Opinion issued November 24, 2015




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-14-00809-CR
                          ———————————
                      RODYS A. SANCHEZ, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 263rd District Court
                          Harris County, Texas
                      Trial Court Case No. 1400848



                        MEMORANDUM OPINION

     A jury convicted appellant, Rodys A. Sanchez, of the first-degree felony

offense of aggravated sexual assault of a child and assessed his punishment at
confinement for life.1 In two issues, appellant contends that (1) his trial counsel

rendered constitutionally ineffective assistance of counsel; and (2) the trial court

erred by failing to instruct the jury on the lesser-included offense of indecency with

a child.

      We affirm.

                                    Background

      A.     Factual Background

      M.V. met appellant in the summer of 2011 and they began dating. After a

couple of months of dating, M.V. introduced appellant to her three children,

including her oldest daughter, D.W., the complainant, who was thirteen at the time.

Appellant, his children, M.V., and her children would occasionally do activities

together such as going out to restaurants or going ice skating at the Galleria. M.V.

testified that they all had fun together and that she did not notice any unusual

behavior or occurrences between appellant and D.W.

      On November 5, 2011, M.V., her children, and appellant had plans to bowl

at the Main Event entertainment complex around mid-day. Appellant told M.V.

that he wanted to do something special for each of her children, and he proposed

taking D.W. out by herself before they met up with M.V. and her other daughters

for bowling. M.V. and her daughters met appellant at a local restaurant, and she


1
      See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (Vernon Supp. 2015).

                                          2
assumed that appellant would take D.W. to the mall. M.V. felt comfortable letting

D.W. go with appellant by herself, particularly because D.W. had a cell phone.

M.V. had “pretty constant” phone communication with both appellant and D.W.

while they were gone, during which she learned that appellant had taken D.W. to

get a manicure. But after they had been gone for approximately two hours, the

communication stopped, and M.V. wondered what was taking so long. She tried

calling both appellant and D.W., but neither one of them answered their phones.

After about twenty or thirty minutes, M.V. finally spoke with D.W., who told her

that they were on their way to Main Event.

      Appellant dropped D.W. off at Main Event around 3:00 or 4:00 in the

afternoon. Appellant was supposed to go bowling with M.V. and her daughters,

but he told her that he did not feel like bowling and that he was going to go home.

M.V. spoke with appellant in his car, and she testified that he seemed nervous and

that there was an open container of beer in his car. He also told her, “She’s not

ready,” and when M.V. asked him what he meant by that, appellant told her to talk

to D.W. about it. M.V. then took D.W. aside and asked her what appellant meant.

D.W. started crying and told M.V. that appellant had taken her to his apartment

and touched her inappropriately. M.V. immediately took D.W. to the hospital for a

sexual assault exam. After the incident, appellant called M.V. and asked her if she

was going to speak to the police.



                                        3
      D.W. testified that when appellant picked her up on the day of the incident,

he asked her if she wanted to go to the mall or to get her nails done, and she chose

the nail salon. After D.W.’s nails were finished, appellant told her that he had been

communicating with her mother and that M.V. told him to take D.W. to his

apartment so she could take a nap because she had been awake all night with

friends at a slumber party. D.W. thought this was odd, but she “went along with

it.” On the way to his apartment, appellant stopped by two different gas stations,

purchased a beer at each, and drank the beers while driving.

      When they arrived at appellant’s apartment around 2:00 in the afternoon, he

told D.W. to be quiet and that he “was going to sneak [her] in.” Although she still

had misgivings, D.W. went inside his bedroom and lay down on his bed. D.W.

pretended to sleep while appellant went into the adjoining bathroom. When he

came out of the bathroom, appellant sat down next to her on the bed and asked

D.W. if she wanted a massage. Despite D.W.’s response that she did not want a

massage, appellant began giving her one anyway. Appellant then took off D.W.’s

clothes and began touching and kissing her breasts, arms, stomach, and legs.

Appellant said that D.W. “wasn’t ready” many times during the incident.

Appellant then reached under D.W.’s panties and touched “inside” her vagina with

his finger. D.W. testified that this caused her pain and discomfort and that she

cried and repeatedly told appellant to stop.



                                          4
      Eventually, appellant stopped and they both got dressed. Appellant then

drove D.W. to Main Event, and during the ride there, he told her that she “wasn’t

ready” and that she should not tell her father about what had happened. D.W. went

inside Main Event while her mother spoke with appellant, and M.V. returned and

appeared worried and mad. M.V. asked what had happened, and D.W. told her

“part” of what had occurred. D.W. then went to the hospital and spoke with a

nurse about the incident. The nurse then conducted a physical exam and took

DNA samples. D.W. testified that the physical exam felt “really uncomfortable.”

      Susan Spjut, a forensic nurse, conducted the sexual assault exam of D.W. on

the day of the incident. D.W. was “calm and cooperative” at the time of the exam.

