Opinion
NUMBER 13-14-00189-CR
03-31-2016
DAVID ALAN LOTT, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 128th District Court of Orange County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Perkes
Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this appeal has been transferred to this Court from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.).
Appellant David Alan Lott appeals his conviction for sexual assault. See TEX. PENAL. CODE ANN. § 22.011 (West, Westlaw through 2015 R.S.). After a jury found appellant guilty, the trial court found appellant had previous sexual assault convictions in Colorado, and sentenced him to life in prison. See id. § 12.42(g) (West, Westlaw through 2015 R.S.). By four issues, appellant argues: (1) the evidence is insufficient to support the conviction; (2) the evidence concerning complainant's medical history should have been excluded; (3) the enhancement to a life sentence was improper; and (4) appellant received ineffective assistance of counsel. We affirm.
I. BACKGROUND
According to complainant, A.G., she first met appellant through a mutual friend. After that first meeting, she became Facebook friends with appellant, and the two began regular communications through social media. Several weeks after their initial meeting, appellant offered to help A.G. work on her car. A.G. and two of her friends met appellant at a car wash where he washed her car and performed an engine diagnostic. About a month later, A.G. contacted appellant through Facebook and requested more help with fixing her car. When the two met at Walmart, appellant told A.G. that her car needed new parts. Two days later, appellant again met A.G. at Walmart. She then drove her car to appellant's residence so he could work on her car.
We will use the complainant's initials to protect her privacy.
After arriving at the appellant's trailer, A.G. poured herself a mixed drink while appellant worked on her car. A.G.'s ex-boyfriend, Jacob Bland, arrived at appellant's residence and stayed until appellant finished the car repairs and began preparing dinner. Appellant refilled A.G.'s first drink and asked her to stay for dinner. A.G. accepted. When A.G.'s refilled drink was half-empty, she began to feel clammy and dizzy. She sat down on the couch inside appellant's home and told him that she did not feel well. Appellant prepared A.G. a bath, and when the tub was full, she entered the bathroom and locked the door behind her.
A.G. denied using any drugs while she was at appellant's house.
A.G. did not remember how long she was in the bath or whether she dressed after the bath. She did, however, remember waking up on the love seat in appellant's trailer, lying on her back, partially clothed, with soaking wet hair. She noted that the wet hair was unusual since she normally dries her hair after showering or bathing. She described feeling weak and immobile. Drool ran out of her mouth and down her arm. Her legs were across appellant's lap as he sat on the opposite end of the loveseat. A.G. stated appellant was putting his fingers into her vagina.
A.G. lost consciousness and later woke up lying face down on appellant's bed. She sent Bland a text asking for help before again losing consciousness. Her next memory was waking up the following day at her friend Arthur's house. A.G. denied having any consensual sexual contact with appellant. A.G. explained that she did not initially report the incident, but after suffering an infection that she attributed to the alleged assault, she notified the police.
Detective L.B. Cupit testified that he interviewed appellant after receiving the complainant's report. Appellant's written statement, which he provided to Detective Cupit, was introduced at trial. Appellant's version of events diverged from A.G.'s, beginning with the time the two met at the car wash. He claimed that he and A.G. met a second time at the car wash where A.G. performed oral sex on him. He also claimed that later, when the two met at appellant's home, they had consensual sex twice. According to appellant, after they had sex, and while he was preparing dinner, A.G. smoked synthetic marijuana and became aggressive. He denied making her a mixed drink, but claimed that A.G. had drunk too much to drive. After dinner, A.G. took a shower and went to sleep while appellant watched a movie. Appellant stated that when Bland came to pick up A.G., she was acting very intoxicated due to smoking synthetic marijuana and drinking alcohol. Appellant claimed that Bland told him that A.G. had a problem with Xanax. Appellant also stated that he found a pipe and a pouch of synthetic marijuana in his bathroom; he concluded that A.G. was smoking in the bathroom.
Jacob Bland's testimony was largely consistent with A.G.'s. He testified that he met A.G. at appellant's residence and stayed approximately thirty minutes. In Bland's presence, A.G. appeared completely sober, although he admitted that she smoked some marijuana while at appellant's home. Bland left and went to his grandparents' house where he remained for approximately thirty to forty-five minutes. Then, Bland started receiving text messages from A.G. that made no sense. Although the text messages were just letters, Bland deciphered the word "help." He returned to appellant's home and knocked on the door. A shirtless appellant answered the door and asked Bland what he was doing there. Bland entered the trailer and found A.G. in appellant's bedroom. He stated that A.G. was unconscious and drooling and that her hair was wet. Bland carried A.G. to his truck and took her to his friend Arthur's house. He denied telling appellant that A.G. abused Xanax; rather, it was appellant who suggested that A.G. had taken Xanax.
