      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-06-00526-CR



                                  Robert F. Brown III, Appellant

                                                   v.

                                    The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
        NO. 05-307-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted Robert F. Brown III of six counts of the second-degree felony

offense of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11 (West 2003). The

jury assessed appellant’s punishment at twelve years in prison on counts one through five, and

ten years in prison, probated, on count six. The trial court sentenced appellant to twelve years’

confinement on counts one through five, and ten years in prison, probated, on count six. The court

ordered that appellant’s sentences in counts 1, 2, 3, 4, and 6 be served consecutively and that

appellant’s sentence in count five be served concurrently with his sentence in count one.

                In three issues, appellant contends that he received ineffective assistance of counsel,

that his sentence is unconstitutional, and that the trial court erred in failing to hold a hearing on his

motion for new trial. For the reasons that follow, we affirm the judgment of conviction.
                                    FACTUAL BACKGROUND

                  In the summer of 2003, the twelve-year-old complainant, Q.A., and his mother moved

to Williamson County from out of state. The mother met appellant at her place of employment

and they began dating in September. Appellant befriended Q.A., taking him bowling, to the mall,

to Fiesta Texas for spring break, to visit friends, and to the dog races. Appellant also bought Q.A.

gifts. As his mother’s relationship with appellant developed, in October Q.A. spent the night at

appellant’s apartment. On one occasion when Q.A. was spending the night at appellant’s apartment,

he wet the bed. On another occasion at appellant’s apartment, as he was trying to sleep, appellant

“reached over and put his hand under [Q.A.]’s pants and underwear and had grabbed [his] penis and

started stroking it.”

                  Appellant moved in with Q.A. and his mother in December 2003. The testimony at

trial revealed that appellant had numerous sexual encounters with Q.A. when his mother was not in

the house or was out of town. Appellant frequently entered Q.A.’s bedroom in the early morning

and touched him inappropriately. At trial, appellant testified that he was only checking Q.A.

occasionally to see if he had wet the bed. After a four-day trial, the jury found appellant guilty on

all six counts.


                                             ANALYSIS
Ineffective Assistance of Counsel

                  Appellant urges that he received ineffective assistance of counsel because his trial

counsel allowed a juror to be seated when the record clearly showed that the juror was biased and

could not consider the full range of punishment. Because appellant was eligible for probation and



                                                   2
appellant argues that the juror would not consider probation as an option, appellant contends that

counsel’s actions “unquestionably fall outside the spectrum of objectively reasonable trial strategy.”

                The standard for testing claims of ineffective assistance of counsel is set out in

Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on a claim of ineffective

assistance, an appellant must, by a preponderance of the evidence, prove that (i) trial counsel’s

performance fell below an objective standard of reasonableness, and (ii) counsel’s deficient

representation prejudiced appellant’s defense. Strickland, 466 U.S. at 687-88; Bone v. State,

77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To meet this burden, an appellant must show that the

attorney’s representation fell below the standard of prevailing professional norms and that there is

a reasonable probability that, but for the attorney’s deficiency, the result of the trial would have been

different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). In other words, the appellant

must prove counsel’s representation so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. If

“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).

                The purpose of voir dire questioning is to determine whether a potential juror should

be challenged for cause or peremptorily, or whether he or she should be accepted by the examining

party for service on the jury. Eason v. State, 563 S.W.2d 945, 946-47 (Tex. Crim. App. 1978);

3 Charles E. Torcia, Wharton’s Criminal Procedure § 419 (13th ed. 1991). The questioning party



                                                   3
may ask a potential juror any pertinent question “tending to establish the ground for challenge, such

as disqualification for service on any jury, implied bias, or actual bias.” Charles E. Torcia, supra,

at § 420. Voir dire may also serve to prepare the jury for difficulties likely to be encountered in the

case, to educate the jury on the applicable law, or to otherwise persuade the jury. 3 Texas Criminal

Practice Guide § 72.03[1] (Matthew Bender & Co. ed., 2007).

               During voir dire, the State asked the venire panel members if they could consider

probation in an appropriate case of indecency with a child by contact: “Could you see that there

might be a case out there, maybe that situation, or think of your own where you might be able to

consider, okay, that might be a case where probation would be appropriate? You might even be mad

that we’re prosecuting something like that.” The record reflects “heads nodding.” The State then

asked whether there was anyone “that feels like you could not consider the lower end of the

punishment range, either probation or two years?” None of the venire members indicated that they

could not consider probation in the appropriate case.

               After expressing his concern to the panel that they be willing to consider the entire

range of punishment including probation, the following exchange occurred between appellant’s

defense counsel and juror O. Murphy when Murphy responded to counsel’s inquiry:


               Murphy:         I guess I’m torn in that regard because if you’re giving
                               someone probation, you’re believing that rehabilitation would
                               work, and I don’t necessarily believe in certain cases of sexual
                               deviant behavior that rehabilitation actually helps at all.

