Affirmed and Memorandum Opinion filed December 17, 2019.




                                     In the

                    Fourteenth Court of Appeals

                             NO. 14-18-00737-CR

                    MICHAEL BRYAN LUKE, Appellant
                                        v.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 122nd District Court
                          Galveston County, Texas
                      Trial Court Cause No. 15CR2252

                         MEMORANDUM OPINION

      A jury found Michael Bryan Luke guilty of continuous sexual abuse of a
young child or children between January 29, 2008 to April 18, 2015 and assessed
punishment at imprisonment for a term of 40 years. See Act of May 18, 2007, 80th
Leg., R.S., ch. 593, § 1.17, 2007 Tex. Gen. Laws 1120, 1127, amended by Act of
Apr. 7, 2011, 82d Leg., R.S., ch. 1, § 6.04, 2011 Tex. Gen. Laws 1, 15 (former
Tex. Penal Code § 21.02, since amended). In three issues, appellant argues that he
was provided ineffective assistance of counsel, and that the trial court erred in
admitting evidence concerning appellant’s possession of adult pornography. We
affirm.

                                 I.    BACKGROUND

          Appellant and Wanda Robinson lived together at a house in Santa Fe, Texas
for approximately ten years, the last three of those as a married couple, until
appellant moved out and filed for divorce in early July 2015. While appellant and
Robinson lived together, Robinson’s four grandchildren would sometimes visit and
stay overnight. During the evening of August 22, 2015, and continuing into the
following morning, two of Robinson’s female grandchildren made outcries of
sexual abuse against appellant. The two complainants testified at trial, each stating
that, among other acts, appellant touched her genitals and forced her to touch his
genitals. In each case, the abuse started when the complainant was between six and
eight years old and continued for more than a year. Each complainant also testified
that appellant forced her to watch videos in the course of the abuse, with one
complainant describing the content as “adult films” or “porn,” and the other
complainant describing the content as videos of “grown-ups” “having sex.” There
were no allegations that the videos shown to complainants contained child
pornography.

      The State attempted to admit evidence of pornography gathered from
desktop computers found in storage at the house that appellant and Robinson had
shared. Detective Groce of the Galveston Police Department conducted a forensic
analysis of the computers, determining that one of the computers contained several
images and video snippets appearing to be child pornography, and the other
computer contained 332 images and videos of what Groce termed “adult
pornography.” The trial court excluded the evidence of child pornography, but
allowed Groce to testify regarding the adult pornography. Groce also testified that,

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from his analysis, he could not determine who viewed the adult pornography, but
that the computer containing the adult pornography also contained approximately
1,400 emails from accounts that appeared to belong to appellant.

                                 II.    ANALYSIS

A. Ineffective assistance of counsel

      In his first and second issues, appellant claims he received ineffective
assistance of counsel because his trial counsel did not object to (1) the State’s
improper jury argument during closing, or (2) the admission of evidence that
appellant possessed adult pornography under Rule 404(b) of the Texas Rules of
Evidence.

      Both the United States Constitution and the Texas Constitution guarantee an
accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art.
I, § 10. This right necessarily includes the right to reasonably effective assistance
of counsel. See Strickland v. Washington, 466 U.S. 668, 685–86 (1984);
Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (applying
Strickland standard to ineffective-assistance claims under the Texas Constitution).
To prevail on his claims of ineffective assistance of counsel, appellant must prove
(1) counsel’s representation fell below an objective standard of reasonableness, and
(2) a reasonable probability that, but for counsel’s deficiency, the result of the
proceeding would have been different. See Strickland, 466 U.S. at 687–88;
Hernandez, 726 S.W.2d at 55. In considering an ineffective-assistance claim, we
indulge a strong presumption that counsel’s actions fell within the wide range of
reasonable professional behavior and were motivated by sound trial strategy.
Strickland, 466 U.S. at 689; Duncan v. State, 717 S.W.2d 345, 347–48 (Tex. Crim.
App. 1986). To defeat this presumption, any allegation of ineffectiveness must be
firmly grounded in the record so that the record affirmatively shows the alleged
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ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      Trial counsel generally should be given an opportunity to explain counsel’s
actions before the court finds counsel ineffective. Rylander v. State, 101 S.W.3d
107, 111 (Tex. Crim. App. 2003). In most cases, direct appeal proves an
inadequate vehicle for raising an ineffective-assistance claim because the record
typically is undeveloped and cannot adequately reflect the motives behind trial
counsel’s actions. Id. at 110–11. In the face of a silent record, we are unable to
discern trial counsel’s strategy, so we will not find deficient performance “unless
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)).

