COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

J OHNNYCHESTER S AUNDE RS Appellant, V. THE STATE OF TEXAS, Appellee
. § § § § § § § No. 08-09-00013- CR

Appea l from the 422nd J udicial District Court of Ka ufman County , Texas (TC# 26454-422)

O P I N I O N J ohnny Chester Saunde rs appe als his conviction for two c ounts of ag g ravated sexual assault of a

child. Appellant wa s convicted by a jury , and sente nced to 12 year s’ imprisonment in the Institut ional Division of the Texas Depar tment of Criminal J ustice. On a ppeal, Appe llant raises se vera l issues challeng ing the trial court’ s admission of ext rane ous offe nse testimony , and a sing le issue in which Appe llant contends he suf fer ed fr om ineffe ctive assistanc e of c ounsel duringtrial. In J une of 2007, F .S., attended a youth camp org anized by the y outh pastor of the B aptist churc h her f

amily attended. D uringcamp, the y outh pastor’s wife lead a

discussion about the power of fa ith to overcome pe rsonal tra g edy . Eac h g roup member was e ncoura g ed to g ive a verba l “testimonial” about their own e x perie nces. F .S. was not able to ver balize her testimonial duringthe g roup discussion, but wrote a letter to the youth pastor’s wife when she returne d home. F.S. neve r deliver ed the letter . But, he r mother f ound the letter in e arly

J uly . In the letter,F.S. ac cused he r father of nume rous ac ts of sexual abuse. When Mrs. Saunders showe d

Appellant the letter , he took it to his workshop to read, but would not immediately discuss it with his wife. L ater , he ca lled his wife fr om work and sa id F.S. was lying. The followingevening , F.S. and he r mother we re unloa ding groce ries af ter a trip to W alMart, whe n F.S. aske d her mother if she could spe nd the nig ht at her c ousin’s house for a second time. Mr. Saunders ha d alre ady told F.S. she could not g o, and whe n her da ug hter a sked ag ain, Appellant bec ame a

ng ry and starte d y elling a

bout the letter, a

nd callinghis daug hter a

“liar” and other names. This was the f irst time F.S. knew anyone else knew a bout the letter. Mrs. Saunde rs called he r sister for

help, and the police arr ived shortly there afte r. F.S. desc ribed the a

buse in detail at trial. She testified that prior to her br other’s birth in Dec ember

1996, she re membere d sever al occ asions beingin the family ’s living r oom while her fathe r watched por

nog raphic videos. F.S. wa s three- y ear s-old at the time. On one of the
occa sions when Appellant wa s watching these videos, he made F .S. perfor m oral sex on him. On another occa sion, also involving the videos, Appe llant instructed F.S. to per form ora l sex on him, and then Appe llant perfor med ora l sex on F.S. On cr oss-examination, F.S. testified that L .W., who lived nex t-door to the fa mily , and was F .S.’s friend a

nd play mate at the time, a lso witnessed Appellant watching pornog raphic videos. L .W. later testified, over defe nse counse l’s objections, that occ asionally when she and F.S. wer e play

ing in the Saunde rs’ house she would see A ppellant watc hing por

nog raphic videos on the family ’s big scre en T.V. O n one occ asion when L .W was play ing w ith F.S. at the Saunders’ home, Appellant a sked the c hild to si t in his l ap in the living r oom. L .W. testi fied that Appellant proc eede d to put her hand down his pants, and place d his own hand down the g irl’s
-2-pants. Appellant c aused L .W. to fondle his penis, while he fondled the g irl’s vag ina. Then

Appellant took L .W. int o the bedr oom where a pornographic movie was play ing on the television, instructed the c hild to lay on the bed, a

nd continued to fondle he r vag ina. Appellant stopped, and L .W. left the house when Mr s. Saunders a rrived at the house. L .W. testi fied that she neve r told anyone about the a buse, includingF.S., until she was conta cted by the Kauf man County police about this ca se. Appellant testified in his own def ense at trial. Appellant denie d the alleg ations, and indicated that he believed that F.S. made up the a buse bec ause she was a fra id of, and wa s being manipulated by , her mother . He a lso hy pothesized that F.S. wrote the le tter followingchurc h camp be cause around that time, Appellant told the family that he intended to divorc e his wife. The divorc e, he thoug ht, could have some thing to do with F.S.’s de cision to make the
acc usations. When questioned about the two g irls’ testimony that they watche d pornog raphic movies with Appellant, he de nied the ac tivity , and stated “ Imean I ’m a soft-he arte d man, I couldn’t do any

