

Opinion issued
October 20, 2011

In
The
Court of
Appeals
For
The
First District
of Texas
————————————
NO. 01-11-00190-CR
NO. 01-11-00191-CR
———————————
ROBERT BURKE, Appellant
V.
THE
STATE OF TEXAS, Appellee

 

 
On Appeal from the 412th
District Court
Brazoria County, Texas

Trial Court Case No. 61948
 

 
 
 
 
 
O P I N I O N
          A
jury found appellant guilty of two counts of aggravated-sexual assault of a
child.[1]  The jury assessed punishment at 70 years in
prison with the sentences to run concurrently. 
Raising the same three issues in each appeal, appellant contends that (1)
he received ineffective assistance of counsel during the guilt-innocence phase
of trial; (2) the trial court abused its discretion by permitting the State to proffer
expert opinion testimony regarding the truthfulness of the complainant child;
and (3) the trial court erred during the punishment phase of trial when it allowed
the State to ask a defense witness whether she had heard that appellant had
been charged with an extraneous sex offense. 

          We
affirm the judgment in each appellate cause.
Background
          On
May 15, 2009, appellant babysat his nine-year-old nephew, J.B., at appellant’s
apartment in Brazoria County.  During
this visit, appellant sexually abused J.B. by placing his penis in J.B.’s mouth
and in his anus.  While he was assaulting
J.B., appellant placed his hands around J.B.’s throat and choked him.  Appellant told J.B. that he would hurt him if
he told anyone about the abuse.  
In December 2009, J.B. made
an outcry to his mother, Sarah.  J.B.
told his mother the details of the sexual abuse that had occurred in Brazoria
County.  He also told her that appellant
had molested him on two occasions before the May 2009 assault.  Those acts had occurred at a house in Galveston
County.  
          Following
a police investigation, a Brazoria County grand jury indicted appellant on two
counts of aggravated sexual assault with regard to the May 2009 abuse.  The jury found appellant guilty on each count
as charged in the indictment and assessed punishment at 70 years in prison for
each count.  These appeals followed.  
Ineffective Assistance of
Counsel
          In
his first issue, appellant contends that he received ineffective assistance of
counsel at trial.  Appellant filed a
motion for new trial but did not assert the ground for ineffective assistance
of counsel in the motion that he now raises on appeal.
A.      Applicable Legal Principles
The Sixth Amendment to the
United States Constitution guarantees the right to reasonably effective
assistance of counsel in criminal prosecutions.  See U.S. Const. amend. VI.  To show ineffective assistance of counsel, a
defendant must demonstrate both (1) that his counsel’s performance fell below
an objective standard of reasonableness and (2) that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.  Strickland v. Washington, 466 U.S. 668,
687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).  A failure to make a showing under either prong
defeats a claim of ineffective assistance of counsel.  Rylander
v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).
An appellant bears the
burden of proving by a preponderance of the evidence that his counsel was
ineffective.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  Any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.  Id. at 814.  We presume that a counsel’s conduct falls
within the wide range of reasonable professional assistance, and we will find a
counsel’s performance deficient only if the conduct is so outrageous that no
competent attorney would have engaged in it.  Andrews,
159 S.W.3d at 101.
B.      Analysis
          1.       Lack
of Rule 404(b) Objection
          At
trial, the State’s first witness was J.B.’s mother, Sarah, to whom J.B. had
made his outcry.  Sarah testified that
J.B. told her that appellant had molested him at a house in Galveston County on
two occasions and at an apartment in Brazoria County on one occasion.  J.B. also testified.  He described for the jury how appellant had
sexually assaulted him twice in Galveston County and once in Brazoria County.  
On appeal, appellant asserts
that his attorney should have objected to Sarah’s and J.B.’s testimony
regarding the extraneous acts that occurred in Galveston County.  Appellant contends that evidence of the
Galveston acts was inadmissible because it “interjects offenses before the jury
that did not take place in Brazoria County.” 
He argues that evidence of the Galveston County extraneous acts was not
admissible because “venue was not laid in Brazoria County” for those offenses.  Appellant asserts that the extraneous offenses
were inadmissible pursuant to Rules of Evidence 403 and 404(b).  
          The
State responds by arguing that a Rule 404(b) objection would not have been
proper because the extraneous-act evidence was admissible pursuant to article
38.37 of the Code of Criminal Procedure. 
That article provides, in relevant part, as follows:
Notwithstanding Rules 404 and 405, Texas Rules of
Evidence, evidence of other crimes, wrongs, or acts committed by the defendant
against the child who is the victim of the alleged offense shall be admitted
for its bearing on relevant matters, including:
 
