Affirmed and Opinion filed November 29, 2011.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-10-00990-CR


                          DENNIS BROOKS, JR., Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 209th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1183560


                                   OPINION

      Appellant Dennis Brooks, Jr. was indicted for sexual assault of a child. A jury
convicted appellant as charged in the indictment, and the trial court assessed an enhanced
sentence of life imprisonment. We affirm.

                                     BACKGROUND

      Appellant first met the complainant when she was eight years old and appellant
was dating the complainant‘s mother. Appellant frequently visited the complainant‘s
home and eventually moved in with and married the complainant‘s mother. During the
summer of the complainant‘s sixth grade school year, appellant began engaging in sexual
activity with the complainant, which intensified until 2005 when the complainant was
fifteen years old. The complainant told her mother about the abuse approximately a week
after the complainant‘s last encounter with appellant, and the complainant‘s mother
informed law enforcement officials.

      Appellant was indicted for intentionally and knowingly causing his sexual organ
to contact the sexual organ of the complainant, who was younger than 17 years old at the
time, on or about December 23, 2005. The State‘s evidence primarily consisted of
testimony from the complainant, the complainant‘s mother, the doctor who conducted the
complainant‘s medical examination after her outcry, a child sexual abuse expert, and
Anthony McGuire—an inmate who was incarcerated in the Harris County jail with
appellant as appellant awaited trial. McGuire testified that he and appellant were kept in
a separate area for sex offenders within the Harris County jail and that appellant told him
―about his victim and that, you know, he slept with her a few times. He was infatuated
with her and everything like that.‖ McGuire testified:

             He said that, you know they had oral sex and then just the regular
      sex, you know, that you would have with a person. . . . He said he
      [performed oral sex on] her. . . . He mentioned something about she got in
      trouble at school, he had to go back and pick her up. They had like a little
      something going in the car at that time. . . . He said [sexual acts occurred] a
      few times at the apartment or wherever they were staying at, but that‘s all
      he said.

      The jury found appellant guilty as charged in the indictment.             During the
punishment phase of the trial, appellant pleaded ―true‖ to an enhancement paragraph
regarding a 1992 Kansas conviction for aggravated sexual battery. Based on this prior
conviction, the trial court assessed an enhanced sentence of automatic life imprisonment
pursuant to Texas Penal Code section 12.42(c)(2).        See TEX. PENAL CODE ANN. §
12.42(c)(2) (West 2011). Appellant raises nine issues on appeal.

      In Issue 1, appellant argues that the trial court ―committed error by admitting into
evidence a prior conviction during the guilt/innocence phase of the trial.‖ In Issue 2 and
Issues 6 through 9, appellant argues that he was denied effective assistance of counsel

                                            2
because his trial counsel (1) failed to call any rebuttal witnesses in response to the
―uncorroborated testimony‖ of McGuire; (2) advised appellant to plead ―true‖ to an
enhancement paragraph that should not have been used; and (3) failed to object to the
trial court‘s use of the enhancement paragraph. In Issue 3, appellant argues that the trial
court should have instructed the jury that it could not convict appellant on the
uncorroborated testimony of an inmate regarding a statement against interest made by
appellant while incarcerated.      In Issues 4 and 5, appellant argues that his Kansas
conviction for aggravated sexual battery should not have been used to enhance his
sentence because it does not contain elements that are substantially similar to elements of
any of the enhancement offenses listed in section 12.42(c)(2). See id. We address
appellant‘s issues out of order.

I.     Uncorroborated Testimony of Inmate (Issue 3)

       Appellant argues in Issue 3 that the trial court failed to instruct the jury that it
could not convict appellant on the uncorroborated testimony of an inmate regarding a
statement against interest made by appellant while incarcerated. See TEX. CODE CRIM.
PROC. art. 38.075 (West Supp. 2009).

       Appellant did not request and the trial court did not give a jury instruction
pursuant to article 38.075. Article 38.075 states, in relevant part:

              A defendant may not be convicted of an offense on the testimony of
       a person to whom the defendant made a statement against the defendant‘s
       interest during a time when the person was imprisoned or confined in the
       same correctional facility as the defendant unless the testimony is
       corroborated by other evidence tending to connect the defendant with the
       offense committed.

Id. Appellant argues that the trial court was under a duty to instruct the jury sua sponte
pursuant to this rule, regardless of whether he requested such an instruction.

       No court has been asked since article 38.075 became effective in September 2009
directly to decide whether it imposes such a duty on trial courts. See, e.g., Watkins v.
State, 333 S.W.3d 771, 778–79 (Tex. App.—Waco 2010, pet. ref‘d) (noting that State

                                              3
conceded on appeal that trial court should have instructed the jury sua sponte pursuant to
article 38.075). However, a trial judge must instruct the jury sua sponte on the ―law
applicable to the case.‖ See Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App.
2008). Analyzing article 38.075 under case law applicable to similar corroboration
requirements, we conclude that the trial court was under a duty to instruct the jury sua
sponte according to article 38.075. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West
2005) (imposing similar corroboration requirement for accomplice witness testimony);
Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002) (trial court has a duty to
instruct jury sua sponte pursuant to article 38.14, if applicable); see also TEX. CODE
CRIM. PROC. ANN. art. 38.141 (West 2005) (imposing similar corroboration requirement
for informant testimony); Simmons v. State, 205 S.W.3d 65, 76–77 (Tex. App.—Fort
Worth 2006, no pet.) (trial court has a duty to instruct jury sua sponte pursuant to article
38.141, if applicable).

