Kyle Carpenter Dietrich v. State ( 2009 )

Affirmed and Memorandum Opinion filed March 31, 2009

Affirmed and Memorandum Opinion filed March 31, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00541-CR

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KYLE CARPENTER DIETRICH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1072796

M E M O R A N D U M   O P I N I O N

Appellant Kyle Carpenter Dietrich was convicted of aggravated sexual assault of a child and sentenced to thirty-three years= confinement in the Texas Department of Criminal Justice, Institutional Division.  On appeal, he contends he was denied (a) the effective assistance of counsel and (b) a fair and impartial jury.  He further asserts that a conflict of interest with his attorneys rendered his counsel ineffective and that the State did not prove venue by a preponderance of the evidence.  We affirm.

I.  Factual and Procedural Background

Appellant has not challenged the sufficiency of the evidence; we therefore discuss the facts only briefly here and throughout the opinion as necessary to address his appellate issues.

Sheila,^[1] appellant=s stepdaughter, testified regarding several incidents in which appellant sexually assaulted her.  These sexual assaults occurred when Sheila was between thirteen to seventeen years old.  She explained that her mother, Linda, married appellant when she was twelve years old, and appellant moved into their home in South Houston.  Sheila specifically described an occasion that she recalled occurred in early May 2000, when she was thirteen, where appellant forced her to perform oral sex on him in his truck.^[2] She also detailed several other sexual assaults that occurred in her South Houston home.  She testified that appellant sexually assaulted her repeatedly some weeks, but at other times, months passed without an assault. 

When she was around fifteen years old, Sheila explained that she left her mother Linda=s house in South Houston and moved in with her biological father.  While Sheila was living with her father, appellant suffered a serious head injury that left him comatose; when he recovered from the coma, he had to relearn numerous basic human functions in the hospital before he returned to her mother=s home.  Appellant and Linda also received a financial settlement due to his injury.  Sheila stated that she decided to move back to the home in South Houston because she thought appellant was no longer a threat to her after his head injury.  According to Sheila, appellant sexually assaulted her once more after he had been injured.  She testified that, when she was eighteen, she married the individual her mother and appellant had hired to manage their personal-injury settlement funds, and she moved out of the house.  After she married and moved away, her mother and appellant separated.

Sheila explained that she told her mother Linda about the sexual assaults when Linda told her she was considering reconciling with appellant.  According to Sheila, her mother did not believe her and called her a Aslut@ and a Aliar.@  Soon after telling Linda about the abuse, Sheila reported her allegations to the authorities, who investigated her claims and arrested appellant.

After the State rested its case-in-chief, Linda testified in defense of appellant. She stated that she had never seen any inappropriate behavior between appellant and Sheila.  Linda  stated that she and appellant had been in Las Vegas for several days celebrating their anniversary from around April 30 to May 4, 2000.  She agreed that it would have been impossible for appellant to have been around Sheila on those dates.  According to Linda, she and Sheila had a good relationship when the sexual assaults occurred, but Sheila never told her about any problems.  Linda explained that she never noticed anything in Sheila=s demeanor that would indicate she had any problems with appellant.  Linda stated that she believed Sheila was not a truthful person. 

Linda testified regarding the personal-injury settlement she and appellant had received after his head injury.  Linda testified that she and appellant spent the money in about two-and-a-half years.  She explained that they used it on an unsuccessful business venture, paying their home mortgage, and feeding and clothing her children.  She testified she had been Ain charge of@ the money and had asked her financial advisor (Sheila=s current husband) to transfer part of the money into an account in her name only.  She stated that, after she and appellant separated, he moved in with another woman.  Linda testified that she did not want appellant to have access to the money after they separated.  Linda acknowledged that she was currently taking prescription medications for pain.  She also stated that she and Sheila were no longer speaking to each other.

After both sides rested and closed, the jury found appellant guilty and sentenced him to thirty-three years= confinement in the Texas Department of Criminal Justice, Institutional Division.  The trial court rendered judgment on the jury=s verdict. 

