                            NUMBER 13-10-00545-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

SANFORD WAYNE GUILLORY,                                                   Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                  On appeal from the Criminal District Court
                        of Jefferson County, Texas.


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez
         Appellant Sanford Wayne Guillory challenges his conviction by a jury for

aggravated sexual assault of a child, for which he was sentenced to thirty years'

incarceration.   See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B) (West Supp.

2010).     By three issues on appeal, Guillory argues that:      (1) the evidence was

insufficient to support his conviction; (2) the trial court erred in admitting extraneous
misconduct evidence in violation of rule 404(b), see TEX. R. EVID. 404(b); and (3) he

received ineffective assistance of counsel. We affirm.

                                           I. BACKGROUND1

        Guillory was indicted for "sexually assault[ing] [A.R.], . . . a person then younger

than seventeen (17) years of age and not the spouse of [Guillory], by intentionally and

knowingly causing the penetration of the female sexual organ of [A.R.] by inserting his

sexual organ; and [A.R.] was then and there younger than fourteen (14) years of age."

See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B). Guillory pleaded not guilty, and

the case was tried to a jury. The jury returned a guilty verdict and sentenced Guillory to

thirty years' confinement in the Institutional Division of the Texas Department of Criminal

Justice. Guillory filed a motion for new trial, arguing that the evidence supporting the

conviction was insufficient and that he received ineffective assistance of counsel.2 The

trial court denied the motion without a hearing. This appeal followed.3

                                  II. SUFFICIENCY OF THE EVIDENCE

        By his first issue, Guillory argues that the evidence was insufficient to support his

conviction. Specifically, Guillory argues that the evidence was not sufficient to prove that

the alleged victim was younger than fourteen years of age. We disagree.

        In a sufficiency review, courts examine the evidence in the light most favorable to

        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        2
            We note that Guillory's motion for new trial, which was filed on September 28, 2010, was untimely
in that it was filed more than thirty days after the August 25, 2010 judgment imposing the sentence. See
TEX. R. APP. P. 21.4(a).
        3
          This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to
a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West 2005).
                                                     2
the verdict to determine whether "any rational fact finder could have found guilt beyond a

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ("[T]he Jackson legal-sufficiency standard is

the only standard that a reviewing court should apply in determining whether the evidence

is sufficient to support each element of a criminal offense that the State is required to

prove beyond a reasonable doubt."). This standard requires reviewing courts to resolve

any evidentiary inconsistencies in favor of the judgment, keeping in mind that the fact

finder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to

give their testimony. Brooks, 323 S.W.3d at 899; see TEX. CODE. CRIM. PROC. ANN. art.

38.04 (West 1979) ("The jury, in all cases, is the exclusive judge of the facts proved, and

of the weight to be given to the testimony . . . ."). Appellate courts do not re-evaluate the

weight and credibility of the evidence; they only ensure that the jury reached a rational

decision. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).

       Legal sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.

App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge

is one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State's burden of proof or unnecessarily restrict the State's

theories of liability, and adequately describes the particular offense for which the

defendant was tried." Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240. In

this case, Guillory committed the offense if he "intentionally or knowingly . . . cause[d] the

penetration of the anus or sexual organ of a child by any means" and "the victim [was]

younger than 14 years of age." See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B).

                                              3
       At trial, A.R. testified that she "remember[ed] [Guillory] coming into [her] mom's

life" when A.R. "was like 11, 10 or 11." When Guillory first began dating A.R.'s mother,

the family lived "on a street called Abilene" in Beaumont, Texas. A.R. testified that when

she was eleven or twelve years old, Guillory helped A.R.'s mother move the family to a

house on Buffalo Circle. A.R. testified that shortly after that move, the abuse began.

After they moved into the Buffalo Circle house, A.R.'s mother started a new job that

required her to work overnight. A.R. testified that her mother had Guillory stay at the

house overnight to help care for A.R. and her sisters. While A.R.'s mother was at work,

Guillory would touch A.R. inappropriately.

       A.R. then testified that the family moved again, describing the timeline as follows:

"I was still in middle school when we moved to—because I was in the 6th grade when we

moved to Buffalo Circle, and then I was still in middle school when we moved to Sunset.

So, it wasn't long that we lived at Buffalo Circle." A.R. confirmed that it was "around

March, 2000" when they moved to Sunset and that she was twelve-years-old at that time.

At this point, Guillory began "actually having intercourse with me." A.R. testified that she

was "12, 13 years old at this time." A.R. testified that the intercourse happened several

times, "more than ten," that it "went on . . . [for] [a] couple of years," and that she was

fourteen years old when it stopped.

