Opinion
No. 08-16-00024-CR
02-28-2018
MARTIN MAYNES, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from 120th District Court of El Paso County, Texas (TC # 20140D02825) OPINION
A jury found Martin Maynes guilty of two counts of sexual assault on a child and one count of indecency with a child. On appeal, he contends that trial counsel was ineffective in failing to exclude his confession. For the reasons that follow, we affirm.
FACTUAL SUMMARY
We set out only the fact necessary to resolve the appeal. Appellant was married to Sylvia Maynes, and they lived with A.H. A.H. is the biological child of one of Sylvia's relatives, but for reasons unclear in our record, she had lived with Sylvia and Appellant since she was one year old. Nonetheless, A.H. referred to Appellant as her father.
On the evening of July 7, 2013, Appellant attended a party with his family. He drank both beer and a mixed beverage. He was thrown out of the party between 10:00 and 11:00 p.m. for fighting with a relative. Appellant, along with Sylvia, A.H., and some of Appellant's relatives returned to his house. A.H. went to sleep in her bedroom around 1:30 a.m. Sylvia went to sleep around 2:00 a.m. Appellant continued to drink until around 3:00 a.m.
According to A.H., Appellant went into her bedroom three times that morning, the first time around 3:00 a.m. He unlocked her door, awakened her, and asked if she wanted him to pay her cell phone bill. She said no and he left. At trial, she said his question was "weird" and she did not know why he would ask it. In a hospital record, however, she claimed this question was something of a proposition, and it meant he wanted "something sexually back in return." About an hour later, Appellant unlocked her door and again asked about paying her cell phone bill. She again said no, and he left.
The door locked from the inside, but apparently could be unlocked from the outside with a butter knife.
The third time, Appellant came into A.H's bedroom, pulled her covers back, and removed her shorts and underwear. A.H. testified that he then penetrated her vagina, both orally and digitally. She tried to push him off, but he pinned her hands. He also put his hand over her mouth when she tried to call out. He stopped when he heard the alarm, set for 5:00 a.m., go off in his adjacent bedroom. A.H. was 15 years old at the time.
Sylvia awoke to the 5:00 a.m. alarm and noticed that Appellant was not in bed. She looked for him, and the testimony conflicted as to whether she saw Appellant coming out of A.H.'s room or she saw him kneeling by her bed. When he saw his wife, Appellant claimed that he was only checking on A.H. Sylvia, however, noticed that A.H. was wide-eyed and shaking, and when Sylvia lifted the bed covers, she saw that A.H. was unclothed from the waist down. Sylvia then confronted Appellant who eventually acknowledged that he was doing more than simply checking on A.H.
According to Sylvia (who had divorced Appellant and changed her last name by the time of trial), Appellant said, "Sorry, Babe. Sorry. I just told her to take them [her shorts and underwear] off because I was going to pay her cell phone." He convinced Sylvia to stay at the house until he sobered up and they could talk, but while in their bedroom, he retrieved a knife and said, "F**k it. I got caught. I'm going to kill you. I'm going to kill [A.H.], and I'm going to kill myself." He eventually fell asleep and Sylvia left the house to find A.H., who had by this time, left the house on her own.
A.H. left the house and went to the nearby residence of her biological sister. She made an outcry to her sister that Appellant had been molesting her. Sylvia was eventually able to locate A.H., and took her to another nearby relative's house. From there, she called the police, and reported to a responding officer that Appellant had sexually assaulted A.H. that morning. A.H. confirmed that claim with the responding officer, a detective, and a forensic nurse. Later that day she also for the first time reported to investigators that Appellant had touched her inappropriately in December 2012 when she was 14. On that occasion, he got into bed with her and put his hand on her breast. She began locking her door after that night.
Appellant was indicted for two counts of sexual assault for the July 7, 2013 incident (digital and oral penetration), and one count of indecency with a child for the December 2012 incident. At trial, A.H. and Sylvia testified to the events we describe above. Testimony from the responding police officers, a detective, the forensic nurse examiner, and A.H.'s biological sister confirmed several aspects of her testimony. This appeal focuses on an additional piece of evidence--a videotaped confession--taken the afternoon of July 7, 2013. We recount the circumstances surrounding that confession in more detail.
