Nathan Dewayne McDaniel v. State ( 2019 )


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  • Opinion issued July 11, 2019
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-18-00598-CR
    ———————————
    NATHAN DEWAYNE MCDANIEL, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 355th District Court
    Hood County, Texas
    Trial Court Case No. CR13832
    MEMORANDUM OPINION
    Nathan Dewayne McDaniel was indicted on four counts: Counts One and
    Two for sexual assault of a child1 and Counts Three and Four for indecency with a
    1
    See TEX. PENAL CODE § 22.011(a)(2).
    child.2 The State dismissed Count Three. A Hood County3 jury acquitted on Count
    Four. But the jury returned guilty verdicts on Counts One and Two. It assessed
    punishment at 99 years’ imprisonment, and a $10,000 fine, on each count. The trial
    court entered conforming judgments.
    On appeal, McDaniel raises a single issue with four subparts: he contends
    that he received ineffective assistance of counsel for his trial counsel’s (1) failing
    to object to the State’s alleged violations of rulings in limine, (2) failing to object
    to the State’s alleged violation of Code of Criminal Procedure article 38.37’s
    notice requirement, (3) failing to object to the trial court’s alleged violation of
    Article 38.37’s hearing requirement, and (4) failing to preserve error for appeal on
    these topics. Finding no error, we affirm.
    Background
    Because McDaniel does not challenge the sufficiency of the evidence to
    support his conviction, we will only briefly recount the instances of sexual assault
    of a child upon which he was indicted and convicted.
    2
    See 
    id. § 21.11(a).
    3
    Pursuant to the Supreme Court of Texas’s docket-equalization powers, this
    appeal was transferred from the Second Court of Appeals to this court on
    July 9, 2018. See TEX. GOV’T CODE §§ 73.001–.002; Order Regarding
    Transfer of Cases from Courts of Appeals, Misc. Docket No. 18-9083 (Tex.
    June 19, 2018). We are unaware of any conflict between precedent of the
    Second Court of Appeals and that of this court on any relevant issue. See
    TEX. R. APP. P. 41.3.
    2
    McDaniel is the father of the two girls “Mary” and “Cathy.”4 While in high
    school, Mary told her boyfriend via text message that McDaniel had sexually
    abused her over a period of time. The boyfriend’s mother discovered the text
    messages. She reported what Mary said to school personnel, who then contacted
    law enforcement. Investigators sent Mary to a nearby hospital to be seen by a
    Sexual Assault Nurse Examiner (“SANE”).
    The SANE that examined Mary, S. Henley, testified at trial. She described
    her process for conducting a medical exam of a child who has allegedly been
    sexually assaulted. Henley does “a full head-to-toe assessment” of the child,
    including by taking a “past medical history” and a “history of present illness.” To
    do so, Henley uses “a protocol of specific questions.” In response to Henley’s
    questions, Mary told her both that McDaniel had put his finger or hand in her
    vagina and that he had penetrated her vagina with his penis. Both acts caused Mary
    pain. Mary also told Henley that McDaniel had put his finger or hand “in her butt”
    but that he had not also put his penis or any other foreign object “in her butt.”
    Mary testified at trial too. She said that, once, while she was lying down in
    her room after a long day at school, McDaniel entered her room. Both she and he
    4
    To protect their privacy, we refer to the girls using pseudonyms. See, e.g.,
    Alvarez v. State, 
    491 S.W.3d 362
    , 365 n.2 (Tex. App.—Houston [1st Dist.]
    2016, pet. ref’d).
    3
    were wearing pajamas. McDaniel got on her bed, she froze and didn’t say or do
    anything because she was scared, and “his penis went into [her] vagina.”
    Based in part on Henley’s and Mary’s testimony, the jury convicted
    McDaniel both of sexual assault of a child by causing the penetration of Mary’s
    sexual organ with his penis and of sexual assault of a child by causing the
    penetration of Mary’s sexual organ with his finger. The court entered judgments of
    conviction on the jury’s verdict.
    Before trial, McDaniel’s counsel filed a motion in limine, which the court
    granted. The court granted McDaniel’s request that, before there could be any
    reference in the presence of the jury to any extraneous-act offenses committed by
    McDaniel, there would be a hearing outside the presence of the jury. The court
    during the hearing would determine whether counsel for the State or its witnesses
    could discuss those offenses.
