Affirmed and Memorandum Opinion filed December 11, 2018.




                                     In The

                     Fourteenth Court of Appeals

                              NO. 14-17-00388-CR

                       ADOLPH RODRIGUEZ, Appellant
                                       V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1472291

                 MEMORANDUM                    OPINION
      Appellant Adolph Rodriguez challenges his conviction for continuous sexual
abuse of child. He complains of the trial court’s admission of extraneous-offense
evidence and asserts an ineffective-assistance-of-counsel claim. Finding no merit
in either claim, we affirm.

                                I. BACKGROUND
      Appellant was indicted under a charge of continuous sexual abuse of a child.
To convict appellant as charged, the State had to prove beyond a reasonable doubt
that appellant committed at least two acts constituting the offense of aggravated
sexual assault1 against his niece, Bea,2 when she was under fourteen years of age
and appellant was at least seventeen years of age and that the first and last acts
were at least thirty days apart. At trial, through the testimony of the complainant
(Bea), outcry witnesses, and a medical examiner, the State put on evidence of at
least five acts constituting the offense of aggravated sexual assault against Bea,
when she was less than fourteen years of age and appellant was at least seventeen
years of age.

         According to Bea’s testimony, appellant first penetrated her sexual organ in
the spare bedroom at a home she shared with her aunt and appellant. Bea described
the home as a house located on Sunnyside in North Houston. She recalled being in
fifth grade at the time and about eleven years old. She remembered that at times
she would stay in a room that had a desk and a couch with a pullout bed.
According to Bea, appellant pulled her on his lap while he was sitting on the couch
with his pants down. Bea did not recall how her pants were pulled down, but she
reported that appellant put his penis in her vagina and that she was facing away
from appellant.        Bea testified that appellant was keeping watch through the
window during the occurrence, looking to see if a car pulled up in the driveway.

         Bea testified about another occurrence at her aunt’s apartment at La Casita.
She testified that she was in sixth grade on this occasion and eleven years old.
According to Bea, she was at her aunt’s apartment, in the company of her cousins

1
  A person commits an “aggravated sexual assault” if the person “intentionally or knowingly: (i)
causes the penetration of the . . . sexual organ of a child by any means; (ii) causes the penetration
of the mouth of a child by the sexual organ of the actor; (iii) causes the sexual organ of a child to
contact or penetrate the mouth, anus, or sexual organ of another person, including the actor” and
the child is younger than fourteen years of age. See Tex. Penal Code Ann. § 22.021 (West,
Westlaw through 2017 1st C.S.).
2
    To protect the privacy of the complainant, we identify her by the pseudonym “Bea.”

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when appellant pulled Bea onto his lap as he had at the Sunnyside house. She
testified that appellant put his penis in her vagina and used a blanket to conceal the
act.

       Bea testified about another occurrence in the bedroom that she shared with
her mother when she was living at an apartment on Fulton. She did not know how
her pants came off but she testified that appellant was standing and put his penis in
her vagina as she was laying down on the corner of her bed with her leg on his
shoulder. Bea testified that she remembered that he had his eyes closed and
appeared to be enjoying himself; she recalled that sight had made her feel sick. She
testified that she was eleven years old at the time of this occurrence.

       The last act constituting the offense of aggravated sexual assault to which
Bea testified occurred in the living room of appellant’s house on Fostoria.
According to Bea, she was thirteen years old at the time, and had come to realize
that what appellant was doing to her was not right. Bea testified appellant tried to
put his penis in her vagina by bending her over the couch, that she resisted, but that
he persisted, causing his penis to contact her vagina. According to Bea, appellant
ultimately stopped and got mad.

       Bea did not make an outcry at the times she claimed appellant sexually
assaulted her. Later, she reported to a church friend that she had been sexually
molested by her mother’s sister’s husband. Bea mentioned suicide. The church
friend insisted that Bea tell her mother. Bea agreed, providing the church friend
would be present with Bea when she told her mother. The church friend stood next
to Bea as Bea told her mother “that [appellant] had raped me.” Bea’s mother asked
the church friend to call the police.

       Bea reported to the responding police officers the same things that she had
reported to her mother. Upon referral to the Children’s Assessment Center, Bea
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underwent an interview and a medical evaluation.