During the patient history, D.W. told Nurse Spjut the following:

      I said I was really tired. [Appellant] said that my mom said that I
      should go back to his place and take a nap. I said I didn’t want to. He
      kind of, like, snuck me in. He led—he had me lay down on his bed.
      It was really weird. He laid down right beside me. He said he wasn’t
      going to take his clothes off, but I guess he did.
      He had lotion, he rubbed my back. He took off my clothes. I tried to
      put them back on. It was really weird. He was touching me, both
      private areas, my boobs, hands, kissing, my vagina with his fingers
      inside. I said I wanted to go home. I said it, like, crying. I said stop
      many times.

Nurse Spjut collected D.W.’s clothing and swabs of her breasts, her vagina, and

her anus for DNA testing. Nurse Spjut testified that taking a shower, using the

restroom, or wiping the vaginal area can “wash away some evidence,” but D.W.



                                         5
indicated that she had not washed in between the time of the incident and the time

of the sexual assault exam.

      Nurse Spjut also testified that she does not expect to see injury to the female

sexual organ when conducting a sexual assault exam and that injury is “not that

common.” D.W. had “normal” physical and genital exams, but it is also normal

for there to be no “medical findings of abuse.” According to Nurse Spjut, “very

few people” who have been sexually assaulted have injury, and thus D.W.’s

“normal” exam results were still consistent with her disclosure of digital

penetration. Nurse Spjut would not expect to find “medical evidence or trauma to

the female sexual organ” in digital penetration cases involving a single finger.

      On cross-examination, Nurse Spjut testified that D.W. did not express

feeling any pain or discomfort during the sexual assault exam and that she would

have recorded that information if that had been the case. Because D.W. did not

wash herself after the incident, Nurse Spjut agreed that “if there were DNA

material placed in her vagina, it should still be there” at the time of the sexual

assault exam.

      Robin Freeman testified that while she worked at the Harris County Institute

of Forensic Sciences, she analyzed the DNA samples taken during D.W.’s sexual

assault exam. Freeman testified that both the breast and anal swabs contained a

DNA profile consistent with appellant’s DNA profile and appellant could not be



                                          6
excluded as a major contributor of the DNA in the breast sample and could not be

excluded as the sole contributor of DNA in the anal sample.

      The DNA on the vaginal swab was consistent with D.W.’s DNA profile,

which Freeman testified was not unusual since the sample was from D.W.’s

vaginal area. On cross-examination, Freeman testified that appellant was not the

“originator” of the DNA evidence found on the vaginal swab. She agreed that in

cases of digital penetration of a vagina, it would not be unreasonable to find a

defendant’s DNA present in the swab, “but because it’s the orifice of [the

complainant], it might mask them so you might get more from the vaginal vault

than from the individual that had a hand or a finger.”        “Depend[ing] on the

situation,” there might or might not be evidence of a “minor contributor” to the

DNA mixture in that case. Freeman also testified that just because someone

touches something, that does not mean that they left a “dectectable amount” of

DNA behind. DNA evidence can also rub off if it comes into contact with an

article of clothing. When asked whether just because there is no evidence of male

DNA on a vaginal swab that means appellant did not touch D.W.’s vagina,

Freeman stated that it means she “didn’t obtain his DNA on that item,” but he

could still have touched D.W.’s vagina.




                                          7
      B.     Procedural Background

      The State filed a motion in limine the Friday before trial was scheduled to

begin, seeking to exclude any discussion of allegations of sexual assault that D.W.

had made in Montgomery County against three of her classmates that had been no-

billed or dismissed. At a pre-trial hearing, in response to questions from both the

trial court and trial counsel, one of the prosecutors explained that she was not sure

if the allegations had been no-billed or dismissed, but she knew that that case was

“not going forward.” The trial court stated its belief that “prior allegations against

other individuals are probative.”    The other prosecutor explained that D.W.’s

“recollection of the event is almost zero,” which explains why the Montgomery

County District Attorney decided not to proceed with the case. She also stated that

M.V. informed her that she had received a letter from the Montgomery County

District Attorney “stating they would not be able to go forward for lack of

evidence.” The trial court again stated that it believed these allegations were

admissible, and it asked trial counsel if he had knowledge of the allegations. Trial

counsel responded that he did not, and he did not move for a continuance to

investigate the allegations. On the second day of trial, prior to D.W.’s testimony,

the State re-urged its motion in limine concerning D.W.’s other sexual assault

allegations, and the trial court stated that because there was no evidence the

allegations were false, evidence of the allegations was inadmissible. Trial counsel



                                          8
did not request a continuance or ask to question D.W. about the allegations, nor did

he insist that the trial court hold a bench conference on the record concerning the

allegations.

      At the close of evidence, the trial court presented an informal copy of the

charge to the parties and asked if there were any objections. The State objected to

the inclusion of an instruction on the lesser-included offense of indecency with a

child, arguing that there was no evidence that, if appellant committed an offense,

he committed only the lesser offense of indecency with a child. Trial counsel

argued that the evidence presented at trial did warrant the submission of the lesser-

included offense instruction, but the trial court disagreed and informed the parties

that the instruction would be removed from the final charge. At the formal charge

conference, the charge did not include a lesser-included offense instruction, and

trial counsel did not object on this basis. The jury found appellant guilty of the

charged offense of aggravated sexual assault of a child.

