                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00104-CR



     CHARLES DOUGLAS MCCLAIN, III, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 115th District Court
               Upshur County, Texas
               Trial Court No. 16,545




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                       MEMORANDUM OPINION
       Following a bench trial, Charles Douglas McClain, III, was convicted of indecency with a

child. He pled “true” to the State’s enhancement paragraph and was sentenced to twenty-five

years’ imprisonment. On appeal, McClain argues (1) that the trial court erred in overruling his

objection to the admission of his confession, which resulted from custodial interrogation, and

(2) that his counsel rendered ineffective assistance in advising him that he was eligible to receive

community supervision. We find that McClain failed to preserve his first point of error on

appeal and that counsel’s assistance, though deficient, was not so serious as to deprive McClain

of a fair and reliable trial. Consequently, we affirm the trial court’s judgment.

I.     McClain’s First Point of Error Does Not Comport With His Objection at Trial

       At McClain’s trial, the thirteen-year-old child victim, J.C., testified that McClain touched

her private part through her underwear and began moving his hand “[u]p and down.” Both J.C.’s

grandmother and Nanette Parras, a Sexual Assault Nurse Examiner (SANE), testified that J.C.

informed them of McClain’s act. J.C.’s aunt, who was dating McClain and had a child by him,

testified that she confronted McClain about J.C.’s outcry. According to the aunt, McClain

admitted that he had touched J.C. outside of her clothing on her private area, but claimed that the

act was an accident.

       After the testimony of J.C., her grandmother, her aunt, and Parras, the State called Dereck

R. Walker, a detective with the Texas Department of Public Safety. Walker testified that

McClain agreed to a voluntary, audio/video-recorded interview. After informing McClain that

he had the right to terminate the interview at any time, Walker began his questioning. According


                                                 2
to Walker, during the interview, McClain admitted that he touched J.C.’s vagina. Walker’s

testimony prompted the following exchange during trial:

                [By the Defense]: Judge, I’m going to object. At the risk of kicking the
       door open on this I’m going to object to this witness testifying at all. We live in a
       small district in a small county where we know all the witnesses that have been
       before here today, the SANE nurse, the CAC interviewer. This witness being
       from DPS, being from out of town, I believe is impermissible, it leads to the
       illusion as to why he was there testifying and I don’t think he ought to be allowed
       to testify. I have some case law that says allowing this type of witness to testify is
       impermissible and should only be used if trying to rebut the defense’s theory or to
       impeach the defendant should the defendant have testified.

              THE COURT: I’m going to let you respond.

               [By the State]: My response to that would be that Dereck Walker is
       testifying as a [sic] agent of DPS who had a [sic] interview with the defendant
       where he waived his rights and voluntarily sat and talked with Mr. Walker over
       the incident that we’re here for so we’re clear as to what the interview is about.

                THE COURT: I’m going to overrule the objection although I’m really not
       -- I really don’t understand the objection. I’m sorry, I think I could look at it,
       print it out and still not understand it.

               [By the Defense]: Yes, Judge, I’m going to object on the basis of 154
       S.W.3d 235, allowing somebody who has interviewed the defendant, I’m left in
       the precarious position, Judge, because the crux of my objection is the evidence
       that’s not supposed before the trier of fact.

               THE COURT: Okay. Well, I assume that evidence is not an interview
       relating to the incident that we’re here in court about because that’s all I know.

              [By the Defense]: Yes, Judge.

              THE COURT: I’m going to overrule the objection.

       Although it is difficult to understand the exact nature of McClain’s objection, the case

citation referenced above leads to our opinion in Wright v. State, 154 S.W.3d 235, 239 (Tex.

App.—Texarkana 2005, pet. ref’d), which held that the trial court erred in allowing affirmative
                                                 3
and intentional presentation of polygraph evidence before a jury. Here, although the State’s brief

volunteers that McClain’s statement was made during a polygraph examination, there was no

mention of a polygraph test at trial. Thus, the State adhered to our explanation in Wright, which

clarified that statements made by a defendant to a polygraph examiner may be admissible if all

references to the polygraph test are omitted. Id.