               [Counsel]:      Right. So some people can’t be rehabilitated. For some
                               people, probation is just not appropriate, right?

               Murphy:         Right.

                                                  4
               [Counsel]:     My concern is do you think that that’s everybody who
                              happens to be charged with indecency or convicted of
                              indecency is irretrievable?

               Murphy:        I think you have to look at the—the case itself and the
                              evidence within a case—

               [Counsel]:     Right.

               Murphy:        —but me personally, I do feel like certain sexual deviant
                              behavior is not rehabilitatable, you can’t rehabilitate the
                              person.

               [Counsel]:     Sure. Sure. Like a serial child rapist, for instance—

               Murphy:        Right.

               [Counsel]:     —can’t be rehabilitated.


Defense counsel then called on another juror who spoke to the importance of listening to all the

evidence before making a judgment. Defense counsel did not challenge Murphy or remove him with

a peremptory strike. Murphy was seated on the jury.

               Appellant urges that there is no plausible basis for leaving Murphy on the jury panel

and that therefore counsel’s performance was deficient and fell below an objective standard of

reasonableness. But Murphy did not state that he could not consider probation in the appropriate

case of indecency with a child. He stated that probation would not be appropriate in “certain cases

of sexual deviant behavior;” he agreed with defense counsel that such a situation would involve

instances of serial child rape; and he stated that a juror would have to look at the case and

the “evidence within a case.” Murphy’s comments did not show that he was biased or prejudiced

against any law applicable to the case. See Tex. Code Crim. Proc. Ann. art. 35.16(c) (West 2006).



                                                 5
The record is silent as to why defense counsel chose to strike other venire members instead of

Murphy. Appellant does not argue that any other particular jurors that were struck were more

favorable than Murphy.

                Appellant has failed to demonstrate that defense counsel’s performance was deficient

or that it prejudiced appellant’s defense. Nor has he shown that counsel’s failure to strike the venire

member was not a valid trial strategy. Counsel may have been satisfied with the composition of the

panel; he may have refrained from asking additional questions about probation to avoid giving the

State more information on which to exercise peremptory challenges; based on the questioning before

and after Murphy’s comments, counsel may have believed he was making the point he wanted to

make; or, he may have had any combination of reasons for asking the questions as he did and for not

striking Murphy. Because these facts fall short of a “serial child rapist,” counsel may have believed

he had succeeded in contrasting the facts of the case from those in which Murphy would not consider

probation. These possible reasons are speculative, but they demonstrate the record is inadequate to

show that counsel’s performance is either deficient or prejudicial to appellant. See Goodspeed

v. State, 187 S.W.3d 390, 394 (Tex. Crim. App. 2005). We overrule appellant’s first issue.


Challenge to the Constitutionality of Texas Code of Criminal Procedure Art. 42.08(a)

                Appellant next asserts that article 42.08(a) violates the constitutional delegation

doctrine by authorizing a trial court to enter a “stacking” order allowing for cumulative sentencing.1


        1
          Appellant contends that the jury’s intent was to give appellant one 12-year sentence and
a period of probation and that the jury did not intend for the sentences to be served consecutively.
Because appellant’s counsel then stated that “if you were to stack the probation, I don’t think we
would be opposed to that,” the State argued that appellant waived this issue or, in the alternative, that

                                                   6
See Tex. Code Crim. Proc. Ann. art. 42.08(a) (West 2006). Because the legislature may not delegate

its power to another branch of government unless it prescribes sufficient standards to guide the

discretion conferred, appellant contends that there are not sufficient or adequate guidelines for the

trial court’s exercise of its discretion in determining whether the sentences should be cumulated or

run concurrently.

               When reviewing an attack on the constitutionality of a statute, the appellate court

begins with a presumption that the statute is valid and the legislature has not acted unreasonably or

arbitrarily. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978); Luquis v. State,

72 S.W.3d 355, 365 (Tex. Crim. App. 2002). This presumption remains until the party challenging

the statute carries its burden to establish its unconstitutionality. Granviel, 561 S.W.2d at 511;

Luquis, 72 S.W.3d at 365; Ex parte Ports, 21 S.W.3d 444, 446 (Tex. App.—San Antonio 2000,

pet. ref’d).

