Opinion
NO. 03-17-00021-CR
03-30-2018
John Wesley Mcree, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-16-0047 , HONORABLE GARY L. STEEL, JUDGE PRESIDING MEMORANDUM OPINION
John Wesley Mcree was charged with aggravated sexual assault and aggravated assault causing serious bodily injury. See Tex. Penal Code §§ 22.021(a)(1)(A)(i), (a)(2)(A)(i), (e) (setting out elements of offense of aggravated sexual assault and explaining that offense is first-degree felony), .02(a), (b)(1) (listing elements of offense of aggravated assault and providing that offense is first-degree felony if actor uses deadly weapon during assault and if victim and defendant have relationship described by Family Code). At the end of the guilt-or-innocence phase, the jury found Mcree guilty of both offenses. At the end of the punishment phase, the jury recommended that Mcree be sentenced to 30 years' imprisonment for both offenses. See id. § 12.32 (setting out permissible punishment range for first-degree felonies). The district court rendered its judgments of conviction in accordance with the jury's verdicts. In five issues on appeal, Mcree challenges his convictions. We will affirm the district court's judgment of conviction for aggravated assault, modify the judgment of conviction for aggravated sexual assault, and as modified, affirm the judgment of conviction for aggravated sexual assault.
The indictment originally also charged Mcree with possession of a controlled substance (methamphetamine) in an amount less than one gram. See Tex. Health & Safety Code §§ 481.102(6) (listing methamphetamine as substance included in "Penalty Group 1"), .115(a), (b) (providing that person commits offense by possessing "a controlled substance listed in Penalty Group 1" and that offense is state-jail felony if amount of controlled substance is "less than one gram"). However, prior to trial, Mcree filed a motion to sever the possession charge, see Tex. Penal Code § 3.04, and the district court granted the motion.
BACKGROUND
As set out above, Mcree was charged with aggravated assault and aggravated sexual assault. The evidence presented at trial indicated that Mcree used an alias when interacting with the victim in this case, M.C., and used a different alias when he was arrested. For ease of reading, we will refer to Mcree by his name rather than to one of his aliases when summarizing the testimony given at trial. During the trial, the State called various witnesses, including M.C., investigating law-enforcement personnel, an individual whose identity was used by Mcree during Mcree's interaction with the police, medical professionals involved in M.C.'s treatment, and witnesses discussing an extraneous offense allegedly committed by Mcree before the charged offenses at issue.
In her testimony, M.C. explained that she met Mcree through an online dating site and that after talking with one another for weeks over the phone and through text messages, they met in person in October 2015. When describing the communication that she had with Mcree before they met, M.C. recalled that Mcree referred to her as his girlfriend, that some of the messages were sexually charged, and that they discussed the possibility of having sex with one another when they met. Regarding the night that they met, M.C. related that she asked Mcree to come over to her apartment, that he brought a bottle of her favorite wine with him, that he poured both of them a glass of wine while she was in the other room changing, that he stated that he did not like red wine, that he poured his wine into her glass, and that the wine tasted different from how she "was used to it tasting." Moreover, M.C. testified that after she drank most of the wine from her glass, she started "talking a lot and really fast" and feeling "really hot." In addition, M.C. related that her heart started racing, that her jaw clenched, and that she was having trouble breathing. Further, she recalled that they ended up in her bedroom but that she did not "remember getting to [her] bedroom." Moreover, M.C. stated that they started having sexual intercourse but that Mcree stopped after feeling her chest and telling her that her "heart was beating too fast" and that she needed to take a cold shower, and M.C. testified that she took a cold bath but could not feel the water and that she started hallucinating. In addition, M.C. testified that they started having sexual intercourse again while she was hallucinating.
Regarding the next morning, M.C. recalled that Mcree left for work and that she started having chest pains and feeling dizzy. In addition, M.C. testified that she called Mcree to say that she thought something was wrong but that Mcree said that she just needed to take a cold shower and encouraged her "not to go to the hospital" and not to call her mom because it would just make her mom worry. Further, M.C. related that Mcree came back to her house later that day, that her jaw was still clinched, that they had sexual intercourse again, that she did not object to having sex, and that she was still hallucinating. In her testimony, M.C. recalled that she returned to work two days after meeting Mcree in person, that she was still not feeling well when she went to work, and that one of her co-workers drove her to the hospital after she "fell over." Further, M.C. related that while she was at the hospital, the doctors told her that she had experienced a heart attack and that testing performed on a sample of her urine revealed that she "had a high amount of methamphetamine[] in [her] system." In addition, M.C. explained that she had never taken any illegal drugs before other than marijuana years ago and that she contacted the police after learning the results of her urine test. Moreover, M.C. revealed that after talking with several law-enforcement officers and after being told that they had been unable to find an individual with the name that Mcree used in his interactions with her, M.C. decided to find him through the same dating site that she previously used to meet him. Additionally, M.C. explained that she set up a fake account with the site, located the profile of someone who looked like Mcree but had a different name than the one that Mcree had used previously with her, set up a meeting with Mcree at a nearby restaurant, informed the police that she had made contact with Mcree again, and identified Mcree to the police who were with her at the restaurant when Mcree arrived.
During her cross-examination, M.C. admitted that she was excited to meet Mcree, that she had been flirting with him in the days leading up to their meeting and discussing sexual topics, and that she planned to have sex with him on the night that they met. Moreover, M.C. testified that when she saw Mcree again on the day after their first meeting, she was still interested in having sex with Mcree and did have sexual intercourse with him again. Furthermore, M.C. admitted that she did not inform the medical staff at the hospital regarding all of the symptoms that she had experienced on the night of the alleged assault, including hallucinating. Additionally, M.C. discussed how the company that she was working for at the time performed drug testing on its employees and how the company could have fired her for testing positive for an illegal substance, and M.C. answered questions pertaining to whether the company might fire her if someone forced her to take an illegal substance without her knowledge or if she voluntarily chose to consume an illegal drug in order to enhance a sexual experience.
After M.C. finished testifying, various medical personnel from the hospital where M.C. sought treatment testified that testing performed on M.C.'s urine while she was at the hospital showed the presence of methamphetamine. In addition, Dr. John Dieck testified that he treated M.C. at the hospital; that he was a cardiologist; that her blood work showed a positive result for methamphetamine; and that M.C. had recently had a heart attack. In addition, Dr. Dieck explained that methamphetamine can cause someone's body temperature to rise, that it increases heart rate and can cause "heart muscle damage," and that it can cause someone to have a heart attack.
Furthermore, the State called Detective Dave Campbell to the stand. In his testimony, Detective Campbell stated that he was present at the restaurant with M.C. before Mcree arrived, that Detective Campbell approached Mcree to talk with him at the restaurant, that Mcree tried to run, that Detective Campbell was able to catch Mcree, that Mcree kept insisting that his name was Richard Jessop, and that when Detective Campbell arrested Mcree, Detective Campbell found a substance on Mcree that Detective Campbell believed to be methamphetamine. Testimony by other law-enforcement officials explained that testing performed on the substance confirmed that it was methamphetamine. In his cross-examination, Detective Campbell testified that when he initially talked with M.C., she said that she had planned to have sex with Mcree and was not concerned about the sexual encounter.
