In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-22-00015-CR

___________________________

On Appeal from the 396th District Court

Tarrant County, Texas

Trial Court No. 1711978R

Before Sudderth, C.J.; Kerr and Womack, JJ.

Memorandum Opinion by Justice Womack

STANLEY REX BAUGUS, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. INTRODUCTION

A jury convicted Appellant Stanley Rex Baugus of two counts of sexual assault. 

See Tex. Penal Code Ann. § 22.011(a)(1). The jury assessed his punishment on each 

count at ten years’ and one day’s confinement, and the trial court sentenced him 

accordingly with the sentences to run concurrently. In four points on appeal, Baugus 

complains that the evidence is insufficient to support his convictions, that the State 

engaged in improper jury argument, that the trial court abused its discretion by 

admitting certain testimony over his hearsay and relevancy objections, and that the 

trial court abused its discretion by denying his motion for new trial that was based on 

his assertion of ineffective assistance of counsel. We will hold that the evidence is 

sufficient to support Baugus’s convictions, that he has waived his complaints relating 

to improper jury argument, that he has waived one of his complaints relating to the 

trial court’s admission of testimony and not demonstrated any harm caused by the 

trial court’s admission of the other complained-of testimony, and that the trial court 

did not abuse its discretion by denying his motion for new trial. We will thus affirm.
3

II. BACKGROUND

A. Baugus Meets Sally in the Summer of 2017

In the summer of 2017, S.H. (Sally1)—the complainant in this case—was living 

with her grandmother in Fort Worth.

2 Their next-door neighbor, Ronald Bruce Dyer, 

Jr., was good friends with Baugus, and Baugus spent a lot of time at Dyer’s house.

3

Sally met Baugus that summer while he was in the neighborhood. Over the course of 

that summer, Sally “hung out” with Baugus and Dyer on several occasions at Dyer’s

house where the three of them would smoke marijuana and drink alcohol. Sally 

indicated that she was aware that Baugus was romantically interested in her.

4

B. Sally’s Description of the Events of August 13–15, 2017

At Baugus’s trial, Sally testified regarding certain events that took place on 

August 13–15, 2017. Sally’s description of these events is set forth below.

On August 13, Baugus was housesitting for Dyer while Dyer was out of town. 

Sally had planned to smoke marijuana that day with some of her friends, but her 

friends had “bailed,” so she decided to go over to Dyer’s house and smoke marijuana

1To protect the complainant’s anonymity, we use an alias to refer to her. See 

McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).

2Sally was twenty-one years old at the time. Sally’s grandmother had raised her 

since she was three months old. 

3Baugus was twenty-eight years old and married at the time. 

4According to Sally, she was not aware that Baugus was married.
4

with Baugus.5 Before she went to Dyer’s house, Sally spoke with Baugus on the 

phone, and he mentioned that he had obtained Smirnoff Ice to drink. According to 

Sally, Baugus was “pitching [the Smirnoff Ice] like he was a car salesman.” When she 

arrived at Dyer’s house, she sat on the couch, and “there was an open Smirnoff Ice 

sour apple sitting on a table next to [her.]” Baugus was “very pushy” about having 

her drink it. That raised a “warning flag[]” for Sally, and she declined the drink. 

Baugus’s cousin—Curtis Baugus—later arrived at Dyer’s house, and Baugus and 

Curtis recommended that Sally swim in Dyer’s pool. When Sally expressed that she 

did not have a bathing suit with her, Baugus told her that she could get into the pool 

naked. Sally then left Dyer’s house because she thought that Baugus’s suggestion to 

swim naked was “disgusting.”

The next day—August 14—Sally started questioning her judgment about the 

prior day. She reached out to Baugus in the afternoon to let him know that she 

wanted to swim in Dyer’s pool. Baugus told her to come over, and Sally walked to 

Dyer’s house sometime after 4:00 p.m. When she arrived, she and Baugus ate food 

and smoked marijuana together. Sally then went outside and got into the pool. 

Shortly after Sally got into the pool, Curtis arrived at Dyer’s house. 

Sally and Baugus then began drinking alcohol. According to Sally, Baugus 

brought her all of her drinks. The first drink Baugus gave her was a closed Smirnoff 

5Sally stated that her sister had died in April 2017 and that she smoked 

marijuana in the summer of 2017 to cope with her sister’s death. 
5

Ice, which she drank. The second drink Baugus gave her was an opened Smirnoff Ice 

that had a “haze in it.” Sally declined the second drink and told Baugus to bring her a 

different one. Baugus then brought her a closed drink, and Sally drank it. Baugus

later brought Sally an opened Bud Light, and Sally drank half of it. Within “a couple 

of minutes” of drinking it, Sally recalled Curtis asking whether they needed “to get the 

floaty to get her out” of the pool, and she then “blacked out.” 

The next thing Sally remembered was waking up in bed with Baugus on top of 

her. She was unsure how she had gotten out of the pool and into the house. She 

could feel Baugus’s penis “just, like, basically flop on [her] vagina,” and she said “no” 

three times and tried to move her arms to push Baugus off of her, but she was unable 

to move her arms.

6

In response, Baugus said, “[L]et me just rub it.” Sally then 

blacked out again.

7 She later woke up naked in bed with Baugus asleep naked next to 

her, found her belongings “neatly placed” in the kitchen, grabbed them, and left 

Dyer’s house. 

Soon after arriving back at her house—by this time, it was the early morning 

hours of August 15—Sally texted Baugus about what had occurred. In those texts, 

Sally told Baugus that she “remember[ed] saying no repeatedly and [he] ignored [her].”

Baugus indicated that they “didn’t do anything,” and Sally told him, “You can’t tell me 

6Sally testified that she did not actively participate in any sexual contact with 

Baugus. 

7Sally estimated that the period between blackouts was “[t]hree minutes at the 

most.”
6

you ‘didn’t do anything’ because I have a brain and a memory. I woke up to you

trying to have sex with me and you kept going as I PUSHED AND SAID NO.”

When Baugus sent her a message promising that they “didn’t have sex,” Sally 

responded, “You can’t promise me s[***.] I remember.”

After exchanging text messages with Baugus, Sally went to sleep and woke up 

around 9:00 a.m. She then contacted the police. 

C. Baugus’s Description of the Events of August 13–15, 2017

Detective Stephen Hennard of the Fort Worth Police Department was assigned 

to investigate the alleged sexual assault. As part of his investigation, Detective 

Hennard interviewed Baugus on August 25, 2017, and September 5, 2017, regarding 

the events that took place on August 13–15. Baugus’s description of these events is 

set forth below.

On August 13—the day before the alleged assault—Baugus was housesitting 

for Dyer. Sally came over to Dyer’s house that night, she and Baugus watched a 

movie together, and they “snuggled on the couch.”

8 The next day, Sally sent Baugus a 

text message asking if she could come over to Dyer’s house to swim. 

That day, Sally went over to Dyer’s house, and she and Baugus drank beer.

According to Baugus, both he and Curtis—who was also present at Dyer’s house on 

August 14—took turns getting the beers. Baugus denied putting any substance in any 

8Baugus stated that the “snuggling” consisted of him laying his head on Sally’s 

lap while she rubbed his head and his arm. 
7

alcoholic beverage that he served to Sally. Baugus indicated that Sally was “killing the 

Smirnoff” and estimated that she drank twelve Smirnoff Ices and “a bunch” of Bud 

Lights. He estimated that he drank no more than twelve Bud Lights. Baugus 

indicated that he and Sally had kissed while in the pool on August 14. 

