### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00278- CR

Timot hy Lee Syf

ers, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NO. CR-08 -52 8, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Timothy L ee Sy fer s g uilty of seve n counts of sexual assault of a child and seven counts of indece ncy with a child by contac t, and it assessed punishment for eac h
count at twenty y ear s in prison and a $10,000 fine. See Tex. Penal Code Ann. § § 2 1

. 1 1 , 2 2.011 (West Supp. 2009). Ap p el l an t contends that his trial counsel render ed ineffec tive assistance

. He also con t en d s t h at the trial court err ed at the g uilt-innocence stag e by failing to g ive a limit ing instruction reg arding extraneous offe nses and by overr uling his objection to improper arg ument by the prosec utor. Finally , he contends that t h e co u rt err ed at the punishment stag e by permitting a police off icer to testify to appellant’s suitability

for pr obation. We ove rrule these contentions and aff irm the convictions.

The complaining witness, appellant’ s step-daug h ter, testified that appellant beg an to sexually abuse her when she was eleve n y ear s old and the family was living in Hawa ii. Atfirst, appellant had her pose naked while he masturbated. L ater , he beg an forc ing her to fellate and

masturbate him. On one o cc asi on, appellant attempted to eng ag e in anal intercour se with the complainant. The abuse c ontinued afte r the fa mily moved to Hay s County

in July 2006, when the complainant wa s six teen y ear s old. The complainant testified that appellant would re g ularly have her “[p] ose for him, touch him, [or] suck him off,” depending on his mood. She also testified to an

occa sion when appellant g ave her whiskey to drink. She did not have a clea r m em o ry o f what happene d afte r she drank the whiskey , but she rec alled appellant asking h er “whe re my condoms

wer e” and telling her, “Your mom can only take two fing ers, but y ou took three .” The complainant testified that beca

use appellant would watch her when she showere d, she beg an showering with her mother. Even then, appellant would come in to the bathroom an d watch them both. Once , he videotaped them while they showere d. The complainant testified that the abuse continued until Aug ust 2007, when she wa s seventee n.

Counts one throug h seven alleg ed tha t appellant place d his penis in the complainant’s mouth on seven occa sions during the months of Aug ust 2006 throu gh Fe b ru ary 2007. See id

. § 22.011(a) (2)( B)

. Counts eig ht throug h fourtee n alleg ed that appellant cause d the complainant to touch his penis on seven occa sions during those same mon t h s . S ee i d

. § 21.11(a) (1), (c) (2). Appellant does not challeng e the sufficie ncy of the evidenc e to sustain his convictions on all counts.

I n his first point of err or, appellant contends that his trial counsel rende red ineffe ctive assistance during plea barg aining

. Five day s befor e appellant’ s trial beg an, defe nse counsel called appellant to the stand to memorialize appellant’ s reje ction of the State’s plea offe r. This offe r was, in c ounsel’s words, “a cap deal, which would be a maxi mum of 45 y ear s incar cer ation or any thing

2less, including the possibili ty for defe rre d adjudication.” Appellant acknow ledg ed that counsel had

discussed the o ffer with him and explained to him that if he wer e found g uilty on all counts, “the conseque nces as far as a sentenc e could be sever e.” During this proce eding , t h e t ri al court admonished appellant that the seven sexual assault counts wer e fi rst deg ree felonies car ry ing a possible penalt y o f n i nety -nine y ear s or life for eac h count, and appellant’ s counsel expressly aff irmed that this was cor re ct
. I n fac t, the sexual assaults wer e second deg ree felonies car ry ing a maxi mum p u n i s h m en t of twenty y ear s. See id

. § 22.011(f)

. The court corr ectly admonished 1 appellant that the seven indecenc y counts wer e second deg ree felonies c arr y ing a possible penalty

o f twenty y ear s. See id

. § 21.11(d). The court also advised appellant that the sentenc es for all fourtee n counts could be “stac ked” and s erve d consec utively

. See id

. § 3.03(b )( 2 )( A)