(1) the state of mind of the defendant and the child; and
 
(2) the previous and subsequent relationship between the
defendant and the child.
 
See
Tex. Code Crim. Proc. Ann. art.
38.37, § 2 (Vernon Supp. 2010).  In cases
in which it applies, article 38.37 supersedes Rule of Evidence 404.  See Martines
v. State, No. 01–10–00172–CR, 2011 WL 2502839, at *13, (Tex. App.—Houston
[1st Dist.] June 23, 2011, no pet.) (citing, inter alia, Sanders v. State,
255 S.W.3d 754, 758 (Tex. App.—Fort Worth 2008, pet. ref’d)).  
Here, evidence of the
extraneous acts committed in Galveston County falls within the type of evidence
allowed under article 38.37.  The record
reflects that the extraneous acts were admissible under article 38.37 to show
the relationship between appellant and J.B. and to show their respective states
of mind.  See id.  More specifically, the evidence was
relevant to explain why J.B. did not make a prompt outcry immediately after the
May 2009 assaults in Brazoria County for which appellant was convicted.  See McCulloch
v. State, 39 S.W.3d 678, 681 (Tex. App.—Beaumont 2001, pet. ref’d); Walker v. State, 4 S.W.3d 98, 103 (Tex. App.—Waco 1999, pet. ref’d).  Such evidence was also relevant to show how a
person in a position of authority, custody, or care of a young child developed
an unnatural attitude and relationship toward that child.  See
Poole v. State, 974 S.W.2d 892, 898 (Tex. App.—Austin 1998, pet. ref’d).  Moreover, nothing in article 38.37 required
the State to prove that the extraneous acts occurred in Brazoria County, as
appellant contends on appeal.  See Tex.
Code Crim. Proc. Ann. art. 38.37, § 2. 
Thus, because article 38.37
applies to evidence of the Galveston extraneous acts, a Rule 404(b) objection
by defense counsel would have been properly overruled.  Trial counsel is not ineffective for failing
to make futile objections.  See Ex parte White, 160 S.W.3d 46, 53
(Tex. Crim. App. 2004); Vaughn v. State,
931 S.W.2d 564, 566 (Tex. Crim. App. 1996); see
also Edmond v. State, 116 S.W.3d 110, 115 (Tex. App.—Houston [14th Dist.] 2002, pet.
ref’d) (stating trial counsel is not ineffective for failing to make a
frivolous objection).  
2.       Lack of
Rule 403 Objection
          Appellant
also asserts that his trial counsel should have objected to the extraneous-act
evidence based on Rule of Evidence 403. 
Indeed, even if the evidence was admissible under article 38.37, the
trial court had “a nondiscretionary obligation to weigh the probative value of
the evidence against the unfair prejudice of its admission” when a defendant
objects to the admission of extraneous offense evidence based on Rule of
Evidence 403.  See Martines, 2011 WL 2502839, at *13; Sanders, 255 S.W.3d at 760.  
          To
show ineffective assistance of counsel for failing to object, an appellant must
show that the trial court would have committed error in overruling the
objection.  Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004).  Appellant has not shown that the trial court
would have erred had it overruled a Rule 403 objection.  
          The
relevant factors in determining whether the prejudice of an extraneous offense
substantially outweighs its probative value include: (1) how compellingly the
extraneous-offense evidence serves to make a fact of consequence more or less
probable—a factor that is related to the strength of the evidence presented by
the proponent to show the defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury “in some
irrational but nevertheless indelible way”; (3) the time the proponent will
need to develop the evidence, during which the jury will be distracted from
consideration of the indicted offense; and (4) the force of the proponent’s
need for this evidence to prove a fact of consequence, i.e., whether the
proponent has other probative evidence available to him to help establish this
fact, and whether this fact is related to an issue in dispute.  Mozon v.
State, 991 S.W.2d 841, 846–47 (Tex. Crim. App. 1999).
          Whether
evidence is admissible under Rule 403 is within the sound discretion of the
trial court.  Montgomery v. State, 810 S.W.2d 372, 386, 389 (Tex. Crim. App. 1990).  In reviewing the trial court’s balancing test
determination under Rule 403, we presume that the probative value of the
evidence outweighs any prejudicial effect.  Id.
at 391.  
          Here,
the first factor of the balancing test weighs in favor of admitting the
extraneous-act evidence because it was probative of the relationship between appellant
and J.B., increased the probability that appellant would have felt sufficiently
confident to assault J.B. in May 2009, and helped explain why there was a delay
in J.B.’s outcry.  The second and third
factors also weigh in favor of admission of the evidence.  J.B.’s testimony about the extraneous acts in
Galveston County was no more detailed than his testimony regarding the May 2009