    Ineffective Assistance of Counsel
    In his sole issue, McDaniel contends that his trial counsel was ineffective in
    four ways: (1) failing to object to the counsel for the State’s alleged violations of
    the order in limine during opening statement and during Mary’s direct
    examination; (2) failing to object to the State’s alleged failure to have given
    30 days’ notice of its intent to use extraneous-act evidence; (3) failing to object to
    4
    the trial court’s failure to have held a hearing under Article 38.37, § 2-a(2); and
    (4) failing to preserve error for appeal on these topics.
    I.    Standard of Review and Applicable Law
    To establish ineffective assistance of trial counsel, an appellant must show
    by a preponderance of the evidence both (1) that trial counsel’s representation was
    deficient, meaning that it fell below an objective standard of reasonableness, and
    (2) that the deficiency prejudiced the defense. Strickland v. Washington, 
    466 U.S. 668
    , 687–88 (1984); Thompson v. State, 
    9 S.W.3d 808
    , 812 (Tex. Crim. App.
    1999). The evidence of ineffective assistance “must be firmly founded in the
    record,” and “the record must affirmatively demonstrate” the meritorious nature of
    the claim. 
    Thompson, 9 S.W.3d at 813
    . “Failure to make the required showing of
    either deficient performance or sufficient prejudice defeats the ineffectiveness
    claim” because “[a]bsent both showings an appellate court cannot conclude the
    conviction resulted from a breakdown in the adversarial process that renders the
    result unreliable.” 
    Id. In evaluating
    a claim under the first, deficient-performance prong, we look
    to the totality of the representation and the particular circumstances of each case to
    see whether counsel’s assistance was reasonable under all the circumstances and
    under prevailing professional norms at the time of the alleged error. See 
    Strickland, 466 U.S. at 688
    –89; 
    Thompson, 9 S.W.3d at 813
    . This precludes assessing
    5
    counsel’s performance by using “the benefit of hindsight or by relying on only
    isolated circumstances at trial.” Ex parte Bryant, 
    448 S.W.3d 29
    , 39 (Tex. Crim.
    App. 2014). Our review of counsel’s performance “must be highly deferential,”
    and we must “indulge a strong presumption that counsel’s conduct falls within the
    wide range of reasonable professional assistance.” 
    Strickland, 466 U.S. at 689
    ;
    accord 
    Thompson, 9 S.W.3d at 813
    .
    A direct appeal is usually an inadequate vehicle for raising ineffective
    assistance because the record is generally undeveloped. Menefield v. State, 
    363 S.W.3d 591
    , 592–93 (Tex. Crim. App. 2012). Importantly, “counsel’s reasons for
    failing to do something do not appear in the record” in the typical direct appeal. 
    Id. at 593.
    As a result,
    Trial counsel should ordinarily be afforded an opportunity to explain
    his actions before being denounced as ineffective. If trial counsel is
    not given that opportunity, then the appellate court should not find
    deficient performance unless the challenged conduct was so
    outrageous that no competent attorney would have engaged in it.
    
    Id. (internal quotations
    omitted). This standard is deferential to trial counsel: “in
    the absence of evidence of counsel’s reasons for the challenged conduct, an
    appellate court ‘commonly will assume a strategic motivation if any can possibly
    be imagined.’” Garcia v. State, 
    57 S.W.3d 436
    , 440 (Tex. Crim. App. 2001)
    (quoting 3 Wayne R. LaFave et al., Criminal Procedure § 11.10(c) (2d ed. 1999)).
    6
    In all,
    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 reflect[s] the trial counsel’s subjective reasons for act[ing]
    as [he] did.”
    
    Bryant, 448 S.W.3d at 39
    –40 (internal citations omitted; alterations in original)
    (quoting Andrews v. State, 
    159 S.W.3d 98
    , 102 (Tex. Crim. App. 2005)).
    In the context of admission of evidence of extraneous-act sexual assaults in
    sexual-assault cases, and on direct appeal, trial counsel’s assistance generally is not
    held to be ineffective for the failure to have objected to the extraneous-act
    evidence. See, e.g., Burke v. State, 
    371 S.W.3d 252
    , 256–58 (Tex. App.—Houston
    [1st Dist.] 2011, pet. dism’d); Howland v. State, 
    966 S.W.2d 98
    , 104–05 (Tex.
    App.—Houston [1st Dist.] 1998), aff’d, 
    990 S.W.2d 274
    (Tex. Crim. App. 1999).
