Ricardo Romano v. the State of Texas

Opinion issued May 20, 2021

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-18-00538-CR
———————————
RICARDO ROMANO, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 6
Harris County, Texas
Trial Court Case No. 2167075

MEMORANDUM OPINION

Ricardo Romano was charged by information with the misdemeanor offense

of indecent exposure. See TEX. PENAL CODE § 21.08. The information alleged that

Romano “unlawfully, expose[d] his genitals to [police officer] R. Gardiner with the

intent to arouse and gratify [Romano’s] sexual desire . . . and [Romano] was
reckless about whether another person was present who would be offended and

alarmed by the act, to-wit: [Romano] masturbated in a park, a public place.”

Romano waived his right to a jury. The trial court found Romano guilty of

the charged offense of indecent exposure and sentenced him to three days in jail

and assessed a $1,000 fine. Because he had previously been convicted of indecent

exposure, Romano was ordered to register as a sex offender for ten years. See TEX.

CODE CRIM. PROC. arts. 62.001(5)(F), 62.101(b).

On appeal, Romano raised three issues, asserting: (1) the evidence was not

sufficient to show either that he had exposed his genitals with intent to arouse or

gratify the sexual desire of any person or that he had acted recklessly; (2) the trial

court erred in admitting Gardiner’s testimony that he did not believe Romano’s

claim that Romano had exposed his penis to urinate, not to masturbate; and (3)

Romano received ineffective assistance of counsel during the guilt-innocence

phase of trial.

On original submission, we reversed the trial court’s judgment and rendered

a judgment of acquittal after sustaining Romano’s challenge to the sufficiency of

the evidence on the basis that the evidence was not sufficient to show, beyond a

reasonable doubt, that Romano had acted recklessly. Romano v. State, 01-18-

00538-CR, 2019 WL 4936040, at *6 (Tex. App.—Houston [1st Dist.] Oct. 8,

2019) (mem. op., not designated for publication), rev’d, 610 S.W.3d 30, 31 (Tex.

2
Crim. App. 2020) (Romano I). The Court of Criminal Appeals granted the State’s

petition for discretionary review and held that the evidence was sufficient to

support the recklessness element. Romano v. State, 610 S.W.3d 30, 36 (Tex. Crim.

App. 2020) (Romano II). The court reversed our judgment and remanded the case

to us to consider Romano’s remaining issues. See id.

After considering Romano’s remaining issues, we affirm.

Background

At trial, the State offered the testimony of Sergeant R. Gardiner, the officer

with the Houston Police Department who arrested Romano. The State also offered

video from Gardiner’s body camera related to events surrounding the arrest.

Gardiner testified that, on August 23, 2017, he was working as a mounted

patrol officer in an area of Memorial Park known as the Picnic Loop. At

approximately 10:30 a.m., he positioned himself and his horse in a wooded area

behind trees where he was “mainly concealed” from view. Through an opening in

the trees, Gardiner could see a nearby empty parking lot, picnic tables, and a bike

trail. When asked if there were other people in the area, Gardiner testified, “There

were some cars passing by and some people on bicycles, yes.” Gardiner stated that

he was watching “for certain crimes, I would look for mainly cars circling the area

and cars parking and things of that nature in the back of the park.”

3
 Around noon, Romano’s car turned off the park road into the parking lot.

Gardiner saw Romano “park near where I was.” Romano caught his attention

because “it was suspicious” as “there’s very few reasons to park back there.” The

video from Gardiner’s body camera shows Romano’s car entering the parking lot,

but branches and leaves obstruct the camera’s view of the car once it is parked.

Gardiner testified that he observed Romano “get out of his car and walk

around to the back of his car.” Gardiner could see the “side” of Romano. Gardiner

stated that he saw Romano pull the top of his “jogging shorts” down with one hand

and “start masturbating” with the other hand. By “masturbating,” Gardiner testified

that he meant he saw Romano “stroking his penis with his hand.”

On the video, Gardiner can be heard radioing his partner, stating, “[C]ome

this way, he’s jacking off.” Gardiner rode his horse out of the wooded area and

over to Romano to arrest him. Gardiner’s partner also rode his horse over to the

scene. When questioned, Romano denied masturbating, claiming that he had been

“trying to use the bathroom.”