Following the conclusion of Detective Campbell's testimony, the State called Detective Tiffany Williams and Richard Jessop to the stand. Detective Williams testified that after Mcree was arrested, she searched his car and found various identifying documents with the name Richard Jessop on them, including a social security card. Jessop testified that he lives in San Antonio, that he hired Mcree to repair the air conditioner at his home, that he was informed by law-enforcement personnel that his identity had been stolen, and that items collected during the investigation of this case contained his name and "bits and pieces of [his] home address but not the full address."
After finishing calling witnesses to testify regarding the charged offense, the State then called J.G. to the stand to discuss a prior extraneous offense allegedly committed by Mcree in March 2014. In her testimony, J.G. explained that she met Mcree through the same dating website that M.C. used, that she texted with Mcree and talked with him on the phone before meeting him in person several days later, that he flirted with her on the phone, and that she went to his home on two occasions. Regarding the second visit to Mcree's home, J.G. testified that Mcree asked her to do a tequila shot, that she noticed when she started drinking that she "could taste a pill that was crushed up inside the shot glass," and that she then spit out a pill that had been "crushed up." Additionally, J.G. stated that she started feeling "dizzy" and sweating, that her heart started racing, that her body began shaking, and that although she was able to stumble, she could not have made it out of the house. In addition, J.G. testified that Mcree told her to go to the bedroom and that Mcree "forced his penis in [her] mouth." Finally, J.G. testified that she drove to the hospital the next morning and that testing done on her urine at the hospital revealed that she had amphetamine in her system. Prior to J.G. testifying, a medical laboratory scientist who worked for the hospital testified that the testing performed on J.G.'s urine revealed the presence of amphetamine.
Although the testimony was not presented until the punishment phase, we do note that the State also called Mcree's former wife, J.A., to the stand and that she testified that she met Mcree online, that she found residue in her drink and confronted him, that he admitted that he put drugs in her drinks before they had sex, that he said that he would never do it again, and that he did it again later. When describing what she felt like when he put drugs in her drinks, J.A. stated that she would feel hyperactive and that her heart would race. Regarding one specific instance, J.A. stated that Mcree must have put too much in her drink because she could not get out of bed, and she stated that she asked Mcree to take her to the hospital but that he refused.
After the State rested its case, Mcree called several witnesses to the stand, including Dr. Mohamad Malik, Officer Roger Rangel, and M.C. In his testimony, Dr. Malik explained that M.C.'s positive result for methamphetamine could have been caused by drugs other than methamphetamine. In his testimony, Officer Rangel related that he interviewed M.C. at the hospital, that she stated that she felt dizzy and like she was going to pass out when she was with Mcree, that the sexual intercourse was consensual, that she was not raped, and that she remembered everything. During her testimony, M.C. stated that she told law-enforcement officials that she had sex with Mcree more than once, discussed a story that she told the investigating officers regarding going to the fire station where Mcree allegedly worked on the night in question, and admitted that the story was not true and that she made the story up because the officers were questioning her in front of her mother and because she did not want her mother to know that she met Mcree for the first time at her home.
Following the parties' closing arguments, the jury convicted Mcree of aggravated sexual assault and aggravated assault.
DISCUSSION
On appeal, Mcree argues that the evidence was legally insufficient to support his convictions "because the State failed to prove the actual presence of methamphetamine in [M.C.]'s urine, that the evidence is legally insufficient to sustain his conviction "for aggravated sexual assault because the alleged victim consented to the alleged act and [because] the State failed to prove methamphetamine was actually present in her urine," that the district "court abused its discretion in admitting . . . evidence of extraneous bad acts," that his trial attorney provided ineffective assistance of counsel "when she failed to object to improper jury argument that was outside the evidence," and that the district "court erred in entering a nunc pro tunc finding of a deadly weapon" for the aggravated-sexual-assault conviction when no language regarding the presence of a deadly weapon was "in the jury charge" or in "the indictment."
Legal Sufficiency
Methamphetamine or Another Substance
In his first issue, Mcree challenges the legal sufficiency of both of his convictions.
Under a legal-sufficiency standard of review, appellate courts view the evidence in the light most favorable to the verdict and determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). When performing this review, an appellate court must bear in mind that it is the factfinder's duty to weigh the evidence, to resolve conflicts in the testimony, and to make "reasonable inferences from basic facts to ultimate facts." Id.; see also Tex. Code Crim. Proc. art. 36.13 (explaining that "the jury is the exclusive judge of the facts"). Moreover, appellate courts must "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences were resolved in favor of the conviction and "defer to that determination." Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that "direct and circumstantial evidence are treated equally" and that "[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor" and "can be sufficient" on its own "to establish guilt." Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). In reviewing the legal sufficiency of the evidence supporting a conviction, appellate courts consider "all evidence that the trier of fact was permitted to consider, regardless of whether it was rightly or wrongly admitted." Demond v. State, 452 S.W.3d 435, 445 (Tex. App.—Austin 2014, pet. ref'd) (emphasis added). The evidence is legally insufficient if "the record contains no evidence, or merely a 'modicum' of evidence, probative of an element of the offense" or if "the evidence conclusively establishes a reasonable doubt." Kiffe, 361 S.W.3d at 107 (quoting Jackson, 443 U.S. at 320). Furthermore, reviewing courts "measure the sufficiency of the evidence by the so-called hypothetically correct jury charge, one which 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 is tried." See DeLay v. State, 465 S.W.3d 232, 244 n.48 (Tex. Crim. App. 2014).
As set out above, Mcree was convicted of aggravated sexual assault and aggravated assault. Under the Penal Code, an individual commits sexual assault if, among other ways, he "intentionally or knowingly . . . causes the penetration of the . . . sexual organ of another person by any means, without that person's consent" and "causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode." See Tex. Penal Code §§ 22.021(a)(1)(A)(i), (a)(2)(A)(i). "'Consent' means assent in fact, whether express or apparent." Id. § 1.07(a)(11). "A sexual assault . . . is without the consent of the other person if . . . the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge." See id. § 22.011(b)(6) (listing situations in which victim is deemed to not have consented in sexual-assault context); see also id. § 22.021(c) (providing that "[a]n aggravated sexual assault . . . is without the consent of the other person if the aggravated sexual assault occurs under the same circumstances" described in statute pertaining to sexual assault). In addition, a person commits assault if he "intentionally, knowingly, or recklessly causes bodily injury to another." Id. § 22.01(a)(1). Furthermore, a person commits aggravated assault if he commits assault and "causes serious bodily injury to another." Id. § 22.02(a)(1). Moreover, the offense level for aggravated assault is elevated if "the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by" the Family Code. Id. § 22.02(b)(1). Additionally, "'[s]erious bodily injury' means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46). Further, the indictment for both charges alleged that Mcree caused serious bodily injury "by administering methamphetamine or other unknown substance to M.C.," and the portion of the indictment pertaining to the aggravated-assault charge alleged that Mcree "use[d] or exhibit[ed] a deadly weapon, to-wit: methamphetamine or other unknown substance, during the commission of said assault."