               Although appellant acknowledges that the court of criminal appeals has ruled that this

statute is not an unconstitutional delegation of authority, see Johnson v. State, 492 S.W.2d 505,

506 (Tex. Crim. App. 1973); Hammond v. State, 465 S.W.2d 748, 752 (Tex. Crim. App. 1971), he

argues that the reasoning in Johnson is not sound and that it has been impliedly overruled by

Ex parte Granviel and In re Johnson, 554 S.W.2d 775, 780-81 (Tex. Civ. App.—Corpus Christi



he is estopped from challenging the stacking order because he did not oppose its use in the context
of probation. A party who requests a particular course of action by the trial court may not be heard
to complain about the course of action on appeal. See Jones v. State, 119 S.W.3d 766, 784
(Tex. Crim. App. 2003) (defendant who suggested that the trial court discharge juror estopped from
complaining on appeal that discharge was inappropriate). The issue was preserved and not waived,
and we cannot say that by agreeing to a probated sentence to run consecutively any concession is
sufficiently clear to constitute estoppel.

                                                 7
1977, writ ref’d n.r.e.). Neither Ex parte Granviel or In re Johnson address the constitutionality of

article 42.08 nor have they impliedly overruled Johnson v. State or Hammond. Since there has

been no change in article 42.08 that is material to this appeal since Johnson and Hammond were

decided, we are bound by the court of criminal appeals’ holdings regarding its constitutionality. We

overrule issue two.


Failure to Hold Hearing on Motion for New Trial

               In his third issue, appellant contends that the trial court erred in failing to hold a

hearing on his motion for new trial. Asserting that there are facts outside the record relating to his

ineffective assistance claim that the trial court was required to address in an evidentiary hearing,

appellant seeks a remand for such a hearing.

               Appellant filed a timely motion for new trial on the grounds that the evidence was

legally and factually insufficient to support his conviction and that he received ineffective assistance

of counsel. In support of his ineffective assistance claim, he alleged that his counsel failed to

subpoena an eyewitness to the alleged incidents as well as the telephone records and medical records

of the complainant’s mother. Attached to the motion was appellant’s affidavit in which he stated

that he had urged his trial counsel to subpoena Q.A.’s grandmother, who shared the bedroom with

Q.A., to testify at trial. He averred that the grandmother stayed in the room about twenty hours a day

and that her bed was close to Q.A.’s bed. Because she “is very alert and [a] light sleeper” and

“normally awake at five a.m. every day,” her testimony would have been relevant.

               Appellant also averred that because Q.A.’s mother was “bi-polar,” her medical

records and medications taken would have been relevant to refute the charges and her testimony.

                                                   8
Appellant complained that his counsel did not subpoena telephone records that would have shown

that the mother called him repeatedly after their separation following Q.A.’s outcry. Appellant also

complained that his counsel failed to adequately communicate with him prior to trial and prepare him

for his testimony.

               We review a trial court’s refusal to hold an evidentiary hearing on a motion for new

trial for an abuse of discretion. See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993).

A trial court abuses its discretion in denying a hearing on a timely filed motion for new trial if the

motion raises a matter outside the record upon which relief could be granted. See id.; Flores v. State,

18 S.W.3d 796, 798 (Tex. App.—Austin 2000, no pet.).

               The right to a hearing on a motion for new trial is not absolute. Rozell v. State,

176 S.W.3d 228, 230 (Tex. Crim. App. 2005); Reyes, 849 S.W.2d at 815. Generally, a trial court

should hold a hearing if the motion and attached affidavit raise matters that are not determinable

from the record that could entitle the accused to relief. Wallace v. State, 106 S.W.3d 103, 108

(Tex. Crim. App. 2003). In addition to timely filing the motion with supporting affidavits that

demonstrate reasonable grounds for believing that some error has occurred, Reyes, 849 S.W.2d at

816, the defendant must present the motion to the trial court. Carranza v. State, 960 S.W.2d 76, 79

(Tex. Crim. App. 1998). To present a motion for new trial, the defendant must give the trial court

actual notice that he timely filed a motion for new trial and request a hearing on the motion. Rozell,




                                                  9
176 S.W.3d at 230.2 The filing of a motion for new trial alone is not sufficient to show presentment.

Carranza, 960 S.W.2d at 78; Reyes, 849 S.W.2d at 815.

               Here, the record fails to show that appellant presented his motion for new trial to the

trial court by bringing it to the attention of the court in any manner or that he requested a hearing.

Because appellant failed to present his motion for new trial to the trial court and failed to request a

hearing, he was not entitled to a hearing on the motion. The trial court did not err in failing to hold

a hearing on the motion. We overrule appellant’s third issue.


                                          CONCLUSION

               Having overruled appellant’s issues, we affirm the judgment of conviction.




                                       __________________________________________

                                       Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 1, 2007

Do Not Publish


        2
          In Rozell v. State, the court of criminal appeals reasoned: “Presenting the motion for new
trial and the request for a hearing is akin to objecting to the erroneous admission of evidence.
Absent a proper objection that alerts the trial court to the erroneous admission, the error has not been
preserved for appellate review. Thus, a reviewing court does not reach the question of whether a trial
court abused its discretion in failing to hold a hearing if no request for a hearing was presented to
it.” 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).

                                                  10
