Opinion issued May 20, 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00538
- CR

——————————— RICARDO RO M A N O , Appella nt

V. THE ST ATE O F TEXAS , Appell e e
On Appeal from County Criminal Court at Law No . 6

Harris County, T exas Trial Court Ca se No. 2167075

MEMORANDUM OPINION
R i cardo Romano was charged by information with the misdem eano r offense of inde c e n t expos ure. See T EX
. P ENAL C ODE § 21.08

. T he information al leged that
Romano “ unlawfully, expose [d] his genitals to [p o l ice officer] R. Gardiner with the intent to arouse and gratify [ Romano ’ s] sexual desire

. . . and [ Romano ] was2

reckles s a b out whether an other person was present wh o would be offended and alarmed by the act , to

- wit : [ Romano ] masturbated in a park, a publi c place. ”
Romano waived his right to a jury

. T he trial court found Romano guilty of the charged offense of indecent exposu r e and senten ce d him to three days in jail and asses sed a $1 ,000 fine

. B ecause he had previously been convicted of indecent
exposure, R omano was ordered to register as a sex offender for ten years. See T EX
. C ODE C RIM
. P ROC
. art s . 62.001(5 )(F) , 62.101(b)

. On appeal , Romano raised three issues , assert i ng : (1) the evidence was not

su fficient to show either t hat he had exposed his genitals wi t h intent to arouse or gratify the sexual desir e of any person or that he had act e d recklessly ; (2) the trial
court erred in admitting Gardiner ’ s testimony that he d i d not believe Romano ’ s clai m that Romano had exposed hi s penis to urinate , not t o mast urba t e ; and (3)
Romano r e ceived ineffective assist a nce of counsel du ring the guilt

- innocence
p hase of trial.
On original submission, we reversed the trial court ’ s judgm e n t and rendered a judgment o f acquittal after sustaining Romano ’ s c hallenge to the sufficie n cy of the e vidence o n the basis that the evidence was not sufficient to sh o w , beyond a reasonable doubt , that Romano had acted recklessly

. Romano v. State , 01

- 18

- 0 0 5 38

- CR , 2019 WL 4936040 , at * 6 (Tex. App.

— Houston [1st D ist.] Oct. 8,
201 9 ) (mem. op., not d esignated for publi c ation) , re v ’ d , 610 S.W.3d 30 , 31 (Tex.3

Crim. App. 2020) ( R o mano I ) . The Court o f Crimina l Appeals granted the State ’ s petition for discretionary re v i ew and held that the eviden ce was sufficient to support the reckless ness elem ent

. Roma n o v. State , 610 S.W.3d 3 0 , 3 6 (T ex. Crim. App. 2020) ( Romano I

I )

. T he court re v ersed our judgment and re ma nded the case to us to consider Romano ’ s remaining issues. Se e id. After considering Roma no ’ s re maining issues, w e af firm. Background At trial, the S tate offered the testimony of Sergeant R

. Gardiner , the offi cer with t he Houston Police Depa rtment wh o arrested Romano . T he State also offered vid e o from Gardiner ’ s bod y came ra related to events s urrounding the arrest

. Gar diner testified that, o n August 23, 2017, he was workin g as a mounted patro l officer in an area of Memorial Par k know n as t h e Pi cnic Loop

. At approximate ly 10:30 a . m. , he positioned himsel f an d his horse in a wooded are a behind trees where he was “ m ain ly concealed ” from view

. Thr ough an ope nin g in the trees , Gardiner could see a nearby empty parking lot , picnic tables , and a b i k e trai l

. When asked if there w ere other people in the area, Gar dine r testi fied , “ There

were so me cars passing by and some people on bicycles, yes

. ” Ga r dine r state d that
he was watching “ for certain crimes, I would look for mainly cars circling t he area

an d cars par

king and things of t hat nature in the back of the park

. ”4

A round noon, Romano ’ s car t urned off the park road into the parking lot

. Gardiner s a w Ro mano “ p ark near where I was. ” Romano caught his atte ntion
because “ i t was s uspicious ” as “ there ’ s ve r y few reasons to p ark back th ere. ” T he video from Gardiner ’ s bo d y c a mera s hows Romano ’ s car en tering the parking lot , but branches and leaves obstruct the camera ’ s view o f the car once it is parked. Gardiner testified that he ob served Romano “ get ou t of his car and w a lk around t o the back of his car

. ” Gardiner could s ee t h e “ side ” of Romano

. Gardin er
sta t ed that he saw Romano pull the top of his “ joggin g sho rts ” do wn with one ha nd and “ start masturbating ” with the other hand. By “ masturbating , ” Gardi n er testified
that he meant h e saw Romano “ stroking his penis with his han d