       On cross-examination, A.R. was questioned about a statement she gave to police

in 2003:

       [Defense counsel]: Did you make the statement to the police department
                          that the last time that you had sex with [Guillory] was in
                          January of 2002?

       [A.R.]:              Yes.

                                             4
       [Defense counsel]: Is that true?

       [A.R.]:              Yes.

       [Defense counsel]: Okay. And also, did you also make a statement that
                          the first time that you started having intercourse with
                          [Guillory] was when you were 14 years of age?

       [A.R.]:              It was before I turned 14. It stopped around when I
                            was 14, but it began before I turned 14.

       [Defense counsel]: The question I have, though, is: Did you make the
                          statement to the police department that you started
                          having sexual intercourse with [Guillory] at the age of
                          14?

       [A.R.]:              Yes.

       [Defense counsel]: You made that statement to the police officer?

       [A.R.]:              That's what it says right here. I don't remember
                            saying it, but if it[']s right here. That was 10 years ago.

       [Defense counsel]: Let me take a step back then. Is that your statement?

       [A.R.]:              Yes, that's my statement.

       [Defense counsel]: And is your signature on that statement?

       [A.R.]:              Yes, it is.

                            ....

       [Defense counsel]: So, you did make the statement to the police
                          department — police officer that you were 14 at the
                          time you started having sexual intercourse with
                          Sanford, correct?

       [A.R.]:              Yes.

       Although there was some conflicting evidence as to A.R.'s age at the time Guillory

started having intercourse with her, the jury could have credited the portions of A.R.'s

testimony that she was twelve or thirteen years old at the time of the initial assault, and we

                                              5
cannot conclude that the jury was irrational in doing so. The jury is the sole judge of the

credibility of the witnesses, see Brooks, 323 S.W.3d at 899, and it was within the jury's

province to disregard defense counsel's attempts to impeach A.R. through the exchange

regarding the police statement. In sum, giving full deference to the jury in its role as fact

finder and viewing the evidence at trial in the light most favorable to the verdict, we

conclude that the evidence in this case was sufficient to prove that the victim was younger

than fourteen years of age at the time of the initial assault. As such, the evidence was

legally sufficient. Guillory's first issue is overruled.

                          III. EXTRANEOUS MISCONDUCT EVIDENCE

       By his second issue, Guillory argues that the trial court erred in admitting certain

extraneous misconduct evidence where the State failed to give adequate notice of its

intent to introduce such evidence. See TEX. R. EVID. 404(b). Guillory contends that the

evidence was related to allegations made by A.R.'s sister against Guillory. Before trial

began, Guillory asked the court to exclude any evidence related to the sister's allegations

because the State failed to give timely notice. The trial court granted Guillory's request,

stating that "I'm going to grant the motion in limine by the defense."

       Guillory complains of two instances during trial when the sister's allegations were

mentioned. First, the State mentioned A.R.'s sister in its opening statement:

               [A.R.]'s going to tell you that she then made an outcry when she was
       older after she was 15 and that an incident had occurred with the other
       sister that something happened and it made her come forward and say,
       "Hey, this man, he touched me. He had sex with me." And she confronts
       her mother and her mother reluctantly, you know, talks to her and
       reluctantly brings them down to have an investigator talk with them and they
       give a report.

Second, during the State's case-in-chief A.R.'s mother, testified as follows:

                                               6
      [Prosecutor]:        Okay. Now, in March of 2003, did you discuss with
                           [A.R.], your daughter, about the defendant, Mr.
                           Guillory, touching her inappropriately?

      [A.R.'s mother]:     That discussion was a result of something else
                           happening, yes.

      [Prosecutor]:        Okay.      And you did question her about any
                           inappropriate behavior between her and the defendant
                           in this case, did you not?

      [A.R.'s mother]:     Yes, I did.

      [Prosecutor]:        Did she tell you that he had done so?

      [A.R.'s mother]:     No, she did not at that present time.

      [Prosecutor]:        Where did you-all have this discussion, you and [A.R.]?

      [A.R.'s mother]:     I picked [A.R.] up from school because of an event that
                           happened earlier that day; and I questioned her to the
                           extent that if anything happened to her, that it was
                           something that I wanted her to tell me. At that time, I
                           took her and her sister down to the police station and
                           met with a detective and said to them that these are the
                           things that my children have said to me and that I did
                           not know what I needed to do but I felt as though I
                           needed to bring them downtown to speak with
                           someone.

Guillory objected after both the prosecutor's comment during the opening statement and

the foregoing testimony by A.R.'s mother, arguing that both instances violated rule

404(b). The trial court overruled both objections.

      The standard of review for the admissibility of evidence is abuse of discretion.

