## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00046

- CR

EVERICK L . MONK , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 21F1529

- 202

Befo re Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION A Bowie County jury convicted Everick L. Monk of aggravated sexual assault of Mary Brown, 1 a disabled individual , and burglary of her habitation wit h the intent to commit sexual assault

. See T EX
. P ENAL C ODE A NN
. § § 22.021, 30.02(d). After the jury found the State’s
habitual , punishment

- enhancement allegations true, it assessed a sentence of life imprisonment for both convictions. On appeal, Monk a r g ues that the State’s references to extraneous offenses constituted pro secutorial misconduct and that his counsel rendered ineffective assistance for failing to object to the comments. We find (1) that the majority of Monk’s complain t s of prosecutoria l mi sconduct are meritless , (2) that he failed to preserve his remaining prosecutorial misconduct complaint by failing to object at trial , and (3) that Monk is unable to show he was prejudiced by any ineffective assistance o f counsel during the guilt/innoc e n ce phase of his trial. As a r esult, we affirm the trial court’s judgment.
I. The Majority of Monk’s Prosecutorial Misconduct Complaints are Meritless Monk argues that the State’s introduction of an extraneous offense during guilt/innocence
amounte d t o p rosecutorial misconduct. Because the trial court expressly permitted the State to introduce the extraneous offense, we find Monk’s complaint meritless. A. Factual and Procedural Background Before trial, Monk f

iled a motion in limine seek ing t o p revent a ny suggestion or
i nference that he was previously arrested , jailed, or had “committed other crimes similar to the

1 Mar y Brown is the State’s assigned pseudon y m for the victim.3

offense on trial.” 2 At a pre trial hearing, the State informed the trial court that i t planned to introduce extraneous

- offe n se evid ence and so ught a ruling on its admissibility.
T he State explained that a few minutes a fter Brown called the police, Monk was pulled over by police officers aft er a citizen “called 9 1 1 to report an intoxicated driver.” The dispatcher obtained t he licen se plate of M onk’s vehicle from the citizen , ran “the license plate through
TCIC/NCIC [,] and s [aw] that Monk had been convicted out of the state of Arkansas for a very similar offense, specifically th at Monk ha [d] been convicted of sexually assa ultin g a 74

- y ear - old

wom an. ” 3 The State argued that the dispatcher knew officers were “already out on the sexual assault call,” determined that the e vents were “awfully close together for [the ] incident [s ] not to be related,” and relayed th at informa tion to the traffi c sergeant who pulled Monk over. As a result, the State argued that “ [t] h e police department developed Mr. Monk as a suspect by virtue of his status as a registered sex offender ” and ar gued that “[t] here [was] no way to present th [e] case to the jur y in a manner tha t w ould not be confusing without that information. ” The State continued, “ Otherwise, it literally loo ks like [police] just see a car driving down the road and pull it over, and I don ’ t think that ’ s fair to the State. ” In response to th e State’s argument s eeking to i ntroduce extran eous - offe nse evidence , Monk objected on the ground that it was “overly prejudicial for any probative value” and argued that admission of the evidence would “den[y ] due process to the defendant” because the jury would “determin e hi s innocen ce or guilt bas ed upon his reputation alone.” The trial court

2 During v oir dire , the panel was questioned on Monk’s defensive i ssue of voluntary intox ication , which wa s submitted to the jury.

3 The evidence showed that Br own turned si x ty years old on the day of trial , h ad epilepsy, suffered a strok e , and ha d seizures daily. She received government assistance due to her disabili ty.4

overruled Monk’s objection and granted him a r unning objection to the extraneous

- offense evidence

. At tr ia l, Meagan McB ain Terry testified that she was the dispatcher who receive d
Brow n’s 9

- 1

- 1 call

. T he call cam e in at 2:35 a.m

. Brown w as struggling to speak. The first words she got out were , “Someo ne help me.