    In such cases, many extraneous-act offenses are admissible anyway, including for
    purposes beyond showing that the defendant acted in conformity with his or her
    character. See Taylor v. State, 
    509 S.W.3d 468
    , 476–78 (Tex. App.—Austin 2015,
    pet. ref’d); 
    Burke, 371 S.W.3d at 256
    –58; Jones v. State, 
    119 S.W.3d 412
    , 420–21
    (Tex. App.—Fort Worth 2003, no pet.). Failing to object to otherwise admissible
    evidence is not ineffective assistance. See 
    Burke, 371 S.W.3d at 256
    –58. And even
    if the extraneous-act evidence is inadmissible, it may still be sound trial strategy—
    7
    and, thus, not ineffective assistance—not to object. See Huerta v. State, 
    359 S.W.3d 887
    , 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Haagensen v.
    State, 
    346 S.W.3d 758
    , 766 (Tex. App.—Texarkana 2011, no pet.).
    In the same vein, trial counsel’s failure to request a hearing outside the
    presence of the jury to assess the admissibility of evidence that proves to be
    admissible is not ineffective assistance. See Mowbray v. State, 
    788 S.W.2d 658
    ,
    670–71 (Tex. App.—Corpus Christi–Edinburg 1990, pet. ref’d); see also Fetterolf
    v. State, 
    782 S.W.2d 927
    , 930–31 (Tex. App.—Houston [14th Dist.] 1989, pet.
    ref’d) (holding that “appellant’s case” at trial suffered no prejudice by State’s
    failure to provide required notice of outcry testimony and that outcry testimony
    was admissible over hearsay objection).
    Under ineffective assistance’s second, prejudice prong, Strickland requires
    an appellant to show a reasonable probability that, but for trial counsel’s errors, the
    outcome of the appellant’s trial would have been different. Bone v. State, 
    77 S.W.3d 828
    , 833 (Tex. Crim. App. 2002); Sanders v. State, 
    346 S.W.3d 26
    , 34
    (Tex. App.—Fort Worth 2011, pet. ref’d). A “reasonable probability” is a
    probability sufficient to undermine confidence in the conclusion that the defendant
    was given a trial whose result is reliable. See Gomez v. State, 
    552 S.W.3d 422
    ,
    432–33 (Tex. App.—Fort Worth 2018, no pet.). “[A] verdict or conclusion only
    weakly supported by the record is more likely to have been affected by errors than
    8
    one with overwhelming record support.” 
    Id. at 433
    (alteration in original) (quoting
    
    Strickland, 466 U.S. at 696
    ).
    As relevant to this appeal, Code of Criminal Procedure article 38.37
    provides:
    Sec. 2. (a) Subsection (b) applies only to the trial of a defendant for:
    (1) an offense under any of the following provisions of the
    Penal Code:
    ....
    (C) Section 21.11 (Indecency With a Child);
    (D) Section 22.011(a)(2) (Sexual Assault of a Child);
    ....
    (b) 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) may be
    admitted in the trial of an alleged offense described by
    Subsection (a)(1) or (2) 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.
    Sec. 2-a. 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.
    Sec. 3. The state shall give the defendant notice of the state’s intent to
    introduce in the case in chief evidence described by Section 1 or 2 not
    later than the 30th day before the date of the defendant’s trial.
    9
    II.   Hearing Under Article 38.37, § 2-a(2)
    McDaniel argues that his trial counsel’s failure to have objected to the trial
    court’s failure to have held the hearing required by Article 38.37, § 2-a(2), is
    ineffective assistance. He argues that evidence of several extraneous-act sexual
    assaults committed by him against Mary and Cathy should have been assessed first
    in a hearing under Article 38.37, § 2-a(2), outside the presence of the jury. His
    counsel’s failure to have objected to the lack of such a hearing is, he says,
    ineffective assistance.
    Mary testified about three extraneous-act sexual assaults committed by
    McDaniel against her in addition to the two instances of penetration of her sexual
    organ that formed the bases of Counts One and Two. The first such assault
    involved McDaniel asking Mary to touch his penis when she was six years old.
    Mary felt ill at school, so McDaniel brought her home. While McDaniel was lying
    on the bed in his room, Mary went to lie down with him because she still did not
    feel well. McDaniel was watching what Mary described as inappropriate videos—
    ones in which the people were naked. McDaniel then asked Mary to touch his
    penis with her hand and to move her hand up and down on it. Nothing “c[a]me out
    of his penis” on that occasion.
