                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00452-CR


MICHAEL RAY BROWN                                               APPELLANT

                                          V.

THE STATE OF TEXAS                                                    STATE


                                      ------------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                       MEMORANDUM OPINION1
                                      ------------

                                   I. Introduction

      In three issues, Appellant Michael Ray Brown appeals his conviction for

two counts of indecency with a child. We affirm.




      1
       See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

      The complainant, M.W., made a sexual abuse outcry about Brown to her

school counselor when she was in the ninth grade.2 The school counselor told

M.W.‘s parents about the outcry. M.W.‘s father, R.W., called the Arlington police

and then he pretended to be M.W. and sent Brown sexually explicit text

messages from his cell phone. R.W. sent his messages and Brown‘s responses

from his phone to his e-mail, printed them out, and brought them to Arlington

Police Detective Garth Savage, who was investigating the offense.3

      Detective Savage wanted to confirm that Brown was the one sending the

text messages. He and R.W. arranged for Brown to meet R.W. (sending texts as

M.W.) at M.W.‘s school at 11:30 a.m. on March 24, 2008. R.W. also printed out

Brown‘s text responses from the day of the meeting, and Detective Savage was

present when R.W. received these messages on March 24 from Brown.

      When Brown arrived at M.W.‘s school, Detective Savage spoke with him

about the text messages and took his phones, and Brown gave a written

statement on a form preprinted with Miranda warnings4 and signed consent-to-




      2
       M.W. was born in 1993. She was seventeen at the time of the trial.
      3
         Brown‘s responses to R.W.‘s texts included, ―Have you been with
anybody else besides me?‖ and ―You sure you haven‘t been with anybody? You
talk like you have. You know I will be able to tell,‖ and ―Sex with me only. You
promise. I will forever love you and take care of you. I want the best for you.‖
      4
       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

                                       2
search forms, which also had his rights preprinted on them, for the phones.

Brown left after giving his statement.

      Brown gave another written statement to the police on April 21, 2008.

Detective Savage said that Brown was not in custody when he gave this

statement and that Brown left after giving the statement.     After Brown left,

Detective Savage obtained a warrant for Brown‘s arrest. Detective Savage taped

his March 24 and April 21 conversations with Brown; Brown did not know that he

was being taped.

      The State charged Brown with one count of sexual assault (digital

penetration of M.W.‘s female sexual organ) and two counts of indecency with a

child (touching M.W.‘s breasts and causing M.W. to touch Brown‘s penis),

occurring on or about June 1, 2007.

      Brown filed two motions to suppress. The first motion sought to suppress

any of Brown‘s statements, and the second sought to suppress the text

messages. The trial court denied both motions.

      At trial, M.W. claimed that Brown began touching her ―private areas‖ when

she was five years old and that the sexual abuse continued until March 2008,

when M.W.‘s teacher asked her about her repeated absences from class. M.W.

said her absences occurred because Brown would pick her up from school

during lunch and take her back to his apartment, where he would touch her

breasts, have her touch his penis, and move his finger around inside her female



                                         3
sexual organ.5 Brown had bought a cell phone for M.W., and they would text

each other throughout the day. R.W. stated that he was very upset when he

found out about the sexual abuse, especially since Brown had been a

grandfather figure to M.W.

      The trial court overruled Brown‘s objections to his March 24 statement and

admitted it as State‘s Exhibit 3. In the March 24 statement, Brown gave his age

as fifty-two and stated that he had completed twelve years of formal education

and could read, write, and understand the English language. Detective Savage

read the following into evidence from Brown‘s statement:

              I have never picked up [M.W.] from Timberview High School. I
      have not had sex with [M.W.] and am certain that all claims she is
      making [are] false. I do acknowledge having given [M.W.] money on
      various occasion[s] upon her request. I do acknowledge that I have
      brought [M.W.] lunch to school on numerous occasions. I have on
      many occasions talked about abstaining from actual sexual contact
      to avoid pregnancy. I have acknowledge[d] that I have had
      conversations with [M.W.] of a sexual nature. I even saved several
      texts (which may have been someone other than [M.W.] sending
      them) that were very explicit in nature that really shocked me that
      she would say such things. But in reality it may have been the police
      sending the text[s]. I realize that even the conversations were
      wrong. I have never been with [M.W.] sexually no where [sic]. The
      money and lunch were always her asking and I tried to
      accommodate her in order to keep a positive relationship with
      frie[n]ds. She is a very friendly girl, but she knows how to pretend
      and act in order to achieve her goals. I realize that the things [M.W.]
      accuses me of are truly false and with [sic] documentation and
      substance. Even today, she had asked me to bring pizza and I was
      confronted by police. Apparently, I was being led on thinking it was
      [M.W.]

