## In the Court of Appeals Second Ap pellate 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

. M emorandum Opinion by Just ice Womac k 

### S TANLEY 

### R EX 

### B AUGUS 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM O PINION
I. I NTRODUCTION A jury convicted Appellan t Stanley Rex Baugus of two counts of sexual assault.
See Te x. Penal Code Ann. § 22.011(a)(1). The jury asse ssed his punishment on ea ch

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

a ccordingly with the sentences to run c oncurrently. In four po ints on appeal, Baugus

c omplains that the evidence is insufficient to su ppo rt his co nv ictions, that the State engaged in impr oper jury ar gument , that the t ri al court abused it s discretion by admitting certain testimony over his hearsay and relevancy objections , and that the trial court abused its discretion by denying his moti on for new t r i al that was ba sed on
his assertion of i n effective a ssistance 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 wa ived one of his co mp laints relating t o the
trial court ’ s admission of testimony and not demonstrated any harm caused by the
trial court ’ s admission o f the other complained

- of testimony , and that th e t rial court
did not abuse its discretion by denying his motion for ne w tria l

. We will thus af firm

.3 I I. B AC KGROUND A. Baugus Meets Sally in the Summer of 2017 In the summer of 2017, S.H. ( Sally 1 )

— the complainant in this case

— was living with her grandmother in Fort Worth

. 2 Their ne xt

- door neighbor , Ronald Bru ce Dyer , Jr., was g ood fr iends with B augus, and Baugus s pent a lot of time at Dyer ’ s house

. 3 Sally met Baugus that summer while he was in the neighborhood

. O ver the course of
th at summer, Sa lly “ hung out ” with Baugus and Dyer on several occ asions at Dyer ’ s house where th e three o f them would smoke ma rijuana and dr i nk alcohol

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

. 4
B . Sally ’ s Descrip tion of the Even ts of August 1 3
– 1 5 , 2017 At Baugus ’ s t ri al, Sa lly testified re garding certain e vents 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 o ut of town

. Sally had planned to s moke marijuana that day with some of her friends, but he r friends ha d “ bailed , ” so she decided to go over to Dyer ’ s house and smoke marijuana

1 To pr o tect the complainant ’ s anonymit y , w e u se an a lias to re fer to her

. See McClendon v. Sta te , 643 S.W.2d 936, 936 n.1 (Tex. Crim. Ap p. [Panel Op.] 19 82).

2 Sally was twenty

- one years old at the time

. Sally ’ s gr andmot her had rais ed her since she was th ree m onths old

.

3 Baugus was twenty

- ei ght years old and ma rried at the time.

4 According to Sally, she was not aware that Baugu s was married

.4

with Baugus. 5 B efore she went to Dyer ’ s house , Sally spoke with Baugus on the phone, and he mentioned that h e had obtained Smirnoff Ice to drink. According to Sally, Ba ugus was “ pitching [the Smirnoff Ice] like he was a car salesman. ” W hen she
arrived at Dyer ’ s house , she sat on the couch , an d “ there was an open Smirnoff Ice
sour app le s itti ng on a table next to [her.] ” Baugus was “ very pu shy ” about having
her drink it

. That raised a “ warning fla g[] ” for Sally, and she decl ined the drin k.
Bau gus ’ s c ousin

— Curt

is Baugu s
—

l ater arr ived at Dyer ’ s ho us e, and Baug us and
Curtis recommended that Sally swim in Dyer ’ s p ool. When Sally expressed that she did not have a bathing s uit with her , Baugus told her t hat she could get into the pool
naked

. Sal ly then left D yer ’ s ho use because she thought that Ba ugus ’ s suggestion to swim nake d was “ disgusting. ”
The next day

— August 14

— Sally started questi oning her judgment about the pri or day. She rea ched out to Baugus in the afte rnoon to let h im know that sh e wanted to s wim in Dyer ’ s p ool. Baugus told her to com e over, and Sally walked to Dyer ’ s hou se sometime after 4:00 p.m

. When she arrived, she and Baugus ate food

a nd smok ed marij ua na togeth er. Sally the n wen t outsi de and got into the pool.
Sh ortly after Sally got into the pool, Curtis arrived at Dyer ’ s house

. Sally and Baugus then began drinking alcohol. According to Sa lly, Ba ugus brought her al l of her dr inks. T he first dri nk Baugus gave her was a closed Smi rnoff

5 Sal ly stated th at her sister had died in April 2 01 7 and that she s moked marijua na i n th e summer of 201 7 to cope with her sister ’ s death.5

Ice, which she drank. T he second drink Baugus gave her was an opened Smirnoff Ice
that had a “haze in it.” Sally declined the second drink and told Baug us to bring her a
differe nt one. Baugus then brought her a c lo sed drink, and Sally drank it. Baugus
la ter brought Sally an opened Bud Light , and Sally drank half of it. W ithin “ a couple
of minutes ” of dri nking it, Sally rec alled Curti s ask ing wheth er they need ed “to get the floaty to get her out ” of the pool, and s he then “blacked out.” The next thing Sally remembered was waking up in bed with Baugus on top of
her. She was unsure how sh e had gotten out of the pool a nd into the ho use. She
could feel Baugus ’ s penis “just , like, basically flop on [her] vagina,” a nd 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 re sponse, Bau gus said , “ [L] et me just r ub it. ” Sally then
blacked o ut again

. 7 She later woke up naked in bed with Baugus asleep n ak ed next to her , found her belongings “neatly placed” in the kitchen , grabbed them , and l eft Dyer ’ s house

. Soon after a rriving back at her house

— by this time , it was the early m orning hours of August 15

— Sally texted Baugus about what ha d occurred. In t hos e texts, Sally told Baugus that she “ remember[ed] say ing no repeate d ly and [he] ignored [her]. ” Baugus indi cated that they “ didn ’ t do anything , ” and Sally told him, “ You can ’ t tell me

6 Sa lly testified that she did not actively p articipate in any sexual contact with B augus.

7 S ally estimated t hat the p eriod betwe en blackouts was “ [t] h r e e minutes at the most. ”6

you ‘ d idn ’ t do anything ’ because I have a brain and a memory. I wok e u p to you trying to have sex with me and you kept g oing as I PU SHED AND SAID NO. ” When Baug

us s ent her a message promising that t hey “ didn ’ t have sex, ” Sally responded, “ You can ’ t pr omise me s [*** .] I remember. ”
After ex changing text messages with Ba ugu s, Sally w ent to slee p and woke up
around 9:00 a.m. S he then c ontacted the police.
C
. Baugus ’ s Descrip tion of the Events of August 1 3
– 1 5 , 2017
De tective Stephen Hennard of the For t Worth Police Department was assigned to investiga te the allege d sex u al assault. As part of his investigation , Detective
Hennard interviewed Baugus on August 2 5, 2017, and September 5, 2017 , regarding
the ev ents that took place on August 13

– 15

. Baugus ’s description of these events is
set fo rth b elow.
On Augu st 13

— the da y be fore the alleged assa ult

— Baugus w as housesitting
for Dyer

. Sally came over to Dyer ’ s house that night, s he and Baugus watched a movie tog ether, and they “ snuggled on the couch. ” 8 The next day , Sally sent Baugus a text message asking if she could com e ove r to Dyer ’ s ho use to swim. That day, Sally went over to Dyer ’ s house, and she and Baugus drank beer

. According t o B augus, both he and Curtis

— who was al s o present at Dyer ’ s house on August 14

— took turns getting the beers. Baugus denied putting any su bst ance in any

8 B augus s tated that t he “ snuggling ” consi st ed of him layi ng his head on Sally ’ s lap while she rubbed his head and his arm.7

a lcoholic beverage that he served to Sally. Ba ugu s indicated that Sally wa s “ killing t he
Smirnoff ” and estimated that she dr ank twelve Smirnoff Ice s and “ a bunch ” of Bud Lights

. He estimated that he drank no more than twelve Bud L ights

. B aug us indica ted that he and Sally had kissed while in the poo l on August 14

