Opinion filed October 18, 2018



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 16

- 00339

- CR

__________ LAVANDERS MARQUIS MUSKIN A/K/A LAVENDERS MUSKIN A/K/A QUEZ A/K/A LAVANDERS MUSKIN , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 350th District Court Taylor County, Texas Trial Court Cause No. 12384

- D

M E M O R A N D U M O P I N I O N The jury convicted Lavanders Marquis Muskin of the first

- degree felony offense of aggravated sexual assault

. The ju ry assessed punishment at confinement
for ninety

- nine years , and the trial court sentenced him accordingly

. Appellant
br ings three issues on appeal. Appellant contends that (1) the trial court abused it s2 discretion when it admitted evidence of e xtraneous misconduct, (2) trial counsel provided in effective assistance of counsel, and (3) Appellant’s punishment was improperly enhanced

. We reverse and remand for a new punishment hearing.
H

. S

. walked to a convenience store to get something to eat

. Before H

. S

. got

to the store, Appellant approached her

. Appellant asked if she wanted to purchase drugs, where she lived, and whether she had a phone number

. H

. S

. said she did not have a phone
, and Appellant left , headed i n a different direction

. After H

. S

. arrived

at the convenience store , Appellant came up to her again and appeared to be very
angry

. Appellant put his hand over her mouth, grabbed her cell phone, beat her on the head
, dragged her behind the convenience store
, and sexually assaulted her

. B ecause Appellant said he had a gun
, H

. S

. did not fight back

. After about two minutes, he stopped and told her not to say anything

. In his first issue, Appellant contends that t he trial court abused its discretion
when it admitted inadmissible evidenc e of extraneous misconduct

. Appellant asserts
that his alleged prior sexual assaults are character

- conformity testimony prohibited by Rule 404(b) of the Texas Rules of Evidence and are more prejudicial than probative

. See T EX

. R. E VID

. 403 , 404(b)

. We disagree. Appellant testified that he had consensual sex with H

. S

. in exchange for drugs

. Before Appellant testified, he knew that his two prior convictions for burglary would
be admissible and that his alleged prior sexual assaults could come in as evidence

. After Appellant testified that he and H

. S

. had consensual sex , the State argued to the
trial court that Appellant’s alleged prior sexual assaults were admissible to rebut Appellant ’ s defense of consent and to show plan, preparation, and inte nt

. Appellant objected. The trial court overruled Appellant ’ s objection and admitted the evidence

. The trial court conducted a Rule 403 balancing test and found that the evidence was extremely prejudicial but that such prejudice did not substantially outweigh the probative value of the evidence

.3 We review a trial court ’ s decision to admit or exclude extraneous offense
evidence under an abuse of discretion standard. De La Paz v. State , 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We will reverse a trial court ’ s ruling that an
extraneous offense has relevance other than to prove conformity with the
defendant ’ s character only if the ruling is outside the zone of reasonable disagreement. Id. at 343

– 44. We give deference to a trial c ourt when i t determines that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity with that conduct

. T EX

. R. E VID

. 404(b). This rule excludes evidence offered to prove bad character
and conduct in confo rmity with that bad character. De La Paz , 279 S.W.3 d at 343.
E vidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or rebuttal of a defensive theory. T EX

. R.
E VID

. 404(b); De La Paz , 279 S.W.3 d at 343; Moses , 105 S.W.3d at 626; Hernandez v. State , 426 S.W.3d 820, 825 (Tex. App.

— Eastland, 2014 , pet. ref ’ d ) ( mem. op.)

. When the defense raises the defensive theory of consent in a sexual
assault case , the defendant disputes his intent to engage in the conduct without the complainant ’ s consent and places his intent to commit sexual assault at issue

. Casey v. State , 215 S.W.3d 870, 880 (Tex. Crim. App. 2007 ) ( c iting Rubio v. State
, 607 S.W.2d 498, 501 (Tex. Crim. App. 1980 ) ).
We conclude that the trial court did not abuse its discretion when it determined
that Appellant’s alleged prior sexual assaults had relevance apart from character conformity. The challenge d evidence involved very similar circumstance s : the
threat of a firearm and an initial conversation with the victims about drugs. Accordingly, the evidence of Appellant ’ s extraneous act s addressed the issue of his4 plan, preparation, and intent to sexually assault H

. S

. Also, this evidence tends to rebut Appellant ’ s defensive theory of consent. Therefore, the trial court did not
abuse its discretion when it determined that the evi dence was admissible under
Rule 404(b).
Even when evidence of an extraneous offense is permissible under
Rule 404(b) , it may be excludable under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudi ce, confusion of the issues,
mislead ing the jury, undu e delay
, or needless presentment of cumula tive evidence.
T EX

