Roy Bolinger v. The State of Texas

Houston, TX - Criminal defense attorney represented Roy Bolinger with a Sexual Assault charge.

The State indicted appellant for continuous sexual abuse of a child. The

State alleged that appellant:

[D]uring a period of time of thirty or more days in duration,

commit[ed] at least two acts of sexual abuse against a child younger

than fourteen years of age, including an act constituting the offense of

aggravated sexual assault of a child, committed against [complainant]

on or about September 1, 2007, and an act constituting the offense of

aggravated sexual assault of a child, committed against [complainant]

on or about June 30, 2009, and [appellant] was at least seventeen

years of age at the time of the commission of each of those acts.

The State filed a notice that it would use extraneous offenses and prior

convictions to impeach appellant's credibility under Rules of Evidence 404 and

609 and Articles 37.07 and 38.37 of the Code of Criminal Procedure. Appellant

filed a motion in limine requesting that the State and trial court not mention any of

appellant's prior convictions, probated sentences, deferred adjudications, or

extraneous or unadjudicated criminal or bad acts in the presence of the jury without

first obtaining a ruling from the trial court outside of the presence of the jury. The

trial court did not sign an order on appellant's motion in limine. However, prior to

voir dire, appellant's counsel stated that the trial court "heard [appellant's] motion

in limine. And I don't believe it's on the record, but that part was granted with the

caveat that the State would change that one question.” The trial court

acknowledged that the State would "rephrase [its] question as opposed to stating

that 'it is a known study,' 'studies have shown,' yes, that's correct.” 3

Appellant testified in his defense at trial. On cross-examination, the State

elicited the following testimony:

Q. All right, Mr. Bolinger. Let's start with things that we can agree

are true.

First of all, on August 9, 1995 . . . you were convicted of

misdemeanor theft by check, correct?

A. Yes.

Q. On November 26th of 1996 . . . you were convicted of

misdemeanor possession of marijuana, correct?

A. Yes.

Q. Also on November 26th of 1996 . . . you were convicted of the

misdemeanor offense of theft, correct?

A. That's correct.

Q. And on June 16th of 1997 . . . you were convicted of the felony

offense of burglary of a habitation, correct?

A. That's correct.

. . .

Q. On October 4

th of 2010 . . . you were convicted of the

misdemeanor offense of assault of a family member, right?

A. That's correct.

Appellant's counsel did not object to the admission of any of appellant's prior

convictions and did not immediately request a limiting instruction regarding this

testimony. A limiting instruction was included in the jury charge.

On further questioning by his counsel, appellant testified that he "owned up”

to his criminal history. In closing argument, appellant's counsel argued that the

State "went through [appellant's] criminal history. [Appellant] never denied that.

He owned up to his mistakes . . . but he is denying this one. He is fighting this 4

one.” The only prior conviction the State mentioned during closing argument was

appellant's conviction for assault of a family member.

1



The jury found appellant guilty of continuous sexual abuse of a child and

sentenced him to life in prison. Immediately after sentencing, the State notified the

trial court that it had two victim impact statements, one from the complainant and

one from the complainant's mother. Appellant objected to both statements being

read because it is "a violation to do any more than just [the complainant] under

56.02 of the Code of Criminal Procedure. . . . forcing [appellant] . . . to sit here and

listen to more than one statement is unnecessary, it's cruel, it's unusual

punishment.” Appellant argued that the rules allow the complainant to give a

statement but objected to complainant's mother also giving a statement. The trial

court determined that the complainant could give a statement and her mother was

permitted to give a statement as well because the complainant was a minor at the

time of the offense. Appellant did not file a motion for new trial.

II. INEFFECTIVE ASSISTANCE

In his first issue appellant contends that his counsel rendered ineffective

assistance by allowing the State to introduce otherwise inadmissible prior

convictions to impeach appellant's testimony when counsel failed to object, failing

to urge or secure a ruling on a previously filed motion in limine, failing to file a

"Theus motion,” and failing to request a contemporaneous limiting instruction

when the State offered the prior convictions. Appellant argues that because

credibility was a key issue, trial counsel's deficiency caused him prejudice.

