brief would have us apply the categorical rule

that the Court of Criminal Appeals has rejected. See Bryant, 448 S.W.3d at 40. We decline to

do so, particularly on the limited record in this case. See Mata v. State, 226 S.W.3d 425, 431

(Tex. Crim. App. 2007) (“[T]he fact remains that the appellate record is still silent as to why trial

counsel failed to so object. Therefore, the appellant has failed to rebut the presumption that trial

counsel’s decision was in some way—be it conceivable or not—reasonable.”); see, e.g., Shaw

v. State, No. 03-08-00506-CR, 2009 WL 1896068, at *13 (Tex. App.—Austin July 3, 2009, no

pet.) (mem. op., not designated for publication) (concluding that appellant failed to overcome

presumption that attorney’s conduct was reasonable professional assistance where record was

silent as to why trial counsel failed to take complained-of certain action).

               The record before this Court is not sufficiently developed to allow us to evaluate

the purported failures of trial counsel to act because “[n]either [his] counsel nor the State have

been given an opportunity to respond to” the claims of ineffectiveness.             See Menefield,

363 S.W.3d at 593. Appellant’s trial attorney was not afforded an opportunity to explain his

reasons for the complained-of conduct. The record is silent as to whether there were strategic

reasons for counsel’s conduct or what the particular strategies were. Appellant’s assertion that

there was no conceivable trial strategy for the alleged failures is mere speculation.          Such

speculation does not constitute a demonstration, founded in the record, that no reasonable trial

strategy existed. See Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App. 2013) (“[C]ounsel’s

alleged deficiency must be affirmatively demonstrated in the trial record.”); Lopez v. State,

343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (“[C]ounsel’s deficiency must be affirmatively

demonstrated in the trial record; the court must not engage in retrospective speculation.”).



                                                 13
               Absent record evidence regarding counsel’s strategy or reasoning, we will

presume he exercised reasonable professional judgment. See Hill v. State, 303 S.W.3d 863, 879

(Tex. App.—Fort Worth 2009, pet. ref’d); Poole v. State, 974 S.W.2d 892, 902 (Tex. App.—

Austin 1998, pet. ref’d); see also Lopez, 343 S.W.3d at 143. Appellant has failed to rebut the

strong presumption of reasonable assistance because without explanation for trial counsel’s

decisions, the complained-of conduct does not compel a conclusion that his performance was

deficient. We cannot say that “no reasonable trial strategy could justify” or explain his decision

to engage in the complained-of conduct. See Lopez, 343 S.W.3d at 143. Nor can we conclude

that his conduct was “so outrageous that no competent attorney would have engaged in it.” See

Menefield, 363 S.W.3d at 592; see also Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.

2012) (“The mere fact that another attorney might have pursued a different tactic at trial does not

suffice to prove a claim of ineffective assistance of counsel.”).

               Furthermore, the right to effective assistance is not a guarantee of errorless or

perfect assistance. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Cox

v. State, No. 03-12-00751-CR, 2014 WL 4362952, at *2 (Tex. App.—Austin Aug. 26, 2014, no

pet.) (mem. op., not designated for publication); see Frangias v. State, 450 S.W.3d 125, 136

(Tex. Crim. App. 2013) (“an accused is not entitled to representation that is wholly errorless”);

Lopez, 343 S.W.3d at 142 (“the right does not provide a right to errorless counsel”). Even if an

appellant shows that particular errors of counsel were unreasonable, he must further show that

they actually had an adverse effect on the defense. Strickland, 466 U.S. at 693–95; Villalobos

v. State, No. 03-13-00687-CR, 2015 WL 5118369, at *2 (Tex. App.—Austin Aug. 26, 2015, pet.

ref’d) (mem. op., not designated for publication); Cochran v. State, 78 S.W.3d 20, 24 (Tex.

App.—Tyler 2002, no pet.); see Strickland, 466 U.S. at 691 (“An error by counsel, even if

                                                 14
professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.”). It is not sufficient that a defendant

show, with the benefit of hindsight, that his counsel’s actions or omissions during trial were of

questionable competence. Lopez, 343 S.W.3d at 142–43. Further, merely showing that the

errors had some conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at

693; Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Instead, he must prove

that counsel’s errors, judged by the totality of the representation—not by isolated instances of

error or by a portion of the trial—denied him a fair trial. Strickland, 466 U.S. at 695.