       Though we conclude the trial court erred in failing to instruct the jury according to
article 38.075, we nonetheless conclude that appellant was not egregiously harmed by the
trial court‘s unobjected-to failure to give such an instruction.

       A.     Applicable Law and Standards

       Article 38.075 does not tell the jury to be skeptical of inmate witness testimony;
nor does it require the jury to give less weight to such testimony than to other evidence.
See TEX. CODE CRIM. PROC. ANN. art. 38.075; Herron, 86 S.W.3d at 632. An instruction
under article 38.075 ―merely informs the jury that it cannot use the . . . testimony unless
there is also some [independent] evidence connecting the defendant to the offense.‖ See
TEX. CODE CRIM. PROC. ANN. art. 38.075; Herron, 86 S.W.3d at 632. ―Once it is
determined that such . . . evidence exists, the purpose of the instruction is fulfilled, and
the instruction plays no further role in the factfinder‘s decision-making.‖ See Herron, 86
S.W.3d at 632. Therefore, the existence of corroborating evidence ―tending to connect‖
appellant to the offense can ―render harmless‖ the trial court‘s failure to submit an article
38.075 instruction by fulfilling the purpose that such an instruction is designed to serve.

                                              4
See id.

          To analyze this issue, we eliminate all of McGuire‘s testimony regarding
appellant‘s statements and ―determine if the remaining inculpatory evidence tends to
connect appellant to the offense.‖ See Freeman v. State, —S.W.3d—, No. 14-09-00399-
CR, 2011 WL 3627697, at *4 (Tex. App.—Houston [14th Dist.] Aug. 18, 2011, no pet.
h.) (citing Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008)). A harmless
error analysis for the omission of an article 38.075 witness instruction is flexible and
takes into account the existence and strength of such corroborating evidence and the
applicable standard of harm. See Herron, 86 S.W.3d at 632. In determining the strength
of corroborating evidence, we examine (1) its reliability or believability; and (2) the
strength of its tendency to connect the defendant to the crime. See id.

          Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on
reh‘g), the appropriate harm analysis for jury charge error depends on whether the
defendant preserved error by bringing the improper omission to the trial court‘s attention.
Herron, 86 S.W.3d at 632. When the error is properly preserved, a reversal is required if
―some harm‖ is shown. Id. But when the defendant has failed to preserve error, as is the
case here, we only reverse for egregious harm. Id.

          The difference in the harm standards impacts how strong the corroborating
evidence must be for the error in omitting the instruction to be considered harmless. See
id. Under the egregious harm standard, the omission of the instruction is generally
harmless unless the corroborating evidence is ―‗so unconvincing in fact as to render the
State‘s overall case for conviction clearly and significantly less persuasive.‘‖ See id.
(quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)).1 With these


          The question of whether the absence of an instruction caused appellant ―some harm‖ generally
          1

will turn on whether the record contains a significant amount of corroborating evidence, and whether the
record reveals no rational basis on which the jury could have doubted or disregarded that evidence. See
Davis v. State, 278 S.W.3d 346, 353 (Tex. Crim. App. 2009) (citing Herron, 86 S.W.3d at 631–34). This
standard is not applicable to our review of the trial court‘s unobjected-to failure to instruct the jury sua
sponte, but it is relevant to our discussion in Part IV of appellant‘s ineffective assistance complaint
regarding counsel‘s failure to request such an instruction. See id. (counsel‘s failure to request instruction
                                                     5
standards in mind, we turn to the record to determine the reliability and strength of the
corroborating evidence ―tending to connect‖ appellant to the sexual assault charge.

         B.     Corroborating Evidence

         There is substantial evidence corroborating appellant‘s acts in furtherance of the
assault. The complainant testified that one morning during the summer of her sixth grade
school year, appellant entered the room where she was watching a movie and asked her if
she ―wanted to try something new.‖ Appellant instructed the complainant to take off her
pants and underwear, and to get on the floor on her knees and forearms. Despite her
reluctance, the complainant complied while appellant got on the floor behind the
complainant ―with his pants around his ankles‖ and masturbated.

         The complainant testified that the same thing happened many more times, and that
on different occasions she touched appellant‘s ―middle part, his hands . . . and sometimes
his chest,‖ and that appellant touched ―[m]y breasts, my behind, my middle part, my
thighs, my legs, and that‘s it.‖ She testified that on one occasion, appellant interrupted
the complainant while she was showering and proceeded to shave her ―middle part‖ for
her. On another occasion, appellant was letting the complainant drive his car when he
told her to ―pull over and pull down [her] pants and try to face him and he started
masturbating.‖ She testified that after these incidents, appellant often would buy her
gifts.

         The complainant also testified that appellant‘s penis has a ―line on it, like a scar.‖
The complainant‘s mother confirmed that appellant ―has an area where during his
circumcision that it was held funny, so it looks kind of like a scar or something like that.‖
The complainant‘s mother testified that she had never talked with the complainant about
the appearance of appellant‘s penis.

         The complainant testified that despite the abuse, she still loved appellant and


may be deficient but not prejudicial only if corroborating evidence is insufficient to defeat finding of
―some harm‖ from absence of instruction under Herron).