      5
       M.W. said that at some point in 2007, Brown attempted sexual intercourse
with her and that Brown took her virginity.

                                        4
            The school secretary can acknowledge that on many
      occasions I have brought lunch to [M.W.] per her request.

      The trial court also admitted Brown‘s April 21 statement as State‘s Exhibit

4-A after overruling Brown‘s objections, and Detective Savage read the following

portion into evidence:

            I hereby admit to kissing and touching [M.W.] when we were
      alone at a park in Arlington. She would touch my penis and I would
      touch her clitoris. I also touched her breast. This happened on two
      occasions during the summer of 2007. These incidents happened
      during the day in my vehicle. These were the only times I had
      sexual contact with her. I never actually put my penis into her
      vagina. The touching was under her clothes. She nor I never fully
      undressed. I realize the error of my ways and am taking full
      responsibility. I would desire to seek therapy or counseling in this
      matter.

The trial court admitted State‘s Exhibit 8, which contained audiotape recordings

of Brown‘s March 24 and April 21 conversations with Detective Savage.

      The jury found Brown not guilty of the sexual assault charge, and the trial

court entered a judgment of acquittal on that offense. The jury convicted Brown

of both counts of indecency with a child and assessed punishment at fifteen

years‘ confinement and a $5,000 fine for each count, and the trial court entered

judgment on the verdicts, setting Brown‘s sentences to run concurrently. This

appeal followed.

                            III. Motion to Suppress

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

denying his motion to suppress his statements. Specifically, he complains that

the instant Detective Savage seized his phone, an arrest was made and that all

                                         5
actions and statements that followed the stop and seizure should have been

suppressed. Further, Brown claims that he was induced and threatened by a

polygraph examiner to divulge his guilt, making his confession invalid.

A. Preservation of Error

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687,

691–92 (Tex. Crim. App. 2009). Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court‘s refusal to rule. Tex. R. App. P.

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A

reviewing court should not address the merits of an issue that has not been

preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.

2010) (op. on reh‘g). Preservation of error is a systemic requirement that this

court should review on its own motion. Id. at 473–74; Ford v. State, 305 S.W.3d

530, 532–33 (Tex. Crim. App. 2009).

      In his ―Motion to Suppress Statements,‖ Brown argued that ―[a]t the time of

any conversations between [Brown] and law enforcement officers, [Brown] was

(a) under arrest or (b) substantially deprived of freedom by the conduct of the law

enforcement officers and the circumstances surrounding the arrest or deprivation

of freedom.‖ He alleged that any statements made by him were involuntary and

                                        6
were coerced and enticed from him; that he was deprived of the right to counsel

and did not make an intelligent and knowing waiver of that right; and that his

statements ―were tainted by the illegal and unlawful detention and arrest, in

violation of [his] constitutional rights under the Fifth and Fourteenth Amendments

to the Constitution of the United States, Article I, Section 9 of the Texas

Constitution and Article 38.23 of the Texas Code of Criminal Procedure.‖

Further, he argued that the statements were taken ―without the safeguards

required by and in violation of Article 38.22 of the Code of Criminal Procedure‖

and that the admission of his statements would violate his rights under the

―Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution, Article I, Section[s] 9 and 10 of the Texas Constitution and Articles

1.05 and 38.23 of the Texas Code of Criminal Procedure.‖ Nothing in the motion

indicates at what point Brown was taken into custody or provides any factual

basis to conclude that he was taken into custody.

      At the suppression hearing, Brown‘s cross-examination of Detective

Savage focused on the text messages printed out by R.W. and the polygraph

examination. His arguments the following day, after the trial court reviewed the

March 24 and April 21 audiotaped conversations between Brown and Detective

Savage, focused again on the text messages and on enticement or coercion by

the polygrapher as an agent of the Arlington police department. Brown did not

argue that he was taken into custody when Detective Savage took his cell phone.



                                        7
      During trial, Brown objected to the admission of his written statements,

citing code of criminal procedure articles 38.22 and 38.23 and Sossamon v.

