Opinion filed May 28, 20 09



### In The 

# Eleven th Court of Appeals

__________ 

### No. 1 1- 07 -0 01 94 -CR

____ ____ ROB ERT LEE WORT HY, Ap pellant

V.
STA TE OF TEX AS , A ppellee

On App eal from the 35th Distric t Court Brown County, Texas Trial Court Cause No. CR 17633

O P I N I O N Robe rt L e e Wo rth y a

p p e a ls h is c o n v ic ti o n b y a ju r y f o ll o w in g h is p le a o f g uilty of two offe nses of sexual assault. The jury assessed his punishment for e ach of fense at eig ht y ear s in the Te xas D e pa

rtme nt o f C ri min a l Just ic e , Ins tit uti on a l D ivi sio n. Th e tr ia l c ourt or de re d that h is sentenc es be serve d concur rently

. He contends in e ight points of err or that (1) the trial court e rre d in admitting evidenc e that his stepbrother was a reg istered sex off ender beca

use such evide nce w as not releva nt since the probative value of such evide nce was subs tantially outweig hed by the dang er of un fa ir pr e

jud ic e a nd sin c e the Sta te fa ile d to g ive no tic e of its int e nt t o o ff

e r s uc h e vid e nc e (P oin ts One, Two, and Three) ; (2) his attorney rende red ineffe ctive assist ance of counsel by failing to object to a misstatement of law ma de by the trial cour

t and by failing to reque st an instruction in the jury2

char g e cor

rec ting the tr ial court’s misstatement of the law re g ardingconcur rent ve rsus consec utive sentenc ing in his ca se (Points Four a nd Five) ; (3) the tria l co u rt abused its discre tion in admitt ing testimony by the investigating detec tive that Worthy had eng ag ed in a “g rooming ” proce s s and there by cause d the complain an t t o engag e in sexual relations bec ause the testimony was not ad m i s s i b le under

either Rule 701 or

Rule 702 of the Te x as Rules of Evidenc e (Points Six and Seven); and (4) the trial court violated T EX
. C ODE C R IM
. P R OC
. ANN
. art. 26.13(b) (Ve rnon 2009) by continuing to r ely

on g uilty pleas that no longe r appea red fre e and voluntary , rathe r than g ranting Wor thy ’s mot ion

fo r a mis tr ia l ( Poi nt E ig ht) . We a ff ir m. Worthy contends in Points One and Two that the t rial court erre d in admitting testimony that his stepbrother wa s a re g istered se x offe nder be cause the evidenc e was not releva nt and bec ause the probative va lue of the e vidence was substantially outweig hed by

the dang er of

unfair pr ejudice. Whe n th e c omp la ina

nt w as f ourt e e n y e a rs of

a g e , Wo rt

hy a nd his wi fe too k h e r i nto the ir family . The c omplainant’s aunts advised the Worthy s that the complainant was acting out and had been pr omiscuous. Over time, be fore the complainant be came sevente en y ear s of ag e, Worthy and the c omp la ina

nt d e ve lop e d a

se xua l r e la tio ns hip . H e so met im es br ou g ht t he c omp la ina

nt t o h is stepbrother ’s house or a

partmen t . Worthy

testified that the house or apar tment was split into t wo
se c tio ns wi th t

wo e ntr a nc e s. He ind ic a te d th a t he inst alle d a loc k o n th e c on ne c tin g do or to h is room. Worthy

stated that his stepbrother had no ac cess to his room and had no knowledg e about wh a t w a s g oin g on . Wo rt hy a c kn ow le dg e d th a t, at th e tim e he br ou g ht t he c omp la ina

nt t o h is stepbrother ’s house, he knew one of the conditions of his stepbrother’ s community supervision was that he could not have unsupervised c hildren under the ag e of se ventee n in his home a n d that he kn e w, wh e n h e too k th e c omp la ina nt o ve r t o h is s te pb ro the r’ s h ou se , it wa s a vio la tion o f h is stepbrother ’s community

supervision. B e fo re a jur y , Wo rt hy ple a de d g uil ty

to the ind ic tme nt, wh ic h c ha rg e d th a t he int e nti on a lly and knowing ly

cause d the pene tration of the c omplainant’s sexual org an by his sexual orga n when sh e wa s y oung e r t

ha n s e vente e n a

nd no t hi s sp ou se . H e fi le d a n a pp lic a tio n f

or c omm un ity

su pe rv isi on
. Con se qu e ntl y , on e of the iss ue s fo r the jur y to de te rm ine wa s w he the r Wo rt hy sh ou ld

