Affirmed and Memorandum Opinion filed July 16, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00688-CR

                SHERMAN STILLWELL GRIFFIN, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 183rd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1225094

                  MEMORANDUM OPINION
      Appellant Sherman Stillwell Griffin appeals his conviction for aggravated
sexual assault of a child, asserting that the trial court erred in denying appellant’s
motions for mistrial and that he received ineffective assistance of counsel. We
affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged by indictment in cause number 1225094 with the
offense of aggravated sexual assault of a child under the age of fourteen, which
was alleged to have occurred on or about May 1, 2003. Appellant also was
charged in cause number 1225095 with the offense of aggravated sexual assault of
a child under the age of fourteen, which conduct was alleged to have occurred on
or about May 27, 2007. The named complainant in both cases is appellant’s
daughter. Appellant pleaded “not guilty” to the charges.1

      In the consolidated trial that followed, the State elicited testimony from the
complainant about appellant’s sexual misconduct with her that started in 2003,
when she was about twelve years of age, and continued several times each week
through 2007, when she was older than fourteen years of age.               Although the
complainant testified with details about some incidents, the complainant had
difficulty recalling specific details about every encounter, explaining that the
conduct occurred so frequently that she could not differentiate the dates and
incidents.

      After the trial commenced, the State moved to dismiss the charge in cause
number 1225095, and the trial court granted the motion. The jury found appellant
guilty as charged in the remaining case (cause number 1225094). Appellant was
sentenced to forty-five years’ confinement.

     THE TRIAL COURT’S DENIAL OF APPELLANT’S MOTIONS FOR MISTRIAL

      In his first and third issues, appellant asserts that the trial court erred in
denying his motions for mistrial. We review a trial court’s denial of a motion for
mistrial under an abuse-of-discretion standard. See Ocon v. State, 284 S.W.3d 880,
884 (Tex. Crim. App. 2009); Austin v. State, 222 S.W.3d 801, 815 (Tex. App.—

1
  Appellant also was charged with aggravated sexual assault of a child in two other cause
numbers, involving other complainants as well as two offenses involving “illegal dumping.”
Those cause numbers are not at issue in this appeal.

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Houston [14th Dist.] 2007, pet. ref’d). Accordingly, we view the evidence in the
light most favorable to the trial court’s ruling, considering only those arguments
before the trial court at the time of the ruling. See Ocon, 284 S.W.3d at 884. We
uphold the ruling if the decision was within the zone of reasonable disagreement.
Id.

       A mistrial is a remedy intended for extreme circumstances when prejudice is
incurable and less drastic alternatives have been explored. See id. In determining
whether a prejudicial event was so harmful to warrant reversal on appeal, we
consider the prejudicial effect, the curative measures taken, and the certainty of
conviction absent the prejudicial event. See Hawkins v. State, 135 S.W.3d 72, 77
(Tex. Crim. App. 2004) (citing factors set forth in Moseley v. State, 983 S.W.2d
249 (Tex. Crim. App. 1998)); Austin, 222 S.W.3d at 815. Though seeking lesser
remedies is not a prerequisite to a motion for mistrial, if a movant does not first
seek lesser remedies, a reviewing court will not reverse the trial court’s judgment
when those alternatives could have cured the problem. See Ocon, 284 S.W.3d at
885.

Alleged Improper Admission of Extraneous-Offense Evidence by Virtue of the
Dismissal of Cause Number 1225095
       In his first issue appellant asserts the trial court should have granted his
request for a mistrial on the ground that, as a result of the dismissal of cause
number 1225095, prejudicial extraneous-offense evidence from cause no. 1225095
was admitted. There is no record of discussions, if any, leading to the dismissal of
cause number 1225095.

       The record reflects that on the day after the trial court granted the State’s
motion to dismiss, appellant moved for mistrial. Appellant asserted that by the
State’s presentation of unspecified evidence related to cause number 1225095


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before the dismissal of that case, he was denied an opportunity to object to the
introduction of the extraneous-offense evidence related to that case. Appellant also
asserted he was denied an opportunity to object to the introduction of extraneous-
offense evidence pertaining to conduct that occurred after 2003.

       The trial court denied the motion for mistrial and instructed the jury that its
consideration of the evidence related to that cause number could not be considered
for any purpose unless the jury found beyond a reasonable doubt that appellant had
committed such other offense or offenses, if any. The jury was instructed further
that it could only consider this evidence in determining motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.2

       Presuming for the sake of argument that appellant preserved error, his
argument would afford no basis for relief. The extraneous-offense evidence was
properly admitted as evidence of subsequent history between the parties, and the
trial court did not err in denying the motion for mistrial on this basis. See Tex.
Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp. 2012) (providing that evidence
of other crimes, wrongs, or acts committed by a defendant against a child
complainant who is the victim of the alleged offense shall be admitted for its
bearing on all relevant matters, including the state of mind of the defendant and the
child and the previous and subsequent relationship between the defendant and the
child); Dixon v. State, 201 S.W.3d 731, 734 (Tex. Crim. App. 2006) (allowing for
the admission of extraneous-offense evidence pursuant to 38.37 to show previous
and subsequent relationship between appellant and the complainant); Bargas v.
State, 252 S.W.3d 876, 900 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
(allowing for the admission of extraneous-offense evidence involving child
2
  Such language tracks Texas Rule of Evidence 404(b), which provides that extraneous-offense
evidence, if relevant apart from proving conformity with bad character, may be admitted for
other purposes. See Tex. R. Evid. 404(b).