At trial, Romano testified that he had stopped in the parking lot to review

some business papers before heading downtown. He had needed to urinate, so he

had gotten out of his car and pulled out his penis. Romano claimed that he did not

urinate because Gardiner emerged from the trees on his horse before he had a

chance to urinate.

4
 Regarding his need to urinate, Romano told the officers that he had drunk a

lot of water from a large water jug found inside his car. Gardiner noted that he did

not see any urine on the ground and that there was a public restroom across the

street from the parking lot. When asked why he did not use the public restroom,

Romano said that he did not like those restrooms.

After the officers approached Romano, Gardiner’s body camera continued to

record the officers’ interaction with Romano for approximately 38 minutes. The

video shows cars, pedestrians, and a bicyclist passing by. During that time, the

police officers obtained Romano’s personal information and waited for a patrol

unit to transport Romano to jail. At no point did Romano ask to use the restroom.

Romano was charged by information with the offense of indecent exposure.

The information alleged that Romano had “unlawfully, expose[d] his genitals to R.

Gardiner with the intent to arouse and gratify [Romano’s] sexual desire . . . and

[Romano] was reckless about whether another person was present who would be

offended and alarmed by the act, to-wit: [Romano] masturbated in a park, a public

place.” See TEX. PENAL CODE § 21.08(a). The information also contained the

following extraneous-offense allegation: “Before the commission of the offense

alleged above, on February 25, 1999, in Cause No. 9810010, in the County

Criminal Court at Law No. 8 of Harris County, Texas, [Romano] was convicted of

the misdemeanor offense of Indecent Exposure.”

5
 The case was tried to the bench. At the end of the guilt-innocence phase, the

trial court found Romano guilty of the charged offense of indecent exposure.

During the punishment phase, the court found the enhancement allegation to be

true. The court sentenced Romano to three days in jail and assessed a $1,000 fine.

Because this was his second violation of the indecent-exposure statute, the trial

court ordered Romano to register as a sex offender for ten years. See TEX. CODE

CRIM. PROC. arts. 62.001(5)(F), 62.101(b). Romano did not file a motion for new

trial.

Romano appealed, raising three issues. In his first issue, Romano challenged

the sufficiency of the evidence to support the judgment of conviction, raising two

grounds. Romano did not dispute that he exposed his genitals, but he claimed that

the evidence was insufficient to establish the required element that he exposed his

genitals with intent to arouse or gratify the sexual desire of any person.

Specifically, he claimed that the evidence was not sufficient to show that he

exposed his genitals to masturbate rather than to urinate. Romano also asserted that

the evidence was insufficient to establish the element that he was reckless about

whether another person was present who would be offended or alarmed by the act.

On original submission, we reversed the judgment of conviction and

rendered a judgment of acquittal based on our holding that the evidence was

insufficient to show, beyond a reasonable doubt, that Romano had been reckless

6
about whether another person was present who would be offended or alarmed by

the exposure of his genitals. Romano I, 2019 WL 4936040, at *6. After granting

review, the Court of Criminal Appeals held that the evidence was sufficient to

support a finding beyond a reasonable doubt that Romano had acted recklessly.

Romano II, 610 S.W.3d at 36. The court held that we had erred by holding

otherwise. Id. The court reversed our judgment of acquittal and remanded the case

to us to consider Romano’s remaining issues. Id.

Sufficiency of the Evidence

We begin by considering Romano’s remaining argument in his first issue:

that the evidence was insufficient to show that he exposed his genitals with the

intent to arouse or gratify the sexual desire of any person.

A. Standard of Review

We review a challenge to the sufficiency of the evidence under the standard

enunciated in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Winfrey v. State,

393 S.W.3d 763, 768 (Tex. Crim. App. 2013). Pursuant to the Jackson standard,

we “consider all the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, a

rational juror could have found the essential elements of the crime beyond a

reasonable doubt.” Alfaro-Jimenez v. State, 577 S.W.3d 240, 243–44 (Tex. Crim.

App. 2019) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007));

7
see Jackson, 443 U.S. at 319. We can hold evidence to be insufficient under the

Jackson standard when (1) the record contains no evidence, or merely a

“modicum” of evidence, probative of an element of the offense, or (2) the evidence

conclusively establishes a reasonable doubt. Britain v. State, 412 S.W.3d 518, 520

(Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 320).

