                                   NO. 07-07-00264-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                      MAY 24, 2010


                          JOSEPH MARK DAIGLE, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


               FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                NO. 52,293-D; HONORABLE RICHARD DAMBOLD, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                MEMORANDUM OPINION


          Appellant Joseph Mark Daigle appeals from his conviction by jury of aggravated

sexual assault of a child, enhanced, and sentence of ninety-nine years of imprisonment.

Through two issues, appellant argues the trial court abused its discretion by denying his

request for a mistrial and contends he was denied effective assistance of counsel. We

affirm.
                                       Background


      Via a February 2006 indictment, appellant was charged with two counts of

aggravated sexual assault of the same victim, a female child younger than 14 years,

one alleging contact between his sexual organ and the child’s, the other alleging contact

between his sexual organ and the child’s anus.1 The indictment alleged in count one,

the contact occurred on or about December 15, 2003, and in count two, on or about

May 1, 2003. The indictment also contained two enhancement paragraphs that set forth

appellant=s two prior felony offenses. Appellant was tried only on the first count, to

which he plead not guilty.


      Appellant does not challenge the sufficiency of the evidence presented at trial to

support his conviction.      We therefore provide only such facts as will assist in an

understanding of the issues presented on appeal. The evidence showed that appellant

lived with the victim and her mother, with whom he had two other children. The victim

was eight years old in January 2004 when she informed her mother of appellant’s

sexual contact with her. The child told her mother that appellant had rubbed his Aprivate@

against her Aprivate@ and had promised her money and a trip to Disneyland or Disney

World if she did not tell. She repeated the allegation to a pediatrician who examined her


      1
         See Tex. Penal Code Ann. ' 22.021 (Vernon 2007). This is a first degree felony
punishable by imprisonment for life or any term of not more than 99 years or less than 5
years and a fine not to exceed $10,000. Tex. Penal Code Ann. ' 12.32 (Vernon 2003).
Appellant plead true to both enhancement paragraphs contained within the indictment
and his sentence was enhanced accordingly pursuant to Texas Penal Code Ann. '
12.42 (Vernon 2007). The case had an extended procedural history in the trial court we
will not discuss because it is not pertinent to our disposition of the appeal.

                                            2
the next day but who found no evidence of physical trauma. Later, after the examination

by the pediatrician, the child recanted her allegations against appellant.


       After the pediatrician contacted authorities, the child was twice interviewed at

The Bridge, an Amarillo child advocacy center. In the first, the child did not discuss her

accusations against appellant; instead, she expressed concern over what would happen

to appellant. Before the next interview, a sexual assault nurse examiner performed a

sexual assault examination of the child, again finding no trauma.            But during that

examination, the child told the examiner that appellant had touched her private part with

his private part and “would rub up and down.” She pleaded with the examiner not to

make appellant go to jail. In the second Bridge interview, the child repeated her account

of sexual assault by appellant. The nurse examiner’s report and the videotapes of the

Bridge interviews were before the jury.


       The child testified at trial. There, she said the sexual contact occurred, “[l]ike

maybe every other night, every time my mom was gone.” She also testified that “once”

appellant tried to penetrate her. She further testified that appellant previously molested

her when they resided in Kansas.


       Appellant did not testify but presented the testimony of two witnesses. These

witnesses testified that the child’s mother expressed to them disbelief that appellant had

molested her daughter.       Appellant also presented evidence from an evaluation

conducted by a licensed sexual offender treatment provider to show that while his anti-

social personality disorder was one factor tending to validate the accusation, he

demonstrated no sexual interest in children.

                                             3
                                        Analysis


Denial of Request for Mistrial


       By his first issue, appellant contends the trial court abused its discretion by

denying his request for a mistrial when the prosecutor referred to serial killer John Gacy

during closing argument. We review a trial court=s denial of a mistrial under an abuse of

discretion standard.    Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999), cert.

denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000); Phillips v. State, 130

S.W.3d 343, 347 (Tex.App.BHouston [14th Dist.] 2004, no pet.), aff’d, 193 S.W.3d 904

(Tex.Crim.App. 2006).


