Opinion filed June 30, 2015



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 13

- 00139

- CR

__________ 

### ROBERT MUNOZ , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR 38 , 496

M E M O R A N D U M O P I N I O N Robert Munoz appeals his conviction s by a jury for two counts of sexual assault of a child younger than seventeen years of age. T EX

. P ENAL C ODE A NN

. § 22.011(a)( 2)(A), (c)(1) (West 2011 ). The trial court assessed Appellant’s punishment at confinement in the Institutional Division of the Texas Department of Criminal justice for a term of ten years on each count with the sentences to be s erved consecutively. Appel lant brings four issues on appeal. He argues in his first three2

issues that the trial court erred when it admitted the following evidence : ( 1) testimony that a witness had previously been con victed of hindering Appellant’s apprehension, ( 2) testimony concerning Appellant’s violat ion of his agreement with his bail bondsman, and ( 3) testimony of Appellant’s pre

- arrest silence . In his fourth issue, Appellant asserts that he received ineffective assist ance of counsel at trial. We affirm. Backg round Facts M.A.K. was fifteen years old at the time of the conduct charged in the
indictment

. She testified that her mother, Elizabeth, work ed with Appell ant at Prepaid Legal Services. Although Appellant was already married with children, Elizabeth and Appellant began a romantic relationship. Elizabeth would bring M.A.K. and her younger brother , W. W. K., over to Appellant’s house to “hang out and go to the movies a nd just be around eac h other.” Occasionally, M.A.K. would stay the night at Appellant’s house with Elizabeth and W. W. K. Elizabeth would sleep with Appellant while M.A.K. and W. W. K. would sleep o n a pallet in the living

room. Elizabeth, M.A.K., and W. W. K. stayed at Appellant ’s house during the 2007

– 2008 Christmas vacation. The night before returning to school
, M.A.K. woke up in the middle of the night because she “felt pressure on [her] leg. It felt like

-- i t felt like a hand on [her] leg.” M.A.K. felt the hand on her upper thigh
, and the hand
moved up her leg, under her shorts. M.A.K. said that she felt the hand go under her underwear and penetrate her in her “no

- no spot.” 1 M.A.K. testified that it was Appellant’s fingers and that he moved his fi ngers “in and out and around.” M.A.K.
then turned ove r and began to hyperventilate. Appellant ran into the kitchen
, and

1 M.A.K. subsequently clarified her meaning of “no

- no spot” as a female’s genital area

.3

Elizabeth came out of the bedroom

. Elizabeth told M.A.K. to “shut up and go to sleep because [she] had school the next morning.” The next morning
, M.A.K . told her mother t hat Appellant had touched her. Elizabeth got upset and told M.A.K . to shut up and go to school. When M.A.K.
arrived home from school, Elizabeth confronted her in the presence of Appellant and
asked if what she had said was true. M.A.K testified that
, w hen she answered in the affirmative, Appellant said, “If I did d o anything, I didn’t mean to.” M.A.K. then
left the room at the request of Elizabeth

. A week later, M.A.K. was sleeping at her house when she was awakened by a hand o n her thigh. She “felt a hand move up [her] leg and under [her] underwear, and his fing ers penetrated [her] no

- no spot.”
M.A.K. turned over
, an d Appellant ran from the room. M.A.K. did not tell her mother about the second time “[b]ecause she didn ’t believe [M .A.K.] the first time.” M.A.K. did not report the incidents to the authorities until December 2010.
M.A.K. called the police to report that Appellant had assault ed her mother

. W hile
M.A.K. was talking to the police about the assault on her mother, she also told them
about the sexual assaults that Appellant ha d committed against M.A.K

. At the time of trial, the romantic relationship between Elizabeth and Appellant
continued to ex ist. Elizabeth was called by the State as a witness. Elizabeth’s testimony supported Appellant’s position at trial rather than her daughter’s allegations. With regard to the first incident, Elizabeth testified that M.A.K. told her

t hat Appellant had touched her. However, Elizabeth said that she “confronted them,
and [M.A.K.] said it wasn’t true.” Elizabeth also denied that she fought with Appellant the night M.A.K. called the police

