COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00147-CR
ROBERT LEE ADAMS, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR13412
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MEMORANDUM OPINION1
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A jury convicted Appellant Robert Lee Adams, Jr., of continuous sexual
abuse of two children, K.S. and J.B., and assessed his punishment at 99 years’
confinement. The trial court sentenced him accordingly. Appellant did not file a
Motion for New Trial.
1
See Tex. R. App. P. 47.4.
Appellant brings a single issue on appeal, arguing that he was deprived of
effective assistance of counsel as guaranteed by the Sixth Amendment to the
United States Constitution by trial counsel’s (1) failing to object to the
prosecutor’s improper argument in opening statement; (2) failing to challenge the
constitutionality of Section 38.37 of the Texas Code of Criminal Procedure;
(3) failing to object to the trial court’s admission of extraneous offenses without
completing the proper rule 403 balancing test; and (4) failing to object to the
testimony of Beth Mohan “based on corpus delicti.” He also suggests the trial
court reversibly erred in failing to conduct the rule 403 balancing test. Appellant
summarizes his argument by stating, “The evidence that was admitted because
of the failure to object was prejudicial to [Appellant] and essentially put him on
trial for offenses outside the purview of the case before the court.”
Applying the appropriate standards of review to the record before us, we
overrule Appellant’s sole issue.
Brief Facts
Because Appellant does not challenge the sufficiency of the evidence to
support his conviction, we shall not detail the instances of sexual abuse
described in the record. We shall address the facts as they relate to Appellant’s
complaints of ineffective assistance of counsel.
A nurse practitioner at the Cook Children’s pediatric clinic in Granbury saw
a 10-year-old female patient named K.S., who told her that her stepdad,
Appellant, had molested her over a period of time. The child described oral,
2
anal, and genital sexual abuse. Investigation revealed that Appellant had also
been abusing K.S.’s young cousin J.B. Both K.S. and J.B. testified at trial. The
jury also heard that Appellant had sexually abused three other children and that
he was a registered sex offender because of a conviction in Colorado. This
extraneous-offense evidence was admitted under Article 38.37 of the Texas
Code of Criminal Procedure.
Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that his counsel’s representation was deficient
and that the deficiency prejudiced the defense.2 An ineffective-assistance claim
must be “firmly founded in the record,” and “the record must affirmatively
demonstrate” the meritorious nature of the claim.3 Direct appeal is usually an
inadequate vehicle for raising an ineffective-assistance-of-counsel claim because
the record is generally undeveloped.4 In evaluating the effectiveness of counsel
under the deficient-performance prong, we look to the totality of the
representation and the particular circumstances of each case.5 The issue is
2
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez
v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999).
3
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
4
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012);
Thompson, 9 S.W.3d at 813–14.
5
Thompson, 9 S.W.3d at 813.
3
whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. 6 Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct was not deficient.7
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record. 8 Trial counsel “should
ordinarily be afforded an opportunity to explain her actions before being
denounced as ineffective.”9 If trial counsel is not given that opportunity, we
should not conclude that counsel’s performance was deficient unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.”10 As the Texas Court of Criminal Appeals has explained,
A claimant must generally prove deficiency using affirmative
evidence in the trial record sufficient to overcome the presumption
that the challenged action was sound trial strategy. However, “when
no reasonable trial strategy could justify the trial counsel’s conduct,
counsel’s performance falls below an objective standard of
reasonableness as a matter of law, regardless of whether the record
6
See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415
S.W.3d at 307.
7
Nava, 415 S.W.3d at 307–08.
8
Menefield, 363 S.W.3d at 593; Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
9
Menefield, 363 S.W.3d at 593.
10
Nava, 415 S.W.3d at 308.
4
adequately reflect[s] the trial counsel’s subjective reasons for act[ing]
as [he] did.”11
State’s Opening Statement
Appellant argues trial counsel rendered ineffective assistance of counsel
by failing to object to the State’s Opening Statement informing the jury that
[f]rom the doctor’s office, [K.S.] was taken to the Children’s
Advocacy Center, where she was interviewed by a specially-trained
forensic interviewer. You’re not going to hear that interview today,
because it is hearsay and inadmissible under the rules of evidence.”
He argues that the argument did not fall within the permissible areas of jury
argument as explained by the Texas Court of Criminal Appeals.12 The argument
was manifestly improper, he argues, because
[t]he prosecutor was attempting to inform the jury that there was a
paramount piece of evidence that she had seen and which helped in
their investigation, but due to the rules of evidence, she could not
introduce it at trial.