1

Instead, most of the State's closing argument was focused on building the credibility

and story of the complainant and attacking appellant's credibility through the testimony of

appellant's other alleged victims.5

A. Legal Principles

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

(1) counsel's performance was deficient by falling below an objective standard of

reasonableness and (2) counsel's deficiency caused the appellant prejudice—there

is a probability sufficient to undermine confidence in the outcome that but for

counsel's errors, the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 687–88 (1984); Perez v. State, 310 S.W.3d 890, 892–

93 (Tex. Crim. App. 2010). An appellant must satisfy both prongs by a

preponderance of the evidence. Perez, 310 S.W.3d at 893.

Generally, a claim of ineffective assistance may not be addressed on direct

appeal because the record usually is not sufficient to conclude that counsel's

performance was deficient under the first Strickland prong. See Andrews v. State,

159 S.W.3d 98, 103 (Tex. Crim. App. 2005); see also Salinas v. State, 163 S.W.3d

734, 740 (Tex. Crim. App. 2005) ("A reviewing court will rarely be in a position

on direct appeal to fairly evaluate the merits of an ineffective assistance claim.”).

Ordinarily, trial counsel should be afforded an opportunity to explain counsel's

actions "before being denounced as ineffective.” Rylander v. State, 101 S.W.3d

107, 111 (Tex. Crim. App. 2003). A defendant is not entitled to "errorless or

perfect counsel whose competency of representation is to be judged by hindsight.”

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

"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, 163 S.W.3d at 740. "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. (quotation omitted). 6

It is the "rare case” when an appellant raises a claim of ineffective assistance

on direct appeal and the record is sufficient to make a decision on the merits.

Andrews, 159 S.W.3d at 103. We must presume that trial counsel's performance

was adequate unless the challenged conduct was "so outrageous that no competent

attorney would have engaged in it.” State v. Morales, 253 S.W.3d 686, 696-97

(Tex. Crim. App. 2008) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005)). "The record must demonstrate that counsel's performance fell

below an objective standard of reasonableness as a matter of law, and that no

reasonable trial strategy could justify counsel's acts or omissions, regardless of

[counsel's] subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.

Crim. App. 2011). If there is a potential reasonable trial strategy that counsel

could have been pursuing, we cannot conclude that counsel performed deficiently.

See Andrews, 159 S.W.3d at 103.

B. Admissibility of Prior Convictions

Appellant argues that none of his prior convictions were admissible and,

therefore, defense counsel could not have had a reasonable trial strategy for failing

to object. The State argues that the prior convictions were admissible and that

defense counsel had a reasonable trial strategy for failing to object by using "the

criminal history evidence elicited by the State in appellant's favor when he

successfully argued that appellant pled guilty in each of the prior convictions

because he was guilty, but he pled not guilty in [this case] because he had not

engaged in any sexual abuse. Appellant's attorney attempted the same strategy in

the second trial that had worked in the first, albeit with less success the second

time around . . . .”

Admitting to prior convictions can be a matter of sound trial strategy if the

prior convictions are admissible. Donald v. State, 543 S.W.3d 466, 481 (Tex. 7

App.—Houston [14th Dist.] 2018, no pet.); see Huerta v. State, 359 S.W.3d 887,

891 (Tex. App.—Houston [14th Dist.] 2012, no pet.). It is a common strategy to

admit a prior admissible conviction because it "removes the sting from an attack

that would otherwise come from the state.” Huerta, 359 S.W.3d at 891–92.

If a prior conviction is clearly inadmissible, "there can be no reasonable trial

strategy for introducing it before the jury.” Id. at 892 (citing Robertson v. State,

187 S.W.3d 475, 485–86 (Tex. Crim. App. 2006)); see Ex Parte Skelton, 434

S.W.3d 709, 722 (Tex. App.—San Antonio 2014, pet. ref'd) ("Where a

defendant's credibility is central to her defensive strategy, it is not sound trial

strategy to allow the introduction of inadmissible evidence that directly impairs the

defendant's credibility without objection.”). However, it may be strategic to pass

over the admission of prejudicial and arguably inadmissible evidence. Ex Parte

Menchaca, 854 S.W.2d 128, 132 (Tex. Crim. App. 1993) (quoting Lyons v.

