Affirmed as Reformed and Memorandum Opinion filed December 19, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-11-00838-CR
                              NO. 14-11-00839-CR
                              NO. 14-11-00840-CR
                              NO. 14-11-00841-CR

                FREDRICHEE DOUGLAS SMITH, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

                  On Appeal from the 339th District Court
                           Harris County, Texas
       Trial Court Cause Nos. 1197969, 1197970, 1208812, and 1255072

                 MEMORANDUM                      OPINION


      A jury convicted appellant Fredrichee Douglas Smith of two counts of
sexual assault of a child (14 to 17 years old); possession of child pornography; and
online solicitation of a minor. The jury sentenced appellant to prison for three
years for each count of sexual assault and eight years for possession of child
pornography, and eight years for online solicitation of a minor. Both of the eight-
year sentences were suspended and all sentences were ordered to run concurrently.
In two issues on appeal, appellant claims ineffective assistance of counsel and
improper assessment of court costs. We reform the trial court’s judgments to delete
the specific amount of costs, and affirm the judgments as reformed.

                                       Background

      Appellant was charged with offenses alleged to have occurred in 2008 when
S.S. was fourteen. Appellant was twenty-two. Appellant was an instructor for a
lifeguarding class at the Dad’s Club where S.S. worked as a receptionist.
Appellant and S.S. worked together and began texting each other. According to
S.S., their texts became sexual when appellant suggested that S.S. either take a
picture or take her shirt off for him and he would give her $200. Several days
later, S.S. sent appellant a topless picture of herself. Over the next few months,
she sent at least three more pictures by text message. In one picture she is
completely nude. S.S. testified that appellant put his fingers in her vagina and that
she performed oral sex on him at least twice.

                     Ineffective Assistance of Counsel Claim

      In his first issue, appellant claims he was denied his right to effective
assistance of counsel. The Sixth Amendment to the United States Constitution
guarantees the right to reasonably effective assistance of counsel in criminal
prosecutions. U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.
14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Under Strickland v. Washington, 466
U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to demonstrate
ineffective assistance of counsel, a defendant must first show that counsel’s
performance was deficient, i.e., that his assistance fell below an objective standard
of reasonableness; second, a defendant must affirmatively prove prejudice by
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showing a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Thompson v. State, 9 S.W.3d
808, 812 (Tex. Crim. App. 1999). See also Lopez v. State, 343 S.W.3d 137, 142
(Tex. Crim. App. 2011) (explaining that “reasonable probability” as used in the
prejudice prong is “probability sufficient to undermine confidence in the outcome”
of the proceeding) (citing Strickland, 466 U.S. at 687). Failure to make the
required showing of either prong defeats the claim of ineffectiveness. Strickland,
466 U.S. at 697.

      Appellant did not raise his ineffective-assistance claims in a motion for new
trial. Absent an opportunity for trial counsel to explain his actions, appellate courts
should not hold that counsel rendered ineffective assistance 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). Any allegation
of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.
Appellant bears the burden of proving by a preponderance of the evidence that
counsel was ineffective. Id.     Our review of defense counsel’s performance is
highly deferential, beginning with the strong presumption that the attorney’s
actions were reasonably professional and were motivated by sound trial strategy.
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A sound trial
strategy may be imperfectly executed, but the right to effective assistance of
counsel does not entitle a defendant to errorless or perfect counsel. Robertson v.
State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

      Appellant’s claim of ineffective assistance is based upon four alleged errors.
First, appellant asserts counsel was ineffective by offering Defense Exhibit 1, “all



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of” appellant’s August 2008 phone records, into evidence because it included
evidence of extraneous offenses.