. R. E VID

. 403. We consider these factors in a Rule 403 analysis : (1) the inherent probative force of the proffered evidence; (2) the proponent ’ s need for that evidence; (3) any tendency of the evidence to suggest a decision on an improper basis; (4) any tendency of the evidence to confuse or distract the jury from the main issues; (5) any tendency of the evidence to be given undue weight by a jur y that has not been equipped to evaluate the probative force of the evidence; and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State , 210 S.W.3d 637, 641

– 42 (Tex. Crim. App. 2006). Rule 403 favors relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Hayes v. State , 85 S.W.3d 809, 815 (Tex. Crim. App. 2002 ). We reverse a trial court under Rule 403 “rarely and only after a clear abuse of discretion.” Mozon v. State , 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery v. State , 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) )

. We have applied the factors listed above
, and we conclude that the trial court
did not abuse its discretion when it determined that the probative value of the evidence was not substantially outweighed by its prejudicial effect. The trial court could have reasonably concluded that the probative value of the prior sexual assaults

wa s very high because the detectives did not have any suspects until one of the prior5 victims reported that Appellant had sexual ly assaulted her

. T his report allowed the detectives to link Appellant to the current offense

. Also, t he trial court could have reasonably concluded that the State needed to present this evidence because the State
had no other means to disprove Appellant ’ s defense of consent. Furthermore, we do not think that the evidence had a tendency to confuse or dist ract the jurors from the main issues in an irrational way or that its presentment consumed an inordinate amount of time or merely repeated previously admitted evidence. Additionally, the trial court provided a limiting instruction to the jury regarding ex traneous offense
evidence

. We overrule Appellant ’ s first issue on appeal. In his second issue, Appellant contends that trial counsel provided in effective
assistance of counsel . He bases his claim o n a statement made by his counsel during the guilt/innocence phase of the trial. Counsel told the jury that the evidence was legally su fficient to convict Appellant

. Appellant asserts that there can be no plausible, rational strategy for this statement

. We disagree. During closing argu ments, Appellant ’ s trial counsel said to the j ury: “S o what else do we have besides these conflicting stories ? I admit to you that the evidence is sufficient, legally

. . . to convict [Appellant]

. I mean, that ’ s just the way the law
is. I ’ m a lawyer; I ’ ve read enough cases to know the evidence is legally sufficient. ”
Counsel further stated that
, “[i] f you convict him, it ’ s not going to come back on appeal for [insufficient] evidence. That is the case. And so I concede that to you. ” However, counsel w ent on to argue that the evidence also supports a verdict of not guilty and that the State has not proved its case beyo nd a reasonable doubt

. Counsel further argued that there were reasonable alternative explanation s that constitute d
reasonable doubt

. To establish that trial counsel rendered ineffective assistance at trial, Appellant must show that counsel ’ s representation fell below an objective standard of reasonableness and that there is a reasonable probability that the result would have6 been differ ent but for counsel ’ s errors. Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999 ) ( citing Strickland v. Washington , 466 U.S. 668, 687

– 88 (1984)). A reasonable probability is a probability sufficient to undermine confidence in the
outcome of the t rial. Strickland , 466 U.S. at 694. There is a strong presumption that
counsel ’ s conduct fell within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that the challenged action could
be considered sound trial strategy. Strickland , 466 U.S. at 689

. A claim of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson , 9 S.W.3d at 814 (quoting McFarland v. State , 928 S. W .2d 482, 500 (Tex. Crim. App. 1996))

. Direct appeal is usually an inadequate vehicle to raise such a claim because the record is generally undeveloped

. Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Direct appeal is especi ally inadequate when
counsel ’ s strategy does not appear in the record. Id

. Trial counsel should ordinarily
have an opportunity to explain his actions before an appellate court denounces
counsel’s actions as ineffective. Id. Withou t this opportunity, an appellate court should not find deficient performance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Id. (quoting
Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim App. 2001)). Here, t he record is sil ent as to any potential trial strategy that counsel could have employed. Appellant did not file a motion for new trial
, and trial counsel has not had an opportunity to explain his strategy for the challenged statements to the jury

. G iven the sensitive nature of a sexual assault case and the trial court’s statement outside the presence of the jury that this is a “he

