AFFIRMED and Opinion Filed April 14, 2020




                                    S  In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-19-00174-CR

                   JON MATTHEW WOODLAND, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee

               On Appeal from the 219th Judicial District Court
                            Collin County, Texas
                   Trial Court Cause No. 219-81351-2018

                        MEMORANDUM OPINION
                   Before Justices Bridges, Molberg, and Carlyle
                            Opinion by Justice Bridges
      A jury convicted appellant Jon Matthew Woodland of continuous sexual

assault of a child under the age of fourteen and sentenced him to life in prison. In

three issues, he argues the trial court abused its discretion by allowing evidence of a

prior federal conviction and another extraneous offense because their probative

value was substantially outweighed by unfair prejudice. He further alleges he

received ineffective assistance of counsel. We affirm.

                                       Background
      Appellant and Mother married in July 18, 2011. Mother had one daughter,

Complainant, by a prior marriage. Complainant thought of appellant as a father.

Appellant and Mother admitted the marriage had its troubles, but they continued to

work on the relationship.

      Mother had an extremely close relationship with her mother (Complainant’s

Grandmother), and Mother and Complainant spent most weekends at Grandmother’s

house. Appellant occupied his weekends with golf and hanging out with friends.

He also began posting ads on Craigslist expressing his desire to engage in “mother-

daughter” sexual fantasies.

      Around the time Complainant was four or five years old, Mother noticed

Complainant touching herself and sometimes engaging in other questionable

behavior. While her behavior raised some concerns, Mother rationalized most of it

as age-appropriate behavior based on her experience working with preschoolers.

Grandmother also noticed her behavior but worried more when Complainant, who

was generally a happy child, sometimes acted out in anger.

      In 2016, Homeland Security special agent Heidi Browder worked undercover

responding to online ads with key words such as “taboo, kinky, or family fun.”

When answering ads, she told the individual she had an open sexual relationship

with her fourteen-year-old daughter. Sometimes people had no further interaction

with her and other times, someone continued discussions with her. Her goal was to



                                       –2–
see if the person articulated a desire to have sex with the child. If the person

expressed such a desire, she would arrange a meeting and then arrest the person.

      In March 2016, appellant posted he was “looking for kinky mom and daughter

looking for role play and fun. Attractive 40-year-old white male in Plano. Can host

or you host, even hotter. Let’s discuss the possibilities.” Agent Browder, using the

name Allison, responded to appellant’s online ad. Appellant said he was extremely

interested in meeting her and her fourteen-year-old daughter, Abby. Appellant and

Allison continued communicating and eventually, appellant asked to talk with Abby.

Appellant then emailed with Abby for several months and expressed his desire to

have sex with her. They agreed to meet in Laredo on June 12, 2016, during the time

appellant knew Mother, Grandmother, and Complainant were going to Disney

World.

      When appellant arrived in Laredo, federal officers arrested him. He was

charged with coercion and enticement of a minor. He called Mother and told her

about his arrest. He pleaded guilty to the charges.

      When Mother returned from Florida, she was “cautiously supportive” of

appellant, but cut off communication within the month. CPS contacted the family

and interviewed Complainant based on an anonymous report. She did not make an

outcry at that time. Eventually, Mother filed for divorce and she, along with

Complainant, moved in with Grandmother.



                                        –3–
      In September 2016, Complainant confided in Grandmother that she had a

“really big secret.” She told her that appellant had been touching her private parts.

Complainant told Mother the following day that appellant had touched her

inappropriately many times at night in different places around their house. Mother

subsequently contacted Plano police. Complainant was forensically interviewed on

October 11, 2016 where she again described the abuse.

      Appellant was arrested and pleaded not guilty to continuous sexual assault of

a child under the age of fourteen. During trial, the jury heard testimony from Agent

Browder, Mother, Grandmother, Complainant, and other individuals involved in the

investigation. Appellant also testified in his own defense. He admitted taking

responsibility for the federal conviction and receiving fifteen years’ imprisonment.

He testified he pleaded guilty to the federal charges because he knew what he did

was wrong, but he was fighting these charges because he was innocent. Appellant

emphasized he was the only one from the beginning that had not changed his story,

unlike Complainant.

