COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00452-CR
MICHAEL RAY BROWN APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION1
------------
I. Introduction
In three issues, Appellant Michael Ray Brown appeals his conviction for
two counts of indecency with a child. We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural History
The complainant, M.W., made a sexual abuse outcry about Brown to her
school counselor when she was in the ninth grade.2 The school counselor told
M.W.‘s parents about the outcry. M.W.‘s father, R.W., called the Arlington police
and then he pretended to be M.W. and sent Brown sexually explicit text
messages from his cell phone. R.W. sent his messages and Brown‘s responses
from his phone to his e-mail, printed them out, and brought them to Arlington
Police Detective Garth Savage, who was investigating the offense.3
Detective Savage wanted to confirm that Brown was the one sending the
text messages. He and R.W. arranged for Brown to meet R.W. (sending texts as
M.W.) at M.W.‘s school at 11:30 a.m. on March 24, 2008. R.W. also printed out
Brown‘s text responses from the day of the meeting, and Detective Savage was
present when R.W. received these messages on March 24 from Brown.
When Brown arrived at M.W.‘s school, Detective Savage spoke with him
about the text messages and took his phones, and Brown gave a written
statement on a form preprinted with Miranda warnings4 and signed consent-to-
2
M.W. was born in 1993. She was seventeen at the time of the trial.
3
Brown‘s responses to R.W.‘s texts included, ―Have you been with
anybody else besides me?‖ and ―You sure you haven‘t been with anybody? You
talk like you have. You know I will be able to tell,‖ and ―Sex with me only. You
promise. I will forever love you and take care of you. I want the best for you.‖
4
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
2
search forms, which also had his rights preprinted on them, for the phones.
Brown left after giving his statement.
Brown gave another written statement to the police on April 21, 2008.
Detective Savage said that Brown was not in custody when he gave this
statement and that Brown left after giving the statement. After Brown left,
Detective Savage obtained a warrant for Brown‘s arrest. Detective Savage taped
his March 24 and April 21 conversations with Brown; Brown did not know that he
was being taped.
The State charged Brown with one count of sexual assault (digital
penetration of M.W.‘s female sexual organ) and two counts of indecency with a
child (touching M.W.‘s breasts and causing M.W. to touch Brown‘s penis),
occurring on or about June 1, 2007.
Brown filed two motions to suppress. The first motion sought to suppress
any of Brown‘s statements, and the second sought to suppress the text
messages. The trial court denied both motions.
At trial, M.W. claimed that Brown began touching her ―private areas‖ when
she was five years old and that the sexual abuse continued until March 2008,
when M.W.‘s teacher asked her about her repeated absences from class. M.W.
said her absences occurred because Brown would pick her up from school
during lunch and take her back to his apartment, where he would touch her
breasts, have her touch his penis, and move his finger around inside her female
3
sexual organ.5 Brown had bought a cell phone for M.W., and they would text
each other throughout the day. R.W. stated that he was very upset when he
found out about the sexual abuse, especially since Brown had been a
grandfather figure to M.W.
The trial court overruled Brown‘s objections to his March 24 statement and
admitted it as State‘s Exhibit 3. In the March 24 statement, Brown gave his age
as fifty-two and stated that he had completed twelve years of formal education
and could read, write, and understand the English language. Detective Savage
read the following into evidence from Brown‘s statement:
I have never picked up [M.W.] from Timberview High School. I
have not had sex with [M.W.] and am certain that all claims she is
making [are] false. I do acknowledge having given [M.W.] money on
various occasion[s] upon her request. I do acknowledge that I have
brought [M.W.] lunch to school on numerous occasions. I have on
many occasions talked about abstaining from actual sexual contact
to avoid pregnancy. I have acknowledge[d] that I have had
conversations with [M.W.] of a sexual nature. I even saved several
texts (which may have been someone other than [M.W.] sending
them) that were very explicit in nature that really shocked me that
she would say such things. But in reality it may have been the police
sending the text[s]. I realize that even the conversations were
wrong. I have never been with [M.W.] sexually no where [sic]. The
money and lunch were always her asking and I tried to
accommodate her in order to keep a positive relationship with
frie[n]ds. She is a very friendly girl, but she knows how to pretend
and act in order to achieve her goals. I realize that the things [M.W.]
accuses me of are truly false and with [sic] documentation and
substance. Even today, she had asked me to bring pizza and I was
confronted by police. Apparently, I was being led on thinking it was
[M.W.]