. Toward the end of th at night, Sally got out of the pool and asked Curtis where
sh e could take a shower, an d Curtis directed her to th e ma ster bedroom. Approximately fifteen min ute s later, Baugus went to check on Sally and found her lying in the bathtub asleep, with the water close to her face. 9 Ba ugus then drained the

water and ass is ted her in getting ou t of the bath tu b. When Sally got o ut , she wanted to start drinking ag ain, so s he and Baugus star ted drinking more beers , and they also

sm ok ed m arijuana

. They t hen went to the master bedroom where they began “ making out [and] feeling on ea ch other. ” Baugus described “ fingeri ng ” Sa lly, “ rubbing her c lit, ” and

tr ying to give her th e “ s hocker. ” 10 B augus indicated that these acts were “ very consensual ” a nd that Sally was awake “ 1 00 % ” during the encounter “ without a
doubt. ” Baugus then attempted to initiate sexual intercourse with S a lly, and she said ,

9 Accord ing to Baugu s, Curtis left Dyer ’ s h ome shortly after Baugus went to check on Sall y in the bathtub.

10 At t rial, Detecti ve He nnard describe the “ shocker ” as penetrat i ng th e vagina and anu s with one ’ s fingers a t the same time.8

“ No. ” Baugus and Sally then b oth turned over and we nt to sleep

. 11 When Bau gus woke up, Sally was gone. D. The SANE Exam and the Toxicology Rep ort After speaking with pol ice on August 15 , Sally was taken to the hos pital where
a sexual assa ult exam was performed on her by Ci ndy Romag uer a, a sexual assault

nurse examiner (SANE)

. At Baugus ’ s trial, Romaguera testified that Sa lly had
d escribed th e assault as Bau gus “ trying to put his penis in [Sally ’ s] bu tt. ” Romaguera
stated that Sally was u nsure whethe r B augus ’ s penis had touched Sal ly ’ s vagina and that Sally had in dicated that Baugus ’ s “ fi nger/hand ” had not made contact wit h her vagina. Romaguera stated, however, that Sally had indica ted that Ba ugus ’ s penis had
made contact with Sall y ’ s anus, as had his “ finger/hand. ” Sally also co mpl ain ed to Romaguera that her anus was sore. During the exam, Ro maguera found “ a s mall amount of dried blood around [Sally ’ s] anus , ” alt hough Romaguera indicated t hat the
blood could hav e been menstrual blood given that Sa lly was on her period at the t im e

o f the assault. Romaguera did not see any tea rs or inj ur ies to Sally ’ s anu s, nor did she

s ee any signs of traum a to Sally ’ s bo dy.
Beca use Sally had lost cons ciousness, Romaguera took blood and urine samples
from her on August 15

. Th e testing from Sal ly ’ s urine revealed the presence o f

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

benzodiazepines

. Sally denied ever ha vi ng tak e n ben zodiazepine s. Baugus stated that
he had taken a quar ter of an anti

- anxiety pill on the morning of August 14. 12 E. Procedural History Baugus wa s indicted f

or two coun ts of sexual assault

— one count alle ging that
he had inte ntionally or knowingly caused the p enetration of Sally ’ s sexual organ by inserting his finger into it without her consent, and the other alleging that he had
inte ntionally or knowing

ly caused Sally ’ s sexua l organ to contact his sexua l organ
without her conse nt
. The case proceeded to a jury trial in January 2022. Several witnesses

— including Sally, Sally ’ s grandmother, Detective Hennard, the SAN E nurse , and a toxicologist

— tes tif ied duri ng the guilt

– i nnoce nce phase of Baugus ’ s t rial

. T he jur y returned a ver dict convict ing Baugus of two counts of sex ual assault. After hearing testimony from sev eral defense witnesses during the punishment phase, t he jury

se ntenced B augus to ten years ’ and o ne day ’ s con fi nem ent on ea ch count, w ith the sentences to run concurrently, and t he trial court sentenced him accor dingly. Baugus later filed a “ M otion for N ew T r ial and M otion in A rr e st of J udgment ” (mot ion for new trial) , argui ng that he s hould be g ra nted a new tr ial b ecause he

rece ived in effective assist ance of c ounsel. Baugus later reques ted that the trial court

12 It is unclear what type o f anti

- anxiet y pill Baugus took. At on e point in his tes timony, Detective Hennard indicated that the a nti

- anxiety pil l was a benz odiazepine , a lthough he later clarified that he did not kno w whet her the pill was a benzodiazep ine.10

allow him to depose his trial counsel , and the tr ial court granted that r equest. Followin g a hearing on Ba ugus ’ s motion for new t rial , the trial court signe d an o rder deny ing the motion. Thi s appeal followed.
III. D IS CUSSION A. Baugus ’ s Sufficiency Comp laint
I n his first point, Baugus argues that the evidence is insufficient to support his
convic ti ons . 1. Standard of Review
In our evid entiary

- su ffici ency review, we view al l the evidence in the light most
favorable to the verdict to de t ermine whether any rational factfinder co uld have found
th e crime’ s essential elements b ey ond a reaso nable 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 sta n dard gives full pla y to the factfinder’s responsibility to
resolve conflicts i n the tes t im ony, to wei gh the evidence, and to draw reasonable
infe rences fr om basic f

acts 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 j udges the ev idence’s w ei ght and cre dibility. See Tex. Code
Crim. Proc. Ann. ar t. 38.04; Martin v. Stat e , 635 S.W.3d 672, 679 (Tex. Crim. App. 2021) . We may not re

- evaluate the evidence’s w eight and credibili ty and substitute

our judgment for the factfind er’s. Queem an , 520 S

. W. 3d at 622. Instead, we determine whether the necessary inferenc es are rea sonab le based on the evidenc e’s cumulative11

force when viewed in the light most favorable to the verdict. Braug hton 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) (“Th e court c onducting a suf ficiency review must no t engage in a ‘divide and conquer’ strategy but must consider t h e cumulative force of all the evidence.”)

. We must presume that t he factfinde r re solved a ny conflict ing inferences in favor of the verdict, and we must d efer to th at re solution. Braughton , 5 69 S.W.3d at
608

. To determine whether the State has met its bu r den to prove a defe ndant’s guilt beyond a reasonable doubt, we com pare the cri me’s eleme nt s as define d by a hypothetically correct jury charge to the evid ence adduc ed at trial

. Hammack v. Sta te , 622 S.W.3d 910, 914 (Tex. Crim. App. 2021 ) . Such a charge is one that accuratel y sets out the law, i s authorized by the indic tment, does not unnece ss arily incre ase the State’s burden of proof or restrict the State ’s theorie s of liability, and adequatel y describes the particular offense for which the defendant was t ried. Id

. The law as authorized by the indictment means the sta tutory eleme nts of the o ffense as m odified by the charging instrument ’s allegat ions

. Cu rlee v. St a te , 620 S.W.3d 767, 778 (Tex

. Crim. App. 2021)

. 2. Elements of the Offense A person commi ts the offense of sexual assault if he int entionally or knowingly

c auses the pe netration of the sexual organ of another person by any means, witho ut that p erson ’ s co nsent , or if he intentionally or knowingly causes the sexual organ of12

another person , with o ut that p erson ’ s consent, to contact or pe netrate the sexual
organ of another p erson, inc lu ding the ac tor . Tex. Penal Code Ann. § 22.011(a)(1)(A) , (C)

. T he Penal C ode s ets forth several circumstances in which a sexual act is considered to be without a pe r son ’ s consent. See id. § 22.011 (b)(1)

– (1 4) . As r elevant here, “ [ a] sex ual as sault unde r Subsection ( a)( 1) is without the consent of the other
pers on ” if “ t he othe r per son has not consented and the actor knows the other person
is unconscious or phy sicall y unable to resi st ” or “ the actor has inte ntionally imp aired
the ot her person ’ s power to ap praise or c ontrol the other person ’ s conduct by
administer

ing any s ubstanc e wit hout the other person ’ s know ledge. ” 13 Id. § 22.011(b)(3), (6)

. 3. The Evidence is S ufficien t to Support Baugus ’ s Convictions Baugus claims that the ev idence is in sufficien t t o support h is convictions

. We
di sagree. Here, Sally described contact be tween her sexual organ and B augus ’ s se xual
organ, mentioning that s he had woken up from a b lacked

- out state wi th B augus on top of her a nd that she could fee l h is penis “ j ust, like , basically flop on [her] vagina. ” During his interview with Detective Henna rd, B augus a dmitted to acts that would support a findin g of penetration of Sally ’ s sexual organ wi th his finger, stating th at he
had “ f inger [ ed] ” h er and that he had also attempted to give her the “ shocker ” but that she had not enjoyed th e “ shocker

. ”

13 The jury was ch arged on both of these statutory provisions.13

As to co nsent, Sally testified that Baugus brought her all of the alcoholic beverages she dran k o n Augu st 1 4 , one of whi ch was opened and had “ a haze in it ” ( which she declined ) , and another that was opened ( which she drank

)

. Baugus
estimated that Sally dran k at least twelve Smir noff Ice s , an amoun t t hat a toxicologis t

test ified could reasonably have c aused 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 sh e stated “ no ” three times and tr ied t o move Baugus off h er, and after
B augus sa id, “ [L]et me just rub it, ” she blacked out again. Sally testified that she did

not a ctively participate in any sexual con tact with Baugus. “ A victim ’ s te stimony is sufficient, in and o f it se lf, to provide s u ff icie nt evidence to supp ort a conviction. ”
Babineaux v. S t

ate , No. 02

- 21

- 0008 5

- C R, 2023 WL 164089, at *2 (Tex. App.