- said/ she

- said ” case , 1 t rial

1 The trial court and the State both agreed outside the presence of the jury that this case is a “ he

said/she

- said ” case

.7 counsel ’s statements could be a reasonable trial strategy. Appellant has failed to
show that counsel ’ s statemen t to the jury was so outrageous that no competent attorney would have engaged in it. We overrule Appellant ’ s second issue on appeal. In his third issue, Appellant contends that his punishment was improperly
enhance d to that of a habitual offender because the State failed to show the proper sequence of the two prior convictions that the State had alleged for enhancement

purposes

. Appellant asserts that he had not been finally convict ed of the first alleged prior offense when he committed the second prior offense

. We agree. The State sought to enhance Appellant’s punishment under the habitual
offender statute. See T EX

. P ENAL C ODE A NN

. § 12.42(d) (West Supp. 2018 ). The State alleged that Appellant was convicted of burglary of a dwelling in cause no. 2005

- 0093 on January 10, 2006

. The State also alleged that , after the conviction in
cause no. 2005

- 0093 became final, Appellant committed the offense of burglary of a dwelling in cause no. 2011

- 0065 on May 26, 2011, and that this conviction became
final on February 2, 2012 , prior to the commissio n of the instant offense in 2015. The jury found the enhancement allegations to be true. 2
To enhance a defendant ’ s punishment under S ection 12.42(d), the State must prove beyond a reasonable doubt that the defen dant has had two prior felony convictions and that the first prior conviction became final before the defendant committed the second prior offense. Id. ; Jordan v. State , 256 S.W.3d 286, 290

– 91 (Tex. Crim. App. 2008)

. The State must also show that the second prior conviction
became final before the defendant committed the current offense. Jordan , 256
S.W.3d at 291. When execution of a sentence is suspended, the conviction for that

2 We note that the trial court’s charge to the jury on punishment erroneously failed to require the jury to find that the 2006 conviction became final prior to the commission of the second alleged offense. The jury, however, was instructed , pursuant to Section 12.42(d), to find the enhancement allegations to be true and to assess Appellant’s punishment at confinement for no less than twenty

- five ye ars

.8 offense is not final for purposes o f enhancement and does not become final for such purposes unless revoked. Ex parte Langley , 833 S.W.2d 141, 143 (Tex

. Crim. App. 1992) (citing Rodgers v. State , 744 S.W.2d 281 (Tex. App.

— Fort Worth 1987, pet.
ref ’ d) )

. We determine whether a prior conviction is “final” in accordance with Texas
law. Ex parte Pue , 552 S.W.3d 226, 229 (Tex. Crim. App. 2018). The law of
another state does not control whether a court in Texas may properly enhance a defendant ’ s punishment

. Id. Appellant was convicted of burglary of a dwelling on January 10, 2006
, in Mississippi

. The trial court sentenced him to six years ’ confinement but suspended the execution of the sentence for a period of five years , to begin after he had served

one year in an institution supervised and controlled by the Mississippi Department
of Corrections

. Before Appellant had completed the probationary period, Appellant committed the offense of burglary of a dwelling on May 26, 2011
, in Mississippi

. The tri al court revoked Appellant ’ s probation on October 3, 2011
, when the grand jury indicted Appellant for the offense of burglary of a dwelling
, but the trial court suspended the execution of the first sentence again

. Appellant ’ s conviction for the
second bur glary became final on February 2, 2012

. After Appellant ’ s conviction for
the second offense became final, the trial court revoked Appellant ’ s probation on the first burglary conviction and sentenced Appellant to serve the five years suspended in the origi nal sentence

. Although Appellant was convicted in 2006 of burglary of a dwelling , th e conviction for that offense was not final when Appellant committed the second prior offense of burglary of a dwelling. See i d

. Therefore, because the
first conviction was not final before the second offense was committed
, w e sustain Appellant ’ s third issue on appeal.
We affirm the judgment of the trial court as to Appellant ’ s conviction, but we reverse the judgment as to punishment

. We remand this case to the trial court for a new punishment hearing. See T EX

. C ODE C RIM

. P ROC

. A NN . art. 44.29(b) (West9 2018); Jordan , 256 S.W.3d at 293 (concluding that
, even if the State ’ s failure to prove the chronological sequence of punishment enhancement alle gations is subject to a harm analysis, such a deficiency will never be considered harmless).

JIM R. WRIGHT
SENIOR CHIEF JUSTICE

October 18, 2018 Do not publish. See T EX

. R. A PP . P. 47.2(b). Panel consists of: Bailey, C.J., Willson, J., and Wright, S.C.J. 3
Willson, J., not participating.

3 Jim R. Wright, Senior Chief Justice (Retired), Court of A ppeals, 11th District of Texas at Eastland, sitting by assignment.