      At the punishment phase, the State called Dr. Danielle Madera, a staff

psychologist at the Harris County Children’s Assessment Center, to testify about

topics such as “grooming” of sexual assault victims and sex-offender treatment

programs. The State asked Dr. Madera about “the only sure way that a sex

offender will not reoffend,” and Dr. Madera replied, “Lock them up in prison.”




                                         9
Trial counsel did not object to this testimony. The State and Dr. Madera then had

the following exchange:

      [The State]:        And are there factors or things that affect whether
                          or not [a sex offender] is likely to reoffend?
      [Dr. Madera]:       Yes.
      [The State]:        And what are those?
      [Dr. Madera]:       Access to children, access to fantasy materials,
                          pornography, movies, magazines, anything that
                          will continue the offense cycle.
      [The State]:        And what about whether or not they’re ready to
                          take responsibility, does that affect their likelihood
                          to reoffend?
      [Dr. Madera]:       Yes.
      [The State]:        How?
      [Dr. Madera]:       If there’s any hope of any sort of treatment helping
                          them to control the urge to offend—because
                          there’s no cure for this. So they’re always going to
                          have that sexual attraction [to] children. So the
                          only hope of controlling that will be to first, you
                          know, admit that responsibility for their actions
                          and work on their thoughts and how to control
                          their behaviors.

Trial counsel also did not object to this testimony.

      On cross-examination of Dr. Madera, however, trial counsel asked whether

she had ever met with or interviewed appellant. Dr. Madera responded that she

had not, and she agreed that she could not say what was going on in appellant’s

mind, but that she was “talking generally about needing to accept responsibility.”

Dr. Madera testified that she was not saying that defendants who insist that the

                                          10
State prove the allegations against them in a trial are denying responsibility for

their actions. She agreed with trial counsel that no conclusion regarding accepting

or denying responsibility could be drawn from a defendant’s insistence on a trial.

      At the punishment phase, the State also presented evidence that appellant

had several prior convictions, including one for misdemeanor theft, one for

possession of marijuana, two for misdemeanor assault, and three for misdemeanor

driving while intoxicated. The State also presented testimony from appellant’s ex-

wife, who testified that appellant often became violent with her during the course

of their relationship, especially when alcohol was involved, and from appellant’s

underage former step-daughters, who testified that appellant had sexually assaulted

them, that he made threats against them and their mother, and that appellant would

often be under the influence of alcohol. Charges were filed against appellant with

regard to the abuse of one of his former step-daughters, but the charges were

ultimately dismissed due to the complainant’s young age and the fact that she had a

learning disability which would have made it difficult for her to testify.

      During argument at the punishment phase, trial counsel stated that during its

deliberations the jury would consider D.W., “a young lady, 13 years old and

innocent,” and that it was appropriate that the jury consider D.W. when making a

punishment decision. Trial counsel acknowledged that he would consider her and

her testimony if he were in the jury’s position. Trial counsel also stated that the



                                          11
jury, through its punishment verdict, would punish appellant after having already

found him guilty, that it would provide “some level of retribution” for D.W. and

her family, and would deter future similar misconduct from other individuals who

“prey” on children.       Trial counsel also argued mitigating circumstances,

acknowledging appellant’s prior offenses and bad acts against his ex-wife and

former step-daughters, but pointing out their testimony that his bad conduct often

occurred under the influence of alcohol, a factor that was also present in the

underlying case.

      Ultimately, the jury assessed punishment at confinement for life. Appellant

did not file a motion for new trial, and this appeal followed.

                         Ineffective Assistance of Counsel

      In his first issue, appellant contends that his trial counsel rendered

constitutionally ineffective assistance of counsel. Specifically, appellant contends

that his trial counsel was ineffective because he failed to review a notice from the

State that D.W. had made allegations of sexual abuse against other individuals that

were ultimately no-billed; he failed to request a continuance to investigate these

allegations on three separation occasions; he failed to request a record of a bench

conference concerning D.W.’s no-billed allegations; he failed to object to the lack

of a lesser-included offense instruction in the jury charge; he failed to object to

expert testimony presented during the punishment phase concerning the best



                                          12
treatment for sex offenders and testimony that violated his right not to testify by

commenting on his post-arrest silence; and he made an argument during the

punishment phase that mirrored the State’s argument.

      A.    Standard of Review

      To establish that trial counsel rendered ineffective assistance, an appellant

must demonstrate, by a preponderance of the evidence, that (1) his counsel’s

performance was deficient, and (2) there is a reasonable probability that the result

of the proceeding would have been different but for his counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984); Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010); Cannon

v. State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008). The appellant’s failure

to make either of the required showings of deficient performance and sufficient

prejudice under Strickland defeats the claim of ineffective assistance. Rylander v.

State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State,

301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy

one prong of the Strickland test negates a court’s need to consider the other

prong.”).