Appellant timely filed a motion for new trial, in which he alleged that (1) the evidence was insufficient to establish venue in Harris County; (2) his trial counsel entered into an agreement with Linda that created Aa legal and actual conflict of interest which prevented the defendant=s attorneys from zealously representing him@; and (3) appellant=s trial counsel was ineffective Ain that certain evidence and persons were not called as witnesses on defendant=s behalf which would have caused a not guilty verdict had such witnesses and the material evidence been presented.@ 

The trial court heard appellant=s motion for new trial in late August and early September 2007.  During the hearing, appellant=s trial counsel, John Morgan and Charles David Thompson, testified regarding the strategy behind their defense of appellant.  They both explained their decision to rely on Linda=s testimony by emphasizing their belief in the importance of a mother testifying that she did not believe her daughter about an alleged sexual assault.  They stated that Linda was a better witness than appellant=s girlfriend because she had been living in the same household with appellant and Sheila when the assaults occurred; thus, they chose to rely on Linda rather than appellant=s girlfriend.  Thompson explained their failure to call several witnesses regarding appellant=s character during the guilt-innocence phase because doing so would have opened the door to appellant=s conviction for solicitation of prostitution.  He also stated that they did not call several of these witnesses during punishment because they would all be subject to cross-examination regarding appellant=s past drug and alcohol problems. 

Several witnesses testified regarding their belief that appellant was of good character and had a good reputation for Asafe and moral relations@ with children.  Appellant testified that Sheila made up the accusations against him.  He believed Linda was a poor witness, was under the influence of drugs during her testimony, and had a motive to influence Sheila to fabricate these allegations against him because she was trying to prevent him from discovering what had happened to the funds from the personal-injury settlement.

After hearing the testimony, the trial court denied appellant=s motion for new trial, stating that the second prong of Strickland had not been met, i.e., that appellant had not established a reasonable probability existed that the proceedings would have been different if his counsel had not been deficient. The trial judge further explained, AI think there were multiple strategies.  I think one was taken, and while it wasn=t the only strategy, and, in hindsight, their issues may have been more valuable - - not that I=ve seen that, but that they may be - - I=m going to find and deny the motion for new trial.@  This appeal timely ensued.

II.  Issues Presented

In his first issue, appellant contends his trial counsel was ineffective in violation of the United States and Texas constitutions.  Second, appellant asserts he was denied a fair and impartial jury in violation of the United States and Texas constitutions.  In his third issue, appellant argues that a conflict of interest with his trial counsel deprived him of his right to the effective assistance of counsel under both constitutions.  Finally, appellant complains that the State failed to prove venue by a preponderance of the evidence. 

III.  Analysis

A.        Ineffective Assistance of Counsel

Because appellant=s first and third issues concern the effectiveness of his trial counsel, we consolidate these issues and discuss them first. 

1.         Standard of Review

We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington.  466 U.S. 668 (1984).  Under the Strickland test, an appellant must prove (1) his trial counsel=s representation was deficient, and (2) the deficient performance was so serious that it deprived the appellant of a fair trial.  Id. at 687.  To establish both prongs, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Id. at  690B94.  An appellant=s failure to satisfy one prong makes it unnecessary for a court to consider the other prong.  Id. at 697. This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution.  Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986) (en banc).  Our review of defense counsel=s performance is highly deferential, beginning with the strong presumption that the attorney=s actions were reasonably professional and were motivated by sound trial strategy.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).  When the record is silent as to trial counsel=s strategy, we will not conclude that defense counsel=s assistance was ineffective unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

We review a trial court=s ruling on a motion for new trial under an abuse-of-discretion standard.  Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).  We do not substitute our judgment for that of the trial court, but instead determine whether the trial court=s decision regarding the ineffective-assistance claim was arbitrary or unreasonable.  See id.  A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support its ruling.  Id.