assault in Brazoria County.  In fact,
J.B. described how appellant had, in the Brazoria County assault, put his hands
around J.B.’s throat during the assault. 
J.B. testified that this caused him pain.  As a result, J.B.’s testimony regarding the
Brazoria County assault likely overshadowed any inflammatory response the jury
may have had to testimony about the extraneous acts in Galveston County.  The fourth factor also weighs in favor of
admission of the evidence because the State had no other evidence that could
similarly illustrate the relationship between appellant and J.B., and the
states of mind of appellant and J.B..
          In
sum, the trial court would not have committed error in overruling a Rule 403
objection to the extraneous-act evidence. 
Appellant has not shown that he received ineffective assistance of
counsel because his attorney did not make a Rule 403 objection to this
evidence.  See White, 160 S.W.3d at 53.
          We
hold that appellant has not met his burden to demonstrate ineffective
assistance of counsel by a preponderance of the evidence because he has not
shown that his trial counsel’s performance fell below an objective standard of
reasonableness.  See Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101–02.  Accordingly, we overrule appellant’s first
issue in each appeal. 
Admission of Expert Testimony
          In
his second issue, appellant contends that the trial court erred when it
admitted, over his objection, certain expert testimony of Kari Prihoda, a
forensic interviewer who examined and interviewed J.B.  Appellant contends that her testimony
constituted improper opinion testimony regarding the truthfulness of J.B.
A.      Legal Principles
We review a trial court’s
ruling on the admissibility of expert testimony for an abuse of discretion.  See Weatherred
v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); see also Page v. State,
213 S.W.3d 332, 337 (Tex. Crim. App. 2006) (stating an appellate court reviews a
trial court’s ruling under Rules of Evidence for abuse of discretion).  A trial court abuses its discretion in an
admissibility ruling when its ruling is arbitrary or unreasonable.  State
v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).  A trial court does not abuse its discretion if
its decision is within “the zone of reasonable disagreement.”  Bigon v.
State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).
A witness’s testimony is
admissible as expert testimony only if it “will assist the trier of fact to
understand the evidence or to determine a fact in issue . . . .”  Tex. R.
Evid. 702.  Nonetheless, a witness’s
opinion testimony regarding the truthfulness of a child does not assist the
jury in determining whether the child’s allegations are true; rather, such
testimony impermissibly “decides
[the] issue for the jury.”  Yount v.
State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993) (emphasis in original).  
“Expert testimony does not
assist the jury if it constitutes a ‘direct opinion on the truthfulness’ of a
child complainant’s allegations.”  Schutz v. State, 957 S.W.2d 52, 5 (Tex. Crim.
App. 1997) (quoting Yount, 872 S.W.2d
at 708).  An expert witness’s bare
opinion testimony that she believes, or believed, a child complainant’s
testimony to be true is excludable.  See Yount,
872 S.W.2d at 708; see also Tex. R. Evid. 702.  However, “[t]estimony by an expert witness . .
. that provides useful background information to aid the jury in evaluating the
testimony of another witness is admissible.”  Bryant
v. State, 340 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).  “Opinion testimony that is otherwise admissible
is not objectionable solely because it embraces an ultimate issue to be decided
by the trier of fact.”  Id.
B.      Analysis
          On
appeal, appellant complains that the State asked Prihoda a number of questions
regarding her observations of J.B.’s demeanor during the forensic
interview.  Appellant contends that the
questions elicited improper opinion testimony regarding J.B.’s
truthfulness.  Appellant fails to
mention, however, that the trial court sustained his objections to these questions
and instructed the jury to disregard the questions.  In the absence of evidence to the contrary,
we presume that the jury followed the trial court’s instruction to disregard
the questions.[2]  See See
Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987); see Ransom v. State, 789 S.W.2d 572, 585
(Tex. Crim. App. 1989) (“Generally, any error in asking an improper question is
cured or rendered harmless by an instruction to disregard.”).
          The
State also asked Prihoda under what circumstances she would refer a case to law
enforcement authorities.  In this regard,
the following exchange occurred:
Q:  What are your
determining factors between an interview that goes nowhere and one that you
report [to authorities]?
 
