Jose Venancio v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00147-CR
No. 02-21-00148-CR
___________________________
JOSE VENANCIO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 462nd District Court
Denton County, Texas
Trial Court Nos. F19-580-367, F21-2369-462
Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant Jose Venancio appeals his convictions for continuous sexual abuse
of a child and indecency with a child.1 On appeal, Venancio raises three issues. First,
he argues that the trial court erred by allowing Officer Carlos Flores to testify as an
outcry witness because he was not the first adult to whom the victim disclosed the
abuse. Second, Venancio contends that the trial court erred by denying his request for
a continuance to procure a witness for trial. Finally, Venancio asserts that he received
ineffective assistance of counsel. We will affirm.
I. Background
In December 2018, thirteen-year-old KE 2 told her school counselor Laurie
Melendez that she had been raped by Venancio. Melendez arranged a meeting with
KE’s mom and a Spanish translator so that KE could further discuss what had
happened. At the meeting, KE was crying so much that she could not speak.
1
Venancio was charged with the continuous sexual assault of two separate
victims, KE and JE. The trial court established separate case numbers for the charges
involving each of the two victims: Case No. F19-580-367 for KE and Case No. F21-
2369-462 for JE. The cases were consolidated and tried together. Venancio was
convicted of continuous sexual abuse of a child in KE’s case but was only convicted
of the lesser included offense of indecency with a child in JE’s case. Venancio has
filed separate appeals in each case. Because the issues are identical, we address both
appeals in this opinion.
2
We refer to the victims and their family members—other than the
Appellant—by their initials. See Tex. R. App. P. 9.10(a)(3).
2
Eventually, school resource officer Carlos Flores was called to the scene and
spoke with KE about the allegations. During the meeting with Flores, KE disclosed
specific acts of sexual abuse in which Venancio removed her clothing and penetrated
her vagina with his fingers and penis at a family gathering. Flores referred the case to
the Lewisville Police Department for investigation.
As part of the investigation, KE was interviewed by Stephanie Juarez Killion at
the Children’s Advocacy Center (CAC). During this interview, KE disclosed that
Venancio had committed additional acts of sexual abuse against her and that these
acts had begun when KE was in the fourth or fifth grade. KE provided graphic detail
and demonstrated the abuse during the interview.
Bryan Gibbins, now a former detective, was assigned to the case, conducted
the primary investigation, and procured an arrest warrant for Venancio. However, by
the time the case was brought to trial, Gibbins had begun serving a fifty-year sentence
for multiple counts of sexual assault of a child and possession of child pornography.
The trial court granted the State’s motion in limine regarding Gibbins’s charges, and
the State did not list Gibbins as a potential trial witness.
During trial preparations, KE’s older sister JE informed the District Attorney’s
Office that she had also been sexually abused by Venancio when she was under the
age of fourteen. Lewisville Police Detective Chris Loughry was assigned to investigate
JE’s case. Officer Loughry’s investigation revealed that Venancio had abused JE as
well, and Venancio was subsequently indicted for continuous sexual abuse of JE. This
3
second case involving JE was consolidated with Venancio’s prior case concerning KE,
and both cases were tried together.
Following a jury trial, Venancio was found guilty of continuous sexual abuse of
KE and, in JE’s case, of the lesser included offense of indecency by contact. Venancio
was sentenced to life in prison in KE’s case and to twenty years in prison in JE’s
case.3
II. Discussion
On appeal, Venancio raises three issues. In his first two issues, he argues that
the trial court abused its discretion in two ways: first, by allowing Flores to testify as
an outcry witness and second, by denying Venancio’s motion for a continuance to
procure Gibbins as a trial witness. In his third issue, Venancio asserts that he was
deprived of his rights to the effective assistance of counsel and a fair trial. We will
address each of these issues in turn.
A. Flores’s Testimony as an Outcry Witness
In his first issue, Venancio argues that the trial court erred by allowing Flores to
testify as an outcry witness because Flores was not the first adult to whom KE had
disclosed the abuse.
The trial court ordered that these sentences would run concurrently.
3
4
Article 38.072 of the Texas Code of Criminal Procedure creates a statutory
exception to the general rule excluding hearsay. Tex. Code Crim. Proc. Ann. art.
38.072 § 2(b).