      The forensic interviewer testified at trial regarding Bea’s relation of the
incidents during her interview, revealing additional details about the four events,
and providing clarity as to the chronology of events. The interviewer also testified
about Bea’s description of another incident occurring at the La Casita apartment,
where appellant had given Bea alcohol and performed oral sex on Bea. Although
the forensic interviewer did not recall Bea’s precise age at the time of this incident,
other testimony established that Bea would have been eleven or twelve years old.

      In addition, the complainant’s mother testified that she once had “a vibe”
that appellant was interested in Bea but dismissed it. Explaining the basis for this
“vibe,” the mother testified that appellant paid more attention to Bea than he paid
to his own daughter, that he had looked at Bea in a way that “it felt he wanted to be
with her,” and he had a tattoo of her name.

      Appellant did not testify, nor did he proffer an alibi. Instead, the defense
sought to call Bea’s credibility into question, criticize the police investigation, and
present appellant as a father figure. Appellant offered testimony of his adult niece,
who stated that she never witnessed any inappropriate conduct, and that appellant
and his ex-wife had played a parental role in Bea’s life. The adult niece also
explained that appellant’s tattoo of Bea’s name was normal in the context of the
family as he treated Bea as a daughter. Appellant also elicited testimony from Bea
about another uncle who had sexually assaulted Bea.            In closing argument,
appellant’s counsel suggested that appellant was a father figure, and that the real
aggressor was Bea’s other uncle.

      The jury found appellant guilty and assessed punishment at 25 years’
confinement. This appeal followed.


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                             II. ISSUES AND ANALYSIS
      In his first issue on appeal appellant asserts the trial court abused its
discretion in admitting evidence of a 1987 attempted-sexual-assault offense.
Appellant asserts (1) the 1987 order was not linked to appellant by sufficient proof,
and (2) the probative value was substantially outweighed by the danger of unfair
prejudice. In his second issue appellant asserts his trial counsel failed to render
effective assistance. We address the issues in reverse order.

A. Do the alleged failures of appellant’s counsel constitute ineffective
   assistance of counsel?
    Both the United States and Texas Constitutions guarantee an accused the right
to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex.
Code Crim. Proc. art. 1.051 (West, Westlaw through 2017 1st C.S.). This right
necessarily includes the right to reasonably effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed.2d 674
(1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To
prove ineffective assistance of counsel, appellant must show that (1) trial counsel’s
representation fell below an objective standard of reasonableness, based on
prevailing professional norms; and (2) there is a reasonable probability that the
result of the proceeding would have been different but for trial counsel’s deficient
performance. Strickland, 466 U.S. at 688–92. Moreover, appellant bears the
burden of proving ineffective assistance of counsel by a preponderance of the
evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). An
ineffective-assistance claim must be “firmly founded in the record” and “the record
must affirmatively demonstrate” the meritorious nature of the claim. Menefield v.
State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012).

      At trial, the trial court admitted into evidence State’s Exhibit 25, a document

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entitled, “Probation Order and Deferment of Adjudication of Guilt,” indicating that
a man named Adolph Rodriguez pled “guilty” to the offense of “attempted sexual
assault” in 1987. The court held a hearing outside the presence of the jury to
consider the admissibility of the document. Appellant argued that the exhibit was
irrelevant, unfairly prejudicial under Texas Rule of Evidence 403, and that the
State had not sufficiently shown that appellant was the “Adolph Rodriguez”
referenced in the document. Appellant did not object that the evidence fell outside
the scope of article 38.37 of the Texas Code of Criminal Procedure, or provide any
proof that the complainant in the 1987 offense was not a child. See Tex. Code
Crim. Proc. art. 38.37 (West, Westlaw through 2017 1st C.S.). The trial court
admitted the document into evidence. During trial, Pete Galvan, a deputy with the
Harris County Sheriff’s Office testified that the name, date of birth, and SPN
(system person number) in Exhibit 25 matched appellant’s name, date of birth, and
SPN. Appellant’s counsel also cross-examined Galvan, pointing out the lack of
any testimony that the thumbprint in the 1987 order is appellant’s thumbprint and
that Galvan, having not begun his career at the Harris County Sheriff’s Office until
1991, could not identify appellant based on any personal recollection.

      The court provided a limiting instruction pertaining to Exhibit 25—that the
jury could not consider it as evidence unless the jury found beyond a reasonable
doubt that appellant had committed the extraneous offense.         If so, the court
instructed the jury to consider the extraneous offense only with respect to its
bearing on relevant matters, which the court said included the character of the
appellant and acts performed in conformity with the character of appellant. A
similar instruction appeared in the jury charge.