The sufficiency-of-the-evidence standard gives full play to the responsibility

of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An

appellate court presumes that the factfinder resolved any conflicts in the evidence

in favor of the verdict and defers to that resolution, provided that the resolution is

rational. See Jackson, 443 U.S. at 326.

In our review of the record, direct and circumstantial evidence are treated

equally; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt. Hooper, 214 S.W.3d at 13. Finally, “[e]ach fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative

force of all the incriminating circumstances is sufficient to support the conviction.”

Id.

8
B. Analysis

A person commits the offense of indecent exposure when he “exposes his

anus or any part of his genitals with intent to arouse or gratify the sexual desire of

any person, and he is reckless about whether another is present who will be

offended or alarmed by his act.” TEX. PENAL CODE § 21.08(a). The requisite

specific intent to arouse or gratify the sexual desire of any person can be inferred

from an accused’s conduct, remarks, and all surrounding circumstances. See

Turner v. State, 600 S.W.2d 927, 929 (Tex. Crim. App. [Panel Op.] 1980); Cate v.

State, 124 S.W.3d 922, 931 (Tex. App.—Amarillo 2004, pet. ref’d). Here, the State

asserts that Gardiner’s testimony that he saw Romano masturbating—that is, he

saw Romano “stroking his penis with his hand”—was sufficient to establish,

beyond a reasonable doubt, that Romano exposed himself with the intent to arouse

or gratify his own sexual desire.

In his brief, Romano states that, “[i]f he exposed his penis to urinate, he did

not intend to arouse or gratify the sexual desire of any person. However, if he

exposed his genitals to masturbate, he intended to arouse or gratify someone’s

sexual desire.” Romano asserts that “[t]he resolution of this element of the offense

turned on whether the evidence was sufficient to establish that he was

masturbating.” Romano claims that the evidence was not sufficient to establish that

fact.

9
 Romano acknowledges that Gardiner testified that he saw Romano

masturbating. Romano attacks the credibility of Gardiner’s testimony by pointing

to evidence that Gardiner remarked, at the scene, that he saw Romano “messing

with” his penis and that it “looked like” Romano was masturbating. Romano

contends that Gardiner was too far away to discern whether he was urinating or

masturbating and claims that Gardiner’s “sight line. . . was obscured by tree

branches and bushes.” Romano posits that Gardiner’s remarks at the scene that

Romano was “‘messing with’ his penis and that it ‘looked like’ he was

masturbating are equally consistent with removing his penis from his shorts and

holding it to urinate.”

Romano also claims that the video from Gardiner’s body camera “rebuts”

Gardiner’s testimony. He claims that the video “shows that Gardiner was too far

away from [Romano] to see what he was doing and that Gardiner could not have

seen that [Romano] was masturbating, even if he was.” Romano asserts that the

video shows that “it was impossible for [Gardiner] to determine that [Romano] was

masturbating” because “the tree branches and bushes obscured Gardiner’s view.”

Romano concludes, “[w]ith the benefit of the video, the Court cannot credit

Gardiner’s testimony over what the video actually depicts.”

We note that Romano’s analysis fails to consider the entirety of the

evidence, and it does not properly view the evidence in the light most favorable to

10
the verdict. At trial, Gardiner testified that he was “sure” that Romano was

masturbating. He stated that he saw Romano pull the top of his jogging shorts

down with one hand and “start masturbating” with the other hand. Gardiner

testified, “I saw that he was not using the bathroom, that he was masturbating.”

Gardiner explained that by stating that he saw Romano masturbating, he meant that

he saw Romano “stroking his penis with his hand.”

Gardiner also testified that it was a clear day, and he confirmed that, even

though he was concealed behind trees, he had “a good vantage point and line of

sight” of Romano because “there was an opening in the wood line where I was

looking.” The trial court, as the factfinder, could have reasonably inferred that the

video did not necessarily rebut Gardiner’s testimony because the body camera did

not record from Gardiner’s eye level. In other words, the fact that the camera’s

view was obscured by branches did not necessarily mean that Gardiner’s view was

likewise obscured. And, based on what is depicted in the video and the video’s

quality, it was the trial court’s prerogative to weigh the evidence and to determine

whether Gardiner was close enough to Romano to see him engage in the act of

masturbation.