— Fort Worth Jan . 12 , 2023, no pet.) (mem. o p., not des ignated for publica tion) ( c itin g Marshall v. State , 479 S.W.3d 840 , 845 (Tex. Crim. A pp . 2 0 16) )

. Moreover, a rati onal factfinder could have found that Baugus provided Sally
with a subs tance containing the benzodiazepine found in her urine. In this regard, Sally denied ever havi ng tak e n ben zodiazepine , while Ba ugus stated that he had ta ken
a quar ter of an anti

- anxiety pill on the morning of August 14. See Powell v. State , No. 02

- 19

- 00206

- C R, 20 21 WL 537016 3, at *5 n.15 (Tex. App.

— Fort Worth
Nov. 1 8, 2021, pet. ref

’ d ) ( op. on reh ’ g

) (me m. op., not designa t e d fo r pub lication) ( “ Be nzodiazepine is a central nervous system depressant prescribed for anxiety. ” ). Given that Sally testified that Baugus had provided her with all of her drinks on the14

day of the assau lt , that she had den ied ever t ak ing benzodiazepin e, tha t Bau gus had
taken a portion of an anti

- anxiety pill on the morning o f the assault, and that Baugus
had been “ pushy ” about having Sally drink opened drink s, a rational factfinder could
have found that Baugus intentionally provided Sa lly with a subs ta nc e co ntain ing
benzodiaze pine withou t her kno wledge that impaired her power to appraise or control
her conduct

. See Tex. Pe nal Co de Ann. § 22.011(b ) (6) ; Braughton , 569 S.W.3d at 608

. Ba ugus argues that the evid ence is in su fficient to support his convict io n s becaus e of certain inconsistenci es in the evidence. He points out , among other things,
that while Sally testified tha t one of the drinks B augus served her had a “ haze in it , ”
she told the SANE n u r se that the drink was “ fizz ing ” ; that while she testified that
Ba ugus ’ s penis made contact with her vagina during the assault , she told the SAN E
nurse that she was unsure whether Baugus ’ s penis had made contact with her va gina, describing instea d contac t with her anus ; that while she testified that Baugus had brough t he r all of the drinks on the day of the as sault, he told Detective Hennard that
both he and Curtis brought he r drinks. We must def er to the j ury ’ s resolution of
th ose inconsi stencies, and we will not subst itute our judgment for that of th e jury. See
Bra ugh ton , 569 S.W.3d at 608; Qu eeman , 520 S.W.3d at 6 22; Escue v. State , No. 12

- 09

- 00309

- C R, 201 0 WL 342245 7, 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 de termination on such mat te r s is generally regarde d as concl us ive. ” )15

After v iewing al l the ev

id ence in t he light most fa vorable to the verdict, we
conclude that a r ational trier of fact could have found, beyond a reasonable doub t, that Bau gus intentionally o r knowingly cause d the pen etration of Sally ’ s se xual organ

w ith his fin g er without her cons en t and tha t he intentionally or knowingly cause d Sally ’ s sexual organ , with out her consent, to contact his sexual organ

. See Jackson , 443 U.S. a t 319 , 99 S. Ct. at 2789

. Even if we would have found to the co ntrary if we
were sitt ing as the f

actfinder , we cannot ac t as the “ thirteenth juro r, ” and we may not substitute our judgment for that of th e jury

. See Thornton v. State , 425 S .W.3d 289, 303 (Tex. Crim. App. 201 4) (stating that a reviewing court should not act as a “ thirteenth juror ” ); Bur

ge ss v. State , No. 02

- 1 9

- 00203

- CR , 2021 WL 3556953, at *3 n. 6 (Te x. App.

— Fort Worth Aug. 12, 2021, no pet.) (mem. op., not designated for publication ) ( “ [T ]he factfinder alone

—

i n this case, the jury

— judges the ev

idence ’ s c redibility, and
we may not act as a thirteenth juror, re

- evaluati ng the weight and credibility of the
evidence and , thus, substitut ing our judgment for that of th e factfinder. ” )

. We overrule Baugus ’ s first poin t. B. Baugus ’ s Complaint of Improper Jury Ar gument
In his second point, Baugu s a rgues that the State engage d in improper jury
arg ument
. S pecifically, Baugus complains about the following : (1) argument made during the S t ate ’ s opening tha t attacked Baugu s ’ s credibility ; (2) arg ument made during the S tat e ’ s closing that sug gested th at Baugus was the ty pe of person that enjoyed touching an unconscious woman ; (3) argument made during the State ’ s16

closing that Baugus was “ lying ” ; ( 4) questions a sked by the Sta te to Detectiv e Hennard re gar ding Sally ’ s tru thfu lness t ha t allegedly bolster ed her cred ibility and questions that allegedly bolste red Detective Hennard ’ s credibility ; (5) argument made during the State ’ s closing that Sally was “ bru tally honest ” ; ( 6) argum ent made during
the State ’ s cl osin g on punish men t regarding the lasting effect the sexual assault had on Sally ; (7) argument made during the State ’ s closing on punishment regarding Baugus ’ s prescription histor y an d that he had be en “ docto r shopping ” ; and ( 8) ar gument ma de during th e State ’ s closing o n punishment that Baugus wa s “ the boogie man. ” We must first address whether Baugus has preserved these complaints. T o pre serve a compla in t for o ur review, a p arty must have presente d to th e trial court a tim ely request, objection, or motion sufficientl y stating th e specific grounds, if not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1);
Mo ntel ongo v. State , 6 23 S.W. 3d 819, 822 (T ex. C rim. App. 2021)

. Further , the party

mu st ob tain an express or implicit adverse trial

- cou rt 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, 22 3 (T ex. Crim. App. 2 020)

. Th ese preserva tion requirements apply to com pl aints of imp roper jury argument. See Hernan dez v. State , 538 S.W.3d 619, 622 (Tex. Crim. App. 2018) ( “ The right to a trial untainted by improper jury argument is forf eitable. ” ) ; Thre adgi ll v. S t ate , 1 46 S.W.3d 6 54, 667 (Tex . Cri m. App. 2004) (hol ding th at because
app ellan t d id not object to complained

- of jury argume nt, he “ fail ed to preserve

error ” ). Indeed, erroneous ju ry argument, even if “ i ncurably improper , ” is forfeited17

unless t he c omplaining par ty object s at the time of th e argument and pur sues th e objection to an a dverse r uling. Hernandez , 538 S.W.3d at 6 23

. Here, Baugus did not raise any objection at trial to the complain ts he now
rais es in his second poi nt. While he acknowl edge s that “ [c]ons eq uently, n othing is
p r eserved for review unde r this st andard, ” he argue s that our analysis should not end. Citing, among others, Spradlin v. State , 245 S.W.2d 251 (T ex. Crim. App. 1951), Marx v.
State , 150 S.W.2d 1014 (Te x. Crim. App. 1941), and Borgen v. St ate , 657 S.W.2d 15 (Tex . App.