rec eive c ommunity

supervision or be a ssessed punishment in the Texas De p ar t ment of Criminal J ustice, I n s t i t u t i o n al Division. W e ag ree with the State’s contention that evide nce of Worthy ’s3

disreg ard f

or the c onditions of his st epbrothe r’ s co m m u n ity supervision and lac k of ca re f or the complainant by leaving her unsupervised at the home or apa rtment of his stepbrother , a re g istered sex offender , was re levant to the issue of w hether he would follow the c onditions of his own

c omm un ity su pe rv isi on , sh ou ld the jur y de te rm ine tha

t he sh ou ld b e pla c e d o n c omm un ity supervision, and re levant to show the contex t in which he committed the offense in order for the jury to p ro pe rl y

a sse ss p un ish me nt. T EX
. R. E V ID
. 403 provides that evidenc e, althoug h rele vant, may be excluded if its probative value is substantially

outweig hed by

the dang er of unfair prejudice

. When the S tate initially soug ht to introduce e vidence that Worthy ’s stepbrother was a re g istered se x offe nder, Worthy ’s counse l objected that the testimony would be inappropriate, irrele vant, and pr ejudicial. He further indicated that the testimony

was so pre

judicial and inflammatory that it would have absolutely no probative eff ect on the jur

y except to inflame it s passions and to make some inappropriate sug g estions. The trial court sustained the objection o n t h e b as i s that the proba tive value of

the testimony

was outweig hed by

its prejudicial nature . The trial court instructed the jury at that time to disreg ard a ny testimony offe red c oncer

ning the alleg ed cr iminal recor d of Worthy ’s brother

. When the State later soug ht to introduce evide nce that Worthy ’s s tepbrother was a reg istered

sex offe nder, counsel for Worthy ag ain raised the i ssue of rele vance
. I n the context of his discussion of the issue, Worthy ’s counse l argued that the S tate “can’ t sug g est any thing else that it provides any pr ob a tiv e inf

or ma tio n b e fo re the jur

y . I t’ s o nly

pr e jud ic ia l. An d I su g g e st it’ s only of fe re d for its pr e jud ic ia l e ff

e c t a nd sh ou ld n ot b e pe rm itt e d b e for e the jur y .” I n h is o bje c tio n a

nd a rgume nt, counsel made no specific ref ere nce to Rule 403 and did not succinctly state that the probative value of the e vidence was substantially outweig hed by

the dang er of

unfair pr ejudice. We be lieve, howeve r, that his statements wer e sufficie nt to bring befor e the trial cour t the issue of whe ther the probative va lue of the te stimony was substantially

outweig hed by

the dange r of unf

air pre judice. The S t a t e m a k e s n o a r g u m e n tt o t h e c o n t r a r y. Ei the r a tr ia l court or

a re vie wi ngc ourt , w he n und e rt a kin g a pr op e r R ule 40 3 a na ly sis , mu st balanc e (1) the inhere nt probative force o f t he prof fer ed item of e vidence along with (2) the proponent’s ne ed for

that evidenc e ag ainst (3) a ny tendenc y of t he evidence to sug g est dec ision on

a n im pr op e r b a sis , ( 4) a ny

te nd e nc y of the evi den c e to c on fu se or dis tr a c t th e jur

y fr om t he ma in4

issu e s , ( 5 ) a n y te n d e n c y o f th e e v id e n c e to b e g iv e n u n d u e w e ig h t b y a ju

r y th a t h a s not been equipped to evaluate the probative forc e of the evidenc e, and ( 6) the likelihood that prese ntation of the evidence will consume an inordinate amount of t ime or m ere ly repe at evidenc e alr eady

admitted. Gi gli ob ian c o v . S

tat e , 210 S.W .3d 637, 641-42 (Tex. Crim. App. 2006). As prev i o u s l y n o t ed, Worthy acknow ledg ed that one of the conditions of h i s stepbrother ’s community supervision was that he was not allowed to have children unde r seve nteen at his house unsupervised a nd that he knew when he took the complainant to his stepbrother’ s house it was a violation of h i s stepbrother ’s community

supervision. Th e jur y c ou ld re a so na

bly de te rm ine fr om t

his e vid e nc e that Wor

thy ha d li ttl e re g a rd

fo r h is stepbrother ’s conditions of community supervision and littl e reg ard for the safe ty of the c omplainant if, as Worthy ’s testimony implied, he had left her unsupervised at his stepbr other’s place of residenc e. We f