. Two weeks prior to trial, Elizabeth
recorded M.A.K. in a n effort to get her to recant. Analysis Appellant’s first three issue s address the adm issibility of evidence at trial. We review a trial court’ s ruling on admissibility of evidence for an abuse of discretion.4

See Coble v. State , 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will uphold the trial court’ s decision unless it lies outside the zone of reasonable disagreement. Salazar v. State , 38 S.W.3d 141, 153

– 54 (Tex. Crim. App. 2001). In his first issue, Appellant argues that the trial court erred when it permitted
the State to question Elizabeth about charges filed against her for hind e ring Appellant’s apprehension. The prosecutor initially asked Elizabeth
, “ Y ou love the
Defendant as much as you love your children; isn’ t that correct?

. . . I sn’ t it true you went to jail for the Defendant? ” Appellant’s trial counsel lodged a general relevancy objection to these questions. The prosecutor responded that “[w] e ’ re showing it for
the motive and bias of the testimony of the witness. ” The trial court overruled Appellant’s objection but instruct ed the jury to only consider Elizabeth’s resp onses for the purpose of showing the motive and bias of the witne ss. When asked by the prosecutor if she had gone “to jail for the Defendant,” Elizabeth responded
, “ T hey put me in jail

. ” The prosecutor then asked Elizabeth
, “ D id you go to jail for the
of fense of hindering apprehension, the apprehension of the Defendant? ” to which

s he replied in the affirmative. Appellant’s trial counsel did not lodge an objection to the prosecutor’s subsequent question that identified the particular offense for
which Elizabeth was incarcerated. Appellant contends that the subsequent identification of the offense was
cumulative of the previous evidence of Elizabeth’s motive or bias

. He additionally
contends that this evidence was unfairly prejudicial under Rule 403 and that the “impact of this cumulative evidence was that jurors could wrongly infer that, as Appellant’s lover, [ Eli zabeth ] was attempting to aid Appell ant in avoiding apprehension.” Further, Appellant contends that the testimony shows that
, if
Elizabeth “was placed on probation for hindering his apprehension, then Appellant
himself must have been attempting to evade apprehension

– and therefore guilty of the charges.” See T EX

. R. E VID

. 403. However, Appellant’s trial counsel did not5

lodge an objection to the prosecutor’s follow

- up question. Accordingly, Appellant’s complaint s on appeal w ere not prese rved for appellate review. See T EX

. R.
A PP

. P

. 33.1. We overrule Appellant’s first issue. In his second issue, Appellant argues that the trial court erred when it admitted the testimony of Chris Barrientes, Appellant’s bail bondsman, “about the conditions of Appellant’s bond, and the reasons why the bonding compa ny went off Appellant’s
bond.” Appellant argues that this testimony was not relevant to the issue of Appellant’s guilt and that
, even if it was relevant
, its prejudicial effe ct outweighs its probative value. Appellant’s trial counsel lodged a general relevancy objection to the initial question pertaining to the c onditions of Appellant’s bond. The prosecutor responded to this objection by asserting that the information was re levant to a trip to Cancun that Appellant raised in his cross

- examination of M.A.K. The trial c ourt overruled this objection. The prosecutor then asked Barrientes about the details of the conditions of Appellant’s bond. Appellant’s trial counsel objected on the basis of hearsay to a response wherein Barrientes stated that Appellant told the bonding company th at he did not have a passport. The trial court overruled this objection after the prosecutor stated that Appel lant’s statement constituted an admiss ion of a party

- opponent. The prosecutor then elicited testimony from Barrientes to the effect that Appellant did
not state that he had any intentions of traveling out of the country, that the bonding company would not have permitted him to travel out of t he country for leisure purposes, and that the bondin g company ultimately went off his bond for a variety
of reasons. Barrientes also testified during cross

- examination by Appellant’s trial
counsel that “M arshals” had shown up at the bonding company seeking information about Appellant. The subsequent questioning occurred without objection from Appellant’s trial counsel.6

We disagree with Appellant’s contention that Barrientes’s testimony was not relevant to the issue of Appellant’s guilt. As correc tly noted by the State, Appellant
raised the matter of the trip to Cancun during the cross

