Opinion filed May 28, 2009

In The

Eleventh Court of Appeals

__________

No. 11-07-00194-CR

________

ROBERT LEE WORTHY, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR17633

O P I N I O N

Robert Lee Worthy appeals his conviction by a jury following his plea of guilty of two

offenses of sexual assault. The jury assessed his punishment for each offense at eight years in the

Texas Department of Criminal Justice, Institutional Division. The trial court ordered that his

sentences be served concurrently. He contends in eight points of error that (1) the trial court erred

in admitting evidence that his stepbrother was a registered sex offender because such evidence was

not relevant since the probative value of such evidence was substantially outweighed by the danger

of unfair prejudice and since the State failed to give notice of its intent to offer such evidence (Points

One, Two, and Three); (2) his attorney rendered ineffective assistance of counsel by failing to object

to a misstatement of law made by the trial court and by failing to request an instruction in the jury
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charge correcting the trial court’s misstatement of the law regarding concurrent versus consecutive

sentencing in his case (Points Four and Five); (3) the trial court abused its discretion in admitting

testimony by the investigating detective that Worthy had engaged in a “grooming” process and

thereby caused the complainant to engage in sexual relations because the testimony was not

admissible under either Rule 701 or Rule 702 of the Texas Rules of Evidence (Points Six and

Seven); and (4) the trial court violated TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon 2009)

by continuing to rely on guilty pleas that no longer appeared free and voluntary, rather than granting

Worthy’s motion for a mistrial (Point Eight). We affirm.

Worthy contends in Points One and Two that the trial court erred in admitting testimony that

his stepbrother was a registered sex offender because the evidence was not relevant and because the

probative value of the evidence was substantially outweighed by the danger of unfair prejudice. 

When the complainant was fourteen years of age, Worthy and his wife took her into their

family. The complainant’s aunts advised the Worthys that the complainant was acting out and had

been promiscuous. Over time, before the complainant became seventeen years of age, Worthy and

the complainant developed a sexual relationship. He sometimes brought the complainant to his

stepbrother’s house or apartment. Worthy testified that the house or apartment was split into two

sections with two entrances. He indicated that he installed a lock on the connecting door to his

room. Worthy stated that his stepbrother had no access to his room and had no knowledge about

what was going on. Worthy acknowledged that, at the time he brought the complainant to his

stepbrother’s house, he knew one of the conditions of his stepbrother’s community supervision was

that he could not have unsupervised children under the age of seventeen in his home and that he

knew, when he took the complainant over to his stepbrother’s house, it was a violation of his

stepbrother’s community supervision.

Before a jury, Worthy pleaded guilty to the indictment, which charged that he intentionally

and knowingly caused the penetration of the complainant’s sexual organ by his sexual organ when

she was younger than seventeen and not his spouse. He filed an application for community

supervision. Consequently, one of the issues for the jury to determine was whether Worthy should

receive community supervision or be assessed punishment in the Texas Department of Criminal

Justice, Institutional Division. We agree with the State’s contention that evidence of Worthy’s
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disregard for the conditions of his stepbrother’s community supervision and lack of care for the

complainant by leaving her unsupervised at the home or apartment of his stepbrother, a registered

sex offender, was relevant to the issue of whether he would follow the conditions of his own

community supervision, should the jury determine that he should be placed on community

supervision, and relevant to show the context in which he committed the offense in order for the jury

to properly assess punishment.

TEX.R.EVID. 403 provides that evidence, although relevant, maybe excluded if its probative

value is substantially outweighed by the danger of unfair prejudice. When the State initially sought

to introduce evidence that Worthy’s stepbrother was a registered sex offender, Worthy’s counsel

objected that the testimony would be inappropriate, irrelevant, and prejudicial. He further indicated

that the testimony was so prejudicial and inflammatory that it would have absolutely no probative

effect on the jury except to inflame its passions and to make some inappropriate suggestions. The

trial court sustained the objection on the basis that the probative value of the testimony was

outweighed by its prejudicial nature. The trial court instructed the jury at that time to disregard any

testimony offered concerning the alleged criminal record of Worthy’s brother.

When the State later sought to introduce evidence that Worthy’s stepbrother was a registered

sex offender, counsel for Worthy again raised the issue of relevance. In the context of his discussion

of the issue, Worthy’s counsel argued that the State “can’t suggest anything else that it provides any

probative information before the jury. It’s only prejudicial. And I suggest it’s only offered for its

prejudicial effect and should not be permitted before the jury.” In his objection and argument,

counsel made no specific reference to Rule 403 and did not succinctly state that the probative value

of the evidence was substantially outweighed by the danger of unfair prejudice. We believe,

however, that his statements were sufficient to bring before the trial court the issue of whether the

probative value of the testimony was substantially outweighed by the danger of unfair prejudice. The

State makes no argument to the contrary.