5
M.W. said that at some point in 2007, Brown attempted sexual intercourse
with her and that Brown took her virginity.
4
The school secretary can acknowledge that on many
occasions I have brought lunch to [M.W.] per her request.
The trial court also admitted Brown‘s April 21 statement as State‘s Exhibit
4-A after overruling Brown‘s objections, and Detective Savage read the following
portion into evidence:
I hereby admit to kissing and touching [M.W.] when we were
alone at a park in Arlington. She would touch my penis and I would
touch her clitoris. I also touched her breast. This happened on two
occasions during the summer of 2007. These incidents happened
during the day in my vehicle. These were the only times I had
sexual contact with her. I never actually put my penis into her
vagina. The touching was under her clothes. She nor I never fully
undressed. I realize the error of my ways and am taking full
responsibility. I would desire to seek therapy or counseling in this
matter.
The trial court admitted State‘s Exhibit 8, which contained audiotape recordings
of Brown‘s March 24 and April 21 conversations with Detective Savage.
The jury found Brown not guilty of the sexual assault charge, and the trial
court entered a judgment of acquittal on that offense. The jury convicted Brown
of both counts of indecency with a child and assessed punishment at fifteen
years‘ confinement and a $5,000 fine for each count, and the trial court entered
judgment on the verdicts, setting Brown‘s sentences to run concurrently. This
appeal followed.
III. Motion to Suppress
In his first issue, Brown argues that the trial court abused its discretion by
denying his motion to suppress his statements. Specifically, he complains that
the instant Detective Savage seized his phone, an arrest was made and that all
5
actions and statements that followed the stop and seizure should have been
suppressed. Further, Brown claims that he was induced and threatened by a
polygraph examiner to divulge his guilt, making his confession invalid.
A. Preservation of Error
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687,
691–92 (Tex. Crim. App. 2009). Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court‘s refusal to rule. Tex. R. App. P.
33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A
reviewing court should not address the merits of an issue that has not been
preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.
2010) (op. on reh‘g). Preservation of error is a systemic requirement that this
court should review on its own motion. Id. at 473–74; Ford v. State, 305 S.W.3d
530, 532–33 (Tex. Crim. App. 2009).
In his ―Motion to Suppress Statements,‖ Brown argued that ―[a]t the time of
any conversations between [Brown] and law enforcement officers, [Brown] was
(a) under arrest or (b) substantially deprived of freedom by the conduct of the law
enforcement officers and the circumstances surrounding the arrest or deprivation
of freedom.‖ He alleged that any statements made by him were involuntary and
6
were coerced and enticed from him; that he was deprived of the right to counsel
and did not make an intelligent and knowing waiver of that right; and that his
statements ―were tainted by the illegal and unlawful detention and arrest, in
violation of [his] constitutional rights under the Fifth and Fourteenth Amendments
to the Constitution of the United States, Article I, Section 9 of the Texas
Constitution and Article 38.23 of the Texas Code of Criminal Procedure.‖
Further, he argued that the statements were taken ―without the safeguards
required by and in violation of Article 38.22 of the Code of Criminal Procedure‖
and that the admission of his statements would violate his rights under the
―Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution, Article I, Section[s] 9 and 10 of the Texas Constitution and Articles
1.05 and 38.23 of the Texas Code of Criminal Procedure.‖ Nothing in the motion
indicates at what point Brown was taken into custody or provides any factual
basis to conclude that he was taken into custody.
At the suppression hearing, Brown‘s cross-examination of Detective
Savage focused on the text messages printed out by R.W. and the polygraph
examination. His arguments the following day, after the trial court reviewed the
March 24 and April 21 audiotaped conversations between Brown and Detective
Savage, focused again on the text messages and on enticement or coercion by
the polygrapher as an agent of the Arlington police department. Brown did not
argue that he was taken into custody when Detective Savage took his cell phone.
7
During trial, Brown objected to the admission of his written statements,
citing code of criminal procedure articles 38.22 and 38.23 and Sossamon v.