THE CONFESSION
As the police began investigating the incident on the morning of July 7, one police officer parked his police cruiser just down the street from Appellant's residence. Shortly before 10:00 a.m., he observed a female drive her car into the chain-linked fence in front of Appellant's house. She entered the house and the female and Appellant could be heard loudly arguing from outside the residence. The police officer then entered the house with his weapon drawn. He ordered Appellant and the female to exit the premises.
After confirming Appellant's identity, and knowing him to be the suspect in the sexual assault, the officer had Appellant sit un-handcuffed in the police cruiser. Appellant was dressed in only a pair of blue jeans and footwear. Appellant asked to go back into the house to obtain a shirt. The officer refused the request given that the house might be considered a crime scene. The officer also denied Appellant's initial request to get a drink of water from a garden hose because the officer thought it might interfere with the collection of evidence since the officer understood that Appellant had "touched her inappropriately with his mouth." An investigating detective relayed a message to the officer to ask if Appellant would be willing to tell his side of the story at the police station. Appellant agreed, and an officer transported him to the station. At 1:30 p.m. or 1:45 p.m., the police allowed Appellant to get a drink of water and use the restroom.
Two female detectives interviewed Appellant at 3:30 p.m. that afternoon. The videotaped interview took a little over thirty minutes. In the video, Appellant appears seated on one side of a table and wearing no shirt. Appellant has several tattoos on his arms and chest. A detective advised Appellant that he was a suspect in a sexual assault investigation. She then read Appellant his rights as mandated by Miranda v. Arizona and TEX.CODE CRIM.PROC.ANN. art. 38.22 § 2(a)(1)-(5)(West Supp. 2017). Appellant signed a card acknowledging those rights, and waived the right to an attorney and the right to remain silent.
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
At the outset of the interview, Appellant claimed that he got up in the morning and when he went to check on A.H., his wife for no reason started slapping him. While he acknowledged getting drunk at the party the night before, he denied doing anything to A.H. As the detectives confronted him directly with the specific accusations, Appellant began to claim that he did not recall anything that had happened that morning.
The detectives then employed several interview techniques designed to "play on [a suspect's] guilty conscience." The techniques included "minimization" in which the interviewer suggests that the crime is not as bad as it may sound. Here, the detectives suggested that Appellant may have only made a mistake because he was drunk. Another technique uses "deception." In this interview, one of the detectives stated that they had "found evidence" on A.H. The detective then stated that the police could find DNA in salvia and match it to Appellant. As it turns out, while swabs were taken from A.H., there was no sample that implicated Appellant. The detectives also stated that the interview was Appellant's only chance to tell them what had happened. The detective would later concede that a person charged with a crime has another opportunity, such as testifying at trial, to present their side of the story.
The technique that elicited Appellant's actual confession, however, was the "blame the victim" technique. When the detectives suggested that A.H. might have invited the sex, Appellant finally acknowledged having oral contact with her vagina that morning. Ultimately, Appellant admitted to orally penetrating A.H., though he continued to deny that he penetrated her with his fingers. He acknowledged trying to touch A.H. in December 2012, but was not able to because she pushed him away.
THE MOTION TO SUPPRESS
Appellant filed several Motions to Suppress that generally claimed the police obtained Appellant's statements through coercive means, thereby rendering the statements involuntary under state and federal law. The trial court heard the motions immediately following voir dire. At the hearing, a police officer testified to the events surrounding Appellant's initial detention and eventual transport to the police station. One of the detectives explained the interview techniques used to elicit the confession. The videotaped statement itself was admitted at the hearing. Appellant called no witnesses.
At the hearing, Appellant's counsel argued that the videotaped confession should be suppressed because: (1) Appellant did not have a shirt on, and the prejudice of that would outweigh any probative value of the statement; (2) the detectives had made false statements to Appellant, such as claiming to have DNA evidence when they did not; and (3) Appellant was "detained for about seven or eight hours at that point in the back of a police car, with no shirt on." Appellant's cross-examination of the police officer established that Appellant had requested but was denied access to a shirt from his house that morning. Appellant had been kept in the back of the police cruiser for three hours, without water or access to a bathroom, until he was transported to the station. Appellant's counsel elicited from the detective that she had lied during the interview, including that she claimed to have DNA that implicated Appellant.