                                                   6
wanted to have a relationship with him. The last time the complainant saw appellant was
on December 20, 2005, which was after appellant and the complainant‘s mother had
gotten a divorce.2 Appellant took her to a basketball game and then to a house where
appellant was staying with a friend. Appellant showered and approached the complainant
without any clothes on. He instructed her to take off her clothes and lay down on a bed.
Appellant got on top of the complainant and told her that she had ―a nice body.‖ She
testified that appellant began ―rubbing his middle part up against mine and then told me
to get on my stomach and did the same thing.‖ The complainant testified that appellant‘s
sexual organ touched her sexual organ during this time, and then appellant ―put his
middle part up against [her] behind.‖ Appellant then instructed the complainant to lick
his chest while he masturbated, something he made her to do on other occasions.
Appellant took the complainant shopping afterward and bought her two new pairs of
shoes.       About a week later, the complainant‘s mother asked the complainant ―if
somebody had done something to her,‖ and the complainant identified appellant.3

         In response to the State‘s question about how many times appellant‘s penis
touched her vagina when she was under the age of 17, the complainant answered, ―Every
week, every day.‖ The complainant agreed that she was not making any allegations that
         2
          Defense witness Beverly Alexander testified that she had a short phone conversation with
appellant on December 20, 2005. She also testified that she was with appellant at a barber shop between
about three and seven o‘clock on the afternoon of December 23, 2005, the ―on or about‖ date alleged in
the indictment. Appellant argues in his brief that this evidence ―challenged the child‘s testimony
concerning appellant‘s opportunity to have molested her on specific occasions.‖ Alexander‘s testimony
does not contradict the complainant‘s testimony about events that allegedly took place on December 20,
2005; additionally, the State is not required to prove that those events actually took place on December
23, 2005, when Alexander testified she was with appellant at the barber shop. See Sledge v. State, 953
S.W.2d 253, 255–56 (Tex. Crim. App. 1997) (―on or about‖ language in indictment allows State to prove
a date other than specific date alleged so long as the date is before the presentment of the indictment and
within the statutory limitation period).
         3
          Appellant argues that parts of the complainant‘s testimony damaged her credibility. For
example, the complainant testified that she once witnessed appellant shaving her mother‘s ―middle part.‖
The complainant‘s mother testified that it would have been ―impossible‖ for the complainant to have seen
that because it only happened once, and the complainant was ―not even in that house.‖ The complainant‘s
mother testified that ―[i]f she saw it, then this happened at a time I don‘t remember. I remember the first
time he shaved me, any time thereafter, I don‘t recall.‖ In response to defense counsel‘s question asking
whether the complainant‘s mother had ―ever had any problems with your daughter lying to you,‖ she
answered, ―Yes,‖ but testified that it was not a ―regular thing.‖

                                                    7
the abuse involved penetration.4

        Dr. Reena Issac testified that she examined the complainant after her outcry and
discovered no signs of physical trauma to the anal-genital area. She explained that her
findings are (1) consistent with the complainant‘s particular allegations; and (2) common
among victims of childhood sex abuse with a delayed outcry. The complainant informed
Dr. Issac about the history of abuse with details that are consistent with the complainant‘s
testimony. When Dr. Issac asked the complainant if appellant‘s penis was ever inside
her, she answered, ―[N]o, he rubbed it. . . . [H]e tried to put it inside, it hurt and he
stopped.‖

        We do not believe this evidence is ―so unconvincing in fact as to render the State‘s
overall case for conviction clearly and significantly less persuasive‖ without McGuire‘s
testimony. See Herron, 86 S.W.3d at 632. In fact, the complainant‘s testimony, along
with testimony from the complainant‘s mother and Dr. Issac, constitutes substantial
corroborating evidence ―tending to connect‖ appellant to the sexual assault charge.5

        4
            On cross-examination, appellant‘s fellow inmate McGuire testified:
         Q. Okay. And when you say regular sex, how would you describe regular sex?
         A. He said he had sex with her. What do you want me to say?
         Q. You are testifying, sir, not me.
         A. I told you that‘s what he told me; ―regular sex,‖ that‘s what he told me.
Appellant‘s trial counsel argued in his closing statement that there was ―no evidence‖ that appellant
engaged in ―regular sex‖ with the complainant, and that McGuire‘s testimony must have been an incorrect
―guess.‖ Although this argument may have cast doubt on the believability of this particular part of
McGuire‘s testimony, it does not answer the question of whether, excluding McGuire‘s testimony
altogether, there exists any corroborating evidence ―tending to connect‖ appellant to the offense.
         Notwithstanding the standard we apply here, we note that the specific details contained in
McGuire‘s testimony were corroborated by other witnesses. For example, McGuire also testified that
appellant told him the encounters with the complainant involved oral sex performed by appellant;
occurred in an apartment ―or wherever they were staying,‖ as well as in a car; and were motivated by
appellant‘s desire to show the complainant ―how [it is] right for a man and woman to have a relationship‖
because the complainant had revealed to appellant that she believes herself to be gay. These details of the
encounters were relayed by the complainant in her testimony as well.
         5
           The record reveals no rational basis on which the jury could have doubted or disregarded the
significant amount of corroborating evidence, as would be relevant to appellate review of the record for
―some harm‖ in the event that counsel had, in fact, preserved this issue for our review. See supra note 2;
see also Davis, 278 S.W.3d at 352; Gonzalez v. State, —S.W.3d—, No. 09-10-00478-CR, 2011 WL
3925501, at *3–5 (Tex. App.—Beaumont Aug. 24, 2011, no pet. h.).