We note that although the indictment did allege that Mcree committed the offense of aggravated assault, the indictment made no allegation regarding whether Mcree and M.C. were in a dating relationship. Under the Penal Code, the offense level for aggravated assault is elevated from a second-degree felony to a first-degree felony if "the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by" the Family Code. See Tex. Penal Code § 22.02(b)(1). Prior to and during the trial, the State indicated that it intended to prove that Mcree was guilty of a first-degree felony because Mcree and M.C. were in a dating relationship. In response, Mcree acknowledged that there could be a notice problem because there was no amended indictment containing the enhancing allegation, but Mcree conceded that in light of the evidence regarding the relationship between Mcree and M.C., it was unlikely that requiring the trial to be postponed and requiring the State to issue an amended indictment would allow Mcree to find additional evidence to contradict the enhancing allegation. Moreover, to resolve this potential problem, the district court, Mcree, and the State agreed to allow the district court to place instructions in the jury charge for the punishment phase allowing the jury to assess Mcree's punishment at the first-degree-felony level if the jury found "beyond a reasonable doubt that M.C. was a person with whom [Mcree] has or has had a dating relationship." On appeal, no issue has been presented challenging the propriety of including the enhancement allegation in the punishment charge or regarding the offense level for which Mcree was convicted.
When presenting his sufficiency challenge in his first issue, Mcree limits his challenge to both of his convictions to an assertion that legally-insufficient evidence was presented "to prove the actual presence of methamphetamine or other substance in the alleged victim's urine," which Mcree contends was necessary for a conviction under both charges. When presenting this challenge, Mcree acknowledges the testimony establishing that testing performed at the hospital indicated the presence of methamphetamine in M.C.'s urine, but Mcree contends that the testing was only a presumptive test and that "[a] presumptive urine drug screen, without a confirmatory test, cannot sustain a criminal conviction." Further, Mcree contends that there are many substances that can result in false-positive results from urine testing. As support for these assertions, Mcree points to manuals created by the Department of Public Safety describing the practice of using confirmatory testing to identify specific drugs present in a sample. In addition, Mcree contends that the only evidence of the presence of methamphetamine in M.C.'s urine "was the presumptive test" and notes that the documents summarizing the test results stated that the results were for "treatment purposes only" and "not to be used for legal . . . applications." For all of these reasons, Mcree urges that the presumptive tests results "are legally insufficient to prove a required element of [both] charges beyond a reasonable doubt."
As support for this proposition, Mcree refers to two cases involving field testing for the presence of drugs. See Curtis v. State, 548 S.W.2d 57 (Tex. Crim. App. 1977); Smith v. State, 874 S.W.2d 720 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). In Curtis, the court determined that a field test establishing the presence of "an opiate derivative" was insufficient to support a revocation determination on the ground that the defendant allegedly delivered heroin to another person because multiple drugs can be derived from opium and produce a positive result. 548 S.W.2d at 58, 59. In Smith, an officer performed a field test on tubes recovered from a car, and the testing indicated a positive result for the presence of cocaine. 874 S.W.2d at 721. The majority in that case determined that the officer's testimony regarding the results of the test could be considered in their sufficiency review. Id. at 721-22. In contrast, the dissent reasoned that "[a] field test is not sufficient evidence of the presence of a controlled substance on which to base a conviction," relied on testimony from the trial that field tests are only presumptive and "can result in a false-positive," and distinguished field testing from testing performed in a laboratory "under circumstances that reduce the possibility of error." Id. at 724 (O'Connor, J., dissenting).
As an initial matter, we note that both of those cases seem distinguishable because this case does not involve field testing and instead involves testing performed by medical professionals at a hospital. Accordingly, it seems reasonable to assume that the testing performed under the circumstances present here is done in a manner designed to reduce the possibility of error. Cf. Somers v. State, 368 S.W.3d 528, 545 (Tex. Crim. App. 2012) (determining that presumptive blood test performed by Department of Public Safety using enzyme-multiplied immunoassay technique "is reliable scientific evidence" "with or without a confirmation test"). In addition, unlike in those cases in which a definitive single type of drug had to be identified to serve as a basis for the judicial determination, the State was not required to prove beyond a reasonable doubt that the substance that Mcree gave to M.C. was methamphetamine and only methamphetamine; on the contrary, the State was required to prove that Mcree gave methamphetamine or another unknown substance to M.C. Perhaps more importantly, unlike the situations in Smith and Curtis in which the presence of contraband was only established through the use of testing, in this case other evidence helped establish that Mcree gave methamphetamine or a similar substance to M.C.
In his brief, Mcree also points to a prior case from this Court and urges that we have previously determined that presumptive tests without additional confirmatory testing are unreliable. See Bolieu v. State, 779 S.W.2d 489 (Tex. App.—Austin 1989, no pet.). In that case, this Court did summarize testimony describing industry standards for toxicology results as generally requiring confirmatory testing after a presumptive positive result, see id. at 490, but this Court also ultimately determined that we did not have to decide in that case "if the positive result of a single" urine "test as to the presence of cocaine metabolites, uncorroborated by a separate and independent test . . . was sufficient to support the trial court's decision to revoke probation," id. at 491. Accordingly, we cannot agree with Mcree's contention that this Court has previously determined that the results of presumptive urine testing may not be considered as part of a sufficiency review in the absence of additional confirmatory testing.
In addition to presenting his sufficiency arguments outlined above, Mcree also contends that the evidence regarding the urine test is insufficient because the testing should not have been admitted into evidence. First, Mcree contends that to be admissible forensic evidence, the testing must have been performed at an accredited laboratory but that there is no indication in this case that the hospital possessed the requisite credentials. See Tex. Code Crim. Proc. arts. 38.01, § 4-d (discussing crime-laboratory-accreditation process), .35(d) (providing that "a forensic analysis of physical evidence under this article and expert testimony relating to the evidence are not admissible in a criminal action if, at the time of the analysis, the crime laboratory conducting the analysis was not accredited"). Then, Mcree contends that the results should not have been admitted under Rule of Evidence 403 because the probative value was outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403.
However, Mcree did not object to the admission of the urine-test results on the grounds presented in his brief and has, therefore, waived those complaints. See Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (stating that "the point of error on appeal must comport with the objection made at trial"); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (explaining that failure to object to admission of evidence waives appellate complaints regarding admissibility of that evidence even if "the error may concern a constitutional right of the defendant"). Moreover, when performing a sufficiency review, appellate courts are to consider all of the evidence that the trier of fact was allowed to consider regardless of whether that evidence was correctly or incorrectly admitted. Demond v. State, 452 S.W.3d 435, 445 (Tex. App.—Austin 2014, pet. ref'd).