      The jury convicted appellant of continuous sexual assault of a child under the

age of fourteen and sentenced him to life in prison.

                      Admission of Prior Federal Conviction

      In his first issue, appellant argues the trial court abused its discretion by

allowing evidence of his felony conviction for solicitation of a minor because the

probative value was substantially outweighed by unfair prejudice.         The State
                                        –4–
responds the prior federal conviction for enticement and coercion of a minor had

significant probative value and was not unfairly prejudicial. Alternatively, the State

argues error, if any, was harmless.

      Generally, extraneous-offense evidence is not admissible to show that the

charged offense is consistent with the defendant’s character.         TEX. R. EVID.

403(b)(1).   However, article 38.37 of the Texas Code of Criminal Procedure

provides an exception to the general rule in prosecutions for certain sex offenses

against children, including the one charged here. See TEX. CODE CRIM. PROC. ANN.

art. 38.37, § 2(a)(1)(B). Under that statute, evidence of other sex crimes committed

by the defendant may be admitted “for any bearing the evidence has on relevant

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

with the character of the defendant.” Id. 38.37, § 2(b).

       “Whether extraneous offense evidence has relevance apart from character

conformity, as required by Rule 404(b), is a question for the trial court.” De La Paz

v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009) (quoting Moses v. State,

105 S.W.3d 622, 627 (Tex. Crim. App. 2003)). We review a trial court’s ruling on

the admissibility of extraneous offenses under an abuse-of-discretion standard. Id.;

see also Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). As long

as the court’s ruling is within the “zone of reasonable disagreement,” it will be

upheld. De La Paz, 279 S.W.3d at 344.



                                         –5–
      However, before such evidence is admitted, the trial court must still conduct

a balancing test under rule 403. See Belcher v. State, 474 S.W.3d 840, 847 (Tex.

App.—Tyler 2015, no pet.). Relevant evidence may be excluded under rule 403

only if its probative value is substantially outweighed by the danger of unfair

prejudice. Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet.

ref’d). Under rule 403, it is presumed that the probative value of relevant evidence

exceeds any danger of unfair prejudice. Id. The rule envisions exclusion of evidence

only when there is a “clear disparity between the degree of prejudice of the offered

evidence and its probative value.” Id.

      A trial court, when undertaking a rule 403 analysis, must balance what is

known as the Montgomery factors: (1) how compellingly the evidence serves to

make a fact of consequence more or less probable; (2) the potential the evidence has

to impress the jury “in some irrational but nevertheless indelible way”; (3) the time

the proponent needed to use in developing the evidence; and (4) the proponent’s

need for this evidence. Montgomery v. State, 810 S.W.2d 372, 389–90 (Tex. Crim.

App. 1991) (op. on reh’g).

      Because Rule 403 permits the exclusion of admittedly probative evidence, it

is a remedy that should be used sparingly, especially in “he said, she said” sexual-

molestation cases that must be resolved solely on the basis of the testimony of the

complainant and the defendant. Hammer v. State, 296 S.W.3d 555, 568–69 (Tex.

Crim. App. 2009).
                                         –6–
      Appellant argues that while the federal conviction may have been admissible

under article 38.37, it should have been excluded under rule 403. He claims the

factual differences in the two offenses did not “do anything to make the facts of the

current case more probable.” Further, he asserts the State had ample evidence

supporting the offense without his felony conviction. Because of the sensitive nature

of the case, appellant argues the admission of the federal conviction was the “very

definition” of unfair prejudice as its only purpose was to inflame the minds of the

jurors.

      We consider the Montgomery factors in turn. First, appellant was on trial for

sexually abusing his young step-daughter, and he testified in his own defense

denying the allegations thereby challenging Complainant’s credibility. The court of

criminal appeals has warned that excluding evidence under rule 403 in “he said, she

said cases” should be done “sparingly.”        See Hammer, 296 S.W.3d at 561.