. . . He just raped me.” Terry stayed on t he line with Brown until officers arrived. Th e call lasted approximately eight mi nutes or until rough ly
2:43 a.m. Av el Perez, a patro l officer with the Texarkana, Texas Police Department (TTPD) , was dispatched to Brown’s hom e and testif ied about her injuries. During his cross

- examination, Monk established that the only description gi ven by Br own was that the perpetrator was a black male w ho wore a white shirt and may have been named “Eric.”
Michael Ash ford, anothe r dispatcher, testified that he received a call about a possible d runk driver at 2:39 a.m. ( i.e ., four minutes after the start of Br own’s call, but while Brown was

s till on the line with Terry)

. While on his call, Ashford was able to see informa tion about Terry’s call, including the call notes and the location where off icers had been sent

. Within thirty seconds, (1) Ashfor d was ab le to chec k the li cense - pl ate number given by his caller , (2) determine that the vehicle was registered to Monk, (3) det ermine that Monk was a registered sex offender , and (4) further deter mine that the reported location of Monk’s vehicle was withi n a mil e and a half of Brown’s home. Ashford testified that , f rom the sex

- offender

- registry information, he concluded t hat Monk had previously been convicted for “close to the same crime” that B rown reported to Terry. Ashford quickly relayed what he had learn ed.5

Cole Bredenberg, ano ther TTPD offi cer, testified, “Se rgeant Hargrave gets on the radio and says that he beli eved he spotted a vehicle that was matching a description of a possible intox icated driver with other information involving Mr. Mo nk.” Th e State c larified , “ T his

morn ing, Judge Tidwell has ruled tha t information can come in, in front of the jury, as part of how you

- all developed Monk as a suspect,” and asked, “ So what informati on did the police department act on whenever Everick Monk was pu lled over and d etained . . . ?” Bredenberg answered that dis patch advised tha t Monk “had been ar rested prior for a nearly identical crime.” During Bredenberg’s cross

- examination, Monk insinuat ed that , just because “the driver was possibly a sex offender, ” “everybod y just jumped and said, that must be our guy?” Couns el elicited testimony from Bredenberg that he had not seen “any direct evidence that Mr. Monk had even touched [Brown] .” During Ashford’s cross - examination, Ashford also agr eed that nothing directly linked Monk to Brown. In its rebuttal , the Sta te established that “the defendant had been convicted in the state of Arkansas for sexually assaulting a 74

- y ear - old woman,” prompting Monk to suggest that the prior convict ion occurred in the 1980s. I n its final re

- dire ct, the State established that “Monk was convicted in 1993 in Pulaski County, Arkansas, and was given 40 years to do in pris on.”
B. Analysis
In his fir st point of error , Monk argues that the State’s references to h is prior sexual

assau lt constitute d prosecutorial misconduct. We disagre e.6

“ Allegations of prosecutorial misconduct are reviewed on a case - by

- case basis. ” Woods
v. State , 398 S.W.3d 396, 404 n. 12 (Tex. App.

— Texarkana 2013 , pet. ref’d ) (citing Stahl v.
State , 749 S.W. 2 d 826 , 830 (Tex. C r im. App. 1988 ) ). Prosecutorial miscon duct may require reversal where (1) the prosecutor deliberately violated an express court order , (2) the prosecutor

c ommitted blatant misconduct to the degree that it could be cons idered contumaci o us o r w i llful ly di s obedient to authori ty , or (3) the pros ecutor took action that is so clearly calculated to inflame the minds of the jury that an instruction to disregard cannot cure the harm. See Stahl , 749 S.W.2d at 831

. The State’s actions here fit none of t hese categories.
In t his case, the State obtained the trial court’s express permissio n to elicit evidence a b out Monk’s pri or se xual

- assaul t offense during trial

. Its theory of admissibility focused on caselaw , permitting extraneous

- offense evidence as context to explain the circumstances surrounding the charged offense and why investigat ors focused on Monk as a suspect. See Devoe v. State , 354 S.W.3d 457, 469

– 71 (Tex. Crim. App. 2011) ; Fowler v. State , 553 S.W.3d 576, 583 (Tex. App.

— Texarkana 2018, no pet

. ) . Monk does not challenge the propriety of the trial court’s ruling. Because the State obtained the trial court’s perm ission to question witnesses about Monk ’ s prior , extraneous, sexual

- assault offense, we find meritless Monk’s prosecutoria l miscon d uct cla im related to the admission of this evidence.
II. Monk Failed to Preserve His Remaining Prosecutorial
- Misc onduct Comp laint
Ne xt, we address one comment by t h e State that injected extraneous

- offense evidence not allowed by the trial cour t’s pre tri a l rul ing

— the comment that Monk committed the current7

offense while on “ parole for another felony offense

. ” We fi nd that Mo nk failed to preserve error on this compl a int. 4

“ As a prerequisite to presenting a complaint for appellate review, the r ecord must s how that” it “was made to the trial court by a timely request, objection, or motio n that

. . . stated the grounds for the r uling

. . . with sufficient specificity t o make the trial court aware of the complaint, unless the specific grounds were a pparent fr o m the context .” T EX
. R. A PP
. P. 33.1(a). Further , “ [t] o preserve a prosecutorial misconduct complai nt, a defend ant must g enerally make a timely and specific objec t ion, request an instruction to disregard the matter improperly placed before th e jury, and move for a mistrial

. ” Johnson v. State , 432 S.W.3d 552, 561 (Tex. App.