In the actual recorded interview, however, the detective only stated that they found evidence on A.H., and then the detective suggested what a DNA analysis could show.
The State responded by claiming that the police were initially justified in not allowing Appellant to retrieve a shirt from the house because it was a crime scene. While at the police station, Appellant never asked for a shirt, and never said he was uncomfortable being interviewed without a shirt. The State cited two leading cases to the trial court that address when and how the police can use deception in an interview. The State also elicited evidence that Appellant appeared coherent and was responding on cue to the questions asked.
Green v. State, 934 S.W.2d 92 (Tex.Crim.App. 1996); Mason v. State, 116 S.W.3d 248 (Tex.App.--Houston [14th Dist.] 2004, pet. ref'd).
The trial court denied the motion, finding that the State complied with TEX.CODE CRIM. PROC.Ann. art. 38.22. While the trial judge had concerns with Appellant appearing shirtless in the interview, Appellant never asked for a shirt while at the station, and the police officer that morning had good reason not to let Appellant back into his house. After "balancing" the interests, the trial court found no basis to exclude the video because Appellant was shirtless. Finally, the trial court noted that deception is one of the tools available to law enforcement in conducting interviews. The court declined to suppress the statement on that basis, but acknowledged that any deception might influence whether the confession was voluntary and further suggested that a jury might reach a different result.
At trial, the State introduced the confession. The jury charge contained an instruction that the jury could only consider Appellant's statement if it believed from the evidence beyond a reasonable doubt that the statement was "freely and voluntarily made . . . without compulsion or persuasion." And at trial, defense counsel cross-examined the detective on the use of the interview techniques, the timing and circumstances of the confession, and in closing, asked the jury to disregard the confession. Nonetheless, the jury found Appellant guilty of all three counts, and in the punishment phase, assessed an eighteen-year sentence and $2,000 fine on the sexual assaults, and a fifteen-year sentence and $2,000 fine on the indecency charge. The trial court entered a judgment of conviction based on the verdict, and ran the sentences concurrently.
ISSUES ON APPEAL
Appellant raises two issues that both pertain to his videotaped confession. In Issue One, he contends that his trial counsel was ill prepared for the suppression hearing. Specifically, he argues that his attorney pursued a fruitless argument to suppress the confession (emphasizing the deceptions), when a better argument was possible (that Appellant was sleep-deprived and possibly intoxicated). In Issue Two, he that contends trial counsel should have sought to exclude the video under TEX.R.EVID. 403 because it shows him shirtless, and covered in tattoos.
INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim of ineffective assistance of counsel, Appellant must establish by a preponderance of evidence that: (1) his attorney's performance was deficient; and that (2) the attorney's deficient performance deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App. 2005). Appellant must satisfy both Strickland elements, and the failure to show either deficient performance or prejudice will defeat the claim. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App. 2010); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003).
Under the first prong of the Strickland test, Appellant must show the attorney's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Stated otherwise, he must show the counsel's actions do not meet the objective norms for professional conduct of trial counsel. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). We presume, however, that the attorney's representation fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001), citing Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). Ineffective assistance claims must be firmly founded in the record to overcome this presumption. Thompson, 9 S.W.3d at 813. Consequently, a direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because the record is generally undeveloped as to why trial counsel did what he or she did. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005); Thompson, 9 S.W.3d at 814 n.6; Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003)("If the alleged error is one of commission, the record may reflect the action taken by counsel but not the reason for it. The appellate court may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse. . . . The trial record may contain no evidence of alleged errors of omission, much less the reasons underlying them.").
No motion for new trial was filed in this case, and thus no record made of trial strategy.
When the record is silent as to trial counsel's strategy, we will not conclude that the Appellant received ineffective assistance unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392, quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001); see also Rylander, 101 S.W.3d at 110-11 (noting that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective").
Under the second Strickland prong, in a case that was actually tried, the defendant must establish that there is a reasonable probability that but for the attorney's deficient performance, the outcome of the case would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2069; Thompson, 9 S.W.3d at 812. "Reasonable probability" is that which is "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998).