       In order to be permissible, the jury argument must fall within one of four areas:

(1) summation of the evidence; (2) reasonable deductions from the evidence; (3)

response to argument by opposing counsel; and (4) pleas for law enforcement.

Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). Argument exceeding

those permissible areas is reversible error, only if, considering the entire record, the

argument is extreme or manifestly improper, violates a mandatory statute, or injects

new facts harmful to the accused into the trial. Felder v. State, 848 S.W.2d 85, 95

(Tex.Crim.App. 1992); Mills v. State, No. 07-08-0348-CR, 2009 Tex.App. LEXIS 8038

(Tex.App.—Amarillo Oct. 14, 2009, no pet.). The improper remarks must have been a

willful and calculated effort on the part of the State to deprive appellant of a fair and

impartial trial. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000); Gonzales

v. State, 115 S.W.3d 278, 284 (Tex.App.BCorpus Christi 2003, pet. ref=d). In examining



                                            4
challenges to jury argument, we consider the remark in its context. Gaddis v. State, 753

S.W.2d 396, 396 (Tex.Crim.App. 1988).


       An instruction by a trial court to disregard the improper argument will usually cure

the error. Phillips, 130 S.W.3d at 347, citing Campos v. State, 589 S.W.2d 424, 428

(Tex.Crim.App. 1979). When the trial court instructs a jury to disregard, we presume

the jury follows the trial court=s instructions.   Phillips, 130 S.W.3d at 347-48, citing

Waldo v. State, 746 S.W.2d 750, 752-53 (Tex.Crim.App. 1988). However, if the error is

extremely prejudicial and cannot be withdrawn from the juror=s minds, the trial court

should declare a mistrial. Lusk v. State, 82 S.W.3d 57, 60 (Tex.App.BAmarillo 2002,

pet. ref=d). Accordingly, a mistrial is appropriate only when the event is Aso emotionally

inflammatory that curative instructions are not likely to prevent the jury from being

unfairly prejudiced against the defendant.@ Id.


       Here, during his closing argument of the guilt-innocence phase of trial,

appellant’s counsel emphasized evidence appellant had a good and affirming

relationship with the child.   Referring to an occasion on which appellant had made

Halloween costumes for both the child and himself, and gone trick-or-treating with her,

his argument contained the following:


       . . . What kind of guy would do that [dress in costume for the child and go
       trick-or-treating with her]? Not the kind of guy that would sexually molest
       this little girl like they=re trying to persuade you that he did. That incident
       says worlds about [appellant]...HeBwell, like I say, I can=t imagine a 47-
       year-old guy being willing to do that. So that, to me, says more about him
       than lots of other things that have come before you.@




                                             5
       During his final argument, the prosecutor responded to counsel=s argument,

stating,

       A...The Halloween, the gifts, the money, the promise of trips, that goes to
       why, that goes to how you keep a child from telling these things. The idea
       that you=re a good gift giver for a child and thatBand to come up and say to
       you, AYou know, as long as you=ve given gifts to somebody, you can=t be
       sexually offending them.= Now, I don=t remember the guy=s full name, but
       his last name was Gacy.@


       The trial court sustained appellant’s immediate objection that the remark was

outside the record, prejudicial and inflammatory. At appellant=s request, the court also

directed the jury to disregard the prosecutor’s argument, but denied appellant’s request

for a mistrial. It is this denial of which appellant now complains.