State, 816 S.W.2d 340 (Tex. Crim. App. 1991), abrogated on other grounds by
Graham v. State, 994 S.W.2d 651, 655–56 (Tex. Crim. App.), cert. denied, 528
U.S. 974 (1999).6 He did not argue that he was arrested when Detective Savage
took his cell phone.
For the first time on appeal, Brown argues that he was arrested when
Detective Savage detained him and took his cell phone on March 24. 7 Brown‘s
situation is similar to that of the appellant in Swain v. State, 181 S.W.3d 359, 365
(Tex. Crim. App. 2005). In Swain, the appellant argued for the first time on
appeal that his oral statement to a police detective and an investigator from the
district attorney‘s office and his third written statement were obtained in violation
of his right to counsel under the federal and state constitutions because he was
questioned after he had appeared before a magistrate and had requested the
6
Brown cited Sossamon for the proposition that a confession obtained by a
promise or benefit can be involuntary. 816 S.W.2d at 345.
7
Brown notes,
Trial counsel unfortunately did not inquire as to how the stop and
immediate seizure of the Appellant and his cell phone were not
prima facie indicators that an arrest had already taken place, but the
seizure of non-contraband property during an encounter surely
escalated the that [sic] encounter to an arrest.
He also raises the failure to suppress the seizure of the cell phone in his
third issue on ineffective assistance of counsel.
8
appointment of counsel, rendering the statements inadmissible under article
38.23 of the code of criminal procedure. Id. at 363, 365. In his written motion,
however, the appellant merely argued that ―any statements made by Defendant
were obtained in violation of his right to counsel and his right against self-
incrimination as guaranteed by U.S. Const. amends. V, VI, and XIV, and Tex.
Const. art. I, §§ 10 and 19,‖ and argued generally that the statements were
inadmissible under article 38.23. Id. at 365.
The court of criminal appeals held that because the arguments in the
appellant‘s motion were ―global in nature and contained little more than citations
to constitutional and statutory provisions,‖ and because at the suppression
hearing, the appellant failed to complain about being questioned after asserting
his right to counsel and ―instead simply objected that his statements were
inadmissible because the police illegally arrested him and failed to comply with
the requirements of Articles 38.22, 14.03, and 14.06,‖ the appellant had failed to
preserve the arguments that he had tried to make on appeal. Id. (citing Tex. R.
App. P. 33.1).
Like Swain, here, Brown made global arguments in his written motion to
suppress. At the suppression hearing, he focused on the admissibility of the text
messages under his other motion and on the actions of the polygrapher on April
21 with regard to coercion and enticement, not the actions of Detective Savage
on March 24 in taking Brown‘s cell phone. And although the trial court made
findings of fact and conclusions of law on the record at the conclusion of the
9
suppression hearing, the findings and conclusions did not address the seizure of
the cell phone, other than to find that Brown was not in custody on March 24.
Brown did not argue at trial that Detective Savage arrested him on March 24
when he took Brown‘s cell phone from him. Therefore, Brown has failed to
preserve this argument for our review. See Tex. R. App. P. 33.1; Swain, 181
S.W.3d at 365. We overrule the first portion of Brown‘s first issue.
B. Suppression
We review a trial court‘s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
The trial judge is the sole trier of fact and judge of the credibility of the witnesses
and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–
25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim.
App. 2006). When, as here, the trial court makes explicit fact findings, we
determine whether the evidence, when viewed in the light most favorable to the
trial court‘s ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808,
818–19 (Tex. Crim. App. 2006). We then review the trial court‘s legal ruling
de novo unless its explicit fact findings that are supported by the record are also
dispositive of the legal ruling. Id. at 818.
10
1. Trial Court’s Findings of Fact and Conclusions of Law
The trial court read the following pertinent findings of fact and conclusions
of law into the record:
Detective Savage began his investigation of the case. The
father of the alleging party sent text messages pretending to be the
injured party. The defendant responded to those text messages.
The defendant agreed to meet at the school. Officers approached
the defendant at the school where the defendant was thinking he
was there to pick up the child.[8]
Defendant was told of the allegation. Defendant signed a
statement that contained Miranda warnings. Defendant was not in
custody. Defendant had not been deprived in any significant
manner away [sic] of his freedom [of] movement. Defendant made
a—signed a statement in which he denied hav[ing] any sexual
relationship with the injured party. He admitted, however, to talking
with her about sex.