       Now that the nature of McClain’s objection at trial is better identified, we turn to his

point of error on appeal. In support of his appellate argument, McClain relies on Article 38.22,

Section 3(a) of the Texas Code of Criminal Procedure, which reads,

       (a)    No oral or sign language statement of an accused made as a result of
       custodial interrogation shall be admissible against the accused in a criminal
       proceeding unless:

               (1)     an electronic recording, which may include motion picture, video
       tape, or other visual recording, is made of the statement;

               (2)     prior to the statement but during the recording the accused is given
       the warning in Subsection (a) of Section 2 above and the accused knowingly,
       intelligently, and voluntarily waives any rights set out in the warning;

                (3)  the recording device was capable of making an accurate recording,
       the operator was competent, and the recording is accurate and has not been
       altered;

               (4)     all voices on the recording are identified; and

              (5)    not later than the 20th day before the date of the proceeding, the
       attorney representing the defendant is provided with a true, complete, and
       accurate copy of all recordings of the defendant made under this article.

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (West Supp. 2014). McClain notes that an

electronic recording of the interrogation exists, but was not offered or published, and argues that

the State failed to establish that it complied with Section 3, subsections (a)(3) through (a)(5).
                                                    4
         A “point of error on appeal must comport with the objection made at trial.” Wilson v.

State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see Swain v. State, 181 S.W.3d 359, 367

(Tex. Crim. App. 2005). As stated in Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App.

2009),

         Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that a complaint
         is not preserved for appeal unless it was made to the trial court “by a timely
         request, objection or motion” that “stated the grounds for the ruling that the
         complaining party sought from the trial court with sufficient specificity to make
         the trial court aware of the complaint, unless the specific grounds were apparent
         from the context.”

Resendez, 306 S.W.3d at 312 (quoting TEX. R. APP. P. 33.1(a)(1)(A)). “The purpose of requiring

a specific objection in the trial court is twofold: (1) to inform the trial judge of the basis of the

objection and give him the opportunity to rule on it; (2) to give opposing counsel the opportunity

to respond to the complaint.” Id. As explained in Resendez,

         Although there are no technical considerations or forms of words required to
         preserve an error for appeal, a party must be specific enough so as to “let the trial
         judge know what he wants, why he thinks himself entitled to it, and do so clearly
         enough for the judge to understand him at a time when the trial court is in a
         proper position to do something about it.”

Id. at 312–13 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).

         Our review of the trial transcript leads us to conclude that McClain’s point of error on

appeal does not comport with the objection he made at trial. Because McClain’s complaints on

appeal were not asserted below, the trial judge (who voiced on the record an inability to

understand the trial objection as it was stated) did not have an opportunity to rule on whether

McClain’s statement was admissible under Article 38.22. Thus, McClain’s first point of error is


                                                  5
not preserved for our review and is overruled. See Pena v. State, 285 S.W.3d 459, 464 (Tex.

Crim. App. 2009).

II.    Counsel’s Deficient Assistance Did Not Deprive McClain of a Fair and Reliable
       Trial

       McClain’s ineffective assistance of counsel claim involves the application of community

supervision law to his case.       A defendant is not eligible for community supervision

recommended by either a judge or a jury when he is convicted of indecency with a child if, as

here, the victim of the offense was younger than fourteen years of age at the time the offense was

committed. TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 3g(1)(a)(C), 4(d)(5) (West Supp. 2014).

However, a judge may place a defendant who is charged with indecency with a child on deferred

adjudication community supervision regardless of the age of the victim, but only if the defendant

enters a plea of guilty or nolo contendere. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West

Supp. 2014).

       In his second point of error, McClain argues that his counsel provided ineffective

assistance when he “informed [McClain that] the possibility of probation existed when it did

not.” Any allegation of ineffectiveness of counsel must be “‘firmly founded in the record.’”

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Strickland v.

