NO. 07-01-0201-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A FEBRUARY

20, 2002

______________________________ JAMES R. ARTRIP JR., APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 140 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2000-434953; H ONORABLE JIM B. DARNELL, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ. Appellant

James R. Art rip Jr. s eeks rever sal of his conv iction for cr iminal solicitat ion of a chil d. His puni shme nt, e nha nced by a previousconvicti on, was assessed by the trial judge at 20yea rs confi nemen t in the I nsti tuti onal Div isi on of the Dep artme nt of Criminal Justice. In three issues, a ppellant contends1) the evi dence was l egally insufficient to support his convi ction, 2)he received ineffective ass istance from histrial couns el, and 3) the trial cour

t improperly

admitted evi dence whose pr obative value was out

weighed by its2

prejudicial effect. Disagr eeing that r

eversibl e error is

shown, w

e affirm the judgment

of the trial cour t. Appellant’s first issue challenge of l egal insuffici ency req uires us t o view the evidence in the lig ht most favorabl e to the verdi ct and determine w hether any rational tr ier of fact co uld have found t he esse ntial elemen ts of th e cri me beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In relevant part, section 15.031 of the Penal Code provides: (a) A person commits an offense if, wit h intent that an offense li sted by Section 3g(a)(1) , Article 42.12, Code of Crimina l Procedure, be committed, the person requests, commands, or attem pts to induce a minor to engage in specific conduct that, und er the circumstances surrounding the actor’s conduct as the actor

believes them to be, would constitute an o ffense listed by Section 3g( a)(1), Ar

ticle 4 2.12, o r make the minor a party tothe commission of an offense li sted by Sect ion 3g(a)( 1), Articl e 42.12. * * * (c) A person may

not be convi cted under this section on the uncorrob orated testimony

of the minor alle gedly s olicited unl ess th e solic itation is made under circumstances strongly corroborati ve of both the solic itation itse lf and the actor’s i ntent that the minor act on the soli citation.
Tex. Pen. Code Ann. §15.031(a) and (c) (Vernon Supp. 2002). Aggravated sexual assault and indecency with a c hild are offenses l isted under sec tion 3g(a) (1) of

article 42. 12. See Tex. Code C rim. Proc. Ann. art. 42.12 § 3g(a)(1) (Vernon Sup p. 2002). Here, appell an t
was indicted for requesting or attempting to indu ce a min or to en gage in s exual3

intercourse, which w

ould be sufficient to constitute the o ff ense of sexual a ssault or indecency w ith a child.
The evidence s hows that on May 24, 1999, 14-year- old Raquel Rios was walking alone from her home to he r aunt’s house in Lubbock. She was wearing bluejeans and a t-shirtand was l ess than five feet tall. She testified that appe llant began following her in
a truck, then dr

ove around the block and came back. At that time, he told her to get into his vehic le and he “w

ould show he r a good ti me.” By that , Raquel averred, she bel ieved appellant

was aski ng her to have sexual intercourse. She replied that she was only “a little kid” and to leave her alone. Appellant responded that “[a]ge is just a number .” Appellant continued to follow Raquel, so sh e began to run. As she did s o, she saw a police car. Raquel wave d at the officer and poi nted at the truck . As she kept walking , she saw the officer stop appellant’ s vehicl e. She was later quest ioned about the inc ident by anoth er police officer.
When cross-ex

amined, Raquel agreed that a ppel lant never said, “[w ]ill you have sex with me” nor did he offer her money to do so. She initiall y said shedid not remember appellant

asking if she would sell herself to him but, on red irect examinatio n and after reading the statement she gave the police, sh e said appellant did ask her if she would sell herself and she tol d him she was not a prostit ute.
Lubbock Police Officer Scott Weems said he spo ke t o Raquel on t he date of the incident and averr