- examination of M.A.K. when defense counsel questioned her a bout a trip to Cancun in 2011. Two photographs of Appellant and M.A.K. swimming together were introduced into ev idence. Defense counsel attempted to show that M.A.K. and App ellant had a close relationship even after she made a llegations to the authorities. Accordingly, Appellant “opened the door” to details pertaining to the trip. See Bowley v. State , 310 S.W.3d 431, 435 (Tex. Crim. App. 2010) ( “[A] party who ‘opens the door’ to otherwise inadmissible evidence risks the adverse effect of having that evidence admitted.” )

. We conclude that the trial court did not abuse its discretion by overruling Appellant’s relevancy objection to the details of Appellant’s bond conditions regarding foreign travel. With respect to Appellant’s argument under Rule 403, this contention was n ot preserved for appellate review with a sufficient objection. A general relevance objection is insufficient to invoke a ruling from the trial court on whether the evidence is subject to exclusion on the ground of unfair prejudice under Rule 403.
See Mon tgomery v. State , 810 S.W.2d 372, 387 (Tex. Crim. App. 1991). Furthermore, most of Barrientes’s testimony pertaining to the details of Appellant’s bond was admitted without objection. Accordingly, we overrule Appellant’s second
issue. Appellant’s third i ssue challenges the admission of evidence that he refus ed to talk to Investigator Chris Fuentes about M.A.K.’s allegations or Detective Kay Therwhanger about extraneous offenses that he alleged ly committed

. Citing
Jenkins v. Anderson , 447 U.S. 231, 238 (1980) , Appellant alleges that his pre

- arrest silence cannot be used against him because he did not testify in this case. Investigator Fuentes testified that he called Appellant on March 7, 2011
, and asked him “if he would be willing to give me a statement of his own free will .”7

Appellant initially agreed to give a statement to Investigator Fuentes. However, Investigator Fuentes testified that Appellant subsequently informed him that he would not give “any statement without his lawyer being present and th at he would

con tact me back at a later time.” Investigator Fuentes did not speak with Appellant again. Detective Therwhanger testified that she called Appellant to discuss extraneous offenses involving A.H.
, a ten

- year

- old girl who testified that Appellant
had touched her in a similar fashion on several occasions. Detective Therwhanger simply testified that she attempted to contact Appellant and that he declined to speak
with her.
There is no evidence in the record of the date that Appellant was a rrested

. However, Investigator Fuentes testified that his contact with Appellant occurred prior to Appellant’s arrest. Furthermore, Appellant states in his brief that his silence

was pre

- arrest, pre

- Miranda

. Miranda v. Arizona , 384 U.S. 436 (1966).
Th e Court of Criminal Appeals and the Supreme Court of the United States
have both held that pre

- arrest, pre

- Miranda silence is admissible evidence against a

non

- testifying defendant as substantive evidence of guilt

. Salinas v. State , 369 S.W.3d 176, 179 (Tex. Crim. App. 2012), aff’d
, Salinas v. Texas , 133 S. Ct. 2174,
2182

– 83 (2013). A defendant must expressly invoke his right against self

incrimination ; mere silence is not enough. Salinas , 133 S. Ct. 2183

– 84. While Appellant refu sed to talk to either Investigator Fuentes or Detective Therwhanger, he did not expressly say he was doing so based on the Fifth Amendment. Appellant simply refused to speak to them. This was not enough to invoke his rights under the
Fifth Amendment and Miranda

. Id. at 2182

– 84 ; Salinas , 369 S.W.3d at 179. Thus,

t he trial court did not abuse its discretion when it admitted testimony concerning Appellant’s pre

