                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-12-00481-CR

MELVIN LONNELL ALLEN                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION1

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                                   I. INTRODUCTION

      A jury found Appellant Melvin Lonnell Allen guilty of indecency with a child

by contact. The trial court assessed Allen‘s punishment at confinement for life.

In three points, Allen contends that he was denied effective assistance of

counsel. We will affirm.



      1
       See Tex. R. App. P. 47.4.
                   II. FACTUAL AND PROCEDURAL BACKGROUND2

      Allen is Lisa‘s biological father. Lisa has two children, Brittany and Jason.

Lisa took her children on a trip to see Allen at his home in Louisiana in 2009;

prior to that, Lisa had not seen her father since she was seven or eight years old.

Brittany was five and Jason was seven at the time. Shortly thereafter, Allen

began visiting Lisa and her children at their Arlington apartment about every

other weekend. He would help out with the children, taking them to the park and

taking Jason to football practice. Occasionally, Allen was at the apartment with

the children by himself.

      Lisa‘s friend Andrew also spent a considerable amount of time with Lisa

and her children during this time. One day, Allen told Andrew to be careful

because Brittany was developing a crush on him. When Andrew told Lisa what

Allen had said, Lisa became concerned. She asked Brittany if anyone had ever

touched her inappropriately. Brittany told Lisa that Allen had touched her breasts

over her clothing. Brittany got a doll, pointed to the breast area, and made a

circular motion with her finger to show where and how he had touched her.

Brittany said that Allen had touched her multiple times and that he had told her to

keep it a secret or ―something bad would happen.‖



      2
        To protect the anonymity of the children in this case, we will use aliases to
refer to some of the individuals named herein. See Daggett v. State, 187 S.W.3d
444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State, 643 S.W.2d 936, 936
n.1 (Tex. Crim. App. [Panel Op.] 1982).

                                         2
      Lisa immediately contacted CPS and the police after Brittany‘s outcry. The

police referred Brittany to Alliance for Children, a child advocacy center in

Arlington. Brittany spoke with Lindsey Dula, a forensic interviewer at Alliance for

Children. Brittany told Dula that Allen had touched her on the nipple area of her

breast once.   Detective Donna Hubbard of the Arlington Police Department

watched Brittany‘s interview with Dula from an adjoining room. After listening to

the interview and conducting further investigation, Detective Hubbard got a

warrant for Allen‘s arrest.   Allen was taken into custody in Louisiana and

extradited back to Texas.

      The jury found Allen guilty of indecency with a child. At the punishment

phase of trial, Allen pleaded true to two enhancement paragraphs alleging prior

convictions from Louisiana for indecent behavior with a child and sexual battery.

The State introduced in evidence Allen‘s written stipulation and the pen packets

relating to the prior convictions.     The trial court found the enhancement

paragraphs true, assessed Allen‘s punishment at life imprisonment, and

sentenced him accordingly.

                     III. EFFECTIVE ASSISTANCE OF COUNSEL

      In three points, Allen argues that he was denied effective assistance of

counsel. Specifically, he complains of his trial counsel (1) allowing the jury to

infer that Allen had prior convictions during Detective Hubbard‘s cross-

examination; (2) failing to object to the State‘s improper closing argument; and



                                        3
(3) failing to object to and stipulating to Allen‘s prior convictions during the

punishment stage of trial.

                               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);

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).           In other

words, for a claim of ineffective assistance of counsel to succeed, the record

must demonstrate both deficient performance by counsel and prejudice suffered

by the defendant. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App.

2012).

         In evaluating the effectiveness of counsel under the deficient-performance

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 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

                                          4
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).

      Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.

Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813. This statement

is true with regard to the deficient-performance prong of the inquiry when

counsel‘s reasons for failing to do something do not appear in the record.

Menefield, 363 S.W.3d at 593; Thompson, 9 S.W.3d at 813. 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.‖ Salinas, 163 S.W.3d at

740 (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).          Trial

counsel ―should ordinarily be afforded an opportunity to explain his actions before

being denounced as ineffective.‖       Menefield, 363 S.W.3d at 593 (quoting

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial counsel

is not given that opportunity, then the appellate court should not find deficient

performance unless the challenged conduct was ―so outrageous that no

competent attorney would have engaged in it.‖ Id. (quoting Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003)).