Defendant agreed to take a polygraph examination. A
polygraph was taken several weeks after the initial contact. The
defendant was permitted to go voluntarily to the polygraph site. He
was not deprived of his freedom of movement at the polygraph exam
location. He was not in custody. He was not under arrest. The
defendant met voluntarily with Mr. Jones of Wood‘s Polygraph
Service. He took the polygraph test and was told that he did not
pass the test and that he should come clean.
At the time, Wood‘s Polygraph was an independent
contractor—or rather, in an independent contractual relationship with
the Arlington P.D. However, detectives—I‘m sorry, Mr. Jones—you
have no evidence that Mr. Jones made the statement to the
defendant that he should come clean at the urging of the Arlington
Police Officer Savage or any other member of the Arlington Police
Department.
8
The audiotape reflects that Brown actually said that he was there to talk to
M.W. and that he vehemently denied that he had ever picked her up at school.
11
No testimony that Mr. Jones was acting as an agent of the
Arlington Police Department at the time he made such statement.
And, again, the defendant was not in custody. He was not deprived
of his freedom in any manner.
The defendant‘s second statement was freely and voluntarily
made. In the statement, the defendant expressed hope that he
would get treatment. In his voluntary statements to the police, he
was expressing the hope of getting probation. Mr. Jones related to
the defendant that he had known of cases where people had gotten
probation for similar crimes. However, Mr. Jones did not promise
the defendant he would get probation.
And, again, the defendant was never told he was under arrest,
and his freedom of movement was never limited or restricted in any
manner. In fact, he was expressly told that he was free to leave on
each occasion.[9]
For these reasons, and for all these reasons, the Court denies
your motion to suppress and rules that you have not met—you have
not shown a violation of Article 38.22 nor Miranda.
After voir dire and before opening statements, the trial court added the
following:
My previous ruling pertained to the audio statements as well
as the written statements. And for the reason I gave in my findings
of the fact [sic] this morning, that applies to the audio. The audio will
be permitted to be introduced. However, I am going to instruct the
State to redact any portion of the audio that concerns the polygraph
examination. That would be inadmissible.
2. Additional Suppression Hearing Evidence
Detective Savage testified that he had arranged for Brown to take a
polygraph exam on April 21 with Wood‘s Polygraph, a company that the Arlington
9
The audiotape of the March 24 conversation does not contain an express
statement by Detective Savage to Brown that he was free to leave.
12
Police Department used on a regular basis. He said that he did not observe the
polygraph exam but that after Bobby Jones, the polygrapher, told him the results,
he told Jones that he would like to talk to Brown. Detective Savage and Brown
then talked in the polygraph company‘s conference room, and he recorded their
conversation. Detective Savage did not recall Brown‘s trying to talk with him
about what Brown and Jones had discussed.10
Brown agreed to give Detective Savage another statement. Brown gave
his second statement on another form with pre-printed Miranda warnings, and
Detective Savage asked him to read the warnings to himself and indicate
whether he understood them. Brown indicated that he understood them by
initialing next to them. Detective Savage said that he had made it clear to Brown
that getting Brown help and probation were out of his hands and that he did not
promise Brown anything for his statement. Their discussion about bond issues
occurred after Brown gave his statement. Detective Savage obtained an arrest
warrant for Brown on May 20, 2008.
Jones, the polygrapher from Wood & Associates Polygraph Services,
testified that his company was an independent contractor and had a contract with
the Arlington Police Department. Jones said that at the end of the test, he told
Brown that he had failed and suggested to him that he ―come clean.‖ The
following dialogue then occurred between Jones and defense counsel:
10
Brown never expressly stated anything about Jones during the recorded
April 21 conversation.
13
Q. And you suggested to him that he come clean?
A. Yes, ma‘am.
Q. And in the process of that, you-all talked about that if he would
go ahead and come clean, you gave him examples of people who
got better situations, probation, help, counseling for just going ahead
and telling the truth?
A. We discussed that, yes, ma‘am.
Q. You not only discussed it, sir, but it came from you, these
scenarios and these examples, that you knew of personally where
some people regretted not coming clean versus others who had a
slightly better deal from coming clean?