- arrest, pre

- Miranda silence. We overrule Appellant’s third issue.8

In his fourth issue, Appella nt contends that his trial counsel rendered ineffective assistance of counsel during the guilt/innocence phase of trial in seven respects: ( 1) when he failed to invoke Rule 403, or request a balancing test, when
the State offered evi dence of Elizabeth’s conviction for hindering Appellant’s apprehension; ( 2) when he failed to invoke Rule 403
, or request a balancing test
, when the State offered the bail bondsman’s testimony; ( 3) when he failed to object to the bondsman’s non responsive testimony regarding m a r s hals coming to the bonding office to look at Appellant’s file and failed to request an instruction to disregard and a mistrial; ( 4) when he failed to make a relevance objection to the bail bondsman’s testimony regarding the reasons why the bonding compan y went off Appellant’s bond; ( 5) when he failed to make a r elevance objection, invoke
Rule 403, request a balancing test, or make a Fifth Amendment objection to Investigator Fuentes’s testimony about Appellant’s refusal to give a statement; ( 6) when he fai led to make a relevance objection, invoke Rule 403, request a balancing test, or make a Fifth Amendment objection to Detective Therwhanger’s testimony about Appellant’s refusal to give a statement; and ( 7) when he failed to make an offer of proof after the trial co urt excluded certain evidence. Appellant specifically cites five pieces of evidence that were excluded by the trial court, including posts by the complainant and the complainant’s brother on Facebook, an incident involving the complainant touchin g Appellant’s butt ocks with her foot, the testimony of Dr. Ja rvis Wright, and a recorded phone call between Appell ant and
witness Albert Palmer.
To determine whether A ppellant’s trial counsel rendered ineffective assistance at trial, we must first determine whether A ppellant has shown that counsel’s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel’s errors. Wiggins v. Smith , 539 U.S. 510 (2003);9

Strickland v. Washington , 466 U.S. 668 (1984); Andrews v. State , 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State , 9 S.W.3d 808 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance
, and A ppellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland , 466 U.S. at 689; Tong v. State , 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland , 466 U.S. at 690. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson , 9 S.W.3d at 814. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone v.
State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly ev aluate the merits of such a serious allegation. Id. In this case, t he record is silent as to the reasoning behind trial counsel’s actions and decisions. The bulk of Appellant’s claims of ineff ective assistance of counsel are premised on trial counsel’s f ailure to object on various grounds. W hen alleging ineffective assistance of counsel for failure to object, an appellant must demonstrate
that the trial court would have e rred in overruling an objection if trial counsel had
made one. See Ex parte Martinez , 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Many of Appellant’s claims are based on the lack of an objection under
Rule 403. This rule provi des that relevant evidence may be excluded if its probative value is substantially outweighed by the da nger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay or needless10

presentation of cumulative evidence. See Young v. State , 283 S.W .3d 854, 874 (Tex. Crim. App. 2009). An analysis under Rule 403 inc ludes, but is not limited to, the following factors: (1) the probative value of the evidence, (2) the potential to impress the jury in some irrational yet indelible way, (3) the time needed to develop the evidence, and (4) the State’s need for the evidence

. Hernandez v. State , 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. State , 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). Appellant contends that the probative value of Elizabeth’s testimony regarding her conviction for hindering Appellant’s ap prehension was outweighed by the danger of unfair prejudice. Appellant is essentially asserting that the trial court
would have erred by overruling an objection under Rule 403 to this testimony. We disagree. Under Rule 403, it is presumed that the proba tive value of relevant evidence outweighs any danger of unfair prejudice. Hammer v. State , 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). As noted previously, the State sought to offer evidence of Elizabeth’s conviction for hindering Appellant’s apprehension to show motive or bias on her part in favor of Appellant. The fact that the offense involved Appellant’s apprehension for the charged offenses is not unduly prejudicial because evidence of flight or escape is admissible as a circumstance from which an inference of guilt may be drawn. See Foster v. State , 779 S.W.2d 845, 859 (Tex. Crim. App. 1989)

. In his second claim of ineffective as sistance of counsel, Appellant contends
that his trial counsel should have objected to Barrientes’s testimony under Rule 403. In his third claim, he contends that his trial counsel should h ave objected to the

non responsive nature of Barrientes’s response about marshals coming to look at Appellant’s file. In his fourth claim, Appellant contends that his t rial counsel should have objected to the relevancy of the reasons why the bonding company went off Appellant’s bond. As with the case of Elizab eth’s testimony, the testimony from11

Barrientes that Appellant contends his trial counsel should have challenged relate s to Appellant’s possible flight from the authorities while the case was pending. As noted previously, evidence of flight is admissible a s a circumstance of guilt. Id. ; see Cantrell v. State , 731 S.W.2d 84, 93 (Tex. Crim. App. 1987) (evidence of bond forfeiture may be admissible as tending to show flight )