                                                     8
Accordingly, the trial court‘s failure to instruct the jury sua sponte pursuant to article
38.075 did not egregiously harm appellant. See Herron, 86 S.W.3d at 632; see also
Medina v. State, 7 S.W.3d 633, 642–43 (Tex. Crim. App. 1999) (failure to give requested
article 38.14 instruction did not cause ―some harm,‖ in part because other witnesses‘
testimony linked defendant to crime); cf. Saunders, 817 S.W.2d at 692–93 (failure to give
article 38.14 instruction egregiously harmed defendant because only corroborating
evidence was contradicted and, even if believed, did not have a very strong tendency to
connect defendant with crime).

       We overrule appellant‘s Issue 3.

II.    “Evidence of a Prior Conviction” (Issue 1)

       Appellant argues in Issue 1 that the trial court ―committed error by admitting into
evidence a prior conviction during the guilt/innocence phase of the trial.‖

       McGuire testified that while he was incarcerated with appellant, they were
segregated based on their status as sex offenders. The State made one comment in
closing arguments regarding appellant‘s status as a sex offender: ―If the defendant did not
tell [McGuire] those details [about appellant‘s sexual activity with the complainant], how
does [McGuire] know that information? Well, ladies and gentlemen, he knows it because
when they are in the Harris County jail, [appellant] found somebody he could brag to. He
felt comfortable bragging to [McGuire] because [appellant] knew [McGuire] was another
sex offender.‖ Appellant argues that McGuire‘s testimony and the State‘s comment
constituted an indirect reference to appellant‘s 1992 Kansas conviction for aggravated
sexual battery. Appellant failed to object to the admissibility of this testimony or to the
State‘s arguments. Accordingly, he failed to preserve this issue for review. See TEX. R.
APP. P. 33.1.6

       6
          Appellant argues that we may nonetheless review the admissibility of the testimony because
under article 37.07 of the Texas Code of Criminal Procedure, the trial court should have instructed the
jury that it should only consider evidence of ―an extraneous crime or bad act‖ that was properly
introduced during the punishment phase of the trial if the crime or act was shown beyond a reasonable
doubt. See TEX. CODE. CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West 2006 & Supp. 2011). Appellant
                                                  9
        Even if appellant had preserved this issue for our review, we do not agree with
appellant that McGuire‘s testimony or the State‘s comment ―could have implied to the
jury that there were and are other prior convictions which caused Appellant to be
designated as a sexual offender.‖

        Even if a reasonable jury could have treated these comments as an implicit
reference to a prior sex offense conviction rather than to appellant‘s status in the present
case as an alleged sex offender awaiting trial in the Harris County jail, any such
misunderstanding was eliminated during jury deliberations. The jury sent a note to the
trial court: ―The State‘s last witness, an inmate, gave testimony he claimed resulted from
conversations between the Defendant and the witness while they were both incarcerated.
Was the defendant incarcerated with the witness due to the allegations against the
Defendant in this case?‖ The trial court responded, ―Yes.‖ In light of this clarification,
we conclude that the jury would not have misunderstood McGuire‘s testimony or the
State‘s comment to be a reference to a prior conviction.

        Accordingly, we overrule appellant‘s Issue 1.

III.    Kansas Conviction for Aggravated Sexual Battery (Issues 4 and 5)

        Appellant argues in Issues 4 and 5 that his 1992 Kansas conviction for aggravated
sexual battery should not have been used to enhance his sentence because it does not
contain elements that are substantially similar to elements in any of the enhancement
offenses listed in section 12.42(c)(2). See TEX. PENAL CODE ANN. § 12.42(c)(2)(B).

        Section 12.42 provides enhanced penalties for repeat felony offenders. Section
12.42(c)(2) ―effectively creates a ‗two-strikes policy‘ for repeat sex offenders in Texas,
embodying the legislature‘s intent to treat repeat sex offenders more harshly than other
repeat offenders.‖ Prudholm v. State, 333 S.W.3d 590, 592 (Tex. Crim. App. 2011).
Section 12.42(c)(2) imposes an automatic sentence of life imprisonment for a defendant

does not explain why he was entitled to such an instruction during the guilt-innocence phase, or how this
procedural rule has any bearing on the question of whether appellant preserved his complaint about the
admissibility of evidence introduced during the guilt-innocence phase of a trial.

                                                   10
convicted of a sexual offense listed in section 12.42(c)(2)(A) if he committed that offense
after previously having been convicted of any of the enumerated sexual offenses in
section 12.42(c)(2)(B), or ―under the laws of another state containing elements that are
substantially similar to the elements of an [enumerated] offense.‖ Id.; see also TEX.
PENAL CODE ANN. § 12.42(c)(2).