A.G.'s friend Brooke Anderson testified that she was at the carwash with A.G. when she met with appellant. She stated that she was with A.G. the entire length of time they spent at the carwash, and that A.G. was never alone with appellant. Anderson denied that A.G. performed oral sex on appellant at the car wash.
The jury found appellant guilty of sexual assault. During the punishment phase, the State introduced appellant's 1984 Colorado convictions, where appellant pleaded guilty to sexual assault of a child (punishable by one to eight years', plus one year of parole) and to third-degree sexual assault (punishable by six to twenty-four months). Kevin Breshears, the criminal investigator for the Orange County District Attorney's Office, testified that he compared the fingerprints that he took from appellant with the fingerprints from the prior conviction paperwork and concluded that the fingerprints were from the same person. The trial court took judicial notice of the Colorado statute 18-3-404, unlawful sexual contact. Based on the prior conviction, the trial court enhanced appellant's punishment to life imprisonment. This appeal ensued.
According to the punishment record, the State relied on appellant's conviction for third-degree sexual assault for purposes of enhancement.
Appellant filed a motion for new trial arguing, among other things, that he received ineffective assistance of counsel. His motion for new trial was overruled by operation of law.
II. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant argues the evidence is insufficient to support the jury's determination that he committed the charged offense beyond a reasonable doubt. Specifically, appellant contends that A.G. testified appellant penetrated her with his finger, rather than his penis, as alleged in the indictment. Appellant concludes that because the State alleged that appellant committed the sexual assault by penetration with his penis, and because no proof of penetration with his penis was offered at trial, the evidence is insufficient to support the conviction.
In its indictment, the State alleged that appellant, in pertinent part: ". . . . on or about April 26, 2012 . . . . did then and there intentionally and knowingly cause the penetration of the sexual organ of [A.G.] by his penis, without the consent of [A.G]."
A. Standard of Review and Applicable Law
"The standard for determining whether the evidence is legally sufficient to support a conviction is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original); see Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010) (plurality op.). "The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence." Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc) (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). Juries are permitted to make reasonable inferences from the evidence presented at trial, and circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).
We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). 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 unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. To prove the offense of sexual assault, as alleged in the indictment, the State must prove that appellant intentionally or knowingly caused the penetration of A.G.'s sexual organ with his penis, without A.G.'s consent.
Sex offenses are nature-of-conduct crimes, and different types of conduct specified in the various statutes are treated as separate offenses. Huffman v. State, 267 S.W.3d 902, 906 (Tex. Crim. App. 2008). As a result, the jury was required to find that appellant penetrated A.G.'s sexual organ with his penis. See Johnson, 364 S.W.3d at 296 (alternative statutory methods of committing sexual assault are considered different offenses).
B. Analysis
Appellant argues that his sexual contact with A.G. was consensual. Appellant signed a written confession where he admitted to having sex with A.G. on two occasions on April 26, 2012. A.G., however, expressly denied having any consensual sexual contact with appellant. The jury was permitted to consider A.G.'s testimony about her physical and mental condition, coupled with Bland's description of finding A.G. incapacitated within roughly forty-five minutes of his last seeing her, and make the rational inference that any sexual contact between A.G. and appellant—including the sexual activity admitted by appellant—was not consensual.
Appellant also argues that there is no proof of penetration with his penis, as alleged in the indictment. In his confession, however, appellant stated that A.G. "and I went into my house and we had sex twice. We went into my bedroom, got necked [sic] and had sex." (emphasis added). Inasmuch as he had made specific reference to oral sex in other portions of his confession, but not here, the jury could have inferred that appellant engaged in vaginal sex with complainant rather than oral sex based upon this testimony. Moreover, A.G. testified that she does not remember dressing after her bath, yet she woke up on appellant's loveseat partially clothed. According to A.G., the only time that she was naked was when she was in the bath, and when she awoke, she had no motor control, and could not walk or talk. In addition, A.G. testified that she told her gynecologist that she did not feel well after the sexual assault, and that the problems and infection that she had were the result of appellant having sexual intercourse with her. The jury could have inferred from A.G.'s and appellant's testimony that appellant removed her from the bath, penetrated her sexual organ with his penis, then put some of her clothes back on.