ed that she appeared to be about nine or ten years old. After appell ant4

was arrested, a s earch of his tr uck was conducted, and a small pill bottl e containing petroleum jell y, as well as a box of condoms, was found.
Lubbock Police Officer Nathan Anderson testi fied that he was on patrol w hen he observed a pickup tru ck stopped in t he middle of the road. The occ upant of the pickup w as talking to a young girl about ten or eleven years ol d. Anderson saw the girl point to the truckwith a wor ried look on her face, so he ini tiated a traffic stop. Appellant w as in the truckand Anderson asked him why he was tal king to the girl. Appellant res ponded that he
was asking the girl “if

she was w

or king,” w hich is a co mmon street term for prostitution. After Officer W eems talked to Raquel and the officers conferred, appell ant was pl aced under arrest, a w recker was called, and an inventor y search conducted o n appellant’s vehicle. Inside the vehicle, the searchers f ound a prescri ption pill b ottle wi th what appeared to be petroleum jel ly, a package of condoms, and two pornographic magazines. Appellant

testified that he stopped his tr uck and asked R aquel if “she was working.” When the girl r eplied that she was not, he averred he than ked her and drove off. He
a dmitted that he waslooking for a prostitute bu t denied that he had asked Raquel t o en gage in sexual in tercour se or tha t he of fered her any mo ney to enga ge in sexua l intercourse. He also deni ed that he tried to get Raq uel in his truck. On cross- examination, he admitted he had previo usly been convicted of in decent exposur e and contributing to the delinquency of a child in New Mexico . He also admi tted he had been conv icted of kidnap ping. Furthermore , h e had pre viously asked a woman if she “was workin g” and1 Appellant claimed the woman asked him to sh ow her “what you ha ve got” before

he ex pose d hi msel f. 5 when she replied thatshe was not , 1 he exposed his erect penis and masturbated. When queried if he w

ould ha ve had sex wit h Raq uel if s he had told hi m s he “was w orking,” appellant stated, “. . . if she would have said yes, to be honest with you, most likely, yes, ma’am, I woul d have.” Appellant arg ues that because heonly asked if the girl was working and because thatquest ion d oes n ot in volve the penetration of, or contact w ith, the geni tals, the evidence does not support his conviction. Furthermore, he co ntends, there is no corroborati ng proof because the ev idence wasunlawfully seized. Howev er, Raquel stated that shebelieved appellant

was referring to sex

when he tol d her to get into his tr uck and he would show he r a good time. He also asked if she wanted to sell herself. In addi tion, appellant admitted thatif Raquel tol d him she was workin g, he woul d have had sex with her. There was also the test imon y that Raq uel told appell ant she was “just a li ttle kid” a nd he replied to the effect that age did not matter. Thu s, there was ample evidence from which the jury could reasonably conclude that app ellant knew Raquel w

as a minor. In deed, the Court of Criminal Appeals has held that in a cas e ofthis n atur e, th e Sta te do es no t have to pro ve thata defendant kne w the victim to be younger than 17 years. See Johnson v. State , 967 S.W.2d 848, 849-50 (Tex.Crim.App. 1998). There is also the testimony about appellant ’s previouscontact w ith an adult w oman when he inq uired if she was “working,” after which he expos ed hi msel f an d ma stur bate d, as well as the e vi dence of the condoms and2 The admissib ility of this eviden ce is chall enged in appell ant’s third issue and

reviewed in our dis cussion of that i ssue. 6 pornographic magazines found in his t ruck. 2 Viewed i n the light most favorable to the verdict, the evidence is sufficient toshow that appellant requested or atte mpted to induce
a mi nor to engag e in sexual intercours e, which i s sufficient to cons titute the offense of sexual ass ault or indecency w ith a child. Appellant’sfirst issue is overruled.
The thrust of

appellant’s s econd issue cl aim of ineffective as sistance of tri al counsel is that he should hav