A. No, ma‘am. The context I put it in—he was obviously very guilt-
ridden. I talked to him about many people I see in this situation get
probation. And that‘s the truth, that I couldn‘t promise him anything
at all. I wasn‘t in a position to do that, but he was carrying a big
burden on his shoulders that he had to get off his shoulders. And I
gave him the example that people who are open and honest get that
burden off their shoulders, that if he makes it hard on other people,
they make it hard on him in return. That‘s a human trait that we all
have. I talked to him in those regards.
Jones also said that in conducting his interview with Brown, he never
promised Brown anything and told Brown that he could not promise him anything
and that he did not make any promises or inducements to obtain Brown‘s
statement. Jones testified that Brown was free to leave and to terminate the
interview at any time, that Brown knew this, and that Brown never terminated the
interview. Jones stated that he was not a member of the Arlington Police
Department and that he did not take a written statement or record Brown‘s
statement.
14
The trial court reviewed the audiotape containing Detective Savage and
Brown‘s March 24 and April 21 conversations prior to issuing its ruling, and these
conversations were subsequently played for the jury.
The April 21 recording reflects that Detective Savage told Brown that he
was not under arrest, that he was not going to arrest Brown that day, and that
Brown was going to leave just like he came. He acknowledged that Brown had
been very cooperative. Brown told Detective Savage that he and M.W. had two
encounters in a park in Arlington, where he touched M.W.‘s breast and female
sexual organ with his hand on two occasions and M.W. touched his penis on one
occasion.
Brown said that he admitted his ―wrong‖ and that he needed to accept
responsibility and ―to get some help about that.‖ Detective Savage told Brown,
―We can do that, you‘re doing the right thing, you know, being honest.‖ Brown
then said,
And I appreciate the way you‘ve been helping me. You know,
I really do, you know, you been honest with me, you know, you been
gentle, more or less, you know, and I really appreciate it. That‘s
why, even in the beginning, when you confronted me, I didn‘t try to
just deny everything.
Brown then told Detective Savage his hope that he could admit ―to this,‖ put in a
guilty plea, and get probation.
Detective Savage told Brown that those decisions were up to the district
attorney and the court, Brown acknowledged that he knew this, and then the
detective asked Brown to give him a written statement of what they had just
15
talked about. Detective Savage showed Brown the top part of the form that set
out his Miranda rights, asked him to read through them, and told him that if he
had any questions at all, just to ask. While Brown wrote out his statement,
Detective Savage told him that if he wanted to ask for counseling, to put that in
the statement.
Detective Savage asked Brown whether he had any questions. Brown
asked him what would happen next, and Detective Savage told him that he would
present the case to the district attorney, that there would probably be an arrest
warrant issued for Brown‘s arrest, and that Brown would have to go through ―the
process‖ and make bail. Detective Savage told Brown that when he had the
warrant signed by the judge, he would tell the judge that Brown had been
cooperative, so the judge could take that into consideration when issuing his
bond. He explained to Brown what a bond was.11
11
Detective Savage‘s trial testimony was substantially similar to his
testimony during the suppression hearing and to the audiotaped conversations.
He said that he interviewed Brown on April 21 and told Brown before the
interview that ―he was not under arrest and that he could leave just the way he
came.‖ Brown was not under arrest, was not handcuffed, and was not detained
in any way during the interview, and he gave his written statement on a form pre-
printed with Miranda warnings.
Brown asked Detective Savage what would happen after he left, and
Detective Savage explained the bond procedure to him. Brown said that he
needed to get some help and Detective Savage admitted that he responded, ―We
can do that,‖ but he also said that he had told Brown that in the context of Brown
putting his desire for counseling into his written statement and not as a promise
that Brown would receive counseling or that he would receive it as a result of his
written statement. Brown left after the interview. Detective Savage reported to
the judge that Brown had been cooperative so that the judge could set an
appropriate bond based on all of the facts and circumstances.
16
3. Analysis
In the second part of his first issue, Brown claims that he made his
confession due to threats and a false promise of leniency by the polygrapher.
A statement may be used in evidence against an accused if it appears that
the statement was ―freely and voluntarily made without compulsion or
persuasion.‖ Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005). For a promise
to render a confession invalid, it must be positive, made or sanctioned by
someone in authority, and of such an influential nature that it would cause a
defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex.