Toward the end of that night, Sally got out of the pool and asked Curtis where 

she could take a shower, and Curtis directed her to the master bedroom. 

Approximately fifteen minutes later, Baugus went to check on Sally and found her 

lying in the bathtub asleep, with the water close to her face.9 Baugus then drained the 

water and assisted her in getting out of the bathtub. When Sally got out, she wanted 

to start drinking again, so she and Baugus started drinking more beers, and they also 

smoked marijuana. 

They then went to the master bedroom where they began “making out [and] 

feeling on each other.” Baugus described “fingering” Sally, “rubbing her clit,” and 

trying to give her the “shocker.”

10 Baugus indicated that these acts were “very 

consensual” and that Sally was awake “100%” during the encounter “without a 

doubt.” Baugus then attempted to initiate sexual intercourse with Sally, and she said, 

9According to Baugus, Curtis left Dyer’s home shortly after Baugus went to 

check on Sally in the bathtub.

10At trial, Detective Hennard describe the “shocker” as penetrating the vagina 

and anus with one’s fingers at the same time.
8

“No.” Baugus and Sally then both turned over and went to sleep.

11 When Baugus 

woke up, Sally was gone. 

D. The SANE Exam and the Toxicology Report

After speaking with police on August 15, Sally was taken to the hospital where 

a sexual assault exam was performed on her by Cindy Romaguera, a sexual assault 

nurse examiner (SANE). At Baugus’s trial, Romaguera testified that Sally had 

described the assault as Baugus “trying to put his penis in [Sally’s] butt.” Romaguera

stated that Sally was unsure whether Baugus’s penis had touched Sally’s vagina and 

that Sally had indicated that Baugus’s “finger/hand” had not made contact with her

vagina. Romaguera stated, however, that Sally had indicated that Baugus’s penis had

made contact with Sally’s anus, as had his “finger/hand.” Sally also complained to 

Romaguera that her anus was sore. During the exam, Romaguera found “a small 

amount of dried blood around [Sally’s] anus,” although Romaguera indicated that the 

blood could have been menstrual blood given that Sally was on her period at the time 

of the assault. Romaguera did not see any tears or injuries to Sally’s anus, nor did she 

see any signs of trauma to Sally’s body. 

Because Sally had lost consciousness, Romaguera took blood and urine samples 

from her on August 15. The testing from Sally’s urine revealed the presence of 

11Baugus told Detective Hennard that his penis never touched Sally. 
9

benzodiazepines. Sally denied ever having taken benzodiazepines. Baugus stated that 

he had taken a quarter of an anti-anxiety pill on the morning of August 14.12

E. Procedural History

Baugus was indicted for two counts of sexual assault—one count alleging that 

he had intentionally or knowingly caused the penetration of Sally’s sexual organ by 

inserting his finger into it without her consent, and the other alleging that he had

intentionally or knowingly caused Sally’s sexual organ to contact his sexual organ 

without her consent. 

The case proceeded to a jury trial in January 2022. Several witnesses—

including Sally, Sally’s grandmother, Detective Hennard, the SANE nurse, and a 

toxicologist—testified during the guilt–innocence phase of Baugus’s trial. The jury 

returned a verdict convicting Baugus of two counts of sexual assault. After hearing 

testimony from several defense witnesses during the punishment phase, the jury 

sentenced Baugus to ten years’ and one day’s confinement on each count, with the 

sentences to run concurrently, and the trial court sentenced him accordingly. 

Baugus later filed a “Motion for New Trial and Motion in Arrest of Judgment”

(motion for new trial), arguing that he should be granted a new trial because he 

received ineffective assistance of counsel. Baugus later requested that the trial court 

12It is unclear what type of anti-anxiety pill Baugus took. At one point in his 

testimony, Detective Hennard indicated that the anti-anxiety pill was a 

benzodiazepine, although he later clarified that he did not know whether the pill was a 

benzodiazepine. 
10

allow him to depose his trial counsel, and the trial court granted that request. 

Following a hearing on Baugus’s motion for new trial, the trial court signed an order 

denying the motion. This appeal followed.

III. DISCUSSION

A. Baugus’s Sufficiency Complaint

In his first point, Baugus argues that the evidence is insufficient to support his 

convictions. 

1. Standard of Review

In our evidentiary-sufficiency review, we view all the evidence in the light most 

favorable to the verdict to determine whether any rational factfinder could have found 

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. 

Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to 

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 

2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).

The factfinder alone judges the evidence’s weight and credibility. See Tex. Code 

Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 

2021). We may not re-evaluate the evidence’s weight and credibility and substitute 

our judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine 

whether the necessary inferences are reasonable based on the evidence’s cumulative 
11

force when viewed in the light most favorable to the verdict. Braughton v. State, 

569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 

(Tex. Crim. App. 2017) (“The court conducting a sufficiency review must not engage 

in a ‘divide and conquer’ strategy but must consider the cumulative force of all the 

evidence.”). We must presume that the factfinder resolved any conflicting inferences 

in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at 

608.

To determine whether the State has met its burden to prove a defendant’s guilt 

beyond a reasonable doubt, we compare the crime’s elements as defined by a 

hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State, 

622 S.W.3d 910, 914 (Tex. Crim. App. 2021). Such a charge is one that accurately sets 

out the law, is authorized by the indictment, does not unnecessarily increase the 

State’s burden of proof or restrict the State’s theories of liability, and adequately 

describes the particular offense for which the defendant was tried. Id. The law as 

authorized by the indictment means the statutory elements of the offense as modified 

by the charging instrument’s allegations. Curlee v. State, 620 S.W.3d 767, 778 (Tex. 

Crim. App. 2021).

2. Elements of the Offense

A person commits the offense of sexual assault if he intentionally or knowingly 

causes the penetration of the sexual organ of another person by any means, without 

that person’s consent, or if he intentionally or knowingly causes the sexual organ of 
12

another person, without that person’s consent, to contact or penetrate the sexual 

organ of another person, including the actor. Tex. Penal Code Ann. § 22.011(a)(1)(A), 

(C). The Penal Code sets forth several circumstances in which a sexual act is 

considered to be without a person’s consent. See id. § 22.011(b)(1)–(14). As relevant 

here, “[a] sexual assault under Subsection (a)(1) is without the consent of the other 

person” if “the other person has not consented and the actor knows the other person 

is unconscious or physically unable to resist” or “the actor has intentionally impaired 

the other person’s power to appraise or control the other person’s conduct by 

administering any substance without the other person’s knowledge.”

13

 Id.

§ 22.011(b)(3), (6).

3. The Evidence is Sufficient to Support Baugus’s Convictions

Baugus claims that the evidence is insufficient to support his convictions. We 

disagree. Here, Sally described contact between her sexual organ and Baugus’s sexual 

organ, mentioning that she had woken up from a blacked-out state with Baugus on 

top of her and that she could feel his penis “just, like, basically flop on [her] vagina.”