    During the second extraneous-act assault that Mary testified about, the
    “same thing that happened at the house” happened again. McDaniel made her
    10
    touch his penis with her hand, and something “c[a]me out of his penis” on this
    occasion. He told her not to tell anyone about what happened, including her
    mother, because no one would believe her. Mary described this second assault to
    the SANE during her examination, and the SANE testified about it at trial.
    Finally, when Mary was 15 years old, she was injured during athletics.
    While at home later that day, she asked McDaniel to put pressure on her leg to ease
    the pain. Mary was lying on her stomach on her bed, wearing basketball shorts and
    underwear. McDaniel rubbed her injured leg. Then, his finger “went in [her]
    bottom.” Mary did not want him to do this. The incident ended with McDaniel
    going to the kitchen and washing his hand.
    In an interview with investigators, McDaniel admitted that Mary had licked
    his penis and had “jacked [him] off” using her hand. He also admitted to putting
    his finger in her anus, but he claimed that it was unintentional.
    As for Cathy, she testified about one morning when she was nine or ten
    years old. Her mother and stepsisters went to the gym, leaving her home alone with
    McDaniel. Because Cathy had nightmares, McDaniel asked her to come to his bed.
    She got into his bed and under the covers with him. She was wearing pajamas and
    he just his underwear. He put his hand inside her pajama pants but outside her
    underwear. He rubbed her “private parts.” Then he put his hands inside her
    underwear and rubbed her private parts again. Then he took off his underwear,
    11
    pulled off her pajama pants and underwear, and put his penis inside of her vagina.
    This hurt her and made her feel scared and upset.
    The trial court did not hold a hearing under Article 38.37, § 2-a(2), to assess
    whether the evidence of the extraneous-act assaults should be admitted. But if it
    had, it would have found the evidence as to Mary admissible. Evidence of
    extraneous-act offenses “shall be admitted for its bearing on relevant matters,
    including: . . . the previous . . . relationship between the defendant and the child,”
    “[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence.” TEX. CODE
    CRIM. PROC. art. 38.37, § 1(b); see also Sanders v. State, 
    255 S.W.3d 754
    , 759–60
    (Tex. App.—Fort Worth 2008, pet. ref’d). This kind of evidence is required to be
    admitted. See Distefano v. State, 
    532 S.W.3d 25
    , 36 (Tex. App.—Houston [14th
    Dist.] 2016, pet. ref’d). Mary’s testimony about McDaniel making her touch his
    penis and putting his finger in her anus bears on their prior relationship, helps
    demonstrate “the unnatural attitude and relationship” McDaniel “had developed
    toward” Mary, and suggests that McDaniel “saw sex with” Mary as something
    “that he took lightly.” See 
    Sanders, 255 S.W.3d at 759
    . Mary’s extraneous-act
    testimony was therefore admissible under Article 38.37, § 1. See id.; see also
    Sebalt v. State, 
    28 S.W.3d 819
    , 821 (Tex. App.—Corpus Christi–Edinburg 2000,
    no pet.); Hinojosa v. State, 
    995 S.W.2d 955
    , 957 (Tex. App.—Houston [14th Dist.]
    1999, no pet.). So, had the trial court conducted the hearing under Article 38.37,
    12
    § 2-a(2), it would have found the evidence admissible. Because the evidence that
    McDaniel complains of was admissible, his trial counsel’s failure to secure a
    hearing under Article 38.37, § 2-a(2), was not ineffective assistance. See 
    Taylor, 509 S.W.3d at 476
    –78; 
    Burke, 371 S.W.3d at 256
    –58; 
    Jones, 119 S.W.3d at 420
    –
    21; see also 
    Fetterolf, 782 S.W.2d at 930
    –31.
    As for Cathy’s extraneous-act testimony, our decision in Alvarez v. State,
    
    491 S.W.3d 362
    (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d), shows that that
    testimony would be admissible too. In Alvarez, similar evidence of extraneous-act
    sexual assaults against children other than the complainant was held to be
    admissible over a Rule of Evidence 403 objection. 
    Id. at 370–71;
    accord Caston v.
    State, 
    549 S.W.3d 601
    , 611–14 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
    This court reasoned that “Alvarez’s other sexual assaults were relevant to
    [complainant]’s credibility and therefore were prejudicial to Alvarez.” 