McCotter, 770 F.2d 529, 534 (5th Cir. 1985)). It may also be strategic, for

example, if trial counsel "at that moment may have reasonably decided that the

testimony was not inadmissible.” Thompson v. State, 9 S.W.3d 808, 814 (Tex.

Crim. App. 1999) (performance not deficient on silent record as to why trial

counsel failed to object to the State's "artful questions” as the State "doggedly

pursued the introduction of inadmissible hearsay”). Thus, we must evaluate

whether evidence of the prior convictions was clearly inadmissible or only

arguably inadmissible. See Ex Parte Menchaca, 854 S.W.2d at 132; McCook v.

State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd)

(counsel may strategically decline to object to an "arguably inadmissible prior

conviction”).

The question of admissibility is determined pursuant to the Rules of

Evidence and their interpretative cases. See Tex. R. Evid. 609; Theus v. State, 845 8

S.W.2d 874 (Tex. Crim. App. 1992). Under Rule 609, evidence of a prior

conviction "must be admitted” if "(1) the crime was a felony or involved moral

turpitude, regardless of punishment; (2) the probative value of the evidence

outweighs its prejudicial effect to a party; and (3) is it elicited from the witness or

established by public record.” Tex. R. Evid. 609(a). However, when ten years has

"passed since the witness's conviction or release from confinement,” such

evidence is "admissible only if its probative value, supported by specific facts and

circumstances, substantially outweighs its prejudicial effect.” Tex. R. Evid.

609(b). In considering whether the probative value outweighed its prejudicial

effect, we review five nonexclusive factors: (1) the impeachment value of the prior

crime; (2) the temporal proximity of the past crime to the charged offense and the

witness's subsequent history; (3) the similarity between the past crime and the

offense being prosecuted; (4) the importance of the defendant's testimony; and (5)

the importance of the credibility issue. Theus, 845 S.W.2d at 880. The party

seeking to introduce the evidence has the burden to demonstrate that the probative

value of the conviction outweighs its prejudicial effect. Id.

The State impeached appellant with five prior convictions. At the time of

trial, the only conviction within the ten-year period of Rule 609 was the 2010

assault of a family member.

2 Because this is a crime of moral turpitude and within

the ten-year period provided in Rule 609, evidence of this prior conviction was

admissible if its probative value outweighed its prejudicial effect. See Tex. R.

Evid. 609; Ludwig v. State, 969 S.W.2d 22, 30 (Tex. App.—Fort Worth 1998, pet.

ref'd) ("[M]isdemeanor assault by a man against a woman is considered a crime of

moral turpitude.”).

2 The record reveals that the family violence perpetrated in this instance was by appellant

against his wife. Appellant testified that he "threw a cake box” at his wife ( the complainant's

mother). 9

Appellant's convictions for theft by check and misdemeanor theft are

considered crimes of moral turpitude, and his conviction for burglary was a felony.

However, each of these convictions were outside of the ten-year period provided

under Rule 609(b). Thus, these three convictions were only admissible if their

probative value, supported by specific facts and circumstances, substantially

outweighed their prejudicial effect. See Tex. R. Evid. 609. Appellant's conviction

for misdemeanor possession of marijuana was neither a felony nor crime of moral

turpitude and thus is inadmissible under Rule 609.

Because four of the convictions were either a crime of moral turpitude or a

felony, we now determine whether those convictions are clearly inadmissible or

arguably inadmissible under the Theus factors. See Ex Parte Menchaca, 854

S.W.2d at 132; McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th

Dist.] 2013, pet. ref'd).

1. Impeachment Value

Impeachment with a prior conviction is an issue of a defendant's credibility.

See Tex. R. Evid. 609(a); Pierre v. State, 2 S.W.3d 439, 442 (Tex. App.—Houston

[1st Dist.] 1999, pet. ref'd). Offenses involving deception are more probative of

credibility than offenses involving violence. See Theus, 845 S.W.2d at 881;

Pierre, 2 S.W.3d at 442. Burglary, theft, and theft by deception are all considered

crimes involving deception. See Medina v. State, 367 S.W.3d 470, 475 (Tex.