The jury was permitted to choose to believe some testimony and disbelieve other testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Appellant's argument disregards the additional evidence presented to the jury, as well as the reasonable inferences the jury was permitted to make based on that evidence. See Hooper, 214 S.W.3d at 14. The jury's conclusion that appellant had vaginal sex with A.G. without her consent is a reasonable inference from the evidence presented at trial. See Wesbrook, 29 S.W.3d at 111; Hooper, 214 S.W.3d at 14. We conclude that the evidence is sufficient to support the conviction as alleged in the indictment. See Johnson, 364 S.W.3d at 293-94. Appellant's first issue is overruled.
III. EVIDENTIARY CHALLENGE
By his second issue, appellant argues the infection evidence was inadmissible and should have been excluded. Specifically, appellant complains that the evidence was admitted in violation of Texas Rules of Evidence 401 and 403 and that his substantial rights were harmed by its introduction.
A. Preservation
Preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion. See Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007) (citing Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 2007)). To preserve error, an appellant must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a); see Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007).
B. Analysis
Appellant never objected to testimony about A.G.'s infection. The jury first heard testimony about A.G.'s infection from Detective Cubit on direct examination from the State. Appellant failed to object. The jury again heard about the infection from A.G. briefly on direct examination as well as more thoroughly on cross-examination. Appellant again failed to object to this testimony. We conclude that appellant failed to preserve this issue because appellant failed to raise a timely objection to the evidence that he now complains about on appeal. TEX. R. APP. P. 33.1(a); see Griggs, 213 S.W.3d at 927. Appellant's second issue is overruled.
IV. LIFE SENTENCE ENHANCEMENT
By his third issue, appellant argues the enhancement to an automatic life sentence under Texas Penal Code Section 12.42(g) was improper and constitutes reversible error. By two sub-issues, appellant contends: (1) the evidence admitted at punishment was insufficient to establish appellant was convicted of a prior offense beyond a reasonable doubt; and (2) the State failed to establish, and failed to present sufficient evidence to establish, that the Colorado convictions for third degree sexual assault were substantially similar to an offense listed in section 12.42(c)(2)(B).
A. Evidence of Prior Conviction
We first examine whether the State proved beyond a reasonable doubt that appellant was convicted of prior offenses in Colorado. Appellant argues that the State failed to link him to the Colorado convictions.
1. Standard of Review
We review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the enhancement paragraphs to be true beyond a reasonable doubt. Jaynes v. State, 216 S.W.3d 839, 845 (Tex. App.—Corpus Christi 2006, no pet.); see Brooks, 323 S.W.3d at 912 (citing Jackson, 443 U.S. at 319).
2. Applicable Law
To establish that a defendant was convicted of a prior offense, the State must prove beyond a reasonable doubt (1) a prior conviction exists, and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific document or mode of proof is required to prove these two elements. Id. A certified copy of a final judgment and sentence is one method of proving them. See id. The factfinder "fits the pieces of the jigsaw puzzle together and weighs the credibility of each piece," looking to the totality of the evidence to determine whether both elements are proven beyond a reasonable doubt. See id. at 923.
3. Analysis
State's exhibit 4 is a certified copy of a "final charge disposition" from Colorado which shows that on July 25, 1984, "David Allan Lott" pleaded guilty to charges of third degree sexual assault and sexual assault of a child. It includes the date of birth, personal descriptors, and social security number for "David Allan Lott." State's exhibit 4 also includes a certified copy of a fingerprint sheet with a set of fingerprints taken from "David Allan Lott." The fingerprint sheet, prepared on June 19, 1984, included the same date of birth, personal descriptors, and social security number as the charge disposition.
Appellant argues that the State failed to link the fingerprint sheet to the final charge disposition, suggesting that the two may be unrelated. We disagree. Both the charge disposition and fingerprint sheet contained the same charge information, the same date of arrest, and the same "local arrest number," as well as the information noted. The evidence was sufficient in this regard.