State, 816 S.W.2d 340 (Tex. Crim. App. 1991), abrogated on other grounds by

Graham v. State, 994 S.W.2d 651, 655–56 (Tex. Crim. App.), cert. denied, 528

U.S. 974 (1999).6 He did not argue that he was arrested when Detective Savage

took his cell phone.

      For the first time on appeal, Brown argues that he was arrested when

Detective Savage detained him and took his cell phone on March 24. 7 Brown‘s

situation is similar to that of the appellant in Swain v. State, 181 S.W.3d 359, 365

(Tex. Crim. App. 2005). In Swain, the appellant argued for the first time on

appeal that his oral statement to a police detective and an investigator from the

district attorney‘s office and his third written statement were obtained in violation

of his right to counsel under the federal and state constitutions because he was

questioned after he had appeared before a magistrate and had requested the



      6
      Brown cited Sossamon for the proposition that a confession obtained by a
promise or benefit can be involuntary. 816 S.W.2d at 345.
      7
       Brown notes,

      Trial counsel unfortunately did not inquire as to how the stop and
      immediate seizure of the Appellant and his cell phone were not
      prima facie indicators that an arrest had already taken place, but the
      seizure of non-contraband property during an encounter surely
      escalated the that [sic] encounter to an arrest.

        He also raises the failure to suppress the seizure of the cell phone in his
third issue on ineffective assistance of counsel.

                                         8
appointment of counsel, rendering the statements inadmissible under article

38.23 of the code of criminal procedure. Id. at 363, 365. In his written motion,

however, the appellant merely argued that ―any statements made by Defendant

were obtained in violation of his right to counsel and his right against self-

incrimination as guaranteed by U.S. Const. amends. V, VI, and XIV, and Tex.

Const. art. I, §§ 10 and 19,‖ and argued generally that the statements were

inadmissible under article 38.23. Id. at 365.

      The court of criminal appeals held that because the arguments in the

appellant‘s motion were ―global in nature and contained little more than citations

to constitutional and statutory provisions,‖ and because at the suppression

hearing, the appellant failed to complain about being questioned after asserting

his right to counsel and ―instead simply objected that his statements were

inadmissible because the police illegally arrested him and failed to comply with

the requirements of Articles 38.22, 14.03, and 14.06,‖ the appellant had failed to

preserve the arguments that he had tried to make on appeal. Id. (citing Tex. R.

App. P. 33.1).

      Like Swain, here, Brown made global arguments in his written motion to

suppress. At the suppression hearing, he focused on the admissibility of the text

messages under his other motion and on the actions of the polygrapher on April

21 with regard to coercion and enticement, not the actions of Detective Savage

on March 24 in taking Brown‘s cell phone. And although the trial court made

findings of fact and conclusions of law on the record at the conclusion of the

                                         9
suppression hearing, the findings and conclusions did not address the seizure of

the cell phone, other than to find that Brown was not in custody on March 24.

Brown did not argue at trial that Detective Savage arrested him on March 24

when he took Brown‘s cell phone from him.           Therefore, Brown has failed to

preserve this argument for our review. See Tex. R. App. P. 33.1; Swain, 181

S.W.3d at 365. We overrule the first portion of Brown‘s first issue.

B. Suppression

      We review a trial court‘s ruling on a motion to suppress evidence under a

bifurcated standard of review.      Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

The trial judge is the sole trier of fact and judge of the credibility of the witnesses

and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–

25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim.

App. 2006).     When, as here, the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court‘s ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808,

818–19 (Tex. Crim. App. 2006). We then review the trial court‘s legal ruling

de novo unless its explicit fact findings that are supported by the record are also

dispositive of the legal ruling. Id. at 818.




                                           10
      1. Trial Court’s Findings of Fact and Conclusions of Law

      The trial court read the following pertinent findings of fact and conclusions

of law into the record:

             Detective Savage began his investigation of the case. The
      father of the alleging party sent text messages pretending to be the
      injured party. The defendant responded to those text messages.
      The defendant agreed to meet at the school. Officers approached
      the defendant at the school where the defendant was thinking he
      was there to pick up the child.[8]

             Defendant was told of the allegation. Defendant signed a
      statement that contained Miranda warnings. Defendant was not in
      custody. Defendant had not been deprived in any significant
      manner away [sic] of his freedom [of] movement. Defendant made
      a—signed a statement in which he denied hav[ing] any sexual
      relationship with the injured party. He admitted, however, to talking
      with her about sex.