    Alvarez, 491 S.W.3d at 371
    . Likewise here, Rules of Evidence 402 and 403 would not have
    supported exclusion of the Cathy-related testimony. And Article 38.37, § 2(b),
    would allow admission of the same testimony notwithstanding Rules of
    Evidence 404 and 405. See 
    id. Therefore, no
    rule of inadmissibility advanced by
    McDaniel would have required exclusion of the Cathy-related testimony. As a
    result, McDaniel’s trial counsel was not ineffective for failing to have secured an
    Article 38.37 hearing on that evidence. See 
    Taylor, 509 S.W.3d at 476
    –78; Burke,
    
    13 371 S.W.3d at 256
    –58; 
    Jones, 119 S.W.3d at 420
    –21; see also 
    Fetterolf, 782 S.W.2d at 930
    –31.
    III.   Notice Under Article 38.37, § 3
    McDaniel also argues that his trial counsel was ineffective for failing to
    object to the State’s alleged violation of Article 38.37, § 3’s, notice requirements.
    McDaniel points to his trial counsel’s acknowledged receipt of information from
    the State about Cathy’s potential testimony. That written acknowledgement was
    dated May 8, 2018, and trial started on May 21, 2018—a notice period of only
    13 days. He argues that, had his counsel secured the full 30 days’ notice to which
    Article 38.37, § 3, entitles him, his counsel would have had more time to prepare
    for Cathy’s cross-examination. The State responds that McDaniel’s reliance on the
    acknowledgement filing is misplaced and that his trial counsel may actually have
    had more than 13 days’ notice of Cathy’s information.
    No evidence in the record confirms when McDaniel’s counsel actually
    received notice of Cathy’s information. And, assuming notice was received only
    13 days before trial, no evidence confirms why his counsel chose not to secure
    notice earlier. Trial counsel sometimes strategically may choose not to make
    unnecessary formal requests. See Young v. State, 
    425 S.W.3d 469
    , 471–72 (Tex.
    App.—Houston [1st Dist.] 2012, pet. ref’d) (holding that trial counsel’s failure to
    move for deferred adjudication did not infringe objective standard of professional
    14
    norms: motion was unnecessary because judge, not jury, was assessing
    punishment). A formal request was unnecessary once McDaniel’s trial counsel
    received Cathy’s information, whenever that occurred. And courts have upheld
    notice periods even shorter than 13 days as reasonable. See, e.g., 
    Sebalt, 28 S.W.3d at 821
    –22; Self v. State, 
    860 S.W.2d 261
    , 263–64 (Tex. App.—Fort Worth 1993,
    pet. ref’d). We therefore will not hold that McDaniel’s trial counsel’s alleged
    failure to secure an additional 17 days’ notice, without more, is “so outrageous that
    no competent attorney would have” acted similarly. See 
    Menefield, 363 S.W.3d at 593
    ; see also 
    Sebalt, 28 S.W.3d at 821
    –22. If the failure to secure the additional
    time does not rise to that level, then we should not denounce McDaniel’s trial
    counsel as ineffective without first affording counsel an opportunity to explain. See
    
    Menefield, 363 S.W.3d at 593
    .
    IV.   The State’s Alleged Violations of Rulings in Limine
    McDaniel further argues that his trial counsel was ineffective for failing to
    object to the State’s alleged violations of rulings in limine in his favor. McDaniel
    points to four remarks made in the State’s opening statement and also points to
    Mary’s testimony about McDaniel’s extraneous-act assaults against her, which are
    recounted above. The four opening-statement remarks involved (1) a reference to
    McDaniel’s confessing to making Mary rub his penis until he ejaculated when she
    was six years old, (2) a reference to his confessing to making her lick his penis,
    15
    (3) a preview of Cathy’s testimony about the extraneous-act assaults against her,
    and (4) a reference to “even more acts of sexual abuse.”
    In the context of ineffective-assistance allegations, an objection to a
    statement that allegedly violates a ruling in limine implicates the underlying
    material’s admissibility. See Rodriguez v. State, 
    129 S.W.3d 551
    , 558–60 (Tex.
    App.—Houston [1st Dist.] 2003, pet. ref’d); Matthews v. State, 
    960 S.W.2d 750
    ,
    753–54 (Tex. App.—Tyler 1997, no pet.). As for the remarks during opening
    statement concerning Mary and her later testimony, any objection requiring the
    State to comply with the limine order would have ultimately proven to be a futile
    act because evidence of the extraneous-act assaults against Mary was admissible
    under Article 38.37, § 1. See 
    Rodriguez, 129 S.W.3d at 558
    –60; Schneider v. State,
    
    951 S.W.2d 856
    , 863–65 (Tex. App.—Texarkana 1997, pet. ref’d). Trial counsel’s
    failure to undertake a futile act is not ineffective assistance. See 
    Rodriguez, 129 S.W.3d at 558
    –60. Therefore, McDaniel’s claim from the Mary-related material is
    insufficient under ineffective assistance’s first prong.