After a close examination of the entire record, we fail to see what
“paramount piece of evidence” Appellant was talking about. It was not improper
for the prosecutor to present a timeline of the investigation into the allegations
against Appellant. It is hard to understand why the prosecutor informed the jury
that the substance of the interview was hearsay. And, in an abundance of
caution, we shall examine the statement as a suggestion that there was harmful
11
Ex parte Bryant, 448 S.W.3d 29, 39–40 (Tex. Crim. App. 2014) (citations
and internal quotation marks omitted).
12
Todd v. State, 598 S.W.2d 286, 296–297 (Tex. Crim. App. [Panel Op.]
1980).
5
evidence the jury would not hear, as Appellant contends. Appellant suggests the
harm lies in the possibility that
if the error would have been preserved, the State’s argument would
have been submitted as improper to the Court of Appeals. The
proper standard of review is whether, in light of the record as a
whole, there is a reasonable possibility the argument complained of
might have contributed to appellant’s conviction or punishment.
The jury heard J.B. testify about the events forming the basis of the
criminal allegations against Appellant. They heard her testify about being taken
to the Child Advocacy Center and about being interviewed there. They heard the
testimony of various other witnesses regarding the investigation of the offense
and the surrounding circumstances. They heard Appellant was a registered sex
offender and that he had sexually abused other children. Applying the
appropriate standard of review, trial counsel’s decision not to object to the
complained-of State’s opening statement was not unreasonable trial strategy.
Article 38.37 Code of Criminal Procedure
Appellant complains, in part, that trial counsel rendered ineffective
assistance to him because he did not challenge the constitutionality of article
38.37.13 The complaint on appeal appears to be aimed at subsection 2(b) of
38.37.14 As our sister court in Houston explains,
Code of Criminal Procedure article 38.37, section 1, applicable in
cases in which the defendant is charged with continuous sexual
13
Tex. Code Crim. Proc. Ann. art. 38.37 (West 2018).
14
Tex. Code Crim. Proc. Ann. art. 38.37, § 2(b).
6
abuse of a child, provides that, notwithstanding Rule of Evidence
404, evidence that the defendant has committed other crimes,
wrongs, or acts against the child who is the victim of the charged
offense shall be admitted for its bearing on relevant matters
including (1) the state of mind of the defendant and the child and
(2) the previous and subsequent relationship between the defendant
and the child. TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b). In
2013, the Texas Legislature amended article 38.37 to add sections 2
and 2-a. Section 2 provides that in trials for certain sexual offenses,
including continuous sexual abuse of a child:
Notwithstanding Rules 404 and 405, Texas Rules of
Evidence, and subject to Section 2-a, evidence that the
defendant has committed a separate offense described
by Subsection (a)(1) or (2) [including an offense of
indecency with a child] may be admitted in the trial of an
alleged offense described by Subsection (a)(1) or (2)
[including a trial for continuous sexual abuse] for any
bearing the evidence has on relevant matters, including
the character of the defendant and acts performed in
conformity with the character of the defendant.15
Section 2-a provides a procedural safeguard and requires:
Before evidence described by Section 2 may be introduced, the trial
judge must:
(1) determine that the evidence likely to be admitted at
trial will be adequate to support a finding by the jury
that the defendant committed the separate offense
beyond a reasonable doubt; and
(2) conduct a hearing out of the presence of the jury for
that purpose.
15
Caston v. State, No. 01-16-00260-CR, 2017 WL 3298320, *5 (Tex.
App.—Houston [1st Dist.] Aug. 3, 2017) (citing Code of Criminal Procedure art.
38.37, § 2(b); citing also Belcher v. State, 474 S.W.3d 840, 844 (Tex. App.—
Tyler 2015, no pet.)). (noting that section 2(b) allows admission of evidence that
defendant has committed certain sexual offenses against children who are not
complainants of charged offense).
7
Outside the presence of the jury, the trial court held a pretrial hearing on
the admissibility of extraneous-offense evidence the State intended to offer
before the jury pursuant to article 38.37. The trial court made the appropriate
determinations mandated by the statute. Appellant’s trial counsel did not
challenge the constitutionality of the statute, nor was he obligated to. As to the
constitutionality of the statute, our sister court in Houston has explained,
The Court of Criminal Appeals has not addressed the
constitutionality of section 2(b). However, several of the
intermediate courts of appeals, including this Court, have addressed
constitutional challenges to this statute and have uniformly found
that section 2(b) is constitutional. See, e.g., Buxton v. State, No. 01-
15-00857-CR, --- S.W.3d ----, ---- - ----, 2017 WL 2872490, at *14–17
(Tex. App.—Houston [1st Dist.] July 6, 2017, no pet. h.); Bezerra v.