               In his argument regarding prejudice resulting from counsel’s failure to object to

the State’s opening statement and failure to request an article 38.37 hearing, appellant argues


       Nothing could have harmed the Appellant more than evidence that he had
       perpetrated acts against another child. To simply allow the State to present such
       evidence without ever exercising the Appellant’s statutory right to a hearing
       violates his most fundamental Constitutional right to a fair trial. Failure of his
       trial attorney to timely file the motions in limine, to object to the State’s
       presentation of such extraneous act evidence, or to make a request for a motion
       for new trial caused Appellant profound harm, in that it ensured that the jury
       would hear this evidence no matter what—beginning with opening statement.


However, as we noted, the trial court ultimately conducted the requisite article 38.37 hearing.

See Tex. Code Crim. Proc. art. 38.37, § 2-a(2). Further, the record supports the trial court’s

determination that the evidence of appellant’s sexual abuse of K.J. would be adequate to support

a jury finding that appellant had committed the separate sexual offenses beyond a reasonable

doubt. See id. art. 38.37, § 2-a(1). Thus, the evidence was properly admitted under article 38.37,

and, it logically follows, that the trial court would have deemed it admissible—and admitted it—

even had the trial court made its determination earlier or if counsel had objected to the


                                                 15
challenged comments in the State’s opening statement. The prosecutor anticipated the admission

of the evidence in the State’s opening statement, and the anticipation was borne out. Arguably,

any prejudicial effect of the remarks was eliminated by the admission of the evidence. See

Hullaby v. State, 911 S.W.2d 921, 928 (Tex. App.—Fort Worth 1995, pet. ref’d) (observing that

once objectionable evidence is presented to jury, “it removes any error there may have been in

the making of the opening statement” that referred to such evidence).              Appellant has not

demonstrated that, but for counsel’s failure to request the hearing earlier or failure to object to

the prosecutor’s comments, the outcome of the trial would have been different.

                Concerning counsel’s failure to object to the polygraph evidence, appellant argues

that the “result of this exchange in front of the jury . . . was to impress upon [the jury] the guilt of

the Appellant in a way that was so highly prejudicial that he could not overcome it.” He

maintains, “There was nothing before the jury other than the Appellant’s refusal to take the

[polygraph] test, giving the clear impression that he did so because he was guilty.                The

substantial harm to the Appellant was absolute and completely uncured, unaddressed by his

counsel or the court in any way.” However, the evidence reflects that it was appellant who

initially sought and then continued to pursue taking a polygraph examination during the

investigation. The evidence further reflects that, once the polygraph was scheduled, appellant

was undecided about taking it until he ultimately declined to do so upon the advice of counsel.

We are not persuaded that desiring to take a polygraph, discussions about scheduling it, or the

ultimate decision not to take it—which the record explicitly reflects was a decision made on the

advice of his counsel—necessarily conveyed the “clear impression” that appellant “refused” to

take a polygraph “because he was guilty.”



                                                  16
               Given the record here, appellant has failed to show that trial counsel’s failures to

object—to the prosecutor’s opening statement, to the court’s failure to timely conduct the

requisite article 38.37 hearing, or to the polygraph evidence—actually had an adverse effect on

the defense. See Strickland, 466 U.S. at 693–95. The record contains ample evidence that

appellant engaged in the alleged sexual acts with L.J.—including appellant’s admissions that he

penetrated the child’s mouth with his penis, L.J.’s testimony describing appellant penetrating her

mouth and anus with his penis, L.J.’s outcry to her mother disclosing that appellant made her

perform oral sex on him, L.J.’s statements to the SANE indicating that appellant penetrated her

anus with his penis and finger, and medical evidence that corroborated L.J.’s account of

appellant penetrating her anus. Moreover, we must look to the totality of the representation in

gauging the adequacy of counsel’s performance. Frangias, 450 S.W.3d at 136; see Martinez,

330 S.W.3d at 901 (“The reviewing court must look to the totality of the representation, and its

decision must be based on the facts of the particular case, viewed at the time of counsel’s

conduct so as to eliminate hindsight bias.” (citing Strickland, 466 U.S. at 690)).