       Thereafter, the State engaged in the following similar argument without objection:


              A...You know, we all see that in the papers. So and so did such and
       such, and gosh, he was a clown at kid=s parties. So and so was a
       preacher. So and so was whatever. That=s not indicative of what a
       person is capable of, okay? I mean, you can=tBif you go by that, then
       nobody can ever be convicted of anything because we just can=t because
       they=re going to give gifts or something.@

       Appellant argues that by referring to John Wayne Gacy, the State engaged in

argument of a highly inflammatory nature, invoked violent images of Gacy=s crimes and

mischaracterized the offense for which appellant was on trial. Appellant also contends

the prosecutor’s continued argument referring to things seen in newspapers about

clowns was a further reference to John Wayne Gacy.2 Appellant contends that this

comment only emphasized the calculated brutality of Gacy=s crimes and directly placed


       2
         See, e.g., Brown v. State, 978 S.W.2d 708, 714 (Tex.App.BAmarillo 1998, pet.
ref=d) (prosecutor’s argument referred to fact Gacy “dressed like a clown”).
                                             6
appellant in the same Avile category@ of offender in the collective mind of the jury.

Appellant further notes that Gacy was assessed the maximum punishment available for

his crimes and the jury likewise assessed the maximum punishment on appellant.


       This court’s previous opinions should make clear to prosecutors that comparing

an accused or his acts to those of a notorious criminal in jury argument is a practice to

be avoided. See Brown, 978 S.W.2d at 714; Mills, No. 07-08-0348-CR, 2009 Tex.App.

LEXIS 8038. We find, however, that the State’s argument here was not so inflammatory

as to overcome the presumption the jury followed the court’s prompt instruction to

disregard it.   See Phillips, 130 S.W.3d at 347-48 (jury presumed to follow court’s

instruction). First, the reference to the “guy” whose “last name was Gacy” was brief,

and not accompanied by any description of his crimes. Cf. Brown, 978 S.W.2d at 714

(prosecutor argued, in part, “John Wayne Gacy killed forty young men and buried them

in his house . . . dressed like a clown, and he was loved”). The State’s suggestion the

prosecutor=s brief reference may not have been well understood by the jury and likely

had negligible impact carries some weight.        We find persuasive also the State’s

assertion that, in its context including the prosecutor’s remarks following the denial of a

mistrial, the reference to Gacy can be seen as an illustration that an actor=s outward

behavior toward children does not preclude his committing abuse, rather than a direct

comparison of Gacy’s horrific crimes with the actions of which the State accused

appellant. On that point, the State aptly distinguishes Gonzales v. State, 115 S.W.3d

278, 284-86 (Tex.App.BCorpus Christi 2003, pet. ref=d) (direct comparison made

between defendant=s offense with Osama bin Laden=s orchestration of the 9/11 attacks

and effectively asked jury to punish him as they would bin Laden) and Brown, 978
                                            7
S.W.2d at 713-16 (during punishment argument, prosecutor likened defendant=s mental

stability to that of Jeffrey Dahmer, John Wayne Gacy and Ted Bundy, arguing the

defendant should be held accountable notwithstanding mental illness). Considering the

entire record, we find the trial court properly instructed the jury to disregard the

prosecutor’s argument referring to Gacy, and further find the court did not abuse its

discretion by denying a mistrial. We overrule appellant’s first issue.


Ineffective Assistance of Counsel


       Via his second issue, appellant contends he was denied effective assistance of

counsel because his trial counsel did not object to the admission of evidence of

extraneous offenses.


       Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

and Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) set forth the two-

pronged test that must be satisfied to prove an ineffective assistance of counsel claim.

Under the first part of the Strickland test, an appellant must show that counsel's

performance was deficient. "This requires showing that counsel made errors so serious

that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment."      Strickland, 466 U.S. at 687; Young v. State, 991 S.W.2d 835, 837

(Tex.Crim.App. 1999). This part of the test carries "a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance.@   Ahmadi v.

State, 864 S.W.2d 776, 782 (Tex.App.BFort Worth 1993, pet. ref=d), citing Kimmelman v.