       Before using a prior conviction from another state for this purpose, the trial court
first must take judicial notice of the relevant state statute and make a finding that the
elements of that offense are substantially similar to the elements of an offense
enumerated in section 12.42(c)(2)(B). See TEX. PENAL CODE ANN. § 12.42(c)(2)(B)
(listing offenses that may be used to enhance sentence to automatic life imprisonment
under (c)(2)); Wagner v. State, Nos. 14-07-00906-CR & 14-07-00907-CR, 2009 WL
838187, at *13 n.12 (Tex. App.—Houston [14th Dist.] Mar. 31, 2009, pet. ref‘d) (mem.
op., not designated for publication) (as matter of statutory interpretation, trial court must
take judicial notice of statute from other state to make finding of substantial similarity
under section 12.42(c)(2) (citing TEX. R. EVID. 202 and Randolph v. State, No. 06-08-
00058-CR, 2008 WL 5058597, at *1 (Tex. App.—Texarkana Dec. 2, 2008, no pet.)
(mem. op., not designated for publication))). The trial court stated its finding on the
record ―that the Kansas statute is similar to the charge [that] the jury just found
[appellant] guilty of, sexual assault of a child [under section 21.011].‖

       Appellant argues on appeal that the elements of the Kansas statute cannot be
―substantially similar‖ because the Kansas statute includes any offensive ―touching,‖
while the section 12.42(c)(2)(B) offenses criminalize only the offensive touching of
specific areas of the body. See, e.g., TEX. PENAL CODE ANN. § 21.11(c) (West 2011)
(indecency with a child; defining certain prohibited ―sexual contact‖ as touching of the
anus, breast, or any part of the genitals of the child by a person, or of the person by the
child); id. § 22.011(a)(2) (West 2011) (sexual assault of a child; prohibiting certain
penetration of and contact between the mouth, anus, or sexual organ of a person and a
child). Appellant argues in his brief: ―The Kansas statute addresses much less offensive

                                             11
conduct than any of the pertinent Texas statutes; a touching of the hair, arm, hand,
forehead, or literally any part of the body is sufficient under the Kansas statute . . . .‖
Appellant failed to object to the trial court‘s finding or the imposition of the enhanced
sentence. Appellant therefore has failed to preserve this issue for review on appeal. See
TEX. R. APP. P. 33.1.

        Even if appellant had preserved this issue, we conclude that the elements listed in
the Kansas statute for aggravated sexual battery are substantially similar to the elements
of the Texas offense of indecency with a child, one of the enhancement offenses listed in
section 12.42(c)(2)(B).

        We review the trial court‘s ―substantially similar‖ finding de novo. See TEX.
PENAL CODE ANN. § 12.42(c)(2)(B); Hardy v. State, 187 S.W.3d 232, 236 (Tex. App.—
Texarkana 2006, pet. ref‘d) (―substantially similar‖ determination is legal question of
statutory interpretation and must be reviewed de novo).7                    For two offenses to be
substantially similar, the elements being compared first must display ―a high degree of
likeness, but may be less than identical.‖ Prudholm, 333 S.W.3d at 594. This ―high
degree of likeness‖ must involve more than similarity in merely ―a general sense.‖ See
id. at 599. Secondly, ―the elements must be substantially similar with respect to the
individual or public interests protected and the impact of the elements on the seriousness
of the offenses.‖ Id. at 595. With these considerations in mind, we turn to the elements
relevant to appellant‘s issues.

        A.      “High Degree of Likeness”

        Appellant pleaded guilty to the offense of aggravated sexual battery in Kansas on
June 26, 1992, based on the following allegations in the complaint:

               [O]n or about the 5th day of May, 1992, [appellant] did then and
        there unlawfully, willfully and feloniously touch the person of another, to-
        7
           Appellant first complains on appeal that the trial court‘s finding of ―mere similarity‖ does not
constitute a finding that the elements of the Kansas statute are substantially similar. Because we review
the trial court‘s use of the enhancement paragraph de novo, we need not decide whether the trial court‘s
articulation of substantial similarity was sufficient.

                                                    12
        wit: M.M., a child under the age of sixteen (16) years, who was not the
        spouse of the offender and who did not consent to the touching, with the
        intent to arouse or satisfy the sexual desires of the offender.

Aggravated sexual battery was defined at that time, in relevant part, as ―sexual battery,‖
or ―the intentional touching of the person of another . . . who is not the spouse of the
offender and who does not consent thereto, with the intent to arouse or satisfy the sexual
desires of the offender or another,‖ against ―a person under 16 years of age.‖ KAN. STAT.
ANN. § 21-3518(b) (aggravated sexual battery statute in effect prior to July 1, 1993 and
subsequent amendments; current version at KAN. STAT. ANN. § 21-5505(b) (West 2010));
KAN. STAT. ANN. § 21-3517 (sexual battery statute in effect prior to July 1, 1993 and
subsequent amendments; current version at KAN. STAT. ANN. § 21-5505(a) (West 2010)).
Appellant‘s offense was punishable by a maximum sentence of three to ten years
imprisonment and up to a $10,000 fine. KAN. STAT. ANN. § 21-4501(d) (statute in effect
prior to July 1, 1993 and subsequent amendments; current version at KAN. STAT. ANN. §
21-6701 (West 2010)) (classifying offense under 21-3518 as class D felony punishable by
―a minimum of not less than two years nor more than three years and a maximum of not
less than five years nor more than 10 years‖); KAN. STAT. ANN. § 21-4503(1)(b) (statute
in effect prior to July 1, 1993 and subsequent amendments; current version at KAN. STAT.
ANN. § 21-6710 (West 2010)) (class D felony punishable by up to $10,000 fine).