Crim. App. 2004). ―Before a promise will render a confession inadmissible, it
must be shown that the promise induced the confession.‖ Muniz v. State, 851
S.W.2d 238, 254 (Tex. Crim. App.) (noting that general statements made to a
suspect that a confession may sometimes result in leniency do not render a
confession involuntary because this is a statement of fact, not a promise in
exchange for a confession), cert. denied, 510 U.S. 837 (1993). Further, a
confession given ―under the duress of hallucinations, illness, medications, or
even a private threat‖ can be involuntary under articles 38.21 and 38.22, and the
inquiries do not turn solely on police overreaching. Oursbourn v. State, 259
S.W.3d 159, 172 (Tex. Crim. App. 2008).
The record supports the trial court‘s findings that Jones was not an
employee or agent of the Arlington Police Department and that Jones did not
make his statement that Brown should ―come clean‖ at the police department‘s
17
urging. Further, there is no evidence that Jones or Detective Savage threatened
Brown or promised Brown anything for his confession or that Brown felt
threatened and made his confession in response to threats or promises. To the
contrary, Brown even thanked Detective Savage for being ―gentle‖ with him.
Therefore, we overrule the remainder of Brown‘s first issue.
IV. Sufficiency
In his second issue, Brown complains that the State failed to prove that
M.W. was not his spouse.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638. The standard of review is
the same for direct and circumstantial evidence cases; circumstantial evidence is
as probative as direct evidence in establishing the guilt of an actor. Isassi, 330
S.W.3d at 638; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
18
B. Analysis
At the time of the offense, to prove indecency with a child, the State had to
show that the accused engaged in sexual contact with a child or caused a child
to engage in sexual contact, that the child was younger than seventeen years,
and that the child was not the accused‘s spouse. See Act of May 23, 2001, 77th
Leg., R.S., ch. 739, § 2, 2001 Tex. Gen Laws 1463, 1463 (amended 2009)
(current version at Tex. Penal Code Ann. § 21.11 (West 2011)). A ―spouse‖ is a
person to whom a person is legally married under the family code. Tex. Penal
Code Ann. § 21.01(4) (West 2011). Direct evidence that the complainant was
not the defendant‘s spouse is not required. Strahan v. State, 306 S.W.3d 342,
348 (Tex. App.—Fort Worth 2010, pet. ref‘d) (stating that it may be proved by
circumstantial evidence that the victim was not the defendant‘s spouse).
Here, M.W. testified that she was five years old when Brown began
babysitting her and touching her in her ―private areas.‖ R.W. said that Brown had
been dating and living with M.W.‘s grandmother L.L. as L.L.‘s boyfriend and that
Brown was a grandfather figure to M.W. At the beginning of her seventh grade
year, M.W. moved to Arlington, Texas, and Brown followed. M.W. said that
Brown moved with L.L. into the same apartment complex where M.W. lived.
Although Brown denied that he and M.W.‘s grandmother had ever been
lovers during the April 21 conversation with Detective Savage, the evidence also
revealed that L.L. had broken up with Brown after M.W.‘s parents took M.W.‘s
cell phone, found a compromising text from Brown, and confronted M.W. about it.
19
On the March 24 audiotape, Brown clearly stated to Detective Savage that he
was not M.W.‘s ―boyfriend‖ but said that they had a close relationship and that he
had raised her. See id. (holding circumstantial evidence was sufficient to
establish that complainant was not the defendant‘s spouse when she was
approximately ten years old when the sexual abuse began and referred to the
defendant as her father); Martin v. State, 819 S.W.2d 552, 556 (Tex. App.—San
Antonio 1991, no pet.) (holding circumstantial evidence was sufficient to establish
that complainant was not the defendant‘s spouse when the complainant was
between the ages of six and nine when the offense took place); Meyers v. State,
737 S.W.2d 6, 8 (Tex. App.—Corpus Christi 1987, no pet.) (holding
circumstantial evidence was sufficient to establish that complainant was not the
defendant‘s spouse when he had asked the victim‘s mother to marry him, had
two children with the victim‘s mother, and was considered by the victim‘s
relatives to be the victim‘s stepfather); see also Salinas v. State, No. 13-99-
00226-CR, 2000 WL 34252060, at *2 (Tex. App.—Corpus Christi 2000, no pet.)