Morrison, 477 U.S. 365, 381 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Thus, a record

that is silent as to counsel=s strategy generally is not sufficiently developed to enable
                                             8
appellant to overcome the presumption of effective assistance of counsel.             See

Rylander v. State, 101 S.W.3d 107 (Tex.Crim.App. 2003) (stating, A[w]e have previously

stated that the record on direct appeal will generally not be sufficient to show that

counsel's representation was so deficient as to meet the first part of the Strickland

standard as the reasonableness of counsel's choices often involves facts that do not

appear in the appellate record@). The appellant must overcome this presumption by a

preponderance of the evidence. Id.; Cannon v. State, 668 S.W.2d 401, 403

(Tex.Crim.App. 1984).


       In applying this test, an appellate court should not try to second-guess trial

counsel=s tactical decisions that do not fall below the threshold of the objective standard

of reasonableness. Young, 991 S.W.2d at 837, citing Solis v. State, 792 S.W.2d 95,

100 (Tex.Crim.App. 1990). An individual has a right to effective, not errorless,

representation.   Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App. 1986).             In

determining whether counsel=s assistance is effective, the court must look at counsel=s

representation of the defendant as a whole, and not merely at isolated errors. Ex parte

Kunkle, 852 S.W.2d 499, 505 (Tex.Crim.App. 1993); Cannon, 668 S.W.2d at 403. An

allegation of ineffective assistance must be firmly founded in the record. Thompson v.

State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).


       Appellant argues his trial counsel erred when he did not object when the child

victim testified to extraneous offenses not included in the State’s notice pursuant to




                                            9
                                                   3
article 38.37 of the Code of Criminal Procedure,       depriving appellant of the effective

assistance of counsel. Appellant points to the child’s statements (1) that the genital

contact occurred “every other night”; (2) that it took place in multiple locations in

Amarillo; (3) that it also took place in Kansas; and (4) that it included attempted

penetration. Recalling that we must view counsel=s representation of appellant as a

whole, and not look merely at isolated errors, Kunkle, 852 S.W.2d at 505, and recalling

that trial counsel ordinarily should be afforded an opportunity to explain his actions

before being denounced as ineffective, Rylander, 101 S.W.3d at 111, we cannot agree

that the record supports a finding appellant was deprived of the assistance of counsel

guaranteed him by the Sixth Amendment.


      The State=s article 38.37 notice included the following bad acts: (1) Between

December of 2002 and April of 2003 in Coffee County, Kansas, the defendant caused . .

. the victim alleged in the indictment in this case, and her brother . . . to disrobe and

pose in lewd positions while he videotaped them; (2) between December 2002 and April

of 2003, in Coffee County, Kansas, the defendant, with the intent to arouse and gratify

his sexual desire, intentionally and knowingly exposed his genitals knowing that [the

      3
         Section 2 of article 38.37 states: A[n]otwithstanding Rule 404 and 405, Texas
Rules of Evidence, evidence of other crimes, wrongs or acts committed by the
defendant against the child who is the victim of the alleged offense shall be admitted for
its bearing on relevant matters, including: (1) the state of mind of the defendant and the
child; and (2) the previous and subsequent relationship between defendant and the
child.@ Tex. Code Crim. Proc. Ann. art. 38.37, ' 2 (Vernon 2005). Section 3 states,
A[o]n timely request by the defendant, the state shall give the defendant notice of the
state=s intent to introduce in the case in chief evidence described by Section 2 in the
same manner as the state is required to give notice under Rule 404(b), Texas Rules of
Evidence.” Tex. Code Crim. Proc. Ann. art. 38.37, ' 3 (Vernon 2005).