      The appellant must first show that his counsel’s performance fell below an

objective standard of reasonableness. Strickland, 466 U.S. at 687, 104 S. Ct. at

2064; Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson



                                        13
v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).         The second prong of

Strickland requires the appellant to demonstrate prejudice—“a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at

2068; Thompson, 9 S.W.3d at 812. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694,

104 S. Ct. at 2068.

      We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance, and, therefore, the appellant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review

is highly deferential to counsel, and we do not speculate regarding counsel’s trial

strategy. See Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002). To

prevail on an ineffective assistance claim, the appellant must provide an appellate

record that affirmatively demonstrates that counsel’s performance was not based

on sound trial strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001);

see Thompson, 9 S.W.3d at 813 (holding that record must affirmatively

demonstrate alleged ineffectiveness).

      In the majority of cases, the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s actions. Mallett, 65



                                        14
S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 505, 123 S. Ct.

1690, 1694 (2003) (“If the alleged error is one of commission, the record may

reflect the action taken by counsel but not the reasons for it. The appellate court

may have no way of knowing whether a seemingly unusual or misguided action by

counsel had a sound strategic motive or was taken because the counsel’s

alternatives were even worse. The trial record may contain no evidence of alleged

errors of omission, much less the reason underlying them.”) (internal citations

omitted). Because the reasonableness of trial counsel’s choices often involves

facts that do not appear in the appellate record, the Court of Criminal Appeals has

stated that trial counsel should ordinarily be given an opportunity to explain his

actions before a court reviews the record and concludes that counsel was

ineffective. See Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836.

      B.    Alleged Instances of Ineffective Assistance
            1.     Conduct relating to complainant’s no-billed allegations of
                   sexual assault against other individuals

      On the Friday before the trial began, the State filed a motion in limine

seeking to prevent appellant from cross-examining D.W. about sexual assault

allegations that she had made against three boys in Montgomery County that were

ultimately no-billed by the grand jury. Appellant argues that his trial counsel

rendered ineffective assistance by failing to review the State’s motion in limine

concerning the allegations prior to a pre-trial conference, failing to request a


                                        15
continuance to investigate “this potential Brady evidence” on three different

occasions,2 and failing to have a bench conference concerning these allegations

placed on the record.      We address these instances of alleged ineffectiveness

together.

      The trial court ruled that the evidence of D.W.’s additional sexual assault

allegations was inadmissible because appellant could offer no proof that the

allegations were false. As the State points out, a trial court does not abuse its

discretion by excluding evidence that the complainant in a sexual assault case

made sexual assault allegations against other individuals when there is no evidence

that the allegations were false. See Lape v. State, 893 S.W.2d 949, 955–56 (Tex.

App.—Houston [14th Dist.] 1994, pet. ref’d); Hughes v. State, 850 S.W.2d 260,

262–63 (Tex. App.—Fort Worth 1993, pet. ref’d) (“When there is no evidence that

the complainant made false accusations, any evidence concerning the accusations

is inadmissible.”); see also Lopez v. State, 18 S.W.3d 220, 226 (Tex. Crim. App.

2000) (“Without proof that the prior accusation was false or that the two

accusations were similar, the evidence fails to have any probative value in

impeaching [the complainant’s] credibility in this case.”); cf. Thomas v. State, 669


2
      Specifically, appellant argues that trial counsel should have moved for a
      continuance after he received the State’s “untimely and insufficient” notice of
      D.W.’s allegations, at the pre-trial conference at which the parties discussed the
      State’s motion in limine concerning the allegations, and during trial after the trial
      court ruled that the evidence of the allegations was inadmissible.

                                           16
S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d) (“Appellant has

shown by the testimony of complainant and her mother that at least one of the prior

accusations was false. Although the false accusations may have indicated

emotional or psychological trauma rather than a lack of trustworthiness, the jury

should have been allowed to hear the testimony and decide on the issue of the

complainant’s credibility.”).

      Here, at the pre-trial conference at which the parties discussed the State’s

motion in limine, one of the prosecutors stated that D.W.’s Montgomery County

allegations had been either no-billed or dismissed. The other prosecutor gave a

few details about the allegations and stated that D.W.’s “recollection of the event is

almost zero,” and offered that as an explanation for why that case did not proceed.

The prosecutor also stated that M.V. had received a letter from the Montgomery

County District Attorney’s Office informing her that “they would not be able to go

forward [on the case] for lack of evidence.”        Appellant did not present any

evidence, either pre-trial or when the trial court revisited the issue before D.W.’s

testimony, that D.W.’s allegations against the boys in Montgomery County were

false. Appellant also did not file a motion for new trial in this case. He has

therefore never presented any evidence at any point in this proceeding that D.W.’s




                                         17
allegations of sexual assault in Montgomery County were false. 3 The fact that

M.V. allegedly received a letter informing her that the case against the boys D.W.

accused could not be prosecuted for lack of evidence is not evidence that no sexual

assault offense against D.W. occurred or that she made false allegations. See

Prevo v. State, 778 S.W.2d 520, 524 (Tex. App.—Corpus Christi 1989, pet. ref’d)

(“That there was no physical evidence of a prior rape does not mean that the rape

did not occur, nor does it mean that the complainant lied and falsely accused

another.”).