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complainant and the accused under article 38.37 to prove previous and subsequent
relationship between the two).

      As part of his first issue, appellant asserts that the State’s decision to proceed
to trial on cause number 1225095, when it should have realized that the indictment
was deficient, was deliberate misconduct or gross negligence. The record does not
reflect the reasons for either moving to dismiss cause number 1225095 or granting
the request for dismissal. The record also does not reflect that appellant asserted
allegations of deliberate misconduct or gross negligence by the State in the trial
court. Because appellant failed to voice these complaints in the court below, he
has failed to preserve this argument for appellate review. See Tex. R. App. P.
33.1(a)(1); See Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012)
(providing that party never objected to prosecutorial misconduct at trial and
forfeited appellate claim by failing to preserve error).

      Appellant also asserts that his right to due process was denied by the
improper admission of the evidence of the 2007 conduct and that he should have
had a chance to object. On this basis, he asserts that his substantial rights were
affected, amounting to harmful error. Appellant did not assert any due-process
objection at trial and therefore waived any error for this complaint. See Clark, 365
S.W.3d at 340; Temple v. State, 342 S.W.3d 572, 593 n.4 (Tex. App.—Houston
[14th Dist.] 2010), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013). Likewise,
although appellant alludes to error under Texas Rule of Evidence 403, no such
objection was raised at trial. Therefore, appellant also has failed to preserve error
on his argument that the evidence was not admissible under Rule 403. See Tex. R.
App. P. 33.1(a)(1). We overrule appellant’s first issue.

A Witness’s Reference to Multiple Victims

      In his third issue, appellant asserts that the trial court erred in denying his
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motion for mistrial after a State’s witness, a police sergeant who had conducted an
investigation, referred to the complainant as “one of the victims.” According to
appellant, the jury was improperly influenced by the sergeant’s testimony that
there was more than one victim involved.

      The record reflects that appellant asserted no contemporaneous objection to
the reference. The witness answered several more questions before the trial court
ordered the jurors to exit the courtroom and then admonished the witness to limit
his testimony to only the one complainant in this case. The trial court instructed
the witness to make no reference to other victims or other cases. Although the
record reflects that the jury had returned to the courtroom, at the bench, appellant
objected to the reference as a violation of his pretrial motion in limine granted by
the trial court. The trial court offered two possible courses of action: (1) to instruct
the jury not to consider the reference; or (2) to continue with the trial without any
other instruction to the jury about the reference. The trial court pointed out that an
instruction might draw attention to the improper reference but indicated its
willingness to give the instruction if appellant requested it.        Appellant’s trial
counsel stated, “I don’t want you to talk to the jury.”

        Appellant did not move for mistrial until after three more of the
prosecutor’s questions had been asked and answered. Presuming for the sake of
argument that appellant preserve his complaint for appellate review, he cannot
prevail. A prompt instruction to disregard usually will cure any prejudice resulting
from improper testimony regarding an extraneous offense even if the testimony
was given in violation of a motion in limine. Austin, 222 S.W.3d at 813, 816.
Appellant did not assert any objection to the witness’s reference to other victims.
And, when given the opportunity for a curative instruction, appellant opted against
it. When, as in this case, an instruction to disregard could have cured the problem,

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we will not reverse a judgment on an appeal by a party who did not request the
lesser remedy. See Ocon, 284 S.W.3d at 885 (considering that the appellant did
not request alternative remedies before moving for mistrial); Young, 137 S.W.3d at
70; Phillips v. State, 130 S.W.3d 343, 348 (Tex. App.—Houston [14th Dist.] 2004)
(concluding that trial court did not abuse its discretion in denying motion for
mistrial after a witness made a vague, isolated comment referring to other
complainants and the trial court rendered a curative instruction to the jury), aff’d,
193 S.W.3d 904 (Tex. Crim. App. 2006). We overrule appellant’s third issue.

               INEFFECTIVE-ASSISTANCE-OF-COUNSEL ARGUMENT

      In his second issue, appellant asserts that he received ineffective assistance
of counsel because his trial counsel failed to object to allegedly inadmissible
evidence. According to appellant, his trial counsel should have investigated and
moved to dismiss cause number 1225095, filed a motion to quash the indictment,
or objected at trial to the admission of evidence regarding this alleged offense.

      Both the United States and Texas Constitutions guarantee an accused the
right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex.
Code Crim. Proc. Ann. art. 1.051 (West 2005). This right necessarily includes the
right to reasonably effective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945
S.W.2d 830, 835 (Tex. Crim. App. 1997). To establish ineffective assistance of
counsel, an appellant must show by a preponderance of the evidence that (1) trial
counsel’s representation fell below an objective standard of reasonableness, based
on prevailing professional norms; and (2) there is a reasonable probability that the
result of the proceeding would have been different but for trial counsel’s deficient
performance. Strickland, 466 U.S. at 687–92; Jackson v. State, 973 S.W.2d 954,
956 (Tex. Crim. App. 1998).