thing like that.” The jury convicted A

ppellant of two c ounts of ag g ravated sexual assault of a c hild, for the abuse of F.S., and se ntence d him to twelve y ear s’ imprisonment. On appea l, Appellant ra ises four issues for

our re view. I ssues One, Tw o, and Thre e cha lleng e the tria l court’s a dmission of L .W.’s testim ony

over de fense counsel’s obje ctions. I n I ssue Four , Appellant conte nds he wa s denied his constitutional rig ht to effe ctive assistanc e of c ounsel. We addre ss the evidentiar y issues first. Prior to L .W.’s testim ony in front of the jury , the trial cour t hear d argument on defe nse counsel’s obje ctions to the y oung woman’s testimony . The prose cutor stated tha t L .W.’s
-3-testimony

would be off

ere d to rebut Appe llant’s frame-up or f abric ation defe nsive theories, a nd that defe nse counse l had opene d the door to the e vidence by cross-e x amining F .S. and Mrs. Saunders a

bout L .W. Defense counsel objec ted to the testimony on the basis that it was inadmissible ex trane ous offe nse evide nce, mor e pre judicial than proba

tive, and irre levant. See T E X .R.E V I D . 402, 403, and 404(b)
. We reviewthe trial cour

t’s decision to admit or exclude evidenc e for an abuse of discretion. Oprean v . State , 201 S.W .3d 724, 726 (Tex.Crim.App. 2006). Absent a demonstration that the cour t’s decision wa s outside the zone of rea sonable disag ree ment, the revie wing court should uphold the ruling
. Id . In the eve nt of an e rrone ous admission of evidenc e, we must sti ll determine the e rror was ha rmful bef ore the err or ca

n serve as a ba sis for
reve rsal. See T E X .R.A P P .P. 44.2; Villalobos v. State , 999 S.W .2d 132, 136 (Tex.App.--El Paso 1999, no pet.). In I ssue One, A

ppellant contends the trial court a bused its discretion by

allowing L .W. to testify beca use her testimony

was inadmissible extraneous off ense e vidence offe red to e stablish a criminal cha

rac ter. Rule 404 of the Texas Rules of Evidence prohibits an acc used fr om being tried for a collate ral c rime, or f

or havinga g ener ally

criminal cha

rac ter. T E X .R.E V I D . 404(b); W illiams v. State , 662 S.W .2d 344, 346 (Tex.Crim.App. 1983). Ex trane ous offe nse evide nce that has re levanc e to an issue other than cha rac ter c onformity , may

be admissible. T E X .R.E V I D . 404(b); Moses v . State , 105 S.W .3d 622, 626 (Tex.Crim.App. 2003). Rebuttal of a de fensive theory is one of the pe rmissible purposes for the admission of releva nt evidence which would otherwise r

un afoul of Rule 404( b). Moses , 105 S.W .3d at 626. In sexual assault cases in particula r, evide nce of

the extraneous off

enses a re pr operly

admitted to rebut a de fensive the ory -4-that the def endant is the victim of a f rame -up, or f

abric ation by

the complainant. W

heele r v. State , 67 S.W .3d 879, 887-88 n.22 (Te x .Crim.App. 2002). Duringher ope ning r emar ks in voir dire, def

ense c ounsel stated “[t]he only thing wor se than a c hild being se x ually assaulted is beingfalsely acc used of se x ually

abusinga child.” Duringclosing argument, defe nse counse l asked the jury to focus on F .S.’s cre dibilit y . She reiter ated the pote ntial dang er f or a de fenda

nt who is acc use of se x ually abusinga child. Counsel argued that the de lay

in reportingthe alleg ations, and the timing of F.S.’s outcr

y wer e suspicious, and fur ther a rgued that F .S.’s inability to rec all details about the a buse, or how ma

ny times it happene d cast serious doubt on F.S.’s cre dibilit y . The State a

rgues, in part, that L .W.’s testim ony was off ere d to rebut Appe llant’s fabr ication, or fr ame- up defe nse. DuringF.S.’s cr oss-examination, defense counsel implied that F.S. made- up the alleg ations beca use her pare nts were not ge tting alongat the time. Counsel spent much of F .S.’s examination asking the young woman whe ther she lied in he r letters a nd notes to her f