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). Under an abuse of

discretion standard, we will uphold the decision of the trial court concerning the

admissibility of evidence unless the ruling rests outside the zone of reasonable

disagreement. Id.

                                           7
        Under rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to

prove a person's character and/or to show that the person acted in conformity with that

character. See TEX. R. EVID. 404(b). Such evidence may be admitted if it is relevant to

motive, identity, intent, opportunity, preparation, plan or absence of mistake. Id. But to

constitute an extraneous offense and trigger the application of rule 404(b), the evidence

must show a crime or bad act and that the defendant was connected to it. See Lockhart

v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992) (en banc); Arthur v. State, 11

S.W.3d 386, 390 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). This "necessarily

involve[s]" some sort of "prior criminal conduct" by the defendant. Harris v. State, 738

S.W.2d 207, 224 (Tex. Crim. App. 1986) (en banc) (op. on reh'g). If the evidence fails to

show that an offense was committed or that the accused was connected to the offense,

then it is not evidence of an unadjudicated extraneous offense. Id.; Yancey v. State, 850

S.W.2d 642, 644 (Tex. App.—Corpus Christi 1993, no pet.).

        Here, we do not believe that the complained-of instances rise to the level of

extraneous misconduct evidence. The prosecutor's comment during opening statement

did not include any specifics—neither Guillory nor any specific act or conduct were

mentioned—regarding the allegations made by A.R.'s sister. Neither did A.R.'s mother

include any specific information related to the sister's allegations. Rather, it appears that

the State tread very carefully around the subject and abided by the trial court's order on

Guillory's pre-trial motion. Thus, we cannot conclude that the trial court abused its

discretion in overruling Guillory's objections to the foregoing instances.4


        4
           We note that similar instances—where A.R.'s sister was vaguely mentioned by the State or its
witness—occurred at different points during the trial and Guillory did not object. For example, immediately
after the trial court overruled Guillory's objection to A.R.'s mother's testimony, the prosecution elicited the
                                                      8
        Regardless, even if we assume that the trial court erred in allowing the foregoing

instances to occur, we would conclude that Guillory was not harmed by them. "Rule

404(b) literally conditions the admissibility of other-crimes evidence on the State's

compliance with the notice provision of Rule 404(b)." Hernandez v. State, 176 S.W.3d

821, 824 (Tex. Crim. App. 2005) (citations omitted). Thus, "it is error to admit Rule

404(b) evidence when the State has not complied with the notice provision of Rule

404(b)." Id. Such error is not reversible if it did not harm the appellant; the appellant's

following testimony:

        [Prosecutor]:           When you were questioning [A.R.], you-all were in the car; is that
                                correct?

        [A.R.'s mother]:        Yes.

        [Prosecutor]:           Did she attempt to jump out of the car?

        [A.R.'s mother]:        Yes.

        [Prosecutor]:           Now, and then you also brought them down to the police
                                department; is that correct?

        [A.R.'s mother]:        Yes, I did.

        [Prosecutor]:           To give statements?

        [A.R.'s mother]:        Yes.

                                ....

        [Prosecutor]:           Okay. And after you brought them down, did [A.R.] go and was
                                examined by Ms. Brenda Garrison?

        [A.R.'s mother]:        Yes.

                                ....

        [Prosecutor]:           Did your daughters ever ask or [sic] you as to what's going on with
                                the case? Why has it not been brought?

        [A.R.'s mother]:        No, they did not.

(Emphases added.) Guillory lodged no objections to the foregoing testimony. Even when a defendant
properly objects to evidence, the subsequent presentation of essentially the same evidence without
objection waives error. See TEX. R. APP. P. 33.1(a); Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App.
1996).
                                                    9
"substantial rights" must have been affected. TEX. R. APP. P. 44.2(b). As posited by

Guillory in his brief, "[w]hen an appellate court determines that a jury's verdict was

substantially influenced by the improper admission of substantively inadmissible Rule

404(b) evidence, that influence on the jury's verdict will always be 'injurious' since there

was no proper purpose for the jury to consider the evidence." Hernandez, 176 S.W.3d at

825. However, when extraneous misconduct evidence is improperly admitted because

of the State's failure to comply with the notice requirement of rule 404(b), "it cannot be

said that this effect or influence was 'injurious' if the defendant was not surprised by the

evidence."   Id.   In other words, to show harm flowing from the lack of notice, an

appellant must show both that he was surprised and show how his defense strategy

would have been different had he been given proper notice. Id. at 825-26.