Appellant’s federal conviction made it less probable that Complainant was lying

because the offenses had factual similarities. Appellant posted ads expressing his

desire to have sex with young girls and specifically indicating he was interested in

“daddy daughter play.” Here, appellant was charged with continuous sexual assault

of his stepdaughter. Thus, the extraneous evidence had probative value. See, e.g.,

Kimberlin v. State, No. 05-18-00018-CR, 2019 WL 1292471, at *4 (Tex. App.—

Dallas Mar. 21, 2019, no pet.) (mem. op., not designated for publication)

(concluding evidence that defendant asked another teenage girl to show her vagina
                                        –7–
showed his propensity to make sexual advances toward other teenage girls he knew

and was therefore probative of guilt).

      Although Agent Browder’s testimony was prejudicial to appellant’s case, like

almost all extraneous offense evidence regarding child sexual abuse, rule 403 does

not require a trial court to exclude otherwise relevant evidence when that evidence

is merely prejudicial. See Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App.

2013). Here, the charged offense was more egregious than the evidence of the

extraneous offense. Unlike the present case, appellant’s federal conviction was not

based on sexually assaulting a child. Thus, it is unlikely the prior conviction

impressed the jury “in some irrational but nevertheless indelible way.” Montgomery,

810 S.W.2d at 389.

      Admissible evidence can, however, become unfairly prejudicial by its sheer

volume. Id. Here, appellant focuses on the State calling Agent Browder as its first

witness, which he argues emphasized the federal conviction even more.            Her

testimony made up thirty of the 210 pages of transcript for the State’s case-in-chief

(roughly fifteen percent); however, the entire guilt-innocence phase encompassed

approximately three hundred pages.       Although the development of the prior

conviction took some time, we cannot conclude the length of Agent Browder’s

testimony, compared to the rest of the State’s evidence, weighs in favor of unfair

prejudice. See, e.g., Kimberlin, 2019 WL 1292471, at *4 (thirty-two pages of

testimony in a two-volume record did not result in unfair prejudice); Fisk v. State,
                                         –8–
510 S.W.3d 165, 175 (Tex. App.—San Antonio 2016) (concluding twenty-four

pages of extraneous offense testimony, which amounted to eighteen percent of the

total testimony, did not consume an inordinate amount of time), rev’d on other

grounds, 574 S.W.3d 917 (Tex. Crim. App. 2019).

      Finally, the jury received a limiting instruction likely remedying any danger

of it considering the federal conviction for an improper purpose. See Gaytan v. State,

331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d) (inclusion of limiting

instruction mitigated any improper influence of extraneous sexual acts and jury was

presumed to follow instruction).

      After considering the Montgomery factors, we cannot say there is a “clear

disparity” between the danger of unfair prejudice posed by evidence of his federal

conviction and its probative value. See Hammer, 296 S.W.3d at 568. Thus, the court

trial did not abuse its discretion by overruling appellant’s rule 403 objection.

Appellant’s first issue is overruled.

                         Admission of Extraneous Offense

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

allowing evidence of an unrelated, salacious Craigslist ad because its probative value

was substantially outweighed by unfair prejudice.

      We review a trial court’s ruling to admit evidence under an abuse of discretion

standard. See Apolinar, 155 S.W.3d at 186. A trial court abuses its discretion only



                                         –9–
when the decision lies outside the zone of reasonable disagreement. See Zuliani v.

State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

      An accused is entitled to be tried on the accusation made in the state’s pleading

and should not be tried for some collateral crime or for being a criminal generally.

Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972). Evidence of other

crimes committed by the accused may be admitted, however, where such evidence

is shown to be both material and relevant to a contested issue in the case. Id.

      However, as explained above, before such evidence is admitted, the trial court

must still conduct a balancing test under rule 403. See Belcher, 474 S.W.3d at 847.

A trial court, when undertaking a rule 403 analysis, must balance the Montgomery

factors. Montgomery, 810 S.W.2d at 389–90 (considering (1) how compellingly the

evidence serves to make a fact of consequence more or less probable; (2) the

potential the evidence has to impress the jury “in some irrational but nevertheless

indelible way”; (3) the time the proponent needed developing the evidence; and (4)

the proponent’s need for this evidence).