(not designated for publication) (stating that the circumstantial evidence was
sufficient to make it legally impossible for complainant to be the defendant‘s
spouse when the evidence established that she was five years old when the
sexual assault occurred and the defendant testified that he was her father).
Viewing the evidence in the light most favorable to the jury‘s verdict, we conclude
that the evidence is sufficient to support the jury‘s finding that M.W. was not
Brown‘s spouse, and we overrule his second issue.
20
V. Ineffective Assistance of Counsel
In his third issue, Brown contends that he received ineffective assistance
of counsel because his counsel (1) waited until five days before trial to file her
―boilerplate discovery motions‖ that made no request for evidence of extraneous
offenses that might be introduced by the State during the guilt-innocence or
punishment phases of trial,12 (2) failed to file a motion in limine to bar the State
from having M.W. testify about those offenses, (3) failed to object to the
extraneous offenses when they came in, and (4) failed to suppress the seizure of
his cell phone.
A. Standard of Review
To establish ineffective assistance of counsel, the appellant must show by
a preponderance of the evidence that his counsel‘s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel‘s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is
whether counsel‘s assistance was reasonable under all the circumstances and
12
The State introduced no additional evidence during the punishment
phase of Brown‘s trial.
21
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel‘s representation is
highly deferential, and the reviewing court indulges a strong presumption that
counsel‘s conduct fell within a wide range of reasonable representation. Salinas
v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65
S.W.3d 59, 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a
position on direct appeal to fairly evaluate the merits of an ineffective assistance
claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. ―In the
majority of cases, the record on direct appeal is undeveloped and cannot
adequately reflect the motives behind trial counsel‘s actions.‖ Salinas, 163
S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption
of reasonable professional assistance, ―any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.‖ Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
The second prong of Strickland requires a showing that counsel‘s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,
appellant must show there is a reasonable probability that, but for counsel‘s
unprofessional errors, the result of the proceeding would have been different. Id.
22
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. The ultimate focus of our inquiry must
be on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
B. Analysis
Under section 2 of article 38.37 of the code of criminal procedure,
evidence of other crimes, wrongs, or acts committed by the defendant against
the child who is the victim of an alleged sexual offense shall be admitted for its
bearing on relevant matters, including the state of mind of the defendant and
child and the previous and subsequent relationship between the defendant and
child. Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West 2005 & Supp. 2011).
Under section 3 of the same article, on timely request by the defendant, the State
shall give notice of its intent to introduce this evidence in its case-in-chief. Id.
art. 38.37, § 3.
As argued by Brown, his trial counsel filed her motion for discovery on
October 5, 2010, the day trial began. Brown complains, ―It is difficult to ascertain
why trial counsel would not have requested ‗extraneous offenses‘ in her
discovery and filed the requisite motion in limine.‖13 However, at the conclusion
of the suppression hearing, Brown‘s counsel put the following on the record:
13
In her motion, counsel asked the court to order the State to produce its
list of witnesses, as well as the list of statements made by Brown to the State in
connection with the case; the State‘s warrants and affidavits obtained to search
Brown‘s property or person or to arrest Brown and any written waiver alleged by
23
[Defense counsel]: Okay. Also, I explained to you some time
ago that one of the blessings we have in practicing in Tarrant
County, is we have what is called an open-file policy. And I
explained to you that I‘m able to get the police report, I’m able to get
any information that the district attorneys have and don’t
automatically have to file a motion to get that like some other
counties.
Remember, I told you I have everything? In fact, we talked in
my office with me having those materials, going over that information
with you on more than one occasion.
[Brown]: Yes, ma‘am.
[Defense counsel]: Now, on today, though, I wanted to be
cautious, and I did file a motion for discovery, which basically asked
them for everything I already have; do you understand that?
[Brown]: Yes, ma‘am.
[Defense counsel]: The only thing that I needed from the
State, which they provided that to me, was the witnesses. And they
went even further by telling me which ones they anticipate
specifically to call today; do you understand that?
[Brown]: Yes, ma‘am.
[Defense counsel]: They could have given me a list of ten or
twelve people, but they basically gave me the three or four they may
call; do you understand?