In addition, other evidence supported a finding that Romano did not expose

his penis to urinate. Gardiner testified that he did not see urine on the ground in the

parking lot. Romano acknowledged that he had not urinated when he saw Gardiner

11
ride his horse out of the wooded area. The evidence also showed that there was a

public restroom across the street from where Romano parked his car. And, during

the final 38 minutes of the video, Romano did not ask to use the restroom despite

indicating to the officers that he had been drinking a lot of water from a large jug

of water in his car.

In our review, we are mindful that it is the exclusive role of the factfinder

“to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences[.]” Buentello v. State, 512 S.W.3d 508, 516 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d) (quoting Jackson, 443 U.S. at 319). We “may

not re-evaluate the weight and credibility of the record evidence and thereby

substitute our judgment for that of the fact-finder.” Dewberry v. State, 4 S.W.3d

735, 740 (Tex. Crim. App. 1999). Even contradictory evidence in the record will

not diminish the sufficiency of evidence that otherwise supports a factfinder’s

verdict. Buentello, 512 S.W.3d at 516. By returning a guilty verdict, we must infer

that the trial court believed Gardiner’s testimony that he saw Romano

masturbating. We defer to that determination. See Jackson, 443 U.S. at 318–19.

Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational factfinder could have found, beyond a reasonable doubt, that

Romano exposed his genitals with the intent to arouse or gratify his sexual desire.

See id.; see also TEX. PENAL CODE § 21.08(a) (providing elements of offense).

12
Accordingly, we hold that the evidence was sufficient to support the judgment of

conviction.

We overrule Romano’s remaining ground raised in his first issue.

Evidentiary Challenge

In his second issue, Romano contends that the trial court erred in admitting

Gardiner’s testimony that Gardiner did not believe Romano’s claim at the scene

that he was urinating and not masturbating.

A. Standard of Review

We review a trial court’s ruling on the admission of evidence for an abuse of

discretion. Colone v. State, 573 S.W.3d 249, 263–64 (Tex. Crim. App. 2019). A

trial court “abuses its discretion when it acts without reference to any guiding rules

and principles or acts arbitrarily or unreasonably.” Rhomer v. State, 569 S.W.3d

664, 669 (Tex. Crim. App. 2019); see Martinez v. State, 327 S.W.3d 727, 736

(Tex. Crim. App. 2010) (stating that trial court does not abuse its discretion unless

its determination “lies outside the zone of reasonable disagreement”). We uphold

the trial court’s ruling if it is reasonably supported by the record and correct under

any theory of law applicable to the case. See Willover v. State, 70 S.W.3d 841, 845

(Tex. Crim. App. 2002).

13
B. Analysis

During direct examination, the State questioned Officer Gardiner regarding

his arrest of Romano:

Q. Did you tell him what he was under arrest for?

A. Yes; Indecent Exposure.

Q. How did the defendant respond to this news?

A. He denied it and said that he was trying to use the bathroom.

Q. Did you believe this?

A. No.

[Defense counsel]: Objection, Your Honor, to his belief.

THE COURT: Overruled.

Q. [By the prosecutor] Why didn’t you believe this?

A. Because I saw him; and I saw that he was not using the bathroom,
that he was masturbating.

Q. Were there any other clues to indicate that he was not using the
restroom?

A. There was no urine on the ground, and there was also a restroom
directly across the street from where we were at.

Q. So, what substance was the ground composed of? You said this
was a parking lot. Was it sand? Can you just give me a description?

A. It was a concrete, like a gravel-type of—well, not gravel but a
concrete parking lot.

Q. Would you have been able to see any liquid on the ground?

14
 A. Yes.

Romano contends that, because “[a] witness may not give an opinion

regarding the truth or falsity of another witness’s testimony,” the trial court abused

its discretion in admitting Gardiner’s testimony that he did not believe Romano’s

claim that he was urinating and not masturbating. See Blackwell v. State, 193

S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“It is generally

improper for a witness to offer a direct opinion as to the truthfulness of another

witness and such opinion is therefore inadmissible evidence.”). Romano also cites

Rule of Evidence 702, which provides, in part, that “[a] witness who is qualified as

an expert by knowledge, skill, experience, training, or education may testify in the

form of an opinion or otherwise if the expert’s . . . specialized knowledge will help

the trier of fact to understand the evidence or to determine a fact in issue.” TEX. R.