      1. Closing argument

      In his first issue, appellant claims he received ineffective assistance of
counsel because his trial counsel failed to object when the State referred to
appellant as a “pedophile” during closing argument. Proper jury argument
generally falls within one of the following four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) answer to argument of
opposing counsel; and (4) plea for law enforcement. Alejandro v. State, 493
S.W.2d 230, 232 (Tex. Crim. App. 1973). The decision to object to particular
statements made during closing argument is a matter of trial strategy. See Ex parte
Scott, 541 S.W.3d 104, 119–20 (Tex. Crim. App. 2017).

      In its initial closing argument, the State did not use the term “pedophile.”
Defense counsel made the following argument that appellant was not a pedophile
in closing:

      A logical conclusion that we can all come to is that if you’re a
      pedophile and you’re attracted to children, you’re going to try and put

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      yourself in the position to be around children. And that’s the exact
      opposite of what Mike Luke did.
      ...
      He gave up access to be around these kids, which if you’re abusing
      kids, you’d think you might be a little bit concerned then they might
      start talking when you’re not around anymore. You think you would
      be concerned—if that’s what your attraction is, you’ve just now given
      up access to children, that’s not what pedophiles do.
      In rebuttal, the State then argued that complainants “told the truth.
Defendant in this case is a pedophile.”

      Appellant did not file a motion for new trial, which would have provided the
trial court with an opportunity to hold a hearing on counsel’s performance and
develop a record for appeal. Without an affidavit from counsel or a hearing on
appellant’s ineffective-assistance complaint, there is nothing in the record to
inform this court of trial counsel’s strategy on this issue. See Goodspeed, 187
S.W.3d at 392. Accordingly, we cannot find that counsel provided ineffective
assistance unless the conduct was “so outrageous that no competent attorney would
have engaged in it.” Garcia, 57 S.W.3d at 440.

      The conduct under review does not meet that demanding standard. Perhaps
trial counsel thought the topic was fair game, given that the defense arguably
opened the door to the subject by being the first party to use the term “pedophile”
in closing. See id. (in absence of record showing trial counsel’s strategy, courts
will not find counsel’s performance deficient if any reasonably sound strategic
motivation “can possibly be imagined”) (quoting 3 Wayne R. LaFave, Jerold H.
Israel & Nancy J. King, Criminal Procedure § 11.10(c) (2d. ed 1999)). Likewise,
trial counsel may have decided that objecting to the State’s single use of the word
“pedophile” would only bring attention to and emphasize the purported error. See
Scott, 541 S.W.3d at 119–20; Kuhn v. State, 393 S.W.3d 519, 539 (Tex. App.—

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Austin 2013, pet. ref’d) (“One such reasonably sound strategic motivation could
have been the desire to avoid drawing additional attention to the prosecutor’s
opinion.”). The jury, moreover, heard testimony from the two complainants, each
of whom testified that appellant abused her beginning between ages six and eight,
and that in each case the abuse lasted for more than a year. Trial counsel could
have surmised from this testimony that calling appellant a pedophile was a
reasonable deduction from the evidence. See Alejandro, 493 S.W.2d at 232; Valdez
v. State, 2 S.W.3d 518, 521–22 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)
(prosecutor’s closing argument that aggravated-sexual-assault-of-a-child defendant
was “pedophile” was reasonable deduction from evidence). In any event, we
cannot conclude from the record before us that trial counsel’s conduct was so
outrageous that no competent attorney would have engaged in it, and accordingly
overrule appellant’s first issue. See Garcia, 57 S.W.3d at 440.

      2. Rule 404(b) objection regarding possession of adult pornography

      In his second issue, appellant claims he received ineffective assistance of
counsel because trial counsel failed to raise an objection under Texas Rule of
Evidence 404(b) to Groce’s testimony that appellant possessed “adult
pornography.” Rule 404(b) bars admission of “other crimes, wrongs, or acts . . . to
prove the character of the person in order to show action in conformity therewith.”
Tex. R. Evid. 404(b).

      The evidence in question concerned Groce’s testimony that a computer
which was found at the house that appellant shared with Robinson, and which
contained approximately 1,400 of appellant’s e-mails, also contained “332 pieces
of viewable media, pictures and videos, which appear to be adult pornography.” As
above, we examine the record to determine whether any reasonable trial strategy
could justify counsel’s conduct. Garcia, 57 S.W.3d at 440.