Either a trial court or a reviewing court, when undertaking a proper Rule 403 analysis, must

balance (1) the inherent probative force of the proffered item of evidence along with (2) the

proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on

an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main
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issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of

the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). As previously noted,

Worthy acknowledged that one of the conditions of his stepbrother’s community supervision was

that he was not allowed to have children under seventeen at his house unsupervised and that he knew

when he took the complainant to his stepbrother’s house it was a violation of his stepbrother’s

community supervision.

The jury could reasonably determine from this evidence that Worthy had little regard for his

stepbrother’s conditions of community supervision and little regard for the safety of the complainant

if, as Worthy’s testimony implied, he had left her unsupervised at his stepbrother’s place of

residence. We find the evidence to be highly probative of that fact. We know of no other way for

the State to show that Worthy had little regard for conditions of community supervision for sex

offenders and to show the danger he put the complainant in by having her unsupervised at his

stepbrother’s place of residence other than to show that his stepbrother was a registered sex offender.

Although the introduction of the evidence that Worthy’s stepbrother was a registered sex offender

might have had the potential to distract the jury from the main issue or cause it to be given undue

weight, little time was consumed in presenting evidence that Worthy’s stepbrother was a registered

sex offender, and the evidence was not repetitive. Having considered all of these factors, we

conclude that the probative value of the evidence that Worthy’s brother was a registered sex offender

is not substantially outweighed by the danger of unfair prejudice. 

Worthy argues that there is no evidence that he ever left the complainant unsupervised at his

stepbrother’s place of residence, ignoring his own testimony that, when he brought her to his

stepbrother’s place of residence, it violated the conditions of community supervision that did not

allow an unsupervised child under seventeen to be present there. Worthy contends that this evidence

did not relate to what punishment would be appropriate, but we conclude that his disregard of his

stepbrother’s conditions of community supervision and his placing the complainant in danger by

leaving her at his stepbrother’s residence unsupervised were relevant and highly probative with

respect to the jury’s determination of punishment. We overrule Points One and Two. 
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Worthy insists in Point Three that the trial court erred in admitting evidence that his

stepbrother was a registered sex offender because the State failed to give notice of its intent to offer

such evidence as required by the trial court’s standing pretrial order. Under the trial court’s order,

the district attorney was to give reasonable notice of several things, including “any other evidence

of an extraneous offense, crime or bad act shown to have been committed by the defendant.” The

evidence that Worthy, in committing the offense for which he was charged, violated the conditions

of his stepbrother’s community supervision that an unsupervised child under seventeen not be at his

place of residence – showing his disregard for conditions of community supervision and placing the

complainant in jeopardy – is part of the context of the crime for which he was being tried and is not

an extraneous bad act. Consequently, the State’s introduction of this evidence was not in violation

of the trial court’s order, which only related to extraneous bad acts. As the State notes, the trial court

appears to have been under the impression that the evidence was not contextual and was subject to

the notice requirement and that adequate notice had been given. Because the evidence related to the

context of the offense for which he was charged and not conduct that was extraneous to his

commission of that offense, we conclude that the trial court was in error in its reasoning. We reject

the assumption in Worthy’s arguments that this evidence consists of extraneous bad acts. We

overrule Point Three.

In Points Four and Five, Worthy contends that his attorney rendered ineffective assistance

of counsel by failing to object to a misstatement of law made by the trial court and by failing to

request an instruction in the jury charge to correct the trial court’s misstatement of the law regarding

concurrent versus consecutive sentencing in his case. In order to prevail on his claim of ineffective

assistance of counsel, an appellant must first show that his counsel’s performance was deficient.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 832 (Tex. Crim.

App. 2002). An appellant must prove, by a preponderance of the evidence, that his counsel’s

representation fell below the objective standard of professional norms. Mitchell v. State, 68 S.W.3d

640, 642 (Tex. Crim. App. 2002). Second, an appellant must show a reasonable probability that, but

for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id.

A “reasonable probability” is one sufficient to undermine confidence in the outcome. Id.
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Our review of defense counsel’s representation is highly deferential and presumes that

counsel’s actions fell within the wide range of reasonable and professional assistance. Bone, 77

S.W.3d at 832. Under normal circumstances, the record on direct appeal will not be sufficient to

show that counsel’s representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable and professional.

Id. Rarely will the trial record contain sufficient information to permit a reviewing court to fairly

evaluate the merits of such a serious allegation. Id.