Because it is often traumatic for children to testify in a courtroom
setting, especially about sexual offenses committed against them, the
Legislature enacted Article 38.072 to admit the testimony of the first
adult a child confides in regarding the abuse. This witness may recite the
child’s out-of-court statements concerning the offense, and that
testimony is substantive evidence of the crime.
Martinez v. State, 178 S.W.3d 806, 810–11 (Tex. Crim. App. 2005) (footnote omitted).
The proper outcry witness is the “first person, 18 years of age or older, other than the
defendant, to whom the child or person with a disability made a statement about the
offense or extraneous crime, wrong, or act.” Tex. Code Crim. Proc. Ann.
art. 38.072 § 2(a)(3). The Court of Criminal Appeals has construed the phrase “about
the offense” to mean a statement that “in some discernible manner describes the
alleged offense.” Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). “[T]he
statement must be more than . . . a general allusion” of sexual abuse. Id. Thus, the
proper outcry witness is not necessarily the first adult to whom the child revealed the
abuse but, rather, the first adult to whom the child revealed specific details concerning
the offense. Id.; see also Brown v. State, 381 S.W.3d 565, 572 (Tex. App.—Eastland 2012,
no pet.) (affirming trial court’s designation of forensic interviewer as outcry witness
despite victim’s prior disclosures of abuse to 911 dispatcher and responding police
officer because the information provided to dispatcher and police officer did “not
5
touch upon the detail required when a defendant is charged with continuous sexual
abuse of a young child”); Thomas v. State, 309 S.W.3d 576, 579 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d) (affirming trial court’s determination that stepmother was
proper outcry witness despite victim’s prior report of abuse to mother because initial
report to mother lacked specificity); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—
Dallas 1999, pet. ref’d) (explaining that counselor was proper outcry witness where
complainant told mother that defendant “had touched her private parts” but later told
counselor how, when, and where appellant had touched her).
Trial courts have “broad discretion” when determining what witnesses qualify
as outcry witnesses, and therefore, appellate courts review those decisions under an
abuse of discretion standard. Garcia, 792 S.W.2d at 92; see Collins v. State, No. 02-16-
00146-CR, 2017 WL 119486, at *5 (Tex. App.—Fort Worth Jan. 12, 2017, pet ref’d)
(mem. op., not designated for publication); Rodgers v. State, 442 S.W.3d 547, 552 (Tex.
App.—Dallas 2014, pet. ref’d); see also Foreman v. State, 995 S.W.2d 854, 859 (Tex.
App.—Austin 1999, pet. ref’d) (noting that prior cases “establish the difficulty that
can arise in identifying the proper outcry witness, and the broad discretion of district
courts in making this determination”). Under this standard, “a trial court’s ruling will
only be deemed an abuse of discretion if it is so clearly wrong as to lie outside ‘the
zone of reasonable disagreement’ or is ‘arbitrary or unreasonable.’” Mendez v. State,
No. 03-19-00546-CR, 2021 WL 1148960, at *5 (Tex. App.—Austin Mar. 26, 2021, no
pet.) (mem. op., not designated for publication) (first quoting Lopez v. State, 86 S.W.3d
6
228, 230 (Tex. Crim. App. 2002); and then quoting State v. Mechler, 153 S.W.3d 435,
439 (Tex. Crim. App. 2005)).
Venancio argues that the trial court abused its discretion by permitting Flores
to testify as an outcry witness because KE had previously told Melendez that
Venancio had raped her. However, the trial court could have reasonably concluded
that KE’s disclosure to Melendez lacked sufficient detail to qualify as an outcry
statement. See Garcia, 792 S.W.2d at 91. KE’s mere statement to Melendez that
Venancio had “raped” her did not provide the specific details necessary to charge
Venancio with the offense of which he was ultimately convicted—continuous sexual
abuse of a child. 4 See Solis v. State, No. 02-12-00529-CR, 2014 WL 1663405, at *5 (Tex.
To obtain a conviction for continuous sexual abuse with the underlying
4
offense of aggravated sexual assault of a child, the State must prove that the
defendant did one or more of the following:
(i) cause[d] the penetration of the anus or sexual organ of a child by any
means;
(ii) cause[d] the penetration of the mouth of a child by the sexual organ of
the actor;
(iii) cause[d] the sexual organ of a child to contact or penetrate the mouth,
anus, or sexual organ of another person, including the actor;
(iv) cause[d] the anus of a child to contact the mouth, anus, or sexual organ
of another person, including the actor; or
(v) cause[d] the mouth of a child to contact the anus or sexual organ of
another person, including the actor.