riends, knowingher mother would look throug h them, whether her mother

trusted her, whether

she kept sec rets fr om both her par ents, whethe r she wa s often in trouble, a nd whether her mother

was phy sically

abusive. Dur ing Mr s. Saunders’ e x amination, defe nse counsel indicated that F.S. made -up the a ccusations, or that her mother f orce d her to make a fa lse out-cry beca use of the disc ord in the marr iag e. F urthermor e, Appe llant testified that F.S. was beingmanipulated by

her mother

beca use of the divor ce, a

nd that the child made the acc usations out of fea r of Mrs. Saunde rs. Given the state of the re cord, w e find that the tria l court could have re asonably conclude d that L .W.’s testim ony

was not off

ere d purely

for c hara cter

confor mity purposes, but wa s offe red
-5-to rebut Appe llant’s defe nsive theory that F.S. was untruthf

ul, and fa bricated her

acc usations. As such, the c ourt’s dec ision to overrule Appe llant’s 404(b) objec tion, and permit L .W. to t estify , could not be an a

buse of discr etion. I ssue One is ove rruled. In I ssue Two, Appe llant challeng es the trial c ourt’s conc lusion that the probative value of L .W.’s testim ony

was not substantially

outweig hed by

its potentially

prejudicia l effe ct. Otherw ise admissible evidenc e may still be excluded if its probative va lue is substantially outweig hed by

the dang er of

unfair pr ejudice. See F

lores v. State , 299 S.W .3d 843, 858 (Tex.App.--El Paso 2009, no pet.) . Texas Rule of Evidence 403 favor s the admission of evidenc e, howe ver, a

nd car ried a presumption that the potentially prejudicia l effe ct of re levant evidenc e will not substantially outweig h its probative forc e. See id . When fac ed with an objection under

Rule 403, the trial cour

t must perform a ba lancing test to determine admissibili ty
. Id . Evidence is unfairly prejudicia l when it has “‘ an undue te ndency to sugg est that a dec ision be made on a n improper ba sis.’” Ree

se v. State , 33 S.W .3d 238, 240 (Tex.Crim.App. 2000). The bala ncingtest consists of an ana ly sis of: (1) how probative the evidenc e is; (2) the pote ntial of the evide nce to impre ss the jury in some irrational wa

y ; (3) the time the proponent will nee d to develop the e vidence ; (4) the pr oponent’s nee d for the e vidence , i.e., whethe r other e vidence is available, a nd whether

the fa ct of c onsequenc e is related to a disputed issue. Montgomery v. State , 810 S.W .2d 372, 389-90 (Te x .Crim.App. 1990)(op. on reh’ g ). In this inst ance , the trial cour t expl ained its balanc ing a naly sis on the rec ord. The c ourt explained that in light of Appe llant’s defe nsive theories, a nd the question of F .S.’s cre dibilit y as raised by Appellant, the pr obative value of L .W.’s testim ony was not substantially

outweig hed by
-6-the dang er of unfair pr ejudice. Under the se circ umstances, a nd g iven our prior

discussion of the evidenc e, we must also conclude the tr ial court’s de cision was not outside the zone of re asonable disag ree ment, and ther efor e did not constitute an abuse of discre tion. Accor dingly , I ssue Two is
overr uled. I ssue Thre e conta ins Appellant’s ar g ument that L .W.’s testim ony was inadmissible beca use it was irre levant. SeeT E X .R.E V I D . 401 and 402. The discussion of this iss ue is limit ed to two, double space d para g raphs statingthe standar d of re view for evidentiar

y err or, citingto the pag e in the re cord where defe nse counse l raised the obje ction, and then summarily concluding that the testimony

“did not make the e x istence of a fa ct that was ‘ of conse quence ’ to the deter mination of the ac tion more probable than it would be without the evidenc e.” The Te x as Rules of Appe llate Proce dure r equire an appe llant to provide the cour t with clea r and c oncise a

rgument, with appropriate citation to leg al authority and the r ecor d. See T E X .R.A P P .P. 38.1(i). Fa ilure to ade quately brief a n issue, results in waiver

of that issue. See McD uff v. State , 939 S.W .2d 607, 613 (Tex.Crim.App. 1997). Be cause Appellant’s br ief doe s not contain an a dequate discussion of the issue, the re levanc y challeng e is waive d, and I ssue Three is overrule d. In I ssue Four , Appellant ar g ues his trial attorney was c onstitut ionally