      Even if an objectively reasonable attorney would have read the State’s

motion in limine prior to the pre-trial conference on the motion, would have moved

for a continuance to investigate the allegations, and would have ensured that a

bench conference concerning the admissibility of the allegations was on the record,

because appellant has not established, either in the trial court or on appeal, that the

allegations were false and, thus, evidence of the allegations was admissible, he

cannot establish that a reasonable probability exists that the result of the

proceeding would have been different but for trial counsel’s conduct.                 See

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812; see

also Lape, 893 S.W.2d at 955–56 (holding that, in absence of evidence that

complainant’s sexual assault allegations against other man were false, trial court

3
      In his appellate brief, for example, appellant refers to this evidence as “potential
      Brady evidence.” He points to no evidence that D.W.’s allegations were false.

                                           18
did not abuse its discretion in determining that evidence of other allegations was

irrelevant and inadmissible). Appellant has therefore failed to establish prejudice

with respect to trial counsel’s omissions concerning D.W.’s allegations against

other individuals. We hold that trial counsel did not render ineffective assistance

with regard to these allegations.

              2.   Failure to object to expert testimony during punishment

       Appellant contends that his trial counsel rendered ineffective assistance by

failing to object to testimony from Dr. Madera at the punishment phase that the

“‘only sure way’ to make sure a sex offender will not reoffend is to ‘lock them up

in prison’” and testimony that “the only hope of controlling a sex offender is

requiring him to admit responsibility,” which violates his Fifth Amendment right

not to testify.

       Trial counsel’s failure to object to admissible evidence does not constitute

ineffective assistance of counsel. Oliva v. State, 942 S.W.2d 727, 732 (Tex.

App.—Houston [14th Dist.] 1997, pet. dism’d).        Code of Criminal Procedure

article 37.07. section 3(a)(1) provides that during the punishment phase, “evidence

may be offered by the state and the defendant as to any matter the court deems

relevant to sentencing.”     TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)

(Vernon Supp. 2014). The trial court has wide latitude in admitting relevant

evidence at the punishment phase, as long as its admission is otherwise permitted



                                        19
by the rules of evidence. Muhammad v. State, 46 S.W.3d 493, 498–99 (Tex.

App.—El Paso 2001, no pet.). A jury deciding punishment “must be able to ‘tailor

the sentence to the particular defendant.’” Ellison v. State, 201 S.W.3d 714, 722

(Tex. Crim. App. 2006) (quoting Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim.

App. 1999)). For example, both the State and the defense are permitted to present

evidence on issues such as a defendant’s suitability for community supervision.

See id.; Muhammad, 46 S.W.3d at 505 (“We find it clear that the legislature

intends the widest sweep of relevant evidence to be considered by the jury in

determining punishment. We can see no logical reason for excluding evidence on

suitability for probation from that deliberation . . . .”).

       Appellant argues that Dr. Madera’s testimony that the only sure way that a

sex offender will not reoffend is to “[l]ock them up in prison” is inadmissible

because it “decided the issue of punishment for the jury.”      However, expert

testimony on issues such as suitability for probation and recidivism is admissible

as a proper consideration for sentencing under article 37.07. See Ellison, 201

S.W.3d at 722; Muhammad, 46 S.W.3d at 505; cf. Peters v. State, 31 S.W.3d 704,

722–23 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (holding that trial court

reversibly erred in excluding expert defense evidence concerning recidivism rates

and likelihood of re-offending). This testimony does not invade the province of

the jury. See TEX. R. EVID. 704 (“An opinion is not objectionable just because it



                                            20
embraces an ultimate issue.”); TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)

(providing that at punishment phase, “evidence may be offered by the state and the

defendant as to any matter the court deems relevant to sentencing”). Because Dr.

Madera’s testimony on this subject was admissible, we hold that trial counsel did

not render ineffective assistance when he failed to object to this testimony. See

Oliva, 942 S.W.2d at 732.

      Appellant also contends that trial counsel was ineffective for failing to object

to Dr. Madera’s testimony that the only hope of controlling a sexual attraction to

children is for the offender to “admit that responsibility for [their] actions and work

on their thoughts and how to control their behaviors” because this testimony

commented on his post-arrest silence and violated his Fifth Amendment right not

to testify. See Johnson v. State, 83 S.W.3d 229, 231 (Tex. App.—Waco 2002, pet.

ref’d); see also Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240, 2245 (1976)

(holding that use of defendant’s silence at time of arrest and pre-Miranda warnings

for impeachment purposes violated due process clause of Fourteenth Amendment).

      Here, Dr. Madera and the State had the following exchange:

      [The State]:        And are there factors or things that affect whether
                          or not [a sex offender] is likely to reoffend?
      [Dr. Madera]:       Yes.
      [The State]:        And what are those?