— Texarkana 2014 , pet. ref’d ) ( citing Penry v. State , 903 S.W.2d 715, 764 (Tex. Crim. App. 199 5 ) (per curiam) )

. Because Monk failed to object at trial to the State’s comme nt about pa r ole for another felony offense , his complaint is not preserved for our review. W e overrule a ll of Monk’ s
appe llat e complaints about prosecutorial miscondu c t.

4 “[S]erious and continuing pros ecutori al misconduct that undermines the reliability of the fact [

- ] find i ng process” and results in “depriva tio n of fundamental fairness and d ue process of l aw” may entitle a defendant to a new trial even if “few objection s have been perfec ted.” Johnson , 432 S.W.3d at 5 61 (second alteration in origina l) (quoting Rogers v. Sta t e , 725 S.W.2d 350, 359

– 60 (Tex. App.

— Houst on [1st Dist.] 1987, no p e t .)); see Jimenez v. State , 298 S.W.3d 203, 214 (Tex. App.

— San A ntonio 2009, pet . ref ’ d)

. Monk believed that the State ’ s com ments about his prior sexual assault, in additio n to the comment about parole and another felony off ens e, amounted to seriou s cont i n uing prosecutorial misconduct. As explained above, we fou nd most of Monk’ s complaints meritless. To the extent that Monk ’s br ief can be read to argue that the State’s sin g le comment about parole for another felony offense con sti tuted fundamental err or, w e disagree that that comment “ was the sort of flagrant repeat ed mi sconduct at issue in Roger s such that it deprived [Monk] of fundamental fairness or due proce s s of law

. ” Johnson , 432 S.W.3d at 562; s ee Clark v. State , 365 S. W.3 d 333, 338 (Tex. Crim . Ap p . 2012) (“Prosecutorial misconduct rises to a due

process vio latio n when it is so significant that it deprives a defe ndant o f a fair trial.” (citing Greer v. M i ller , 483 U.S. 756, 765 (1987) ) ).8

III. Monk Cannot Show Prejudice Due to Ineffective Assistance In his second point of error, M on k argues that his counsel rendered ineffective assistance by failing to object to the State’ s remark th at he “ was on parole for another felony offense whe n he committed” the offense at issue in this case

. 5 Here , even assuming ineffective assistance,
Mo n k cannot show that he was prejudiced by counsel’s failure to object to the State’s r emark

. 6
A. St andard of R eview

“ To prevail on a claim of ineffective assistance of couns e l, the defendant must satisfy the
two

- prong ed test set forth in Strickland

. v. Washi n gton , 466 U.S. 668, 687

– 88

. . . (1984). ” Auld
v. State , 652 S.W.3d 95, 112 (Tex. App.

— Texarkana 2022 , no pet

. ) (citing Ex part e Imoudu , 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding ) ). “ A fail ure to make a showing under either prong defe a ts a claim for ineffective assistance. ” Id. (citing Rylander v. State , 101 S.W.3d 107, 110

– 11 (Tex. C rim. App . 2003) )

. “A s man y cases have noted, the right to counsel does not mean the right to errorless coun sel.” Id. (quoting Lampkin v. State , 470 S.W

. 3d 876, 896 (Tex. App.

— Texarkana 2015, pet. ref ’ d) (citing Robertson v. State , 187 S.W. 3d 475, 483 (Te x. Crim. App. 2006) ) )

. Th e first prong requires a showing “that counsel ’s representation fell below an obje ctive standard of reasonableness.” Stricklan d , 466 U.S. at 688

. “The second Strickland prong, sometimes referred to as ‘the prejud ice prong,’ req uires a showing that, but for counsel ’ s unprofessional error, there is a reasonable probability that the resu lt of the proceeding would

5 Because the record show s that M onk objected to the Stat e’s i n t roduction of the extraneous sexual

- assault evidence and obt ained a running objection, we find meritless Monk’s comp laint of ineffective assistance rela t ed to the prior sexual assault.