2.         Application to Issue One

In his first issue, appellant lists numerous alleged deficiencies by his trial counsel.  These complaints encompass every facet of his trial counsel=s representation.  In over twenty pages in his brief,^[3] he identifies a multitude of alleged deficiencies on the part of his trial counsel, including failure to (1) interview all the witnesses identified by appellant; (2) properly voir dire the venire panel regarding probation and appellant=s brain injury; (3) object to or counter various statements made by the prosecution or members of the venire panel during voir dire; (4) review appellant=s financial records; (5) investigate the significance of appellant=s out-of-state judgments and sentences; (6) execute his peremptory strikes or challenge panel members for cause; (7) question witnesses called to testify and object to various testimony; (8) adequately cross-examine the complainant about previous false accusations; (9) prepare witnesses for testimony during the punishment phase of his trial; and (10) advise appellant to testify during the guilt-innocence phase of his trial.^[4]

But appellant has not explained how most of these alleged deficiencies constitute ineffective assistance of counsel.^[5] In fact, the only analysis provided by appellant regarding the multiple alleged failures identified in his first issue is as follows:

In this case as in Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986), counsel failed to first perform an independent investigation of the law and the facts and then make strategic choices.  As such was not done, then there cannot be a plausible explanation for the failure to do so.  Surely had this been done, [a]ppellant would have been either not guilty or received a lesser sentence.

AIt is fundamental error that an attorney must acquaint himself not only with the law but also the facts of a case before he can render reasonably effective assistance of counsel. . . [T]hat burden may not be sloughed off to an investigator. . .  It is counsel=s responsibility.@

Flores v. State, 576 S.W.2d 632 (Tex. Crim. App. 1979).  Similarly the duty to investigate facts may not be sloughed off to an associate.[^[6]]  If counsel does so he must be held constructively aware of the information his associate learns.  The Flores court found these omissions in counsel=s investigation of his client=s alibi defense were not the result of reasonable professional judgments.

Likewise in [a]ppellant=s case, the above failures and omissions were not the result of reasonable professional judgments but of neglect and incompetency and resulted in ineffective assistance of counsel.  Clearly had [a]ppellant testified and had counsel used the witnesses [a]ppellant designated instead of [the complainant=s mother], he would have had his defense developed fully and significant character witnesses to establish [a]ppellant=s character as good for safe and moral relations with children and teenagers.  The probability would have been high that [a]ppellant would have been found not guilty.

In sentencing[,] had counsel properly prepared witnesses and requested probation or a lesser sentence, the probability is high that [a]ppellant would have received probation or a lesser sentence.  Because of the ineffective assistance in failing to conduct a complete investigation of [a]ppellant=s defense and the character of [a]ppellant, the complainant and [her mother], as well as not representing [a]ppellant zealously in voir dire, cross-examination, direct examination, close on guilt/innocence and sentencing, [a]ppellant received ineffective assistance of counsel.

Although appellant has also briefed the constitutional doctrine supporting an ineffective assistance of counsel claim, it is insufficient that an appellant raise only a general constitutional doctrine in support of his request for relief.  Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002) (en banc).  An appellant must cite specific legal authority and provide legal arguments based on that authority. Id.  Thus, the only aspect of appellant=s ineffective assistance of counsel claim that is adequately briefed in this case is whether his trial counsel investigated the facts of his case.

Trial counsel=s representation may fall below an objective standard of reasonableness if counsel does not conduct an adequate pretrial investigation.  Salinas v. State, 274 S.W.3d 256, 261 (Tex. App.CHouston [14th Dist.] 2008, pet. filed) (citing Wiggins v. Smith, 539 U.S. 510, 521B22, 533B34 (2003)).  Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.  Id.  Generally, we defer to counsel=s judgments regarding decisions about the type of investigation necessary in a particular case.  See id.

The adequacy of trial counsel=s investigation into appellant=s case was addressed during the hearing on appellant=s motion for new trial.^[7] John Morgan, one of appellant=s trial attorneys, stated that he hired an investigator and spoke to several possible witnesses.  Morgan also testified that he brought in a Aspecialist,@ Charles Thompson, to assist him in defending appellant because Thompson had extensive experience in sexual assault cases both as a prosecutor and as a defense attorney.  Thompson explained that he and Morgan did not call several potential character witnesses because they did not want to highlight appellant=s past drug and alcohol problems, and these witnesses knew appellant through various recovery programs.  Thompson further testified that they did not want to permit cross-examination regarding whether these witnesses= opinions had changed about appellant in light of the current conviction.  In Thompson=s opinion, doing so would have allowed the prosecutor to remind the jury about appellant=s conviction with each witness, which, in effect, would have given the State the opportunity to perform a Amini-closing@ argument with each witness.^[8] Finally, Thompson stated that he and Morgan advised appellant not to testify during the guilt-innocence phase because appellant often became angry during their mock cross-examination of him and his medical issues prevented him from remembering some things. 