As an initial matter, we note that although the testimony presented at trial indicated that it was possible that the positive urine test could have been caused by drugs other than methamphetamine, the State was not required to prove beyond a reasonable doubt that methamphetamine was present in M.C.'s urine; rather the State had to prove in both charges that Mcree administered "methamphetamine or [an] unknown substance to M.C.," and in the aggravated-assault charge, the State was also required to prove that Mcree used or exhibited "methamphetamine or [an] other unknown substance" during the offense.
In addition, as set out above, presumptive testing performed on M.C.'s urine showed a positive result for methamphetamine, and M.C. testified that she had never used any illegal drugs other than marijuana in the past. Additionally, M.C. testified that the wine that Mcree gave her tasted differently than she was used to. Moreover, M.C. recalled that after she drank the wine, she started talking really fast and felt hot, and she discussed how her heart started beating very fast, how her jaw clenched, how she had trouble breathing, how she could not feel the temperature of cold bath water, how she hallucinated, how she had chest pains, and how she felt dizzy. Furthermore, the evidence from various medical personnel established that M.C. had a heart attack. Moreover, Dr. Dieck testified that methamphetamine can cause a person's body temperature to rise and heart to race and can result in a heart attack. Further, although M.C. admitted to drinking "energy" drinks while at work before M.C. came over to her house, Dr. Dieck testified that caffeine was unlikely to have caused M.C.'s heart attack.
When deciding whether the evidence was sufficient to establish that Mcree administered and used or exhibited "methamphetamine or [an] unknown substance," the jury was aided by the testimony from J.G. regarding her encounter with Mcree and by testimony regarding the circumstances of Mcree's arrest. In her testimony, J.G. related that she met Mcree through the same website that M.C. used to meet Mcree, that the drink that Mcree gave her tasted wrong, and that she noticed the remnants of a pill that had been crushed and placed in her drink. In addition, J.G. recalled that she started sweating after consuming the drink, that her heart started racing, and that she felt dizzy. In addition, testimony from medical personnel established that testing performed on J.G.'s urine on the day after the encounter had a presumptive positive result for a stimulant (amphetamine). Regarding Mcree's arrest, the jury was presented with testimony that Mcree agreed to meet at a restaurant a woman who he ostensibly met online through the same dating site that he used to meet M.C. and that Mcree had methamphetamine on his person when he was arrested at the restaurant.
In light of the evidence summarized above and of the reasonable inferences that can be made from that evidence and given our standard of review, we must conclude that the evidence was sufficient to establish that Mcree administered and exhibited or used methamphetamine or another substance during his encounter with M.C. Accordingly, we overrule Mcree's first issue on appeal.
Consent
As set out above, the State alleged that Mcree sexually penetrated M.C.'s vagina without her consent. Under the Penal Code, a sexual act is done without someone's consent when, among other ways, the actor impairs the victim's ability to appraise or control his or her conduct by administering a substance to the victim without his or her consent. See Tex. Penal Code § 22.011(b)(6).
In his second issue on appeal, Mcree argues that the evidence was insufficient to support his conviction for aggravated sexual assault because the evidence established that M.C. consented to the sexual conduct. As support for his sufficiency challenge, Mcree points to the copies of sexually-charged text messages between M.C. and Mcree that were admitted into evidence, to testimony that Mcree and M.C. had sex on two more occasions over the two days following when he allegedly put methamphetamine or another drug in her drink, and to Officer Rangel's testimony that when he interviewed M.C. after the incident, M.C. stated that the encounter was consensual and that she remembered the encounter. In addition, Mcree urges that in order to prove lack of consent in this case, the State was "required to prove that 1) a drug was given to M.C. and, 2) that the drug was given prior to M.C.'s consent to engage in sexual relations." In light of the preceding, Mcree contends that the evidence is insufficient because "the record is void of any evidence regarding the exact timing when a drug, if one was given at all, was administered."
In this issue, Mcree reasserts his arguments regarding the admissibility of the urine test when arguing there was insufficient evidence to establish a lack of consent. As discussed previously, Mcree did not object to the admission of the evidence, and courts performing a legal-sufficiency review consider all of the evidence that was presented to the trier of fact. See Demond, 452 S.W.3d at 445.
As discussed more thoroughly previously, M.C. testified that before her first sexual encounter with Mcree, Mcree gave her wine that had a strange taste and that she started to experience weird sensations and display unusual behavior after drinking the wine, including talking at a rapid pace, clenching her jaw, having her heart race, finding it difficult to breathe, feeling hot, and being unable to feel cold water temperatures. Further, M.C. related that she could not remember going to her bedroom after drinking the wine and before the sexual encounter occurred and that she was hallucinating during the sexual encounter. Moreover, the results of M.C.'s urine testing revealed the presence of methamphetamine after the encounter and after M.C. drank the wine, and evidence was introduced indicating that on a prior occasion Mcree placed a stimulant into J.G.'s drink before initiating a sexual encounter. Finally, M.C. testified that she had never deliberately consumed any illegal drugs in her life except marijuana in the past.
Based on the preceding evidence, the jury could have reasonably inferred that Mcree gave M.C. a drug without her knowledge before the sexual encounter occurred. Moreover, although Mcree correctly points out that there was evidence indicating that M.C. intended to have sexual intercourse on the night in question and that she initially characterized the encounter as consensual when first talking with the police, evidence was also presented through the testimony of M.C. regarding the effects that consuming the drug had on her mental and physical capacities, including experiencing memory loss and hallucinations. It was the jury's duty to resolve any conflicts in the evidence, and we must presume the jury resolved those conflicts in favor of conviction. See Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. The jury was free to reasonably infer from the evidence regarding the effects that consuming the drug had on her and from the testimony indicating that Mcree gave her the drug without her knowledge that the sexual encounter occurred without M.C.'s consent because Mcree impaired her ability "to appraise or control" her conduct by his "administering" methamphetamine or another substance to her without her knowledge. See Tex. Penal Code § 22.011(b)(6).
In light of the preceding, we must conclude that the evidence was legally sufficient to establish that M.C. did not consent to the sexual encounter. Accordingly, we overrule Mcree's second issue on appeal.
Evidence of Extraneous Offense
In his third issue on appeal, Mcree argues that the district court abused its discretion by admitting under Rule of Evidence 404(b) extraneous-offense evidence pertaining to the alleged sexual assault involving J.G. and by overruling his objection to the admission of that evidence under Rule 403. See Tex. R. Evid. 403, 404(b).
Appellate courts review a trial court's ruling regarding the admission or exclusion of evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Under that standard, a trial court's ruling will only be deemed an abuse of discretion if it is so clearly wrong as to lie outside "the zone of reasonable disagreement," Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is "arbitrary or unreasonable," State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Moreover, the ruling will be upheld provided that the trial court's decision "is reasonably supported by the record and is correct under any theory of law applicable to the case." Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). In addition, an appellate court reviews the trial court's ruling in light of the record before the court "at the time the ruling was made." Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.—Dallas 2005, no pet.).