The prejudice rule is different when counsel's mistake causes the defendant to forego a legal proceeding, such as when a defendant pleads guilty based on erroneous advice. See Lee v. U.S., ___U.S.___, 137 S.Ct. 1958, 1964-65, 198 L.Ed.2d 476 (2017)("When a defendant alleges his counsel's deficient performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial would have been different than the result of the plea bargain. . . . We instead consider whether the defendant was prejudiced by the denial of the entire judicial proceeding to which he had a right.")[internal quotes and ellipses omitted].
With these standards in mind, we take up Appellant's complaints about his trial counsel.
VOLUNTARINESS OF THE CONFESSION
Reduced to its essence, Appellant's first issue claims his trial counsel's focus on police deception was misguided because police deception alone was never a viable argument. Instead, Appellant now claims his counsel should have developed an argument that sleep deprivation, and the effects of drinking the night before, rendered the confession involuntary. Specifically, Appellant suggests that by time of his interview on July 7, he had been up for at least nineteen and one-half hours, and had consumed alcohol as recently as twelve and one-half hours before the interview. Depending on when he awoke on the morning on July 6, and assuming he did not nap during the day, he might have been up for as many as thirty-three and one-half hours. Appellant then suggests that his counsel could have called other family members, or even Sylvia, to confirm the extent and timing of his drinking, and his mental state. He faults trial counsel for not calling an expert on sleep deprivation, or the after-effects of intoxication. Counsel could have also called Appellant himself to testify at the suppression hearing to these same matters. He buttresses the claim by noting that his trial counsel cited no legal authorities, and failed to develop sufficient facts about the lack of a shirt.
We reject the issue for several reasons. First, we cannot say that urging the deception issue demonstrates deficient performance. A confession is involuntary or coerced if the totality of the circumstances demonstrates that the confessor did not make the decision to confess of their own free will. Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 1251-52, 113 L.Ed.2d 302 (1991). Misrepresentations made by the police to a suspect during an interrogation are a relevant factor in assessing whether the suspect's confession was voluntary. Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424-25, 22 L.Ed.2d 684 (1969). Nonetheless, "[t]rickery or deception does not make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process." Creager v. State, 952 S.W.2d 852, 856 (Tex.Crim.App. 1997).
The types of the deception that the police may use lie on a continuum, with some misrepresentations more likely to induce a false confession and others not. A misrepresentation about the strength of the case against the accused, for instance, is the least likely to make an otherwise voluntary confession involuntary. Green v. State, 934 S.W.2d 92, 99 (Tex.Crim.App. 1996). In Green, for instance, the detective falsely claimed there was an eyewitness to a murder. 934 S.W.2d at 99. In Frazier, the police falsely told the accused that a co-defendant had already confessed. 394 U.S. at 739, 89 S.Ct. at 1424-25. Those types of misrepresentations are intrinsic to the facts of the crime, and would generally not cause an innocent person to confess to something they did not do. See Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992).
On the other end of the spectrum, misrepresenting external facts would more likely implicate an accused's decision to confess. In Lynumn v. Illinois, 372 U.S. 528, 531, 83 S.Ct. 917, 919, 9 L.Ed.2d 922 (1963), for instance, the court held a confession involuntary because it was based on the police telling a suspect that she would lose her welfare benefits and custody of her children if she did not confess. In a somewhat analogous situation, when the police deception rises to the level using fabricated evidence to obtain a confession, Article 38.22 requires suppression of the confession. Wilson v. State, 311 S.W.3d 452, 454 (Tex.Crim.App. 2010)(interrogating officer violated the law by fabricating a forensic report to falsely state the accused fingerprints were found on the magazine clip of the murder weapon).
On appeal, Appellant does not argue that the trial court erred in failing to suppress the confession on the record before it, and we do not suggest that it did. It is enough for us to say that the argument trial counsel was pursuing was not unreasonable. The detective testified at the hearing that she had DNA evidence, which she did not in fact have. The detective also stated that the interview was the last chance Appellant had to tell his story, when he surely would have other opportunities. Some arguments could have been made that either of these misrepresentations, under existing law, or some extension of existing law, and in conjunction with the totality of the other circumstances, rendered the confession involuntary. At most, Appellant is really complaining that his counsel should have better developed those other circumstances, by suggesting he was also sleep deprived.