        A person commits the offense of indecency with a child under Texas Penal Code
section 21.11 if, with a child younger than 17 year of age, the person ―engages in sexual
contact with the child or causes the child to engage in sexual contact.‖ TEX. PENAL CODE
ANN. § 21.11(a)(1).8 ―Sexual contact‖ includes the following acts, ―if committed with
the intent to arouse or gratify the sexual desire of any person‖: (1) ―any touching by a
person . . . of the anus, breast, or any part of the genitals of a child‖; or (2) ―any touching

        8
          A person also commits an offense under this section if, with a child younger than 17 years of
age, the person exposes the person‘s anus or any part of the person‘s genitals, knowing the child to be
present, or causes the child to expose the child‘s anus or any part of the child‘s genitals with the intent to
arouse or gratify the sexual desires of any person. TEX. PENAL CODE ANN. § 21.11(a)(2). This type of
offensive conduct is not relevant to our inquiry.

                                                     13
of any part of the body of a child . . . with the anus, breast, or any part of the genitals of a
person.‖ Id. § 21.11(c). An offense under the foregoing provision constitutes a felony of
the second degree, punishable by a sentence of between two and 20 years imprisonment
and up to a $10,000 fine. Id. § 21.11(d); id. § 12.33 (West 2011).

        Both these offenses share the following characteristics: (1) touching or contact; (2)
between the offender and a child; (3) who is not the spouse of the offender; (4) with the
intent to arouse, gratify, or satisfy the sexual desire of any person.9 The offenses differ in
that the Texas statute (1) does not require the element of non-consent;10 (2) also punishes
activity that ―causes the child to engage in sexual contact‖; (3) punishes offensive
conduct involving a child younger than 17 years of age, in addition to offensive conduct
involving a child younger than 16 years of age; and (4) limits the category of offensive
contact to specific areas of the body.

        In deciding whether these differences defeat an otherwise ―high degree of
likeness,‖ we turn to the recent Court of Criminal Appeals decisions in Prudholm and
Warren, which provide valuable guidance on how to analyze this issue. See Ex Parte
Warren, — S.W.3d —, No. AP-76435, 2011 WL 4467224 (Tex. Crim. App. Sept. 28,
2011); Prudholm, 333 S.W.3d at 590.

        In Prudholm, the court addressed the question of whether the elements of the
California sexual battery statute are ―substantially similar‖ to the elements of the Texas
sexual assault statute for enhancement purposes under section 12.42. The Prudholm
court concluded that the elements are not ―substantially similar,‖ in part because the
―touching‖ of an ―intimate part‖ relevant to California offense of sexual battery


        9
          The Kansas definition of sexual battery requires that the offense be against a person ―who is not
the spouse of the offender‖ as an element of the offense. See K.S.A. 1983 Supp. 21-3518. Similarly but
not identically, it is an affirmative defense to prosecution under the Texas statute if the actor was the
spouse of the child at the time of the offense. See TEX. PENAL CODE ANN. § 21.11(b-1).
        10
           However, it is an affirmative defense to prosecution under the Texas Statute under certain
circumstances if the actor was not more than three years older than the victim and of the opposite sex, and
the actor did not use duress, force, or a threat against the victim at the time of the offense. See TEX.
PENAL CODE ANN. § 21.11(b).

                                                    14
encompassed ―a markedly different range of conduct‖ than ―penetration or contact‖ of a
person‘s ―anus‖ or ―sexual organ‖ relevant to the Texas offense of sexual assault.
Prudholm, 333 S.W.3d at 599.             However, the court also found that the following
considerations indicated that the statutes were designed to address different offensive
conduct, and therefore weighed against a finding of substantial similarity: (1) the
California statute specifically excluded the more severe offenses of rape and sexual
penetration from its definition of sexual battery, while the Texas sexual assault statute
purposely encompasses those offenses; (2) the ―offensive contact‖ relevant to the
California sexual battery statute was more akin to the offensive contact encompassed by
the Texas assault statute, rather than the ―severe physical and psychological trauma of
rape‖ encompassed by the Texas sexual assault statute; and (3) sexual battery in
California was a misdemeanor punishable by only six months imprisonment, while sexual
assault in Texas is a second degree felony punishable by a sentence of up to 20 years
imprisonment. Id.11

       Warren involved a statute that permits the Texas Department of Criminal Justice
to impose sex-offender conditions on an inmate‘s parole without prior notice or an
opportunity to respond if the inmate has been convicted of an offense in another state that
contains elements that are ―substantially similar‖ to the elements of certain sex-related
offenses. See Warren, 2011 WL 4467224, at *1, *3–5; see also TEX. CODE CRIM. PROC.
ANN. art. 62.001(5) (West 2006 & Supp. 2011). The court in Warren concluded that the
Illinois offense of contributing to the sexual delinquency of a child contained elements
that displayed a ―high degree of likeness‖ to the elements of the Texas offense of
indecency with a child:

               Both offenses involve sexual acts directed towards children: in the
       Illinois statute, with ―any person under the age of 18‖; in the Texas statute,
       ―with a child younger than 17 years of age[.]‖ Both offenses criminalize
       similar sexual conduct with a child. The Illinois statue prohibits the ―lewd
       11
          The court did not address whether the California sexual battery statute contains elements that
are substantially similar to the elements of the Texas offense of indecency with a child under section
21.11.