[Defense counsel]:  Objection, Your Honor.  That’s making an opinion as to truthfulness.
 
THE COURT:  I’ll
allow it.  Overruled.
 
A:  If a child has
made a comment or a statement that something criminal has happened, then the
case will be referred to law enforcement.
 
Q:  And did that
happen in this case?
 
[Defense counsel]: 
Objection.  Calls for hearsay
response, Your Honor.
 
THE COURT:  I’ll
allow it.  Overruled.
 
A:  Yes.
 
On appeal, appellant
contends that the testimony constituted an improper opinion regarding the J.B.’s
truthfulness and veracity.  However, Prihoda’s
testimony does not indicate that she contacted law enforcement authorities
because she believed J.B. was telling the truth.  Rather, her testimony indicates that it was
the practice to report cases to law enforcement when the child alleged sexual
abuse, irrespective of her opinion of the child’s veracity.  Testimony informing the jury how a case was
referred for criminal investigation is not equivalent to opinion testimony
stating that the child complainant was telling the truth.  See Bryant,
340 S.W.3d at 12 (stating that “testimony about the factual background of a
criminal investigation was materially different from offering an opinion at
trial that a child witness is telling the truth”).
We hold that the trial court
did not abuse its discretion when it overruled appellant’s objections and
admitted Prihoda’s testimony regarding her referral of appellant’s case to law
enforcement authorities.  Accordingly, we
overrule appellant’s second issue.
Cross-Examination of Character
Witness 
          In
his third issue, appellant contends that the trial court erred, during the
punishment phase, when it permitted the State to ask his mother whether she had
heard that appellant had also been accused of sexually abusing an 11-year-old
girl.  


 
 
A.      Pertinent Procedural Background
On direct examination, appellant’s
mother testified that appellant was a “good boy.”  She also stated, “I know my son’s heart, and
I know he didn’t do this.”  Before it
began its cross-examination, the State asked the trial court if it could
approach the bench.  The record then
indicates that the following discussion was held at the bench: 
[Prosecutor]:  I
think that she’s opened the door.  We had
sent them State’s notice—at
the top—intent to introduce
extraneous offenses in December, 2009.  He
was also accused of indecency with a child by causing his fingers to invasively
contact the vaginal area of a child younger than 14 years of age and not the
Defendant’s spouse.
 