6 We do not condone the State’s remark b y o ur rulings.9

have been differen t .” Auld , 652 S.W.3d at 112 ; see Andrews v. State , 159 S.W.3d 98, 102 (Tex. Crim. A pp. 2005 ) ; Strickland , 466 U. S. at 694

. “‘ A reasonable probability’ is defined as ‘a
p robability sufficient to undermine confi dence in the outcome.’” Auld , 652 S.W.3d at 1 12 (quoting Andrews , 158 S.W.3d at 102 ). As a result, to show prejudice, “ an appl icant must show

‘ that counsel ’ s errors we re so serious as to deprive defendant of a fai r trial, a trial whose result was reliabl e. ’ ” Id. (quoting Ex p arte Martinez , 330 S.W

. 3d 891, 901 (Tex. Crim. App. 2011) (orig. proceeding) (quoting Strickland , 466 U.S . at 687 ) )

. Because “ [i] t is not suffici ent for [an ] Applicant to show ‘ that the er ror s had some conc eivable effect on the outc ome of the proceeding [ , ]

. . . [he] must show that ‘ there is a reasonable probability that, absent the er rors, the fact

- finder w ould have had a reasonable doubt respecti ng guilt. ’” Id. at 1 12

– 13 (citation omitte d) (third alter ation in original) (quoting E x p arte Martinez , 330 S.W.3d at 901 (quoting
S trickland , 466 U.S. at 693, 6 95) )

. B. Analysis Here, we fi nd that failing to obje ct to the State’s remark had no effect on the question of whether Mon k committed eit her the burglary or Brown ’s sexual assault.
T he evidence of Monk’s guilt was strong. B r own testified that someone had broken into her home , raped her while holding a kni fe , and “beat [her] unconscious

. ” At tri al, Brown identified Monk as the perpetrato r. Br own had also undergone a sexual a ssau lt nurse examination , and evidence obtained du r ing the exa m ination was sent for DNA testing, along with a DNA spe cimen obtained f rom a penile swab of Monk

. Chel sy Winga te, a “DNA section supervisor ” for the Texas Depar tme nt of Public Safety Crim e Laborat ory in Garland, Texas,10

testified that her analy s is of the evidenc e re vealed “that the mixture profile that was ob tained [was] mor e likely from the victim and the suspect than the suspect and an unknown individual ” and t hat “[ t] he probability of obtaining this mixture profile if the DNA came from the su s pect and the vic tim [was] 25.9 septillion times greater than the probability of obtaining this profile if the DNA came f

rom the suspect and one unrelated, unknown individu al. ” In addition to Brown’s testim ony and the results of DNA testing, Monk’ s testi m ony at trial also implicated him in the crime by placing him at the c rime s cene . Monk said that he knew
Brown and went to her house on the night of the incident. He claimed that he l eft , smoked crack cocaine, and did not remember the rest of the night. Becau se Monk decided to testify, evidence of his prior offenses was ad mitted before the jury during the State’s cr oss - examination. Also , the trial court ’s charge red irected the jury t o t he question of whether Monk had committed the offenses alleged by the indi ctment and instructed the jury as follows:

You have heard evidenc e that the defendant may have committed offe nses other than the offense charged in this case. You are instructed th at this evi dence was admitted to prove, if it does, motive, intent, i d entit y, and state of mind of the defendant and f

or no other reason. Y ou are instructed that you may not consider this evidence unless you first find beyond a reason able doubt that th e d efendant co mmitted the extraneous offenses, and if you make that find i ng th en you may only consider the evidence for t he purpose of establis hing m otive, intent, identity, and state of mind of the defendant.

. . . . All persons are p resumed to be inn oce nt, and no person may be convicted of an offense unless each element of the o ffense is proved beyond a reasonable doubt. The fact that a pe rson h as been arrested, confined, or indi cted for, or otherwise charged with the offense gives r ise to no inferen ce of guilt a t his trial.11

In light of the strong evidence of guilt, M o nk’s prior offenses admitted as a result of his decision to testify, an d the trial court’s charge limiting the p urpose for which extraneous offenses could b e considered, we do not find th at there w as a reasonable probability that the outcome of the guil t / i nnocence trial would have been different had counsel objected to t he State’s comment that Monk was “ on parole for another felony offense when he committed ” t he offense at issue in th is case

. Because we find tha t M onk cannot meet the second Strickland p r ong, we overru l e his last point of error. IV. Disposition We affirm the trial c ourt’s judgment.

Je ff Rambin J ustice Date Submitted: December 5, 2023 Date Deci ded: January 4, 20 24 Do Not Publ ish