e objected to the admissibili ty of the items found in t he truck and that he should have objected to testimony of D r. Beth Shapir o during the punishment phaseof th e trial as to his abili ty to be re habilitated. The standard by which w e rev iew th e effectiveness of

counsel is set forth in the case of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), and w hich was adopted by our Court of Cri minal Appeals in Hernandez v. State , 726 S.W .2d 53, 57 (Tex.Crim .App. 19 86). Under t hat standard, a claimant must show that his counsel’s per formance was defic ient and that the deficient performance prejudiced hi s defense. Strickland, 466 U.S. at 687.
The first element i s met by show ing that trial counsel made err ors so sig nificant

that he was not functi oning as thecounsel guar anteed by the Si xth Amendment tothe federal constitution. Id. The second element r equires a s how ing that c ounsel’s errors were so serious as t o depr ive the defendant of a fai r trial, i.e. , a trial w hose results were rel iable. Id. Thus, a claimant mus t show that but for counsel’s errors, t he result of the pr oceeding would have been different. Id. There is a str ong presumptio n that trial counsel render ed7

adequate assistance and made all significan t decisions in the exercise of reasonab le professional judgment. Id. at 690. Furthermore , counsel’s performance is j udged by the totality of the representati on and not from isolated instances of er ror or only a portion of

the trial. Id. at 695. Appellant

claims that t he search of his vehicle was il legal becaus e the police di d not have reasonable sus picion t o de tain and quest ion him, inasmuc h as the only fact the officer had was the complainant pointing to his truck. Without the evi dence obtained from his truck, appellant argues, there would have been no corroboration of the com plainant’s testimony and the outcome of the tri al would h ave been different. Thus, he reasons, his trial couns el was i neffective in not objecting to the admission of theevidence ta ken from his truck on the basis that the search an d seizure was unlawful.
Afailure to objec

t to admissibl e evidence doe s not constituteineffective assistance of counsel. Lee v. State , 29 S.W.3d 570, 579-80 (Tex.App. --Dal las 2000, no pet.) . For example, in claiming ineffective assistance of counsel because of a failure to file a motion to suppress, i t must be proven that such a motion woul d have been g ranted. Jackson v. State , 973 S.W.2d 954, 957 (Tex.Crim.App. 1998). Furt hermore, an iso lated failure to object to improper ev idence does not necessarily constitute i nef

f ective ass istance of counsel. Manley v. St

ate , 28 S.W.3d 170, 174 (Tex.A pp.--Texar kana 2000, pet. ref’d) . An appellate court wi ll not specul ate as to the reasons trial counsel utilized a particular course of action and any

complaint

that the course of action consti tuted ineffective assistance of8

counsel must be substanti ated by proof in the recor

d. Rios v. Stat

e , 990 S.W.2d 382, 385 (Tex.App.--Amarillo 1999, no pe t.).
Trial counse l’s motive for not objecti ng to the admis sion of the items found i n h i s truckon the basis adv

anced by appel lant does no t appear in the r ecord. That being so, appellant

has not overcome the presump tion that his counsel’s actions were reasonable. See Beck v. State , 976 S.W.2d 265, 267 (Tex.App.-- Amarillo 199 8, pet. ref’d). Addi tion ally, we note that appellant’ s vehicl e was not s earched at the ti me of his initial stop by Offic er Ande rson. It was only aft er the victi m had b een qu e stioned that the of ficers decided to arrest app ellant. At thetime of that arres t, a wrec ker was called to tow th e ve hicle. It wa s not until th at time that the contents wer e inventori ed in accordance with police policy to protect the officer s against po ssible theft all egations . Thu s, i f t he arrest and impoundme nt were proper, the s earch and seiz ure may have been valid. See Kelly
v. State , 677 S.W.2d 34, 37 (Tex.Cri m.App. 1984). The fact that there may be questions aboutthe validit