. ”
On t he vi deo, Gardiner can be hear d radioing his p artner , stating, “ [C] ome thi s way , he ’ s jacking off.” Gardiner rode his horse out of the wooded area and
over to Rom ano to arrest hi m . Gardiner ’ s pa rtner also rod e his horse over to the

scene. When que s tioned, Romano denied ma st urbating, claimi ng that he h ad been

“ trying to use the b a thro om. ”
A t tr ial, Romano testified that he had stopped in t he parking lot to review some business pa pers before hea ding downtown . He had ne eded to urinat e, so he had gott e n out of his car and pulled o ut his penis

. Romano claimed that he did not urinate b ecau se Gard iner emerg ed from the trees on his horse before he had a chance to urinate

.5

Regarding his need to urinate, Romano told the officers that he had dr u nk a lot of w at er from a larg e water ju g found inside his car

. Gardiner n oted that he did
not se e any urine on the ground and that there was a public restroom across the
street from the parking lot . When ask e d why he did not use the publ ic rest room, Romano said tha t h e did n ot like th ose restrooms

. After the office rs appr oach ed Romano , Gardiner ’ s b o dy c amera c ontinue d to record the officers ’ interaction with Ro m ano for a pproximately 38 minutes

. T he video shows car s , pedes trians , and a bi cyclist passing by

. During tha t time, the police officers obtai n ed Romano ’ s perso nal inform ation and wait ed for a p atro l
unit to transport Romano to jail

. At no point did Romano ask to use the restroom

. Roma no was charged by in formation with the offense of indecent exposure

. The inf orm ation a lleged that Romano had “un lawfully, expose[d] his geni tals to R. Gardiner wit h the intent to arouse and gratify [Romano’s] sexual desire . . . and [Romano] was reckless a bout whether another person was present who would be offended and ala rmed by th e act, to

- wit: [Romano] masturbat ed in a park, a public place .” See T EX
. P ENAL C ODE § 21. 08 (a)

. The info rmation also contained the following extran e ous - offense allegation : “ Befo re the commission of the offense alleged above, on February 25, 1999, in Cau se No. 981 0010, in the County Crimin al Court at Law No. 8 of Har ris County, Texas, [ Rom a no ] was con victed of the misdemeanor offens e of Indecent E xposure. ”6

The cas e was tried to the ben ch . At the end of the guilt

- innocence phase, the trial court found Roma no guilty of the charged offense of indecent exposure

. During th e punishment phase, t he cour t found the enhancement allegation to be
true. T h e court senten ced Romano to t hree days in jail and assessed a $1,000 fine

. B ecause this was his second violation of th e indec ent

- exposure statute , the tr ial
court ordered Romano t o register as a sex off e nder for te n years. See T EX
. C ODE C RIM
. P ROC
. art s . 62.001(5 )(F) , 62.101(b)

. Romano did not file a motion for new
t rial.
Romano app ealed , raising three issues

. In his f i r s t issue, Romano chall enged
t he su ffici ency of the evide nce to support the ju dgment o f con vi ction , ra ising two ground s . Romano did not dispute that he exposed his genitals, but he claimed that the evidence was insufficient to establish the required ele me n t that he expos ed his genitals with i ntent to arouse or gratify the sexual des ire of a n y pe rson . S pe cifical ly , he c laimed that the evidence was not suff icient to show that he exposed his genitals to mast urbate rather than to urinate

. Romano als o asserted tha t the evidence w as insufficient t o est ablish the element that he was reckles s about

w heth er anot her person was present who would be offended or alarmed by the act

. On original submission, we reversed the judgment of convic tion and
rendered a judgme n t of acqui tta l based on our h olding that the e viden ce w as insufficient to show , be yond a reasonab l e do ubt , that Romano had been reckless7

about whether another person was present who would be offended or alarmed by the exposure of his genitals

. Romano I , 2 019 WL 493 604 0 , at *6

. After g ran ting review, the C ourt of Criminal Appeal s h eld that the evidenc e was sufficient t o support a finding beyond a reasonable doubt that Romano had acted recklessly

. Romano II , 6 10 S.W.3d at 36. The court held t hat we had erred by h o ldin g

o therwise

. Id. The court reversed our j udgment o f acquittal an d reman ded the case
to u s to consider Romano ’s remaining issues. Id. Sufficiency of the Evidence We be gin by considering Romano ’ s re maining argu ment in his first issue : that t he evidence was ins uffici ent to show that he exposed his genitals with the
inten t to arouse or gratify t he s e xua l desire of any person. A. Standard of Review We review a challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virg inia , 443 U. S. 307, 319 (1979). See Winfrey v. S tate , 393 S.W.3d 763, 768 (T ex. Crim. App. 2013 ). P u rsua n t to the Jackson standard, we “consider all the evidence in t he light most favorable to th e verdict an d d etermine whether, based on that e viden ce and reasonable infer ences therefrom , a ratio nal juror could have found the essential elements o f the cri m e be y ond a reasonable doubt.” Alfaro