Under the Rules of Evidence, "[r]elevant evidence is admissible unless" provided otherwise by "the United States or Texas Constitution," "a statute," the Rules of Evidence, or "other rules prescribed under statutory authority," and "[i]rrelevant evidence is not admissible." Tex. R. Evid. 402. Moreover, "[e]vidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence" and if "the fact is of consequence in determining the action." Id. R. 401. However, relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Id. R. 403. "Under Rule 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice. The rule envisions exclusion of evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value." Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (footnotes and internal quotation marks omitted). Accordingly, "the plain language of Rule 403 does not allow a trial court to exclude otherwise relevant evidence when that evidence is merely prejudicial. Indeed, all evidence against a defendant is, by its very nature, designed to be prejudicial." Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (internal citation omitted). Moreover, reviewing courts should bear in mind that trial courts are given "an especially high level of deference" regarding a determination that evidence should be admitted under Rule 403. See United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007).
Regarding the admissibility of evidence under Rule 403, courts performing a Rule 403 analysis should balance the following factors:
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence 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 merely repeat evidence already admitted.Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted); see Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (explaining that "probative value" refers to how strongly evidence makes existence of fact more or less probable and to how much proponent needs evidence and that "unfair prejudice" considers how likely it is that evidence might result in decision made on improper basis, including emotional one). When determining the probative value of past criminal behavior, courts should consider "the closeness in time between the extraneous offense and the charged offense" as well as "the similarities between the extraneous offense and the charged offense." Kiser v. State, 893 S.W.2d 277, 281 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd); see Morrow v. State, 735 S.W.2d 907, 909-12 (Tex. App.—Houston [14th Dist.] 1987, pet. ref'd).
Furthermore, "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character," but this type of "evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Tex. R. Evid. 404(b). In addition, courts have explained that "extraneous-offense evidence, under Rule 404(b), is admissible to rebut a defensive theory raised in an opening statement or raised by the State's witnesses during cross-examination." Bargas v. State, 252 S.W.3d 876, 890 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
"An extraneous offense is admissible to prove the culpable mental state required for the charged offense if the required intent cannot be inferred from the act itself, or if the accused presents evidence to rebut that inference." Brown v. State, 96 S.W.3d 508, 512 (Tex. App.—Austin 2002, no pet.). "When the defensive theory of consent is raised in a prosecution for sexual assault, the defendant necessarily disputes his intent to engage in the alleged conduct without the complainant's consent and thereby places his intent in issue." Id. "Such intent cannot be inferred from the mere act of intercourse with the complainant." Id. "When the defendant's intent to commit the offense charged is at issue, the relevance of an extraneous offense derives from the doctrine of chances—the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all." Id. "For the doctrine to apply, there must be a similarity between the charged and extraneous offenses, since it is the improbability of a like result being repeated by mere chance that gives the extraneous offense probative weight." Id. "The degree of similarity required, however, is not as great when intent is the material issue as when identity is the material issue and the extraneous offense is offered to prove modus operandi." Id. at 512-13.
Regarding the extraneous offense, J.G. provided testimony in a hearing outside the presence of the jury that was generally consistent with the testimony that was ultimately presented to the jury. Specifically, J.G. explained that she met Mcree through the same dating website that M.C. used and related that when she decided to meet Mcree, they agreed to meet at a public gas station but that he called her around the time that they were supposed to meet, stated that he was having car problems, and asked her to come to his house instead. Moreover, J.G. recalled that she had dinner with Mcree at his house and that the date only lasted a few hours before she went home. In addition, J.G. discussed how after that date, they talked on the phone and communicated through text messages and that some of the phone conversations were sexual in nature. Then, J.G. testified that a few days after they met Mcree asked her to come over to his house, that she drove to his house that night, that he brought out two shots of liquor for them to drink, that they each drank one, that he brought out another shot for her, that she noticed when drinking the second shot that it tasted like there was something "crushed up in the shot," and that she discovered the remnants of a pill. Next, J.G. mentioned how after she drank part of the second shot, she started "sweating horribly," felt "dizzy" and "fuzzy," had difficulty breathing, and could not walk because her body was not functioning properly. Moreover, J.G. recalled that Mcree told her to go to the bedroom, took off his clothes, and told her that "a good wife would just go ahead and suck his dick," and she testified that she performed oral sex on him because she "felt like in this situation [she] had to do it" and "because [she] had no way out." Regarding the next morning, J.G. stated that she went to the hospital because she believed that she had been drugged and that testing done at the hospital revealed the presence of amphetamine in her system. At the end of the hearing, the district court concluded that the evidence was admissible under Rule of Evidence 404(b) and overruled Mcree's Rule 403 objection.
On appeal, Mcree contends that the district court erred by concluding that the evidence was admissible under Rule 404(b) and by overruling his objection that the evidence should not have been admitted under Rule 403. In particular, Mcree argues that there were significant differences between M.C.'s testimony and the testimony given by J.G. during the hearing. For example, Mcree notes that J.G. did not testify regarding any sexually-charged text messages; that J.G., unlike M.C., went to Mcree's house; that Mcree did not purchase a bottle of wine or a similar gift before meeting J.G.; that Mcree did not use a fake last name when interacting with J.G.; that J.G. drank liquor rather than wine; that J.G. testified that she felt like she had no choice but to engage in sexual activity with Mcree; that J.G. was not planning on being intimate with Mcree; and that the testing performed on J.G.'s urine sample revealed the presence of amphetamine rather than methamphetamine. In light of these differences, Mcree contends that J.G.'s testimony could not serve to establish a "particular modus operandi" that set the alleged crimes apart from the allegations common to the types of crime at issue. See Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981) (noting that "[w]hen identity has become a contested, material issue, . . . there must be a showing that the extraneous offense which was committed by the defendant was" sufficiently similar as to mark those crimes as handiwork of defendant). Further, Mcree urges that the limited probative value of the evidence was outweighed by the danger of unfair prejudice.
In his brief, Mcree mentions that after the evidence portion of the trial concluded, he presented evidence during a hearing as part of a motion for new trial potentially indicating that J.G. voluntarily took Adderall, which Mcree asserts is amphetamine. However, that evidence was not before the district court when it made its evidentiary ruling. In addition, Mcree repeats many of his arguments from his previous issues regarding the admissibility of presumptive testing and applies those arguments to the presumptive testing performed on J.G.'s urine sample. As with the arguments regarding the testing performed on a sample obtained from M.C., Mcree did not present those arguments to the district court and has, therefore, waived those issues for appellate consideration.