App.––Texarkana 2012, no pet); Huerta, 359 S.W.3d at 892 ("Theft is a crime of

moral turpitude involving elements of deception.”); Baca v. State, 223 S.W.3d 478,

484 (Tex. App.—Amarillo 2006, no pet.) ("Burglary cases are offenses involving

deception.”). Because the burglary and theft convictions are more probative for

purposes of impeachment this factor weighs in favor of admissibility for these

convictions. However, the misdemeanor family assault offense, while a crime of 10

moral turpitude,

3

is a crime of violence. Dale v. State, 90 S.W.3d 826, 830 (Tex.

App.—San Antonio 2002, pet. ref'd); see also Guerra v. State, No. 01-15-00650-

CR, 2016 WL 6212999, *10–11 (Tex. App.—Houston [1st Dist.] Oct. 25, 2016, no

pet.) (mem. op., not designated for publication) (assault-family-violence against

woman is crime of moral turpitude, but in considering Theus factors is not a crime

of deception). Because the family assault offense is less probative for purposes of

impeachment, this factor weighs against admissibility.

2. Temporal Proximity and Subsequent History

Evidence of a prior offense is more probative of credibility if the prior

offense is recent and the defendant has shown a propensity for breaking the law.

Theus, 845 S.W.2d at 881; Pierre, 2 S.W.3d at 442. We determine whether the

offense is recent by reviewing the "temporal proximity of the past crime relative to

the charged offense and the witness's subsequent history.” Huerta v. State, 359

S.W.3d 887, 892 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Appellant's

assault family violence conviction occurred on October 4, 2010, and the offense he

was charged with in this case occurred between September 2007 and June 2009.

Thus, this conviction was recent and weighs in favor of admitting appellant's

assault family violence conviction. See Theus, 845 S.W.2d at 881 (determining

that arson conviction that became final in 1985 had "occurred recently” relative to

the "instant offense which happened in February 1990”); Huerta, 359 S.W.3d at

892 (defendant's prior convictions in 2005 and 2006 were "near in time to the

charged offense” and favored admissibility when the charged offense was

committed in 2009). However, appellant's convictions for theft by check, theft,

3

See Campos v. State, 458 S.W.3d 120, 149 (Tex. App.—Houston [1st Dist.] 2015)

(listing what courts have defined as crimes involving moral turpitude including, dishonesty,

deceit, deliberate violence, and matters of "personal morality,” as a few examples), vacated on

other grounds, 466 S.W.3d 181, 182 (Tex. Crim. App. 2015). 11

and burglary of a habitation occurred in 1995, 1996, and 1997, respectively. These

convictions occurred between ten and twelve years prior to the charged offense.

Thus, these convictions are not considered recent and fall outside of the ten-year

period provided under Rule 609(b). See Tex. R. Evid. 609(b). However, a court

may consider all relevant specific facts and circumstances, including whether

intervening convictions dilute the prejudice of a remote conviction. Meadows v.

State, 455 S.W.3d 166, 170 (Tex. Crim. App. 2015). This factor weighs against

admitting appellant's convictions for theft by check, theft, and burglary.

3. Similarity

When a defendant's prior offense and the charged offense are similar, a

danger arises that the jury will convict based on a perception of a pattern of past

conduct rather than upon the facts of the charged offense. Theus, 845 S.W.2d at

881 ("If . . . the past crime and the charged crime are similar, the third factor will

militate against admission); Pierre, 2 S.W.2d at 443. Appellant's convictions for

theft by check, theft, and burglary of a habitation are not similar to the charged

offense of continuous sexual abuse of a child. Thus, this factor weighs in favor of

admission. Appellant's conviction for assault family violence against the

complainant's mother is similar in that both crimes were committed against

females and involved violence. However, because appellant's testimony that the

assault family violence conviction was a result of his having thrown a cake box at

the complainant's mother, the danger that the jury would convict on the perception

of past conduct instead of based on the facts of the charged offense was mitigated.

See Theus, 845 S.W.2d at 881 ("The rationale behind this is that the admission for

impeachment purposes of a crime similar to the crime charged presents a situation

where the jury would convict on the perception of a past pattern of conduct, instead

of on the facts of the charged offense.”). But cf. Pierre, 2 S.W.3d at 442–43 12

(reasoning first and third factors "dispositive” because prior convictions involved

violence and misdemeanor assaults causing bodily injury, reckless conduct, and

terroristic threat against women were similar to the charged crime of sexual assault

against a woman). Under the circumstances of this case, this factor weighs in

favor of admittance of the prior convictions.