During his interview with Detective Hennard, Baugus admitted to acts that would 

support a finding of penetration of Sally’s sexual organ with his finger, stating that he 

had “finger[ed]” her and that he had also attempted to give her the “shocker” but that 

she had not enjoyed the “shocker.”

13The jury was charged on both of these statutory provisions. 
13

As to consent, Sally testified that Baugus brought her all of the alcoholic 

beverages she drank on August 14, one of which was opened and had “a haze in it”

(which she declined), and another that was opened (which she drank). Baugus 

estimated that Sally drank at least twelve Smirnoff Ices, an amount that a toxicologist 

testified could reasonably have caused her to pass out. Sally testified that, after 

drinking the opened beer, she blacked out and woke up with Baugus on top of her. 

She said that she stated “no” three times and tried to move Baugus off her, and after 

Baugus said, “[L]et me just rub it,” she blacked out again. Sally testified that she did 

not actively participate in any sexual contact with Baugus. “A victim’s testimony is 

sufficient, in and of itself, to provide sufficient evidence to support a conviction.” 

Babineaux v. State, No. 02-21-00085-CR, 2023 WL 164089, at *2 (Tex. App.—Fort 

Worth Jan. 12, 2023, no pet.) (mem. op., not designated for publication) (citing 

Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016)). 

Moreover, a rational factfinder could have found that Baugus provided Sally 

with a substance containing the benzodiazepine found in her urine. In this regard, 

Sally denied ever having taken benzodiazepine, while Baugus stated that he had taken 

a quarter of an anti-anxiety pill on the morning of August 14. See Powell v. State, 

No. 02-19-00206-CR, 2021 WL 5370163, at *5 n.15 (Tex. App.—Fort Worth 

Nov. 18, 2021, pet. ref’d) (op. on reh’g) (mem. op., not designated for publication) 

(“Benzodiazepine is a central nervous system depressant prescribed for anxiety.”). 

Given that Sally testified that Baugus had provided her with all of her drinks on the 
14

day of the assault, that she had denied ever taking benzodiazepine, that Baugus had 

taken a portion of an anti-anxiety pill on the morning of the assault, and that Baugus 

had been “pushy” about having Sally drink opened drinks, a rational factfinder could 

have found that Baugus intentionally provided Sally with a substance containing

benzodiazepine without her knowledge that impaired her power to appraise or control 

her conduct. See Tex. Penal Code Ann. § 22.011(b)(6); Braughton, 569 S.W.3d at 608. 

Baugus argues that the evidence is insufficient to support his convictions

because of certain inconsistencies in the evidence. He points out, among other things,

that while Sally testified that one of the drinks Baugus served her had a “haze in it,”

she told the SANE nurse that the drink was “fizzing”; that while she testified that 

Baugus’s penis made contact with her vagina during the assault, she told the SANE 

nurse that she was unsure whether Baugus’s penis had made contact with her vagina, 

describing instead contact with her anus; that while she testified that Baugus had 

brought her all of the drinks on the day of the assault, he told Detective Hennard that 

both he and Curtis brought her drinks. We must defer to the jury’s resolution of 

those inconsistencies, and we will not substitute our judgment for that of the jury. See 

Braughton, 569 S.W.3d at 608; Queeman, 520 S.W.3d at 622; Escue v. State, No. 12-09-

00309-CR, 2010 WL 3422457, at *1 (Tex. App.—Tyler Aug. 31, 2010, pet. ref’d) 

(mem. op., not designated for publication) (“Where there is conflicting evidence, the 

factfinder’s determination on such matters is generally regarded as conclusive.”)
15

After viewing all the evidence in the light most favorable to the verdict, we 

conclude that a rational trier of fact could have found, beyond a reasonable doubt, 

that Baugus intentionally or knowingly caused the penetration of Sally’s sexual organ

with his finger without her consent and that he intentionally or knowingly caused

Sally’s sexual organ, without her consent, to contact his sexual organ. See Jackson, 

443 U.S. at 319, 99 S. Ct. at 2789. Even if we would have found to the contrary if we 

were sitting as the factfinder, we cannot act as the “thirteenth juror,” and we may not 

substitute our judgment for that of the jury. See Thornton v. State, 425 S.W.3d 289, 303

(Tex. Crim. App. 2014) (stating that a reviewing court should not act as a “thirteenth 

juror”); Burgess v. State, No. 02-19-00203-CR, 2021 WL 3556953, at *3 n.6 (Tex. 

App.—Fort Worth Aug. 12, 2021, no pet.) (mem. op., not designated for publication)

(“[T]he factfinder alone—in this case, the jury—judges the evidence’s credibility, and 

we may not act as a thirteenth juror, re-evaluating the weight and credibility of the 

evidence and, thus, substituting our judgment for that of the factfinder.”). We 

overrule Baugus’s first point.

B. Baugus’s Complaint of Improper Jury Argument

In his second point, Baugus argues that the State engaged in improper jury 

argument. Specifically, Baugus complains about the following: (1) argument made 

during the State’s opening that attacked Baugus’s credibility; (2) argument made 

during the State’s closing that suggested that Baugus was the type of person that 

enjoyed touching an unconscious woman; (3) argument made during the State’s 
16

closing that Baugus was “lying”; (4) questions asked by the State to Detective 

Hennard regarding Sally’s truthfulness that allegedly bolstered her credibility and 

questions that allegedly bolstered Detective Hennard’s credibility; (5) argument made

during the State’s closing that Sally was “brutally honest”; (6) argument made during 

the State’s closing on punishment regarding the lasting effect the sexual assault had on 

Sally; (7) argument made during the State’s closing on punishment regarding Baugus’s 

prescription history and that he had been “doctor shopping”; and (8) argument made 

during the State’s closing on punishment that Baugus was “the boogie man.”

We must first address whether Baugus has preserved these complaints. To

preserve a complaint for our review, a party must have presented to the trial court a 

timely request, objection, or motion sufficiently stating the specific grounds, if not 

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); 

Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further, the party 

must obtain an express or implicit adverse trial-court ruling or object to the trial 

court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216, 223 

(Tex. Crim. App. 2020). These preservation requirements apply to complaints of 

improper jury argument. See Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 

2018) (“The right to a trial untainted by improper jury argument is forfeitable.”); 

Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004) (holding that because 

appellant did not object to complained-of jury argument, he “failed to preserve 

error”). Indeed, erroneous jury argument, even if “incurably improper,” is forfeited 
17

unless the complaining party objects at the time of the argument and pursues the 

objection to an adverse ruling. Hernandez, 538 S.W.3d at 623.

Here, Baugus did not raise any objection at trial to the complaints he now 

raises in his second point. While he acknowledges that “[c]onsequently, nothing is 

preserved for review under this standard,” he argues that our analysis should not end. 

Citing, among others, Spradlin v. State, 245 S.W.2d 251 (Tex. Crim. App. 1951), Marx v. 

State, 150 S.W.2d 1014 (Tex. Crim. App. 1941), and Borgen v. State, 657 S.W.2d 15 

(Tex. App.—Houston [1st Dist.] 1983) (Borgen I), rev’d by Borgen v. State, 672 S.W.2d 

456 (Tex. Crim. App. 1984) (Borgen II), Baugus suggests that we should sustain his 

complaints even though he did not preserve them. We disagree. 