Appellant next argues that there is no testimony to link these prior convictions to him. Again, we disagree. The State introduced State's exhibit 5, which consists of two pages of fingerprints of "David Allan Lott." The first page is initialed "KCB" and indicates a date of February 16, 2014. The second page is signed and dated the same as the first. Kevin Breshears testified that he prepared the fingerprints in State's exhibit 5 and compared those fingerprints to the certified fingerprint card in State's exhibit 4. Breshears concluded the fingerprints came from the same person.
The trial judge, as a reasonable trier of fact, found that the totality of the State's evidence proved the enhancement paragraph true beyond a reasonable doubt. See Flowers, 220 S.W.3d at 921. We hold the evidence is sufficient to support his finding. See Jaynes, 216 S.W.3d at 845.
B. Substantially Similar Elements
By his second sub-issue, appellant argues the trial court incorrectly determined that the Texas and Colorado statutes are substantially similar. In response, the State argues that the Colorado statute under which appellant was convicted is substantially similar to the Texas statute of Indecency with a Child. See TEX. PENAL CODE ANN. § 21.11 (West, Westlaw through 2015 R.S.). The record shows that the State relied solely on appellant's prior conviction for third degree sexual assault for purposes of enhancement. Resolution of this issue requires us to interpret Texas and Colorado law.
Appellant also asserts that because the Colorado offense was committed in 1984, the current version of the Colorado statute cannot be used to meet the State's burden of proof under 12.42(g). Appellant contends the trial court erred by taking judicial notice of the current version of the Colorado statute. This argument is waived because appellant failed to raise such an objection in the trial court. Therefore, for our analysis, we will use the current version of the Colorado statute. See Castle v. State, 402 S.W.3d 895, 898 n.1 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding appellant waived complaint on appeal that the trial court, for purposes of enhancement, incorrectly relied on a current version of the statute rather than the 2002 version); see also TEX. R. APP. P. 33.1.
1. Standard of Review
Statutory construction is a question of law we review de novo. Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011); Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009). In construing a statute, we must "seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation." Harris, 359 S.W.3d at 629 (quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (en banc)). "We look first to the statute's literal text, and 'we read words and phrases in context and construe them according to the rules of grammar and usage.'" Id. (quoting Lopez v. State, 253 S.W.3d 680, 685 (Tex. Crim. App. 2008)); see Jones v. State, 323 S.W.3d 885, 888 (Tex. Crim. App. 2010). "We must 'presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.'" Harris, 359 S.W.3d at 629 (quoting State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997) (en banc)). Only if the statutory language is ambiguous or leads to absurd results that the Legislature could not have possibly intended, may we consult extra-textual sources. Id.; see Jones, 323 S.W.3d at 888; Boykin, 818 S.W.2d at 785.
2. Applicable Law
Section 12.42 of the Texas Penal Code provides that if a defendant is convicted of certain sexual offenses and has a prior conviction for one of the sexual offenses listed in section 12.42(c)(2)(B), the punishment is an automatic life sentence. Anderson v. State, 394 S.W.3d 531, 535 (Tex. Crim. App. 2013); see TEX. PENAL. CODE ANN. § 12.42(c)(2)(B). The legislature mandates the automatic "two strikes" enhancement to life imprisonment if the "defendant has previously been convicted of an offense . . . under the laws of another state containing elements that are substantially similar to the elements of an [enumerated Texas] offense." Anderson, 394 S.W.3d at 535.
In determining whether an out-of-state sexual offense contains "substantially similar" elements, courts use a two-pronged approach. See Prudholm v. State, 333 S.W.3d 590, 593-95 (Tex. Crim. App. 2011). First, we must determine whether the elements of each offense "display a high degree of likeness." Id. at 594. Generally, but not always, our analysis focuses on the elements of the offense. Anderson, 394 S.W.3d at 536. Next, we must analyze whether the elements are substantially similar with respect to the individual or public interests protected and the impact of the elements on the seriousness of the offense. Id. The second prong is a two-step analysis. Id. We must determine whether there is a similar danger to society that the statute seeks to prevent, and then whether the class, degree, and punishment range of the two offenses are similar. Id.
a. Colorado Statute
The pertinent Colorado statute provides:
Unlawful Sexual Contact
(1) Any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if:
(a) The actor knows that the victim does not consent; or
(b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or
(c) The victim is physically helpless and the actor knows that the victim is physically helpless and the victim has not consented; or
(d) The actor has substantially impaired the victim's power to appraise or control the victim's conduct by employing, without the victim's consent, any drug, intoxicant, or other means for the purpose of causing submission; or
(e) Repealed by Laws 1990, H.B.90-1133, § 25, eff. July 1, 1990.