— Ho uston [ 1st Dist.] 1983 ) ( Borgen I ) , re v ’ d by Borgen v. State , 672 S.W.2d 456 (Tex . Crim. App. 1984) ( Borgen II ) , Baugus suggests that we should sustain his
comp laints eve n though he d id n ot preserve th em. We disagree.
Firs t, we f

in d both Spradlin and Marx disti nguishable because in both o f those

cases an objection was raised to the complained

- of jury argument. See Sp ra dlin , 245 S.W.2d at 253; Marx

, 150 S.W.2d at 1 017

. Second, while Baugu s cites Borg en I for the propositio n that no objection to the jury argumen t was necessary, he fails to acknowledge that Borgen I was reversed by th e Texas Court of C riminal Appeals in Borgen II

. 14 See Borgen II

, 672 S.W. 2d at 4 60. In Borgen II , the cour t noted “ the g eneral

ru le that any im proprie ty 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 re cord as a whole and without an objection, ” t he c ompl ained

- of s tatement di d not warran t a reversal. Id. at 4 57 , 460 . Mo re over, in subsequent opinions, the Texas Court of

14 I n his brief, Bau gus mi s characte rizes Borgen I a s having “ no pe t. ”18

Crim inal Appeals has held that th e right not to b e sub jected to improper jury argument is fo rfeitable by inaction

. See Hernandez , 538 S.W .3d at 622; C

o ckrell v. S tate , 933 S. W.2d 73, 89 (Tex. Cr im. App. 1 99 6) ( “ [W]e hold a defendant ’ s failure to object to a j ury argument or a defendant ’ s failure to purs ue to an adve rse ruling his objection to a jury argument forfeits his right to compla in a bout the argu m ent on appe al. ” ).
Ba ugu s also suggests that “ s ome err or was preserved ” because the trial court granted his p re

- trial “ Motion to L imit State ’ s Jury Argume nt , ” which requested that
the State be limited to the “ four permissible areas of jury arg ument. ” See Freeman v. State , 3 40 S.W.3d 717, 727 (Tex. Crim. App. 2011) ( listing the four areas that “ proper jury argume nt generally falls within ” ) . But such a moti on in limine does not preserve

error. See Fulle r v. State , 253 S

. W.3d 220, 2 32 (Tex. Cri m. App. 2008) (“A mot io n in li mi ne . . . is a preliminary matter and normally preserves nothing for appellate
review. For error to be preserved with re gard to the sub ject of a motion in limine, an objection must be mad e at the time the subject is raised d uring trial.” (citati on and

em ph asis omitted)) ; Harne tt v. State , 38 S.W.3d 650, 655 (Tex. A pp.

— Austin 2000, pet.
ref ’ d) ( “ It is axiomatic that motions in l imine do no t pre serve error . ” ). The party must object when the subject is r a ised at tri al. Fuller , 253 S.W.3d at 232; R ob erts v.
S tate , 220 S.W.3d 521, 533 (Tex. Crim. App. 2007). Because B augus did not object at
trial to the allegedly

- im proper jury argument, his motio n in limine preserved nothing.
We thus ove rrul e Baugus ’ s se c ond point.19

C. Baugus ’ s Complaint s of Improper Testim on y In his third point, Baugus argues that the trial cour t abused its discretion by
admitt ing certain testimo ny over his hearsay and re lev an cy objections.
1. St andard of Revie w and Appl icable Law
We rev iew a trial court ’ s de cisi on to admit or exclude evidence under an a buse

of

- discretion standard. Beham v. State , 559 S.W.3d 474, 478 (T ex. Crim. App. 2018). Hearsay is a statement, ot her t han one made by the d ec larant while te s tifying a t trial or
h earing, offered in evid ence to p ro v e the truth of the matter asserted. Tex. R. Evi d

. 801 (d)

. Generally, hearsay s tatements are not admissible un less the statement falls within a recognized excep tion to the hearsay r u l e. Pena v. S t a t e , 353 S. W.3d 797, 81 4 (Tex. Cri m. App. 2011 ).
Evid en ce is relevant if “ it has any tendency to make a fact more or less probable than it would be without the evidenc e ” and “ the fact is of consequen ce in
d etermi ning the action. ” Tex. R. E vid. 401. Relev ant evide nce is gener ally admissible,
while irrelevan t 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
Ba ugus complains that , despi te his relevancy o bjection, the trial c ourt allowed testimony of a Face bo ok conversation between Sally and hi s wife

. S pecifically , he complains about th e f

ollowing exc hange during the State ’ s questioning of Sally :20

Q. Were you aw are [

Ba ug us] was married?
A. I w as not. Q. Did he ever wear a rin g around yo u?
A. He did not. Q. When did you firs t become aware he was married? A. That day after it happened. Q. How did you become a ware of it? A. I believe at some point my [ grand mo th er] had gotten i nt o conta ct with her and I overheard them ta lking. Q

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

-- did you interact with her?
A. Yes. Q. How did you interact wit h he r?
A. On Facebook. Q. Okay. Once again, those a re hearsay, right? But did you provide that entire accounting between th e two of you to the police as well?
A. Yes. Q. And so you turned that over f rom the get

- go?
A. Ye s, ma ’ am. Q. In your first encounter with her, what were your feelings with re ga rd to his wife?
A . Disg ust.21 Q. On whose part? Who were you disgu st ed at?
A. Her. [ Baugus ’ s trial counsel

]: Objection, relevance here, Your Honor. This doesn ’ t have anything to do with the actu al act itself.
THE COURT: Overruled. Q. W hy?
A. She called me a wh ore. Q

. Did you a ctually

-- did you prov ide to he r eve ry single text message between the two of you so she could see the entire accounting of you r relationship? A. Yes, ma ’ am. Q. And she still called you the whore?
A. Yes , ma ’ am . b
. Baugus Did Not Pres erve His Complaint Rega rding the F acebook Conversation Between Sally and His Wife We first address whether Baugus has preserved his complaint regarding Sally ’ s testimony of th e Facebook conversation she had with Bau gu s ’ s wife

. As no te d earli er,

t o prese rve a complaint for o ur review, a party must have presented to the trial court a timely request, objection, or motion sufficiently stating th e specific grounds, if not
apparent from the context, for the desired ruling

. Te x. R. App. P. 3 3.1(a)( 1);
Montelon go , 623 S.W. 3d at 822

. A party mu st 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 objec tion mu st precede testimony. Polk v. St at e , 729 S .W.2d 74 9, 75322

(T ex. Cr im. Ap p. 1987). An objection made aft er 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, 3 5 5 (Tex. Crim. App. 1995) ; see also Girnd t v. State , 623 S. W. 2d 930,
934

– 35 (Tex . Cri m. App. [Panel Op. ] 1981) ( no ting that lateness may be excused if witness answers question before attor ney can object or a sho wing is made that

cou nsel misunderstood the qu estion when asked). Here, the State ask ed Sa lly

— w ith no o bj ections being lodge d

— several questions reg arding he r Facebook conversation with Baugus ’ s wife

. When asked what
fe elings she had toward Baugus ’ s wife, Sally answered, “ D isgust. ” When asked who

s h e was disgusted at, Sa ll

y responded, “ He r. ” Only th en, after Sally had ans wered, di d
Ba ugus object. No other objection to thi s line of questioning was raised. Because Sally ’ s answer preceded Baugus ’ s objection , and because the re is no indication t hat a good reaso n existed for Baugus not objecting earli er, we hold t ha t Baugus ’ s objection
d id not preserve his complaint. See Dinkins , 894 S.W.2d at 3 55 ; Well

s v. S t ate , No. 06

- 17

- 00180

- CR, 2018 WL 988412, at * 4 (Tex. App.

— Tex arkana F e b. 21, 2018, pet. ref ’ d ) (mem. op., not des ignated for publicatio n ) ( holdi ng t hat appel la nt failed to preserve complaint relating to admissib ility of testimony where appellant ’ s objection

was lodged after witness ha d answered complained

- of question ) ; see also Girndt

, 623 S. W.2d a t 934

– 35

. Moreove r, even if w e were to hold that Bau gus ’ s obj ec tion to the question

—

“ On whose part? Who were you disgusted a t ? ”

— was timely , Sally had been asked23

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

“ [d]i sgust. ” S ee West v . S tate , No. 05

- 02

- 01653

- C R, 20 03 W L 22976705, at * 12 (Tex. App.