               Before trial, appellant’s trial counsel filed several pretrial motions, including a

request for disclosure of the State’s expert witnesses, a motion seeking to suppress L.J.’s

statements to the SANE, and several motions for continuance in order to obtain a sex offender

risk assessment. During voir dire, trial counsel questioned the members of the jury panel

regarding their ability to serve on the jury. Counsel explained the function of the jury, including

evaluating witness credibility generally and assessing the credibility of police officers and

children in particular.   Counsel questioned the venire about prior investigative experience,

medical experience, and experience dealing with sexually abused children.            Counsel also

discussed the notion of false accusations and the legal concept of proof “beyond a reasonable

                                                 17
doubt.” At the end of jury selection, counsel successfully removed disqualified panel members

by agreeing with several of the State’s challenges for cause and, the record indicates, counsel

proficiently exercised peremptory challenges against panel members potentially unfavorable to

the defense.

               Further, the record shows that, throughout trial, counsel ably presented and

developed the defense theories, which involved attacking the credibility of L.J. and her sister,

challenging the police investigation, contesting the medical evidence, and presenting an

alternative explanation for the girls’ sexual knowledge. In support of these defenses, trial

counsel, through cross examination of the State’s witnesses, emphasized the weaknesses in the

State’s case; emphasized the flawed police investigation, highlighting the biased and incomplete

nature of the detective’s investigation and criticizing the detective’s investigative protocol and

interrogation techniques; challenged the SANE’s medical opinion and suggested alternative

causes for the corroborating medical evidence; stressed the lack of corroborating evidence in the

form of behavioral signs of abuse or other indications of trauma; and presented evidence of an

alternative source for the girls’ sexual knowledge—the pornography on appellant’s cell phone

that the girls had access to. Counsel also attempted to minimize appellant’s incriminating

statements to the detective, observing that appellant only admitted to part of the alleged

criminal conduct.

               During closing argument, trial counsel discussed the State’s failure to meet its

burden of proof; the weakness of the medical evidence; the plausibility of an alternate source for

the girls’ sexual knowledge; the limited nature of appellant’s incriminating statements; and the

bias and credibility (or lack thereof) of the State’s witnesses, including the inconsistencies and

inaccuracies in the girls’ trial testimony and prior statements. The fact that trial counsel’s

                                               18
strategies ultimately proved unsuccessful—or that appellate counsel disagrees with them—does

not render trial counsel’s assistance ineffective.

               Finally, during the punishment phase, trial counsel presented favorable character

evidence as well as mitigating evidence, including appellant’s lack of a prior criminal history.

Though appellant did not receive the minimum sentence requested, counsel successfully obtained

a lesser sentence than the State’s recommendation.

               On the record before us, we conclude that appellant has failed to demonstrate

constitutionally deficient performance on the part of his trial counsel or that he suffered prejudice

because of the alleged errors of counsel. Thus, he has not shown himself entitled to reversal

based on ineffective assistance of counsel. We overrule appellant’s first point of error.


                                   Admission of SANE Reports

               During the SANE’s testimony at trial, the State offered the nurse’s reports relating

to the sexual assault exams conducted on the girls. When the State offered State’s Exhibit #6,

the SANE report for L.J.’s exam, appellant’s counsel expressed that he “under[stood] the

medical diagnosis exception” but objected “on the basis that it contains other aspects of hearsay”

and complained that “because the witness has already testified to receiving other information

from other sources, it’s undocumented and actually has hearsay within hearsay.” The following

exchange ensued:


       TRIAL COURT:            Why don’t we wait until the next break and then we can
                               point those things out possibly or if you think you need to
                               ask some questions regarding the source of that
                               information. I don’t know. I haven’t seen it. I don’t know
                               precisely what ‐‐

       COUNSEL:                Right.

                                                     19
       TRIAL COURT:              ‐‐ contents you may be referring to that might be hearsay.

       COUNSEL:                  Particularly with respect to medical history of the child,
                                 that is coming from another source that ‐‐

       TRIAL COURT:              Well, I’m saying I’ll have to look at them. But if you think
                                 there are some questions, then I’ll allow you to take her on
                                 voir dire or we could do that possibly at a break, too.

       COUNSEL:                  We can do that.

       TRIAL COURT:              Okay. I’ll just hold off on the admission at this time.


The prosecutor then began questioning the nurse about the sexual assault exam that she

conducted on K.J. Appellant’s counsel objected to the admission of the extraneous sexual

offense evidence. The trial court then conducted the requisite hearing pursuant to article 38.37.