(f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority, unless incident to a lawful search, to coerce the victim to submit; or
(g) The actor engages in treatment or examination of a victim for other than bona fide medical purposes or in a manner substantially inconsistent with reasonable medical practices.
COLO. REV. STAT. § 18-3-404 (2013).
(1.5) Any person who knowingly, with or without sexual contact, induces or coerces a child by any of the means set forth in section 18-3-402 to expose intimate parts or to engage in any sexual contact, intrusion, or penetration with another person, for the purpose of the actor's own sexual gratification, commits unlawful sexual contact. For the purposes of this subsection (1.5), the term "child" means any person under the age of eighteen years.
(1.7) Repealed by Laws 2010, Ch. 415, § 1, eff. July 1, 2012.
(2)(a) Unlawful sexual contact is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501(3).
. . .
"Sexual contact" means the intentional touching of the victim's intimate parts by the actor, . . . or the intentional touching of the clothing covering the immediate area of the victim's . . . [external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person] if that sexual
contact can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse.Id. § 13-3-401(4) (2013).
b. Texas Statute
The pertinent Texas statute provides:
Indecency with a Child
(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or
(B) causes the child to expose the child's anus or any part of the child's genitals.
. . .
(c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
See TEX. PENAL. CODE ANN. § 21.11.
(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.
3. Analysis
After evaluating the Prudholm factors, we conclude that the Colorado and Texas statutes contain substantially similar elements. See Prudholm, 333 S.W.3d at 593-95. For the purposes of our Prudholm analysis, we will consider subsection 1.5 of the Colorado statute. See Castle v. State, 402 S.W.3d 895 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
There is evidence in the record that the victim of the Colorado offenses was a child under the statutory definition.
a. Degree of Likeness
Both statutes criminalize the same type of conduct using similar approaches. While the Colorado statute prohibits a wider range of touching with respect to adult victims than the Texas statute, it also includes specifically prohibited touching of child victims. Like the Texas statute, Colorado's unlawful sexual contact statute prohibits touching of the victim's "external genitalia, anus, or breast." COLO. REV. STAT. § 18-3-404 (2013). Also similar to Texas, the prohibited touching may be accomplished through the victim's clothing. The statutes further limit the age of the victim—18 for Colorado and 17 for Texas. See Prudholm, 333 S.W.3d at 594 (explaining that a one-year age difference in different states statutory definitions of "child" is a good example of elements that are substantially similar, but not identical). Neither statute contains a consent element with respect to child-victims.
After analyzing the elements of each statute, we conclude the minor differences between the two statutes do not manifest an intent to punish different prohibited conduct. As a result, the statutes meet the first prong of Prudholm. See id. at 593-94.
b. Individual or Public Interests Protected
The interest protected by the "child" portion of the Colorado unlawful sexual contact statute is clear. The statute aims to safeguard children from improper sexually-motivated contact. See Castle, 402 S.W.3d at 908. Likewise, the Texas indecency with a child statute protects the same public interest. Both statutes serve the same public interest by criminalizing the same type of contact motivated by sexual desire. See Anderson, 394 S.W.3d at 536; Castle, 402 S.W.3d at 908.
c. Impact of the Elements on the Seriousness of the Offense
The Texas offense of indecency with a child is a second-degree felony, punishable by two to twenty years' imprisonment. See TEX. PENAL. CODE ANN. §§ 12.33, 21.11 (West, Westlaw through 2015 R.S.). The Colorado statute for both child and adult victims is a class 1 misdemeanor categorized as an "extraordinary risk" and punishable by up to two years' imprisonment. See COLO. REV. STAT. § 18-1.3-501 (2013). In Prudholm, the Texas Court of Criminal Appeals concluded that the California offense of sexual battery did not satisfy this requirement with respect to the Texas offenses of sexual assault or aggravated kidnapping. See Prudholm, 333 S.W.3d at 599-600. The California offense was a misdemeanor with a sentence of up to six months in prison, while Texas sexual assault is a second-degree felony with a sentence of up to twenty years' in prison. We conclude that this factor weighs against a finding that the statutes are "substantially similar."
d. Summary
No single factor in the analysis is dispositive, so we must weigh all factors before making a determination. Anderson, 394 S.W.3d at 537. After considering each of the Prudholm factors, we conclude that the elements of the two statutes—the Colorado offense of unlawful sexual contact and the Texas offense of indecency with a child—are "substantially similar." Both statutes seek to criminalize specific sexual acts against children. While the penalties for such conduct are less severe in Colorado than in Texas, the "degree of likeness" and similar "interests protected" outweigh the sentencing variation. We conclude the trial court correctly found that the two offenses are substantially similar. See Prudholm, 333 S.W.3d at 600. Appellant's third issue is overruled.