y of the search is not enough to show ineffective ass istance, and appel lant has the burden to develop facts and details of the search suffici entto show that the search was indeed i nvalid. Jackson , 973 S.W.2d at 957. Furthermore, the record r eveals that trial couns el objected to t he ad mission into evidence of the items on the bas is that they were not r

elevant, i n that they w

ere not used in the commission of anyoffense, and they were prejudic ial to appell ant. That objection
was overrul ed. Then, on cross -examinati on, counsel asked the police officer if he was testifying the items wer e used for a nything with res pect to the complai nant. The officer9

responded that all he was tes tifying to was that t he items wer e found in the truck . Counsel also obtained testimony that the magaz ines did not appear to be new and that petroleum jelly may have other uses than for sex. In sum, the reco rd is not suffic ient t o show that counsel’s ac

tions wi th regard to the truck i tems amounted to ineffective assistance. Appellant

additionally

argues that his trial cou nse l should have objected to the relevance of the testimo ny of Dr. Be th Shap iro durin g the puni shment hearing . The testimony

in questi on was that, based upon statis tical figur es, appellant could probably not be rehabilitated and, base d upo n Sta tic 99, ameas urem ent u sed to cl assi fy the risk l evel of sexual per petrators, appel lant was i n the very high ris k category . Dr. Shapi ro had never met appellant and bas ed her opinion s olely on her review of reports. Appel lantposits that this testimony w

as not necessar

y to aid the trial c ourt in assessing punishment and it resul ted in extr

eme pre judic e to hi m. Again, we observe t he record is not sufficient to s how

trial counsel’s motivation in failing to ob

je ct and is not s ufficient to over come the presumptio n that counsel w as ineffective. Moreover , in relevant part, arti cle 37.07 o f the Code of Criminal Procedure provides:
Sec. 3. Evidence of prior criminal record in a ll crimi nal cases after afinding of gu ilty. (a)(1) R egardless of the plea and wh ether the punishment be assessed by the judg e or th e jury , evi dence ma y be offered by the s tate and the defendantas to any matter the court deems re levant to senten cing, including butnot limited tothe prior c riminal record of the defendant, h is genera l reputatio n, his character, an opinion reg arding his character, the circumstances

of the off ense for which he is being tried, and, not withstandi ng10

Rules 404 and 4 05, Texas Rul es of Evidence, any other ev idence of an extraneo us c rime or bad act that is show n beyond a reas onable doubt by evidence to ha ve been committed by the defendant or for w hich he could be held criminall yresponsible, regardles s of whether hehas previ ously been charged w ith or finall y convi cted of the crime or act . . . .
Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Sup p. 2002). Thus, the current
ve rsion of this artic le, as opposed to the versi on in effect during the time of a number o f the cases cited by appellant, grants a trial court wide latitude in the admission of evidence deemed relevant, and opinion test imony as to a defendant’s a bility to be rehabili tated has been held admissibl e. See Mock v. S tate , 848 S.W.2d 215, 225 (Tex.App.--El Paso 1992, pet. ref’d). The pre- sentence investigative report als o showed appel lanthad an ext ensi ve criminal history and had previo usly attended both gr oup and indiv idual sex offender counseling in prison and as part of his parole for prior offenses , whi ch wo uld be some evidence as to his ab ility t o be rehabilitated . Moreov er, even i f the testimony w as improperly admitted, the tr ial court, as the factfinder at the punis hment stage, is presumed to have disr

egarded any

inadmissibl e e vide nce. Rhine v. State , 642 S.W.2d 228, 229 (Te x.App.--H ouston [14 th Dist.] 1982, no pet.). Therefore, we cannot find cou nse l inef fec tive b ecau se of a fa ilure to ob ject to th e rele vance of t he te stim ony. Ap pe llant

further argues that counsel sho uld have objected to Dr. Shapiro’s testimony

on the basis that it did not meet the q ualification of Ru les of Evidence 702 and 703, as well as the requi rements of reliab ility explicated in Daubert v. Me rre ll Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 1 25 L.Ed.2d 469 (199 3). He argues tha t she wa s not quali fied to predict a ppellant’s futur e behavior because she stated her11