In sum, the record reflects that both attorneys who represented appellant reviewed the facts of the case, discussed their options with appellant, and made strategic decisions regarding which witnesses to call.  AIt is axiomatic that appellant=s constitutional right to counsel does not mean errorless counsel where competency or adequacy of representation is argued or judged purely by hindsight.@  Holland v. State, 761 S.W.2d 307, 320 (Tex. Crim. App. 1988).  The fact that another attorney may have acted in a different manner is not sufficient to prove ineffective assistance.  Kesaria v. State, 148 S.W.3d 634, 638 (Tex. App.CHouston [14th Dist.]), aff=d, 189 S.W.3d 279 (Tex. Crim. App. 2006).  Further, any error in trial strategy rises to the level of ineffective assistance only when counsel=s actions lack any plausible basis.  Id. Although in hindsight, appellant=s trial counsel may have made strategic decisions that did not work entirely in appellant=s favor, we cannot say these decisions lacked any plausible basis or resulted from an inadequate investigation into the facts of appellant=s case. 

Under these circumstances, we conclude that the trial court did not abuse its discretion in denying appellant=s motion for new trial on the basis of ineffective assistance of counsel.  We therefore overrule appellant=s first issue.

3. Application to Issue Three

In his third issue, appellant asserts that his trial counsel was ineffective because either (a) a conflict of interest existed between appellant and the complainant=s mother Linda or (b) his trial counsel Aentered into an agreement@ with Linda to forego the use of appellant=s girlfriend as a defense witness so that Linda would testify. 

Ineffective assistance of counsel may result when an attorney labors under a conflict of interest.  Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007). To demonstrate a violation of his right to effective assistance of counsel based on such a conflict, a defendant must show that (1) his counsel was burdened by an actual conflict of interest and (2) his trial counsel actually acted on behalf of the other interest at trial.  Id. at 356 (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)).  Here, appellant has not explained either how his trial counsel=s decision to rely on Linda=s testimony constituted a conflict of interest or how his trial counsel actually acted on any such interest. Indeed, there is absolutely no indication in the record that appellant=s trial counsel was representing Linda=s interests in any manner.  At best, appellant asserts that there was a potential conflict of interest between him and his trial counsel.  But the showing of a potential conflict of interest does not constitute an actual conflict of interest.  Ex parte McFarland, 163 S.W.3d 743, 759 n.52 (Tex. Crim. App. 2005) (en banc) (citing Routier v. State, 112 S.W.3d 554, 579 (Tex. Crim. App. 2003) and distinguishing between actual and potential conflicts of interest).  Thus, appellant has failed to establish that his counsel was burdened by any actual conflict of interest.  See Acosta, 233 S.W.3d at 355B56.  Further, appellant has not shown that his trial counsel acted on any conflict of interest, assuming one even existed.  See id.

Finally, even if we construe this issue as a complaint regarding his trial counsels= decision to rely on the complainant=s mother Linda as the primary defense witness in lieu of calling appellant=s girlfriend as a witness, appellant has failed to establish that such a decision resulted in ineffective assistance of counsel.  The strategy behind his trial counsel=s decision to rely on Linda=s testimony was addressed several times during the hearing on appellant=s motion for new trial.  For example, in response to a question regarding the development of trial strategy, trial counsel Morgan stated, AWe felt like the person who was around the family unit at the time that this alleged abuse took place would have been primarily Linda and [appellant].  We felt like the best witness we had, and we pretty much put our eggs in her basket, was for Linda to be the main witness for us.@  Further, Morgan explained his choice to rely on Linda, rather than appellant=s then-girlfriend, as follows: A[W]e felt like Linda was a much more important witness for this case than [appellant=s girlfriend] because of the time frame, because of where Linda was [when] the assaults took place . . . .@  In light of these explanations, appellant=s trial counsel=s decision to rely on the complainant=s mother as their primary witness did not lack any plausible basis.  See Kesaria, 148 S.W.3d at 638.