Washington, 466 U.S. 668, 813 (1984)); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999); Williams v. State, 309 S.W.3d 124, 131 (Tex. App.—Texarkana 2010, pet. ref’d). From

the record received by this Court, which does not include an explanation of counsel’s reasoning,

McClain bears the burden of proving by a preponderance of the evidence that counsel was

ineffective. See Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State,
                                                6
668 S.W.2d 401, 403 (Tex. Crim. App. 1984). Rarely will a reviewing court be provided a

record on direct appeal that allows for a comprehensive evaluation of the merits of an ineffective

assistance of counsel claim. Thompson, 9 S.W.3d at 813. “In the majority of instances, the

record on direct appeal is simply undeveloped and cannot adequately reflect” the reasoning of

trial counsel. Id. at 813–14. We examine the appellate record to determine whether it illustrates

McClain’s claim of ineffective assistance.

        McClain indicated his desire to receive community supervision when he filed a document

titled “Application for Community Supervision from the Judge.” Due to the nature of McClain’s

charge, judge-ordered deferred adjudication community supervision appeared to be his only

option until the State filed a notice of intent to enhance McClain’s punishment, which alleged

that McClain had previously been finally convicted of robbery, a second degree felony. The

transcript of McClain’s trial indicates that the trial court was not aware of the State’s notice of

intent to enhance McClain’s punishment, even though it was filed many months before trial.

        McClain waived trial by jury and pled not guilty after the trial court admonished him

incorrectly with regard to the range of punishment. 1 It was not until after the trial court found

McClain guilty of the offense that the State brought its enhancement allegation to the trial court’s

attention. On realizing that McClain’s offense was punishable as a first degree felony, the trial

court informed McClain of the correct range of punishment. McClain then pled true to the




1
 Before the bench trial began, McClain was again admonished that “the range of punishment for that offense is two
to twenty years in prison and a fine of up to $10,000.” It was not until the punishment phase that the trial court
informed McClain that if it found the State’s enhancement allegation true, the range of punishment would be not less
than five but no more than ninety-nine years’ imprisonment. See TEX. PENAL CODE ANN. § 12.32(a) (West 2011).
                                                         7
enhancement and stipulated that he had also been previously convicted of the misdemeanor

offenses of theft and possession of a controlled substance (marihuana).

       During the punishment phase, McClain attempted to explain his criminal history, claimed

that he had previously completed community supervision successfully, testified that he would be

a good candidate for community supervision, and informed the court that he wished for a

sentence of shock probation. During cross-examination, when the State asked McClain whether

his attorney had informed him that he was not eligible for community supervision, McClain

responded, “Not that I recall.” J.C.’s grandmother and aunt testified that placing McClain on

community supervision (even though it was not available) would be inappropriate. Tellingly,

McClain’s counsel urged the trial court to place McClain on community supervision during

closing argument.    After the State argued, correctly, that McClain was never eligible for

community supervision, the trial court held an off-the-record, unrecorded discussion with

McClain’s counsel and the State. When this discussion ended, the trial court sentenced McClain

to twenty-five years’ imprisonment.       Because the record affirmatively demonstrates that

McClain’s counsel mistakenly believed that McClain was eligible for community supervision,

we find that the record is sufficiently developed to facilitate our review of the merits of

McClain’s ineffective assistance of counsel claim.

       We next determine whether McClain’s “trial counsel rendered ineffective assistance by

employing the two-pronged test handed down by the United States Supreme Court.” Williams,

309 S.W.3d at 132 (citing Strickland, 466 U.S. 668). “To show ineffective assistance of counsel,

a defendant must demonstrate both (1) that his counsel’s performance fell below an objective

                                                8
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.” Batiste v. State,

217 S.W.3d 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Strickland v. Washington,

466 U.S. 668, 687–88, 694 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App.

2005)); see Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). Failure to make

either one of these required showings defeats an ineffectiveness claim. See Williams v. State,

301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Ex parte Martinez, 195 S.W.3d 713, 730 n.14

(Tex. Crim. App. 2006).

       With respect to the first Strickland prong, there is “a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance” and that “the

challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689;

Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712

(Tex. Crim. App. 2000). Yet, trial counsel has a duty to exert his best efforts to ensure that his

client’s decisions are based on correct information as to the applicable law. Ex parte Wilson, 724

S.W.2d 72, 74 (Tex. Crim. App. 1987). “An attorney’s failure to give competent advice to a

defendant which would promote an understanding of the law in relation to the facts and which

would permit an informed and conscious choice is error.” Gallegos v. State, 756 S.W.2d 45, 48

(Tex. App.—San Antonio 1988, pet. ref’d) (citing Ex parte Morse, 591 S.W.2d 904, 905 (Tex.