Tex. Penal Code Ann. § 22.021(a)(1)(B)(i)–(v); see also id. § 21.02(b)–(c).
7
App.—Fort Worth Apr. 24, 2014, no pet.) (mem. op., not designated for publication)
(holding that victim’s statements that defendant had “raped” and “molested” her and
“touched her ‘private areas’” did not describe the offenses of indecency with a child
or aggravated sexual assault in any discernible manner and were therefore “no more
than general allusions to sexual abuse”); Brown, 381 S.W.3d at 571–72 (holding
victim’s statements to 911 dispatcher that “her mom made her put her hands up in
her” and that “her dad put his middle part up in her” and to responding officer that
“her parents ‘touched her in her private areas’ and that her ‘dad puts his male parts
inside of her’” did not provide sufficient detail to describe the offense of continuous
sexual abuse of a child); see also Mendez, 2021 WL 1148960, at *7 (holding trial court
did not abuse its discretion by admitting testimony from a second outcry witness
regarding later instances of abuse despite victim’s statement to first outcry witness
that defendant had “repeatedly raped” her because the trial court could reasonably
have concluded that this was nothing more than a general allusion of abuse). Rather, it
was what KE told Flores—that Venancio had removed her clothing and penetrated
her vagina with his penis and his finger at a family gathering—that provided the
specific details needed to charge Venancio with a criminal offense.
Because the trial court could have reasonably concluded that KE’s statement to
Melendez that she had been “raped” by Venancio was no more than a general allusion
of sexual abuse and that her true outcry was to Flores—the first adult to whom she
provided specific details of the offense—we cannot conclude that the trial court
8
abused its broad discretion by allowing Flores to testify as an outcry witness. See
Garcia, 792 S.W.2d at 91–92.
We overrule Venancio’s first issue.
B. The Denial of Venancio’s Motion for Continuance
In his second issue, Venancio argues that the trial court erred by denying his
oral motion for continuance to procure Gibbins as a trial witness. However, because
this issue was not preserved for our review, Venancio has forfeited his complaint on
appeal. 5
Requests for continuance during trial are governed by Article 29.13 of the
Texas Code of Criminal Procedure, which provides that
[a] continuance or postponement may be granted on the motion of the
State or defendant after the trial has begun, when it is made to appear to
the satisfaction of the court that by some unexpected occurrence since
the trial began, which no reasonable diligence could have anticipated, the
applicant is so taken by surprise that a fair trial cannot be had.
Neither party addressed this preservation issue in their appellate briefing.
5
However, because “[p]reservation of error is a systemic requirement . . . [which] a
court of appeals should review . . . on its own motion,” we must nevertheless
determine whether error was preserved before considering the merits of Venancio’s
argument. Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009); see also
Landaverde v. State, Nos. 05-19-00175-CR, 05-19-00176-CR, 2020 WL 2897108, at
*10 (Tex. App.—Dallas June 3, 2020, pet. ref’d) (mem. op., not designated for
publication) (determining that appellant had not preserved error even though the State
had not disputed whether the issue had been preserved).
9
Tex. Code Crim. Proc. Ann. art. 29.13. We review the denial of a motion for
continuance for an abuse of discretion, giving a wide degree of deference to the trial
court. See Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002).
The law is clear that motions for continuance must be both written and sworn.
See Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08. Consequently, the Texas Court of
Criminal Appeals has held that “if a party makes an unsworn oral motion for a
continuance and the trial judge denies it, the party forfeits the right to complain about
the judge’s ruling on appeal.” Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App.
2012) (citing Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009)). In other
words, “an unsworn oral motion preserves nothing for appeal.” Id.; see also Owens v.
State, No. 05-19-00371-CR, 2021 WL 5410518, at *2 (Tex. App.—Dallas Nov. 19,
2021, no pet.) (mem. op., not designated for publication) (“[W]e conclude appellant’s
oral motion for continuance preserved nothing for our review.”); Coleman v. State,
No. 02-18-00471-CR, 2020 WL 241975, at *20 (Tex. App.—Fort Worth Jan. 16, 2020,
no pet.) (mem. op., not designated for publication) (“[I]f a party makes an unsworn,
oral motion for continuance before or during trial and the trial court denies it, then
the party forfeits the right to complain on appeal about the trial court’s ruling.”);
Robinson v. State, 310 S.W.3d 574, 578–79 (Tex. App.—Fort Worth 2010, no pet.)