After the court made its ruling regarding the admissibility of the extraneous sexual offense

evidence under article 38.37, the court asked defense counsel, “But as to the admissibility of that

exhibit that’s been marked regarding L.J.’s exam report, you had some other concerns?”

Counsel indicated that he did and questioned the nurse about her reports:


       Q.      All right. [Sexual Assault Nurse Examiner], so you indicate that you
               received the medical history from the mother for both children; correct?

       A.      That’s correct.

       Q.      And that would have been contained, which ‐‐ which do you have in front
               of you right now?

       A.      I ‐‐ the ‐‐ the history that I obtained from her is on page six of ten.

       Q.      Are you talking about [L.J.] or ]K.J.]’s?

       A.      I’m looking at [L.J.]’s.

       Q.      [L.J.]’s. All right?

                                                   20
       A.     I can look at [K.J.]’s, too, if you would like me to.

       Q.     No. No. That’s ‐‐ let’s focus on one at a time because we’ve already got
              that one to work with. And specifically, if you’ll ‐‐ let’s go to your page, I
              guess, six or page seven of ten, the step two, the body surface diagram
              descriptions.


A discussion concerning the nurse’s finding of “redness with irregular shaping” reflected on the

anus depiction on the body diagram followed, which included questions about literature on anal

assault and information obtained from L.J.’s mother concerning constipation issues. During the

questioning, counsel referenced two pages of the report: one of the body-diagram pages and one

of the pages containing medical history questions. Counsel also referred to another page of the

report, asking the nurse about the written comments on that page:


       Q.     Okay. Now with respect to your report on [K.J.] ‐‐ and by the way ‐‐
              excuse me, before I move to [K.J.]’s, on your page two of ten on [L.J.]’s,
              Mother indicates to you, at least according to your report, that ‐‐ there is
              quotation marks as to what [L.J.] said. In your sexual history given by
              [L.J.], what [L.J.] is reporting to have said in quotation marks is he makes
              us suck his penis.

       A.     Well, that’s part of it.

       Q.     Yes. Mother reports, he makes me and [K.J.] suck his wiener. Your
              report indicates ‐‐ is your sexual history given by [L.J.] a verbatim report?

       A.     It is verbatim as much as possible. And it’s ‐‐ it’s not unusual for a child
              to use two different names for a body part.


Counsel then questioned the nurse about the body diagram in the SANE report of K.J.’s exam.

They discuss the nurse’s finding of discoloration marks on various parts of K.J.’s body, which

were related to a hereditary skin condition. The SANE indicated that she was not familiar with

the condition at the time but had since researched it. Counsel also asked about the finding of an

                                                21
“irregularly shaped opening” of K.J.’s anus, referring the nurse to the page of the body diagram

with the anus depiction.

               After counsel finished questioning the nurse, the following exchange occurred

between the trial court and appellant’s counsel:


       TRIAL COURT:           But all of the information that you were concerned about in
                              the exhibit that’s been marked currently about history,7 as
                              I’m understanding it, either came from the child or the
                              mother?

       COUNSEL:               Yes, sir. That’s what I understand.

       TRIAL COURT:           And it’s all for the purposes of just medical history,
                              diagnosis, prognosis?

       COUNSEL:               Right.

       TRIAL COURT:           The objection is overruled and it’s admitted.


Subsequently, when the State offered the SANE report for K.J.’s SANE exam, State’s Exhibit

#7, appellant objected as follows:


       Renew the former objections, Your Honor, as to ‐‐ as to not only the hearsay
       within hearsay, but also under Rules 404 and 405(b). Rules of evidence in 403
       run the risk of ‐‐ probative value is not ‐‐ the prejudicial value outweighs the
       probative value and ‐‐ as well as the confusion of the issues before the jury with
       respect to the indicted case that we are here on.


The trial court overruled the objections and admitted the exhibit.

               In his second point of error, appellant argues that the trial court erred in admitting

the SANE reports, raising several claims. Concerning both exhibits, he asserts that the reports


       7
         The record reflects that the marked exhibit in question was State’s Exhibit #6, the
SANE report related to L.J.’s exam.
                                                   22
contained inadmissible hearsay and “significant portions of information that were extraneous and

not offered for the purpose of medical diagnosis or treatment.” Concerning State’s Exhibit #7,

he further complains that the trial court failed to conduct a Rule 403 balancing test.