State, 485 S.W.3d 133, 139–40 (Tex. App.—Amarillo 2016, pet.
ref’d); Robisheaux v. State, 483 S.W.3d 205, 213 (Tex. App.—Austin
2016, pet. ref’d); Harris, 475 S.W.3d at 403; Belcher, 474 S.W.3d at
847; see also Baez v. State, 486 S.W.3d 592, 599–600 (Tex. App.—
San Antonio 2015, pet. ref’d) (holding that section 2(b) does not
violate ex post facto provision of United States Constitution); Alvarez
v. State, 491 S.W.3d 362, 367–70 (Tex. App.—Houston [1st Dist.]
2016, pet. ref’d) (holding that defendant failed to preserve due
process challenge to section 2(b), but noting that all Texas cases
“addressing the constitutionality of Article 38.37 have held that it is
constitutional”).16
Indeed, this court has specifically addressed and upheld the
constitutionality of sections 1 and 2 of article 38.37.17 Nothing in our research
suggests a challenge to the constitutionality of this provision would be
16
Caston, 2017 WL 3298320, at *6.
17
Gregg v. State, No. 02-16-00117-CR, 2016 WL 7010931, at *5 (Tex.
App.—Fort Worth Dec. 1, 2016, pet. ref’d) (mem. op., not designated for
publication).
8
successful. Nor has Appellant explained to us why such a challenge would be
successful. We find no requirement that counsel do a useless act to
demonstrate his effectiveness.18
Rule 403 Balancing Test
On appeal, Appellant argues that trial counsel rendered ineffective
assistance by failing to request a rule 403 balancing test regarding extraneous-
offense evidence involving three other children, M.T., E.H., and C.E. He also
argues that the trial court reversibly erred in failing to perform such a balancing
test sua sponte.
Texas Rule of Evidence 403 provides:
The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, or needlessly presenting cumulative evidence.19
A trial court’s rule 403 decision to admit extraneous-offense evidence is
reviewed for an abuse of discretion.20 A reviewing court will “reverse the trial
court’s judgment [based on the trial court’s rule 403 analysis] rarely . . . because
18
See, e.g., In re G.P., 503 S.W.3d 531, 535 (Tex. App.—Waco 2016, pet.
denied); Hernandez v. State, 663 S.W.2d 5, 8 (Tex. App.—El Paso 1983, pet.
dism’d) (“[I]t is a settled principle of law that one is not penalized for the failure to
perform a useless act.”).
19
Tex. R. of Evid. 403.
20
See Patterson v. State, Nos. 02-10-00350-CR, 02-10-00351-CR, 2012
WL 171115, at *7 (Tex. App.—Fort Worth Jan. 19, 2012, no pet.) (mem. op., not
designated for publication).
9
the trial court is in a superior position to gauge the impact of the relevant
evidence.”21
When extraneous-offense evidence is offered, the trial court must conduct
a rule 403 analysis that includes the following nonexclusive factors: (1) the
probative value of the evidence; (2) the potential to impress the jury in some
irrational, yet indelible, way; (3) the time needed to develop the evidence; and
(4) the proponent's need for the evidence.22 In Thompson v. State,23 an
unpublished opinion from our sister court in Corpus Christi, the court recognized
that in a child sexual abuse case, the proponent’s need for the extraneous-
offense evidence to combat the defendant’s challenge to the complainant’s
credibility is considered in determining admissibility.24 As this court has noted,
this language echoes the Montgomery test for admissibility of extraneous acts of
misconduct offered in the guilt phase of a trial.25
21
See Thompson v. State, No. 13-13-00558-CR, 2014 WL 4049892, at *4
(Tex. App.—Corpus Christi Aug. 14, 2014, pet. ref’d) (mem. op., not designated
for publication).
22
See Gonzales v. State, 477 S.W.3d 475, 481 (Tex. App.—Fort Worth
2015, pet. ref’d).
23
Thompson, 2014 WL 4049892, at *6.
24
Id.; see also Tex. R. Evid. 404(b); Alba v. State, 905 S.W.2d 581, 585
(Tex. Crim. App. 1995), cert. denied, 516 U.S. 1077 (1996).
25
Gonzales, 477 S.W.3d at 481; Montgomery v. State, 810 S.W.2d 372,
389–90 (Tex. Crim. App. 1991) (op. on reh’g).
10
At trial, Appellant challenged the veracity of the complainants, the
sufficiency of the evidence, and the quality of the investigation. The source of
the evidence regarding Appellant’s having committed extraneous offenses and of
his status as a registered sex offender as a result of a Colorado conviction was
Appellant’s pretrial statement made during the investigation. Additionally, a
certified copy of the Colorado judgment was admitted as State’s Exhibit 3.