- Jimenez v. State , 577 S.W.3d 240, 243

– 44 (Tex. Crim. App. 2019) (quoti ng Hooper v. State , 214 S.W.3d 9, 13 (Tex . Crim. App. 2007));8

se e Jackson , 443 U.S. at 3 19

. We can hold evidence to be insufficient under the Jackso n sta n dard when (1) the record contains no evidence, or merely a

“ modicum” of evidence, probati ve of an ele men t of the offense, or (2) the evid ence conclusively establishe s a reasonable doubt. Britain v. State , 412 S.W.3 d 518, 520 (Tex. Crim. App. 2013) (c i ting Ja ckson , 443 U.S. at 320 )

. The sufficiency

- of

- the

- evidence stan d ard gives full play to the re sponsibility of the fact finder to resolve confl icts in the testimony, to we igh the evidenc e, and to dra w reasonable inferences from basic facts to ultimat e f acts

. See Jackson , 443 U.S. at 319; Clayton v. State , 235 S.W.3d 772 , 778 (Tex. Crim. App. 2007). An appellate co urt presumes that the fact finder reso lved any conflicts in t he evidence
in favor of the verdict and defers to that resolution, provided tha t t he r eso lution is rational. See Jackson , 443 U.S. at 326. In our revi e w of the record, direct and c ircumstantia l e vidence are treated equally; circ umsta ntial evidence is as pr obative as dire ct eviden ce i n establishing the guilt of an actor, and circumsta nt i al e vid ence alone can be sufficient to establish guilt. Hooper , 214 S .W.3d at 13. Finally, “[e]ach fact need n ot point directly and independently to th e guilt of the appellan t, as long as t he cumula tive force of all the incriminating circumstances is su ff i cien t t o support the conviction.”
Id.9

B. Analysis A person commit s the o ffe nse of indecent exposure w hen he “ expo ses his anus or any part of his geni tals with intent to arouse o r gratify the s exual des ire of any person, and he is reckless about whether anoth e r is pr esent who will be offended or alarmed by his act. ” T EX
. P ENAL C ODE § 21.08 (a)

. The requisit e specific i nte nt to arouse or gratify the sexua l des ire of any person can b e inferred from an accus ed ’ s conduct, remarks, and all surrounding circumstances. See
Tur ner v. State , 600 S.W. 2d 927, 929 (Tex. Crim. App. [Panel Op. ] 1980); Cate v.
State , 124 S. W.3d 922, 93 1 ( Tex. App.

— Amarillo 2004, pet. ref ’ d). Here, the State
assert s that Gardiner ’ s testimo ny t hat he saw Romano masturbating

— that is, he

saw Romano “ str oki ng his penis with his hand ”

— was sufficient to establish , b e yond a reasonable doubt , tha t Romano exposed hi mself with the inte nt to arouse

o r gra tify his own sexual des ire

. In his br ief , Roma no s tates that, “ [i]f he exposed his penis to urinate, he did
not intend to arouse or gratify the sexual desire of any per s on. However, if he exposed hi s genitals to ma stu rbate, he intended to arouse or g ratif y someone’s sexual desi re . ” Romano ass erts that “ [t ] he resolution of this element of the offense
turned o n wh eth er the evidence was sufficient to establish that he was

m a sturbating. ” Romano claims th at the evidence was not sufficient to establish that fact

.10

Romano acknowledges that Gardiner t estified th at he saw Romano masturbating

. Romano attacks the credi b ilit y o f Gardiner ’ s testimony b y pointing to evidence that Gardiner remarked , at the s cene , that he saw Romano “ m essing with ” his penis and th at it “ looked like ” Ro mano w as masturba ting

. Romano
cont ends that Gardiner was too far away to discern whether he was uri nating or masturbating a nd claims that Gardiner ’ s “ si ght line

. . . was obscured by tree bra nches and bushes

. ” Romano pos its tha t Gardiner ’ s remarks at t he scene th at Romano was “ ‘ m essing with ’ his penis and that it ‘ looked like ’ he w a s

ma sturbating are equ ally consistent with re m oving his penis from his shor ts and holding it to urinate. ”
Roma no also claims that the video fr om Gard iner ’ s body camer a “ r ebuts ” Gardiner ’ s testimony