However, establishing modus operandi and identity are not the only permissible uses for admitting extraneous-offense evidence under Rule 404(b). As set out above, extraneous-offense evidence may be admitted to rebut defensive theories. Prior to the extraneous-offense evidence being admitted, Mcree presented through his questioning of the State's witnesses the defensive theories that M.C. consented to the sexual encounter and that M.C. voluntarily ingested the methamphetamine to enhance her sexual experience, and Mcree attempted to undermine M.C.'s credibility by suggesting that she lied about having agreed to take the methamphetamine in order to avoid any potential negative employment consequences from testing positive for an illegal drug. For example, Mcree cross-examined M.C. regarding the sexual nature of some of her conversations and text messages with Mcree before the alleged offense occurred, regarding whether she had sexual intercourse with Mcree again after the incident in question, regarding whether she was fully honest with the medical personnel at the hospital regarding all of the symptoms (e.g. hallucinations) that she had experienced before seeking treatment, regarding whether her employer required drug-screening tests, regarding whether she would be fired from her job if she tested positive on one of the drug screens, and regarding whether her employer would excuse a positive drug result if she told her employer that she had been given illegal drugs without her knowledge or if she told her employer that she had used drugs to enhance a sexual experience. In addition, Mcree cross-examined Detective Campbell regarding whether M.C. initially reported to him that she had planned on having sex with Mcree on the night of the alleged offense.
Although Mcree points out that there are differences between the charged offenses and the extraneous offense, those "differences do not significantly lessen the relevance of the extraneous acts with respect to the" issues of Mcree's culpable mental state, M.C.'s credibility, and M.C.'s lack of consent. See Brown, 96 S.W.3d at 513. Based on J.G.'s testimony, the district court could have reasonably determined that her testimony "tended to make the existence of" Mcree's guilty intent and the existence of a lack of consent by M.C. "more likely than [they] otherwise would have been." See id. Accordingly, we cannot conclude that the district court abused its discretion by admitting the extraneous-offense evidence under Rule 404(b).
Turning to Mcree's assertion that the evidence should not have been admitted under Rule 403, we note, as discussed above, that the extraneous-offense evidence was relevant to establishing Mcree's intent and to M.C.'s credibility and ability to consent. Moreover, although the extraneous offense occurred more than a year before the offense at issue in this appeal, see Gaytan v. State, 331 S.W.3d 218, 226 (Tex. App.—Austin 2011, pet. ref'd) (explaining that remoteness reduces probative value of extraneous offense "because, logically, the passage of time allows things and people to change"); Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.—Corpus Christi 2002, pet. ref'd) (noting that remoteness of prior offenses affects their probative value), courts have found similar lapses in time did not deplete the probative value of the evidence, see, e.g., Robinson v. State, 701 S.W.2d 895, 898 (Tex. Crim. App. 1985) (concluding that four-to-six-month lapse in time was sufficiently small for extraneous offense to have probative value); Corley v. State, 987 S.W.2d 615, 617, 621 (Tex. App.—Austin 1999, no pet.) (concluding that crime that occurred thirteen years before trial was not too remote). Moreover, "remoteness is not the only factor to consider when analyzing the probative value of evidence of an extraneous offense." Robisheaux v. State, 483 S.W.3d 205, 219 (Tex. App.—Austin 2016, pet. ref'd). Although Mcree asserts that the two offenses were different from one another, they shared significant similarities, including the manner in which the two alleged victims met Mcree, the method by which Mcree prepared and then gave strange-tasting drinks to the victims before initiating a sexual encounter, and the victims' descriptions of symptoms that they experienced after consuming the drinks. Accordingly, the district court could have determined that the probative value of the extraneous-offense evidence was high and weighed in favor of admission.
Regarding the State's need for the evidence, we note that in deciding whether the evidence was needed, courts should consider whether the proponent had other evidence to establish the fact of consequence, how strong the other evidence was, and whether the "fact of consequence related to an issue that is in dispute." See Erazo v. State, 144 S.W.3d 487, 495-96 (Tex. Crim. App. 2004). As discussed previously, at the time that the district court made its ruling, evidence had been introduced indicating that M.C. initially described the sexual activity that occurred between Mcree and her as consensual and that M.C. intended to have sexual intercourse with Mcree on the night of the alleged offenses, and Mcree had attacked M.C.'s credibility and presented through his questioning of the witnesses his defensive theory that M.C. voluntarily ingested the methamphetamine in order to enhance her sexual experience with Mcree. For these reasons, the district court could have determined that the State's need for this evidence was high and also weighed in favor of admission.
Turning to the potential for the evidence to suggest a decision on an improper basis, see Gigliobianco, 210 S.W.3d at 641 (stating that evidence might encourage decision on improper basis if it arouses jury's "hostility or sympathy . . . without regard to the logical probative force of the evidence"), we note that the evidence did concern prior criminal conduct by Mcree and that, unlike M.C., J.G. testified that she felt compelled to perform a sexual act, but the prior offense did involve similar allegations of misconduct, cf. Norwood v. State, No. 03-13-00230-CR, 2014 WL 4058820, at *5 (Tex. App.—Austin Aug. 15, 2014, pet. ref'd) (mem. op., not designated for publication) (explaining that "[w]hen the extraneous offense is no more heinous than the charged offense, evidence concerning the extraneous offense is unlikely to cause unfair prejudice"). Moreover, before the State introduced evidence of the prior offense and later in the jury charge, the district court gave a limiting instruction informing the jury that it could only consider the evidence for limited purposes and only if the jury determined beyond a reasonable doubt that Mcree committed the prior offenses. See id. (noting that "any impermissible inference of character conformity can be minimized by the use of a limiting instruction"). Accordingly, the district court could have reasonably determined that this factor either weighed in favor of admission of the evidence or was neutral regarding the admission.
In addition, the district court could have reasonably determined that the jury would not give undue weight to the testimony regarding the prior offense because the testimony would not address a complex subject matter. See Gigliobianco, 210 S.W.3d at 641 (explaining that scientific evidence is type of evidence that might mislead jury not properly equipped to consider probative value). Accordingly, the district court could have reasonably determined that this factor weighed in favor of admission.
Turning to the potential for the evidence to confuse or distract the jury and the amount of time needed to develop the evidence, we note that the guilt-or-innocence phase of the trial was held over three days, that the reporter's record—excluding testimony presented outside the presence of the jury—constituted approximately 500 pages, and that the testimony regarding the extraneous offense was approximately 93 pages. Although a not insignificant amount of time was spent developing this evidence, the evidence did pertain to a self-contained act that was distinct from the charged offense. Accordingly, the district court could have reasonably determined that these factors either weighed in favor of admission of the evidence or were neutral regarding the admission.
