                NUMBERS 13-11-00617-CR & 13-11-00618-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

GERALD FRANCIS GRAVES, JR.                                                   Appellant,

                                           v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 377th District Court
                          of Victoria County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides
       Appellant, Gerald Francis Graves, was convicted on three counts of aggravated

sexual assault of a child and two counts of indecency with a child.       See TEX. PENAL

CODE ANN. § 22.021(a)(1)(B), § 21.11 (West Supp. 2011). The trial court sentenced

Graves to life in prison on the three counts of aggravated sexual assault, twenty years for
the first count of indecency with a child, and ten years on the second count of indecency

with a child.     See id. §§ 12.32, 12.33 (West Supp. 2011).                    In four issues, Graves

argues on appeal that:          (1) the State engaged in prosecutorial misconduct when it

created and aired a campaign commercial referencing Graves’s case; (2) his right to

retain counsel was violated when he was placed in a position where he could not afford

his counsel of choice; (3) he received ineffective assistance of counsel when his

court-appointed attorney failed to file a motion to transfer venue; and (4) the trial court

erred in not transferring venue sua sponte. We affirm.

                                            I. BACKGROUND

        In December of 2009, T.S., a fourteen-year-old boy at the time of trial, and his

twelve-year old sister T.G., outcried to their foster and adoptive mothers, respectively,

that Graves had sexually abused them when they were younger.                            Graves was the

former boyfriend of T.S.’s and T.G.’s birth mother, S.S.1 Graves frequently babysat the

children before they were removed from their mother’s custody.

        In June 2010, Graves was indicted for three counts of aggravated sexual assault

of a child and two counts of indecency with a child.                     See TEX. PENAL CODE ANN.

§ 22.021(a)(1)(B), § 21.11.          After Graves’s indictment but prior to his trial, Victoria

County had a hotly contested D.A.’s race between former Assistant District Attorney

Deborah Branch and the incumbent District Attorney Steve Tyler. From October 27,

2010 to November 1, 2010, the following campaign radio advertisement was aired:

        Dragnet musical introduction


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           We use initials for the mother to protect the identities of the minor children. See TEX. R. APP. P.
9.8(b)(1)(B) (providing that “the court may order that a minor’s parent or other family member be identified
only by an alias if necessary to protect a minor’s identity.”).

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       (Announcer’s voice) From the Victoria Justice Files: the case of Gerald
       Graves, a/k/a the Pet Shop Pedophile. He was arrested for indecency
       with a young girl in a pet store on May 13th, 2000 and charged. Then
       assistant D.A. Deborah Branch put the Pet Shop Pedophile on deferred
       probation and back on our streets.

       In 2005, he was charged with sexually assaulting another child, but
       Deborah Branch dismissed both the probation violation and new charges
       without explanation, despite a counselor’s report that Graves was a
       dangerous sex offender. Earlier this year, Victoria County Sheriff’s
       deputies filed four new child sex abuse cases against the Pet Shop
       Pedophile, and Steve Tyler’s office will take these cases to trial in
       December. (Sound of prison bars closing).

       (Incumbent D.A.’s voice). I’m Steve Tyler, and for our families to be safe,
       we can’t go back to the catch-and-release policies of the past that put
       dangerous criminals and predators back in our community. So when you
       vote for D.A., ask yourself, do you want a guard dog who bites the bad
       guys, or a lap dog who just barks?” (Announcer’s voice). Political
       advertisement paid for by the Tyler for D.A. Campaign.

       The underlying case went to trial on July 11, 2011.      During jury selection, the

prosecutor asked venire members the following:       “Has anyone heard any publicity in

this case, either on TV, on the radio, or in the newspaper? Just has anybody heard

anything that would potentially affect them? Anyone in the first row?” Juror Number 5

responded that, “I just think I remember from the newspaper, but not recent or

anything . . . I don’t know.   I don’t remember.”       Juror Number 29 answered, “I

remember hearing it, but I don’t even remember much about it.” Both jurors stated that

they could be fair and impartial during the trial. No other venire member responded to

the inquiry.