                                          21
      [Dr. Madera]:       Access to children, access to fantasy materials,
                          pornography, movies, magazines, anything that
                          will continue the offense cycle.
      [The State]:        And what about whether or not they’re ready to
                          take responsibility, does that affect their likelihood
                          to reoffend?
      [Dr. Madera]:       Yes.
      [The State]:        How?
      [Dr. Madera]:       If there’s any hope of any sort of treatment helping
                          them to control the urge to offend—because
                          there’s no cure for this. So they’re always going to
                          have that sexual attraction [to] children. So the
                          only hope of controlling that will be to first, you
                          know, admit that responsibility for their actions
                          and work on their thoughts and how to control
                          their behaviors.

Trial counsel did not object to this testimony.

      Trial counsel did, however, cross-examine Dr. Madera about this testimony.

In response to trial counsel’s questions, Dr. Madera admitted that she had never

met with or questioned appellant, that she could not speak to what he was or was

not thinking, and that she was “talking generally about the need to accept

responsibility.” She testified that she was not saying that a defendant who insisted

on having a trial was denying responsibility for his behavior. She agreed that no

conclusion with regard to accepting responsibility could be drawn from the

defendant choosing to go to trial.




                                          22
      On this record, we cannot say that trial counsel’s failure to object to Dr.

Madera’s initial testimony concerning sex offenders accepting responsibility for

their actions was not based on sound trial strategy. See Bone, 77 S.W.3d at 835

(noting that we do not speculate regarding trial counsel’s strategy); Mallett, 65

S.W.3d at 63 (holding that, to prevail on ineffective assistance claim, appellant

must bring forward record affirmatively demonstrating that counsel’s action was

not based on sound trial strategy). Trial counsel elicited testimony that Dr. Madera

had not met with appellant and thus was testifying only in general terms regarding

a sex offender accepting responsibility for his actions. We hold that appellant has

not demonstrated that trial counsel’s failure to object to Dr. Madera’s testimony

fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at

814 (“The record in the case at bar is silent as to why appellant’s trial counsel

failed to object to the State’s persistent attempts to elicit inadmissible hearsay.

Therefore, appellant has failed to rebut the presumption this was a reasonable

decision.”); DeLeon v. State, 322 S.W.3d 375, 381 (Tex. App.—Houston [14th

Dist.] 2010, pet. ref’d) (“There may have been strategic reasons for counsel to

decline to object even to inadmissible evidence.”).

             3.    Trial counsel’s punishment argument

      Appellant also argues that his trial counsel’s argument during the

punishment phase did not advocate for him but instead aided the State.



                                         23
Specifically, appellant complains of trial counsel’s statements that the jury must

consider the “innocent” complainant, D.W., as he would if he were in the jury’s

position; that appellant should be punished and that one of the functions of

punishment was to provide “some level of retribution” for D.W. and her family;

that the jury’s punishment verdict would send a message of deterrence for people

who might prey on children; and that appellant should be punished severely for his

actions.

      Closing argument is one of the areas of trial where trial counsel’s strategy is

most evident. Thompson v. State, 915 S.W.2d 897, 904 (Tex. App.—Houston [1st

Dist.] 1996, pet. ref’d). In cases involving strong evidence of guilt, attempting to

mitigate punishment during argument may be the only realistic trial strategy. Id.;

see also Flemming v. State, 949 S.W.2d 876, 881 (Tex. App.—Houston [14th

Dist.] 1997, no pet.) (“It is plausible that counsel, after reviewing the evidence

presented, concluded that the best strategy might be to appear open and honest to

the jury in hopes of mitigating punishment.”).        Attacking the credibility of

sympathetic witnesses, whether via cross-examination or during argument, runs the

risk of offending the jury. Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.—

Houston [14th Dist.] 1996, pet. ref’d).

      By the time trial counsel made his argument during the punishment phase,

the jury had heard strong evidence of appellant’s guilt from D.W. and M.V., and



                                          24
the State had presented DNA evidence demonstrating that appellant’s DNA had

been found on swabs of D.W.’s breast and anus. During the punishment phase, the

State presented evidence that appellant had been violent on numerous occasions

during his marriage to his ex-wife, leaving her in fear for her safety. The State also

presented evidence that appellant had sexually assaulted his underage step-

daughters on numerous occasions. Appellant stipulated to several prior criminal

convictions, including a conviction for theft, possession of marijuana, two

convictions for misdemeanor assault, and three convictions for misdemeanor

driving while intoxicated.     Several witnesses testified concerning appellant’s

propensity to become violent when he started drinking.

      On this record, it was plausible for trial counsel to appear open and honest

by acknowledging appellant’s guilt for the charged offense and the need for

punishment. It was also a reasonable strategy for counsel to acknowledge the

evidence against appellant and argue for mitigation, which he did by pointing out

the common thread running through the testimony of the punishment witnesses that

appellant had a problem with alcohol, which often led to his violent and sexually

assaultive behavior. We conclude that appellant has not overcome the strong

presumption that trial counsel’s punishment arguments constituted sound trial

strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Williams, 301




                                         25
S.W.3d at 687. We hold that trial counsel did not render ineffective assistance

during the punishment phase of the trial.