. He cl aims that the video “ shows that Gardiner was too fa r

awa y from [ Romano ] to see what he was doi ng and that Gardiner could not have seen that [ Romano ] was masturbat ing , even if he was. ” Romano ass erts th at the video shows th at “ i t was impo ssible for [ G ardi ner ] to determine that [ Romano ] was masturbating ” bec a use “ t he tr e e branches and bushes obscure d Gardiner’s view. ”
Romano concludes , “ [w] ith t he benefit of the vide o, the Court cannot credit Gardi ner’s t estimony over what th e video actuall y depicts. ”
We n ot e that Romano ’ s analysis fails to consider the enti r e t y of t he evidence , a nd it does not p roperly view the evidence in the light most favorable to11

the verdict

. At tr ial , Gardiner testified that he w as “ sure ” that Romano wa s masturba ting

. He stated th at h e saw Romano pull the top of his jogging shorts dow n with o n e ha nd and “ star t masturbatin g ” with the other hand. Gardiner testified , “ I saw that he was not using the bathroom, that he was mastur bating

. ” Gardiner explained that by stating that he saw Roma no masturbating , he meant that
h e saw Romano “ strokin g his p en i s with his hand

. ” Gard iner a lso testified that it was a clear da y , and he confirmed that , even though he was conc ealed behind trees , he had “ a good vantage point and line of si ght ” of Ro ma no b e ca use “ t here wa s an open ing in the wood line where I was lo ok i ng. ” T he tr ial court , as the fact finder, coul d have reasonabl y inferred that the video did not nece ssa

ril y rebut Gardiner ’ s testimony b ecause the body camera did not record from Gardine r ’ s eye l evel

. In other words, the fact that the camera ’ s

v ie w was o bscured by branche s did not nec es sarily me an that Gardiner ’ s view was likewise obscured. And , based on what is depicted in the video and the video ’ s quality , it was the trial court ’ s prerogati ve t o w eigh the evidence an d to determine whether Gard ine r was c lose enough to Rom ano to see him engag e in the act of

mas tur ba ti on . In addition, other evidence supported a finding that Romano did not expose his peni s to urinate. Gardiner te s tified that h e di d not see urine on the ground i n t he parki ng lot

. Rom a no ack now ledged that he had not urina te d when he saw Gardiner12

r i de hi s horse out of the wooded area

. The evidence also showed that there was a public restr o om across the street from whe re Romano par ked his car

. A nd , during
the final 38 minutes of the vide o , Roma no did not ask to use the res tr oom despite ind icating to the of

ficers that he had been drinking a lot of water from a large ju g of water in his car. In our review, we are mindful that it is t he e xclusive role of the fact finde r

“ to resolve conflict s i n th e t estimony, to wei gh the evide nce, and to dra w reasonable infe rences[.]” Buentello v. State , 512 S.W.3d 508, 516 (Tex. App.

— Houston [1st Dist.] 2016 , pet. ref ’ d) (quoting Jackson , 443 U.S . at 319 ). We “may

not re

- evaluate the wei ght and credibility of the re cord evidence an d t hereby

su bstitute our ju dgment for that o f the fact

- finder.” Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Even c ontradictory evidence in the record wi ll

n ot d iminish the sufficiency of evid enc e that otherwise su p po rts a fact finder ’ s verd ict. Bu entello , 512 S.W.3d at 5 16. By returning a guilty verdict, we must infer that the trial court believed Gardiner ’ s testimony tha t he saw Romano masturbating

. We defer to t hat determination. See Jackson , 443 U. S. at 318

– 19.
V i ew ing the evi dence in the light most favo rable to the ve rdict, we conclud e that a rational fact finder could have found, beyond a reasonable doubt, that
Romano exposed h is genital s with the inten t t o ar ouse or gratify his sexual desire

. See id. ; see also T EX
. P E NAL C OD E § 21.08 (a) (providing elements of offense)

.13

Accor dingly, w e hold that the evidence was suf ficient to support the judgment of conviction. We overrule Romano ’ s remaining ground raised in his first issue.

Evi d e ntiary Chal lenge I n his s ec on d i s sue, R omano c ont ends that the tria l court err ed in admitting
G ar diner’s t estimony that G ardiner did not b elieve Romano ’ s claim at the scene that he was urinating and not masturbating

. A. Stan dard of Review We rev i ew a tria l court ’ s rul ing on t h e admi ssion o f e vid ence for an abu se of discr etion. Colone v. St

ate , 573 S.W.3d 249, 263

– 6 4 (Tex. Crim. A pp. 2019). A tria l court “abuses its dis cretion when it a cts without reference to any guiding rule s and principle s or a c ts arbitr arily or unre asonabl y . ” Rhom er v. S tat e , 569 S.W.3d 664, 669 ( Tex. Crim. App. 20 19); s ee Martin ez v. State , 32 7 S.W.3d 727, 736 (Tex. Crim. App. 2010) (stating that tr ial cour t does no t abuse its discretion unless its de termi nation “lies outside t he zone o f reasonable disagre e m ent”). We uph old
th e trial court ’ s rulin g if it is reasonably su pported b y the record an d correct under

a ny theory of law applicable to the case. See Willover v. State , 70 S.W.3d 841, 845 (Tex. Crim