               We must first address whether appellant properly preserved error, if any, in the

court below concerning the various complaints he now raises on appeal. See Reynolds v. State,

423 S.W.3d 377, 383 (Tex. Crim. App. 2014); Blackshear v. State, 385 S.W.3d 589, 590 (Tex.

Crim. App. 2012); Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009); Haley v. State,

173 S.W.3d 510, 515 (Tex. Crim. App. 2005). We conclude that, as to some of the complaints

raised in his second point of error, he did not.

               To preserve error for appellate review, a party must timely object and state the

grounds for the objection with enough specificity to make the trial judge aware of the complaint,

unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A);

see Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016); Yazdchi v. State,

428 S.W.3d 831, 844 (Tex. Crim. App. 2014). While no “magic words” or citation to specific

statutes or rules is required to preserve a complaint for appeal, a party must convey the substance

of the complaint to the trial court clearly enough to provide the judge and the opposing party an

opportunity to address and, if necessary, correct the purported error.         Ex parte Marascio,

471 S.W.3d 832, 842 (Tex. Crim. App. 2015); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim.

App. 2011). The record must make it clear that both the trial court and the opposing party

understood the legal basis for the complaint. Thomas v. State, 408 S.W.3d 877, 884 (Tex. Crim.

App. 2013); see Pena, 353 S.W.3d at 807. Further, the complaint on appeal must comport with

the specific objection made at trial or error has not been preserved. Thomas, 505 S.W.3d at 924;



                                                   23
Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996); see also Yazdchi, 428 S.W.3d

at 844.

               In addition, when an exhibit contains both admissible and inadmissible material,

the objection to the exhibit must specifically refer to the challenged material to apprise the trial

court of the exact objection. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995);

Human v. State, 749 S.W.2d 832, 838 (Tex. Crim. App. 1988); Brown v. State, 692 S.W.2d 497,

501 (Tex. Crim. App. 1985); see George E. Dix & John M. Schmolesky, 43A Texas Practice:

Criminal Practice and Procedure § 53:74, at 1049 (3d ed. 2011) (“If a unit of evidence—such as

an exhibit—contains both admissible and inadmissible parts, an objection to the inadmissible

portion must specifically refer to that part or portion of the evidence.”). A trial court is not

obligated to search through an exhibit and segregate the admissible evidence from the

inadmissible. See Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009); Jones

v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992), overruled on other grounds by Maxwell

v. State, 48 S.W.3d 196, 198 (Tex. Crim. App. 2001). If the objecting party does not specify

which part of the exhibit is not admissible, any asserted error in admitting the evidence is not

preserved for review. Whitaker, 286 S.W.3d at 369; Sonnier, 913 S.W.2d at 518; Human,

749 S.W.2d at 838; Brown, 692 S.W.2d at 501; Wintters v. State, 616 S.W.2d 197, 202 (Tex.

Crim. App. 1981); Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. 1980) (op.

on reh’g).

               At trial, appellant objected to both exhibits claiming that the SANE reports

contained hearsay within hearsay, although counsel conceded that the reports—including the

mother’s and the child’s statements to the nurse—fell within the hearsay exception for medical



                                                24
diagnosis or treatment.8 The objection indicated that, beyond the applicable medical diagnosis or

treatment exception, portions of the exhibit were still inadmissible hearsay within hearsay.

However, appellant did not specifically identify any particular statements in either report that

were, according to appellant, inadmissible hearsay within hearsay.         Although he reviewed

various portions of the reports during his voir dire of the nurse, he never directed the trial court

to the specific portions of the reports that he maintained were inadmissible. At no time—either

at trial or on appeal—has appellant specifically identified the objectionable portions of

the SANE reports that appellant maintains were hearsay within hearsay.             See Hernandez,

599 S.W.2d at 617 (“While it might be conceded that appellant’s objection sufficiently stated

grounds for the objection, it did not identify what was objected to.”); see also Barnes v. State,

876 S.W.2d 316, 329 (Tex. Crim. App. 1994) (“The trial court was not required, in the face of a

global hearsay objection, to cull through the [exhibit] and exclude whatever particular matters he

may find there that meet that description.”). Consequently, appellant failed to preserve error, if

any, in the trial court’s admission of the challenged exhibits over his hearsay within hearsay

objection. See Tex. R. App. P. 33.1(a); see, e.g., Whitaker, 286 S.W.3d at 369 (holding trial

objections were insufficient to preserve error in admission of portions of audiotapes

because objections did not specifically point out which portions of tapes were allegedly

inadmissible); Rosales v. State, No. 03-15-00735-CR, 2017 WL 5247497, at *4 (Tex. App.—