First, we find both Spradlin and Marx distinguishable because in both of those 

cases an objection was raised to the complained-of jury argument. See Spradlin, 

245 S.W.2d at 253; Marx, 150 S.W.2d at 1017. Second, while Baugus cites Borgen I for 

the proposition that no objection to the jury argument was necessary, he fails to

acknowledge that Borgen I was reversed by the Texas Court of Criminal Appeals in 

Borgen II.

14

 See Borgen II, 672 S.W.2d at 460. In Borgen II, the court noted “the general

rule that any impropriety in the prosecutorial argument is waived by a defendant’s 

failure to make a proper and timely objection” and found that “in light of the record 

as a whole and without an objection,” the complained-of statement did not warrant a 

reversal. Id. at 457, 460. Moreover, in subsequent opinions, the Texas Court of 

14In his brief, Baugus mischaracterizes Borgen I as having “no pet.”
18

Criminal Appeals has held that the right not to be subjected to improper jury 

argument is forfeitable by inaction. See Hernandez, 538 S.W.3d at 622; Cockrell v. State, 

933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (“[W]e hold a defendant’s failure to object 

to a jury argument or a defendant’s failure to pursue to an adverse ruling his objection 

to a jury argument forfeits his right to complain about the argument on appeal.”).

Baugus also suggests that “some error was preserved” because the trial court 

granted his pre-trial “Motion to Limit State’s Jury Argument,” which requested that 

the State be limited to the “four permissible areas of jury argument.” See Freeman v.

State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (listing the four areas that “proper 

jury argument generally falls within”). But such a motion in limine does not preserve 

error. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (“A motion 

in limine . . . is a preliminary matter and normally preserves nothing for appellate 

review. For error to be preserved with regard to the subject of a motion in limine, an 

objection must be made at the time the subject is raised during trial.” (citation and 

emphasis omitted)); Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. 

ref’d) (“It is axiomatic that motions in limine do not preserve error.”). The party 

must object when the subject is raised at trial. Fuller, 253 S.W.3d at 232; Roberts v.

State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007). Because Baugus did not object at 

trial to the allegedly-improper jury argument, his motion in limine preserved nothing. 

We thus overrule Baugus’s second point.
19

C. Baugus’s Complaints of Improper Testimony

In his third point, Baugus argues that the trial court abused its discretion by 

admitting certain testimony over his hearsay and relevancy objections. 

1. Standard of Review and Applicable Law

We review a trial court’s decision to admit or exclude evidence under an abuseof-discretion standard. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). 

Hearsay is a statement, other than one made by the declarant while testifying at trial or 

hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 

801(d). Generally, hearsay statements are not admissible unless the statement falls 

within a recognized exception to the hearsay rule. Pena v. State, 353 S.W.3d 797, 814 

(Tex. Crim. App. 2011). 

Evidence is relevant if “it has any tendency to make a fact more or less 

probable than it would be without the evidence” and “the fact is of consequence in 

determining the action.” Tex. R. Evid. 401. Relevant evidence is generally admissible, 

while irrelevant evidence is not. Tex. R. Evid. 402.

2. Baugus’s Complaint Regarding a Facebook Conversation Between 

Sally and His Wife

a. The Complained-Of Testimony

Baugus complains that, despite his relevancy objection, the trial court allowed 

testimony of a Facebook conversation between Sally and his wife. Specifically, he

complains about the following exchange during the State’s questioning of Sally:
20

Q. Were you aware [Baugus] was married?

A. I was not.

Q. Did he ever wear a ring around you?

A. He did not.

Q. When did you first become aware he was married?

A. That day after it happened.

Q. How did you become aware of it?

A. I believe at some point my [grandmother] had gotten into 

contact with her and I overheard them talking.

Q. And your initial interaction with his wife, did you have -- did 

you interact with her?

A. Yes.

Q. How did you interact with her?

A. On Facebook.

Q. Okay. Once again, those are hearsay, right? But did you 

provide that entire accounting between the two of you to the police as 

well?

A. Yes.

Q. And so you turned that over from the get-go?

A. Yes, ma’am.

Q. In your first encounter with her, what were your feelings with 

regard to his wife?

A. Disgust.
21

Q. On whose part? Who were you disgusted at?

A. Her.

[Baugus’s trial counsel]: Objection, relevance here, Your Honor. 

This doesn’t have anything to do with the actual act itself.

THE COURT: Overruled.

Q. Why?

A. She called me a whore.

Q. Did you actually -- did you provide to her every single text 

message between the two of you so she could see the entire accounting 

of your relationship?

A. Yes, ma’am.

Q. And she still called you the whore?

A. Yes, ma’am. 

b. Baugus Did Not Preserve His Complaint Regarding the

Facebook Conversation Between Sally and His Wife

We first address whether Baugus has preserved his complaint regarding Sally’s 

testimony of the Facebook conversation she had with Baugus’s wife. As noted earlier, 

to preserve a complaint for our review, a party must have presented to the trial court a 

timely request, objection, or motion sufficiently stating the specific grounds, if not 

apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); 

Montelongo, 623 S.W.3d at 822. A party must object as soon as the basis for the 

objection becomes apparent. Tex. R. Evid. 103(a)(1); Montelongo, 623 S.W.3d at 827. 

Normally, an objection must precede testimony. Polk v. State, 729 S.W.2d 749, 753 
22

(Tex. Crim. App. 1987). An objection made after a witness answered may suffice to 

preserve error if a good reason existed for not objecting earlier. See Dinkins v. State, 

894 S.W.2d 330, 355 (Tex. Crim. App. 1995); see also Girndt v. State, 623 S.W.2d 930,

934–35 (Tex. Crim. App. [Panel Op.] 1981) (noting that lateness may be excused if 

witness answers question before attorney can object or a showing is made that 

counsel misunderstood the question when asked).

Here, the State asked Sally—with no objections being lodged—several 

questions regarding her Facebook conversation with Baugus’s wife. When asked what 

feelings she had toward Baugus’s wife, Sally answered, “Disgust.” When asked who

she was disgusted at, Sally responded, “Her.” Only then, after Sally had answered, did 

Baugus object. No other objection to this line of questioning was raised. Because 

Sally’s answer preceded Baugus’s objection, and because there is no indication that a 

good reason existed for Baugus not objecting earlier, we hold that Baugus’s objection 

did not preserve his complaint. See Dinkins, 894 S.W.2d at 355; Wells v. State, No. 06-

17-00180-CR, 2018 WL 988412, at *4 (Tex. App.—Texarkana Feb. 21, 2018, pet. 

ref’d) (mem. op., not designated for publication) (holding that appellant failed to 

preserve complaint relating to admissibility of testimony where appellant’s objection 

was lodged after witness had answered complained-of question); see also Girndt, 

623 S.W.2d at 934–35. 

Moreover, even if we were to hold that Baugus’s objection to the question—

“On whose part? Who were you disgusted at?”—was timely, Sally had been asked 
23

about her feelings regarding Baugus’s wife, and she had already answered that she felt

“[d]isgust.” See West v. State, No. 05-02-01653-CR, 2003 WL 22976705, at *12 (Tex. 

App.—Dallas Dec. 19, 2003, pet. ref’d) (not designated for publication) (“Garcia 

testified twice that Lisa Deaton told her she ‘needed to check out the scene.’ 