Given our standard of review, the presumption in favor of admissibility, and the resolution of the factors discussed above, we cannot conclude that the district court abused its discretion by overruling Mcree's Rule 403 objection. Compare Schiele v. State, No. 01-13-00299-CR, 2015 WL 730482, at *7, *8 (Tex. App.—Houston [1st Dist.] Feb. 19, 2015, pet. ref'd) (mem. op., not designated for publication) (determining that fact that evidence in dispute spanned 50 pages of 118-page record and was also presented through two recordings weighed against admissibility because evidence consumed "not insignificant" amount of time but still finding that trial court did not abuse its discretion where half of factors relevant to Rule 403 analysis weighed in favor of admissibility), and McGregor v. State, 394 S.W.3d 90, 121-22 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (concluding that fact that evidence of extraneous offenses constituted one-third of trial weighed against admissibility but upholding trial court's decision to admit evidence), with Russell v. State, 113 S.W.3d 530, 543-49 (Tex. App.—Fort Worth 2003, pet. ref'd) (determining that trial court erred by admitting evidence of extraneous offenses where evidence was 30 percent of testimony, where State's need for evidence was low "because ample evidence" existed regarding intent, and where evidence of extraneous offense was "more heinous" than charged offense).
For all of these reasons, we overrule Mcree's third issue on appeal.
Effective Assistance of Counsel
In his fourth issue on appeal, Mcree asserts that he was denied effective assistance of counsel during the trial.
To succeed on an ineffectiveness claim, a defendant must overcome the strong presumption that his trial "counsel's conduct falls within the wide range of reasonable professional assistance" and must show that the attorney's "representation fell below an objective standard of reasonableness . . . under prevailing professional norms" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 689, 694 (1984). "[A]n appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Evaluations of effectiveness are based on "the totality of the representation." Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013); see also Davis v. State, 413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref'd) (providing that assessment should consider "cumulative effect" of counsel's deficiencies). Furthermore, even though a defendant is not entitled to representation that is error-free, a single error can render the representation ineffective if it "was egregious and had a seriously deleterious impact on the balance of the representation." Frangias, 450 S.W.3d at 136; see also Blount v. State, 64 S.W.3d 451, 455 (Tex. App.—Texarkana 2001, no pet.) (explaining that even if "counsel's actions . . . seem imprudent in hindsight, it is not for us to second-guess her strategy").
In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness claims because the record for that type of claim "is generally undeveloped." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (stating that "[i]n the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions"). In addition, before their representation is deemed ineffective, trial attorneys should be afforded the opportunity to explain their actions. Goodspeed, 187 S.W.3d at 392 (stating that "counsel's conduct is reviewed with great deference, without the distorting effects of hindsight"). If that opportunity has not been provided, as in this case, an appellate court should not determine that an attorney's performance was ineffective unless the conduct at issue "was so outrageous that no competent attorney would have engaged in it." See Garcia, 57 S.W.3d at 440.
Regarding the second prong, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim. App. 2013). "It will not suffice for Appellant to show 'that the errors had some conceivable effect on the outcome of the proceeding.'" Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S. at 693). "Rather, he must show that 'there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'" Id. (quoting Strickland, 466 U.S. at 695). "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
When presenting this issue on appeal, Mcree asserts that his trial counsel was ineffective for failing to object to portions of the State's closing argument during the guilt-or-innocence phase of the trial. In particular, Mcree points to the following argument made by the State:
As support for his issue on appeal, Mcree primarily relies on the following three prior opinions: Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Bush v. State, 773 S.W.2d 297 (Tex. Crim. App. 1989); and Hill v. State, 659 S.W.2d 94 (Tex. App.—Houston [14th Dist.] 1983, no pet.). However, we believe that those three cases are distinguishable from the circumstances present in this case. Two of those cases, Bush and Hill, did not involve allegations of ineffective assistance of counsel and instead considered the propriety of jury argument that was allowed over the objections of the defendants' lawyers. 773 S.W.2d at 300, 301 (noting defendant's "strenuous objection" and concluding that State improperly presented argument regarding what potential witness would have testified to if called to stand in order to bolster testimony of other witness and regarding incorrect reasons why potential witness was not called to stand); 659 S.W.2d at 96 (determining that trial court erred by overruling defendant's objection and by "permitting the prosecutor to argue to the jury that the State's eyewitness . . . did not have a criminal record"). Accordingly, those cases did not involve consideration of what a trial attorney's reasoning might have been for failing to object to allegedly improper jury argument. The final case, Andrews, did involve a claim of ineffective assistance of counsel in which the defendant argued that his trial counsel was ineffective for failing to object to the State's incorrect argument "that the [defendant]'s sentences could not be stacked and that the [defendant] would serve no more than twenty years in prison for all four counts," and the court of criminal appeals sustained the issue after explaining that "[t]here can be no reasonable trial strategy in failing to correct a misstatement of law that is detrimental to the client." 159 S.W.3d at 100, 102. In the current case, there is no similar misstatement of law at issue.
Now we've learned a lot about John Mcree over the last three days. We learned that he's left a trail of victims across our area in central Texas. We've got a victim in Bexar County and multiple unknown victims here. In the course of arresting Mr. Mcree, Dave Campbell asked him, "Well, how many ladies have you set up dates with here in San Marcos?"
"Many." . . . Who knows how many ladies are out there who has had the unfortunate circumstances of running across this man's [online dating] profile.
In light of the argument summarized above, Mcree insists that he was deprived of effective assistance of counsel because his trial attorney failed to object to the State's comment about there being "a trail of victims," including one from Bexar County, and about there being "multiple unknown victims" because those statements were beyond the scope of the evidence presented at trial. On the contrary, Mcree asserts that the evidence presented at trial only established two possible victims: M.C. and J.G. Moreover, Mcree urges that the improper arguments were "so prejudicial that [they] require[] reversal."
Because Mcree "is arguing that counsel was ineffective in failing to object to improper jury argument, he must first show that the argument was in fact improper." See Kuhn v. State, 393 S.W.3d 519, 538 (Tex. App.—Austin 2013, pet. ref'd). If the argument is proper, "an attorney's failure to object to proper argument cannot be ineffective assistance." See Richards v. State, 912 S.W.2d 374, 379 (Tex. App.—Houston [14th Dist.] 1995, pet. ref'd). Proper jury argument falls into one of the following categories: "(1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement." See Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). Although the State "may not use closing arguments to present evidence that is outside the record," the State is permitted to draw reasonable inferences from evidence presented at trial. Kuhn, 393 S.W.3d at 541. In addition to showing that the argument is improper, Mcree "must further show that (1) the failure to object to the improper argument constituted deficient performance; and (2) he was prejudiced by that failure." See id. at 539.
During the trial, the jury was presented with evidence showing that Mcree used various aliases. Regarding one of those aliases, evidence was introduced showing that Mcree had in his possession identifying information belonging to Jessop, who lived in San Antonio, and that Mcree used this information when creating fake documents bearing Jessop's name. Accordingly, the State's argument regarding a victim in Bexar County was an accurate summary of some of the evidence presented at trial. Regarding the State's comments that Mcree had potentially victimized more individuals in the manner alleged in this case, evidence was presented to the jury demonstrating that in addition to assaulting and sexually assaulting M.C. after meeting her online, Mcree engaged in similar behavior with J.G. on a prior occurrence. Additionally, the evidence established that Mcree was arrested after attempting to meet with someone who he found through the same online dating site and that Mcree had methamphetamine on him when he was arrested. Moreover, the evidence revealed that when Detective Campbell talked with Mcree, Mcree admitted that he had met "many" women in the San Marcos area using an online dating site. Accordingly, the State's argument was both a summary of and a reasonable deduction from the evidence presented. Cf. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997) (stating that during argument, parties are "allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable and offered in good faith").