            She’s
saying he’s a good boy.  He would never
do that.  This goes to his same modus
operandi and I think I have the right to ask her whether or not—do you know or have you heard
that he was charged.
 
[Defense counsel]:  Judge, I don’t think—I think they have to make an establishment before
you—that they can
prove that beyond a reasonable doubt before they get to put it before the jury.
 I would object to that.
 
[Prosecutor]:  I
think he opened that door.  I don’t have
to make an establishment.  . . .  So I think she’s opened the door and I have a
right to ask her does she know his reputation. 
She can say yes or no.  She’s the
one that said he’s a good boy.  He would
never do nothing [sic] like that.  She
knows her son.  I think I’ve got a right
to ask her about this charge.
 
[Defense counsel]:  I think he’s got to show it beyond a reasonable
doubt before he can do that.
 
[Prosecutor]:  No,
I don’t.
 
THE COURT: I don’t think he has to.
 
[Defense counsel]:  Okay.
 
THE COURT:  Overruled.
 
At that point, the record indicates
that the discussion at the bench ended.  On
cross-examination, the State asked appellant’s mother whether she had heard that
appellant had been accused of sexually abusing an 11-year-old girl.  She indicated that she had heard about the allegations.
 
B.      Applicable Legal Principles
At the punishment phase of a
trial, the State and the defendant can offer evidence regarding “any matter the
trial court deems relevant to sentencing.”  See Tex. Code Crim. Proc. Ann. art. 37.07,
§ 3(a)(1) (Vernon Supp. 2010).  Admissible
evidence includes, but is not limited to the following:
[T]he prior criminal record of the defendant, his general
reputation, his character, an opinion regarding his character, the
circumstances of the offense for which he is being tried, and, notwithstanding
Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous
crime or bad act that is shown beyond a reasonable doubt by evidence to have
been committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or
finally convicted of the crime or act.
 
Id.
 
The Court of Criminal Appeals
has addressed “did you know” and “have you heard” questions asked of character
witnesses.  See Wilson v. State, 71 S.W.3d 346, 349–51 (Tex. Crim. App. 2002).  The court reiterated that a witness who
testifies to a defendant’s good character may be cross examined to test the
witness’s awareness of relevant “specific instances of conduct.”  Id. at
350 (citing Tex. R. Evid. 405).[3]
The right of a party to
cross-examine a character witness on specific instances of conduct is subject
to certain limitations.  Id.  First, the incidents inquired about must be
relevant to the character traits at issue.  Id. at
351.  Second, the alleged bad act must
have a basis in fact.  Id.  Before the questions are asked, the foundation
for inquiring into the specific instances of conduct should be laid outside the
jury’s presence so that the judge will have an opportunity to rule on the
propriety of asking them.  Id.  Specific instances should not, however, be
proven before the jury.  See id.
C.      Analysis
When appellant’s mother
testified that (1) appellant was a “good boy” and (2) “I know my son’s heart,
and I know he didn’t do this,” she was undoubtedly testifying to appellant’s
good character.  Therefore, it was
permissible for the State to cross-examine her concerning her awareness of
relevant specific instances of appellant’s conduct.  See Tex. R. Evid. 405(a); Wilson, 71 S.W.3d at 350. 
First, the alleged bad act
that appellant’s mother was questioned about—an allegation of sexual abuse of another child—was relevant to the character trait
at issue.  See Wilson, 71 S.W.3d at 351.  Second, the record shows that the alleged bad
act had a basis in fact.  See id. 
During the bench discussion, the prosecutor pointed out to the trial
court that the State’s notice of extraneous offenses, which had been sent to
appellant, identified the alleged bad act.[4]  See id.
 Third, whether such cross-examination
was permissible was discussed at the bench—presumably outside the jury’s hearing—and the trial court determined the cross-examination
to be proper.[5]  See id.
          We conclude
that the trial court’s ruling permitting the State to question appellant’s
mother regarding her knowledge of the alleged extraneous bad act was within its
discretion.  We hold that appellant’s
challenge to the admissibility of the testimony is without merit.  Accordingly, we overrule appellant’s third
issue in each appeal.