1. Failure to object to the 1987 order deferring adjudication as inadmissible
under Texas Code of Criminal Procedure article 38.37
      Appellant argues that his trial counsel rendered ineffective assistance by
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failing to object to the 1987 order on the grounds that article 38.37, section 2(b)
does not apply to this offense because it is an attempted sexual assault against a
complainant who was an adult. In his brief, appellant argues that “there was not a
plausible reason for counsel’s failure to familiarize himself with the statute and
object to the admission of a prior judgment for attempted sexual assault since it is
not included as one of the exceptions to the bar against extraneous evidence.”

      We accept, as appellant asserts, that article 38.37, section 2(b) does not
apply to an “attempted sexual assault against an adult.” But the 1987 order at issue
does not recite that the offense was committed against an adult.            It simply
describes the offense as “attempted sexual assault.” Penal code section 22.011,
“Sexual Assault,” includes provisions relating to sexual assaults of adults and
children. See Tex. Penal Code Ann. § 22.011. We presume, without deciding, that
the failure of a defendant’s counsel to object that article 38.37, section 2(b) does
not apply to an extraneous offense because the complainant was not a child
constitutes conduct “so outrageous that no competent attorney would have engaged
in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Under
this presumption, the silence of the record regarding the trial strategy of appellant’s
trial counsel does not preclude appellant from showing that his trial counsel’s
representation fell below an objective standard of reasonableness, based on
prevailing professional norms. See id.

      Neither Exhibit 25 nor any other part of the record contains any information
about the complainant or the complainant’s age in the 1987 case. The record holds
no proof that the 1987 attempted sexual assault was not an attempted sexual assault
of a child. Appellant’s argument may have been inspired by the prosecutor’s
comments in closing arguments that the complainant in the 1987 case was an adult
at the time; but there is no evidence—only suggestions of counsel—that the

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complainant was an adult. In the absence of proof, the record does not
affirmatively demonstrate a meritorious outside-the-scope argument to the
application of article 38.37. Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.—
Houston [14th Dist.] 1999, pet. ref’d) (stating “[t]rial counsel is not ineffective for
failure to make meritless objections”); Riles v. State, 595 S.W.2d 858, 861 (Tex.
Crim. App. 1980) (indicating that the failure to make a meritless objection does not
render counsel ineffective). Appellant’s appellate argument that his trial counsel
should have lodged this outside-the-scope objection on his behalf affords no basis
for appellate relief. Finding that appellant has not satisfied Strickland’s first-
prong, we overrule this facet of his ineffective-assistance claim.            See id.
Presuming for the sake of argument that counsel was deficient, we also find for
reasons discussed in Section II.B, below, that appellant has failed to satisfy
Strickland’s second prong.

2. Failure to object to allegedly deficient notice of outcry-witness testimony
      Appellant also argues that his trial counsel rendered ineffective assistance by
failing to object to “the State’s failure to provide notice of the outcry witnesses’
testimony, and . . . to articulate any substantial reasons at trial regarding harm
suffered from lack of notice.”       Appellant’s argument presupposes the non-
existence of papers included in the supplemental clerk’s record, including the
State’s “Notice of Intention to Use Child Abuse Victim’s Hearsay Statement,”
filed on October 17, 2016. Appellant did not file a reply brief, and appellant has
not otherwise attempted to explain this contention in light of the supplemental
record. Because the record indicates that the State provided proper notice of the
outcry witness testimony, any objection that the State failed to provide notice
would have been meritless and could not serve as the basis for a valid ineffective-
assistance-of-counsel claim.    See Thacker v. State, 999 S.W.2d 56, 67 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d). Therefore, we conclude that
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appellant has not satisfied the first-prong of Strickland on his ineffective-assistance
complaint related to the failure to object to the alleged lack of notice of outcry
witness testimony, and we overrule this complaint.

B.    Did the trial court reversibly err when it admitted evidence of the 1987
      extraneous offense over appellant’s linking objection and Rule 403
      objection?
      In his first issue appellant asserts the trial court abused its discretion in
admitting evidence of the 1987 extraneous offense because (1) the 1987 order
deferring adjudication was not linked to appellant by sufficient proof, and (2) the
probative value of the evidence was substantially outweighed by the danger of
unfair prejudice. We presume, without deciding, that the trial court erred in
overruling the objections by which appellant preserved error as to these two
complaints, and we consider whether the error was harmful.