      Counsel admitted into evidence a printout of texts from S.S.’s phone.
Counsel cross-examined S.S. about texting another lifeguard, David Brenner. S.S.
admitted she also was texting someone named John, Del Smith (appellant’s
brother), and Ryan Cooper, all of whom worked at the club. David occasionally
walked S.S. home. Counsel stated on the record that he was going to demonstrate
the complainant was having a relationship with David and that David was using
appellant’s phone to text the complainant. S.S. admitted that she “messed around”
with David during that summer. Counsel questioned S.S. about appellant’s name
being absent from the text messages. Counsel’s stated strategy was to show the
State could not prove who sent the texts; counsel sought to implement that strategy
by introducing evidence that Del, David, and appellant all used appellant’s phone.
Based upon the texts, counsel also questioned S.S. about appellant’s relationship
with her sister. Counsel stated he was “going to show that S.S. was jealous about
her sister’s relationship. That’s why she’s trying to get back at my client.”

      Counsel’s decision to introduce the texts into evidence was clearly trial
strategy. By questioning S.S. about the texts, counsel raised the possibility that the
texts were not sent by appellant and that S.S.’s testimony was not credible. We
conclude that as to his first complaint, appellant has not met the first prong of
Strickland.

      Appellant’s second and third claims concern the testimony of Sergeant Gary
Spurger. Appellant asserts defense counsel erred in failing to object on extraneous-
offense grounds to Sergeant Spurger’s testimony that a phone number in Defense
Exhibit 1 belonged to another juvenile female, J.H., who received by text message
from appellant a photo of appellant naked. Appellant claims the evidence was

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irrelevant for any purpose other than character propensity and was therefore
inadmissible.

      It was counsel’s stated defensive theory that others were using appellant’s
phone to send texts. Evidence that J.H. received a photo of appellant naked, sent
by appellant, is evidence of identity that rebuts that theory. See Tex. R. Evid.
404(b). Trial counsel’s failure to object to admissible evidence does not constitute
ineffective assistance of counsel. Webb v. State, 991 S.W.2d 408, 419 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d).

      Appellant also complains of defense counsel’s “opening the door” to
Sergeant Spurger’s testimony regarding his investigation of appellant’s
relationship with J.H. Appellant acknowledges that counsel was attempting to
highlight the lack of investigation in the case at bar. The record reflects counsel
also was pointing out that Sergeant Spurger had no direct knowledge of this case.
Appellant complains, however, that this line of questioning allowed the State to
elicit testimony that Sergeant Spurger had investigated a different case of
appellant’s online solicitation of a minor with a different complainant.

       The record reflects counsel’s questioning of Sergeant Spurger was trial
strategy to show the lack of investigation into S.S.’s allegations as well as the fact
that the testifying officer had not investigated the case being tried. Appellant has
not shown counsel’s strategy was unreasonable and therefore has failed to establish
the first prong of Strickland.

      Moreover, appellant has not shown the jury’s awareness of J.H.’s case
affected the outcome of the trial. Appellant makes no claim that he would not have
been found guilty. Rather, appellant asserts there is a reasonable probability that
he would have received a lesser sentence, specifically, community supervision, for
all charges. But the extraneous offenses regarding J.H. are the same type of
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offenses for which appellant did receive community supervision.            Appellant
therefore has not met the second prong of Strickland.         Accordingly, we find
appellant has failed to demonstrate counsel’s questioning of Sergeant Spurger
constituted ineffective assistance of counsel.

      Lastly, appellant asserts counsel was ineffective in failing to request a
limiting instruction as to three photographs that only showed S.S.’s exposed
breasts, not her genitals; and testimony that appellant offered $200 to S.S. if she
sent him a topless photograph. Appellant argues the jury should have been
instructed not to consider this as evidence of the charged offense, but only for a
limited purpose.

      S.S. testified that she sent multiple nude photographs to appellant after
promise of payment. The State questioned S.S. about whether she received the
money. S.S. testified that after she and appellant fought about something, “[a]nd
just to kind of get back at him, I asked for it because he promised it to me; and then
he never ended up giving it to me, though.”           Counsel then cross-examined
appellant about “getting back” at appellant and whether she was upset about not
getting her $200.