Because appellant has not shown that his trial counsel was burdened by an actual conflict of interest or that his counsel=s decision to rely on the testimony of the complainant=s mother lacked any plausible basis, he has not established that his counsel was ineffective.  We therefore overrule his third issue.

B.        Impartial Jury

In his second issue, appellant asserts that he was denied the constitutional right to a fair and impartial jury.  A criminal defendant has a constitutional right to a fair and impartial jury.  See U.S. Const. amend. VI; Tex. Const. art. 1, ' 10.  This right, however, is subject to waiver by the defendant.  State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 2008) (en banc); see also Delrio v. State, 840 S.W.2d 443, 445 (Tex. Crim. App. 1992) (en banc) (A[W]e have recognized [an impartial jury] to be a right of the accused, which must be pressed in some fashion at trial before reversal of his conviction may be predicated upon its breach.@).

Here, appellant did not challenge for cause any of the jurors about which he now complains.  In addition, appellant=s trial counsel affirmatively stated that he had no objection to the jury.^[9]  Appellant has therefore not preserved this issue for our review.  We overrule his second issue.      

C.        Venue

In his fourth and final issue, appellant argues that the State did not prove that venue of this offense was proper in Harris County.  The State bears the burden to establish venue by a preponderance of the evidence.  Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983) (en banc).  The evidence used to satisfy the burden may be either direct or circumstantial. Id. The evidence of venue is sufficient if it permits the factfinder to reasonably conclude that the offense was committed in the county alleged.  Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964); Sudds v. State, 140 S.W.3d 813, 818 (Tex. App. Houston [14th Dist.] 2004, no pet.).  Finally, A[v]enue will stand if it is sufficient under any one of the venue provisions the jury was instructed upon.@  Murphy v. State, 112 S.W.3d 592, 605 (Tex. Crim. App. 2003) (en banc).

Here, the jury was instructed on venue as follows:

A sexual assault prosecution may be brought within the county in which the sexual assault offense was committed. . . .  However, if an offense has been committed within the state and it cannot readily be determined within which county or counties the offense was committed, the trial may be held in a county in which the defendant resides, in a county in which he is apprehended, or in a county to which he is extradited.

This instruction contains language from Texas Code of Criminal Procedure articles  13.15 and 13.19.  See Tex. Code Crim. Proc. Ann. arts. 13.15, 13.19 (Vernon 2005).  Thus, venue was appropriate in Harris County if the State established, by a preponderance of the evidence,  either (a) the sexual assault occurred in Harris County, or (b) it was not readily determinable in which Texas county the offense occurred and the defendant resided in, was apprehended in, or extradited to Harris County.

Here, the complainant testified regarding numerous sexual assaults.  She stated that she believed one of the specific instances of sexual assault occurred in Harris County.^[10]  Further, she testified that the other incidents occurred at her mother=s home on Princess Street in South Houston, which is located in Harris County.  Thus, the State established, by a preponderance of the evidence, that venue was appropriate in Harris County.  We therefore overrule appellant=s fourth issue.

IV.  Conclusion

In sum, we conclude that appellant=s trial counsel was not ineffective and that appellant failed to preserve his complaint that he was denied the right to a fair and impartial jury.  We further conclude that the State established venue in Harris County by a preponderance of the evidence. Therefore, we overrule appellant=s issues and affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Although she was twenty-one years old at the time of trial, we refer to the complainant by the pseudonym ASheila@ to protect her identity.

^[2]  This assault occurred when appellant and the complainant were on the way to a WalMart store.  Appellant pulled his truck off the road into a wooded area and assaulted the complainant.  Although the complainant could not state Abeyond a reasonable doubt@ that the location of this particular assault was in Harris County, she stated that she believed it was.