                                                  15
       fondling or touching of [ . . . ] the child‖ and a ―lewd act done in the
       presence of the child[.]‖ And the Texas statute prohibits ―engag[ing] in
       sexual contact with the child‖ and ―expos[ing] the person‘s anus or any part
       of the person‘s genitals[.]‖ Both statutes contain nearly the same mental
       state. In the Illinois statute, the mens rea is ―with the intent to arouse or to
       satisfy the sexual desires‖ of any person, while in the Texas, the mens rea is
       ―with intent to arouse or gratify the sexual desire of any person[.]‖ While
       the elements of both statutes are not identical in every way, they are similar
       enough to indicate a high degree of likeness and thus satisfy the first part of
       the substantially similar test.

Warren, 2011 WL 4467224, at *6.           We note that although it was not specifically
discussed in Warren, the ―lewd fondling or touching‖ relevant to the Illinois statute, like
the touching relevant to the Kansas statue in this case, was not limited to the specific
areas of the body identified in the Texas statute. See People v. Keesee (1977), 47
Ill.App.3d 637, 642, 365 N.E.2d 53, 57, 7 Ill.Dec. 768, 772 (analyzing offense of
contributing to the sexual delinquency of a child in effect at the relevant time period;
―The statute does not limit, nor have we found a case which so limits, the fondling or
touching to the victim‘s sexual organs.‖).

       Although the Kansas statute encompasses touching beyond the areas of the body
identified in the Texas statute, the elements are not required to be identical.           See
Prudholm, 333 S.W.3d at 594. Additionally, the fact that an element of the Kansas
offense would be insufficient to prove the respective Texas element is not determinative.
See id. at 594 n.15 (―For example, a Delaware defendant could be convicted for a
touching that was intended to be sexual in nature but was ultimately intended to
embarrass or humiliate the victim, whereas such intent would not suffice under the Texas
statute to show an intent to arouse or gratify any person‘s sexual desire.‖ (discussing Ex
parte White, 211 S.W.3d 316, 318 (Tex. Crim. App. 2007))). Unlike the differences at
issue in Prudholm, the differences here are minor rather than major variations on the
same punishable conduct: the sexually-motivated touching of children. Like the offenses
at issue in Warren, the elements of the offenses in this case display a ―high degree of
likeness‖ that goes beyond merely ―a general sense.‖ Warren, 2011 WL 4467224, at *6;


                                             16
Prudholm, 333 S.W.3d at 594, 599.

       B.     Individual or Public Interests and the Seriousness of the Offenses

       We next consider whether the elements are substantially similar ―with respect to
the individual or public interest protected and the impact of the elements on the
seriousness of the offense.‖ See Prudholm, 333 S.W.3d at 595.

       The individual and public interests protected by both statutes are clear: to
safeguard children from improper sexual conduct through sexually-motivated contact.
The Kansas statute furthered this goal by criminalizing the ―touching‖ of a child with the
intent to arouse or satisfy sexual desire.        The Texas statute furthers this goal by
criminalizing ―sexual contact‖ with a child, which is defined more precisely as contact
with certain areas of the body, with the intent to arouse or gratify sexual desire.

       This conclusion is bolstered by that fact that both offenses are felonies punishable
by multiple-year sentence ranges, which indicates that both states similarly treat the
offensive conduct with severity. See Prudholm, 333 S.W.3d at 595. Both offenses are
punishable by a fine of up to $10,000 and a minimum sentence of two or three years.
That the Texas offense carries a maximum sentence of twenty years, while the Kansas
offense carries a maximum sentence of ten years, is not so significant a difference that it
defeats a finding of substantial similarity. Compare id. at 599 (―[T]he difference in the
sexual elements results in a much less serious California offense. . . . [S]exual battery is
a misdemeanor punishable by only six months imprisonment, while sexual assault is a
second degree felony punishable by twenty years imprisonment.‖), with Warren, 2011
WL 4467224, at *7 (although punishment applicable almost forty years earlier was for a
misdemeanor offense with a sentence of less than one year and/or a fine of less than
$1,000, contemporary punishment, which treats offensive conduct as felonious with a
sentence of ―various ranges of terms of imprisonment,‖ supported finding of substantial
similarity). We conclude that the elements of both offenses are ―substantially similar
with respect to the individual or public interests protected and the impact of the elements
on the seriousness of the offenses.‖ See Prudholm, 333 S.W.3d at 595.

                                             17
       Having found the elements of appellant‘s Kansas conviction to be ―substantially
similar‖ to one of the enhancement offenses enumerated in 12.42(c)(2)(B), we overrule
appellant‘s Issues 4 and 5.

IV.    Ineffective Assistance of Counsel (Issues 2, 6–9)

       In Issue 2 and Issues 6 through 9, appellant argues for the first time on appeal that
he was denied effective assistance of counsel because his trial counsel (1) failed to call
any rebuttal witnesses in response to the ―uncorroborated testimony‖ of McGuire; (2)
advised appellant to plead ―true‖ to an enhancement paragraph that should not have been
used; and (3) failed to object to the enhancement paragraph.