ind the evidenc e to be highly probative of that fac t. We know of no other w ay for the S tate t o s h o w th a t W o rth y h a d li tt le r e g a r d

f o r c o n d it io n s o f

c o mm u n it y s u p e r v is io n f o r s ex of fe nd e rs and to sh owthe da ng e r h e pu t th e c omp la ina nt i n b y havin g he r u

ns up e rv ise d at hi s stepbrother ’s place of re sidence other than to show that his st epbrothe r wa s a re g istered se x offe nder. Although the introduction of the evide nce that Worthy ’s s tepbrother was a reg istered se x offe nder might have had the potential to distrac t the jury from the main issue o r ca use it to be g iven undue weig ht, little time w as consumed in pr esenting evidenc e that Worthy ’s stepbrother was a reg istered sex offender , and the e vidence was not re petitive. Having consi d ered all of these fac tors, we conclude that the probative value of the evidence that Worthy ’s brother was a reg istered se x offe nder is not subst antially

outweig hed by

the dang er of

unfair pr ejudice. Wor thy a rgue s that the re is no e vid e nc e that he e ve r le ft the c omp la ina nt un su pe rv ise d at hi s ste pb ro the r’ s p la c e of

re sid e nc e , ig no ri nghis ow n te sti mony that, w he n h e broug ht h e r t o h is stepbrother ’s place of re sidence , it violated the conditions of community supervision that did not allow an unsupervised child under seventee n to be pre sent there . Worthy contends that this evidenc e di d n o t r e l a t e t o w h a t p u n i s h m e n t w o u l d b e a p p r o p r i a t e , b u t w e c o n c l u d e t h a t h i s d i s r e g a r d o f his stepbrother ’s conditions of community supervision and his placingthe complainant in dang er by l e a v i n g h e r a t h i s s t e p b r o t h e r ’ s r e s i d e n c e u n s u p e r v i s e d w e r e r e l e v a n t a n d h i g h l y p r o b a t i ve wi th respe ct to the jury ’s deter mination of punishment. W e over rule Points One and Tw o.5

Wor thy ins ist s in

Poi nt T hr e e th at th e tria l c ourt e rr e d in a dmi tti nge vid e nc e that hi s stepbrother

was a reg istered se x offe nder be cause the State fa iled to g ive notice of its int ent to offe r such evidenc e as require d by the trial court’s standing pretria l or der. Under the trial court’ s order , the district attorney

was to g ive rea sonable notice of seve ral thing s, including “ any other e vidence of an e x trane ous offe nse, cr ime or bad a ct shown to have been c ommitt ed by the defe ndant.” The evidenc e that Worthy , in committi ng the offe nse for which he was char g ed, violated the conditions of his ste pb ro the r’ s c omm

un ity su pe rv isi on that a n un su

pe rv ise d c hil d u

nd e r s e ve nte e n n ot b e a t hi s place of re sidence – showing his disreg ard f or conditions of community supervision and placing the complainant in jeopar dy

– is part of the contex t of t he cr ime for whic h he wa s being tried and is not an extraneous ba d act. Consequently , the S tate’s introduc tion of this evidence w as not in violation of the trial c ourt’s orde r, which only related to extraneous bad a cts. As the State notes, the tria l court

a pp e a rs to h a ve be e n und e r t he imp re ssi on

that th e e vid e nc e wa s n ot c on te xtua l and wa s su bje c t to the notice r equire ment and that ade quate notice had bee n g iven. B eca use the e vidence related to the

c on t e xt o f t h e o f

f e n s e f o r w h i c h h e w a s c h a r g e d a n d n o t c o n d u c t t h a t w a s e xtr a n e o u s t o h is commission of that offense , we c onclude that the tr ial court was in error in its reasoning . We rejec t th e a s s u mp ti o n in Wo rth y ’ s a r g u me n ts th a t th is e v id e n c e c o n s is ts o f e xtr a n e o u s b a d a c ts. We

overr ule Point Three. I n Points Four

and F ive, Worthy

contends that his attorne y rende red ine ffe ctive assistanc e of c ouns e l by

fa ili ngto o bje c t to a

mis state me nt o f l a w m a de by the trial court

a nd by fa ili ngto reque st an instruction in the jury char g e to c orre ct the trial c ourt’s misstatement of the law reg arding

concur rent ve rsus consec utive sentenc ing in his ca se. I n order to preva il on his claim of ineffe ctive

a ssi sta nc e of c ouns e l, a

n a pp e lla nt m us t f ir st s ho w that hi s c ouns el’ s per fo rm a nc e wa s d e fi c ie nt. Strickland v. W