                                           10
victim], a child younger than 17 years of age and not his spouse, was present; (3)

between December of 2002 and April of 2003, in Coffee County, Kansas, the defendant,

with the intent to arouse and gratify his sexual desire, intentionally and knowingly

caused [the victim], a child younger than 17 years of age and not his spouse, to expose

her genitals to him; (4) between May of 2003 and December of 2003, in Potter County,

Texas, the defendant exhibited a vibrator to [the victim] and had her place it in her

mouth; (5) between May of 2003 and December of 2003, in Potter County, Texas, the

defendant intentionally and knowingly caused his penis to contact or penetrate the anus

of [the victim], a child younger than 14 years of age; (6) between May of 2003 and

December of 2003, in Potter County, Texas, the defendant caused [the victim], a child

younger than 14 years of age, to watch pornographic movies with him; and (7)

defendant=s flight from Potter County, Texas, and failure to appear for trial in the 47th

District Court in and for Potter County, and fugitive status for approximately one year.4


       The record reflects a hard-fought trial, and makes clear that appellant’s counsel

was acutely attuned to the risk the State would attempt to introduce evidence of

extraneous bad acts of a sexual nature. Some two weeks before trial, the trial court

held a hearing on appellant’s motions dealing with aspects of that general subject.

Assuming, without deciding, that the child’s statements to which appellant points on

appeal are properly characterized as describing extraneous offenses rather than




       4
         The State argues its article 38.37 notice reasonably encompassed any
extraneous offenses the child’s testimony included. We need not address that
contention.

                                            11
instances of the charged offense,5 and assuming further, without deciding, that the trial

court would have excluded the statements had objection been made,6 we cannot

conclude on this record that counsel was deficient because he did not object during the

child’s testimony. Counsel frequently, as a matter of trial strategy, decide not to raise

objections even to potentially objectionable testimony.7 The decision, for example, may

be based on a desire not to highlight damaging testimony by drawing attention to it

through objection, or based on a concern repeated objections may alienate the jury.


      The record before us does not explain why counsel did not object to the

references to evidence of the extraneous offenses of which appellant complains. Such

a decision is not outside the range of reasonable professional assistance. Allegations

of ineffective assistance of counsel must be firmly founded in the record. Thompson, 9


      5
           An extraneous offense is "any act of misconduct, whether resulting in
prosecution or not, that is not shown in the charging papers." Rankin v. State, 953
S.W.2d 740, 741 (Tex.Crim.App. 1996); Meredith v. State, No. 11-05-00244-CR, 2007
Tex.App. LEXIS 9716, at *9-10 (Tex.App.—Eastland Dec. 13, 2007, pet. ref’d). But see
Sansom v. State, 292 S.W.3d 112, 126-28 (Tex.App.—Houston [14th Dist.] 2008, pet.
ref’d) (distinguishing between proof of charged offense and extraneous offenses).
      6
        The record contains the State’s notice of the contents of the child’s outcry
statement to her mother, given pursuant to Code of Criminal Procedure article 38.072.
Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2009). The mother’s written statement,
appended to the notice, makes clear the child’s outcry included the assertion appellant’s
sexual contact with her occurred at more than one address in Amarillo.
      7
         See Kessler v. Dretke, 137 Fed.App. 710, 711-12 (5th Cir. 2000) (applying
Texas law) (appellant failed to show counsel performed deficiently by refraining from
repeated objections to extraneous evidence). See also Batiste v. State, 217 S.W.3d 74,
83 (Tex.App.BHouston [1st Dist.] 2006, no pet.) (failure to object to inadmissible
extraneous offense evidence can constitute a plausible trial strategy); Ahmadi v. State,
864 S.W.2d 776, 783 (Tex.App.BFort Worth 1993, no pet.) (decision not to object can be
a plausible trial strategy as part of an attempt to create the appearance of being open
and honest).
                                           12
S.W.3d at 813. On this record, appellant has not overcome the presumption that trial

counsel made the decision in the exercise of reasonable professional judgment.

Appellant thus has not met the first prong of the Strickland test.8     Accordingly, we

overrule appellant=s second issue, and affirm his conviction and sentence.



                                                James T. Campbell
                                                     Justice


Do not publish.




      8
         We need not examine both Strickland prongs if one cannot be met.
Blumenstetter v. State, 135 S.W.3d 234, 242 (Tex.App.BTexarkana 2004, no pet.), citing
Strickland, 466 U.S. at 697.

                                           13