Austin Nov. 10, 2017, pet. ref’d) (mem. op., not designated for publication) (concluding that

appellant failed to preserve error concerning admission of exhibit containing handwritten notes

       8
          When asserting his hearsay-within-hearsay objection to State’s Exhibit #6, appellant’s
counsel expressed that he “under[stood] the medical diagnosis exception.” Subsequently, after
questioning the SANE on voir dire, he agreed with the trial court that the information that “[he
was] concerned about” “either came from the child or the mother” and was “all for the purposes
of just medical history, diagnosis, prognosis.”
                                                25
of counseling sessions because appellant made global hearsay objection to entire exhibit without

specifying statements that he found to be objectionable); Wilkinson v. State, 523 S.W.3d 818,

826–27 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (concluding that appellant failed to

preserve hearsay complaint for appellate review because he objected to entire exhibit containing

Facebook posts and “did not highlight specific objectionable statements for the trial court”).

               Regarding his contention that the exhibits were inadmissible because portions of

the exhibits contained information, statements, or extraneous acts that “should not have been

admitted because they did not meet the hearsay exception[] for medical diagnosis or treatment

under Rule 803(4),” see Tex. R. Evid. 803(4)(A) (establishing hearsay exception for statement

that “is made for—and is reasonably pertinent to—medical diagnosis or treatment”); Taylor

v. State, 268 S.W.3d 571, 590–91 (Tex. Crim. App. 2008) (discussing pertinence component of

medical diagnosis or treatment exception), the record reflects that this complaint is not preserved

for appellate review for several reasons. First, appellant did not object on this ground at trial. At

no point during trial did appellant assert that the exhibits, or any portion thereof, were not

admissible because the SANE reports, or portions therein, did not meet the medical diagnosis or

treatment hearsay exception. In fact, as we noted previously, the record reflects that counsel

agreed that the medical diagnosis or treatment exception applied. Second, because appellant

failed to object on this ground at trial, he also failed to specify any particular statements in either

report that were, as he now contends, inadmissible hearsay because they were not made for the

purpose of medical diagnosis or treatment.

               Concerning his assertion that the exhibits were inadmissible because the reports

contained “extraneous acts”—the sexual acts perpetrated against K.J., who was not the indicted

victim—we note that appellant once again failed to specify any particular portions of State’s

                                                  26
Exhibit #6, the SANE report relating to L.J.’s exam, that were inadmissible because they

referenced extraneous sexual offenses. Moreover, with respect to both exhibits and any portions

describing extraneous sexual acts that appellant perpetrated against K.J., evidence of such acts

was, as previously discussed, admissible under section 2(b) of article 38.37 of the Code of

Criminal Procedure. As we noted earlier, that statute explicitly allows evidence that a defendant

has committed one of the enumerated child sexual abuse offenses against a child other than the

victim of the charged offense to be admitted “for any bearing the evidence has on relevant

matters, including the character of the defendant and acts performed in conformity with that

character.” Tex. Code Crim. Proc. art. 38.37, § 2(a)(1), (b). As the trial court observed, nothing

in the statute limits the type of evidence regarding the separate offense—that is, nothing in the

statute indicates that only testimony rather than documentary evidence is admissible under the

statute. See Evidence, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “evidence” as

“[s]omething (including testimony, documents, and tangible objects) that tends to prove or

disprove the existence of an alleged fact; anything presented to the senses and offered to prove

the existence or nonexistence of a fact.”). Thus, the evidence of the extraneous sexual offenses

that appellant perpetrated against K.J.—as documented in the SANE reports—was admissible.

               Appellant contends that even if the SANE reports were admissible under article

38.37, “this still does not excuse the evidence from being subject to the rules of evidence.”

However, article 38.37 unambiguously states that such evidence of extraneous sexual offenses is

admissible under the statute “[n]otwithstanding Rules 404 and 405 [of the] Texas Rules of

Evidence.” Id. art. 38.37, § 2(b); see Tex. R. Evid. 404 (governing admissibility of character

evidence and extraneous bad acts); Tex. R. Evid. 405 (establishing methods of proving

character); see also Robisheaux v. State, 483 S.W.3d 205, 210 (Tex. App.—Austin 2016, pet.