See Franco v. State, 08-15-00254-CR, 2017 WL 972165, at *5 (Tex.App.--El Paso Mar. 14, 2017, no pet.)(noting that trial counsel will often assert arguable objections which do not ultimately carry the day, and which may have been asserted for some strategic reason, such as preserving an issue for later appeal, even if that point the party must ultimately seek to modify or overturn existing law).
Yet we cannot say that the failure to develop a sleep deprivation argument proves deficient performance. Appellant's largest problem with this claim is the state of the record. While he suggests that trial counsel simply overlooked the argument, it is entirely possible that counsel rejected the argument for some strategic reason. To call all of the witnesses Appellant now suggests would have opened those witnesses up to cross-examination about what Appellant said or did that night. While Appellant assumes that an expert could have supported his sleep deprivation claim, we could just as easily assume counsel conferred with such an expert and found the claim untenable. If the argument depended on developing additional testimony from Appellant at the suppression hearing, exposing Appellant to even the prospect of some limited cross-examination would be a thoughtful choice. Without some evidence of whether or why these strategic decisions were made, Appellant cannot overcome the presumption of competent representation. Rylander, 101 S.W.3d at 110.
To be sure, Appellant's brief better articulates an argument to suppress the confession than that urged below. Of course, the brief writer had the benefit of months of cool reflection on the record. Trial counsel had to adapt an argument from the witness testimony as it came out at the hearing. Importantly, the Strickland standard "has never been interpreted to mean that the accused is entitled to errorless or perfect counsel." Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App. 1986). The test is whether trial counsel fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. On this record, we cannot reach that conclusion.
Appellant also fails to overcome the prejudice prong under Strickland. There are three theories by which a defendant may claim his statement was involuntary: (1) a failure to comply with the mandates of Miranda as expanded by Article 38.22, §§ 2 and 3; (2) a violation of the Due Process Clause; or (3) a failure to comply with Article 38.22, § 6. Oursbourn v. State, 259 S.W.3d 159, 169-72 (Tex.Crim.App. 2008). The detectives read Appellant his Miranda and Article 38.22 warnings, he acknowledged them, and no issue is raised under that theory. The Due Process Clause is implicated only by police overreaching. Oursbourn, 259 S.W.3d at 169 ("A confession may be involuntary under the Due Process Clause only when there is police overreaching."). In the context of a sleep deprivation claim, that would require the police to have contributed to, or to have purposefully sought to take advantage of any fatigue. Cf. Ashcraft v. State of Tennessee, 322 U.S. 143, 154, 64 S.Ct. 921, 88 L.Ed. 1192 (1944)(confession held involuntary where prosecutors served in relays to keep the suspect under continuous cross-examination for thirty-six hours without rest or sleep); Contreras v. State, 312 S.W.3d 566, 576 (Tex.Crim.App. 2010)(when the police did not cause the loss of sleep, there was no due process violation so as to trigger an Article 38.23 jury instruction); Whitmire v. State, 183 S.W.3d 522, 528 (Tex.App.--Houston [14th Dist.] 2006, pet. ref'd)(noting suspect did not ask to sleep and police did not purposefully take advantage of any fatigue); Rodriquez v. State, 934 S.W.2d 881, 889 (Tex.App.--Waco 1996, no pet.)(confession upheld as voluntary when police did not cause suspect to have been awake for more than eighteen hours when he gave his confession, nor did he complain of being tired). Appellant developed no evidence that the police contributed to his lack of sleep, or that they were aware of it. Consequently, he has no support for a due process violation.
That leaves only an Article 38.22 §6 claim, which might encompass considerations beyond police misconduct. See Oursbourn, 259 S.W.3d at 172 (statements "given under the duress of hallucinations, illness, medications, or even a private threat, for example, could be involuntary" under Articles 38.21 and 38.22). Yet Texas case law establishes that neither intoxication, nor sleep deprivation by themselves, are enough to warrant suppression of a confession. Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996)("Intoxication, while relevant, does not render a confession involuntary per se."), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997); Barney v. State, 698 S.W.2d 114, 121 (Tex.Crim.App. 1985)(noting that lack of sleep for sixteen hours would not alone render appellant's confession involuntary). Rather, the issue is whether any intoxication or fatigue rendered an accused incapable of making an independent, informed decision to confess. Jones, 944 S.W.2d at 651. Appellant simply does not carry his burden to show that there was a reasonable probability that had trial counsel emphasized the additional element of sleep deprivation or after effects of intoxication, that the trial court would have reached a different conclusion. He cites no case law closely analogous to the fact pattern at issue here. Moreover, even if he had, the trial court already had most of the time line, and certainly testimony of the alcohol consumption, already in the record. And perhaps more importantly, the trial court viewed the actual videotaped confession that demonstrates Appellant's demeanor and responsiveness at the time of the interview.