. App. 2002).14

B. Analysis Dur i ng direct examination, the St a t e ques t ioned Off ice r Gardiner rega rding his a rrest of Romano : Q. Did yo u tell him what h e was under ar res t fo r?
A. Yes; Indecent Exposure. Q. How did the defendant respond to this news?
A. He d en ied it and said that he wa s trying t o use the bathroom. Q

. Did y ou bel iev e t his?
A. No. [ Defe n s e cou nsel ]: Objection, Y our Hon or , to his belief

. THE COURT: Ove rrul ed

. Q. [ By the prosecut or] Why didn ’ t you believe this?
A. Becau se I saw him; and I sa w that he was not using th e bathroom , that he was mastur b a ting. Q. Wer e t her e any other clu es to indic ate that he was not using th e restroom?
A. There was no uri ne o n the ground, and there was also a restroom directly across the str eet from where we we re at. Q. So, what substanc e was the ground composed of? Y o u said this w as a p arking lot. Was it s a nd? C an you just give me a desc ri ption?
A. It w as a concrete, li ke a g ravel

- type of

— w ell, not gravel but a conc rete parking lot. Q. Wo uld you have been ab le to see any liquid on the g round?15

A . Yes. Romano cont en d s that , beca us e “ [a] witness may no t give an o pinion regarding th e truth o r falsity of an other witness’s t estimony , ” the trial court ab used
its discretion in admitting Gardiner ’ s testimo ny that he di d not believe Romano ’ s cla i m that he was urinating an d n o t ma stu rbating

. S ee Bl ackwell v. St ate , 1 93
S. W.3d 1, 21 (Tex. Ap p.

— Housto n [1st Dist.] 2 006, pet. ref ’ d) (“It is generally improper for a witness to offer a direct opinion as to the truthfulness of another witness and such o p inion is therefore inadmissib l e evide nce.”)

. Ro mano also cites
Ru le of Evide nce 702, which prov ides , in part , that “ [a] witness who is q ualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or o therwise if the expert ’ s . . . specia lized k now ledge will help th e trie r of fact to understand the evide nce or to deter mine a fact in is sue. ” T EX
. R.
E VID
. 702. Romano contends that “ [p] olice opinion testimony that [ Rom ano ] was

n ot telling the truth, and by i n feren ce that the police be l ie ved that he co mmitted
i ndecent e xposur e, wa s inadmissible unde r Rule of Evidence 702. ” Romano further

a sserts that “ Gardiner was not qualified as an expert on masturbation, urination, or
determini ng whether a person is truthfu l . He could not properly gi v e an e xpert

o pin ion that [ Romano ] was un truth ful when he denied masturbat ing and said th at he was urinati ng. ”16

T h e State correctly counters that Rule 702 does not apply because Gardiner , although te s tifyin g as a police of ficer, w as no t testif

ying as an ex p er t . I nstead , Ga rdiner was testi fy ing ab out h is perception of R omano ’ s co nduct at the sc ene . It is well established that “ [b] oth lay and expert witnesses can offer opinion testimony.” Osbourn v. St ate , 92 S.W.3d 531, 535 (Tex. Crim. App

. 2002). Under
Rul e of Ev idence 701 , a lay witness ca n off e r opi nion testimony if h is opinio ns or inference s ar e rationally based on h is perceptions and helpful to the cl ear understanding of testimony or the determina tion of a fact in issue. Id. (citing T EX
. R. E VID . 701). E ven a wit n ess wi th specialized kno wledg e or e xperience may offe r lay opin ion testimony i f he testifies re garding events that he personally perceived. Id. at 536. “Thus, although police officers have training and experience, they are

n ot precluded from off

e ring l ay t est imo ny regarding event s whi c h the y have personally observed.” Id. Permissibl e te stimony, draw n from the witness ’ s own observations or experiences, can include opinions, beliefs, or infer ences. Id. at 535. Here, Gardiner te stified that he witne s sed Ro man o ma stu rb ating , that is, he wi t nesse d Romano str oking his pen is. Romano also te stified that , aft er he
approac hed Romano , he did not see urine o n the ground

. A nd he testified that there

was a public rest room across the street. Gardiner ’ s testimony that h e d i d n ot believe Romano ’ s c laim t hat h e exposed his peni s to urina te was a permis sible belief draw n from his observation of Romano in the act of masturbation and the17

surrounding circumstances

. See James v. State , 335 S.W.3d 719 , 725 (Tex. App.