Appellant did not object until after the second question and answer on this subject. 

The testimony was hearsay. However, the testimony had already been admitted 

without objection. Thus, any error was waived.”). Thus, we hold that Baugus has not 

preserved his complaint regarding Sally’s testimony of the Facebook conversation she 

had with Baugus’s wife. See Tex. R. App. P. 33.1(a)(1); Montelongo, 623 S.W.3d at 822; 

West, 2003 WL 22976705, at *12. We overrule this portion of Baugus’s third point.

3. Baugus’s Complaint of an Alleged Bribe

a. The Complained-Of Testimony

Baugus also complains that the trial court allowed testimony of an alleged bribe 

made by Dyer to Sally’s grandmother despite his hearsay objection. Specifically, he 

refers to the following exchange during the State’s questioning of Sally’s grandmother:

Q. Based on the information and the conversations you had with law 

enforcement, did you believe [Dyer] was being cooperative with them?

A. No.

Q. Did he try to sway your cooperation with law enforcement?

A. Yes. Yes.

Q. How so?
24

A. I don’t remember exactly. But . . . he called my house and left 

a message. I returned the call, and he – he was talking about the case. 

And he asked me if I still wanted to have my fence fixed.

[Baugus’s trial counsel]: Objection, hearsay.

THE COURT: Overruled.

Q. You can answer.

A. He asked if I wanted to have – still wanted to have my fence 

repaired, and then he offered $10,000. He said $10,000 to fix it. I said 

we don’t need $10,000. He went on to say that [Baugus] had already 

spent 20 or $25,000 on this case and [Sally] needs to drop it. 

b. Baugus Was Not Harmed by the Testimony of the Alleged 

Bribe

We will assume without deciding that the trial court abused its discretion by 

overruling Baugus’s hearsay objection to the testimony of Sally’s grandmother 

concerning the alleged bribe made by Dyer. Therefore, we will turn to an analysis of 

whether Baugus suffered any harm as a result.

A trial court’s erroneous admission or exclusion of evidence that merely 

offends the rules of evidence is nonconstitutional error governed by Rule 44.2(b). 

James v. State, 335 S.W.3d 719, 726 (Tex. App.—Fort Worth 2011, no pet.); see Tex. R. 

App. P. 44.2(b). Rule 44.2(b) requires us to disregard any nonconstitutional error that 

does not affect the appellant’s substantial rights. Tex. R. App. P. 44.2(b). A 

substantial right is affected when the error had a “substantial and injurious effect or 

influence in determining the jury’s verdict.” Haley v. State, 173 S.W.3d 510, 518 (Tex. 

Crim. App. 2005). Conversely, an error does not affect a substantial right if the 
25

appellate court has a fair assurance from an examination of the record as a whole that 

the error did not influence the jury or that it had but a slight effect. Macedo v. State,

629 S.W.3d 237, 240 (Tex. Crim. App. 2021). 

In determining whether an error affected an appellant’s substantial rights, we 

consider (1) the character of the alleged error and how it might be considered in 

connection with other evidence, (2) the nature of the evidence supporting the verdict,

(3) the existence and degree of additional evidence supporting the verdict, and 

(4) whether the State emphasized the complained-of error. Id.; Motilla v. State, 

78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury 

instructions, the State’s theory and any defensive theories, closing arguments, and 

even voir dire, if applicable. Haley, 173 S.W.3d at 518–19; Motilla, 78 S.W.3d at 355–

56.

Here, the complained-of testimony related to Dyer’s alleged offer to pay money 

to fix Sally’s grandmother’s fence. That testimony is far removed from the evidence 

concerning Baugus’s sexual assault of Sally. Indeed, even if that testimony could be 

properly characterized as a bribe—and that characterization is far from certain—it is 

unclear how a bribe offered by Dyer (i.e., not Baugus) would impugn the evidence 

presented at trial regarding sexual assault. Moreover, the testimony of the alleged 

bribe was not emphasized by the State during either opening statements or closing 

argument. Thus, after examining the whole record, we have fair assurance that the 

error, if any, did not have a substantial and injurious effect or influence in determining 
26

the jury’s verdict. See Macedo, 629 S.W.3d at 240; Haley, 173 S.W.3d at 518. 

Accordingly, we conclude that any potential error in admitting the testimony of Sally’s 

grandmother concerning the alleged bribe made by Dyer did not contribute to 

Baugus’s adjudication of guilt, and any such error was harmless. See Tex. R. App. P. 

44.2(b). We overrule this portion of Baugus’s third point.

D. Baugus’s Complaint of Ineffective Assistance of Counsel

In his fourth point, Baugus argues that he received ineffective assistance of 

counsel during his trial and that the trial court abused its discretion by denying his 

motion for new trial raising ineffective assistance. 

1. Standard of Review and Applicable Law

When an appellant raises the issue of ineffective assistance of counsel in a 

motion for new trial, we review the trial court’s denial of the motion for an abuse of 

discretion. State v. Herndon, 215 S.W.3d 901, 905 n.4, 906–07 (Tex. Crim. App. 2007); 

Muirhead v. State, No. 02-20-00089-CR, 2021 WL 4472626, at *5 (Tex. App.—Fort 

Worth Sept. 30, 2021, pet. ref’d) (mem. op., not designated for publication); see Burch 

v. State, 541 S.W.3d 816, 820–22 (Tex. Crim. App. 2017) (explaining that appellate 

court must review denial-of-motion-for-new-trial complaint for ineffectiveness in 

light most favorable to ruling and presume trial court disbelieved evidence supporting 

appellant’s claim). We view the evidence in the light most favorable to the trial court’s 

ruling, and we will reverse only if no reasonable view of the record could support the 

trial court’s finding. Charles v. State, 146 S.W.3d 204, 207–08 (Tex. Crim. App. 2004), 
27

superseded by statute on other grounds by Tex. R. App. P. 21.8(b), as recognized in Herndon, 

215 S.W.3d at 905 n.5; Muirhead, 2021 WL 4472626, at *5.

The Sixth Amendment guarantees a criminal defendant the effective assistance 

of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const. 

amend. VI. To establish ineffective assistance, an appellant must prove by a 

preponderance of the evidence that his counsel’s representation was deficient and that 

the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 

S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013);

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The record must 

affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808, 

813 (Tex. Crim. App. 1999).

In evaluating counsel’s effectiveness under the deficient-performance prong,

we review the totality of the representation and the particular circumstances of the 

case to determine whether counsel provided reasonable assistance under all the 

circumstances and prevailing professional norms at the time of the alleged error. See 

Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson, 

9 S.W.3d at 813–14. Our review of counsel’s representation is highly deferential, and 

we indulge a strong presumption that counsel’s conduct was not deficient. Nava, 

415 S.W.3d at 307–08.

An appellate court may not infer ineffective assistance simply from an unclear 

record or a record that does not show why counsel failed to do something. Menefield v. 
28

State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 

(Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity 

to explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 

593. If trial counsel did not have that opportunity, we should not conclude that 

counsel performed deficiently unless the challenged conduct was “so outrageous that 

no competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308. Direct 

appeal is usually inadequate for raising an ineffective-assistance-of-counsel claim 

because the record generally does not show counsel’s reasons for any alleged deficient 

performance. See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14.