. Appellant

rea ffirme d his decision to rejec t the plea ba rg ain offe r. To preva il on a claim of ineff ective assistance of counsel, an appellant must show that counsel made such serious err ors t hat he was not functioning eff ectively as counse l and that these

err ors prejudice d the appellant’ s defe nse to such a d eg ree that he was deprive d of a fair trial. Strickland v. W

ashington , 466 U.S. 668, 687 (1984); Hernande z v. State , 988 S.W .2d 770, 771-72 (Tex. Crim. App. 1999). Appellant contends that his a ttorney ’s “fa ilure to understa nd the level of felony ” for which appellant was indicted, his “fa ilure to inform the court that the offe r of a 45 y ear cap was outside the possible rang e of punishment if appellant wer e to elec t to g o t o trial,” and his “fa il u re t o p ro p erly advise his client that all of the felonies with which he was char g ed wer e

The S tate did not seek to prosec ute t hese offense s as first deg ree felonies under t he “bigamy 1 clause ” of subse ction (f)

. 3second deg ree felonies ” carry ing a maxi mum punishment of twenty y ear s in prison “depr ived

[appellant] of the ability to make a knowing and voluntary decision” reg arding the plea barg ain. See Ex parte Smith , 678 S.W .2d 78, 79 (Tex. Crim. App. 1984).

This issue is be ing raised f or the fir st tim e on appe al, and thus trial counse l has not had an opportu n i t y t o state for the rec ord the advice he g ave appellant privately reg arding the potential punishment appellant fac ed. But even if we assume that counsel incorre ctly told appellant that the sexual assault counts wer e first deg ree felonies, appellant has failed to show that this err or deprive d him of a fair trial. First, the offe red forty -five- y ear “ca p” or maxi mum did not nece ssarily

re fe r t o ea ch count individually

. On this rec ord, it is equally possible that the offe r called for a forty -five- y ear maxi mum effe ctive sente nce f or all counts, even i f t he sentences were cumulated. Thus, the State’s offe r was not n ecessarily outside the possible rang e of punishment for the fourtee n second deg ree felonies alleg ed in the indictment. Second, there is no rea son to believe that appellant would have considere d the State’s offe r any more attrac tive had he been told that the sexual assault counts car

ried a maxi mum punishment of only twenty y ear s rathe r than life. I f any thing, he would have been less inclined to acc ept the offe r. Fi nally , the punishment assessed following appellant’ s trial was consistent with the reje cted plea barg ain offe r. The court orde red that the
sentenc es for counts one throug h seven and the sentenc es for counts eig ht throug h fourtee n be serve d

conc u rr en tly , but cumulated the latter with the former for a tot al effec tive sentenc e of forty y ear s, five y ear s less than the maxim um under the State’ s pretria l offer . Point of error one is overrule d.

Appellant’s se cond point of error c oncer ns the complainant’s te stimony descr ibing
extraneous acts of sexual misconduct committe d by appellant, such as the sexual abuse that

4occur

red in Hawa ii, the nude posing, and the sex ac t s t hat took place afte r the complainant’s
sevente enth birthday

. Appellant objected to this testimony , but he now conce des that the evidenc e

was admissible to show the previous and subsequent rela tionship and the state of mind of appellant and the complainant. See Tex. Code Crim. Proc. Ann. art. 38

. 3 7 , § 2 (W est Supp. 2009). He contends, howe ver, tha t the court’s jury char g e at the g uilt-innocence stag e was defe ctive bec ause it did not include an instruction limit ing the jury ’s consideration of this evidenc e to the purposes for which it was a dmitted under ar ticle 38.37. Appellant never reque sted a limit ing instruction, either when the evidenc e was first admitted or when the jury char g e was being prepa red. Be cause appellant failed to reque st a limit ing instruction when he first had the opportunity to do so—when t h e testimony was admitted—the complainant’s extraneous misconduct testimony was admitted for all purposes. Hammoc k v. State , 46 S.W .3d 889, 895 (Tex. Crim. App. 2001). Be cause the testimony was considere d by the jury for all purposes, a limit ing instruction in the jur y ch ar ge was not war rante d, even if it had been reque sted. Id . Point of error two is ove rruled.