(“[T]he denial of an oral motion for continuance preserves nothing for our review.”).
Here, the record reflects that Venancio’s motion for continuance to procure
Gibbins as a trial witness was oral, not written. Indeed, Venancio acknowledges in his
10
brief that he orally requested the continuance. Because Venancio’s motion for
continuance was neither sworn nor written, he has preserved nothing for our review
and has forfeited the right to complain about the trial court’s ruling on the motion. See
Blackshear, 385 S.W.3d at 591; Owens, 2021 WL 5410518, at *2; Coleman,
2020 WL 241975, at *20; Robinson, 310 S.W.3d at 578–79. Thus, we overrule
Venancio’s second issue on that basis.
We would reach the same conclusion, however, even if Venancio had
preserved error. As Venancio concedes in his brief, a party seeking a continuance after
trial has begun must show that unforeseeable circumstances or an unfair surprise
justify delaying the proceedings to ensure the movant’s right to a fair trial. See Tex.
Code Crim. Proc. Ann. art. 29.13. Here, the State filed a motion in limine in July
2021 disclosing that Gibbins had been sentenced to fifty years in prison for multiple
counts of sexual assault of a child and possession of child pornography. Moreover,
the State did not include Gibbins on its list of potential trial witnesses filed in August
2021—more than a month before trial. Therefore, Venancio had more than a month
to ascertain that Gibbins was not a witness relied upon by the State and to subpoena
Gibbins, obtain a bench warrant, or otherwise secure his testimony. Thus, Venancio
did not satisfy the statutory requirements for a continuance, and the trial court did not
abuse its discretion in denying the motion. See id.; Thursby v. State, No. 05-19-00929-
CR, 2020 WL 3566647, at *2 (Tex. App.—Dallas July 1, 2020, no pet.) (mem. op., not
designated for publication) (concluding appellant who had sought a continuance to
11
procure a trial witness had not satisfied the requirements of Article 29.13 because the
witness had not been designated by the State and appellant had therefore had nearly a
month to subpoena the witness or otherwise secure his testimony).
We overrule Venancio’s second issue.
C. Venancio’s Right to the Effective Assistance of Counsel
In his third issue, Venancio argues that his trial counsel’s performance was so
deficient that it prejudiced his defense, denying him his rights to the effective
assistance of counsel and a fair trial.
The Sixth Amendment guarantees a criminal defendant the effective assistance
of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.
amend. VI. To establish ineffective assistance, an appellant must prove by a
preponderance of the evidence both that his counsel’s representation was deficient
and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim. App.
2017); see Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). We need not
address both parts of the Strickland test if the appellant makes an insufficient showing
of one component. 466 U.S. at 697, 104 S. Ct. at 2069.
An appellant claiming ineffective assistance of counsel at trial must identify
counsel’s allegedly erroneous acts and omissions. Id. at 690, 104 S. Ct. at 2066; Cooper
v. State, 333 S.W.3d 859, 867 (Tex. App.—Fort Worth 2010, pet. ref’d). The appellate
court then determines whether, in light of all the circumstances, these identified acts
12
or omissions were outside the wide range of what constitutes competent assistance.
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Cooper, 333 S.W.3d at 867.
In evaluating counsel’s effectiveness under the deficient-performance prong,
we review the totality of the representation and the particular circumstances of the
case to determine whether counsel provided reasonable assistance under all the
circumstances and prevailing professional norms at the time of the alleged error. See
Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava v. State, 415 S.W.3d 289,
307 (Tex. Crim. App. 2013); Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App.
1999). An attorney’s isolated acts or omissions generally do not constitute deficient
performance. See, e.g., Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).
However, an egregious error may satisfy both parts of the Strickland test on its own.
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Our review of counsel’s
representation is highly deferential, and we indulge a strong presumption that
counsel’s conduct was not deficient. Nava, 415 S.W.3d at 307–08.
Furthermore, the record must affirmatively demonstrate that the ineffective-
assistance claim has merit. Thompson, 9 S.W.3d at 813. An appellate court may not
infer ineffective assistance simply from an unclear record or a record that does not
show why counsel failed to do something. Menefield v. State, 363 S.W.3d 591, 593 (Tex.
Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial
counsel “should ordinarily be afforded an opportunity to explain his actions before
13
being denounced as ineffective.” Menefield, 363 S.W.3d at 593. If, as here, 6 trial counsel
did not have that opportunity, we should not conclude that counsel performed
deficiently unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Nava, 415 S.W.3d at 308. Direct appeal is usually
inadequate for raising an ineffective-assistance-of-counsel claim because the record
generally does not show counsel’s reasons for any alleged deficient performance. See
Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14.
Strickland’s prejudice prong requires a showing that counsel’s errors were so
serious that they deprived the defendant of a fair trial—that is, a trial with a reliable
result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant must
show a reasonable probability that the proceeding would have turned out differently
without the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at
308. A “reasonable probability” is a probability sufficient to undermine confidence in
the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308.
We must ultimately focus on examining the fundamental fairness of the proceeding in
which the result is being challenged. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069.
“[A] verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.” Id., 104 S. Ct. at
2069.
Venancio did not file a motion for new trial.
6
14
Venancio asserts that his trial counsel was deficient because he failed to
(1) procure Gibbins as a trial witness; (2) object to extraneous bad act testimony or
request a mistrial because the jury had been exposed to such testimony; and
(3) present any mitigation evidence during the punishment phase of trial. We will
address each of these alleged deficiencies in turn.
1. Failure to Procure Gibbins as a Witness
Venancio asserts that his counsel was deficient for failing to secure Gibbins as
a trial witness. According to Venancio, Gibbins was a material witness because he was
the primary detective in the initial investigation of KE’s case. The primary reason that
Venancio views Gibbins’s testimony as pivotal is that, as part of his investigation,
Gibbins purportedly prepared a report reflecting that, when asked, JE denied that
Venancio had abused her. Venancio asserts that Gibbins’s unavailability prevented his
trial counsel from effectively questioning JE’s credibility because Gibbins was unable
to testify about his report.
Ordinarily, where—as here—no motion for new trial has been filed and there
is thus no evidence in the record regarding trial counsel’s reasoning behind a
particular decision—including the failure to proffer evidence—we will assume a
strategic motivation if any can be imagined. Sabatini v. State, No. 14-20-00066-CR,
2020 WL 7866724, at *7 (Tex. App.—Houston [14th Dist.] Dec. 31, 2020, no pet.)
(mem. op., not designated for publication) (citing Garcia v. State, 57 S.W.3d 436,
441 (Tex. Crim. App. 2001)); see Prine, 537 S.W.3d at 117; Lopez, 343 S.W.3d at 143–
15
44. However, the record shows that Venancio’s trial counsel’s failure to procure
Gibbins as a trial witness was not a strategic decision. Rather, as evidenced by his
request for a bench warrant to have Gibbins produced for trial and his subsequent
motion for continuance to allow sufficient time for Gibbins to be brought to court,7
Venancio’s trial counsel clearly wanted Gibbins to testify.
However, even assuming that Venancio’s trial counsel had no strategic
motivation—and was therefore deficient—for failing to procure Gibbins’s testimony,
we cannot conclude that this failure prejudiced Venancio’s defense. See Strickland,
466 U.S. at 687, 104 S. Ct. at 2064; Prine, 537 S.W.3d at 116. Venancio asserts that
Gibbins’s testimony was crucial to his defense because, without it, he was unable to
effectively cross-examine JE by pointing out her prior inconsistent statement that she
had not been abused. However, Venancio’s trial counsel was still able to cross-
examine JE regarding her prior inconsistent statement, and on redirect the State asked
JE about her failure to disclose that she had been abused when she was interviewed
during KE’s case investigation. Thus, the jury was made aware of JE’s previous denial
of abuse despite Gibbins’s unavailability at trial.
Moreover, the record suggests that even if Gibbins had been present at trial,
there is a high likelihood that he would have refused to testify beyond asserting his
Fifth Amendment right. Indeed, one of the prosecutors informed the trial court that
See supra Section II.B.
7
16
she had spoken with Gibbins’s former defense attorney and that he “anticipates, from
his previous experience with Gibbins and conversations with . . . Gibbins, that he
would plead the Fifth, would not cooperate in testifying, and would rather be held in
contempt of Court than testify[]” because this is what he had done in a prior case.