— Dallas Dec. 19, 2003, pet. ref ’ d) (no t designated for publication) ( “ Garcia
testified twice that Lisa Deaton told her she ‘ n eeded to check out the scene. ’
A ppellan t did no t object u n til after t he se cond question and answe r on t his subject. The testimony was hearsay. However, the testimony had alr eady been admitted without objection. Thus, any error wa s waived. ” )

. Thus, we hold that Baugus has not
preserve d his com plaint regarding Sal ly ’s tes timony of the Facebook conve rsat io n 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 B augus ’ s third point.
3
. Baug us ’ s Complaint of an Alle ged Bribe

a . The Complained

- Of T e stim ony
B au gus also complains that the trial court allowed testimony of an alleged bribe made by Dyer to S ally ’ s grandmo ther despite his hearsay objection

. S pecifically , he
ref ers to th e f

ollowing exc h ange dur

ing the State ’ s quest

ioni ng of Sally ’ s grandm other : Q. Based on the information and the conversations you had with law enforcement, did you believe [Dyer] was being coo perative with them?
A. No. Q. Did he try to sway y our coope ration with law enforcem ent?
A . Yes. Yes. Q. H ow so?24 A

. I don ’ t rem ember exactly. But

. . . he cal led my house and left a message. I retur ned the call, and he

– he was talking about the case. And he asked me if I still wanted to have my fence fi xed. [Baugus ’ s trial cou nse l]: Objection , h ears ay . THE CO UR

T: Ove rrule d. Q. You can answe r. 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 o n to say tha t [ Baugus] had al read y spent 20 or $25,00 0 on this case and [Sa lly] needs to drop it.
b
. Baugus Was Not Harmed by the Testimony of the Alleged Bribe
We will assume without decid ing that the trial court ab used its discretion by

ov erruling Bau gu s ’ s he arsay ob jecti on to the te stimony of Sally ’ s gran dmother

concern ing 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 err one ous admission or e xclusio n of evidenc e that m erely
offends t h e rul es o f evidence is nonc onsti tutional error governed by Rule 44.2 (b). James v. State , 335 S.W.3d 719, 726 (Tex. App.

— Fort Worth 2011, n o pet.) ; see Tex. R. App. P. 44.2(b) . Rule 44.2(b) r equ ires us to disregard any nonconstitut io nal er ror that
does n o t aff

ec t the appellant’s su bstan tial 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 j ury ’s verdict

. ” Haley v. St ate , 173 S.W .3 d 510, 518 (Tex.
Cr im

. App. 2 00 5)

. Conversely, a n err or does not affect a substantial right if the25

appellate court has a fair assurance from an examination of the record as a whole that
the error did no t influence th e jury or that it had but a slight ef fe ct. M acedo v. Stat

e , 629 S .W .3 d 237, 240 (Tex. C rim. 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 co nsidered in
connection wi th other evi de nce , ( 2) the nature o f the ev id ence supporting th e ver dict , (3) the existence and degree of additional evidence supporting the verdi ct , and (4) whether the State e mphasized the complained

- of error. Id. ; Motilla v. St ate , 78 S.W.3d 352, 355 (

Tex. Cri m. A pp . 2002 ). We may al so consi de r the jury
instructi ons, 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.
He re, the complained

- of tes timony relat ed to Dy er ’ s alleged of fer to p a y money to fix Sall y ’ s g randmoth er ’ s fence. That testimony is far removed from the evidence concerning Baugus ’ s sexual assault of Sally . In deed, even if that testimony could be properly characterized as a bribe

— an d that characteri za ti on is fa r from certain

— i t is
unclear ho w a b ribe offered by Dyer (i.e., not Baugus) would impugn the evidence presented at trial regarding sexual assault. Moreover, the testimon y of the alleged
b ribe was not empha sized b y the State du ring either openi ng s tatement s or cl osing
argument
. Thus, a fter examin in g the whole record, we have fair assurance that the error, if any, did not have a sub stantial and injuri ou s effect or influ ence in determin i ng26

the jury ’ s verdict. See Maced o , 629 S .W

. 3 d at 240 ; Haley , 173 S.W.3d at 518

. Accordingly, we concl ude t hat any potential error in admit ting the testimony of Sally ’s grandmother concern ing the alleged bribe made by Dyer did not contribute to Baugus ’ s a djudication of guilt, and any suc h error wa s harmless. See Tex. R. App. P. 44.2(b)

. We overrule this porti on of Baugus ’ s third p oint. D. Baugus ’ s Complaint of Ineffective Assist ance of Counsel
In his fourth point, Baugus argues that he received ineffec tive assista n ce of counsel during h is tria l and that the tri al court abused its discretion by d enying h is

mo tion for new trial raising in ef fective assistance

. 1. Standard of R eview and Applicable Law
When an appellant raises the issue of ine f fective assistance o f counsel i n a motion for new trial , we review th e trial court ’ s denial of the motion for an abus e of
d iscretio n. State v. Herndon , 215 S.W.3d 901, 905 n.4, 906

– 07 (Tex. Crim. App . 2007);
Muirhead v. Stat

e , No. 02

- 20

- 0008 9

- CR, 2021 WL 44 72 626, at *5 (Tex. App.

— Fo r t Worth Sept. 30, 2 021, pet. ref ’ d) (mem . op., not designated for publication) ; see Burc h
v. State , 541 S.W.3d 816, 820

– 22 (Tex. Crim. App. 2017) (explaining that appellat e court must review denia l

- of

- motion

- f or

- new

- trial complai nt for ine ffectiveness in
l ig ht most f avorable to ruling and presum e trial court disbelieved evidence supporti ng
ap pellant’s claim)

. We v

iew the evidence in the light most fa vorable to the trial co urt ’ s ruling, and w e will reverse onl y if no reasonable vi ew of the record could sup p or t 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 ground s by Tex. R. A pp. P. 21.8(b), as reco gnized in Herndon , 215 S

. W.3d at 905 n .5 ; Muir head , 2021 W L 4472626, at *5.
The Sixt h A mendment guarantees a crimin al defenda nt the effective assistance
of counsel. Ex part

e Scott , 541 S.W.3d 104 , 11 4 (Tex. Crim. App. 201 7); see U.S. Const.
amend. VI . To establish ineffective as sistance, an appellan t must prove b y a prep onderanc e of the ev

idence tha t his counse l ’ s re presentati on was deficient and that the deficiency pr ejudi ced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104
S. Ct. 2052 , 206 4 (1984); Nava v. State , 415 S.W.3d 2 8 9, 307 ( Tex. Crim. A pp . 2013) ; Hernandez v. St

a te , 988 S.W.2d 770, 770 (Tex. Crim. App. 1999)

. The record must affirmatively demo nstra te that the claim has merit. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In evaluating cou nsel’s effec t iveness under the de fi cient

- pe rformance prong,

we review the totality of the representa tion and the particular circumstances of th e

cas e to determine whet her counsel provided reasonable assistance under all the
circums tances and prevailing pro fessional no r ms at the time of th e alleged error. See
Stri c kl and , 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 presump tion that co u nsel’s conduct was n ot deficie nt. Nava , 415 S

. W. 3d at 307

– 08

. An appellate court may n ot infer ineffective assistance simply from an u nclear record or a record that does not show why counsel failed to do something. M enefield v.28

State , 363 S. W.3d 591, 59 3 (Tex. Crim. App. 20 12 ); Mata v. State , 226 S. W .3 d 425, 432 (Tex. Crim. App. 2007). Tr ial counsel “should ordinarily be affor ded an op portunity to explain his actions before being denounced as ineffective.” Menefield , 363 S.W.3d at
593. If trial counse l did not have that o pp ortunity , we should not c on clude that counsel performed deficient ly unless the challenged conduct was “s o ou trage ous that no competent attorney would have engaged in it.” Nava , 415 S.W.3d at 308. Direct appeal is usuall y inadequate for raising an ineff ec tive

- ass istance

- of

- couns e l claim because the record generally doe s not show counsel’s reasons for any al lege d def icient performance. See Menefield , 363 S.W.3d at 592

– 93; Thompson , 9 S.W.3d at 813

– 14.
Strickland ’s prejudi ce prong req u ires a showing that co unsel’s errors were so

s e ri ous that they deprived the defendant o f a fair trial

— that is, a trial with a reli a ble
result. Strickland

, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appel lant
must show a reasonab le probabili t y that the proceedin g would ha ve turned out
di f fe rently without the deficient performan ce. 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