      We overrule appellant’s first issue.

                       Lesser-Included-Offense Instruction

      In his second issue, appellant contends that the trial court erred by failing to

instruct the jury on the lesser-included offense of indecency with a child.

      A.     Standard of Review

      Code of Criminal Procedure article 37.09 provides that an offense is a lesser-

included offense of a charged offense if:

      (1)    it is establish by proof of the same or less than all of the facts
             required to establish the commission of the offense charged;
      (2)    it differs from the offense charged only in the respect that a less
             serious injury or risk of injury to the same person, property, or
             public interest suffices to establish its commission;
      (3)    it differs from the offense charged only in the respect that a less
             culpable mental state suffices to establish its commission; or
      (4)    it consists of an attempt to commit the offense charged or an
             otherwise included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006). We use the statutory

elements and the facts alleged in the charging instrument to find lesser-included

offenses. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).

      We employ a two-step analysis in determining whether the trial court should

have given an instruction on a lesser-included offense. See id. First, we must



                                            26
determine whether an offense is a lesser-included offense of the charged offense,

and this is a question of law that does not depend on the evidence to be produced at

trial. Id. This step must be capable of being performed before trial “by comparing

the elements of the offense as they are alleged in the indictment or information

with the elements of the potential lesser-included offense.” Id. at 535–36.

      The second step of the analysis asks whether there is evidence that supports

giving the lesser-included-offense instruction to the jury. Id. at 536. The Court of

Criminal Appeals has held that

      [a] defendant is entitled to an instruction on a lesser-included offense
      where the proof for the offense charged includes the proof necessary
      to establish the lesser-included offense and there is some evidence in
      the record that would permit a jury rationally to find that if the
      defendant is guilty, he is guilty only of the lesser-included offense.

Id. (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)); see

Schmidt v. State, 278 S.W.3d 353, 362 (Tex. Crim. App. 2009) (stating that “there

must be affirmative evidence to rebut the greater element, and the jury may not

simply disbelieve evidence establishing the greater” charged offense to entitle

defendant to lesser-included-offense instruction). In this portion of the analysis,

anything more than a scintilla of evidence entitles the defendant to the instruction.

Hall, 225 S.W.3d at 536. The evidence must establish the lesser-included offense

as “a valid, rational alternative to the charged offense.” Id.; Williams v. State, 294

S.W.3d 674, 681 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (stating that


                                         27
“[t]here must be affirmative evidence in the record raising the lesser offense before

an instruction is warranted”).

      The Court of Criminal Appeals has held that the test for determining

whether evidence is legally sufficient and the test for determining whether to

submit a lesser-included-offense instruction are “quite different.” Wasylina v.

State, 275 S.W.3d 908, 909 (Tex. Crim. App. 2009) (quoting Hampton v. State,

165 S.W.3d 691, 693 (Tex. Crim. App. 2005), abrogated on other grounds by

Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009)). “The evidence could

easily be legally sufficient to support a conviction for a lesser-included offense but

not justify the submission of a lesser-included-offense instruction because the

evidence does not show that the defendant is guilty only of the lesser-included

offense.” See id. at 909–10 (emphasis in original).

      B.     Appellant’s Entitlement to Lesser-Included-Offense Instruction

      Assuming, without deciding, that the first step of the lesser-included-offense

analysis has been met and indecency with a child is a lesser-included offense of

aggravated sexual assault of a child, we agree with the State that appellant cannot

meet the second step of the analysis. See, e.g., Evans v. State, 299 S.W.3d 138,

143 (Tex. Crim. App. 2009) (“The court of appeals reached the correct result by

holding that indecency with a child is a lesser-included offense of aggravated

sexual assault of a child when both offenses are predicated on the same act.”).



                                         28
      Appellant argues that based on the evidence at trial, a rational jury could

have found him guilty only of the lesser-included offense of indecency with a child

because there was some evidence that he did not penetrate D.W.’s vagina.

Specifically, appellant points to Freeman’s testimony that the vaginal swab did not

reveal the presence of appellant’s DNA, Nurse Spjut’s testimony that she expected

appellant’s DNA to be found on the vaginal swab because there was no indication

that D.W. took a shower or otherwise washed herself in between the time of the

incident and the time of the sexual assault exam, Nurse Spjut’s testimony that

D.W. did not tell her that she felt pain or discomfort during the incident, D.W.’s

contradictory testimony that she did feel pain and that she told Nurse Spjut this,

and no evidence of injuries to D.W.’s vagina.

      The Fourteenth Court of Appeals addressed a similar argument in Hendrix v.

State. 150 S.W.3d 839, 851 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

In that aggravated sexual assault of a child case, the defendant argued that the trial

court erred by failing to instruct the jury on the lesser-included offense of

indecency with a child because the evidence permitted the jury to find that the

defendant was guilty only of indecency with a child by contact in part due to

“medical testimony and records indicating normal physical examinations with no

evidence of anal or oral penetration.” Id. Our sister court rejected this argument,

noting that the evidence that the defendant relied upon was “not inconsistent with



                                         29
and [did] not refute the evidence of aggravated sexual assault in this case.” Id.