Further, the contents of any report prepared by Gibbins during his investigation of
KE’s case would be inadmissible hearsay. See Tex. R. Evid. 803(8)(A)(ii); Belle v. State,
543 S.W.3d 871, 876 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (noting that “in
criminal cases, matters observed by police officers and other law enforcement
personnel are excluded” from the public records exception to the hearsay rule); Baker
v. State, 177 S.W.3d 113, 122-23 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
(“[H]ad the State attempted to offer Officer Green’s actual report into evidence to
prove that the observations contained in it were true, the report would properly have
been excluded as inadmissible hearsay . . . given that Officer Green is a law-
enforcement officer and that the report he prepared contains his observations.”).
Thus, it is far from clear that Gibbins’s presence at trial would have provided any
benefit to Venancio’s defense.
Because Venancio has not shown that Gibbins’s presence at trial would have
changed the outcome of the case, we cannot conclude that Venancio’s trial counsel’s
failure to procure Gibbins as a trial witness rendered his assistance ineffective. See
Strickland, 466 U.S. at 700, 104 S. Ct. at 2071; Ex parte Torres, 483 S.W.3d 35, 43 (Tex.
17
Crim. App. 2016) (stating that an appellant is prejudiced as a result of counsel’s errors
when, but for those errors, there is a reasonable probability of a different outcome).
2. Failure to Object to Extraneous Bad Act Testimony or to
Request a Mistrial
Venancio argues that his trial counsel was also deficient for failing to (1) object
to extraneous bad act evidence during his cross-examination of Officer Loughry and
(2) request a mistrial based on the jury’s exposure to such evidence.
During his cross-examination of Officer Loughry, Venancio’s trial counsel
asked the following questions to point out that JE’s case stemmed from her initial
statements to an assistant district attorney and that Officer Loughry’s investigation
had been limited:
Counsel: Okay. What did you do to prove this case?
Officer Loughry: I had a consistent statement from the victim for
the information that I’d been provided by the
District Attorney’s office.
Counsel: When you say consistent, you mean the—whatever
the victim said corresponds with what the DA was
telling you?
Officer Loughry: With what she had told the District Attorneys, yes.
Counsel: Okay. Do you have any physical evidence to back
it up?
Officer Loughry: No.
Counsel: No DNA test?
Officer Loughry: Almost a decade after the fact, no.
18
Counsel: Still, did you talk to the parents—to the parents of
this child?
Officer Loughry: I did not.
Counsel: Did you talk to the neighbors?
Officer Loughry: I did not.
Counsel: What about school friends?
Officer Loughry: No.
Venancio’s counsel then asked the following question, which elicited the extraneous
bad acts testimony:
Counsel: Okay. Basically you are concluding what the DA
told you?
Officer Loughry: I’m concluding what she told me, and that
between her and the sister and the cousins that
were also alleged victims , that they had never
discussed it with each other or anyone else, to my
knowledge. [Emphasis added.]
Venancio’s counsel did not object to this testimony. Rather, he tried to ask one
clarifying question before the trial court excused the jury.
Outside the presence of the jury Venancio’s counsel asked Officer Loughry a
series of questions regarding his investigation concerning JE’s case and what Officer
Loughry had meant when he mentioned “cousins” that were “also . . . victims.” There
was also a discussion among the trial court, the State, and Venancio’s counsel
regarding a prior no-billed case against Venancio involving one of JE’s cousins as a
victim. After this discussion and his additional questioning of Officer Loughry outside
the presence of the jury, Venancio’s counsel decided not to ask any follow-up
19
questions concerning the extraneous offense in front of the jury. Further, he asked the
trial court to instruct the jury to disregard Officer Loughry’s statement concerning
other victims. The trial court then instructed the jury to disregard the word “victims”
in Officer Loughry’s response. There was no further mention of the cousins as alleged
victims during the remainder of the trial.
Venancio claims that his trial counsel was deficient for failing to object to
Officer Loughry’s testimony referring to the cousins as additional victims and for
failing to request a mistrial. However, “[f]ailure to object, without a record detailing
the potential strategy behind doing so, generally does not rise to the level of
ineffective assistance of counsel.” Tucker v. State, No. 02-15-00363-CR,
2016 WL 7405802, at *5 (Tex. App.—Fort Worth Dec. 22, 2016, pet. ref’d) (mem.
op., not designated for publication) (citing Thompson, 9 S.W.3d at 814); see Burdick v.
State, No. 02-11-00171-CR, 2012 WL 4010415, at *5 (Tex. App.—Fort Worth Sept.