Strickland’s prejudice prong requires a showing that counsel’s errors were so 

serious that they deprived the defendant of a fair trial—that is, a trial with a reliable 

result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant 

must show a reasonable probability that the proceeding would have turned out 

differently without the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava, 

415 S.W.3d at 308. A “reasonable probability” is a probability sufficient to undermine 

confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 

415 S.W.3d at 308. We must ultimately focus on examining the fundamental fairness 

of the proceeding in which the result is being challenged. Strickland, 466 U.S. at 696, 

104 S. Ct. at 2069. “[A] verdict or conclusion only weakly supported by the record is

more likely to have been affected by errors than one with overwhelming record 

support.” Id., 104 S. Ct. at 2069.
29

2. Analysis

a. Baugus’s Complaint That His Trial Counsel Failed to 

Adequately Communicate and Investigate the Case

Baugus argues that his trial counsel failed to adequately communicate with him 

and failed to investigate the case. This argument centers around two primary 

concerns: (1) that Baugus’s trial counsel was not adequately prepared when advising 

Baugus on the State’s plea offers and (2) that Baugus’s trial counsel did not adequately 

prepare him for his interviews with Detective Hennard. 

As to the first of these concerns, Baugus complains that his trial counsel “did 

not access or download any interviews with his own client, the victim, or any witness”

from the TechShare Prosecutor database used by the Tarrant County District 

Attorney’s Office to share discovery matters in this case until a few weeks before trial. 

To support that contention, Baugus attached three exhibits that ostensibly reflect 

timestamps of when his trial counsel viewed and downloaded certain files in

TechShare. But we cannot glean from those exhibits the first time that Baugus’s trial 

counsel “access[ed] or download[ed] any interviews with his own client, the victim, or 

any witness.”

15

 Indeed, we note numerous entries in those exhibits that reflect that 

Baugus’s trial counsel viewed and downloaded files in 2017 and 2018 from TechShare

15We note that Baugus’s trial counsel was present during Detective Hennard’s 

August 25, 2017 and September 5, 2017 interviews of Baugus.
30

in Baugus’s case, although it is unclear what exactly was viewed and downloaded.

16

After reviewing the record in the light most favorable to the trial court’s ruling on 

Baugus’s motion for new trial, we hold that Baugus has not proven that his trial 

counsel’s representation was deficient with respect to counsel’s preparation when 

advising Baugus on the State’s plea offers. See Strickland, 466 U.S. at 687, 104 S. Ct. at 

2064; Dryer v. State, No. 01-22-00201-CR, 2023 WL 2919802, at *8 (Tex. App.—

Houston [1st Dist.] Apr. 13, 2023, no pet. h.) (“Nor can we infer that counsel’s 

performance was deficient based on portions of the record that are unclear.”).

Moreover, even if we assume that Baugus’s trial counsel was deficient in this 

respect, we cannot conclude that this failure prejudiced Baugus’s defense. To 

establish prejudice in a claim of ineffective assistance of counsel in which a defendant 

is not made aware of a plea-bargain offer or rejects a plea-bargain offer because of

bad legal advice, the defendant must show a reasonable probability that (1) he would 

have accepted the offer if counsel had not given ineffective assistance, (2) the 

prosecution would not have withdrawn the offer, and (3) the trial court would not 

have refused to accept the plea bargain. Ex parte Argent, 393 S.W.3d 781, 784 (Tex. 

Crim. App. 2013). Baugus has not established any of these factors; thus, even if his

trial counsel was deficient by not being adequately prepared when advising Baugus on 

the State’s plea offers, Baugus has not shown prejudice. See id.

16At the hearing on the motion for new trial, Baugus’s trial counsel testified that 

once he downloaded a file from TechShare, it was in his own computer filing system, 

and he did not need to use TechShare anymore to access the file. 
31

We now turn to Baugus’s argument that his trial counsel did not adequately 

prepare him for his interviews with Detective Hennard. To support that argument, 

Baugus points to his testimony from the hearing on his motion for new trial where he 

stated that his trial counsel did not give him any advice or warnings before the 

interviews with Detective Hennard. Baugus’s trial counsel testified at his deposition, 

however, that he had spoken with Baugus prior to those interviews “[i]n great detail”

about the advantages and disadvantages of speaking with Detective Hennard. When 

pressed on what he meant by “great detail,” he stated,

We start with the facts, what we know, what my client has told me, what 

the detective has told me, everything that he knew about the – the 

victim, or the IP in this case, that my – my client knew. Previous 

relationship, this, that, and the other.

And I said, “Look. If you talk to the detective, and you tell the 

detective X – and I’m going to be there with you. You tell the detective 

what we have agreed on, I don’t think we’re going to have any problems 

with it. I think it will make things easier in the long run.”

. . . .

I said, “Of course, we have to be very clear on what we tell the 

detective.” And we spent a great deal of time working on it because 

what you say can be used against you.17

After reviewing the record in the light most favorable to the trial court’s ruling

on Baugus’s motion for new trial, we hold that Baugus has not proven that his trial 

17Baugus’s trial counsel also testified that prior to Baugus’s second interview 

with Detective Hennard, he told Baugus, “If the detective’s got questions, 

irregularities, this, that, and the other, that’s what this is about. He’s going to ask you 

about those, and in an effort to clear – clear up his irregularities he’s got.” 
32

counsel’s representation was deficient with respect to his preparation of Baugus 

before the interviews with Detective Hennard. See Burch, 541 S.W.3d at 820–22;

Charles, 146 S.W.3d at 207–08; Acosta v. State, No. 14-09-00638-CR, 2011 WL 

2150233, at *7 (Tex. App.—Houston [14th Dist.] June 2, 2011, no pet.) (mem. op., 

not designated for publication) (holding that trial court could have reasonably 

concluded that attorney had adequately prepared appellant for prosecutor’s crossexamination where attorney testified that he had “met with appellant numerous times 

prior to trial”).

b. Baugus’s Complaint That His Trial Counsel Failed to 

Effectively Cross Examine Sally and Sally’s Grandmother

Baugus next argues that his trial counsel failed to effectively cross examine Sally 

and Sally’s grandmother. The crux of Baugus’s argument is that he thought that Sally 

and her grandmother had minimized their relationship with Dyer. In this regard, Sally 

testified that she did not have a lot of contact with Dyer, while Sally’s grandmother 

testified that her own relationship with Dyer was “[n]onexistent.” According to 

Baugus, his trial counsel could have called Dyer as a witness to testify that Sally and 

Sally’s grandmother “were being deceptive concerning the relationship between [Sally] 

and [Dyer]”—suggesting that Sally and Dyer had some sort of a personal relationship.

But the record reveals that Baugus’s trial counsel had strategic reasons for not 

calling Dyer as a witness. Baugus’s trial counsel described Dyer as a “loose cannon”

and explained that the more he talked to Dyer, “the more problematic [he] found 
33

whatever [Dyer] said to be.” He also testified that Dyer “had the potential of being a 

very damaging witness instead of a helpful witness,” noting his concern about Dyer’s 

alleged bribe of Sally’s grandmother and explaining that he wanted to “downplay” and 

not “amplify” that allegation. Thus, after reviewing the record in the light most 

favorable to the trial court’s ruling on Baugus’s motion for new trial, we hold that

Baugus has not proven that his trial counsel’s representation was deficient with 

respect to not calling Dyer as a witness. See Ex parte Woods, 176 S.W.3d 224, 227 (Tex. 