^[3]  See Appellant=s Brief pp. 7B29.

^[4]  The State consolidates appellant=s complaints as follows:

Appellant identifies dozens of instances in which he claims his trial lawyers were ineffective.  Among his many criticisms, he complains of their purported failure to: (1) interview potential witnesses; (2) investigate factual matters; (3) allow appellant to testify; (4) call certain character witnesses; (5) properly exercise peremptory strikes and challenges for cause; (6) object or seek a mistrial following certain comments by venirepersons; (7) address various subject matters during voir dire; (8) effectively present a closing argument at guilt-innocence; (9) object to the prosecutor=s closing argument; (1) prepare punishment witnesses; (12) object to certain punishment evidence; (13) present a proper closing punishment argument; (14) object to the prosecutor=s leading questions; (15) object to testimony involving hearsay, speculation, and narrative answers; (16) properly address appellant=s probation eligibility; (17) present evidence of the complainant=s purported false accusations against others; (18) pursue a trial strategy that relied less heavily on Linda=s testimony; and (19) investigate the status of an out-of-state conviction.

^[5]  See, e.g., Garcia v. State, 887 S.W.2d 862, 880B81 (Tex. Crim. App. 1994) (en banc) (overruling claim that counsel was ineffective due to his failure to object because appellant failed to explain Ahow counsel might have kept the statement out@), abrogated by Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001); Peake v. State, 133 S.W.3d 332, 334 (Tex. App.CAmarillo 2004, no pet.) (A[W]e are left to guess at the reasoning underlying appellant=s claim and at the legitimacy of that reasoning, if any.  And, because of that, the complaint was waived due to insufficient briefing.@); Melonson v. State, 942 S.W.2d 777, 782 (Tex. App.CBeaumont 1997, no pet.) (holding that an appellant must not only specifically identify the deficiencies in counsel=s performance but also identify the specific objection that should have been made and provide authority in support of his argument that the objection would have been meritorious).

^[6]  Appellant has not cited any authority for this proposition.

^[7]  For those allegations that were not raised at the hearing on the motion for new trial, such as appellant=s complaints regarding his trial counsel=s use of peremptory strikes during voir dire, the record is insufficient to overcome the presumption that appellant=s trial counsel acted in a reasonably competent and professional manner.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

^[8]  Appellant=s trial counsel called five witnesses to testify regarding appellant=s good character at the punishment hearing.  Several of these witnesses also testified that they believed appellant would be a good candidate for probation.  Appellant also testified that he believed he was eligible  and would be a good candidate for probation.  Finally, the jury was charged on the issue of probation, yet returned a verdict of thirty-three years= confinement.  See Tex. Code Crim. Pro. Ann. art 42.12 ' 4(d)(1) (Vernon Supp. 2008) (defendant not eligible for probation if jury sentences him to more than ten years in prison).

^[9]  In Dixon v. State, this court concluded in an unpublished memorandum opinion that an affirmative representation that a defendant has Ano objection@ to the composition of the jury effectively waives any preserved complaint regarding a trial court=s denial of a challenge for cause.  No. 14-05-00131-CR, 2006 WL 2548175, at *6 (Tex. App.CHouston [14th Dist.] Sept. 5, 2006, no pet.) (mem. op., not designated for publication) (citing Canales v. State, No. 05-94-01741-CR,  1996 WL 547955, at *4 (Tex. App.CDallas Sept. 17, 1996, no pet.) (not designated for publication) (ABy stating [he had] no objection [to the jury], appellant affirmatively waived any error to the composition of the jury.)).  As noted supra, appellant did not assert challenges for cause to any of these jurors.

^[10]  On direct examination, the complainant testified that a specific instance of sexual assault, which occurred in appellant=s truck, happened in Harris County.  Further, she reiterated her belief that this specific incident occurred in Harris County during the following exchange with appellant=s trial counsel:

Q.         And you don=t know this place, the exact location of this place, do you?

A.         No, I do not.

Q.         So it would be fair to say you can=t tell this jury beyond a reasonable doubt that this location was in Harris County, can you?

A.         I believe it was, but, no, not beyond a reasonable doubt.