13, 2012, no pet.) (mem. op., not designated for publication) (“Because the record
here is silent as to Counsel’s reason for failing to object, we are constrained to hold
that Appellant has failed to rebut the presumption that Counsel acted reasonably.”);
Lopez v. State, 80 S.W.3d 624, 629–30 (Tex. App.—Fort Worth 2002), (concluding that
failing to object to the admission of extraneous offense evidence could not be found
to be ineffective assistance without a record of counsel’s strategy) aff’d, 108 S.W.3d
293 (Tex. Crim. App. 2003); see also Touchette v. State, No. 13-17-00270-CR,
2018 WL 4087744, at *4 (Tex. App.—Corpus Christi–Edinburg Aug. 28, 2018, pet.
20
ref’d) (mem. op., not designated for publication) (rejecting appellant’s argument that
his trial counsel had been deficient for failing to object to evidence of extraneous
offenses because the record was silent regarding counsel’s reasoning for not
objecting); Haagensen v. State, 346 S.W.3d 758, 766 (Tex. App.—Texarkana 2011, no
pet.) (determining that appellant had not shown his counsel was ineffective for not
objecting to inadmissible evidence of extraneous offenses because the decision not to
object could have been based on trial strategy). Here, the record’s silence regarding
defense counsel’s reasoning for not objecting renders Venancio unable to rebut the
presumption that his trial counsel acted reasonably. See Thompson, 9 S.W.3d at 814.
Moreover, even if Venancio’s trial counsel acted unreasonably in failing to
initially object to Officer Loughry’s testimony, he promptly requested—and the trial
court issued—a jury instruction to disregard the reference to other victims. Absent
evidence in the record to the contrary, we generally presume that the jury followed the
trial court’s instructions to disregard evidence. Thrift v. State, 176 S.W.3d 221,
224 (Tex. Crim. App. 2005); see Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.
1998). Here, because there is nothing in the record demonstrating that the comment
had any harmful effect or that the jury was unable to follow the trial court’s
instruction to disregard, Venancio has failed to show that this instruction did not cure
the error. Berkley v. State, 298 S.W.3d 712, 714 (Tex. App.—San Antonio 2009, pet.
ref’d); see also Zamora v. State, No. 04-12-00275-CR, 2013 WL 979190, at *3–4 (Tex.
App.—San Antonio Mar. 13, 2013, no pet.) (mem. op., not designated for
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publication). Thus, even if Venancio’s trial counsel was deficient for initially failing to
object,8 the error was promptly cured, and accordingly, Venancio cannot show that it
prejudiced his defense. See Strickland, 466 U.S. at 700, 104 S. Ct. at 2071; Ex parte
Torres, 483 S.W.3d at 43.
Given the trial court’s instruction to disregard, we must also reject Venancio’s
argument that his trial counsel was deficient for failing to request a mistrial. “The
failure of appellant’s [defense] counsel to request a mistrial could only be termed an
act of ineffective assistance of counsel if a mistrial should have been granted.” Thomas
v. State, 445 S.W.3d 201, 210 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d)
(quoting Weinn v. State, 281 S.W.3d 633, 641 (Tex. App.—Amarillo 2009), aff’d on other
grounds, 326 S.W.3d 189 (Tex. Crim. App. 2010)). However, a “mistrial is appropriate
only ‘when the objectionable event is so emotionally inflammatory that curative
instructions are not likely to prevent the jury from being unfairly prejudiced against
the defendant.’” Barba v. State, 486 S.W.3d 715, 720 (Tex. App.—Texarkana 2016, no
8
Citing Walker v. State, 195 S.W.3d 250 (Tex. App.—San Antonio 2006, no
pet.), Venancio asserts that it is per se ineffective assistance of counsel to fail to object
to inadmissible extraneous offense evidence. However, Walker does not support the
existence of such a blanket per se rule. Indeed, the San Antonio Court of Appeals—
the same court that decided Walker—has clearly stated that “the failure to object to
inadmissible evidence, even extraneous offense evidence, does not necessarily
constitute ineffective assistance.” Jaramillo v. State, No. 04-02-00544-CR,
2003 WL 22491511, at *1 (Tex. App.—San Antonio Nov. 5, 2003, no pet.) (mem. op.,
not designated for publication) (quoting Greene v. State, 928 S.W.2d 119, 123 (Tex.