Crim. App. 2005) (“It was not a deficient strategy for applicant’s attorneys to decline 

to call witnesses who would testify to some mitigating facts, but then be subject to 

cross-examination concerning a vast array of aggravating facts.”); Grundy v. State, 

No. 05-90-00832-CR, 1991 WL 134592, at *8 (Tex. App.—Dallas July 23, 1991, pet. 

ref’d) (not designated for publication) (recognizing several reasons why counsel’s 

decision not to call defendant’s mother or other punishment-phase witnesses could 

fall into the category of trial strategy and thus not constitute deficient performance).

Baugus also briefly mentions that his trial counsel failed to call Curtis as a 

witness. Baugus suggests—without citing anything in the record to support it—that 

Curtis “could have provided the jury with an alternative theory of why [Sally] had 

benzodiazepine in her system.” The “failure to call witnesses at the guilt[–]innocence 

and punishment stages is irrelevant absent a showing that such witnesses were 

available and appellant would benefit from their testimony.” King v. State, 649 S.W.2d 

42, 44 (Tex. Crim. App. 1983). Here, Baugus has not established that he would have
34

benefitted from Curtis’s testimony, and we do not see a reasonable probability that his 

testimony would have changed the result of Baugus’s trial. See Perez v. State,

310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (“Here, we are not convinced that 

Appellant would have benefitted from Padilla’s testimony, and we do not see a

reasonable probability that her testimony would have changed the result of 

Appellant’s trial.”). Thus, after reviewing the record in the light most favorable to the 

trial court’s ruling on Baugus’s motion for new trial, we hold that Baugus has not 

proven that his trial counsel’s representation was deficient with respect to not calling 

Curtis as a witness, nor has Baugus proven that such a deficiency prejudiced his 

defense. See Perez, 310 S.W.3d at 894; King, 649 S.W.2d at 44. 

c. Baugus’s Complaint That His Trial Counsel Failed to Object to 

the State’s Jury Argument

Baugus next complains that his trial counsel failed to object to certain 

arguments made by the State to the jury.

18 But Baugus does not point to anything in 

18As noted in our discussion of Baugus’s second point, he complains that his 

counsel failed to object to the following: (1) argument made during the State’s 

opening that attacked his credibility; (2) argument made during the State’s closing that 

suggested that he was the type of person that enjoyed touching an unconscious 

woman; (3) argument made during the State’s closing that he was “lying”; 

(4) questions asked by the State to Detective Hennard regarding Sally’s truthfulness 

that allegedly bolstered her credibility and questions that allegedly bolstered Detective 

Hennard’s credibility; (5) argument made during the State’s closing that Sally was 

“brutally honest”; (6) argument made during the State’s closing on punishment 

regarding the lasting effect the sexual assault had on Sally; (7) argument made during 

the State’s closing on punishment regarding Baugus’s prescription history and that he 

had been “doctor shopping”; and (8) argument made during the State’s closing on 

punishment that Baugus was “the boogie man.”
35

the record indicating why his trial counsel failed to make such objections. Absent 

such a showing, we cannot say that Baugus’s trial counsel’s performance was deficient. 

See Menefield, 363 S.W.3d at 593 (“Trial counsel should ordinarily be afforded an 

opportunity to explain his actions before being denounced as ineffective.”) (quotation 

omitted); Panchol v. State, No. 02-12-00228-CR, 2013 WL 3874763, at *9 (Tex. App.—

Fort Worth July 25, 2013, pet. ref’d) (mem. op., not designated for publication) (“The 

record is absolutely silent regarding counsel’s reasons for not objecting to 

[complained-of jury argument made by the State during closing]. . . . That being the 

case, Appellant has failed to show by a preponderance of the evidence that counsel 

was deficient.”); Moreno v. State, No. 03-07-00713-CR, 2010 WL 2698510, at *10 (Tex. 

App.—Austin July 8, 2010, pet. ref’d) (mem. op., not designated for publication) 

(holding that because “[t]he record is silent as to the reasoning and strategy behind the 

trial counsel’s inaction in not making objections” to the State’s jury argument during 

the punishment phase of appellant’s trial, appellant “has not demonstrated in the 

record that trial counsel rendered ineffective assistance”). Thus, after reviewing the 

record in the light most favorable to the trial court’s ruling on Baugus’s motion for 

new trial, we hold that Baugus has not proven that his trial counsel’s representation 

was deficient with respect to counsel’s failure to object to the State’s jury argument. 

See Menefield, 363 S.W.3d at 593; Panchol, 2013 WL 3874763, at *9; Moreno, 2010 WL 

2698510, at *10.
36

d. Baugus’s Complaint That His Trial Counsel Failed to Object to 

Damaging Photographic Evidence

Baugus next complains that his trial counsel failed to object to five 

photographs admitted at trial that depicted Sally’s clothing and car the day after the 

assault and that showed some blood on Sally’s clothing. Baugus complains that the 

evidence at trial reflected that the blood was due to Sally’s menstrual cycle and was 

not related to the sexual assault and that the admission of the photographs inflamed 

the jury against him. Once again, however, Baugus does not point to anything in the 

record indicating why his trial counsel failed to object to the photographs.

19 Absent 

such a showing, we cannot say that his trial counsel’s performance was deficient. See 

Menefield, 363 S.W.3d at 593; Mata, 226 S.W.3d at 432; Andrus v. State, No. 01-08-

00738-CR, 2009 WL 4856202, at *9 (Tex. App.—Houston [1st Dist.] Dec. 17, 2009, 

no pet.) (mem. op., not designated for publication) (“Because there is no evidence in 

the record that affirmatively demonstrates that trial counsel’s failure to object to the 

photographs was deficient, we must heed the strong presumption that trial counsel 

provided reasonable professional assistance.”). Thus, after reviewing the record in the 

light most favorable to the trial court’s ruling on Baugus’s motion for new trial, we 

hold that Baugus has not proven that his trial counsel’s representation was deficient

with respect to counsel’s failure to object to the complained-of photographs. See 

19While Baugus’s trial counsel was asked at his deposition and the hearing on 

the motion for new trial about several aspects of his trial performance, he was not 

asked about his failure to object to the complained-of photographs. 
37

Menefield, 363 S.W.3d at 593; Mata, 226 S.W.3d at 432; Andrus, 2009 WL 4856202, at 

*9.

e. Baugus’s Complaint That His Trial Counsel Failed to 

Investigate Witnesses Called During the Punishment Phase 

of His Trial

Baugus next complains that his trial counsel failed to investigate witnesses

called during the punishment phase of his trial. Baugus’s argument centers around the 

fact that his trial counsel called Scott Schroeder and John Cooper to testify during the 

punishment phase of his trial, and Baugus contends that their respective testimony 

was damaging. 