                                        5
            B. Ineffectiveness Not Raised in Motion For New Trial

      Although Allen filed a motion for new trial, he did not raise ineffective

assistance of counsel in his motion. No hearing was held on the motion, and it

was overruled by operation of law. See Tex. R. App. P. 21.8(c). Consequently,

any trial strategy that Allen‘s attorney may have had for his challenged actions is

not contained in the record. Allen argues, however, that none of the alleged

errors are ―susceptible to ‗trial strategy‘ analysis.‖     We will address each of

Allen‘s allegations of ineffectiveness.

          C. Presumption of Reasonable Assistance Not Overcome

                    1. Cross-Examination of Detective Hubbard

      In his first point, Allen argues that trial counsel‘s cross-examination of

Detective Hubbard during the guilt-innocence phase of trial ―opened the door‖ to

evidence of Allen‘s prior Louisiana convictions and allowed the jury to infer that

he had a criminal history. He points to the following exchange between trial

counsel and Detective Hubbard:

              Q. When was the last time you had to do anything about this
      case?

              A. . . . . Well, back in November of 2011.

              Q. Okay.

              A. I did some more work.

              Q. And what was that?

              A. Contacting DeSoto Parish Sherriff‘s Office.


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            Q. I‘m talking—I‘m not talking about that process. I‘m talking
      about the process concerning [Brittany] and every other thing about
      the case.

            A. On June 2nd of 2011 I got my written statement from
      [Andrew].

            Q. Okay. That was the last time you collected anything or had
      anything to do with this case?

           A. Well, no. I did do something on November 23rd. I collected
      some more information.

            Q. That‘s in respect of extraditing Melvin to Texas, right?

            A. No.

            Q. You collected additional information?

            A. Yes.

            Q. From where?

            A. From the lieutenant at that sheriff‘s office.

            Q. At where?

            A. At the DeSoto Parish Sheriff‘s Office.

           Q. Okay. If you‘ll limit what you‘re talking about to Texas.
      Okay?

            A. Okay.

      Allen argues that the jury could have inferred that Detective Hubbard was

investigating Allen‘s criminal history in Louisiana because she specifically stated

that she was not communicating with Louisiana law enforcement about his

extradition. But nothing in Detective Hubbard‘s testimony demonstrated to the

jury that Allen had prior convictions in Louisiana.       Defense counsel asked

                                         7
Detective Hubbard when she had last done anything with this case, and

Detective Hubbard referenced collecting additional information in Louisiana. No

other details about Detective Hubbard‘s dealings with the sheriff‘s office in

Louisiana were presented to the jury; in fact, defense counsel then instructed the

detective to limit her testimony to her investigation in Texas. Furthermore, no

evidence of Allen‘s extraneous offenses was admitted during the guilt-innocence

stage of trial.      Because Allen has not met his burden to show by a

preponderance of the evidence that his counsel‘s questioning of Detective

Hubbard constituted deficient performance, we overrule Allen‘s first point. See

Menefield, 363 S.W.3d at 592; Hathorn v. State, 848 S.W.2d 101, 119–20 (Tex.

Crim. App. 1992), cert. denied, 509 U.S. 932 (1993).

                   2. No Objection to the State’s Closing Argument

         In his second point, Allen argues that he was denied effective assistance

when his trial counsel failed to object to the following closing argument by the

State:

         What motive does anyone have from this? The man who came into
         [Lisa]‘s life briefly is out again. She trusted her father. She thought
         they were finally going to have a relationship. And did she get
         burned. Because never in a million years did she think that‘s what
         her father would do to her daughter.

         Allen argues that the jury could have easily inferred from this argument

that Allen had previously been imprisoned and is ―out‖ of prison. He argues that

his counsel‘s failure to object, to request an instruction to disregard, or to request

a mistrial was error. Prior to the above argument, the State summarized the

                                           8
evidence of Lisa and Allen‘s relationship, stating that although Allen had not seen

Lisa since she was young, three years before trial, ―all of a sudden, Melvin Allen

wants to be involved in Lisa‘s life.‖

      Even assuming that the State was improperly referring to Allen getting

―out‖ of jail, instead of getting out of Lisa‘s life, the decision to object to particular

statements uttered during closing argument is frequently a matter of legitimate

trial strategy. See Kuhn v. State, 393 S.W.3d 519, 539 (Tex. App.—Austin 2013,

pet. ref‘d).   Evidence of counsel‘s strategy, if any, is crucial to determining

whether he was ineffective for failing to object to such a statement.                  Id.