Viewing the record in light of the Montgomery26 standard, we cannot conclude
the evidence would not have withstood a rule 403 inquiry. Appellant has not
shown and, based on the record as a whole, this court cannot conclude, that trial
counsel’s decision not to make further objection under rule 403 was not a
legitimate trial strategy or that his conduct that was “so outrageous that no
competent attorney would have engaged in it.”27 Nor can we conclude that the
trial court’s not announcing a rule 403 balancing constituted reversible error,
based on the record before us.
Corpus Delicti Rule
Appellant argues that trial counsel rendered ineffective assistance by
failing to object under the corpus delicti rule to Beth Mohan’s testimony that
Appellant committed separate sexual-abuse offenses against C.E., a child not
26
Montgomery, 810 S.W.2d at 389–90.
27
Nava, 415 S.W.3d at 308.
11
named in the indictment. Ms. Mohan testified that in 2005, Appellant confessed
to abusing C.E.
The jury heard this testimony, as well as evidence that Appellant later
abused four more children: E.H., M.T., K.S., and J.B.
The Texas Court of Criminal Appeals has explained,
The corpus delicti rule is one of evidentiary sufficiency affecting
cases in which there is an extrajudicial confession. The rule states
that, “[w]hen the burden of proof is ‘beyond a reasonable doubt,’ a
defendant’s extrajudicial confession does not constitute legally
sufficient evidence of guilt absent independent evidence of the
corpus delicti.” To satisfy the corpus delicti rule, there must be
“evidence independent of a defendant’s extrajudicial confession
show[ing] that the ‘essential nature’ of the charged crime was
committed by someone.”
The purpose of this judicially fashioned rule is to ensure “that
a person would not be convicted based solely on his own false
confession to a crime that never occurred.” 28
Appellant does not explain how the corpus delicti rule applies to the
circumstances of this case, and we fail to see how it applies. Appellant was not
convicted based on his judicial confession to a crime that never occurred. Nor
does Appellant contend that the sexual abuse allegations charged in the
indictment in the instant case were the subject of a false judicial confession by
him.
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that his counsel’s representation was deficient
28
Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim. App. 2015) (citations
omitted).
12
and that the deficiency prejudiced the defense.29 An ineffective-assistance-of-
counsel claim must be “firmly founded in the record,” and “the record must
affirmatively demonstrate” the meritorious nature of the claim.30 Direct appeal is
usually an inadequate vehicle for raising an ineffective-assistance-of-counsel
claim because the record is generally undeveloped.31 In evaluating the
effectiveness of counsel under the deficient-performance prong, we look to the
totality of the representation and the particular circumstances of each case. 32
The issue is whether counsel’s assistance was reasonable under all the
circumstances and prevailing professional norms at the time of the alleged
error.33 Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct was not
deficient.34
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
29
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Coffman v. State, 465
S.W.3d 797, 800 (Tex. App.—Fort Worth 2015, no pet.); Nava, 415 S.W.3d at
307; Hernandez, 988 S.W.2d at 770 n.3.
30
Thompson, 9 S.W.3d at 813.
31
Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14.
32
Thompson, 9 S.W.3d at 813.
33
Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at
307.
34
Nava, 415 S.W.3d at 307–08.
13
for failing to do something do not appear in the record. 35 Trial counsel “should
ordinarily be afforded an opportunity to explain her actions before being
denounced as ineffective."36 If trial counsel is not given that opportunity, we
should not conclude that counsel’s performance was deficient unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.”37 As the Texas Court of Criminal Appeals has explained,
A claimant must generally prove deficiency using affirmative
evidence in the trial record sufficient to overcome the presumption
that the challenged action was sound trial strategy. However, when
no reasonable trial strategy could justify the trial counsel’s conduct,
counsel’s performance falls below an objective standard of
reasonableness as a matter of law, regardless of whether the record
adequately reflects the trial counsel’s subjective reasons for acting
as he did.38
Applying the appropriate standard of review, we hold trial counsel’s
performance does not constitute a denial of effective assistance. We overrule
Appellant’s complaints on appeal and affirm the trial court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
35
Menefield, 363 S.W.3d at 593; Mata, 226 S.W.3d at 432.
36
Menefield, 363 S.W.3d at 593.
37
Nava, 415 S.W.3d at 308.
38
Coffman, 465 S.W.3d at 800–801 (citing Ex parte Bryant, 448 S.W.3d at
39–40 (citations and internal quotation marks omitted)).
14
PANEL: MEIER and PITTMAN, JJ.; and LEE ANN DAUPHINOT (Senior Justice,
Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 26, 2018
15