. Stricklan d , 466 U.S. at 694, 1 04 S. Ct. at 2068; Nava , 4 1 5 S.W.3d at 308. We must ultimately foc us on examining the fundamental fairness
of the proceeding in which the result is being challenged. Strickland , 466 U.S. at 69 6 , 1 04 S. Ct. at 20 69 . “[A] verdict or c o nclusion only weakly s upported by the record i s

m ore likely to have been affected by er rors than one with overwhelming record

su pp ort.” Id. , 104 S. Ct. at 2069.29

2. Analysis

a . Baugus ’ s Complaint That His Trial Couns el Failed to Ad equately C ommunicate a n d Investigate the Ca se Baugus argues that hi s tr ial counsel failed to adequately commu nicate with him
and fail ed to investigate t he ca se . T his argument centers around two primary concerns: (1) tha t Baugus ’ s trial counsel was not adeq u ately prepared when ad vising
B augus on the Stat e ’ s plea offe rs and ( 2) that Baugus ’ s trial counsel did not a dequately prepare him for his interviews with Detective Hennard.
A s to the first of these con ce rns, Baugus c omplains that his tr ia l counse l “ did

not access o r download any interview s with his own client, the victim, or any witness ”
from the TechShare P rosecutor datab ase used by the Tarrant Coun ty Di strict Attorney ’ s Office t o share discovery matters in this cas e until a few weeks b ef ore tria l

. To support that contention, B augus attached three exhibits that os tens ibly reflect timestamps of when his tria l counsel viewed and downloaded certai n fil es in
TechS h are. But we c annot glean f rom those exhibits t he first t ime that Baugus ’ s t rial
counsel “ access[ed] or download[ed] an y interviews with his own client, the victim, or any witness. ” 15 Indeed, we note n umerous entries in those exhi bits that refl e ct t hat
B augus ’ s trial co unsel view ed and download ed files i n 2017 a nd 2018 from Tech Sh are

15 We note that Baugus ’s trial counsel w as present during Detective Hennard ’s August 25, 2017 and September 5 , 2017 int erview s of Ba ugus .30

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

. 16 After reviewing the record in the ligh t most favorable to the trial cou rt ’ s rulin g on B augu s ’ s m otion for ne w t rial , we hold that B augus ha s not proven that h is trial
counsel ’ s repre s entation was deficient with respect to counsel ’ s prepar ation when advising Baugus on the State ’ s plea offe rs . See Strickland , 466 U.S. at 687, 104 S. Ct. at
2 064 ; Dr yer v. State , N o . 01

- 22

- 00201

- CR, 20 23 WL 2919 802, at *8 (Te x. Ap p.

— Hou ston [1st Dist.] Apr. 13, 2023, no pet. h .) ( “ Nor can we infer that counsel ’ s performa nce was deficient based on portions of the r ecord that are unclear. ” ).
Moreov er, even i f we assume tha t Baugus ’ s t r ial counsel was defi ci ent in t his
respect, we c an not conclude that this failure preju diced Baugus ’ s defense. To establish prejudice in a claim of ineffective assistance of counsel i n w hich a defendant
is not made awar e of a ple a
- bar gain offer or rejects a plea

- bargain offer be cause o f bad legal advice , the defendant must show a reasonable probability that ( 1) he would have accepted the offer if counsel had not given ineffective assistan ce , (2) the prosecution would n ot have with drawn the off er, and (3) t he trial court would n ot have refused to accept t he plea bargain. Ex parte Argent , 393 S.W.3d 781 , 784 (Tex. Crim. App. 2013). Baugus has not established any of these factors ; thus, eve n if his
trial counsel was defi cient by not bein g adequa tely prepare d when advising Baugu s on the S tate ’s plea offe rs , B augus has not shown prejudice. See id.

16 At the hear ing on the moti o n for new tr ial, B aug u s ’ s trial cou nsel testified that once he downloaded a file fr om TechShare, it was in his own computer filing system, and he did n ot ne ed to use TechSha re any more to access the file.31

We now turn to Baugus ’ s a rgument that his trial counsel did not a dequately prepare him for his i nterviews with Detective Hennar d

. To suppo rt th a t argument, Baugus po in ts to h i s testimony from th e 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 De tective Hen nard. Baugus ’ s tr i al counsel testified a t h is d e position,
howe ver, th at h e had spoke n with Baugus prior to those int erview s “ [i ] n great detail ”
about the advantages and disadvan ta ges of speaki ng with Detective Hennard. When
pr essed on what he meant by “ g reat deta i l, ” he stated,
We st ar t with t he facts , what we k no w, 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. Pre vious relationship, this, that , an d t h e other.
And I sai d, “ Lo ok. If you t alk to the d e tective, 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 prob lems with it . I think it will make t h ings easier in the l on g run. ”

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

. ” And we spent a great deal of time working on it because wha t you say can be used against you. 17
After reviewin g the record in the light most fa vo rable t o the trial cou rt ’ s ru ling
on B augu s ’ s motion for new t rial , we hold that Baugus has not proven that his trial

17 Bau gus ’s trial c ounsel al so testified tha t prior to B augus ’s second in tervie w with Detec tive Hennard, he told Baugus , “If th e det e ctiv e ’s got questions, irregularities, this, that, and the oth er, t hat ’s what this i s about. He ’ s going to as k you about those, and in an eff

ort to cl ear

– clear up his irregula rities he ’s got. ”32

counsel ’ s repre s entation was deficient with respect to his preparation of Baug us before the interviews with Detecti v e H ennard. See Burc h , 541 S. W .3d at 820

– 22 ; Char le s , 146 S.W.3d at 207

– 08 ; Acosta v. S t ate , No. 14

- 09

- 00638

- CR, 2011 WL 2150233, at *7 (Tex. App.

— Houston [1 4th Dist.] June 2, 2 011, no pet.) (mem. op., not designated for publication) ( holding that trial court cou ld have reason ably
concluded that att orney h ad adequately prepare d appellant for prosecutor ’ s cross

examination where attorney testified that he had “ met with appella nt numerous times prior to trial ” )

.

b
. Baug us ’ s Complaint That His T rial Counsel Fail ed to Ef fectivel y Cross Examine Sally and Sall y ’ s Grandmother Baugus next argues that his trial counsel failed to effectively cr oss examine Sally and Sally ’ s grandmother. The crux of Baugus ’ s argument is that he thoug ht that Sall y and her grandmoth e r h ad minimized their relations hi p with Dyer. In t his regard, Sally
testified that she did not have a lot of contact with Dyer , while Sally ’ s grandmother
testified that her own r elationship with Dyer was “ [n]onexist ent
. ” Acco rding to Baugus, his trial c ou nsel could ha ve called Dyer as a witness t o t estif y that Sall y and Sally ’ s g randmother “ were being deceptive concerning the relationshi p between [Sally] and [Dyer ] ”

— s uggesting that Sally and Dyer had som e sort of a personal re lationship.
But the record revea ls that Baugus ’ s trial counsel had strate gic r easons for not

c alling Dyer as a w

itness. Ba u gus ’ s trial counsel described Dyer as a “ loose can non ” and explained that t he more he t alked to Dyer, “ the mor e p roblematic [he] found33

wha te ver [Dyer] said to be. ” He also testified that Dyer “ had the pot entia l of be ing a very damagin g witness i n ste ad of a helpful witness , ” not ing his concern ab out Dyer ’ s alleged bribe of Sally ’ s g randmother and explaini ng that he wanted to “ downpl ay ” and

not “ amplify ” that allegati on. Thus, a fter reviewing the record in t he l ight most
f avorable to th e trial court ’ s ruling on B augu s ’ s motion for ne w t rial , we hold that
Bau gus has not proven that his trial c ounsel ’ s repre s entation was de ficient with
respect to not calling Dyer as a w itnes s. See Ex pa rte Woods

, 176 S.W.3d 2 24, 2 27 (Tex.
Cr im. App. 2005) ( “ It w as not a deficient stra tegy for applica nt ’ s attorneys to decline

t o call witne sses who would testify to some mitigating facts, bu t then be subject to

cross

- exa mination concerning a vast array of aggravating facts. ” ); Gr undy v. State , N o. 05

- 90

- 00832

- CR, 1991 WL 134592, at *8 (Tex. App.