4. Importance of Defendant's Testimony and Credibility

The last two factors are related and depend on the nature of the defense

asserted. Theus, 845 S.W.2d at 881. Where a defendant's defense relies on alibi

witnesses, then his credibility is not likely a crucial issue. Id. "When the case

involves the testimony of only the defendant and State's witnesses, however, the

importance of the defendant's credibility escalates, so will the need to allow the

State an opportunity to impeach the defendant's credibility. Id.

Aside from his own testimony, appellant called three witnesses in his

defense. Appellant's defense at trial was that the complainant's mother convinced

the complainant to fabricate the alleged sexual assaults in order to obtain custody

of mother and appellant's son. Thus, appellant's testimony was important because

he denied any inappropriate behavior with the complainant. See Mireles v. State,

413 S.W.3d 98, 103 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd), overruled

on other grounds by Meadows v. State, 455 S.W.3d 166 (Tex. Crim. App. 2015).

Although appellant's prior roommates testified that they did not see appellant

exhibit any inappropriate behaviors toward the complainant, appellant's defense

boiled down to credibility between himself and the complainant. See id. Because

the need of the State to impeach appellant's credibility was high, this factor weighs

in favor of admitting appellant's prior convictions. Theus, 845 S.W.2d at 881.

5. Weighing the Theus Factors13

While each prior conviction has at least one factor weighing against

admission, without further development of the record on appeal through an

explanation of trial counsel's actions in failing to object, we cannot say that any of

the prior convictions, except for the misdemeanor possession of marijuana

discussed below, are clearly inadmissible under Rule 609. At most, based on the

record here, the prior convictions are only arguably inadmissible. See Ex Parte

Menchaca, 854 S.W.2d at 132; McCook, 402 S.W.3d at 52 (counsel may

strategically decline to object to an "arguably inadmissible prior conviction”).

Trial counsel reasonably may have believed that there would be at least reasonable

disagreement about whether the prior convictions would be admissible under Rule

609. See Donald, 543 S.W.3d at 481. Trial counsel is not deficient for allowing

the admission of extraneous-offense evidence when the trial court's admission of

the evidence would be within the realm of reasonable disagreement. See id.; Parks

v. State, 463 S.W.3d 166, 172 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

6. Prejudice

Appellant's conviction for misdemeanor possession of marijuana is neither a

felony nor a crime of moral turpitude. Hernandez v. State, 976 S.W.2d 753, 755

(Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) (discussing State's use of prior

misdemeanor possession of marijuana conviction as not being a felony or crime of

moral turpitude). Thus, this conviction was clearly inadmissible under Rule 609.

Where a prior conviction is clearly inadmissible there can be no reasonable trial

strategy for failing to object. See Huerta, 359 S.W.3d at 892. Under the second

prong of Strickland, a defendant must show that there is a "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different.” 466 U.S. at 694. In the context of deficient performance in

the guilt-innocence stage of trial, the question is whether there is a reasonable 14

probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.” Id. at 695. This test does not require a defendant to show

that "counsel's deficient conduct more likely than not altered the outcome of the

case.” Id. at 693. Rather, a "reasonable probability” of a different outcome is a

"probability sufficient to undermine the confidence in the outcome.” Id. at 694.

In making the prejudice determination, we must consider the totality of the

evidence before the jury. Id. at 695. "Some errors will have had a pervasive effect

on the inferences to be drawn from the evidence, altering the entire evidentiary

picture, and some will have had an isolated, trivial effect.” Id. at 695–96. A

verdict weakly supported in the record is "more likely to have been affected by

errors than one with overwhelming record support.” Id. at 696.

Considering all of the evidence before the jury, we cannot conclude that this

error had a pervasive effect on the inferences to be drawn from the evidence or

altered the entire evidentiary picture. Appellant's prior conviction of misdemeanor

possession of marijuana is not similar to the crime for which he was on trial. See

Herring v. State, 147 S.W.3d 390, 396 (Tex. Crim. App. 2004) ("While general

criminality is a prohibited inference, it is not a strong or inflammatory an inference

as the conformity inference that arises from substantially similar offenses . . . .”).