       At trial, T.S. testified that although Graves bought him and his sister meals, pets,

toys, and electronics, Graves would often condition his gifts with sexual favors. For

example, if T.S. needed help advancing to a new level on a video game, Graves would

make T.S. masturbate him with lotion or perform oral sex on him before he would help

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him with the game. T.S. also admitted that Graves sodomized him. T.G. testified that

Graves made her masturbate him with a “medicine” or lotion, as well.     T.S. reported that

although he told his birth mother S.S. about the sexual abuse, she allowed it to continue

because Graves provided her with financial assistance.

      The jury found Graves guilty of three counts of aggravated sexual assault of a

child and two counts of indecency with a child.            See TEX. PENAL CODE ANN. §

22.021(a)(1)(B), § 21.11.   He was sentenced to life in prison on the three counts of

aggravated sexual assault, twenty years for the first count of indecency with a child, and

ten years on the second count of indecency with a child.    See id. §§ 12.32, 12.33. This

appeal followed.

                                      II. ANALYSIS

A.     Prosecutorial Misconduct

      In his first issue, Graves argues that the State engaged in prosecutorial

misconduct when it created and aired its “Pet Shop Pedophile” commercial. According

to Graves, the airing of this commercial “decimated [his] presumption of innocence” and

affected his due process rights.

1.    Applicable Law and Standard of Review

      The Texas Court of Criminal Appeals has “never established a general test for all

types of prosecutorial misconduct.”   Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim.

App. 1988).   Instead, it has examined these alleged claims on a case by case basis.

Id.   In most cases alleging prosecutorial misconduct, though, courts conduct a

three-part analysis to evaluate the harmful conduct.    Id. at 831 (citing Landry v. State,

706 S.W.2d 105, 111 (Tex. Crim. App. 1985)).         First, the court verifies whether “the


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defendant objected to the conduct of the prosecutor[s].”                       Id.    Second, the court

determines if the prosecutors were deliberately violating an express court order.                          Id.

Third, the court evaluates whether the prosecutorial misconduct was “so blatant as to

border on being contumacious.”              Id.     This test is a “starting point for identifying

reversible conduct.”      Id.

       “Error preservation is not required only when the misconduct ‘so infected the trial

with unfairness as to make the resulting conviction a denial of due process.’”                      Jimenez

v. State, 240 S.W.3d 384, 402 (Tex. App.—Austin 2007, no pet.) (citing Darden v.

Wainwright, 477 U.S. 168, 181 (1986)).             “It is not enough that the prosecutors’ remarks

were undesirable or even universally condemned.”                 Id. The misconduct must deny the

defendant a fair trial.      See id.      “In other words, prosecutorial misconduct does ‘not

assume constitutional dimension unless the evidence is so insubstantial that (in

probability) but for the remarks no conviction would have occurred.’”                   Id. (citing Guidroz

v. Lynaught, 852 F.2d 832, 838 (5th Cir. 1988)).

2.     Analysis

       In his brief, Graves asserts that the pretrial publicity generated by the “Pet Shop

Pedophile” ad “infected” his right to a fair trial and denied him due process.                    However,

Graves concedes that he did not object to the “Pet Shop Pedophile” commercial on the

basis of prosecutorial misconduct. Although he filed motions objecting to the pre-trial

publicity garnered because of the radio advertisements, the complaint he makes now

regarding the State’s alleged misconduct does not comport with the complaint he made

before the trial court. 2 “Grounds of error urged on appeal must comport with the


       2
           Graves’s first counsel, W.A. (Bill) White, objected to the pre-trial publicity in a motion entitled,

                                                      5
objections made at trial or error is not preserved.”       Denision v. State, 651 S.W.2d 754,

762 (Tex. Crim. App. 1983).           Accordingly, we conclude that this issue was not

preserved for review.