             Defendant agreed to take a polygraph examination. A
      polygraph was taken several weeks after the initial contact. The
      defendant was permitted to go voluntarily to the polygraph site. He
      was not deprived of his freedom of movement at the polygraph exam
      location. He was not in custody. He was not under arrest. The
      defendant met voluntarily with Mr. Jones of Wood‘s Polygraph
      Service. He took the polygraph test and was told that he did not
      pass the test and that he should come clean.

            At the time, Wood‘s Polygraph was an independent
      contractor—or rather, in an independent contractual relationship with
      the Arlington P.D. However, detectives—I‘m sorry, Mr. Jones—you
      have no evidence that Mr. Jones made the statement to the
      defendant that he should come clean at the urging of the Arlington
      Police Officer Savage or any other member of the Arlington Police
      Department.



      8
      The audiotape reflects that Brown actually said that he was there to talk to
M.W. and that he vehemently denied that he had ever picked her up at school.

                                        11
             No testimony that Mr. Jones was acting as an agent of the
      Arlington Police Department at the time he made such statement.
      And, again, the defendant was not in custody. He was not deprived
      of his freedom in any manner.

            The defendant‘s second statement was freely and voluntarily
      made. In the statement, the defendant expressed hope that he
      would get treatment. In his voluntary statements to the police, he
      was expressing the hope of getting probation. Mr. Jones related to
      the defendant that he had known of cases where people had gotten
      probation for similar crimes. However, Mr. Jones did not promise
      the defendant he would get probation.

            And, again, the defendant was never told he was under arrest,
      and his freedom of movement was never limited or restricted in any
      manner. In fact, he was expressly told that he was free to leave on
      each occasion.[9]

            For these reasons, and for all these reasons, the Court denies
      your motion to suppress and rules that you have not met—you have
      not shown a violation of Article 38.22 nor Miranda.

      After voir dire and before opening statements, the trial court added the

following:

             My previous ruling pertained to the audio statements as well
      as the written statements. And for the reason I gave in my findings
      of the fact [sic] this morning, that applies to the audio. The audio will
      be permitted to be introduced. However, I am going to instruct the
      State to redact any portion of the audio that concerns the polygraph
      examination. That would be inadmissible.

      2. Additional Suppression Hearing Evidence

      Detective Savage testified that he had arranged for Brown to take a

polygraph exam on April 21 with Wood‘s Polygraph, a company that the Arlington


      9
      The audiotape of the March 24 conversation does not contain an express
statement by Detective Savage to Brown that he was free to leave.

                                         12
Police Department used on a regular basis. He said that he did not observe the

polygraph exam but that after Bobby Jones, the polygrapher, told him the results,

he told Jones that he would like to talk to Brown. Detective Savage and Brown

then talked in the polygraph company‘s conference room, and he recorded their

conversation. Detective Savage did not recall Brown‘s trying to talk with him

about what Brown and Jones had discussed.10

      Brown agreed to give Detective Savage another statement. Brown gave

his second statement on another form with pre-printed Miranda warnings, and

Detective Savage asked him to read the warnings to himself and indicate

whether he understood them.      Brown indicated that he understood them by

initialing next to them. Detective Savage said that he had made it clear to Brown

that getting Brown help and probation were out of his hands and that he did not

promise Brown anything for his statement. Their discussion about bond issues

occurred after Brown gave his statement. Detective Savage obtained an arrest

warrant for Brown on May 20, 2008.

      Jones, the polygrapher from Wood & Associates Polygraph Services,

testified that his company was an independent contractor and had a contract with

the Arlington Police Department. Jones said that at the end of the test, he told

Brown that he had failed and suggested to him that he ―come clean.‖          The

following dialogue then occurred between Jones and defense counsel:

      10
        Brown never expressly stated anything about Jones during the recorded
April 21 conversation.

                                       13
      Q. And you suggested to him that he come clean?

      A. Yes, ma‘am.

      Q. And in the process of that, you-all talked about that if he would
      go ahead and come clean, you gave him examples of people who
      got better situations, probation, help, counseling for just going ahead
      and telling the truth?