— Fort Worth 2011 , n o p et. ) (holding offi cer ’s t e sti mony

— that defendan t’s claim of
self

- defense did n ot “ make an y sense ” based on his observations of de fendant ’s lack of injury and complainant ’s inju ries

— w as admiss ible under Rule 701 )

. T he
t rial court could have reason ably c o ncl uded that Gardiner ’s com p lain ed

- of testimony wa s admissib le under R u le 7 01 because it was rationally based on his percept ion of the act involved in the charged offense and was helpfu l to “ the determination of a fact in issue

. ” See T EX
. R. E VID
. 7 01 ; Jam es , 335 S.W.3d at 725

. Even if t he trial court abu sed its di scretion by per mitting Gardiner to testify
that he did not believe Romano ’ s claim that he exposed his penis t o urinat e , the

e rror was harm less. “ The erroneous ad mission of evidence i s non - c onstitu tio nal

error. ” Gonzal ez v. State , 544 S.W.3d 363, 373 (Tex. Crim. App. 2018 )

. Non

constituti onal errors are harmful, and thus require reversal, only if they affect an

a p pellant ’ s substa ntial rights. T EX
. R. A PP
. P ROC
. 44. 2(b). T h is mean s that an err or is r eve rsible only w hen i t has a sub stantial and injur ious effec t or influence in
determin ing th e factfinder ’ s verdict. Gonzalez , 544 S.W.3d at 373

. If w e have a fair assurance from an exam ination of the record , as a whole , t hat the error did not influe nce the fa ctfinder , or had b ut a s light effect, we will n ot overtu r n the convictio n. Id. In making this determination, we consider (1) the character of the alleg e d error and how it might be co n sidered in connection with other ev idence;18

(2) the natur e of th e evide nce supporting the ve rdict; (3) the existence and degree of additional evid ence indicating g uilt; and (4) whether the State emphasized the complained of e r ror. Id. We have reviewed the e ntire record

. E ven in the absence o f Gardiner ’ s complain e d

- of t estimon y, the trial court, a s the fact f inder, could have reasonably
conclud ed that Romano exposed h is penis to mastur bate and not to urinate. A s discussed, Gardiner testified that he was “ sure ” that he saw Romano masturbating

. H e also test ified that there was a p ubl ic restroom nearby and t hat h e did not see urin e on the g round near Romano . In addit ion, the video sh ows that after Gardiner
in itiated Romano ’ s arrest, Roma n o did not ask to use th e rest ro om for the remainin g 38 minutes that he wa s at the sce ne , despi t e indi cating to the officers that he had been drinking a lot of water fro m a large jug i n his car

. Also, the complained

- of testimony aside , the trial court could have reasonably assume d that Gardine r did not believe Romano ’ s claim tha t he exposed his peni s to ur inate , giv e n that Gard iner a rrested Rom ano for the offense of indec e nt exposure

. S ee Brown v. State , 580 S. W.3d 755 , 767 (Tex. App.

— Houston [14th Dist.] 2019, pet. ref ’ d) (holding that imprope r admission of investigating officer ’ s opinion that defen d ant wa s not c red ible was har mless error , in p ar t , because officer called
district attorn ey ’ s office to ac cep t charg es aga i nst defendant after investigation and “the jury could reasonably assume that [the investigating officer] did not find [the19

defendant] credib le an d bel ieved he was guilt y of sexual a ssault”)

. Finally, we note that the State did not emphasiz e the complained

- of testimony

. Having reviewed the entire record , we have a fair a ssurance that the admission of Gardi ner ’ s testimony that h e did not b el ie v e Romano ’ s claim t hat h e
expo s ed himself to urinate had b ut a slight eff ect on the trial court ’ s verdict ; therefore, we do not find that Romano ’ s substantial rights were affected. We hold that any error in adm itting th e complained

- of testi m ony wa s har ml ess . We overrule Rom ano ’ s seco n d issue.

Ineffective A ss ista nce of Counsel In his third issu e, Romano cont e nds that his trial counsel rendered ineffective assistance during the guil t

- in nocence phase of trial

. A. Legal Prin c iples To prevail on a claim of in ef fe c tive assistance of coun s el, a n appellant must sho w the fo llowing: (1) co un sel ’ s performan ce fell b elow a n objective standard of reasonab leness and (2) the deficient performance prejudiced the defense

. Se e Str ickland v. Was hingto n , 46 6 U.S . 668, 687

– 88, 69 4 (198 4); Lopez v. St at e , 343 S.W.3d 1 37, 142 ( Tex. C rim. App. 2011). “A reasonable p robability is a probabilit y sufficient to unde rmi ne confidence in the outcome.” S t rickl a nd , 466
U.S. at 694. In r ev ie wi n g co unsel ’ s perfor mance, we l ook t o the t otality of the

r epresentation t o d etermine the e ffectiven ess of counsel, indulging a strong20

pre sumption that counsel ’ s pe rformance falls with in the wide range of reasonable
pro f essio n al assistance o r trial st ra te gy . See Robertson v. State , 187 S.W.3 d 475,
482