I n point of err or three , appellant contends that the trial court err ed by overr uling his objection to jury arg ument by the prosec utor. During her arg ument at the g uilt-innocence stag e, the prosec utor told the jurors, “Y ou have a choice to decide w hether or not this man ge ts approval f or what he has done. You g et to decide whether or not the next time a child comes throug h our office in the same circ umst an ces—.” Appellant objected that “this is an improper g uilt or innocenc e punishment arg ument.” The prosec utor replied that it was a plea for law enfor ceme nt. Appellant’s objection was overr

uled, and the prosecutor continued, “You ge t to decide L adies and Gentlemen

5what we do from here on out .
. . . And don’t think that somebody else is g oing to c ome around in

the next case and do the rig ht thing beca use if y o u d o n ’t do the rig ht thing here , look how much harde r y ou make it for the next person, the next child.”

Appellant arg u es t h at by asking the jury to consider other victimiz ed children, the prosec utor improperly encour ag ed the jury to disreg ard its duty t o co n s i d er only the issue of appellant’ s g uilt or innocenc e. The State arg ues that the prosec utor’s arg ument was a plea for law enfor ceme nt of the “send them a messag e” varie ty
. See Gooche r v. State , 633 S.W .2d 860, 864 (Tex. Crim. App. 1982). But the prosec utor was not asking the j u ry t o “s end a message ” to others who might sexually abuse children in Hay s County

. The “messag e” was for the prosec utor’s office , the implication of the arg ument being that if the jury did not convict appellant, the prosec utor would be less likely to pursue similar ca ses in the future

. I f the State’s arg ument was objectionable, appella n t ’s substantial rig hts wer e not violated by the court’s ruling

. See Tex. R. App. P. 44.2(b). This case turned almost entirely on the jury ’s assessm en t o f the complainant’s cre dibilit y . There was no phy sical evidenc e and no confe ssion, althoug h appellant made a statement to a police office r during a telephone conver sation that was arg uably inculpatory

. Whi l e the case was pending , the complainant and her mother
contac ted an attorne y

and sig ned sworn a ffidavits disavowing their ac cusations ag ainst appellant. The complainant admitted in her testimony that she would lie for her mother, and the defe nse soug ht
to demonstrate that her mother had a f in a n c ia l mo ti v e f

o r acc using appellant of criminal wrong doing. The cre dibilit y issue dominated the arg uments of both defe nse counsel and the prosec utor. We are persu ad ed t h at t h e prosecutor’s request that the j urors consider t he effec t of t heir verdict on other

6victims of sexual abuse had littl e or no influence on the jury ’s resolution of the cre dibilit y issue, and

thus lit tle or no influenc e on the g uilty verdic t. Point of er

ror thre e is overr

uled. Appellant’s final point of err or is direc ted to the punishment stag e testimony of Hay s County Sheriff’ s Detec tive J eri Skrocki. Skrocki testified that she has been the depar tment’s chief child abuse and sex crimes investigator since 1999. She was asked by the prosecutor i f, based on her training and experience , “an individual with a pa ttern of se x ually abusing children ove r a long period of t i m e” wo u l d b e “a g ood candida te for probation.” Appellant objected “on the basis of opinion testim ony .” After the objection was overr uled, Skrocki testified that such a pe rson would not be a g ood candida te for pr obation.

Appellant arg ues that Skrocki was not qua lified to testify reg arding the appropr iate punishment in this case . But Skrocki wa s asked a more spec ific question: whether appellant was

a suitable candida

te for community supervision. Suitabili ty is a matter rele vant to sentenc ing under article 37.07 when, as in this case , the defendant seeks community supervision. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (1) (West Supp. 200 9 ); E l l i s on v. State , 201 S.W .3d 714, 722 (Tex. Crim. App. 2006). Skrocki testified that, in a ddition to her experience , she holds a master’ s peac e office r license and “a specia l inve stiga tor’s proficie ncy as well as instructor’s license in r eg ards to specific ally training office rs in family violence and sexual assault ty pe traini ng .” Skrocki was familiar with this case , and in particula r wi t h t he evidenc e that appellant had also eng ag ed in sexually abusive behavior with the complainant’s y oung er brother. On this rec ord, the trial court did
not abuse its discretion by allowing Skrocki to testify to her opinion o f ap p ell ant’s suitabilit y for community

supervision. See E llison , 201 S.W .3d at 723. Point of error four is over

ruled.

7The judg ments of conviction ar e af firmed.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Jul y

22, 2010 Do Not Publish

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