 
Conclusion
          We
affirm the judgment of the trial court in each appeal. 
 
 
                                                                   Laura
Carter Higley
                                                                   Justice

 
Panel consists of Justices
Keyes, Higley, and Massengale.
Publish.  Tex.
R. App. P. 47.2(b).




[1]           See
Tex. Penal Code Ann. § 22.021(a)
(Vernon 2011).


[2]           With respect to each question,
appellant also moved for a mistrial.  The
trial court denied each motion. 
Appellant does not complain on appeal that the trial court erred when it
denied his motions for mistrial.   


[3]           Texas Rule of Evidence 405 provides as
follows: 
 
In all cases in which evidence of a person’s character or
character trait is admissible, proof may be made by testimony as to reputation
or by testimony in the form of an opinion. 
In a criminal case, to be qualified to testify at the guilt stage of
trial concerning the character or character trait of an accused, a witness must
have been familiar with the reputation, or with the underlying facts or
information upon which the opinion is based, prior to the day of the offense.  In all cases where testimony is admitted
under this rule, on cross-examination inquiry is allowable into relevant
specific instances of conduct. 
 
Tex. R. Evid. 405.


[4]
       In
the trial court, appellant asserted that the State had to prove the alleged act
beyond a reasonable doubt before the State could cross-examine appellant’s
mother regarding her knowledge of the act. 
Appellant does not raise this complaint on appeal.  In any event, such complaint has no
merit.  With respect to proving the
alleged bad act beyond a reasonable doubt, Rule 405 differs from the rule for
admitting extraneous offenses in the punishment phase of trial.  Article 37.07 of the Code of Criminal Procedure
disallows evidence of an extraneous crime or bad act unless it is shown beyond
a reasonable doubt to have occurred.  Tex. Code Crim.
Proc. Ann. art. 37.07 (Vernon
Supp. 2010).  In contrast, cross
examination of the type involved here does not require the State to prove that
the extraneous bad act actually occurred. 
See Tex. R. Evid. 405.  To
the contrary, the Court of Criminal Appeals in Wilson made clear that it would be improper for the State to introduce
evidence to prove that the extraneous act actually occurred.  71 S.W.3d 346, 350–51 (Tex. Crim. App. 2002).  The purpose of Rule 405 cross examination is
to test the character witness, not to introduce extraneous acts.  Id.  Here, questioning appellant’s mother about the
alleged abuse of the 11-year-old girl was permissible to test her knowledge of
the facts and circumstances of appellant’s life.  Thus, the questions were not impermissible on
the ground that the State did not prove the alleged bad act beyond a reasonable
doubt.  See id.
 


[5]
       On
appeal, appellant complains that the record does not reflect that the trial
court heard the challenge to the cross-examination outside the presence of the
jury as required in Wilson.  We disagree. 
The record indicates that the issue was determined at the bench.  The record expressly demarcates when the discussion at the bench began
and when it ended.  There is no
indication that the discussion was within earshot of the jury.  Moreover, as discussed, appellant complained
in the trial court that the State was required to prove the alleged bad act
beyond a reasonable doubt.  He made no
complaint that the discussion at the bench was not outside the presence of the
jury.  It is axiomatic that a complaint
on appeal must comport with the complaint in the trial court.  See Tex. R. App. P. 33.1(a); Coffey v. State, 796 S.W.2d 175, 179
(Tex. Crim. App. 1990) (stating that trial court objection must comport with
complaint raised on appeal).
 