      A. We discussed that, yes, ma‘am.

      Q. You not only discussed it, sir, but it came from you, these
      scenarios and these examples, that you knew of personally where
      some people regretted not coming clean versus others who had a
      slightly better deal from coming clean?

      A. No, ma‘am. The context I put it in—he was obviously very guilt-
      ridden. I talked to him about many people I see in this situation get
      probation. And that‘s the truth, that I couldn‘t promise him anything
      at all. I wasn‘t in a position to do that, but he was carrying a big
      burden on his shoulders that he had to get off his shoulders. And I
      gave him the example that people who are open and honest get that
      burden off their shoulders, that if he makes it hard on other people,
      they make it hard on him in return. That‘s a human trait that we all
      have. I talked to him in those regards.

      Jones also said that in conducting his interview with Brown, he never

promised Brown anything and told Brown that he could not promise him anything

and that he did not make any promises or inducements to obtain Brown‘s

statement. Jones testified that Brown was free to leave and to terminate the

interview at any time, that Brown knew this, and that Brown never terminated the

interview.   Jones stated that he was not a member of the Arlington Police

Department and that he did not take a written statement or record Brown‘s

statement.



                                        14
      The trial court reviewed the audiotape containing Detective Savage and

Brown‘s March 24 and April 21 conversations prior to issuing its ruling, and these

conversations were subsequently played for the jury.

      The April 21 recording reflects that Detective Savage told Brown that he

was not under arrest, that he was not going to arrest Brown that day, and that

Brown was going to leave just like he came. He acknowledged that Brown had

been very cooperative. Brown told Detective Savage that he and M.W. had two

encounters in a park in Arlington, where he touched M.W.‘s breast and female

sexual organ with his hand on two occasions and M.W. touched his penis on one

occasion.

      Brown said that he admitted his ―wrong‖ and that he needed to accept

responsibility and ―to get some help about that.‖ Detective Savage told Brown,

―We can do that, you‘re doing the right thing, you know, being honest.‖ Brown

then said,

              And I appreciate the way you‘ve been helping me. You know,
      I really do, you know, you been honest with me, you know, you been
      gentle, more or less, you know, and I really appreciate it. That‘s
      why, even in the beginning, when you confronted me, I didn‘t try to
      just deny everything.

Brown then told Detective Savage his hope that he could admit ―to this,‖ put in a

guilty plea, and get probation.

      Detective Savage told Brown that those decisions were up to the district

attorney and the court, Brown acknowledged that he knew this, and then the

detective asked Brown to give him a written statement of what they had just

                                       15
talked about. Detective Savage showed Brown the top part of the form that set

out his Miranda rights, asked him to read through them, and told him that if he

had any questions at all, just to ask.    While Brown wrote out his statement,

Detective Savage told him that if he wanted to ask for counseling, to put that in

the statement.

      Detective Savage asked Brown whether he had any questions. Brown

asked him what would happen next, and Detective Savage told him that he would

present the case to the district attorney, that there would probably be an arrest

warrant issued for Brown‘s arrest, and that Brown would have to go through ―the

process‖ and make bail. Detective Savage told Brown that when he had the

warrant signed by the judge, he would tell the judge that Brown had been

cooperative, so the judge could take that into consideration when issuing his

bond. He explained to Brown what a bond was.11

      11
        Detective Savage‘s trial testimony was substantially similar to his
testimony during the suppression hearing and to the audiotaped conversations.
He said that he interviewed Brown on April 21 and told Brown before the
interview that ―he was not under arrest and that he could leave just the way he
came.‖ Brown was not under arrest, was not handcuffed, and was not detained
in any way during the interview, and he gave his written statement on a form pre-
printed with Miranda warnings.
       Brown asked Detective Savage what would happen after he left, and
Detective Savage explained the bond procedure to him. Brown said that he
needed to get some help and Detective Savage admitted that he responded, ―We
can do that,‖ but he also said that he had told Brown that in the context of Brown
putting his desire for counseling into his written statement and not as a promise
that Brown would receive counseling or that he would receive it as a result of his
written statement. Brown left after the interview. Detective Savage reported to
the judge that Brown had been cooperative so that the judge could set an
appropriate bond based on all of the facts and circumstances.

                                         16
      3. Analysis

      In the second part of his first issue, Brown claims that he made his

confession due to threats and a false promise of leniency by the polygrapher.