    Based on our prior conclusion that the testimony underlying the
    Cathy-related statements would have been admissible, McDaniel cannot meet
    ineffective assistance’s first prong for those statements either. See 
    Caston, 549 S.W.3d at 611
    –14; 
    Alvarez, 491 S.W.3d at 370
    –71.
    16
    V.    Mares v. State is Distinguishable
    McDaniel likens his case to the ineffective-assistance circumstances in
    Mares v. State, 
    52 S.W.3d 886
    (Tex. App.—San Antonio 2001, pet. ref’d), but
    Mares is distinguishable. It involved six alleged instances of ineffective
    assistance—four from the guilt–innocence phase of trial and two from the
    punishment phase. 
    Id. at 890–93.
    The court of appeals concluded that none of the
    guilt–innocence instances constituted ineffective assistance and that one of the
    punishment instances did not constitute ineffective assistance either. 
    Id. at 890–92.
    In the remaining punishment instance, the State asked a probation officer to
    opine on whether someone with a record like the defendant’s would be a good
    candidate for probation. 
    Id. at 892–93.
    The officer testified that a defendant found
    guilty of a sexual-assault offense and who had been given probation before for a
    separate violent offense, such as an aggravated assault, would not be a good
    candidate for probation. 
    Id. at 893.
    The court of appeals noted that “[t]rial
    counsel’s sole strategy at the punishment phase of the trial was to obtain a probated
    sentence.” 
    Id. So, to
    have failed to object to the officer’s opinion testimony on the
    appropriateness of probation for someone with the defendant’s criminal history
    “fell below an objective standard of reasonableness” because the officer’s
    testimony was “directly contrary to Mares’s goal at the hearing, and it was
    inadmissible.” 
    Id. 17 Here,
    unlike the Mares probation officer’s testimony, the Mary-related
    material that forms much of the basis of the claims of ineffective-assistance was
    ultimately admissible. Also, we have no record of McDaniel’s trial counsel’s
    strategy concerning the Cathy-related material. For example, counsel may have
    wanted Cathy to testify so as to expose inconsistencies in her testimony, which
    could have undermined her credibility. See, e.g., Lopez v. State, 
    343 S.W.3d 137
    ,
    141, 143–44 (Tex. Crim. App. 2011). Mares, therefore, does not compel a holding
    of ineffective assistance here.
    VI.   Error Preservation
    Finally, McDaniel argues that his trial counsel was ineffective for failing to
    preserve error for appeal on the evidentiary issues that he otherwise raises. He
    claims that there can be no conceivable trial strategy for defense counsel’s failure
    to invoke Article 38.37’s protections.
    Our conclusions as to the admissibility of the Mary- and Cathy-related
    extraneous-act assaults render McDaniel’s position untenable. Failing to object
    either to the lack of a hearing under Article 38.37, § 2-a(2), or to the alleged limine
    violations concerning Mary’s statements was not ineffective assistance because
    either objection would have been futile. See 
    Taylor, 509 S.W.3d at 476
    –78; 
    Burke, 371 S.W.3d at 256
    –58; 
    Rodriguez, 129 S.W.3d at 558
    –60; 
    Jones, 119 S.W.3d at 420
    –21; see also 
    Fetterolf, 782 S.W.2d at 930
    –31. And had defense counsel
    18
    objected either to the lack of the hearing; to the lack of 17 more days’ notice under
    Article 38.37, § 3; or to the alleged limine violations as to Cathy’s statements, the
    record does not show a reasonable probability that the trial’s outcome would have
    changed had trial counsel made those objections. The other admissible evidence on
    its own was not so weak as to undermine the reliability of the trial’s outcome. See
    
    Bone, 77 S.W.3d at 833
    ; 
    Gomez, 552 S.W.3d at 432
    –33; 
    Sanders, 346 S.W.3d at 34
    . We hold that McDaniel has not met his burden to show that he received
    ineffective assistance of counsel.
    Conclusion
    We affirm the trial court’s judgments of conviction.
    Gordon Goodman
    Justice
    Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
    Do not publish. TEX. R. APP. P. 47.2(b).
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