After asking appellant whether he had been convicted of the offense, the State did

not bring up this specific offense again in cross-examination or closing argument.

Without referencing a specific offense, on re-direct appellant's trial counsel asked

appellant whether he had "owned up to” his criminal history as well as his other

prior extraneous offenses. In closing argument, appellant's counsel argued that

appellant had owned up to his past mistakes, but "he is denying this one. He is

fighting this one. That is also character and conformity.” Excluding the

complained-of offense, the evidence amply supported appellant's conviction. See15

McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] pet. ref'd).

The complainant detailed the multiple instances of sexual assault committed

against her by appellant from the time she was six years old through the age of

nine. Her brother testified as to the opportunities appellant had to be alone with

the complainant in their home and further corroborated her testimony of being

locked in a room alone with appellant when some of the assaults occurred in their

home. The complainant's mother testified that during this period the complainant

came to her complaining about pain in her vaginal area. We conclude that

appellant has failed to show that a reasonable probability exists that, absent trial

counsel's error, the jury would have had a reasonable doubt respecting guilt. See

id.

C. Limiting Instruction

A contemporaneous limiting instruction prevents the jury from

contemplating evidence in an inappropriate manner. Webb v. State, 995 S.W.3d

295, 300 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Even when a limiting

instruction is given to the jury in the jury charge, as it was in this case, this is less

effective than requesting a simultaneous limiting instruction immediately after the

evidence is admitted. See id. However, '[t]he failure of trial counsel to request a

limiting instruction is not, by itself, ineffective assistance.” Straight v. State, 515

S.W.3d 553, 573 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (citing

Agbogwe v. State, 414 S.W.3d 820, 837 (Tex. App.—Houston [1st Dist.] 2013, no

pet.)). Acknowledging that the best practice is to request a contemporaneous

limiting instruction, we cannot say based on this record that trial counsel's failure

rendered his representation of appellant unreasonably deficient. See Webb, 995

S.W.3d at 301. A reasonable explanation for trial counsel's action in not

requesting a limiting instruction is the concern that the instruction may have 16

highlighted the issue. Straight, 515 S.W.3d at 573; Agbogwe, 414 S.W.3d at 837;

Ali v. State, 26 S.W.3d 82 (Tex. App.—Waco 2000, no pet.); Webb, 995 S.W.2d at

301; Abbott v. State, 726 S.W.2d 644, 649 (Tex. App.—Amarillo 1987, pet. ref'd).

Based on the record, appellant has not "overcome the strong presumption that

counsel's conduct fell within a wide range of reasonable representation.” Salinas,

163 S.W.3d at 740.

D. Motion in Limine

Appellant complains that counsel should have had a "specific motion in

limine filed and ruled upon” with regard to the prior convictions the State sought to

use against appellant. The record reflects that appellant's counsel filed a motion in

limine regarding prior convictions, but the record does not contain any argument

on the motion or the trial court's rulings. Thus, we are not privy to the reasoning

provided by trial counsel or the State, or the trial court's ruling. Further, without

explanation from trial counsel, we do not know whether the arguments or rulings

made off the record support his decision not to pursue the objections to the

admission of this evidence. Even if appellant's counsel had obtained a ruling on

the record, such ruling is not on the merits and does not preserve error when

granted or denied. Wert v. State, 383 S.W.3d 747, 757 (Tex. App.—Houston [14th

Dist.] 2012, no writ).

Without a more fully developed record, we cannot conclude trial counsel

was deficient for failing to obtain a ruling on appellant's motion in limine

regarding his prior convictions on the record. As concluded above, it may have

been strategic to pass over the admission of prejudicial and arguably inadmissible

evidence. Ex Parte Menchaca, 854 S.W.2d at 132 (Tex. Crim. App. 1993)

(quoting Lyons v. McCotter, 770 F.2d 529, 534 (5th Cir. 1985)); McCook, 402

S.W.3d at 52. It may also be strategic, for example, if trial counsel "at that 17

moment may have reasonably decided that the testimony was not inadmissible.”

Thompson, 9 S.W.3d at 814.

E. Conclusion

Trial counsel has not been afforded the opportunity to explain his actions,

and the record does not demonstrate the alleged ineffectiveness as a matter of law.