conclusionswere pr

eliminary and her opinion was based ent irely o n her revi ew of wr itten reports.
Dr. Shapiro holdsboth bachelor’ s and master ’s de grees in ps ychology and has been in private practice si nce 1990. She isa registered sex offender trea tment provid er with the State of Texas, as well as being an ass ociate fellow of the Amer ican Academy of Criminal Sexologi sts. She trea ts sex offenders as a regula r part of her pr actice.
She stated that the fir

st step in r

ehabilitation is that the offender has to admit tothe crimeand take responsibility for it, a nd second, there have to be ind ications that the offender can f ollo w a behavior p rotection pla n to keep out of ris ky situat ions. The offender must also want

to change. I f these factors are not present , reh abilitation will n ot be successful. Based on the rep orts that appel lant committed sex ual offenses whil e on probation, she felt he had no imp ulse control. Further, i n light of appel lant’s just ification for soliciti ng sex from the complai na nt, i.e. , he thought she was a prostitute, Dr. Shapiro said she d id no t fe el th at ap pell ant h ad an y sens e ofculp abil ity.
Dr. Shapiro testifie d that Sta tic 99 is a structured R isk Assess ment used by the State of Texas to clas sify the ri sk level of the sexual p erpetrator. Although s he did not have full information, she ranked appellant as a very high risk perpetrator. She said that research showe d tha t ofthos e who s core as hig h risk , 39% wi ll co mm it sexual offenses within the next five years . On cross -examinati on, Dr. Shapir o also stated th at Static 99 relies on ten factors that ar e primarily

related to assault hi story both in terms of sex ual and non-sexual assaults and it does not pl ace much emphasis on other personal information.12

As we have noted, much of the assa ult histor y was already beforethe court thr ough the pre-sente nce i nvestig ation report, and the trial court is pr esumed to have i gnored any inadmissible testimony in its determination ofpunishment. In assessing the pe rformance of counsel, wenote that throug h his cross -examinati on of Dr. Shapir o, she admitted that individual information, thou gh not used in Static 99 assessments, i s important and noone knows for sure if appell ant would fall with in th e 39% of individuals who will commit additional offenses. Thus, in his cross-ex

amination, he was able to c hallen ge the weig ht of her opinion because it was only based on her review of written reports. Further, even though appellant cla ims that because he receiv ed the maximum 20-year s entence, there is a reasona ble probab ility that the trial court reli ed on Dr. Shapi ro’s testi mony in its assessment

of punishment, there was ample addi tional evi dence of his prio r criminal historythat would justify a s entence in the upper end of the punishment al lowable. The record before us does not demonstrate tha t counsel’s errors, as suming arguendo that they
were error, w

ere sufficient to s how that but for those error

s, the result

of th e trial w ould have been different. Appellant’s second issue i s overru led.
In his thir

d and final issue, appellant arg ues that the admission of theitems found in the truck w

as error because their pr obative value wa s exceeded by their prej udicial effect. He contends th at those items w ere n ot relevant to establish any element of the offense charged beca use the complainant never saw

them and they “ had no bearing on the exchange of words betw een her and Appell ant.” Furthe r, he reasons, the contents of the magazinesonly ser ved to make the jury conc lude t hat he “was gene rally a lewd person” and w

as therefore gui lty of the char ged offense.13

In considering this challenge, we note that relevant evidence is any evidence hav ing
a tendency to make the existence of any fact that is of conseq uence to the determi nation of the action more probable or les s pro bab le th an it would be with out t he evi den ce. T ex. R. Evid. 401. However, although the evidence may be relevan t, it may be excluded i f its prob ative value issubstantiall y outwei ghed by the danger of unfair prejudice. Tex. R. Ev id. 403. Our rev iew

of the admission of evidence pursuant to these rules is unde r an abuse of discretion standard. Salaz ar v. State , 38 S.W .3d 141, 151 (Tex.Crim.App .), cert. denied ,