– 83 ( Te x. Cri m. App. 2006).
Ro m a no has the bu rden to e stabli sh both prongs by a preponderanc e of the evidence. See Jac kson v. State , 973 S .W. 2d 954, 956 (Tex. Crim. App. 1 998). “ An appellant ’ s failure t o sa ti s fy on e prong of th e Stri cklan d test n egates a cou rt ’ s nee d to consider t he oth er prong.” Williams v. Sta te , 301 S.W.3d 675, 687 (Tex. Cr im. App. 2009).
B. Analysis D uring the guilt

- inno cence p hase of trial , t estimony was el icited about
Romano ’ s 1999 conv ic tio n for indecent exp osure . Duri ng cross - exami n a tion of Gard iner , d efense c ounsel attempted to show the reason why Romano had n ot chosen to use the nearby public rest room but had instea d chosen to urinate in the
p arkin g l ot

. With respect to t h e public re st roo m, Gardiner testif ied that Ro mano tol d him a t the scene t hat he “ didn ’ t want t o go over t here [to the public restroom] , ” but Gardiner did not remember whether Romano had stated the r eason why he d id not wan t to use the public restroom

. Def e nse counsel f

oll owed

- up by
ask ing Gardiner if he knew that R omano had bee n “ previously a rreste d at a bath room in 1999 , ” and Gardiner responded affirmatively

.21

On re

- direct , t he State asked Gardiner whether he knew , at the time he

arre sted Romano , tha t Rom a no had a pr io r c onviction for inde cent exposu re . Gard iner an swered that h e did not know at tha t time but had l earned later that day about Romano ’ s prior indecent

- exposure conviction

. Romano testified on cross - examination that his pr ior conviction w a s th e

reason why he had not wanted to u se the public res tr oom to u rinate and had instead chosen to u rinat e in the parking lot

. The State asked Romano , “So, why were you wanting [ to ] avoid the bathroom?” Romano had ea rlier indicated on direct examin ation that he had s een a “n ews clip” abo u t se xual activity in the Memorial
Park rest rooms . He res ponded to t he Sta te ’ s qu estion about the res troom as fo llows: “Well, prior c o nviction. I just

— I wanted nothing to do with that kind of bathroom.” On appeal, Romano asserts that h is trial counsel ’s p erforma nce was defi cient becau se c ou nsel “me ntioned, elic i t ed, and f ailed to object to test i mony” about
Romano ’ s 1999 c onviction f or i ndecent exposure , which , he claims , was inadmissible during the gui l t

- innocence p hase of trial under Rule of Evidence 609

. 1

1 A second v iolation of the inde cent

- exposure s ta tute requires a defendant to regis ter as a se x offender for 10 years

. See T EX
. C ODE C RIM
. P ROC

. art s . 62.001(5 )(F) , 62.101(b)

. As mentioned, the informatio n c har g i n g Romano with the i n stant offense cont ained an enhance m ent paragraph allegi ng that Romano ha d been convicted of indecent exposure in 1999

. D u ri ng t he pun ishme nt p hase , e vidence of Romano ’ s 1999 conviction f or indecent exposure , including the judgment of c o nviction, was admit t ed for the pur pose of determining w hether Romano would22

See T EX
. R. E VID
. 609 ( governing a dmissibi lity of prior c rim inal c onviction s for impeachm e nt purposes )

. Even if we as sume, without d eciding, that evi dence of
Romano ’ s prior conv iction was inadmissib le , we cannot conclude , on this record, that counsel ’ s p erformance was deficient. Ordinari ly , counse l should have a n o pportu nity to explain his act i ons before being he ld ineff

ective. Rylande r v. State , 101 S .W.3d 107, 111 (Tex. Crim. App. 2003). Here, because no motion for new trial was filed, trial counsel did not have an opportunity to explai n his actions relating t o th e admi ssion of evidence of
Ro m ano ’ s prior convict ion

. To satisfy the fi rst prong of Stri ckland on a silent record, it must be apparent “that counsel ’ s performance fell below an objective standa r d of reasonableness as a
matter o f law, and that no reas o n abl e tria l strategy could justif y trial counsel ’ s ac ts

or om issions, regard less of his or he r subjective reasoning.” Lopez , 343 S.W.3d at 143; see Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim . App. 2005) (stating that, to be de fic ient, attorney ’ s c o n duc t must “so outrageous that no competent attorney would ha ve engaged in i t”). This is not such a case. Failure to object to

be required to re gister as a sex offen der

. After hearing evidenc e of the prior conviction during the punishment phase , the trial court found th e enhancement alle gation to be t rue a n d ordered Romano to regist er as a sex offender for 1 0 y ears. Romano makes n o complaint abo ut the admission of the evidence regard ing his 1999 conviction during the punishment phase