[Brown]: Yes, ma‘am. [Emphasis added.]
Although Brown speculates that his trial counsel was unaware of the
extraneous offenses—specifically M.W.‘s testimony that Brown had been
the State to have been signed by Brown involving his right to counsel, right to
remain silent, or right to be free from search and seizure; any photographic,
physical, or scientific evidence in the case; any evidence pertaining to Brown‘s
competency to stand trial, rule 404(a)(2) evidence of the alleged victim‘s
character traits; and exculpatory evidence.
24
touching her sexually since she was five years old—and argues that trial
counsel‘s failure to file the motion was ―an inexplicable abdication of her duty to
thoroughly investigate the case,‖ we cannot say that the record here affirmatively
demonstrates the alleged ineffectiveness. See Salinas, 163 S.W.3d at 740.
Further, with regard to trial counsel‘s failure to file a motion in limine
regarding the extraneous offenses and her failure to object to them during trial, to
establish that counsel was ineffective for either failing to file a motion or for failing
to object, the appellant must first show that the motion would have been granted
or that the trial court would have committed error by overruling the objection.
See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (―To show
ineffective assistance of counsel for the failure to object during trial, the applicant
must show that the trial judge would have committed error in overruling the
objection.‖); Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993)
(stating that ineffective assistance of counsel is not shown when there is no
showing that a ruling on any of the pretrial motions would have changed anything
in the case); see also Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App.
1998) (stating that to satisfy Strickland when counsel failed to file a motion to
suppress, appellant was obliged to show that the motion would have been
granted); Muniz v. State, 851 S.W.2d 238, 258 (Tex. Crim. App.) (stating that the
failure to object to admissible evidence is not ineffective assistance of counsel),
cert. denied, 510 U.S. 837 (1993).
25
Because the record reflects that Tarrant County has an open-file policy—
giving defense counsel access to all of the evidence of which the State was
aware—and because under article 38.37, section 2 of the code of criminal
procedure, the extraneous offenses were admissible, Brown cannot show that his
defense counsel‘s failure to file a motion in limine with regard to the extraneous
offenses constituted ineffective assistance. And because the record is silent as
to counsel‘s reason for failing to object and because Brown has not shown that
the trial court would have erred by overruling an objection to the extraneous
offense evidence, Brown has failed to rebut the presumption that his trial counsel
acted reasonably. See Thompson, 9 S.W.3d at 814.
Finally, although Brown argues that trial counsel was ineffective in failing to
suppress the seizure of his cell phones, Detective Savage testified at the
suppression hearing that no text messages were recovered from Brown‘s cell
phones. Further, even assuming that Brown‘s confessions stemmed from an
unlawful cell phone seizure, the jury could have reached the same conclusion
that it did without considering Brown‘s confessions. That is, the jury could have
chosen to believe M.W.‘s testimony about the indecent touching and R.W.‘s
testimony about the text messages that resulted in Brown‘s appearance at
M.W.‘s school. And it could have chosen to believe Detective Savage‘s
testimony that Brown had a phone in his hand when he approached Brown‘s
truck at the school on March 24—as had been arranged via text message with
R.W. pretending to be M.W.—and Brown‘s audiotaped statement on March 24,
26
prior to Detective Savage‘s taking his cell phone, that Brown was at the school to
talk to M.W., to confirm the portions of M.W.‘s testimony that it found credible and
thereby convict Brown of the two counts of indecency.14 See, e.g., Bazanes v.
State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010, pet. ref‘d) (stating that a
complainant‘s testimony alone is sufficient to support a conviction for indecency
with a child). Therefore, Brown has failed to show that there is a reasonable
probability that, but for counsel‘s alleged unprofessional error, the result of the
proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068. We overrule Brown‘s third issue.
VI. Conclusion
Having overruled all of Brown‘s issues, we affirm the trial court‘s judgment.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 2, 2012
14
The audiotape of the March 24 conversation reflects that Detective
Savage approached the vehicle, greeted Brown by his first name, introduced
himself as a detective with the Arlington Police Department, and told Brown that
he needed to talk with him. Brown replied, ―Alright.‖ Detective Savage asked
Brown what he was ―doing up here today.‖ Brown replied that he was there to
talk to M.W.
27