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       In assessing appellant’s claims, we apply a strong presumption that trial
counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). We presume counsel’s actions and decisions were reasonably professional
and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768,
771 (Tex. Crim. App. 1994). When, as in this case, there is no proper evidentiary
record developed at a hearing on a motion for new trial,3 it is extremely difficult to
show that trial counsel’s performance was deficient. See Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002). The Court of Criminal Appeals has stated that it
should be a rare case in which an appellate court finds ineffective assistance on a
record that is silent as to counsel’s trial strategy. See Andrews v. State, 159 S.W.3d
98, 103 (Tex. Crim. App. 2005). On such a silent record, this court can find
ineffective assistance of counsel only if the challenged conduct was “‘so
outrageous that no competent attorney would have engaged in it.’” Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)).

       Appellant asserts that his trial counsel repeatedly failed to object to allegedly
inadmissible evidence relating to cause number 1225095. On this record we
cannot conclude that trial counsel’s failure to object to testimony relating to cause
number 1225095 or other extraneous-offense evidence renders counsel’s
performance deficient. The testimony was admissible under article 38.37 of the
Texas Code of Criminal Procedure to show the state of mind of appellant and the
child and to show the previous and subsequent relationship between the two. See
Tex. Code Crime. Proc. Ann. art. 38.37 (West Supp. 2012); Bargas, 252 S.W.3d at
900 (allowing for the admission of extraneous-offense evidence involving child

3
  The record contains appellant’s pro se motion for new trial, which was untimely because it was
filed forty-one days after sentencing. See Tex. R. App. P. 21.4(a). The trial court did not rule on
the motion, and appellant does not contend that the trial court should have ruled on the motion.

                                                8
complainant and the accused under article 38.37 to prove previous and subsequent
relationship between the two). The failure to object to admissible evidence will
not support a claim for ineffective assistance. See McFarland v. State, 845 S.W.2d
824, 846 (Tex. Crim. App. 1992), overruled on other grounds, Bingham v. State,
915 S.W.2d 9, 10 (Tex. Crim. App. 1994); Moore v. State, 4 S.W.3d 269, 278
(Tex. App.—Houston [14th Dist.] 1999, no pet.).

      To establish ineffective assistance for failure to file a motion to quash the
indictment in cause number 1225095 or move to dismiss it, appellant must
demonstrate that he would have succeeded on the motion. See Jackson v. State,
973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Keller v. State, 125 S.W.3d 600,
607–08 (Tex. App.—Houston [1st Dist.] 2003), pet. dism’d, improvidently
granted, 146 S.W.3d 677 (Tex. Crim. App. 2004) (per curiam).               Appellant
presumes that the indictment in cause number 1225095 was dismissed because on
the date alleged in the indictment, the child was older than fourteen years of age.
But, the record is completely devoid of any explanation why trial counsel did not
seek dismissal of the indictment or the trial court’s reason for dismissing that cause
number. See id. at 608. Without a record reflecting the reasons for the dismissal,
we are unable to discern why counsel made the decision not to challenge the
indictment.   See Thompson, 9 S.W.3d at 813; Keller, 125 S.W.3d at 607–08
(providing that absent a record explaining counsel’s reasons for not challenging an
indictment, appellant has not established that he would have prevailed on a motion
to quash or dismiss the indictment).

      It is entirely possible that trial counsel believed the indictment was not
defective because it alleged elements of an offense and because the State was not
bound by the “on or about” language contained in the indictment, allowing for the
State to prove a date other than the one alleged as long as the date was anterior to

                                          9
the presentment of the indictment and within the statutory limitations period. See
Hendrix v. State, 150 S.W.3d 839, 853 (Tex. App.—Houston [14th Dist.] 2004,
pet. ref’d); Walker v. State, 4 S.W.3d 98, 104 (Tex. App.—Waco 1999, pet. ref’d)
(providing that indictment, containing “on or about” language was proper even
though the date alleged was after a sexual-assault complainant’s fourteenth
birthday). Likewise, for other reasons, trial counsel’s decision could have been a
matter of strategy.

      On this silent record, appellant has not demonstrated that trial counsel
provided ineffective assistance. See Keller, 125 S.W.3d at 607–08 (providing the
record did not reflect counsel’s reasons for not seeking dismissal of indictment and
that appellant did not establish that he would have prevailed on a motion to dismiss
when the indictment contained all of the elements of an offense and could have
been amended to correct for defects in form or substance). See also Thacker v.
State, 999 S.W.2d 56, 67 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)
(providing that failure to file a motion to quash or object to an indictment does not
constitute ineffective assistance if the indictment was legally sufficient because
trial counsel is not ineffective for failing to make meritless objections).      We
overrule appellant’s second issue.

      The trial court’s judgment is affirmed.




                                       /s/      Kem Thompson Frost
                                                Justice



Panel consists of Justices Frost, Boyce, and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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