      Under this presumption, we must decide whether the error affected
appellant’s substantial rights to a fair trial. See Tex. R. App. P. 44.2(b); Coble v.
State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Torres v. State, 424 S.W.3d
245, 260 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). A substantial right is
affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict. Id. But, if the improperly admitted evidence did
not influence the jury or had but a slight effect upon its deliberations, we must
deem this non-constitutional error harmless. Id. In performing a harm analysis,
we examine the entire trial record and calculate, as much as possible, the probable
impact of the error upon the rest of the evidence. Id. We consider overwhelming
evidence supporting the particular issue to which the erroneously admitted
evidence was directed, but that is only one factor in our harm analysis. Id. We
assess harm after reviewing the record, and the burden to show harm rests on


                                          9
neither the appellant nor the State. Id. In conducting our harm analysis we
consider the arguments appellant has lodged against a harmless-error finding.

      By characterizing the State’s other proof against him as lacking physical
evidence and consisting only of Bea’s allegations and “other witnesses[’] recitation
of her allegations,” appellant argues that the extraneous offense had a “tremendous
influence upon the jury.” Appellant’s characterization of the testimony of the
State’s other witnesses falls short and reveals inaccuracies. In particular, the
forensic interviewer, who testified that she has conducted thousands of interviews
of witnesses and victims in cases involving sexual abuse, noted that Bea was able
to provide sensory details about the assaults, that Bea exhibited signs that she
could recall from memory (rather than from script), and that Bea corrected the
interviewer at instances in the interview. Though appellant asserts the evidence
had “tremendous influence,” when considered in the context of the entire record,
we conclude that any influence of the extraneous offense was minor.             The
testimony in issue comprises about 20 of the 430 pages of trial testimony, less than
five percent. Neither party devoted more than a tenth of closing argument to
address the issue. Moreover, any influence of the extraneous offense was mitigated
by appellant’s counsel’s cross-examination of the sponsoring witness, which
provided the jurors reasons to doubt whether appellant had committed the prior
offense and called into question its relevance to the charged offense. Also, in the
limiting instruction given during trial and inserted into the jury charge, the trial
court instructed the jury not to consider the extraneous offense referred to in
Exhibit 25 unless they were satisfied beyond a reasonable doubt that appellant had
committed the offense.

      Appellant also argues that the error allowed the State to characterize him as
“a sexual predator,” specifically pointing to the prosecutor’s remarks in closing

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argument that “the same man who would attempt to sexually assault an adult is the
same man with the same character to have abused a child in secret for years.”
Though the admission of the evidence allowed the State to characterize appellant
as a sexual predator, the State did not characterize him as a sexual predator of
children. In any event, appellant’s argument touches upon our own noted concern
about “the character of the alleged error and how it might be considered in
connection with other evidence in the case.” Sauceda v. State, 162 S.W.3d 591,
597 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).      In Webb we found that
“striking similarities” between the charged offense and the extraneous acts factored
in favor of finding harm resulting from the erroneous admission of evidence of
these acts. Webb v. State, 36 S.W.3d 164, 183–84 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref'd). In that case the jury was presented evidence of the charged
offense bolstered by the vivid testimony of a similar victim of a similar sexual
assault by the same defendant, prompting this court to have “grave doubts” that the
trial court’s error in allowing evidence of the extraneous offense did not affect the
outcome. See id. The facts in today’s case differ materially from the facts in
Webb. Even presuming the jury found beyond a reasonable doubt that appellant
committed the extraneous offense of attempted sexual assault in 1987, unlike the
vivid detail provided in Webb, the evidence of the 1987 offense was minimal and
lacking in details or descriptive testimony showing a strong similarity to any of the
five offenses shown in the State’s evidence.

      Appellant also contends that the jury’s request to view Exhibit 25 during
deliberations provides proof of the document’s influence. The record does not
reflect why the jury asked to see Exhibit 25. Without any evidence as to why the
jury wanted to review this exhibit, it would be speculative to conclude that because
the jury requested to view the evidence, the evidence misled the jury. See Austin v.


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State, 222 S.W.3d 801, 813 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)
(“Even though the jury requested to view the entire psychological evaluation file
during deliberations, given the small role this evidence played in the trial,
especially in relation to the other evidence supporting the verdict, we conclude the
evidence did not influence the jury or had only a slight effect.”)