       Graves, though, urges us to look beyond this analysis. He argues that the radio

advertisements were so inflammatory that they deprived Graves of his constitutional right

to a fair trial, and that error preservation was not required.     See Jimenez, 240 S.W.3d at

402. We disagree. During voir dire, only two venire members vaguely recalled the

advertisement, and neither person could recall the specifics of what the commercial

relayed.   In addition, both persons testified that they could be fair and impartial when

listening to the evidence. We therefore hold that error, if any, was harmless.           See TEX.

R. APP. P. 44.2. The “prosecutorial misconduct” Graves alleges was insubstantial and

did not affect Graves’s conviction.     Id. We overrule Graves’s first issue.

B.     Right to Retain Counsel

       In his second issue, Graves argues that the airing of the “Pet Shop Pedophile”

advertisement prevented him from having his choice of counsel.                  Graves privately

retained his first attorney, W.A. (Bill) White.        Prior to trial, White filed a motion to

withdraw because Graves could not afford the expenses related to filing a motion to

transfer venue due to the pretrial publicity, hiring a private investigator to interview

Victoria County residents who had heard the claimed offensive commercial, designating

an expert, and proceeding with trial in a different county (which would add hotel, food,

and transportation expenses).       Attorney White, in his motion, asked the court to appoint

him as counsel.      In his motion, White stated that, “current retained counsel is ready,

“Defense Counsel’s Motion to Withdraw as Retained Counsel and Defendant’s Motion for Court-Appointed
Counsel.”

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willing, and able to be appointed in these causes as counsel to maintain defensive

continuity in order to preserve defendant’s constitutional right to an effective defense.”

However, the trial court appointed a different attorney, Luis Martinez.     He subsequently

then appointed another attorney, Keith Weiser, to assist Martinez when Martinez

suffered a health problem near the time of trial.

1.     Applicable Law and Standard of Review

       The United States and Texas Constitutions guarantee a defendant in a criminal

proceeding the right to have assistance of counsel.           Gonzalez v. State, 117 S.W.3d

831, 836 (Tex. Crim. App. 2003) (citing U.S. CONST. amend. VI; TEX. CONST. art. I § 10;

TEX. CODE CRIM. PROC. art. 1.05 (West 2001)).             “The right to assistance of counsel

contemplates the defendant's right to obtain assistance from counsel of the defendant's

choosing.”   Id. at 836–37.   “However, the defendant's right to counsel of choice is not

absolute.”   Id. at 837 (citing Wheat v. United States, 486 U.S. 153, 159 (1988)).        “A

defendant has no right to an advocate who is not a member of the bar, an attorney he

cannot afford or who declines to represent him, or an attorney who has a previous or

ongoing relationship with an opposing party.”       Id.

       Appointment of new counsel, however, is a matter solely within the discretion of

the trial court. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990); see King v.

State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). "A defendant does not have the

right to choose appointed counsel."    Maes v. State, 275 S.W.3d 68, 71 (Tex. App.—San

Antonio 2008, no pet.); see Renfro v. State, 586 S.W.2d 496, 499–500 (Tex. Crim. App.

[Panel Op.] 1979). "Texas courts have specifically held that an indigent defendant does

not have a right to the counsel of his own choosing.”         Trammell v. State, 287 S.W.3d


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336, 343 (Tex. App.—Fort Worth 2009, no pet.). “A trial court has no duty to search for

counsel agreeable to the defendant.”     King, 29 S.W.3d at 566.

2.     Analysis

       In the underlying case, the trial court had no duty to appoint White to continue to

serve as Graves’s counsel.        See id.   The trial court, instead, appointed attorney

Martinez. Later, when Martinez was reportedly suffering from ill health, the trial court

appointed Keith Weiser to assist Martinez in Graves’s defense should Martinez be

unable to do so.     Based upon a review of the law and the record, we cannot say that the

trial court abused its discretion when it appointed attorneys other than White to represent

Graves.       See Solis, 792 S.W.2d at 100; King, 29 S.W.3d at 566. Under Texas law,

Graves, as an indigent, did not have the right to choose which attorney could be

appointed to represent him in his case.      See Maes, 275 S.W.3d at 71. We overrule

this issue.