. He complains only of his trial cou ns el ’ s perf

ormance with respect to th e a dmission of evidenc e of hi s prior conv iction during th e guilt

- innocence pha se.23

inadmissible extraneous

- offense evidence may be sound trial strateg y. S ee Williams v. State , 417 S.W.3d 1 62 , 1 83

– 84 (Tex. App.

— H o u sto n [1st Dist.] 2013, pet. ref ’ d ) ( recognizing that failure to object to e xtraneous

- offense evidence may constitute “sound and plausible trial strategy” ); Heiman v. State , 923 S.W.2d 622,
626 (T ex . App.

— Houston [ 1st Dist.] 1995, p et . r ef ’ d) (holding it w a s w ithin scope of plausible tria l strategy that tria l counse l did not objec t to extraneous o ffense because record showed trial counsel ’ s strategy was to use extraneous offense to undermine comp lain ant ’ s cre dibility ). Here, the reco rd suggests that admiss i o n o f the evidence related to
Rom a no ’s prior convicti o n was p art of defense counsel ’s trial s trategy. The evidence showed that a restroom was available across the street from the parking lot where R omano exposed himself , cas t ing dou bt o n Ro mano ’s claim th a t he
expos ed his penis because he needed to urinate

. The eviden ce also lent support to Gardiner ’ s testi m ony that Romano exposed h is pen is to masturbate

. The record suggests that defense counsel ’s t rial strategy regarding the
admiss i on of the extraneous

- o ffe nse evid ence was to ne utralize the effect of the availabilit y of the pub lic res troom by s h owing that Romano had an ave rsion to
pu blic restrooms in Memorial Park because he associated them with h is prior conviction for indecent exp osure . Accordingly , i t is possible that trial counsel’s
decision s relating to the co mplained

- of testimon y was part of a reasonable trial24

strategy. See Ex parte Ellis , 233 S.W.3d 324, 33 5

– 36 (Tex. Crim. App. 2007) ( conclu ding tha t extraneous

- crimes testimon y “served a strategic purpose” and was based on “sound t rial strategy” even though “risky”) ; Cedillos v. State , No. 08

- 14

- 00180

- CR, 2018 WL 4113169, at *7 (Tex. App.

— El Paso Aug. 29, 2018, pet. ref ’ d ) (not designated for publication) (holding that a dmissio n of evidence of
extra n eous offens e by defense was possib le trial strategy “ to get in front of ” State ’ s eviden ce about extran eous offense in order to allow appel lant to present “ his side of the story first ” and to s how ju ry appel lant “ was not hiding anythi n g ” ); Riggs v.
State , N o. 05

- 16

- 01 503

- CR, 2017 WL 5167653 , at * 3

– * 4 (Tex. A pp.

— Dallas
Nov

. 8, 2017, no pet.) (mem. op., not designated for publication) (holding that appellant failed to demonstrate that his counsel ’ s r epresen tation fell below objectiv e standard o f reasona b leness in eliciti ng testimony from appellant about his
criminal history because testimony was important to his defe nsive th e ory); see also Barfield v. State , 464 S.W.3d 67, 74 (Tex. App.

— Houston [14 th Dist.] 2015, pet. ref ’ d) ( holding i neffective assistan c e not shown wh ere defense counsel offered evidence of a ppellant ’ s invocation of right to counsel “to support two of the defense ’ s main theories”). B a sed on th e rec ord, w e cannot conclude that the

su ggested trial strat egy was so outrag e o us that no competen t attorney w ould h ave engaged in it , par ticularly when, as here , trial c ouns el w as not provided a chance to25

explain his conduct

. See Goodspeed , 187 S.W.3d at 392 ; Lopez , 565 S.W.3d at
887.
W e conclu de that Romano has not demonstrated t h at his trial counse l ’ s
per forma nce fe ll below an objec tive standard of reas onableness; thus , he has not satisfied the first Strickland prong. We hold that Romano has failed to show, by a preponderance of the evidence, that he received ineffective assista n c e of counsel at tri a l. See Stri ckland , 466 U.S. at 687

– 88, 694.
W e overrule Romano ’ s t hir d issu e. C onclusion We affirm the judgment of the tria l court.

R i chard Hightow er Justice
Panel consists of Just ices Kelly , H ightower , and Countiss

. D o not publish. T EX
. R. A PP
. P. 4 7. 2( b)

.