      A statement may be used in evidence against an accused if it appears that

the statement was ―freely and voluntarily made without compulsion or

persuasion.‖ Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005). For a promise

to render a confession invalid, it must be positive, made or sanctioned by

someone in authority, and of such an influential nature that it would cause a

defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex.

Crim. App. 2004). ―Before a promise will render a confession inadmissible, it

must be shown that the promise induced the confession.‖ Muniz v. State, 851

S.W.2d 238, 254 (Tex. Crim. App.) (noting that general statements made to a

suspect that a confession may sometimes result in leniency do not render a

confession involuntary because this is a statement of fact, not a promise in

exchange for a confession), cert. denied, 510 U.S. 837 (1993).        Further, a

confession given ―under the duress of hallucinations, illness, medications, or

even a private threat‖ can be involuntary under articles 38.21 and 38.22, and the

inquiries do not turn solely on police overreaching. Oursbourn v. State, 259

S.W.3d 159, 172 (Tex. Crim. App. 2008).

      The record supports the trial court‘s findings that Jones was not an

employee or agent of the Arlington Police Department and that Jones did not

make his statement that Brown should ―come clean‖ at the police department‘s

                                       17
urging. Further, there is no evidence that Jones or Detective Savage threatened

Brown or promised Brown anything for his confession or that Brown felt

threatened and made his confession in response to threats or promises. To the

contrary, Brown even thanked Detective Savage for being ―gentle‖ with him.

Therefore, we overrule the remainder of Brown‘s first issue.

                                  IV. Sufficiency

      In his second issue, Brown complains that the State failed to prove that

M.W. was not his spouse.

A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638. The standard of review is

the same for direct and circumstantial evidence cases; circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor. Isassi, 330

S.W.3d at 638; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).



                                         18
B. Analysis

      At the time of the offense, to prove indecency with a child, the State had to

show that the accused engaged in sexual contact with a child or caused a child

to engage in sexual contact, that the child was younger than seventeen years,

and that the child was not the accused‘s spouse. See Act of May 23, 2001, 77th

Leg., R.S., ch. 739, § 2, 2001 Tex. Gen Laws 1463, 1463 (amended 2009)

(current version at Tex. Penal Code Ann. § 21.11 (West 2011)). A ―spouse‖ is a

person to whom a person is legally married under the family code. Tex. Penal

Code Ann. § 21.01(4) (West 2011). Direct evidence that the complainant was

not the defendant‘s spouse is not required. Strahan v. State, 306 S.W.3d 342,

348 (Tex. App.—Fort Worth 2010, pet. ref‘d) (stating that it may be proved by

circumstantial evidence that the victim was not the defendant‘s spouse).

      Here, M.W. testified that she was five years old when Brown began

babysitting her and touching her in her ―private areas.‖ R.W. said that Brown had

been dating and living with M.W.‘s grandmother L.L. as L.L.‘s boyfriend and that

Brown was a grandfather figure to M.W. At the beginning of her seventh grade

year, M.W. moved to Arlington, Texas, and Brown followed.          M.W. said that

Brown moved with L.L. into the same apartment complex where M.W. lived.

      Although Brown denied that he and M.W.‘s grandmother had ever been

lovers during the April 21 conversation with Detective Savage, the evidence also

revealed that L.L. had broken up with Brown after M.W.‘s parents took M.W.‘s

cell phone, found a compromising text from Brown, and confronted M.W. about it.

                                        19
On the March 24 audiotape, Brown clearly stated to Detective Savage that he

was not M.W.‘s ―boyfriend‖ but said that they had a close relationship and that he

had raised her.    See id. (holding circumstantial evidence was sufficient to

establish that complainant was not the defendant‘s spouse when she was

approximately ten years old when the sexual abuse began and referred to the

defendant as her father); Martin v. State, 819 S.W.2d 552, 556 (Tex. App.—San

Antonio 1991, no pet.) (holding circumstantial evidence was sufficient to establish

that complainant was not the defendant‘s spouse when the complainant was

between the ages of six and nine when the offense took place); Meyers v. State,

737 S.W.2d 6, 8 (Tex. App.—Corpus Christi 1987, no pet.) (holding

circumstantial evidence was sufficient to establish that complainant was not the

defendant‘s spouse when he had asked the victim‘s mother to marry him, had

two children with the victim‘s mother, and was considered by the victim‘s

relatives to be the victim‘s stepfather); see also Salinas v. State, No. 13-99-

00226-CR, 2000 WL 34252060, at *2 (Tex. App.—Corpus Christi 2000, no pet.)