EVID. 702. Romano contends that “[p]olice opinion testimony that [Romano] was

not telling the truth, and by inference that the police believed that he committed

indecent exposure, was inadmissible under Rule of Evidence 702.” Romano further

asserts that “Gardiner was not qualified as an expert on masturbation, urination, or

determining whether a person is truthful. He could not properly give an expert

opinion that [Romano] was untruthful when he denied masturbating and said that

he was urinating.”

15
 The State correctly counters that Rule 702 does not apply because Gardiner,

although testifying as a police officer, was not testifying as an expert. Instead,

Gardiner was testifying about his perception of Romano’s conduct at the scene.

It is well established that “[b]oth lay and expert witnesses can offer opinion

testimony.” Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002). Under

Rule of Evidence 701, a lay witness can offer opinion testimony if his opinions or

inferences are rationally based on his perceptions and helpful to the clear

understanding of testimony or the determination of a fact in issue. Id. (citing TEX.

R. EVID. 701). Even a witness with specialized knowledge or experience may offer

lay opinion testimony if he testifies regarding events that he personally perceived.

Id. at 536. “Thus, although police officers have training and experience, they are

not precluded from offering lay testimony regarding events which they have

personally observed.” Id. Permissible testimony, drawn from the witness’s own

observations or experiences, can include opinions, beliefs, or inferences. Id. at 535.

Here, Gardiner testified that he witnessed Romano masturbating, that is, he

witnessed Romano stroking his penis. Romano also testified that, after he

approached Romano, he did not see urine on the ground. And he testified that there

was a public restroom across the street. Gardiner’s testimony that he did not

believe Romano’s claim that he exposed his penis to urinate was a permissible

belief drawn from his observation of Romano in the act of masturbation and the

16
surrounding circumstances. See James v. State, 335 S.W.3d 719, 725 (Tex. App.—

Fort Worth 2011, no pet.) (holding officer’s testimony—that defendant’s claim of

self-defense did not “make any sense” based on his observations of defendant’s

lack of injury and complainant’s injuries—was admissible under Rule 701). The

trial court could have reasonably concluded that Gardiner’s complained-of

testimony was admissible under Rule 701 because it was rationally based on his

perception of the act involved in the charged offense and was helpful to “the

determination of a fact in issue.” See TEX. R. EVID. 701; James, 335 S.W.3d at 725.

Even if the trial court abused its discretion by permitting Gardiner to testify

that he did not believe Romano’s claim that he exposed his penis to urinate, the

error was harmless. “The erroneous admission of evidence is non-constitutional

error.” Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018). Non-

constitutional errors are harmful, and thus require reversal, only if they affect an

appellant’s substantial rights. TEX. R. APP. PROC. 44.2(b). This means that an error

is reversible only when it has a substantial and injurious effect or influence in

determining the factfinder’s verdict. Gonzalez, 544 S.W.3d at 373. If we have a

fair assurance from an examination of the record, as a whole, that the error did not

influence the factfinder, or had but a slight effect, we will not overturn the

conviction. Id. In making this determination, we consider (1) the character of the

alleged error and how it might be considered in connection with other evidence;

17
(2) the nature of the evidence supporting the verdict; (3) the existence and degree

of additional evidence indicating guilt; and (4) whether the State emphasized the

complained of error. Id.

We have reviewed the entire record. Even in the absence of Gardiner’s

complained-of testimony, the trial court, as the factfinder, could have reasonably

concluded that Romano exposed his penis to masturbate and not to urinate. As

discussed, Gardiner testified that he was “sure” that he saw Romano masturbating.