      Here, the State read a Craigslist ad from April 12, 2016 that further described

appellant’s sexual predilections. The State offered it after appellant minimized his

online interactions with Abby and argued he never did anything with a minor based

on a Craigslist ad. He testified in part, “It wasn’t real people. And they were

showing me people that weren’t actually a teenage girl. You saw the picture. The

picture looks like a much older person. Maybe that’s how I did it in my mind.”
                                        –10–
      Appellant contends he was unduly prejudiced because after the State read the

entire ad to the jury, the jury likely considered not only his guilt as to the offense at

issue but also for his “purported deviant sexual proclivities.” However, as explained

above, when cases such as these become a “he said, she said” situation, exclusion of

such evidence under rule 403 should be done so “sparingly.” See Hammer, 296

S.W.3d at 568. Further, although appellant did not sexually assault a child he met

through an online ad, he expressed his desire to engage in “daddy daughter play”

with a child in the second ad, which was sufficiently similar to the charged offense

to be probative of his intent to commit the sexual offense against Complainant. See,

e.g., Blackwell v. State, 193 S.W.3d 1, 15 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (extraneous offense admissible despite rule 403 objection when evidence

probative of defendant’s intent to commit sexual offense against one child by

showing his similar intent with other children). The testimony made up less than

three pages of the evidence, which meant it did not take up a substantial amount of

time making it unfairly prejudicial by its sheer volume. See Kimberlin, 2019 WL

1292471, at *4; Fisk, 510 S.W.3d at 175. Finally, the court mitigated any risk the

jury used it for any improper purpose by submitting a limiting instruction. See

Gaytan, 331 S.W.3d at 228.

      After considering the Montgomery factors, we cannot say the trial court

abused its discretion by overruling appellant’s rule 403 objection. Appellant’s

second issue is overruled.
                                         –11–
                          Ineffective Assistance of Counsel

      In his final issue, appellant asserts defense counsel was ineffective by failing

to preserve error when the trial court excluded his mother’s testimony. The State

responds counsel acted reasonably by choosing not to object and make a record of

her excluded testimony.

      The standard of review for evaluating claims of ineffective assistance of

counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under

the Strickland two-step analysis, a defendant must demonstrate that (1) counsel’s

performance fell below an objective standard of reasonableness, and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Id. at 687–88, 694; Nava v. State, 415 S.W.3d

289, 307 (Tex. Crim. App. 2013). An appellant bears the burden of proving his

claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956

(Tex. Crim. App. 1998). Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. See Williams

v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

      Appellate review of counsel’s representation is highly deferential, and we

must “indulge in a strong presumption that counsel’s conduct was not deficient.”

Nava, 415 S.W.3d at 307–08. To overcome this presumption, claims of ineffective

assistance of counsel must be firmly founded in the record and affirmatively

demonstrate the alleged ineffectiveness. See Salinas v. State, 163 S.W.3d 734, 740
                                        –12–
(Tex. Crim. App. 2005). However, a reviewing court will rarely be in a position to

fairly evaluate the merits of an ineffective assistance of counsel claim on direct

appeal because the trial record is usually undeveloped and inadequate to reflect the

motives behind the trial counsel’s actions. Id. Rather, trial counsel should have the

opportunity to explain his actions before being condemned as ineffective. See

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Therefore, when

the record is silent as to trial counsel’s strategy, we assume counsel had a sound

strategy, unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005); see also Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App.

2011).

      To show ineffective assistance of counsel for failing to object during trial, an

appellant must show that the trial judge would have committed error in overruling

the objection appellant says counsel should have asserted. Mays v. State, No. 14-

18-00702-CR, 2019 WL 5704292, at *3 (Tex. App.—Houston [14th Dist.] Nov. 5,

2019, pet. ref’d) (mem. op., not designated for publication).

      Here, it is undisputed the trial court invoked “the Rule,” meaning witnesses

were excluded from the courtroom during trial. See TEX. R. EVID. 614. The purpose

of the Rule is to prevent corroboration, contradiction, and the influencing of

witnesses. See Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996); Webb v.