Both of the complainants in that case testified that the defendant penetrated their

mouths, anuses, and sexual organs with his sexual organ, and that testimony was

“not subject to different interpretations.” Id. The Fourteenth Court also pointed

out that the State presented expert medical testimony that a “normal exam was not

inconsistent with” the type of abuse that the complainants had described. Id. The

court thus concluded that while there may have been evidence to support the

defendant’s claim that he committed the offense of indecency with a child, there

was “no conflict raised by the evidence that would enable a rational finder of fact

to conclude that appellant was guilty only of the lesser included offenses of

indecency with a child by exposure or by contact.” Id. (emphasis in original). The

court held that the trial court did not err in denying the requested lesser-included-

offense instruction. Id.

      This case is factually analogous to Hendrix. Here, D.W. unequivocally

testified that appellant put his finger inside her vagina. Although Nurse Spjut

testified that D.W. was “calm and cooperative” during the sexual assault exam and

that D.W. did not express any pain or discomfort during the exam, she also

testified that D.W. told her during the history portion of the exam that appellant

touched her vagina. Nurse Spjut also testified that when conducting a sexual

assault exam, she does not expect to see injury to the sexual organ and that such



                                         30
instances are “not that common.” Nurse Spjut agreed that D.W.’s physical and

genital exams were “normal” and that it is normal to have no medical findings of

abuse because “very few people” who have been sexually assaulted have injury.

She testified that the normal medical exam was consistent with D.W.’s sexual

assault disclosure and that she does not expect to find medical evidence or trauma

to the female sexual organ in cases of digital penetration.

      In arguing that a lesser-included-offense instruction was warranted,

appellant relies heavily on the fact that the vaginal swab taken during the sexual

assault exam did not reveal the presence of his DNA, which, he argues, one would

expect to find if he had penetrated D.W.’s vagina with his finger and without using

a condom. Nurse Spjut agreed that because D.W. did not shower or wash herself

or use the restroom in between the incident and the medical exam, “if there were

DNA material placed in [D.W.’s] vagina, it should still be there.”

      Freeman, who conducted the DNA analysis on the swabs collected from

D.W.’s physical exam, testified that the DNA profile on the vaginal swab was

consistent with D.W. and was not consistent with appellant.          Freeman also

testified, however, that while one might expect to see DNA material belonging to

someone who digitally penetrates a vagina, because “it’s the orifice of that

individual, it might mask them so you might get more [DNA] from the vaginal

vault than from the individual that had a hand or a finger.” She testified that the



                                         31
presence of the DNA of a defendant as a “minor contributor” to a DNA mixture in

a case of digital penetration “[d]epends on the situation.” Freeman also testified

that not every touch yields a “detectable amount” of DNA, so someone might

touch a place but not deposit enough DNA to be detected by the DNA tests.

Freeman also had the following exchange with the prosecutor:

      [The State]:       In a hypothetical situation, just because there’s not
                         male DNA, the defendant’s DNA on that vaginal
                         swab, does that mean he didn’t touch her vagina?
      [Freeman]:         It means that I didn’t obtain his DNA on that item.
      [The State]:       But he still could have touched her there?
      [Freeman]:         Yes.

      As in Hendrix, the medical testimony in this case is not inconsistent with the

allegations that appellant penetrated D.W.’s vagina with his finger.       See 150

S.W.3d at 851. There is no conflict in the evidence that would enable a rational

jury to find that appellant was guilty only of the lesser-included offense of

indecency with a child. See id.; see also Schmidt, 278 S.W.3d at 362 (stating that

“there must be affirmative evidence to rebut the greater element, and the jury may

not simply disbelieve evidence establishing the greater” charged offense to entitle

defendant to lesser-included-offense instruction); Wasylina, 275 S.W.3d at 909–10

(“The evidence could easily be legally sufficient to support a conviction for a

lesser-included offense but not justify the submission of a lesser-included-offense

instruction because the evidence does not show that the defendant is guilty only of


                                        32
the lesser-included offense.”). We hold that the trial court did not err by refusing

to include an instruction on the lesser-included offense of indecency with a child. 4

      We overrule appellant’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




4
      Because we hold that the trial court did not err by refusing to instruct the jury on
      the lesser-included offense of indecency with a child, we also hold that even if
      trial counsel did not object to the trial court’s refusal, as appellant claims, this
      failure to object did not constitute ineffective assistance of counsel, as appellant
      was not entitled to such an instruction. See Strickland v. Washington, 466 U.S.
      668, 694, 104 S. Ct. 2052, 2068 (1984) (holding that, to establish ineffective
      assistance, appellant must also demonstrate prejudice—that is, a “reasonable
      probability that, but for counsel’s unprofessional errors, the result of the
      proceeding would have been different”); Thompson v. State, 9 S.W.3d 808, 812
      (Tex. Crim. App. 1999).

                                           33