_ __U.S . ___, 122 S.Ct. 127, ___ L.Ed.2d ___, ( 2001); Winn v. State , 937 S.W.2d 124, 127 (Tex.App.--Amarillo 1996, no pet.).
The State arguesthatalthough appel lantmad e an o bjec tion base d on r eleva ncy, he failed to make a se parate objection based on Rule 403. The trial objection was: Your Honor, I would obj ect to relevance, Number One. And, Number Tw o, they - - as far as I understand, they were not u sed in the commis sion of any offense. They wer

e just items t hat were found i n Mr. Artr ip’s picku p, a nd I don’t see how they

tie into thecharges, Y

our Honor. The o nly purpos e that I can see is to prejudice t he jury ag ainst my cl ient, so we would obj ect.
Atrial cour

t need not conduct t he balancing test to determine ifthe probative value outweigh s the prejudic ial impact unl ess the opponent of the ev idence makes a furth er objection under the prej udicial impac t rule. Alba v. State , 905 S.W .2d 5 81, 5 85-8 6 (Te x. Crim.App. 1995), cert. denied, 516 U.S. 1077, 116 S.Ct. 78 3, 133 L.Ed.2d 734 (1996). Construing the objection in its broa dest s ense, w e wi ll as sume that appellant’ s objection was sufficient

on both grounds

of relevancy

and the prejudi cial impact of the evidence.14

Althou gh motive is not an essential element of every crime, evidence of motive is admissibl e becau se it is r elevant as acircumstance tending to pr ove commissi on of the offense. Winn, 937 S.W.2d at 128. In Brimage v . State , 918 S.W.2d 466 (Tex.Cri m.App. 1994), cert. denied , 519 U.S. 838, 117S. Ct. 115, 136 L.Ed.2d 66 ( 1996), the defendant
was tried for capi tal murder commi tted during the course of a ki dnapp ing. The State sought to introduce into evidence certain items found in his residence and a motel room he rented. The items include d, among others, pornographic ma gazines, a cylin drical object, a jar of cold c ream, a towel with semen stains, and a pi ece of leather w ith holes cut i n it and pieces of clothing attach ed which was described as a sexual device. The court held the items wer

e relevant to the kidnapping because the defendant had s tated that he wanted the vi ctim sexua lly, and the items tended to corroborat e that his motive in kidnapping was sex ual in nature. Id. at 50 5. Sim ilarl y, the items found here in ap pellant’s vehicle are relevant to his motive in accosting the complainant an d corroboratehis intent to have sex ual intercour se.
There is a presu mption that rele vant evi dence wil l be more probati ve than prejudicial. Williams v. State , 958 S.W.2d 186, 196 (Tex.Crim.App. 1997). The evidence must only be excluded when there is a cl ear disparity between the degree of prej udice of the evidence and its probati ve val ue. Brimage , 918 S.W.2d at 506. Although appel lant argues t hat the evidence w ould be offensive tosome jurors and they would have to conclude he was a lewd perso n, appellant himselftestified that he was looking for a prostitute and had done so in the past. He also admit ted the exposur

e and masturbation15

incident before a woman he had a pproached on the street . There was f urther ev idence of appell ant’s p rior conv ictions, i ncluding one that related to indecent expos ure, and another for prostituti on for propositi oning female inmates at the Hockl ey

County Jail while he was performi ng community service. Considering the record before us, we cannot s ee how the admission of theitems in appe llant’s truck unfairl y prejudi ced appellant and outweigh ed their probat ive va lue. Appellant ’s third i ssue is overruled.
In sum, we overrul e all of appellant ’s issues and, finding no reversible error, affirm the judgment of the t rial court

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John T. Bo yd Chief Justice Do not publish

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