State, 766 S.W.2d 236, 239 (Tex. Crim. App. 1989). Once it is invoked, a witness
                                        –13–
should not be allowed to hear any testimony in the case or talk to any other person

about the case without the court’s permission. See White v. State, 958 S.W.2d 460,

462 (Tex. App.—Waco 1997, no pet.). While the trial court is obligated to exclude

witnesses from the courtroom during other witnesses’ testimony, the court’s decision

to allow testimony from a witness who has violated the Rule is discretionary. See

Bell, 938 S.W.2d at 50.

      When determining whether a trial court abused its discretion by excluding a

witness, a reviewing court will determine: (1) if the Rule was violated and the

witness disqualified, were there particular circumstances, other than the mere fact of

the violation, which would tend to show the defendant or his counsel consented,

procured or otherwise had knowledge of the witness’s presence in the courtroom,

together with knowledge of the content of that witness’s testimony; and (2) if no

particular circumstances existed to justify disqualification, was the excluded

testimony crucial to the defense. In applying the test to the facts of this case, we are

guided by balancing the benefit of upholding the ruling against the detriment or cost

to appellant arising from that ruling, with particular concern as to the circumstances

surrounding the trial court’s decision to disqualify the witness. Webb, 766 S.W.2d

at 245.

      At the conclusion of the State’s evidence, the State brought to the trial court’s

attention a jail house call between appellant and his mother, which indicated

someone named Angie had been sitting in the courtroom and funneling information
                                         –14–
to appellant’s mother, a potential defense witness. The State asked the trial court to

exclude his mother as a witness.

      In an earlier phone call between appellant and his mother, they discussed the

Rule and his mother explained that defense counsel told her she had to wait outside

while other witnesses testified. The call indicated her understanding of the Rule.

      Defense counsel said appellant admitted to a separate phone conversation in

which his mother said, “Angie was saying something about she was talking about

the house.” After the trial court listened to the tape-recorded conversation, the

following exchange occurred:

           [Defense Counsel]: Your Honor, in response, all we heard is
      that—we don’t know what about the house was discussed. I mean . . .

             The Court: Well, isn’t it true, though, that the—when the Rule
      is invoked it means they’re not supposed to hear any testimony. Your
      argument goes to relevance, I guess, but even if it’s irrelevant, the Rule
      has been violated.

             [Defense Counsel]: True, Your Honor.

              The Court: And the Rule has been violated, then she’s not going
      to testify.

             [Defense Counsel]: Thank you, Your Honor.

      Our record is silent regarding why appellant’s trial counsel failed to object to

the court excluding the mother’s testimony. Appellant filed a motion for new trial

but did not assert an ineffective assistance of counsel complaint. Thus, counsel has

not been afforded an opportunity to explain the reasoning behind his decision not to

object. It is reasonable, however, that defense counsel could have concluded the

                                        –15–
trial court acted within its discretion by excluding the testimony, and therefore, there

was no error to preserve. See, e.g., Jimenez v. State, 307 S.W.3d 325, 335 (Tex.

App.—San Antonio 2009, pet. ref’d) (concluding no abuse of discretion by

excluding defense witness when witness “clearly violated the trial court’s order

pertaining to the Rule by speaking with defendant about the trial, and the violation

appear[ed] to have been perpetrated knowingly”). Without being in the courtroom,

appellant’s mother could have learned of the information only through someone in

the courtroom (Angie) telling her. An attorney should not be deemed ineffective for

failing to object to a meritless claim. See Dingler v. State, No. 05-03-01552-CR,

2005 WL 1039969, at *7 (Tex. App.—Dallas May 5, 2005, no pet.) (not designated

for publication); Hubbard v. State, 770 S.W.2d 31, 44 (Tex. App.—Dallas 1989, pet.

ref’d). Accordingly, appellant’s ineffective assistance of counsel claim fails. His

third issue is overruled.

                                     Conclusion

      The judgment of the trial court is affirmed.




                                            /David L. Bridges/
                                            DAVID L. BRIDGES
                                            JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2
190174F.U05

                                         –16–
                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

JON MATTHEW WOODLAND,                         On Appeal from the 219th Judicial
Appellant                                     District Court, Collin County, Texas
                                              Trial Court Cause No. 219-81351-
No. 05-19-00174-CR          V.                2018.
                                              Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                  Justices Molberg and Carlyle
                                              participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered April 14, 2020




                                       –17–