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      At the time of admission of Groce’s testimony, the State argued that the
evidence concerning adult pornography was admissible because it corroborated the
testimony of complainants, each of whom testified that appellant forced her to
watch adult pornography. Trial counsel reasonably could have concluded that the
State was not offering the evidence as proof of action in conformity with character,
but instead for a different purpose not prohibited by Rule 404(b). See Tex. R. Evid.
404(b) (evidence of other crimes, wrongs, or acts may be admissible for “other
purposes”); see also Marc v. State, 166 S.W.3d 767, 776 (Tex. App.—Fort Worth
2005, pet. ref’d) (evidence of extraneous acts admissible under Rule 404(b) for
purpose of corroborating victim’s testimony about specific incidents at issue at
trial). Likewise, trial counsel reasonably could have concluded that the
pornography was evidence of a bad act committed by appellant against
complainants, and accordingly could have been admissible under Code of Criminal
Procedure article 38.37, section 1(b). See Tex. Code Crim. Proc. Ann. art. 38.37,
§ 1(b) (evidence of defendant’s other crimes, wrongs, or acts against victim
admissible at trial for continuous sexual abuse of child “for its bearing on relevant
matters”); Sarabia v. State, 227 S.W.3d 320, 323 (Tex. App.—Fort Worth 2007,
pet. ref’d) (pornographic photograph defendant showed to victim was admissible
under article 38.37 because it was evidence of crime or bad act committed against
victim and showed subsequent relationship between defendant and victim).

      By the time of Groce’s testimony, moreover, the jury had already heard
complainants’ testimony that appellant forced them to watch “adult films,” “porn,”
and videos of adults “having sex.” This testimony drew no objection, rendering
any error in admitting Groce’s testimony that appellant possessed “adult
pornography” harmless. See Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim.
App. 1978) (“It is well established that the improper admission of evidence does


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not constitute reversible error if the same facts are shown by other evidence which
is not challenged.”). Again, we cannot conclude from the record before us that trial
counsel’s conduct was so outrageous that no competent attorney would have
engaged in it. See Garcia, 57 S.W.3d at 440. We overrule appellant’s second issue.

B. Rule 403 objection regarding possession of adult pornography

      In his third issue, appellant argues that the trial court erred in admitting
Groce’s testimony that appellant possessed “adult pornography” because the
relevance of this evidence was substantially outweighed by the danger of unfair
prejudice. See Tex. R. Evid. 403 (providing that relevant evidence may be
excluded “if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence”).

      We first address the State’s argument that this issue has been waived
because appellant did not preserve error. At trial, appellant’s counsel argued that
the “nexus” linking appellant to the computer on which the adult pornography was
found “was so tenuous, it makes [the evidence] unreliable, and, therefore, less
probative of—for whatever reason [the State] would be admitting . . . the adult
pornography for. . . . And as it reduces its probative value, it’s not reducing how
extremely prejudicial it is to my client in this type of case.” This objection,
referencing both the balancing test of Rule 403 and the specific prong on which the
objection was founded (unfair prejudice), adequately preserves error. See Tex. R.
App. P. 33.1(a) (requiring that to preserve appellate complaint, party must present
objection to trial court with sufficient specificity to make trial court aware of
complaint).

      The trial court, however, did not abuse its discretion by admitting the
evidence of adult pornography. In reviewing the trial court’s balancing-test
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determination under Rule 403, we may reverse the trial court’s judgment “rarely
and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847
(Tex. Crim. App. 1991); see Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App.
2007) (Rule 403 favors admission of relevant evidence and carries presumption
that relevant evidence will be more probative than prejudicial).

       Here, the evidence is probative as corroborating complainants’ accounts of
abuse—specifically, that appellant forced them to watch adult pornography. Any
prejudicial impact, moreover, is mitigated by the fact that the jury had already
heard unobjected-to evidence from both complainants that appellant watched
pornography. Under these circumstances, evidence of pornography located on a
computer appellant appeared to have used would not prejudice appellant to the
point of making the evidence inadmissible under Rule 403. See Gallo, 239 S.W.3d
at 762–64; see also Mattingly v. State, 382 S.W.3d 611, 615 (Tex. App.—Amarillo
2012, no pet.) (explaining that evidence showing that appellant watched “a variety”
of adult pornography “is hardly a shocking piece of evidence and would not seem
to suggest that the jury would arrive at its verdict on an improper basis”). 1

       We overrule appellant’s third issue.




       1
          Though unpublished, we also find persuasive the case of Allen v. State, in which the
First Court of Appeals held that any prejudicial effect of evidence that the defendant owned adult
pornography was outweighed by the probative value of corroborating the child victim’s
testimony that the defendant forced her to watch adult pornography in the course of sexual abuse.
No. 01-10-00652-CR, 2012 WL 2106550, at *4–6 (Tex. App.—Houston [1st Dist.] June 7, 2012,
pet. ref’d) (mem. op., not designated for publication).

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                                III.   CONCLUSION

      We affirm the judgment of the trial court.




                                       /s/    Charles A. Spain
                                              Justice



Panel consists of Justices Christopher, Spain, and Poissant.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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