(explaining that one reasonably sound strategic motivation for not objecting to the

prosecutor‘s closing argument was the desire to avoid drawing additional

attention to the prosecutor‘s opinion); Evans v. State, 60 S.W.3d 269, 273 (Tex.

App.—Amarillo 2001, pet. ref‘d) (citing Hubbard v. State, 770 S.W.2d 31, 45

(Tex. App.—Dallas 1989, pet. ref‘d)). In the absence of any opportunity for trial

counsel to explain his motives for not objecting to the State‘s closing argument,

Allen has failed to overcome the strong presumption that his trial counsel

provided reasonably professional assistance. See Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. We overrule his second point.

                          3. Stipulation to Prior Convictions

      In his third point, Allen argues that he was denied effective assistance

during the punishment stage of trial when trial counsel failed to object to Allen‘s



                                            9
prior convictions used to enhance punishment and stipulated to Allen‘s prior

convictions.3

      The record reflects that Allen and his attorney discussed whether Allen

wanted to stipulate to the prior convictions or plead not true to them.        Trial

counsel questioned Allen on the record about his decision to stipulate and asked

if Allen understood the effect of stipulating, and the trial court also explained to

Allen his right to plead not true to the prior convictions and have the State prove

them. Allen stated on the record, in response to both his trial counsel‘s and the

trial court‘s questioning, that he wanted to plead true and stipulate to both of his

prior convictions. The record is silent as to what advice trial counsel may have

given Allen about pleading true to the prior convictions, whether Allen persisted

in pleading true against his counsel‘s advice, and what trial counsel‘s strategy

was. When the record does not reveal what advice was given by counsel, an

appellate court ―cannot presume that the decisions originated with the attorney

and were not the result of acquiescence to the client‘s wishes.‖ Pinkston v.

State, 744 S.W.2d 329, 332 (Tex. App.—Houston [1st Dist.] 1988, no pet.).4 In


      3
         Allen specifically argues that trial counsel should have objected and not
stipulated to his prior convictions primarily because, as Allen alleges, the pen
packet introduced into evidence by the State as proof of one of the convictions
shows a different date of the offense than stated in the written stipulation and
fails to show that Allen waived his constitutional rights, ―including his right to a
jury trial and his right to confront and cross-examine his accusers.‖
      4
       Additionally, regarding any failure of trial counsel to object to the pen
packet introduced in evidence as proof of one of the prior convictions, Allen‘s
plea of true relieved the State of proving the prior convictions for enhancement.
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the absence of any opportunity for trial counsel to explain his strategy, Allen has

failed to overcome the strong presumption that his trial counsel provided

reasonably professional assistance. See Salinas, 163 S.W.3d at 740; Mallett, 65

S.W.3d at 63; see also Gentry v. State, No. 06-11-00265-CR, 2012 WL 3023169,

at *3 (Tex. App.—Texarkana July 25, 2012) (mem. op., not designated for

publication) (presuming, when record silent, that counsel‘s advice concerning

pleas of true to prior convictions used for jurisdictional enhancement was based

on reasonable professional judgment), pet. struck, 2012 WL 5258490 (Tex. Crim.

App. Oct. 24, 2012). We overrule Allen‘s third point.

                                  IV. CONCLUSION

      Having overruled each of Allen‘s three points, we affirm the trial court‘s

judgment.




                                              SUE WALKER
                                              JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

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

DELIVERED: August 22, 2013


See Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984); Ford v. State,
243 S.W.3d 112, 117 (Tex. App.—Houston [1st Dist.] 2007, pet. ref‘d). Any
objection to the pen packets would have been futile. See Hathorn, 848 S.W.2d
at 126 (explaining that counsel was not ineffective for not making futile objection).

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