He also testified that there was a public restroom nearby and that he did not see

urine on the ground near Romano. In addition, the video shows that after Gardiner

initiated Romano’s arrest, Romano did not ask to use the restroom for the

remaining 38 minutes that he was at the scene, despite indicating to the officers

that he had been drinking a lot of water from a large jug in his car. Also, the

complained-of testimony aside, the trial court could have reasonably assumed that

Gardiner did not believe Romano’s claim that he exposed his penis to urinate,

given that Gardiner arrested Romano for the offense of indecent exposure. See

Brown v. State, 580 S.W.3d 755, 767 (Tex. App.—Houston [14th Dist.] 2019, pet.

ref’d) (holding that improper admission of investigating officer’s opinion that

defendant was not credible was harmless error, in part, because officer called

district attorney’s office to accept charges against defendant after investigation and

“the jury could reasonably assume that [the investigating officer] did not find [the

18
defendant] credible and believed he was guilty of sexual assault”). Finally, we note

that the State did not emphasize the complained-of testimony.

Having reviewed the entire record, we have a fair assurance that the

admission of Gardiner’s testimony that he did not believe Romano’s claim that he

exposed himself to urinate had but a slight effect on the trial court’s verdict;

therefore, we do not find that Romano’s substantial rights were affected. We hold

that any error in admitting the complained-of testimony was harmless.

We overrule Romano’s second issue.

Ineffective Assistance of Counsel

In his third issue, Romano contends that his trial counsel rendered

ineffective assistance during the guilt-innocence phase of trial.

A. Legal Principles

To prevail on a claim of ineffective assistance of counsel, an appellant must

show the following: (1) counsel’s performance fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced the defense. See

Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694. In reviewing counsel’s performance, we look to the totality of the

representation to determine the effectiveness of counsel, indulging a strong

19
presumption that counsel’s performance falls within the wide range of reasonable

professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006).

Romano has the burden to establish both prongs by a preponderance of the

evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need

to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009).

B. Analysis

During the guilt-innocence phase of trial, testimony was elicited about

Romano’s 1999 conviction for indecent exposure. During cross-examination of

Gardiner, defense counsel attempted to show the reason why Romano had not

chosen to use the nearby public restroom but had instead chosen to urinate in the

parking lot. With respect to the public restroom, Gardiner testified that Romano

told him at the scene that he “didn’t want to go over there [to the public

restroom],” but Gardiner did not remember whether Romano had stated the reason

why he did not want to use the public restroom. Defense counsel followed-up by

asking Gardiner if he knew that Romano had been “previously arrested at a

bathroom in 1999,” and Gardiner responded affirmatively.

20
 On re-direct, the State asked Gardiner whether he knew, at the time he

arrested Romano, that Romano had a prior conviction for indecent exposure.

Gardiner answered that he did not know at that time but had learned later that day

about Romano’s prior indecent-exposure conviction.

Romano testified on cross-examination that his prior conviction was the

reason why he had not wanted to use the public restroom to urinate and had instead

chosen to urinate in the parking lot. The State asked Romano, “So, why were you

wanting [to] avoid the bathroom?” Romano had earlier indicated on direct

examination that he had seen a “news clip” about sexual activity in the Memorial

Park restrooms. He responded to the State’s question about the restroom as

follows: “Well, prior conviction. I just—I wanted nothing to do with that kind of

bathroom.”

On appeal, Romano asserts that his trial counsel’s performance was deficient

because counsel “mentioned, elicited, and failed to object to testimony” about

Romano’s 1999 conviction for indecent exposure, which, he claims, was

inadmissible during the guilt-innocence phase of trial under Rule of Evidence 609.1

1
A second violation of the indecent-exposure statute requires a defendant to register
as a sex offender for 10 years. See TEX. CODE CRIM. PROC. arts. 62.001(5)(F),
62.101(b). As mentioned, the information charging Romano with the instant
offense contained an enhancement paragraph alleging that Romano had been
convicted of indecent exposure in 1999. During the punishment phase, evidence of
Romano’s 1999 conviction for indecent exposure, including the judgment of
conviction, was admitted for the purpose of determining whether Romano would
21
See TEX. R. EVID. 609 (governing admissibility of prior criminal convictions for

impeachment purposes). Even if we assume, without deciding, that evidence of

Romano’s prior conviction was inadmissible, we cannot conclude, on this record,

that counsel’s performance was deficient.

Ordinarily, counsel should have an opportunity to explain his actions before

being held ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.

2003). Here, because no motion for new trial was filed, trial counsel did not have

an opportunity to explain his actions relating to the admission of evidence of

Romano’s prior conviction.