. We cannot conclude that the trial court would have erred in overruling the objectio ns that Appellant contends his trial counsel should have made to Barrientes’s testimony.
In his fifth and sixth claims of ineffective assistance of counsel, Appellant contends that his trial counsel provided ineffective assistance because he failed to obje ct under Rule 403 during Investigator Fuentes’s testimony about Appellant’s refusal to give a statement and because he failed to make a relevance objection , a Rule 403 objection, or a Fifth Amendment objection during Detective Therwhanger’s testimony that Appellan t refused to give a statement. As discussed in issue three above, it was not error for the trial court to admit the testimony concerning Appellant’s pre

- arrest, pre

- Miranda silence. Salinas , 133 S. Ct. at 2182

– 84 ; Salinas , 369 S.W.3d at 179. Accordingly, the record does not demonstrate that Appellant’s trial counsel’s actions were unreasonable.
I n his seventh claim of ineffective assistance of counsel, Appellant argues that trial counsel failed to make an offer of proof for excluded evidence , including Facebook postings by M.A.K. and M.A.K.’s brother, an incident between M.A.K. and Appellant where M.A.K. touched Appellant with her foot, the testimony of
Dr. Wright, and a recorded phone c all between Appellant and Palmer while Appellant was in jail

. During cross

- examination of M.A.K., defense counsel attempted to question
her a bout a Facebook post she made. The State objected on the basis of hearsay
, and
the trial court overruled the objection. M.A.K. then answered the question

. Because
no evidence was excluded , no offer of proof was necessary

. Thus, Appellant has not12

shown that trial counsel’s actions were deficient in this regard

. During cross

examination of M.A.K.’s brother, defense counsel questio ned him about a Facebook post. The State objected on the basis of hearsay
, and the trial court sustained the objection. The record is silent as to why defense counsel wanted the testimony concerning the Facebook post before the jury. Accordingly, Appellant’s argument does not satisfy the second prong of Strickland because the record does not indicate how that testimony would have influenced the outcome. Strickland , 466 U.S. at 691. Ineffective assistance of counsel claims “must be firmly founded in the record.” Thompson , 9 S.W.3d at 813

. Defense counsel attempted to cross

- examine M.A.K. about an alleged
incident where M.A.K. to uched Appellant with her foot. The trial court exclude d
evidence of this specific act of physical conduct

. The record does not demonstrate why defense co unsel did not make an offer of proof, what th e exact testimony would have been, and if that testimony would benefit Appellant. Thus, this claim is also
not firm ly found ed in the record. Id

. Appellant has failed to show that the excluded testimony would have had any effect on the outcome. Strickland
, 466 U.S. at 691.
Dr. Wright, a psychologist, was called by the defense to discuss the home environment and the relationship between Appellant, hi s family, and M.A.K.’s family. The State conducted a voir dire examination of Dr. Wright outside the presence of the jury to determine the relevancy of his testimony

. After extensive questioning by both the State and defense counsel during the voir di re examination, the trial court excluded Dr. Wright’s testimony because “there’s been no showing
that this will assist the trier of fac t in understanding the evidence or determine a fact
in issue .” A ll of Dr. Wright’s testimony during the voir dire examination was included in the record. Thus, d efense counsel essentially made an offer of proof of Dr. Wright’s excluded testimony. Accordingly, Appellant has failed to demonstrate
that his trial counsel was ineffective in this regard

.13

Finally, defense counsel attempted to introduce a recorded phone c all between Appellant and Palmer during Palmer’s redirect examination. The phone call involved the same alleged incident between Appellant and M.A.K. as noted above pertaining to M.A.K. all egedly touching Appellant’s buttocks with her foot

. The
record is silent as to why the excluded evidence would be beneficial to Appellant or why trial counsel did not make an offer of proof. Thus, Appellant has not overcome the presumption that trial cou nsel’s actions were reasonable. Id. at 6 9 0. We overrule Appellant’s fourth issue. This Court’s Ruling We affirm the judgment s of the trial court.

JOHN M. BAILEY
JUSTICE

June 30, 2015 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: W right , C.J., Willson, J. , and Bailey, J.