      Ordinarily, we need to hear from counsel whether there was a legitimate trial
strategy for a certain act or omission. Andrews v. State, 159 S.W.3d 98, 103 (Tex.
Crim. App. 2005).      “Frequently, we can conceive potential reasonable trial
strategies that counsel could have been pursuing. When that is the case, we simply
cannot conclude that counsel has performed deficiently.” In this case, we do not
have any statement by counsel as to why he failed to request a limiting instruction.
However, counsel’s omission could have been based upon a reasonable trial
strategy to elicit testimony from S.S. that she had a motive for falsely testifying
against appellant -- that he failed to pay her for the topless photographs.

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Accordingly, we conclude appellant has failed to overcome the presumption that
counsel’s actions were part of a reasonable trial strategy.

      Moreover, the trial court submitted a proper limiting instruction in the jury
charge during the guilt-innocence phase of the trial. Appellant has not shown that
there is reasonable probability the result of the proceeding would have been
different had counsel sought a limiting instruction sooner than in the jury charge.
See Walker v. State, 4 S.W.3d 98, 107 (Tex. App.—Waco 1999, pet. ref’d) (the
trial court’s limiting instruction in the charge negated any possibility that the jury
would have relied upon the extraneous offenses). We conclude that as to his
fourth complaint, appellant has not met the requirements of Strickland.

      Even if we had found that counsel was ineffective, appellant has not
demonstrated by a preponderance of the evidence that he was prejudiced by
counsel’s actions. Appellant claims that but for the admission of the extraneous
offenses he would have received community supervision for all charges. Appellant
received community supervision for his convictions for online solicitation of a
minor and possession of child pornography but did not receive community
supervision for the two convictions for sexual assault of a child. The extraneous
offenses complained of did not involve sexual assault. Appellant has failed to
demonstrate that, but for his counsel’s allegedly deficient performance, the
outcome of the proceeding would have been different. See Strickland, 466 U.S. at
687, 694, 104 S.Ct. 2052. For all these reasons, we overrule appellant’s first issue.

                                     Court Costs

      In its judgment in each case, the trial court ordered appellant to pay court
costs as follows: $490.00 (Trial court cause no. 1197970); $490.00 (Trial court
cause no. 1197969); $490.00 (Trial court cause no. 1208812); and $290.00 (Trial
court cause no. 1255072). Appellant requested the district clerk include the bill of
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costs in the appellate record. In each case, the original clerk’s record does not
contain a bill of costs. On September 20, 2013, a supplemental clerk’s record was
filed in each case that contains a bill of costs.1

        In Johnson v. State, 389 S.W.3d 513, 517 (Tex. App.—Houston [14th Dist.]
2012, pet. granted), this court held that if the record does not support the
assessment of a certain dollar amount in costs, the trial court errs in entering a
specific dollar amount in its judgment.                 Further, this court has rejected
supplemental records as not being “appropriate” bills of costs when such
documents do “not appear to have been brought to the attention of the trial court
judge.” Latson v. State, 14-12-00559-CR, 2013 WL 4487544, at *3 (Tex. App.—
Houston [14th Dist.] Aug. 22, 2013, no pet.).

       We previously have rejected the State’s argument that the costs are
supported by various statutes. See Rogers v. State, 402 S.W.3d 410, 420 (Tex.
App.—Houston [14th Dist.] 2013, pet. filed). The trial court did not err in ordering
appellant to pay court costs, as such costs are mandated by law, but the court did
err in entering a specific dollar amount without any support in the record for that
dollar amount. See Johnson, 389 S.W.3d at 516. Because there is no evidence in
the record to support the trial court’s assessment of a specific dollar amount as
court costs, we sustain appellant’s second issue and reform the trial court’s
judgment in each case to delete the specific dollar amount of costs assessed. See
id.; see also Mayer v. State, 309 S.W.3d 552, 554–56 (Tex. Crim. App. 2010)
(holding that sufficient evidence must support an assessment of costs in a
judgment).



       1
        The bill of costs for trial court cause no. 1208812 assesses $590, which differs from the
amount in the judgment.

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      In each case, we reform the trial court’s judgment to delete the listing of a
specific amount of court costs and affirm the judgment as reformed.




                                      /s/       Martha Hill Jamison
                                                Justice



Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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