       An ineffective assistance of counsel issue may be raised for the first time on direct
appeal, although the record on such a direct appeal often will not be sufficient to show
that counsel was ineffective. Cannon v. State, 252 S.W.3d 342, 347 n. 6, 350 (Tex. Crim.
App. 2008). In determining whether his trial counsel‘s representation was ineffective
such that it violated appellant‘s Sixth Amendment right to counsel, we use the two-prong
test laid out in Strickland v. Washington, 466 U.S. 668 (1984). See Thompson v. State, 9
S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 668). To
establish ineffective assistance of counsel, a defendant must show that (1) his counsel‘s
performance fell below an objective standard of reasonableness; and (2) but for counsel‘s
unprofessional errors, the result of the proceeding would have been different. Id.

       We assess whether a defendant received ineffective assistance of counsel
according to the facts of each case. Id. at 813. Any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Id. Appellant bears the burden of proving by a preponderance of the
evidence that counsel was ineffective. Id. We look to the totality of the representation
and particular circumstances of each case in evaluating the effectiveness of counsel. Id.
We must be ―highly deferential to trial counsel and avoid the deleterious effects of
hindsight.‖ Lane v. State, 257 S.W.3d 22, 26 (Tex. App.—Houston [14th Dist.] 2008,
pet. ref‘d). Trial counsel is strongly presumed to have acted within the wide range of

                                            18
reasonable professional assistance. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
App. 2010). With these standards in mind, we turn to appellant‘s arguments.

      A.     Rebuttal Witnesses

      Appellant argues in Issue 2 that he was denied effective assistance of counsel
because his trial counsel failed to call any rebuttal witnesses in response to the
―uncorroborated testimony‖ of McGuire. Appellant states:

              Appellant contends that he was not afforded effective assistance of
      counsel due to trial counsel‘s failure to present any defense witnesses in
      rebuttal of the testimony of [McGuire]. Appellant alleges that he informed
      his trial counsel regarding the availability of said witnesses and requested
      that the attorney subpoena said witnesses.
             ....
             Appellant‘s attorneys did not attempt to call any witnesses nor
      produce any evidence to attack the credibility of [McGuire]. His testimony
      went . . . unchallenged by the Appellant‘s trial attorneys. . . . [McGuire‘s]
      other cell mates could have been called to show that there were over 40
      other men in the jail tank and no private conversation between [McGuire
      and appellant] were [sic] overheard by anyone.‖

An ineffective assistance claim can be premised upon an attorney‘s failure to present
witnesses only if the appellant can show that the witnesses were available and that their
testimony would have benefitted him. See Ex parte McFarland, 163 S.W.3d 743, 757–58
(Tex. Crim. App. 2005) (―Applicant has failed to name any specific witnesses . . . whom
his attorneys should have contacted or called as mitigation witnesses. Likewise, he has
failed to show that these unnamed witnesses were available to testify or that their
testimony would have benefitted him.        Therefore, he fails to show prejudice.‖).
Appellant has not made this showing. Moreover, counsel‘s reasons for not presenting
such testimony do not appear in the record. See Garza v. State, 213 S.W.3d 338, 348
(Tex. Crim. App. 2007). We will not sustain an allegation of ineffective assistance of
counsel unless it is firmly founded and affirmatively demonstrated in the appellate
record. Stephens v. State, 15 S.W.3d 278, 279–80 (Tex. App.—Houston [14th Dist.]
2009, pet. ref‘d) (citing McFarland v. State, 928 S.W.2d 482, 400 (Tex. Crim. App.

                                           19
1996), and Jiminez v. State, 804 S.W.2d 334, 338 (Tex. App.—San Antonio 1991, pet.
ref‘d)). We overrule appellant‘s Issue 2 based on this argument.12

        Although not captured by appellant‘s Issues Presented, appellant also complains in
Issue 2 that his trial counsel was ineffective for (1) failing to object to the evidence and
arguments that allegedly constituted an implicit reference to appellant‘s Kansas
conviction, as discussed in Issue 1; and (2) failing to object to and request an instruction
regarding the ―uncorroborated‖ testimony of McGuire, as discussed in Issue 3. We have
already determined that even if appellant had made these objections, the trial court‘s
actions were not error, or were harmless error. 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 [appellant] must show that the trial judge would have committed
error in overruling the objection.‖); Cadoree v. State, 331 S.W.3d 514, 529 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref‘d) (counsel cannot have performed deficiently by
failing to object to or request limiting instruction regarding admissible evidence). We
overrule appellant‘s Issue 2.

        B.      Enhancement Paragraph

        Appellant argues in Issues 6 through 9 that his trial counsel was ineffective for
failing to object and advising appellant to plead ―true‖ to the enhancement paragraph
containing his Kansas conviction for aggravated sexual battery. Issues 6 through 9 each
depend on appellant‘s argument that the trial court‘s use of the enhancement paragraph
under section 12.42 was error, which is an argument that we rejected in overruling Issues
4 and 5. Accordingly, we also overrule appellant‘s Issues 6 through 9. See Ex parte
White, 160 S.W.3d at 53; Cadoree, 331 S.W.3d at 529.




        12
            Appellant also argues briefly that counsel was ineffective for presenting ―[l]ittle or no evidence
. . . on behalf of Appellant.‖ We overrule appellant‘s issue based on this argument for the same reasons.
See Garza, 213 S.W.3d at 348.

                                                     20
                                     CONCLUSION

        Having overruled all appellant‘s issues on appeal, we affirm the judgment of the
trial court.




                                         /s/    Sharon McCally
                                                Justice



Panel consists of Justices Brown, Boyce, and McCally.
Publish—TEX. R. APP. P. 47.29(b).




                                           21