C.     Ineffective Assistance of Counsel

       In his third issue, Graves argues that his attorney provided ineffective assistance

by failing to file a motion to transfer venue in light of the “Pet Shop Pedophile” radio

advertisements.

1.     Applicable Law and Standard of Review

       To prevail on an ineffective assistance of counsel claim, appellant must show that

(1) counsel’s representation fell below an objective standard of reasonableness, and (2)

the deficient performance prejudiced the defense.     Strickland v. Washington, 466 U.S.

668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Our

review of counsel’s representation is highly deferential, and we will find ineffective


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assistance only if appellant rebuts the strong presumption that his counsel’s conduct fell

within the wide range of reasonable professional assistance.        Strickland, 466 U.S. at

689; Lopez, 343 S.W.3d at 142.          The record must contain evidence of counsel’s

reasoning, or lack thereof, to rebut the presumption.      See Moreno v. State, 1 S.W.3d

846, 865 (Tex. App.—Corpus Christi 1999, pet. ref’d).           We review the totality of

representation rather than isolated instances in determining whether trial counsel was

ineffective.   See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

2.      Analysis

        Graves argues that his counsel’s failure to file a motion to transfer venue

constituted ineffective assistance because the airing of the “Pet Shop Pedophile”

commercial during campaign elections precluded him from having a fair and impartial

jury.   The record is silent on Graves’s attorney’s decision not to file a motion to transfer

venue.       Because our review of Graves’s attorney’s performance must be highly

deferential, we presume that this decision constituted reasonable performance.

Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142.

        Further, Graves cannot show that, “but for” the filing of the motion to transfer

venue, he would not have been convicted. There was substantial testimonial evidence,

including evidence from both of the minor victims, detailing Graves’s commission of the

offenses.      Further, only two members of the venire vaguely recalled the radio

commercial, and both stated that they could be fair and impartial during the pendency of

the trial.   None of the other persons impaneled were aware of or could recall the “Pet

Shop Pedophile” radio advertisement.       Accordingly, Graves has not met his burden to

prove that the failure to file a motion to transfer venue prejudiced his case. We overrule


                                              9
his third issue.

D.     Sua Sponte Transfer of Venue

       In his fourth and final issue, Graves argues that the trial court erred in failing to

sua sponte transfer the venue of the case to a different county.

1.     Applicable Law and Standard of Review

       Texas Code of Criminal Procedure article 31.01 provides as follows:

       Whenever in any case of felony or misdemeanor punishable by
       confinement, the judge presiding shall be satisfied that a trial, alike fair and
       impartial to the accused and to the State, cannot, from any cause, be had
       in the county in which the case is pending, he may, upon his own motion,
       after due notice to accused and the State, and after hearing evidence
       thereon, order a change of venue to any county in the judicial district in
       which such county is located or in an adjoining district, stating in his order
       the grounds for such change of venue. The judge, upon his own motion,
       after ten days notice to the parties or their counsel, may order a change of
       venue to any county beyond an adjoining district; provided, however, an
       order changing venue to a county beyond an adjoining district shall be
       grounds for reversal if, upon timely contest by the defendant, the record of
       the contest affirmatively shows that any county in his own and the adjoining
       district is not subject to the same conditions which required the transfer.

TEX. CODE CRIM. PROC. ANN. art. 31.01 (West 2006).

2.     Analysis

       Based on the facts of this case, we cannot say that the trial court erred by not sua

sponte transferring the venue of this case. The alleged offensive commercials were

aired a full ten months prior to trial. Only two members of the jury panel could recall that

a commercial was aired, but did not remember any discerning details about the

advertisement.     Both members testified that they could be fair and impartial if chosen to

be a part of the jury.    None of the other venire persons admitted that they were aware of

any pretrial publicity.   Finally, the record is unclear as to whether either of these persons

was made a final member of the jury.

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       In light of the foregoing, we overrule this issue.

                                      III. CONCLUSION

       Having overruled all of Graves’s issues, we affirm the trial court’s judgments.




                                                            __________________________
                                                            GINA M. BENAVIDES,
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
27th day of June, 2013.




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