See Lopez, 343 S.W.3d at 143; Rylander, 101 S.W.3d at 111. Under the

circumstances presented herein, appellant has not rebutted the strong presumption

that the decisions of counsel during trial fell within the wide range of reasonable

professional assistance. See Thompson, 9 S.W.3d at 814. Absent counsel's

explanation, the record does not contain sufficient evidence to evaluate the

ineffective assistance issue. See id. at 814–15. We overrule appellant's first issue.

III. GRAND JURY

Appellant argues that in his indictment there is no finding that he probably

committed any specific offense and was thus denied his "state-constitutional right

to a grand jury indictment on the charge for which he was tried and convicted.”

Appellant argues that this "omission” denied him of his state-constitutional right to

a grand jury indictment on the charge for which he was tried and convicted.

"A defendant has a right to have a grand jury pass upon the question of

whether there is probable cause to believe that he committed a particular offense.”

Duron v. State, 956 S.W.2d 547, 550 (Tex. Crim. App. 1997). "The requisite of

indictment by grand jury was designed to protect an individual against unjust

prosecution without sufficient cause, said indictment informing the accused of the

nature of the charges against him so that he may adequately prepare his defense.”

Tex. Const. art. I, § 10 commentary; see also Batiste v. State, 785 S.W.2d 432, 436

(Tex. App.—Corpus Christi–Edinburg 1990, pet. ref'd) (grand jury's purpose is to 18

protect citizens from commencement of arbitrary or unreasonable felony

prosecutions by the State).

"The sufficiency of an indictment is a question of law that is reviewed de

novo.” Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009). An

indictment is sufficient if it charges the commission of an offense "in ordinary and

concise language of common understanding to know what is meant, and with that

degree of certainty that will give the defendant notice of the particular offense with

which he is charged.” Tex. Code Crim. Proc. art. 21.11. Generally, an indictment

is legally sufficient if it tracks the language of the statute in question. Moff, 154

S.W.3d at 602. "A written instrument is an indictment . . . under the constitution if

it accuses someone of a crime with enough clarity and specificity to identify the

penal statue under which the State intends to prosecute, even if the instrument is

otherwise defective.” Id.

An indictment serves two functions. First, it is the "written statement of a

grand jury accusing a person therein named of some act or omission which, by law,

is declared an offense.” Tex. Code Crim. Pro. 21.01; see also Ex Parte Patterson,

740 S.W.2d 766, 775 (Tex. Crim. App. 1987) ("This provision gives statutory

substance to the right conferred in Article I, § 10 of the Texas Constitution to have

a grand jury screening before a person may 'be held to answer for a criminal

offense' of the magnitude of felony.”), overruled on other grounds by Ex Parte

Beck, 769 S.W.2d 525 (Tex. Crim. App. 1989). Second, it is the State's primary

pleading in a felony criminal action. Ex Parte Patterson, 740 S.W.3d at 775.

The grand jury does not necessarily need to pass on matters that are purely

evidentiary. See Flowers v. State, 815 S.W.2d 724, 729 (Tex. Crim. App. 1991)

(because statutory definition added to amended indictment was not an "element of

the offense” and did not "describe an act or omission,” the statutory definition did 19

not need to be included in the indictment); Berg v. State, 747 S.W.2d 800, 809

(Tex. Crim. App. 1984) (pleading evidentiary matters "which are surplusage . . .

give the accused more notice than is constitutionally required.”). Under section

21.02, it is the commission of two or more acts of sexual abuse over the specified

period that is the actus reus element of the offense as to which the jurors must be

unanimous in order to convict. Jacobsen v. State, 325 S.W.3d 733, 736 (Tex.

App.—Austin 2010, no pet.). "The individual acts of sexual abuse that make up

this pattern of behavior or series of acts are not themselves elements of the offense,

but are merely evidentiary facts, the manner and means by which the actus reus

element is committed.” Id.

Appellant was indicted and convicted of continuous sexual abuse of a child.