ineffe ctive due to a lack of “trial strateg y ” which he conclude s led counsel to “‘ open the door ’ to admission of an extraneous sexual assault offe nse.” The standard f or dete rmining c laims of ineffe ctive assistanc e of counse l under the Six th Amendment is the two-step a naly sis adopted by

the United States Supreme Court in Strickland v. W ashington , 466 U.S. 668, 104 S.C t. 2052, 80 L .Ed.2d 674 (1984). Unde r the fir st prong , the def endant must demonstrate that counsel’s pe rfor mance was -7-defic ient to such an e x tent that counsel fa iled to function as the “ counsel” g uara nteed by the Constit ution. Jack

son v. State , 877 S.W .2d 768, 771 (Tex.Crim.App. 1994). I n addition, counsel’s pe rfor

mance is supported by

a strongpresumption that it fell within the wide rang e of
rea sonable prof

essional assistance
. Strickland , 466 U.S. at 689, 104 S.Ct . at 2065. The revie wing court must consider the totality of the re prese ntation and the par ticularities of e ach
case in evaluatingeff

ectivene ss. See Thompson v . State , 9 S.W .3d 808, 813 (Tex.Crim.App. 1999). Only

if the def endant is succ essful in provingcounsel wa s deficie nt, will we consider the second pr ong of the a

naly sis, and inquire whe ther c ounsel’s def icient per formanc e pre

judiced the def ense. Strickland , 466 U.S. at 687, 104 S.Ct . at 2064; Jack son , 877 S.W .2d at 771. All alleg ations of ineff

ective a ssistance of c ounsel must be firmly founded in the r ecor d. Mallett v. State , 65 S.W .3d 59, 63 (Tex.Crim.App. 2001). It is the appellant’s burde n to establish a constitutionally

defic ient repr esentation by a pre pondera

nce of the evidenc e. See Thompson , 9 S.W .3d at 813. The r eviewingcourt will consider the entire ty

of the re cord f

rom counsel’ s perspe ctive duringtrial, rathe r than e ng ag e in a hindsig ht-driven a ssessment of isolated ac ts or omissions
. See J

ensen v . State , 66 S.W .3d 528, 543 (Tex.App.--Houston [14th Dist.] 2002, pet. ref ’d). An e rror

in trial strateg y

is sufficient to satisfy

the first prongof the Strickland analy sis if counsel’s a ctions lacke d any plausible basis. See J

ensen , 66 S.W .3d at 544. Appellant filed a

motion for new tria l, in part, based in his ar gument that defe nse counsel’s la ck of tria l strateg y lead to her

“openingthe door” for the e x trane ous offe nse evide nce to be admitted. Duringthe hea ringon the motion, the trial court hea rd testimony

from def ense counsel that he r def

ensive strategy

was to attac k the complainant’ s cre dibilit y . She testified further , that she anticipated the possibility that this particular de fense could “ope n the door,” and
-8-came to trial, rese arc hed and pr epar ed to pre sent ca se law on the issue in support of Appellant’s

position t hat the evide nce w as not admissible. Counsel admitted that the trial court’s r uling admitting L .W.’s testim ony into evidence was a

n unintended conse quence of the que stions related to Appellant’s de fensive the ory , but that her trial pr epar ation had bee n focuse d on avoiding the extraneous off ense e vidence
. In summary , counsel’s te stimony demonstrated that she did have a trial strategy

which she pursued throughout trial. She went to trial pre pare d to challeng e the a dmission of of L .W.’s testimony , beca

use althoug h she did not intend to open the door f or the a dmission of such evidenc e, she r ecognized the possibil ity g iven the basis of A

ppellant’s def

ense. B ased on the
rec ord deve loped throug h Appellant’s motion for ne w trial, as we ll as our re view of the rec ord of counsel’s r epre sentation as a whole, we c onclude Appe llant has not satisfied his burden to establish counsel’s pe rfor mance was de ficient. See M cFarland v. State , 928 S.W .2d 482, 500 (Tex.Crim.App. 1996). There fore , Appellant has f ailed to meet the f

irst prongof the Strickland analy sis. See J

ensen , 66 S.W .3d at 544. Acc ording ly , we ove rrule I ssue Four
. Havingoverr

uled all of Appe llant’s issues, we a ffirm the tria l court’s judg ment. May 5, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice

Be fore Chew, C.J ., Rivera, a nd L arse n, J J
. L arse n, J ustice (Sitting by Assignme nt)
(Do Not Publish)
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