Crim. App. 1980)). “In assessing competence, we [hold] counsel accountable for knowledge, or

the ability to attain knowledge, of relevant legal matters which are neither novel nor unsettled.”

Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999).

                                                9
       Although it is true that the record does not explain why trial counsel (1) obviously

mistakenly believed that McClain was eligible for community supervision, (2) apparently

advised McClain that he was eligible for community supervision, (3) elicited testimony from

witnesses during the punishment phase regarding the possibility of community supervision, and

(4) urged the trial court to place McClain on community supervision during closing argument,

we cannot fathom any sound trial strategy justifying counsel’s mistake. See Riley v. State, 378

S.W.3d 453, 458–59 (Tex. Crim. App. 2012); Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim.

App. 1991); Hart v. State, 314 S.W.3d 37, 44–45 (Tex. App.—Texarkana 2010, no pet.);

Cardenas v. State, 960 S.W.2d 941, 946–47 (Tex. App.—Texarkana 1998, pet. ref’d); Turner v.

State, 755 S.W.2d 207, 209 (Tex. App.—Houston [14th Dist.] 1988, no pet.). Accordingly, we

find that McClain has met the first Strickland prong.

       The second Strickland prong, the prejudice prong, requires a showing that but for

counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding

would have been different. Strickland, 466 U.S. at 687–88. A “‘[r]easonable probability’ is a

‘probability sufficient to undermine confidence in the outcome,’ meaning [that] ‘counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Smith

v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009) (quoting Strickland, 466 U.S. at 687,

694). “Both the performance and prejudice prongs of the Strickland ineffectiveness inquiry are

mixed questions of law and fact, but the prejudice prong often contains ‘subsidiary questions of

historical fact, some of which may turn upon the credibility and demeanor of witnesses.’” Riley,

378 S.W.3d at 458 (quoting Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999)).

                                                 10
Accordingly, development of an appellate record that speaks to the second Strickland prong is

often crucial. See Ex parte Martinez, 330 S.W.3d 891, 904 (Tex. Crim. App. 2011).

        Here, McClain argues that Strickland’s prejudice prong is met because, “[o]bviously, his

decision to waive a jury trial was based on [counsel’s] mistaken belief.” He further contends that

“a jury trial as to guilt/innocence may have been a much better option than a bench trial.” Yet,

McClain neither filed a motion for new trial nor otherwise developed a record addressing these

appellate claims. Thus, in spite of the assertions in McClain’s brief, we find that the appellate

record does not support the conclusion that McClain met Strickland’s prejudice prong.

        The appellate record does not show why McClain decided to waive a jury trial and enter a

plea of not guilty to the trial court. Many strategic choices could have led to McClain’s decision

to proceed with a bench trial. The evidence of McClain’s guilt, which included (1) J.C.’s

testimony, (2) the testimony of J.C.’s grandmother, aunt, and a SANE nurse, and (3) Walker’s

testimony that McClain admitted to committing the offense, was strong. McClain could have

decided that a judge would be less impacted by the evidence of his guilt and more lenient as

compared to an East Texas jury. 2 Further, nothing in the appellate record supports McClain’s

argument that he would have decided to forgo his waiver of jury trial had he been properly

advised by his counsel. We find that the record does not support McClain’s contention that there

was a reasonable probability that the result of his proceeding would have been different absent

counsel’s unprofessional errors. Consequently, we overrule McClain’s last point of error.


2
 Because McClain was not eligible for community supervision, his sentencing options did not depend on whether he
opted for a jury trial or a bench trial. Thus, McClain makes no argument that there was a possibility that the jury
would have given him a lighter sentence.
                                                        11
III.   Conclusion

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:       March 4, 2015
Date Decided:         March 18, 2015

Do Not Publish




                                                 12