When Worthy was admonished before the jury, the trial court instructed him that, given the

fact that the two counts with which he was charged were part of the same indictment, in the event

of his conviction, his punishment “would run concurrent and not consecutive.” Worthy presented

no objection. Later, in the charge conference, the trial court acknowledged that perhaps the

sentences could be stacked and that this could pose a problem. The trial court afforded counsel the

opportunity to address that in the charge, but neither the State nor Worthy requested any amendment

to the charge to address that issue. The trial court ordered that the sentences be served concurrently.

Given the fact that our record does not reflect the reason for trial counsel’s failure to object

to the trial court’s misstatement of the law and the failure to correct it in the charge, we decline to

find that Worthy was afforded ineffective assistance at trial. Citing Andrews v. State, 159 S.W.3d

98, 102-03 (Tex. Crim. App. 2005), Worthy suggests that we are required to find his trial counsel

ineffective because there could have been no trial strategy for failing to correct the trial court’s

misstatement. We find that Andrews is distinguishable. In Andrews, the court held that, where the

State had filed a motion for the trial court to stack Andrews’s sentences, defense counsel could have

had no sound strategy for failing to object to the State’s representation to the jury that his sentences

could not be stacked. Id. at 103. The court concluded that, in view of the lack of any sound trial

strategy and in view of the fact that the trial court stacked Andrews’s sentences, the judgment should

be reversed, and the cause remanded for a new hearing on punishment. Id. In the case at bar, there

is no indication that the State was seeking to stack the sentences, and the trial court did not stack the

sentences. Worthy’s trial counsel could have reasonably believed that, if the jury did not award

Worthy community supervision as he sought, the trial court would seek to avoid reversal by not

stacking his sentences and that, whether the trial court did or did not stack the sentences, there was
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a reasonable possibility that Worthy could receive a new trial based upon the decision in Andrews.

Counsel could reasonably have believed that under the decision in Andrews he would not have to

ever give his reason for his failure to object. We overrule Points Four and Five. 

Worthy urges in Points Six and Seven that the trial court abused its discretion when it

admitted testimony by the investigating detective that he had engaged in a “grooming” process and

thereby caused the complainant to engage in sexual relations because the testimony was not

admissible under either Rule 701 or Rule 702. After the investigating detective testified that Worthy

had worked at his relationship with the complainant in a process called grooming, Worthy testified

that he agreed that he was grooming the complainant. We hold that, even if the trial court abused

its discretion in admitting this evidence, the admission of the evidence did not affect Worthy’s

substantial rights in view of his acknowledgment that he was grooming the complainant. We

overrule Points Six and Seven.

Worthy contends in Point Eight that the trial court violated Article 26.13(b) by continuing

to rely on his guilty plea that no longer appeared free and voluntary, rather than granting his request

for a mistrial. Article 26.13(b) provides that no plea of guilty or nolo contendere shall be accepted

by the trial court unless it appears that the defendant is mentally competent and the plea is free and

voluntary. Upon Worthy’s testimony that his plea of guilty was free and voluntary and upon his

counsel’s representation that he had not observed anything that would lead him to believe that

Worthy was incompetent or insane, the trial court accepted his plea of guilty. However, prior to

accepting that plea, the trial court stated:

Now, the two counts being part of the same indictment, if you are found

guilty of each of these, as is likely with a plea of guilty, then, the punishment would

run concurrent and not consecutive. That is, it wouldn’t be stacked on top of each

other, but would be running side by side if you’re found guilty of each count.

As previously noted, Worthy made no objection to this statement by the trial court. 

At the conclusion of testimony, during the formal charge conference, the trial court noted its

error in misstating the law but offered to give the parties the opportunity to address that problem in

the charge if they had any concern about it. Worthy’s counsel objected to the improper

admonishment at that time, asserting that it had rendered his client’s plea involuntary. Instead of

seeking any instruction to disregard the trial court’s comments and instead of seeking to withdraw
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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his plea of guilty, Worthy requested a mistrial. The trial court denied both counsel’s objection and

his request for a mistrial. It has been held that, when a matter presented in a jury trial upon a guilty

plea calls that guilty plea into question, the defendant has the right to change the plea, but the trial

court has no duty to change the plea on the court’s own motion. Mendez v. State, 138 S.W.3d 334,

336 (Tex. Crim. App. 2004). We hold that, if the trial court’s erroneous admonition rendered

Worthy’s guilty plea involuntary, as he urges on appeal, he had the right to change his plea but that

the trial court had no duty to do so on its own motion. Worthy waived his objection to the trial court

continuing to rely upon his guilty plea by not withdrawing his plea and by not objecting to the trial

court’s failure to withdraw his plea on its own motion. See id. at 339. We overrule Point Eight. 

The judgment is affirmed.

JOHN G. HILL

JUSTICE

May 28, 2009

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.1