(not designated for publication) (stating that the circumstantial evidence was

sufficient to make it legally impossible for complainant to be the defendant‘s

spouse when the evidence established that she was five years old when the

sexual assault occurred and the defendant testified that he was her father).

Viewing the evidence in the light most favorable to the jury‘s verdict, we conclude

that the evidence is sufficient to support the jury‘s finding that M.W. was not

Brown‘s spouse, and we overrule his second issue.

                                        20
                     V. Ineffective Assistance of Counsel

      In his third issue, Brown contends that he received ineffective assistance

of counsel because his counsel (1) waited until five days before trial to file her

―boilerplate discovery motions‖ that made no request for evidence of extraneous

offenses that might be introduced by the State during the guilt-innocence or

punishment phases of trial,12 (2) failed to file a motion in limine to bar the State

from having M.W. testify about those offenses, (3) failed to object to the

extraneous offenses when they came in, and (4) failed to suppress the seizure of

his cell phone.

A. Standard of Review

      To establish ineffective assistance of counsel, the appellant must show by

a preponderance of the evidence that his counsel‘s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel‘s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is

whether counsel‘s assistance was reasonable under all the circumstances and

      12
       The State introduced no additional evidence during the punishment
phase of Brown‘s trial.

                                        21
prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel‘s representation is

highly deferential, and the reviewing court indulges a strong presumption that

counsel‘s conduct fell within a wide range of reasonable representation. Salinas

v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65

S.W.3d 59, 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a

position on direct appeal to fairly evaluate the merits of an ineffective assistance

claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. ―In the

majority of cases, the record on direct appeal is undeveloped and cannot

adequately reflect the motives behind trial counsel‘s actions.‖         Salinas, 163

S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption

of reasonable professional assistance, ―any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness.‖ Id. (quoting Thompson, 9 S.W.3d at 813). It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.

Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel‘s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

appellant must show there is a reasonable probability that, but for counsel‘s

unprofessional errors, the result of the proceeding would have been different. Id.

                                         22
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

B. Analysis

      Under section 2 of article 38.37 of the code of criminal procedure,

evidence of other crimes, wrongs, or acts committed by the defendant against

the child who is the victim of an alleged sexual offense shall be admitted for its

bearing on relevant matters, including the state of mind of the defendant and

child and the previous and subsequent relationship between the defendant and

child. Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West 2005 & Supp. 2011).

Under section 3 of the same article, on timely request by the defendant, the State

shall give notice of its intent to introduce this evidence in its case-in-chief. Id.

art. 38.37, § 3.

      As argued by Brown, his trial counsel filed her motion for discovery on

October 5, 2010, the day trial began. Brown complains, ―It is difficult to ascertain

why trial counsel would not have requested ‗extraneous offenses‘ in her

discovery and filed the requisite motion in limine.‖13 However, at the conclusion

of the suppression hearing, Brown‘s counsel put the following on the record:


      13
         In her motion, counsel asked the court to order the State to produce its
list of witnesses, as well as the list of statements made by Brown to the State in
connection with the case; the State‘s warrants and affidavits obtained to search
Brown‘s property or person or to arrest Brown and any written waiver alleged by
                                        23
            [Defense counsel]: Okay. Also, I explained to you some time
      ago that one of the blessings we have in practicing in Tarrant
      County, is we have what is called an open-file policy. And I
      explained to you that I‘m able to get the police report, I’m able to get
      any information that the district attorneys have and don’t
      automatically have to file a motion to get that like some other
      counties.

            Remember, I told you I have everything? In fact, we talked in
      my office with me having those materials, going over that information
      with you on more than one occasion.

            [Brown]: Yes, ma‘am.

            [Defense counsel]: Now, on today, though, I wanted to be
      cautious, and I did file a motion for discovery, which basically asked
      them for everything I already have; do you understand that?

            [Brown]: Yes, ma‘am.

             [Defense counsel]: The only thing that I needed from the
      State, which they provided that to me, was the witnesses. And they
      went even further by telling me which ones they anticipate
      specifically to call today; do you understand that?

            [Brown]: Yes, ma‘am.

             [Defense counsel]: They could have given me a list of ten or
      twelve people, but they basically gave me the three or four they may
      call; do you understand?