ashington , 4 66 U. S. 66 8, 68 7 ( 19 84 ); Bo ne v . S tat e , 7 7 S. W.3 d 8 28 , 8 32 (T e x. Cr im. App. 2002). An a

ppellant must prove, by

a pre pondera

nce of the evidenc e, that his counsel’ s repr esentation f

ell below the objective standard of prof essional norms. Mi tc he ll v . S tat e , 68 S.W .3d 640, 642 (Tex. Crim. App. 2002). Second, an appellant must show a rea sonable probability that, but for his counsel’s unprofe ssional e rror s, the result of the proce eding would have be en diffe rent. Id

. A “r easona

ble proba bility ” is one suff

icient to undermine c onfidenc e in the outcome. Id

.6

Our re view of de fense counsel’s r epre sentation is highly defe rential a

nd presumes that counsel’s a ctions fell within the wide ra ng e of r easona

ble and pr ofessional a ssistance. Bone , 77 S .W. 3d a t 83 2. Un de r n or

ma l c ir c ums tanc e s, the re c or d o n d ir e c t a pp e a l w ill no t be su ff

ic ie nt t o show that counsel’s repre sentation was so deficient and so lac king in tac tical or strateg ic dec isionmakin g a s to ov e rc ome the pr e su mpt ion that c ouns e l’ s con duc t w a s r e a so na ble a nd pr of e ssi on a l. Id . Ra re ly wi ll the tr ia l r e c or d c on ta in s uf fi c ie nt i nf or ma tio n to pe rm it a

re vie wi ngc ourt

to f a ir ly evaluate the mer its of such a ser ious alleg ation. Id

. When Worthy

was a dmonished befor e the jury , the trial court instructe d him that, given the fac t that the two counts with which he w as cha rg ed we re part of the s ame indictment, in the event of his conviction, his punishment “would run concur rent a nd not consec utive.” Worthy prese nted no object io n
. L a te r , in th e c h a r g e c o n f e r e n c e , th e tr ia l c o u rt a c kn o w le d g e d th a t p e r h a p s the sentenc es could be stacke d and that this could pose a pr oblem. The trial court a ffor ded counse l the opportunity to addre ss that in the charg e, but neither the State nor W orthy reque sted any amendment t o t h e c h a r g e t o a d dr e s s t h a ti s s u e
. T h e t r i a l c o u rto r d e r e d t h a tt h e s e n t e n c e s b e s e r

v e d c o n c u r r e n t l y. Given the f

act that our

rec ord does not re flec t the rea son for tria l counsel’s fa ilure to object to the tr ia l c ourt ’s mis state me nt of the law a nd the fa ilure to c or re c t it in the c ha

rg e , w e de c lin e to fi n d t h at W o rt h y

wa s af fo rd edi n ef

fe ct i v e a s s i s t an ce at t ri al

. C i t i n g An dr e ws v . S tat e , 159 S.W .3d 98, 102-03 (Te x . Crim. App. 2005), Worthy sug g ests that we a

re require d to f

ind his trial counsel ineffe ctive bec ause the re c ould have be en no trial strateg y for f ailing to c orre ct t he trial c ourt’s mis state me nt. We f

ind that An dr e ws is disti ng uishable. I n An dr e ws , the court held that, wher e the State had filed a motion for the trial cour t to stack Andre ws’s sentenc es, def ense c ounsel could have had no sound strate g y

for f ailing to objec t to the S tate’s repre sentation to the jury that his sentence s
co u l d n o t be stacke d. Id. a t 1 0 3

. T h e c o u rt c o n c lu d e d th a t, in v ie w o f th e la c k o f a n y sound trial str a te g y a nd in vie w of the fa c t th a t th e tr ia l c ourt sta c ke d A nd

re ws ’s se nte nc e s, the jud g me nt s ho uld be reverse d, and the c ause r emande d for a new he aringon punishment. Id. I n the case at bar, the re is no indication that the State was see king to stac k the sentenc es, and the trial court did not stack the sentenc es. Worthy ’s trial counse l could have r easona bly believed that, if th e j u ry d i d not awar d Worthy community

supervision as he soug ht, the trial court wo u l d s eek to avoid reve rsal by not stacking his sentence s and that, whe ther the tria l court did or did not sta ck the sentenc es, there was7

a re asonable possibili ty that Worthy could re ceive a new

trial based upon the decision in An dr e ws . Co u n s e l c o u ld r e a s o n a