      At the evidentiary hearing during trial, appellant’s counsel had characterized
the State as having put forward "more than enough probative evidence to prove
their case.”   Appellant now states on appeal that Exhibit 25 was “inherently
inflammatory in a case where the evidence was rooted in the word of the child
against Appellant’s, because in this case there were no eye witnesses to the abuse,
no physical evidence, and no physical injuries to the child.” We agree that a
conviction of a prior sexual offense has the potential to inflame, but appellant
misjudges the weight on both sides of the scale. On one side of the scale, any
influential weight that the extraneous attempted sexual assault could have, was
diminished by ambiguity surrounding the offense, the lack of any supporting
testimony about it, the low level of punishment for the 1987 offense, the
remoteness in time of the offense, and the limiting instructions. As to the other
side of the scale, there was overwhelming proof of guilt—the State presented
testimonial accounts of five aggravated sexual assaults when it needed to prove
only two acts constituting the offense of aggravated sexual assault. See Torres v.
State, 424 S.W.3d 245, 253 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)
(stating “the testimony of a child complainant, standing alone, is sufficient to
support a conviction for sexual assault”).

      The Second Court of Appeals provides a useful comparison. See Martin v.
State, 176 S.W.3d 887, 98 (Tex. App.—Fort Worth 2005, no pet.). That court held
that a trial court erred in admitting evidence of the aggravated sexual assault of a

                                          12
young girl (penetration of the complainant’s sexual organ with the defendant’s
sexual organ) over a Rule 403 objection in a case in which the extraneous acts
were equal to or likely more heinous than the charged offense involving oral sex
and improper touching of a minor. Id. at 98. The Martin court considered that the
State had little or no need for the evidence to prove the intent element and found
that the evidence of the aggravated sexual assault had significant potential to
impress the jury “in some irrational but nevertheless indelible way” and potentially
caused the jury to reach a decision on an improper basis. Id. Despite finding error,
the Martin court found the admission of the extraneous evidence harmless. Id. at
898. The court considered the overwhelming evidence of guilt, and noted that the
complainant’s testimony regarding the separate and distinct acts charged sufficed
to support the jury’s verdict. Id. at 897-98. The court also noted the trial court’s
use of limiting instructions, and that the appellant in Martin had not rebutted the
presumption that the jury had followed those instructions. Id.

      Like the complainant in Martin, Bea provided significant details about
multiple instances of appellant’s sexual conduct. Bea recalled four occurrences
during the time frame she was in the fifth and sixth grades; she provided vivid
details about each occurrence, pinpointing the place each act occurred, and for each
event identifying a different room, piece of furniture, a description of the sexual
contact and her position with respect to appellant, as well as sensory details about
appellant and the surroundings. Similar to the jury in Martin, the jury in today’s
case heard evidence of an extraneous offense. As in Martin, the overwhelming
evidence of guilt dwarfed the extraneous acts. And, as in Martin, the trial court
gave the jury limiting instructions and appellant failed to rebut the presumption
that the jury followed those instructions.

      The record does not raise legitimate reasons to doubt the evidence.

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Appellant’s one witness, his adult niece, did not establish an alibi as to any of the
aggravated sexual assaults proven in the State’s case-in-chief.

       After examining the entire trial record under the applicable standard of
review, we conclude that if the trial court erred in admitting evidence of the 1987
extraneous offense, the overwhelming evidence of guilt, the lack of any significant
similarity of the extraneous evidence, and the small role the extraneous offense
evidence played at trial render the error harmless. See id.; Motilla v. State, 78
S.W.3d 352, 357 (Tex. Crim. App. 2002) (addressing the rule that overwhelming
evidence of guilt may be used as a factor to be considered under a harm analysis
for constitutional error not affecting substantial rights). Accordingly, we overrule
appellant’s first issue.

                                   III. CONCLUSION
       Any error in admitting the exhibit containing evidence of a thirty-year old
offense was harmless.         Because the record does not contain the age of the
complainant in the 1987 extraneous offense or whether the offense was one against
a child, we cannot conclude that appellant’s counsel failed to make a meritorious
objection to the admission of evidence of the offense on the ground that article
38.37, section 2(b) does not apply to this offense because it is an attempted sexual
assault against a complainant who was an adult. Therefore, appellant’s ineffective-
assistance claim fails. Having overruled all of appellant’s challenges, we affirm
the trial court’s judgment.


                                        /s/    Kem Thompson Frost
                                               Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).


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