App.—San Antonio 1996, no pet.)); see also Touchette, 2018 WL 4087744, at *4;
Haagensen, 346 S.W.3d at 766; Lopez, 80 S.W.3d at 629–30.
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pet.) (quoting Cano v. State, 3 S.W.3d 99, 109 (Tex. App.—Corpus Christi–Edinburg
1999, pet. ref’d)). “Only in extreme circumstances, where the prejudice is incurable,
will a mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.
2004). Here, because there is nothing in the record to suggest that the jury was unable
to follow the trial court’s instruction to disregard, a mistrial was not warranted. See
Ocon v. State, 284 S.W.3d 880, 887 (Tex. Crim. App. 2009). Because a mistrial was not
warranted and because the record is silent regarding defense counsel’s reasoning for
not requesting one, see Thompson, 9 S.W.3d at 813–14, we reject Venancio’s argument
that his trial counsel was deficient for failing to move for a mistrial.
3. Failure to Present Mitigating or Character Evidence during
the Punishment Phase of Trial
Finally, Venancio claims that his trial counsel was deficient for failing to
present any mitigating or character evidence during the punishment phase of trial.
However, to prove the ineffective assistance of counsel based upon a failure to call
witnesses to testify, an appellant must first show “that such witnesses were available
and that appellant would have benefited from their testimony.” Tucker, WL 7405802,
at *8 (first citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); and then
citing Pollock v. State, Nos. 02-02-00389-CR, 02-02-00390-CR, 2004 WL 966316, at
*3 (Tex. App.—Fort Worth, May 6, 2004, pets. ref’d) (mem. op., not designated for
publication)).
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Here, Venancio has made no such showing. In his brief, Venancio states that
his wife, daughter, son, and daughter-in-law all testified during the guilt/innocence
phase of trial and presumes—without pointing to anything in the record—that they
were available to testify during punishment. While it is true that after the jury’s guilty
verdict was read, Venancio’s trial counsel stated that he anticipated putting on about
three witnesses during the punishment phase, the record does not reflect who these
expected witnesses were or what the nature of their testimony would be. Moreover,
the record is silent regarding whether these witnesses appeared the following day
when the punishment phase began. It is entirely possible that after being confronted
during cross-examination with Venancio’s admissions to Child Protective Services
that he had accidentally touched KE’s vagina and had been alone with her in his
bedroom on at least one occasion where she supposedly acted in a sexual manner,
Venancio’s family members were no longer willing to testify. Further, there is no
evidence that Venancio would have benefitted from their testimony. See Tucker,
2016 WL 7405802, at *8. Thus, even if Venancio’s family members were available to
testify, Venancio’s trial counsel may have made a strategic decision not to call them as
witnesses during the punishment phase. See Sabatini, 2020 WL 7866724, at *7 (citing
Garcia, 57 S.W.3d at 441).
Because Venancio has not shown that there were any available witnesses that
should have been called or that there was additional evidence that would have
benefited him, we cannot conclude that his trial counsel was deficient for not
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presenting any evidence during the punishment phase of trial. See Tucker,
2016 WL 7405802, at *8.
4. Totality of the Representation
Assuming without deciding that Venancio’s trial counsel was deficient for
initially failing to object to Officer Loughry’s extraneous offense testimony, we have
identified two aspects of his representation that were at least arguably deficient: (1) the
failure to procure Gibbins as a trial witness and (2) the aforementioned failure to
object. Having determined that neither of these omissions was prejudicial in and of
itself, we likewise conclude that, viewed in their totality, they did not prejudice
Venancio’s defense. See Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004).
As noted above, Gibbins’s unavailability at trial did not prejudice Venancio’s defense
because he was able to cross-examine JE—and make the jury aware of JE’s prior
denial of abuse—without him and because there was no guarantee that Gibbins would
have testified beyond asserting his Fifth Amendment privilege even if he had been
available. Further, even if Venancio’s counsel erred by failing to object to Officer
Loughry’s extraneous offense testimony, he promptly cured the error by requesting
and receiving a jury instruction to disregard the reference to “victims.” Thus, we
cannot conclude that Venancio’s “counsel’s conduct so undermined the proper
functioning of the adversarial process” that it calls into question whether the trial
court “produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. 2064.
We overrule Venancio’s third issue.
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III. Conclusion
Having overruled all of Venancio’s issues, we affirm the trial court’s judgments.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: December 15, 2022
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