b ly h a v e b e li e v e d th a t u n d e r th e d e c is io n in An dr e ws he wo uld no t ha ve to

ever g ive his rea son for his fa ilure to object. We over rule Points Four a

nd Five. Wor thy ur g e s in Poi nts Six an d Se ve n that th e tr ial c ourt a bu se d it s d isc re tio n w he n it admitted testimony by

the investig ating detec tive that he had e ng ag ed in a “ g rooming ” proc ess and there by cause d the co m p l ai n an t to eng ag e in sexual relations bec ause the testimony was not admissible under either Rule 701 or Rule 702. After the investig ating detec tive testified that Worthy had wor ked at his relationship with the complainant in a process called g rooming , Worthy testified that he ag ree d that he was g rooming the complainant. We hold that, even if the tria l court abuse d its disc re t i o n in admitting this evidence , the admission of the evide nce did not af fec t Worthy ’s

s u b s tantial r ig h ts in

v ie w o f h is a c kn o w le d g me n t t

h a t h e w a s g r o o mi n g th e c o mp la in a n t. We

overr ule Points S ix and Seven. Worthy contends in Point Eig ht that the t rial court violated Article 26.13(b) by continuing to r e ly on his g uil ty ple a that no lon g e r a

pp e a re d fr e e a nd vo lun ta

ry , ra the r tha n g ra nti nghis re qu e st for a mistrial. Article 26.13(b) provides that no plea of g uilty or nol o contende re shall be acc epted by the trial cour

t unless it appear s that the def endant is mentally

competent a

nd the plea is fr ee a

nd

vo lun tary . Upo n Wo rt

hy ’s te sti mony

that hi s p le a

of g uil ty wa s f re e a nd vo lun tary

a nd up on his counsel’s r epre sentation that he ha d not observed a ny thing that would lea d h i m t o believe that Wor thy wa s in c omp e tent or

ins a ne , th e tr ia l c ourt

a c c e pte d h is p le a

of g uil ty . H ow e ve r, pr ior

to

acc epting that plea, the tr ial court stated:

Now, the two c ounts being part of the s am e indictment, if y ou are found g uil ty of e a c h of the se , a s is lik e ly wi th a ple a of g uil ty , th e n, the punis hme nt w ou ld run conc urre nt and not consec utive. That is, it wouldn’t b e s t acke d on top of ea ch oth e r, bu t w ou ld b e ru

nn ingsid e by

sid e if y ou ’r e fo un d g uil ty

of e a c h c ount. As previously

noted, Worthy

made no objec tion to thi s statement by the trial cour

t. At the c on c lus ion

of te sti mony , d

ur ingthe fo rm a l c ha

rg e c on fe re nc e , th e tr ia l court no te d it s
e rr or in m iss ta tin g the law b ut of fe re d to g ive the pa

rt ie s th e op po rt

un ity to a dd re ss t hat pr ob le m in the cha rg e if they

had any conce rn about it. Worthy ’s counse l object ed to the improper admonishment at that time, asserting that it had rende red his client’ s plea involuntary . I nstead of seekingany

instruction to disreg ard the trial court’ s comments and instead of seekingto withdrawJohn G . H ill , For m er Just ic e, Cour

t of A ppea ls , 2nd D is tri ct

of T ex as a t For

t W orth, s itt ing by

a ss ig nm ent

. 1 8 his plea of guilty , Worthy reque sted a mi strial. The trial court denied both counsel’s obje ction and his re qu e st fo r a mis tr ia l. I t ha s be e n he ld that, wh e n a ma tte r pr e se nte d in a jur y tr ia l up on

a g uil ty plea c alls that g uilty

plea into question, the def endant ha s the rig ht to chang e the plea, but the trial court ha s no duty to c hang e the plea on the cour t’s own motion. Me nd

e z v . S tat e , 138 S.W .3d 334, 336 (Tex. Crim. App. 2004). We hold that, if the trial court’s e rrone ous admonition render ed Worthy ’s g uilty plea involuntary , as he urg es on appea l, he had the rig ht to chang e his plea but that the trial cour

t had no duty to do so on its own motion. Worthy waived his obje ction to the trial court continuing to r ely

upon his guilty

plea by not withdrawing his plea and by not objecting to the trial court’s f ailure to withdra

w his plea on i t s o wn m o t i o n
. See id. at 339. We overr ule Point Eight. The judg ment is affirme d.

J O H N G

. H ILL JUSTI CE

May 28, 2009 Publis h. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , a n d

H i l l , J. 1