       We will assume, for the sake of argument, that the complained-of instances were

extraneous misconduct evidence, that the State did not give proper notice under rule

404(b), and that the trial court therefore erred in allowing the instances to occur. See id.

at 824. Although Guillory stated at trial and now on appeal that he was surprised by the

evidence, he does not show how his defense strategy might have been different had the

State given him timely and proper 404(b) notice. Absent such a showing, we cannot

conclude that Guillory was harmed by the foregoing instances. See id. at 825-26; see

also TEX. R. APP. P. 44.2(b).

       Guillory's second issue is overruled.

                         IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his third issue, Guillory argues that his attorney's failure to investigate, in

general, and failure to review the prosecution's file before trial, in particular, amounted to

                                               10
ineffective assistance of counsel.

          To establish ineffective assistance of counsel, Guillory must show that: (1) his

attorney's representation fell below an objective standard of reasonableness; and (2)

there is a reasonable probability that, but for his attorney's errors, the result of the

proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 684

(1984); Jaynes v. State, 216 S.W .3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.).

Whether this test has been met is to be judged on appeal by the totality of representation,

not by any isolated acts or omissions.                    Jaynes, 216 S.W.3d at 851. The right to

"reasonably effective assistance of counsel" does not guarantee errorless counsel or

counsel whose competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d

822, 824 (Tex. Crim. App. 1983).

          Our review of counsel's representation is highly deferential, and we will find

ineffective assistance only if Guillory rebuts the strong presumption that his counsel's

conduct fell within the wide range of reasonable professional assistance.                                    See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Guillory must prove ineffective

assistance of counsel by a preponderance of the evidence. See Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App.1999) (citing Cannon v. State, 668 S.W.2d 401, 403

(Tex. Crim. App. 1984)).                 To prove that counsel's performance fell below the

reasonableness standard, "the record must contain evidence of counsel's reasoning, or

lack thereof." Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet.

ref'd).       Generally, the trial record will not be sufficient to establish an ineffective

assistance of counsel claim. 5 Thompson, 9 S.W.3d at 813-14; Kemp v. State, 892


          5
              Although Guillory filed a motion for new trial, the trial court denied it without a hearing; thus no
                                                         11
S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). This is true because,

normally, a record is silent with regard to counsel's decision-making processes, and

therefore, appellant often cannot rebut the presumption that counsel's performance was

the result of sound or reasonable trial strategy. Strickland, 466 U.S. at 688; Stafford v.

State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991); see Jaynes, 216 S.W.3d at 855. In

the case of such a silent record, "the challenged conduct must be 'so outrageous that no

competent attorney would have engaged in it.'" Roberts v. State, 220 S.W.3d 521, 533

(Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005)).

        Here, Guillory bases his allegation that his trial counsel did not adequately

investigate the case on one statement made by the prosecutor in proceedings prior to

trial. While conferring with the trial court on whether the State gave adequate rule 404(b)

notice to Guillory, as discussed above, the parties discussed the State's open-door and

open-file policy, and the prosecutor stated, "All witness statements were given over but at

the same time, I've never—you know, [defense counsel] has never come to our office and

reviewed the file and I basically asked him if you wished to review the file, please come

by. He's never come and done that." We cannot conclude, based on this statement by

one prosecutor, that Guillory's trial counsel never reviewed the State's file. It is possible

that Guillory's trial counsel did review the State's file but spoke to a different prosecutor at

the time. Regardless, the one statement relied on by Guillory does not prove by a

preponderance of the evidence that trial counsel did not review the State's file. Rather,

the details of trial counsel's investigation, or alleged lack thereof, are not clearly apparent

evidence regarding trial counsel's performance was elicited at that stage. Guillory does not complain on
appeal of the trial court's decision to deny the motion without an evidentiary hearing.
                                                  12
from the trial record. The trial record in this case is underdeveloped as to the alleged

failings of Guillory's trial counsel and does not contain sufficient information to permit us

to fairly evaluate the merits of such a serious allegation. See Mata v. State, 226 S.W.3d

425, 430 (Tex. Crim. App. 2007); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002). Neither can we conclude from the record before us that trial counsel's actions

were so outrageous that no competent attorney would have engaged in them. See

Roberts, 220 S.W.3d at 533.

       In sum, without specific evidence of trial counsel's decision-making process and

strategy, we cannot conclude that Guillory has overcome the strong presumption that his

trial counsel provided professional, objectively reasonable assistance. See Strickland,

466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Because Guillory did not establish that his

trial counsel's performance fell below an objectively reasonable standard, he has not met

the first prong of Strickland. See Jaynes, 216 S.W.3d at 855. Guillory's third issue is

overruled.

                                     V. CONCLUSION

       We affirm the judgment of the trial court.


                                                                NELDA V. RODRIGUEZ
                                                                Justice

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

Delivered and filed the 20th
day of October, 2011.




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