Even assuming that the State's argument was not proper jury argument, we would still be unable to conclude that the failure to object under the circumstances present here constituted ineffective assistance of counsel. Although a motion for new trial was filed in this case and although an evidentiary hearing was held before the conclusion of the trial for the purpose of providing a record for a motion for new trial, no ineffective-assistance-of-counsel claim was presented. Accordingly, Mcree's trial counsel has not been provided with the opportunity to explain what her strategy, if any, was for failing to object to the State's argument, and the record on appeal seems insufficiently developed to address this issue. Moreover, it seems reasonable to conclude that Mcree's trial attorney's "decision not to object could have been strategically motivated" as an attempt "to avoid drawing additional attention" to the argument. See Kuhn, 393 S.W.3d at 539; see also Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (explaining that "[w]hen . . . direct evidence is not available, we will assume that counsel had a strategy if any reasonably sound strategic motivation can be imagined"); Cueva v. State, 339 S.W.3d 839, 892 (Tex. App.—Corpus Christi 2011, pet. ref'd) (stating that defense attorney had strategic reasons for not objecting to State's closing argument during punishment phase).
In light of the preceding, we cannot conclude that the alleged failure to object to the complained-of jury argument was so outrageous that no competent attorney would have conducted herself similarly.
Having determined that Mcree has not shown that his trial attorney provided ineffective assistance of counsel on the ground alleged above, we need not further address the matter, but we do emphasize that ineffectiveness challenges are considered in light of "the totality of the representation" provided by the attorney. See Thompson, 9 S.W.3d at 813; see also Simmons v. State, Nos. 03-11-00229—00230-CR, 2012 WL 3629864, at *4 (Tex. App.—Austin Aug. 22, 2012, pet. ref'd) (mem. op., not designated for publication) (determining that "[t]he critical weakness" in ineffectiveness claim was "its failure to consider the totality of trial counsel's representation"); McPherson v. State, No. 03-03-00144-CR, 2004 WL 162942, at *7 (Tex. App.—Austin Jan. 29, 2004, pet. ref'd) (mem. op., not designated for publication) (explaining that "permitting an improper comment to pass without objection would not necessarily render the entire representation ineffective"). Moreover, we note that during voir dire, Mcree's trial attorney emphasized the State's burden of proof, discussed why defendants might not take the stand, moved to strike various members of the jury panel for cause, used peremptory challenges to strike several panelists, and questioned the jury about whether people might voluntarily take drugs to enhance sexual experiences, whether people might lie to their doctors and their parents about having taken illegal drugs, and whether people can indicate an intent to engage in sexual activity through text messages that they send. In the guilt-or-innocence phase, Mcree's trial attorney thoroughly cross-examined the State's witnesses, objected successfully to multiple lines of questioning pursued by the State, urged that the methamphetamine recovered from Mcree's car should have been suppressed, moved to exclude evidence of extraneous bad acts, and called several witnesses to the stand. During her closing arguments, Mcree's attorney asserted that the sexual encounter was consensual, that M.C. agreed to have "methamphetamine-enhanced intercourse," that M.C. and J.G. were not being truthful, that the jury should not consider the extraneous-offense evidence, and that the State had not met its burden of proof. In the punishment phase, Mcree's trial attorney successfully objected to portions of the testimonies by the State's witnesses, cross-examined the State's witnesses, called a witness to testify on Mcree's behalf, informed the jury that they had the option of placing Mcree on community supervision rather than sending him to prison, and argued during her closing that Mcree was a good person who had been changed by his use of illegal drugs, that Mcree's actions stemmed from his insecurity, that no violence was used in the offense, that the State had not shown that a lengthy punishment was warranted, and that Mcree would benefit from rehabilitation.
In the absence of further information, we conclude that the totality of the representation would seem to reflect that Mcree was not provided with ineffective assistance of counsel.
For all of these reasons, we overrule Mcree's fourth issue on appeal.
Nunc Pro Tunc Deadly Weapon Finding
In his fifth issue on appeal, Mcree contends that the district court erred when it entered a deadly-weapon finding for the aggravated-sexual-assault charge in a judgment nunc pro tunc because there was no deadly-weapon allegation in the indictment and no deadly-weapon instruction in the jury charge. Furthermore, Mcree asserts that methamphetamine, unlike a firearm, is not a deadly weapon per se. Moreover, although Mcree acknowledges that there was a proper deadly-weapon finding in the aggravated-assault conviction and that the sentences for his two convictions will be served concurrently, he still urges this Court to reform the aggravated-sexual-assault conviction "to properly reflect that there was no deadly weapon finding." Additionally, Mcree contends that the error could affect his parole eligibility. In its appellee's brief, the "State concedes that the nunc pro tunc was not appropriate in this case" but asserts that Mcree's rights were not affected because the deadly-weapon finding will not affect Mcree's eligibility for parole. However, the State explains that it "is not opposed to amending the judgment to remove the deadly weapon finding entered in the judgment nunc pro tunc."
"There are three instances in which an affirmative finding of use of a deadly weapon may properly be made: (1) the indictment specifically alleges the words 'deadly weapon' in describing the weapon used and the verdict reads guilty 'as charged in the indictment'; (2) the indictment names a weapon that is per se a deadly weapon and the verdict reads guilty 'as charged in the indictment'; or (3) a special issue is submitted during the punishment phase of trial to the trier of fact and answered affirmatively." Pena v. State, No. 04-08-00365-CR, 2008 WL 5083130, at *1 (Tex. App.—San Antonio Dec. 3, 2008, no pet.) (mem. op., not designated for publication) (quoting DeAnda v. State, 769 S.W.2d 522, 523 (Tex. Crim. App. 1989)). Having reviewed the record, we agree with Mcree that no deadly-weapon allegation was included in the portion of the indictment pertaining to the aggravated-sexual-assault charge and that no deadly-weapon instruction was provided to the jury during the punishment phase, and we have been unable to find any case law supporting the idea that methamphetamine is a deadly weapon per se.
This Court has the authority to modify incorrect judgments when it has the information necessary to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, we sustain Mcree's fifth issue on appeal.
CONCLUSION
Having sustained Mcree's fifth issue on appeal, we modify the district court's judgment of conviction for aggravated sexual assault rendered nunc pro tunc to remove the deadly-weapon finding. Having overruled Mcree's four other issues on appeal, we affirm the district court's judgment of conviction for aggravated sexual assault rendered nunc pro tunc as modified and affirm the district court's judgment of conviction for aggravated assault.
/s/_________
David Puryear, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed in part; Modified and, as Modified, Affirmed in part Filed: March 30, 2018 Do Not Publish