                                               27
ref’d) (noting that article 38.37 section 2(b) allows admission of separate sexual offense evidence

“[n]otwithstanding Rules 404 and 405”). Additionally, to the extent that such evidence in the

exhibits was in the form of hearsay, the statements were admissible under exceptions to the

hearsay rule. See Tex. R. Evid. 803(4)(A) (establishing exception to hearsay rule for statements

made for medical diagnosis or treatment), 803(6) (establishing exception to hearsay rule for

business records).

               Finally, appellant complains in this point of error that the trial court failed to

conduct the requisite balancing test under Rule 403 before admitting State’s Exhibit #7, the

SANE report relating to K.J.’s exam. Once a Rule 403 objection is asserted, the trial court must

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

Crim. App. 1997); Stevens v. State, No. 03-14-00483-CR, 2016 WL 3752915, at *9 (Tex.

App.—Austin July 7, 2016, no pet.) (mem. op., not designated for publication). However, Rule

403 does not require that the balancing test be performed on the record. Distefano v. State,

532 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Belcher v. State,

474 S.W.3d 840, 848 (Tex. App.—Tyler 2015, no pet.); Hitt v. State, 53 S.W.3d 697, 706 (Tex.

App.—Austin 2001, pet. ref’d); see Perez v. State, 562 S.W.3d 676, 688 (Tex. App.—Fort Worth

2018, pet. ref’d) (recognizing that “[c]ourts have uniformly held that a [R]ule 403 analysis does

not have to be conducted on the record”). In overruling a Rule 403 objection, the trial court is

assumed to have applied a Rule 403 balancing test and determined the evidence was admissible.

Distefano, 532 S.W.3d at 31; Belcher, 474 S.W.3d at 848; Hitt, 53 S.W.3d at 706; see Williams,

958 S.W.2d at 195.

               The record here reflects that the trial court entertained appellant’s 403 objection

and made its ruling, so we assume the court properly performed a balancing test even in the

                                                28
absence of a recitation on the record. See Williams, 958 S.W.2d at 195 (“[A] judge is presumed

to engage in the required balancing test once Rule 403 is invoked and we refuse to hold that the

silence of the record implies otherwise.”); Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim.

App. 1997) (“Although appellant asserts that the trial court did not perform the balancing test,

the trial court did not explicitly refuse to do the test, it simply overruled appellant’s Rule

403 objections.    We find nothing in the record to indicate that the trial court did not

perform a balancing test, albeit a cursory one.”); see Simmang v. State, No. 03-11-00455-CR,

2013 WL 5272919, at *7 n.17 (Tex. App.—Austin Sept. 11, 2013, pet. ref’d) (mem. op., not

designated for publication) (“[T]he trial court is not required to perform the Rule 403 balancing

test on the record, and when the record is silent, appellate courts must presume that the trial court

performed the required balancing test.”).

               For the above reasons, we conclude that the trial court did not abuse its discretion

in admitting either of the SANE reports. Accordingly, we overrule appellant’s second point of

error complaining about the trial court’s admission of State’s Exhibits #6 and #7.


                                  Error in Written Judgments

               On review of the record, we observe that the written judgments of conviction in

this case contain non-reversible clerical error. Each of the judgments states that the “Statute for

Offense” is “22.021(f)(1) Penal Code.” This statutory provision establishes that the minimum

term of imprisonment for aggravated sexual assault of a child is increased to 25 years if the child

victim is younger than six years of age, which is the case here. However, the applicable statutory

provisions for the offenses of aggravated sexual assault of a child for which appellant was




                                                 29
convicted also include section 22.021(a)(1)(B) of the Penal Code, the statutory provision that

defines the offense of aggravated sexual assault of a child.

               This Court has authority to modify incorrect judgments when the necessary

information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,

27–28 (Tex. Crim. App. 1993). Accordingly, we modify the judgments of conviction to reflect

that the “Statute for Offense” is “22.021(a)(1)(B), (f)(1) Penal Code.”


                                         CONCLUSION

               Having concluded that appellant failed to demonstrate that he received ineffective

assistance of counsel and that the trial court did not abuse its discretion in admitting the SANE

reports but having found non-reversible clerical error in the written judgments of conviction, we

modify the trial court’s judgments as described above and affirm the trial court’s judgments of

conviction as modified.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Kelly

Modified and, as Modified, Affirmed

Filed: June 19, 2019

Do Not Publish




                                                30