The State additionally argues that even if the confession had been suppressed, Appellant must then show that the result of the jury trial would have been different. The State argues that A.H's testimony coupled with Sylvia's and the additional corroborating witnesses, would easily sustain the jury verdict. We need not reach that second layer of the argument because we conclude that Appellant does not meet the initial burden of showing that some different argument in reasonable probability would have resulted in the suppression of the confession. We overrule Issue One.
RULE 403In his second issue, Appellant complains that his counsel was ineffective in attempting to suppress the video confession under TEX.R.EVID. 403. Appellant contends that the visual of him sitting in the chair without a shirt, thus showing the several tattoos on his arms and chest, created unfair prejudice. We have several problems with the argument. First, while his counsel did not cite to the evidence rule number, he clearly argued to the trial court the core text of Rule 403--that the video's probative value was substantially outweighed by any unfair prejudice. When the trial court overruled the motion, it specifically referenced a "balancing" of interests, which strongly suggests the trial court applied a Rule 403 analysis. It is clear that Appellant's counsel did urge the substance of a Rule 403 objection.
As Appellant's counsel argued at the suppression hearing, "My concern is that admitting this before the jury is going to be -- that any probative value is going to be far outweighed by the prejudicial effects, Your Honor." He opened the hearing with this statement: "And I am seeking to suppress that videotaped statement based on, primarily, that the officer decided to take the statement with Mr. Maynes not having a shirt on. That, in and of itself, I think, is going to prejudice the jury greatly, which would outweigh any probative value of the statement."
Appellant additionally now complains that his trial counsel could have bolstered the argument with testimony about the significance of the tattoos, or testimony about other options for him to obtain a shirt. As with his previous issue, we cannot conclude that trial counsel was deficient for not soliciting testimony when the record fails to show what that testimony might have been. See Washington v. State, 417 S.W.3d 713, 725 (Tex.App.--Houston [14th Dist.] 2013, pet. ref'd)(no prejudice shown when appellant did not show what evidence a proper investigation would have revealed, nor what benefit could have been obtained from an expert); Brown v. State, 334 S.W.3d 789, 803 (Tex.App.--Tyler 2010, pet. ref'd)("[T]he failure to request the appointment of an expert witness is not ineffective assistance in the absence of a showing that the expert would have testified in a manner that benefitted the defendant."); Cate v. State, 124 S.W.3d 922, 927 (Tex.App.--Amarillo 2004, pet. ref'd)(same). Appellant has made no showing that any additional cross-examination or witnesses would have better supported his Rule 403 argument. This failing undercuts any chance to meet his burden under both Strickland elements.
Nor does Appellant cite any controlling case law that would suggest that additional information about the tattoos, or additional discussion about his having a shirt, would have tipped the Rule 403 balance, and thus resulted in a different outcome. In conducting a Rule 403 balancing test, the trial court must consider (1) the inherent probative value of the evidence and (2) the State's need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, such as emotion, (4) any tendency to confuse or distract the jury from the main issues, (5) any tendency to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or be needlessly cumulative. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.Crim.App. 2006)(noting these factors as a refinement to a four-factor test appearing in prior cases). Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence is more probative than prejudicial. Martinez v. State, 327 S.W.3d 727, 737 (Tex.Crim.App. 2010).
Some of these factors have already tipped heavily against Appellant. The probative value of a confession is obvious, as is the State's need for such evidence in a case of this type. The prejudice to Appellant is the appearance of the tattoos, but owing to his position at the table in the interview room, and a box insert on the video showing a close-up of his face, the actual nature of the tattoos is undiscernible on the video. We fail to see how additional evidence about the tattoos would have created a reasonable probability of a different result in a properly applied Rule 403 challenge. We overrule Issue Two and affirm the judgment of conviction below. February 28, 2018
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)