— Dallas Jul y 23, 1991, pet.
ref ’ d ) ( not designat ed for publication) ( re cognizing several reasons wh y counsel ’ s decision not to call defendant ’ s moth er or other punishment

- phase witnesses co uld
f all into the ca tegory of trial strategy and thus not const itute deficient performance). Baugus als o briefly me ntions that his trial c ounsel failed to call Curtis a s a witness. Baugus suggests

— with o ut citing an ything in the record to support it

— that
C ur tis “ could have provided the jury with an alternative th eory of why [Sally] had
b enzodiazepin e in her system. ” The “ failure t o call witne sses at the g uilt [

– ] innocence and punishme n t sta ges is irre levant absent a showing that su ch witnesse s were availabl e and appe llant would benefit from the ir testimony. ” King v. S t ate , 649 S. W.2d 42, 44 (Tex. Crim. App. 1983). Here, Ba ugus h as not esta blished that he would have34

benefitted from Cu r tis ’ s testimony, and we d o not s ee a reasonable probability that his

test imony would have changed the result of B augus ’ s trial. See Per ez v. State , 31 0 S.W.3d 890, 894 (T ex. Crim. App. 2010) ( “ Here, w e are not convi nced that Appellant would have benefitt e d from Padill a ’ s testimony, and we do not see a reasonable probability th at he r testimony would have changed th e result of Appellant’s t rial. ” )

. Th us, a fter reviewing the record in the light most fa vo rable to the
trial court ’ s ruling on B augu s ’s motion f o r new t rial , we hold that Baugus has not
proven that his trial counsel ’s repre s entation was deficient with resp ect to not calling
Curtis as a witnes s , nor has Baugus prove n that such a deficiency pre ju diced his
defense

. See P erez

, 31 0 S.W.3d at 8 94 ; King

, 649 S.W.2d at 44

.

c . Baugus ’ s Complaint Tha t His Tri al Counsel Failed to O bject to the State ’ s Jury Argume nt Baugus next compla ins that h is tr ial counsel failed to o bject to certain
arguments ma de by the State to the jury

. 18 But Baugus does not point t o anything in

18 As noted in our discussion of B a ugus ’ s s ec ond point, h e comp lains that his counsel failed to object to the following : (1) argument made during the S t ate ’ s opening tha t attacked his credibil ity ; (2) arg umen t made durin g the Stat e ’ s closing t hat suggeste d that he was the ty pe of person t ha t enjoyed touching an uncon scious woman ; (3) argument made during the State ’ s closing that he was “ lying ” ; ( 4) questions a sked by the St ate to Detective Hennard reg ar ding Sally ’ s truthful ness that allegedly bolster ed her cred ibility an d q uestions that allegedly bolste red Detect ive H ennard ’ s credibility ; (5) argument made during the State ’ s closing that Sally was

“ brut ally hone st ” ; (6 ) argument m ade during the State ’ s cl osing on punishmen t regarding the lasting ef

fe ct the sexual assault had on Sally ; (7) argument made during the State ’ s closing on punishment regarding Baugus ’ s prescription histor y and that he had be en “ doctor shopping ” ; and (8) arg ument made during th e State ’ s closing on punis hm ent that Baugus wa s “ the boog ie man. ”35

the record indic a ting why his tri al counsel failed to make such object io ns. Absen t such a showing, we ca nno t say tha t Baugus ’ s trial co unsel ’ s performance was deficient.
See Menefield

, 363 S.W.3d at 593 ( “ Trial cou n sel should ordinarily be affor ded an opportunit y to expl ain his actions before being denounced as inef fective

. ” ) (quot ati on omi tted ) ; Panchol v. State , No. 02

- 12

- 00228

- CR , 2 01 3 WL 3874763, at * 9 (Tex. App.

— Fort Worth July 25, 2013, pet. ref ’d) (mem. op., not de signated for publica tion ) ( “ The
record is absolutel y silent regarding counsel ’s reasons for not o bjecti n g to [compla ined

- of jury argument m ade by the State during closi ng ]

. . . . That being the case, Appellant has failed to show by a preponderance of the evidence that counsel
was defic ient. ”) ; Moreno v. S tate , No. 03

- 07

- 00713

- CR, 20 10 WL 2698510 , at * 1 0 (Te x. App.

— Aust in July 8, 2010, pet. r ef

’d) ( mem. op., not designat ed for publica tion) ( ho lding that because “[t] he record is silent as to the reasoning and strategy behind the
trial counsel ’s inaction in n ot making objections ” to the State ’s jury argu ment du rin g the pun ishment phase of appell an t ’s trial, appellant “has n ot demonstrated in the

re cord that trial counsel rendered ineffecti ve ass istance ”). Thus, a fter reviewing the record in the light most fav orable to the trial court ’s ruling on B au gu s ’s motion for

new t ri al , we hold that Baugus has not proven that his tria l counsel ’s repre s en tation
was deficient with res p ect to counsel ’ s failure to object to the S t ate ’ s jury ar gument. See Menefield

, 363 S.W. 3d at 593 ; Panchol , 2013 WL 3874763, at * 9; Mo reno , 2 010 WL
26985 10, at * 1 0

.36 d
. Baugus ’ s Complaint That His Trial C ou nsel Failed to Object to Damagi ng Photographic Evidence
Bau gus next complains that his t r ial counsel failed to object to five photograph s admitted at trial that dep i cted Sally ’ s c lo t hing and car the day after the
assault and that showed some blood on Sa ll y ’ s clothing

. Baugus complai ns that the
evidence at trial reflected that the blood was due to Sally ’ s men strual cy cle and was
not rela te d to the se xual assault and that th e admi ssion of the phot ographs inflamed the jury ag ai nst him

. Once again, however, Baugus do es not point to anything in t h e record indicating why his trial counsel faile d to object to the photograph s . 19 Absent
such a sho wing, we cannot sa y that his trial cou nse l ’ s p er formance was deficient. See Menefield , 363 S.W.3d at 593 ; Ma ta , 226 S.W.3d at 432 ; Andrus v. S t ate , No. 01

- 08

- 00738

- CR, 2009 WL 4856202, at * 9 (Te x. App.

— Houston [ 1s t Dist.] Dec. 17, 2009 ,

n o pet.) (mem . op. , not designated f or publication) ( “ Becau se th er e is no evidence in
the re cord that affirmatively demonstrates th at trial coun sel ’ s fai lure to ob ject to the photographs was deficient, we must heed the strong presu m ption that trial counsel provided rea sonab le professional as sistance. ” ). Thus, a ft er re vi ewing the record in the light most fa vorable to the trial court ’s ruling on B augu s ’s motion for new t rial , we hold that Baugus has not proven that his trial counsel ’s repre s entation was defic ient
with re spect to coun sel ’s fail ure to object to th e co mplai ne d

- of photographs

. See

19 While Baugus ’ s trial counsel was asked at his depos ition and the hearing o n the motion for new tria l about seve ral aspects of his tria l performance , he was not asked about his fail ur e 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 Fa iled to

Investigate Witnesses Called Dur ing the P u ni shmen t Phase of His Tri a l Baugus next compla i ns th at his trial counsel f a i led to investigate wi tnesses called during the punishm ent phase of his trial

. Baugus ’s argument centers around the
fact th at his trial counsel called Scott Sch r oe der and John Coo per to testify during th e pun ishment pha se of his trial , a n d Baugus contends that their respective testimo ny was damaging

. Schroeder was a Commu nity Superv ision and Co rrec tion s De partment (CSCD)
officer ass igned to Tarrant County Cri minal District Cou rt No. 3

. At t h e puni s hment phase of Baugus ’ s trial, Schr oeder testif ied at length about the conditions of probation in Tarrant County. On cross ex aminatio n, Schroeder t estified ab out “ chronos ” kept by the C SCD on B augus, which Schroeder explai ned were cont a ct s that CSCD h a d
with individuals who were on bond or prob atio n. See Norman v. State , No. 13

- 10

- 0001 7

- CR, 2011 WL 2732673, at *1 n.1 (Tex. App.