To satisfy the first prong of Strickland on a silent record, it must be apparent

“that counsel’s performance fell below an objective standard of reasonableness as a

matter of law, and that no reasonable trial strategy could justify trial counsel’s acts

or omissions, regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at

143; see Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (stating

that, to be deficient, attorney’s conduct must “so outrageous that no competent

attorney would have engaged in it”). This is not such a case. Failure to object to

be required to register as a sex offender. After hearing evidence of the prior
conviction during the punishment phase, the trial court found the enhancement
allegation to be true and ordered Romano to register as a sex offender for 10 years.
Romano makes no complaint about the admission of the evidence regarding his
1999 conviction during the punishment phase. He complains only of his trial
counsel’s performance with respect to the admission of evidence of his prior
conviction during the guilt-innocence phase.
22
inadmissible extraneous-offense evidence may be sound trial strategy. See

Williams v. State, 417 S.W.3d 162, 183–84 (Tex. App.—Houston [1st Dist.] 2013,

pet. ref’d) (recognizing that failure to object to extraneous-offense evidence may

constitute “sound and plausible trial strategy”); Heiman v. State, 923 S.W.2d 622,

626 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (holding it was within scope

of plausible trial strategy that trial counsel did not object to extraneous offense

because record showed trial counsel’s strategy was to use extraneous offense to

undermine complainant’s credibility).

Here, the record suggests that admission of the evidence related to

Romano’s prior conviction was part of defense counsel’s trial strategy. The

evidence showed that a restroom was available across the street from the parking

lot where Romano exposed himself, casting doubt on Romano’s claim that he

exposed his penis because he needed to urinate. The evidence also lent support to

Gardiner’s testimony that Romano exposed his penis to masturbate.

The record suggests that defense counsel’s trial strategy regarding the

admission of the extraneous-offense evidence was to neutralize the effect of the

availability of the public restroom by showing that Romano had an aversion to

public restrooms in Memorial Park because he associated them with his prior

conviction for indecent exposure. Accordingly, it is possible that trial counsel’s

decisions relating to the complained-of testimony was part of a reasonable trial

23
strategy. See Ex parte Ellis, 233 S.W.3d 324, 335–36 (Tex. Crim. App. 2007)

(concluding that extraneous-crimes testimony “served a strategic purpose” and was

based on “sound trial strategy” even though “risky”); Cedillos v. State, No. 08-14-

00180-CR, 2018 WL 4113169, at *7 (Tex. App.—El Paso Aug. 29, 2018, pet.

ref’d) (not designated for publication) (holding that admission of evidence of

extraneous offense by defense was possible trial strategy “to get in front of” State’s

evidence about extraneous offense in order to allow appellant to present “his side

of the story first” and to show jury appellant “was not hiding anything”); Riggs v.

State, No. 05-16-01503-CR, 2017 WL 5167653, at *3–*4 (Tex. App.—Dallas

Nov. 8, 2017, no pet.) (mem. op., not designated for publication) (holding that

appellant failed to demonstrate that his counsel’s representation fell below

objective standard of reasonableness in eliciting testimony from appellant about his

criminal history because testimony was important to his defensive theory); see also

Barfield v. State, 464 S.W.3d 67, 74 (Tex. App.—Houston [14th Dist.] 2015, pet.

ref’d) (holding ineffective assistance not shown where defense counsel offered

evidence of appellant’s invocation of right to counsel “to support two of the

defense’s main theories”). Based on the record, we cannot conclude that the

suggested trial strategy was so outrageous that no competent attorney would have

engaged in it, particularly when, as here, trial counsel was not provided a chance to

24
explain his conduct. See Goodspeed, 187 S.W.3d at 392; Lopez, 565 S.W.3d at

887.

We conclude that Romano has not demonstrated that his trial counsel’s

performance fell below an objective standard of reasonableness; thus, he has not

satisfied the first Strickland prong. We hold that Romano has failed to show, by a

preponderance of the evidence, that he received ineffective assistance of counsel at

trial. See Strickland, 466 U.S. at 687–88, 694.

We overrule Romano’s third issue.

Conclusion

We affirm the judgment of the trial court.

Richard Hightower
Justice

Panel consists of Justices Kelly, Hightower, and Countiss.

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

25