Schroeder was a Community Supervision and Corrections Department (CSCD)

officer assigned to Tarrant County Criminal District Court No. 3. At the punishment 

phase of Baugus’s trial, Schroeder testified at length about the conditions of probation 

in Tarrant County. On cross examination, Schroeder testified about “chronos” kept 

by the CSCD on Baugus, which Schroeder explained were contacts that CSCD had 

with individuals who were on bond or probation. See Norman v. State, No. 13-10-

00017-CR, 2011 WL 2732673, at *1 n.1 (Tex. App.—Corpus Christ–Edinburg July 

14, 2011, no pet.) (mem. op., not designated for publication) (“The term ‘chronos’

refers to the chronology of events set out in the records from the probation 

department. Chronos include each and every office contact, field contact, and 

collateral contact with the probationer.”). Schroeder testified that those “chronos”
38

revealed past charges brought against Baugus for drug possession20 and that Baugus 

had tested positive for benzodiazepines while on bond.

21 According to Baugus, 

calling Schroeder as a witness “came with excessively prejudicial baggage concerning 

[Baugus’s] medical history and the history of his chronos.”

As to strategy, Baugus’s trial counsel testified that it was “routine procedure to 

have the court officer testify as to what the -- probationer or supervision records are, 

what they say.”

22 Counsel also said, “I know from experience and from doing this 

that the judge is going to allow a supervising officer, you know, like a court officer, is 

going to allow that testimony as to the chronos. . . . I elected to go with the testimony 

of the person that was available.”

After reviewing the record in the light most favorable to the trial court’s ruling

on Baugus’s motion for new trial, we hold that Baugus has not proven that his trial 

counsel’s representation was deficient with respect to calling Schroeder as a witness

during the punishment phase of his trial because there was a reasonable, strategic 

reason for that decision—namely, the introduction of testimony regarding the 

20Schroeder testified that on July 29, 2008, Baugus had pled guilty to a charge of 

possession of marijuana and that he was placed on a “six-month deferred adjudication 

probation” relating to that charge. 

21The State also asked whether CSCD would know “that [Baugus] had 15 

different doctors prescribing him 71 prescriptions since 2018,” and Schroeder 

answered, “No.”

22Baugus’s trial counsel also testified that while Schroeder was assigned to 

Criminal District Court No. 3, he was acting as the court officer for the 396th District 

Court on the day of his testimony.
39

probation process and because the trial court routinely allowed testimony from a 

supervising officer. See Prine v. State, 537 S.W.3d 113, 118 (Tex. Crim. App. 2017) 

(“[T]he decision to call [the probation officer] as a witness was a strategic choice that 

involved weighing the risks and benefits of his testimony. . . . [T]his record does not 

support a conclusion that the attorney’s choice to put him on the stand was so 

outrageous that no other attorney would have done the same.”).

Moreover, even if we assume that Baugus’s trial counsel was deficient in this 

respect, we cannot conclude that this failure prejudiced Baugus’s defense. In this 

regard, three jurors testified at the hearing on Baugus’s motion for new trial. The

jurors were each asked whether Baugus’s sentence would have changed if Baugus had 

provided better evidence at punishment: one juror stated, “No, I don’t”; another 

stated, “No, ma’am”; and the other juror stated, “I don’t think so.” Thus, even if

Baugus’s trial counsel was deficient by calling Schroeder as a witness during the 

punishment phase of Baugus’s trial, Baugus has not shown prejudice. See Strickland, 

466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308; see also Johnson v. State, 

233 S.W.3d 109, 117 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that 

merely showing that counsel’s deficient conduct had some conceivable effect on the 

proceedings was inadequate proof of prejudice for purposes of establishing ineffective 

assistance of counsel). 

With respect to Cooper, the record reflects that Cooper was a friend of the 

Baugus family who testified in support of Baugus at the punishment phase of 
40

Baugus’s trial. Baugus argues that Cooper was a poor choice of a witness, noting that 

Cooper could recall very little about Baugus’s children when asked about them at trial. 

Baugus complains that Cooper was “hastily” chosen by his trial counsel “about ten 

minutes prior to the commencement of the punishment hearing to the jury.”

Baugus’s trial counsel explained that he called Cooper as a witness because the Baugus 

family “seemed intent that [Cooper] . . . should testify because he knew the family.”

After reviewing the record in the light most favorable to the trial court’s ruling on 

Baugus’s motion for new trial, we hold that Baugus has not proven that his trial 

counsel’s representation was deficient with respect to calling Cooper as a witness

during the punishment phase of his trial because there was a reasonable, strategic 

reason for that decision—namely because members of Baugus’s family wanted 

Cooper to testify because “he knew the family.” See Prine, 537 S.W.3d at 118; Sabins v. 

State, No. 03-18-00732-CR, 2020 WL 3495859, at *8 (Tex. App.—Austin June 25, 

2020, no pet.) (mem. op., not designated for publication) (“[T]he decision to call a 

witness is generally a matter of trial strategy.”).

Moreover, even if we assume that Baugus’s trial counsel was deficient in this 

respect, we cannot conclude that this failure prejudiced Baugus’s defense. While two 

of the jurors who testified at the hearing on Baugus’s motion for new trial noted that 

Cooper seemed to not know Baugus well, none of the jurors indicated that Cooper’s 

testimony had any impact on their sentencing decisions. To the contrary, one juror 

was asked whether Cooper’s testimony had any influence on the juror’s decision to 
41

sentence Baugus, and the juror responded, “No, not at all.” Moreover, as noted 

above, each of the jurors were asked whether Baugus’s sentence would have changed 

if Baugus had provided better evidence at punishment, and the responses were, “No, 

I don’t”; “No, ma’am”; and “I don’t think so.” Thus, even if Baugus’s trial counsel 

was deficient by calling Cooper as a witness during the punishment phase of Baugus’s 

trial, Baugus has not shown prejudice. See Strickland, 466 U.S. at 694, 104 S. Ct. at 

2068; Nava, 415 S.W.3d at 308; Johnson, 233 S.W.3d at 117. 

f. Baugus’s Complaint That the Cumulative Effect of His Trial 

Counsel’s Errors Caused Him Substantial Harm

Finally, Baugus complains that the cumulative effect of his trial counsel’s errors 

caused him substantial harm and led to his wrongful conviction, or, at a minimum, led 

to the imposition of a wrongful sentence. But, as we have already explained, Baugus’s 

counsel was not deficient, or even if he was deficient in certain respects, Baugus has 

not demonstrated that he suffered prejudice. Thus, Baugus’s cumulative-error 

complaint lacks merit because there is no error to cumulate. See Bell v. State, No. 02-

18-00244-CR, 2019 WL 1967538, at *9 (Tex. App.—Fort Worth May 2, 2019, pet. 

ref’d) (mem. op., not designated for publication) (“Bell argues that even if each of his 

previous points do not constitute harm sufficient for reversal, their cumulative effect 

does . . .. But his individual points either do not demonstrate reversible error or do 

not show that he was harmed. Therefore, there is no error to cumulate.”); Baker v. 

State, No. 03-18-00240-CR, 2019 WL 1646260, at *7 (Tex. App.—Austin Apr. 17, 
42

2019, no pet.) (mem. op., not designated for publication) (“Here, Baker’s cumulativeerror contention lacks merit because we have concluded . . . that one complained-of 

error was harmless and that there was no error as to the remaining complaints.”). We 

overrule Baugus’s fourth point.

IV. CONCLUSION

Having overruled Baugus’s four points, we affirm the trial court’s judgment.

/s/ Dana Womack

Dana Womack

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: May 11, 2023