V. INEFFECTIVE ASSISTANCE CLAIM
By his fourth issue, appellant argues he received ineffective assistance of counsel. Specifically, appellant asserts that his counsel was ineffective for failing to object to or seek exclusion of the testimony regarding the complainant's infection, and for failing to object to the State's punishment evidence.
A. Standard of Review and Applicable Law
To prevail on an ineffective assistance claim, appellant must show (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); Jaynes, 216 S.W.3d at 851. Our review of counsel's representation is highly deferential, and we will find ineffective assistance only if appellant rebuts the strong presumption that his counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142; Jaynes, 216 S.W.3d at 851. The record must contain evidence of counsel's reasoning, or lack thereof, to rebut the presumption. Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref'd). We review the totality of the representation rather than isolated instances in determining whether counsel was ineffective. See Lopez, 343 S.W.3d at 143; Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prevail on a claim based on failure to object to the admission of evidence, a defendant must demonstrate that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). Counsel does not render ineffective assistance by failing to object to admissible evidence. See Lee v. State, 29 S.W.3d 570, 577-78 (Tex. App—Dallas 2000, no pet.); Cooper v. State, 707 S.W.2d 686, 689 (Tex. App—Houston [1st Dist.] 1986, pet. ref'd).
When, as here, ineffective assistance was first urged in a motion for new trial, we review the two Strickland prongs through the prism of the abuse-of-discretion standard. See Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—Corpus Christi 2011, pet. denied); State v. Gill, 967 S.W.2d 540, 542 (Tex. App.—Austin 1998, pet. ref'd). A trial court abuses its discretion when no reasonable review of the record could support the trial court's ruling. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012).
B. Analysis
Appellant argues his trial counsel was ineffective for failing to object to A.G.'s testimony about her infection because such testimony was irrelevant, highly prejudicial, and inadmissible. Alternatively, appellant argues his trial counsel should have cross-examined A.G. more thoroughly about the infection. Appellant asserts that A.G. told the jury that she contracted a sexually transmitted infection that could have only come from appellant, and that the infection resulted in two surgeries. Appellant also argues that his trial counsel was ineffective for failing to object to the State's punishment evidence, and for failing to object to the trial court's ruling taking judicial notice of the Colorado statute for purposes of enhancement.
The State filed medical records related to A.G.'s infection as part of the Clerk's Record pursuant to a business records affidavit. See TEX. R. EVID. 902 (10)(a). The medical records, however, were never introduced at trial.
We conclude that appellant failed to overcome the strong presumption that his trial counsel rendered effective assistance. See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). The record is wholly silent regarding trial counsel's reasons for his acts or omissions or the particular strategy being pursued in that regard.
Although appellant generally claims that trial counsel was ineffective, he does not provide any argument that there is a reasonable probability that the result of his trial would have been different but for trial counsel's alleged errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); see Strickland, 466 U.S. at 694. Appellant must make such a showing under the second prong of Strickland. See Strickland, 466 U.S. at 687; see also Thompson, 9 S.W.3d at 813 (the burden is on appellant to prove ineffective assistance of counsel by a preponderance of the evidence); Bessey v. State, 199 S.W.3d 546, 555 (Tex. App.—Texarkana 2006) (finding briefing waiver where appellant made no effort to show how the record demonstrated prejudice under Strickland's second prong), aff'd, 239 S.W.3d 809 (Tex. Crim. App. 2007); Peake v. State, 133 S.W.3d 332, 334 (Tex. App.—Amarillo 2004, no pet.) (overruling appellant's ineffective assistance of counsel claim due to inadequate briefing and noting the appellate court has "no duty to unilaterally fill the void appellant left" by his briefing).
Accordingly, we overrule appellant's fourth issue.
VI. CONCLUSION
We affirm the trial court's judgment.
GREGORY T. PERKES
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 31st day of March, 2016.