— Corpus Christ

– Edinburg J uly
1 4, 2011 , no pet.) (mem. op. , n ot designated for publication ) ( “ The term ‘ ch ronos ’
refers to th e chronology of events set out in the rec ords from the probation department. Chronos include each and every office contact, field c on tact, and
collateral c o ntact with t he probation er. ” ). Sch roeder testified that those “ chronos ”38

revea le d pas t charge s brou ght agains t Baugus f or drug possession 20 a nd th at Baugus
had test ed positive for benzodiazepines while on bond

. 21 Accord i n g to B augus, calling Schr oeder as a w

itness “ c ame wi th exces sively prejudicial baggage concerning [Baug us ’ s] medical hi st ory and the hi story of his chronos. ” As to strategy, Baugu s ’ s trial counsel testifi ed that it was “ routine proce d u re to have the court offi cer t estify as to wha t the

-- pro ba ti oner or supervision records are,
what the y say. ” 22 Counsel also s aid, “ I know from experienc e and from doing this that the judge is g oing to allow a superv ising officer, you know, like a court officer, is going to allow tha t testimo ny as to the c hronos.

. . . I elected to go wi th the tes ti mony of the person that was av ailable. ”
A fter reviewing the record in the light most favorable t o the trial court ’s ruling
on B augu s ’s mot

i on f or new t rial , we hold that Baugus has not proven that hi s trial
counsel ’s repre s entation was defic ie nt with respect to calling Schr oeder as a witnes s d uri ng the punishm ent phase of his trial because there was a rea sonable , strategic
reason for that de c ision

— namely, th e in trodu ction of tes timony re gar ding the

20 Schroeder tes tified that on Jul y 29, 2008, Baugus had pled guil ty to a charg e of possess ion of marij uana and that he was pl aced on a “ si x
- month deferred adjudication pro ba tion ” relating to th at charge.

21 The State also asked wh ether CSCD would know “ that [Baugus] ha d 15 different doc tor s prescribing him 7 1 pre scr iptio ns si nce 2 01 8, ” a nd Schr oeder answered, “ No. ”

22 Baugus ’ s trial counsel a lso testifi ed that while Schroeder was assigned to Criminal District Court No. 3, he was a cting as the court office r for the 39 6t h District Co urt o n the day of hi s testi mony.39

pr obation process and because the trial cour t routinely allowed testimony fro m a supervi sing officer

. See Prine v . State , 537 S.W.3d 113, 118 (Tex. Crim. App. 2017) ( “ [T ]he decision to call [ the pr obation officer] as a wit ness was a s trategic choice that
in volved w eighin g the risks and benefits of hi s testimony

. . . . [T]his record does not
support a c onclusion that the attorney ’ s choice to put him on the stand was so outrageous that no other attor ne y would have done the s ame. ” ).
Mor eover, e ven if we assum e that Baugus ’ s trial counsel was deficien t in this
respect, w e cannot conclude that this failure preju diced Bau gus ’ s defense. In this

re gard, three j ur ors t estified at the hearing on Baugus ’ s m o tion for new trial. T he juror s w ere each ask ed whether B aug us ’ s sentence w ould have changed if Baugus h ad provided better evidence at punishment : one juror s tated, “ No, I don ’ t ” ; another stated, “ No, ma ’ am ” ; an d the o ther ju ror s tated, “ I don ’ t think so. ” T hus, e ven if Baugu s ’ s tria l counsel was d eficient by cal ling Schroeder as a witness d uring the punishme nt phase of B augus ’ s trial , Baugus has not shown pre judice. See S trickland , 466 U.S. at 694, 104 S. Ct. a t 2068 ; Nava , 415 S.W.3d at 308 ; see also Johnson v. State , 233 S .W.3d 109, 117 (Tex. Ap p.

— Houston [1 4th Dist.] 2007, no pet.) (ho ld ing that merely showing that cou nsel ’ s deficient conduct had some conc eivable effect on the proceedings was inadequate proof of pr ejudice for pur poses o f establishing ineffectiv e assistance of counsel).
With re spect to Cooper , the record reflects that Co o per was a frie nd of the Baugus fa mily who testified in support of Bau gus at the pun ishment phase of40

Baugus ’ s trial. Baugus argue s that Co oper was a poor choice of a wi tness, not in g that Cooper could re c all very little about B augus ’ s children wh en ask ed about them at trial. Baugus complains that Cooper was “ hastily ” c hose n by his trial counsel “ about ten
min utes pri or to the c ommen cement of the pun ishment hearin g to the jur y. ”
Ba ugus ’ s trial counsel explained that he c alle d Cooper as a witne ss because the Baugus family “ seemed intent that [Cooper]

. . . should testify beca use he knew th e family. ”
A fter re viewing the record in the light most favorable to the trial court ’s ruling on B augu s ’s motion f

or new t r ial , we hold that Baugus has not p roven that his trial
counsel ’s repre s entation w as deficient with respect to calling Cooper as a wi tnes s d uring the pun ishment phase of h is tria l because th ere was a reasonable, s trategic
reason for that decision

— namely b ec ause members of B augus ’ s family wa nted Cooper to testify because “ he knew the fam ily

. ” See Prine , 537 S.W.3d at 118 ; Sabins v.
Stat e , No. 03

- 18

- 00732

- C R, 2020 WL 3495859, a t *8 (Tex. App.

— Austin June 25,
2 020, n o pet. ) (mem. op. , not designated for publ ic ation) ( “ [T]he decision to call a witness is generally a matter of trial strategy. ” ). Moreover, even if we assume t hat Baugus ’ s tria l counsel was defici ent in this
respect, we c a nnot conclu de that this fai lure pr eju diced Baugus ’ s defen se. While two of t he ju rors who testified at t he hearing on B augus ’ s motion for new trial noted that Cooper seemed to not know Baugus w ell , none of the jurors indicated tha t Coo per ’ s testimony had a ny impact o n their sentenci ng deci sion s. To the contrary , one juror

was a sk ed whether Cooper ’ s testimon y had any influ ence on the juror ’ s decision to41

sentence B augus, and the juror responded, “ No , not at all. ” Moreover , as noted above, each of t he j urors we re asked whether Baugus ’ s sentence would have changed if Baugus h ad provided better evidence at punishment , and the responses were , “ No,
I don ’ t ” ; “ No, ma ’ am ” ; and “ I don ’ t think so. ” T hus, ev en if Baug us ’ s trial counsel

was de ficient by c alling C ooper as a witn ess during the punishme nt phase of B augus ’ s trial , Baugus has not show n 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 1 17

.

f
. Baug us ’ s Complaint That t he Cumulativ e Effect of H is Trial C ounsel ’ s Errors Cause d H im Substantia l Har m Finally, Bau gus co mpla ins that the cumulative effect of his tri al coun sel ’ s errors caused him substantial harm and led to his wrongful convic tion, or , at a min imum , le d

to the imposition o f a wron gful sentence
. But , as we ha ve alrea dy explained, Baugus ’ s

co unsel was not deficient, or even if he was defic ient in certain respects , B augus has
not demonstrated that he suff ered prejudice. Thus, Ba ugus ’ s cumulat i ve

- error

com plain t lacks merit beca use t here is no error to cumulate. S ee Be ll v. State , No. 02

- 18

- 00 244

- CR, 2019 WL 1967538, at *9 (Tex. App.

— Fort W orth May 2, 2019, pet.
ref ’ d) (mem. op., not desig nated for pu blication) ( “ Bell a rgues th at even if each o f his
pr evio us points do not consti tute harm suf ficient for reversal , th e ir c um ulative effect
does

. . . . But his individual points either do not demo nst rate reve rsible error or do not show that he was harmed. Therefore, there is no error to cumulate. ” ) ; B a k er v. State , No. 03

- 18

- 00240

- CR, 20 19 WL 1646 260, at *7 (Tex. App.

— Austi n Apr

. 17,42

2019, no pet.) (mem . op., not designated for publication) ( “ Here, B aker ’ s cumulative

error contention lacks merit because we have concluded

. . . th at one c omplai ned

- of

err o r was harmle ss and th at ther e was n o err or as to the remaining complaint s. ” ). We
overrul e Baugus ’ s fo urth point

. I V. C ON CLUSION
Hav ing overruled Bau gus ’ s four points, we affirm the tri al court ’ s judgment

. /s/ Dana Womack
Dana Womack Justice
Do No t Pu blish Tex. R. Ap p. P. 47.2(b )
Deliver ed : May 11, 2023