            [Brown]: Yes, ma‘am. [Emphasis added.]

      Although Brown speculates that his trial counsel was unaware of the

extraneous offenses—specifically M.W.‘s testimony that Brown had been

the State to have been signed by Brown involving his right to counsel, right to
remain silent, or right to be free from search and seizure; any photographic,
physical, or scientific evidence in the case; any evidence pertaining to Brown‘s
competency to stand trial, rule 404(a)(2) evidence of the alleged victim‘s
character traits; and exculpatory evidence.

                                        24
touching her sexually since she was five years old—and argues that trial

counsel‘s failure to file the motion was ―an inexplicable abdication of her duty to

thoroughly investigate the case,‖ we cannot say that the record here affirmatively

demonstrates the alleged ineffectiveness. See Salinas, 163 S.W.3d at 740.

      Further, with regard to trial counsel‘s failure to file a motion in limine

regarding the extraneous offenses and her failure to object to them during trial, to

establish that counsel was ineffective for either failing to file a motion or for failing

to object, the appellant must first show that the motion would have been granted

or that the trial court would have committed error by overruling the objection.

See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (―To show

ineffective assistance of counsel for the failure to object during trial, the applicant

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

objection.‖); Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993)

(stating that ineffective assistance of counsel is not shown when there is no

showing that a ruling on any of the pretrial motions would have changed anything

in the case); see also Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App.

1998) (stating that to satisfy Strickland when counsel failed to file a motion to

suppress, appellant was obliged to show that the motion would have been

granted); Muniz v. State, 851 S.W.2d 238, 258 (Tex. Crim. App.) (stating that the

failure to object to admissible evidence is not ineffective assistance of counsel),

cert. denied, 510 U.S. 837 (1993).



                                           25
      Because the record reflects that Tarrant County has an open-file policy—

giving defense counsel access to all of the evidence of which the State was

aware—and because under article 38.37, section 2 of the code of criminal

procedure, the extraneous offenses were admissible, Brown cannot show that his

defense counsel‘s failure to file a motion in limine with regard to the extraneous

offenses constituted ineffective assistance. And because the record is silent as

to counsel‘s reason for failing to object and because Brown has not shown that

the trial court would have erred by overruling an objection to the extraneous

offense evidence, Brown has failed to rebut the presumption that his trial counsel

acted reasonably. See Thompson, 9 S.W.3d at 814.

      Finally, although Brown argues that trial counsel was ineffective in failing to

suppress the seizure of his cell phones, Detective Savage testified at the

suppression hearing that no text messages were recovered from Brown‘s cell

phones. Further, even assuming that Brown‘s confessions stemmed from an

unlawful cell phone seizure, the jury could have reached the same conclusion

that it did without considering Brown‘s confessions. That is, the jury could have

chosen to believe M.W.‘s testimony about the indecent touching and R.W.‘s

testimony about the text messages that resulted in Brown‘s appearance at

M.W.‘s school.     And it could have chosen to believe Detective Savage‘s

testimony that Brown had a phone in his hand when he approached Brown‘s

truck at the school on March 24—as had been arranged via text message with

R.W. pretending to be M.W.—and Brown‘s audiotaped statement on March 24,

                                        26
prior to Detective Savage‘s taking his cell phone, that Brown was at the school to

talk to M.W., to confirm the portions of M.W.‘s testimony that it found credible and

thereby convict Brown of the two counts of indecency.14 See, e.g., Bazanes v.

State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010, pet. ref‘d) (stating that a

complainant‘s testimony alone is sufficient to support a conviction for indecency

with a child). Therefore, Brown has failed to show that there is a reasonable

probability that, but for counsel‘s alleged unprofessional error, the result of the

proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.

Ct. at 2068. We overrule Brown‘s third issue.

                                 VI. Conclusion

      Having overruled all of Brown‘s issues, we affirm the trial court‘s judgment.



                                                   PER CURIAM


PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 2, 2012



      14
         The audiotape of the March 24 conversation reflects that Detective
Savage approached the vehicle, greeted Brown by his first name, introduced
himself as a detective with the Arlington Police Department, and told Brown that
he needed to talk with him. Brown replied, ―Alright.‖ Detective Savage asked
Brown what he was ―doing up here today.‖ Brown replied that he was there to
talk to M.W.

                                        27