See Tex. Pen. Code § 21.02. "A person commits an offense if: (1) during a period

that is 30 or more days in duration, the person commits two or more acts of sexual

abuse . . . .” Id. § 21.02(a) (emphasis added). This section defines an "act of

sexual abuse” as "any act that is a violation of one or more” penal laws enumerated

within the statute. Id. § 21.02(c). Appellant's indictment charged that appellant

had committed "at least two acts of sexual abuse . . . including an act constituting

the offense of aggravated sexual assault of a child” against the complainant

between January 5, 2006 and June 30, 2009. See id. § 21.02(c)(4). The probable

cause affidavit attached to the complaint and submitted by an officer with the

Harris County Sherriff's Department further detailed the aggravated sexual assaults

alleged to have been committed by appellant against complainant during the time

referenced in the indictment.

4

4 The probable cause affidavit enumerated several acts of aggravated sexual assault of a

child, including the following:

[Appellant] . . . committed the offense of aggravated sexual assault of a child by

penetrating his sexual organ, penis into the sexual organ, vagina of the 20

The indictment tracked the language of the statute in question. See Moff,

154 S.W.3d at 602. Because the individual acts of sexual abuse that make up the

pattern of behavior or series of acts are not themselves elements of the offense, but

are merely evidentiary facts, it is not necessary that the grand jury pass on them.

See Flowers, 815 S.W.2d at 729; Jacobsen, 325 S.W.3d at 736.

We overrule appellant's second issue.

IV. CRUEL AND UNUSUAL PUNISHMENT

Appellant's third issue is that the trial court "visited cruel and unusual

punishment” upon him by allowing improper victim allocution. After punishment

had been assessed and sentenced pronounced, over objection by trial counsel that

such allocution was cruel and unusual, the trial court allowed the complainant and

her mother to appear and present to the defendant their statements about the effects

of appellant's offense on the complainant.

"What is necessary to show sufficient harm for purposes of the Cruel and

Unusual Punishments Clause depends upon the claim at issue . . . .” Hudson v.

McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992). "The

general requirement that an Eighth Amendment claimant allege and prove the

unnecessary and wanton infliction of pain should . . . be applied with due regard

for differences in the kind of conduct against which an Eighth Amendment

objection is lodged.” Whitley v. Albers, 475 U.S. 312, (1986).

complainant. . . . [Complainant] stated that [appellant] had began (sic) touching

her breasts and genitals with his hands when she was six years old . . . and

eventually began penetrating her vagina with his hands and penis several times a

week. . . . complainant disclosed that [appellant] put his finger and his private part

(penis) in her private (vagina) several times. . . . the last time he penetrated her

vagina was around June after her fourth grade year (approx. 06/30/2009).21

Article 42.03 allows "a victim, . . . or guardian of a victim, . . . to appear in

person to present the court and the defendant a statement of the person's views

about the offense, the defendant, and the effect of the offense on the victim.” Tex.

Code Crim. Pro. art. 42.03(b). Questions may not be directed at the defendant

while making the statement. Id.

Appellant's sole argument is that having to listen to his ex-wife give a victim

statement after their contentious divorce and custody battle and after receiving a

life sentence without parole was cruel and unusual punishment in violation of the

Eighth Amendment, citing to Furman v. Georgia, 408 U.S. 238 (1972). In

Furman, the Supreme Court reversed and remanded three cases where death

sentences were imposed. Id. at 239–40. In his concurring opinion, Justice Douglas

stated that the "primary principle is that a punishment must not be so severe as to

be degrading to the dignity of human beings.” Id. at 271 (Douglas, J., concurring).

In this case there is no record from which we can assess whether the statement rose

to the level of "degrading to the dignity of human beings.” See id. In Payne v.

Tennessee, the Supreme Court concluded that the Eighth Amendment presents no

per se bar to presentation of a victim impact statement prior to sentencing of the

defendant. 501 U.S. 808, 824–25 (1991) ("The States remain free, in capital cases,

as well as others, to devise new procedures and new remedies to meet felt needs.

Victim impact evidence is simply another form or method of informing the

sentencing authority about the specific harm caused by the crime in question,

evidence of a general type long considered by sentencing authorities.”). The fact

that the victim statement was from appellant's ex-wife and that they had a

tumultuous relationship does not render the statement from her cruel and unusual

per se.

5



5 Appellant also notes that the trial court erred in admitting more than one victim 22

We overrule appellant's third issue.

Having overruled all of appellant’s issues, we affirm the trial court’s

judgment.