RAYMOND CHARLES KILSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 19, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-92-02157-CR
No. 05-92-02158-CR
............................
RAYMOND CHARLES KILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F91-03950-QL & F91-03949-QL
..............................................................
O P I N I O N
Before Justices Chapman, Whittington, and Wright
Opinion By Justice Chapman
        Appellant Raymond Charles Kilson appeals two convictions for the offense of aggravated sexual assault. Appellant pleaded not guilty. A jury found appellant guilty and assessed his punishment at thirty years' confinement in the penitentiary in cause number F91-03949-QL and thirty-five years' confinement in the penitentiary in cause number F91-03950-QL. In three points of error, appellant contends that (1) his trial counsel failed to provide effective assistance, (2) the trial court erred in admitting evidence of extraneous offenses, and (3) the trial court erred in overruling his motions to quash the indictments for lack of sufficient notice. We affirm the trial court's judgments.
FACTUAL AND PROCEDURAL BACKGROUND
        The complainant testified that appellant was her mother's boyfriend. When the complainant was eleven years old, she began living with her mother and appellant. In October of 1990, shortly before the complainant's twelfth birthday, the complainant's mother told her that they were going to play a game. The complainant's mother blindfolded her and told her not to put on her clothes. The complainant's mother, who also was naked, led the complainant into the living room and had the complainant lie on a blanket on the floor. The complainant's mother called appellant; the complainant knew it was appellant because she recognized his voice. Appellant got on top of the complainant and put his penis in the complainant's vagina.
        On October 20, 1990, the complainant's twelfth birthday, the complainant's mother again told the complainant to lie on the floor. This time there was no blindfold. Appellant, who was not wearing clothes, got on top of the complainant and penetrated the complainant's vagina with his penis. The complainant's mother was in the room during this incident.
        Sometime after Thanksgiving 1990, the complainant's family and appellant moved from a trailer to an apartment. Appellant had sex with the complainant more than once in the apartment. One time the intercourse occurred in the complainant's bedroom; the complainant's mother was in the room, and appellant's penis penetrated the complainant's vagina.
        On more than one occasion, the complainant saw appellant give her mother a rock in a little bag before appellant had intercourse with the complainant. The complainant explained that the rock was a drug; she had seen her mother smoke the drug. The complainant told her grandmother about what appellant had been doing to her.
        On cross-examination, the complainant testified that her mother had never used crack before she met appellant. She testified that she was not happy with her mother's crack use and was very upset about appellant's providing crack to her mother. The complainant stated that it was necessary to do "whatever" to put a stop to that. She stated on redirect, however, that she did not make up her story about appellant having sexual intercourse with her.
        Dorothy Davis, the complainant's grandmother, testified that Davis's son suggested she talk with the complainant about possible sexual abuse. Davis asked the complainant if appellant had been "fooling with her." The complainant replied that appellant had "messed with her" at the trailer and at the apartment. Davis further testified that the complainant told her that when appellant got paid on Wednesdays, he would buy drugs and give them to the complainant's mother, and then the complainant's mother would let appellant have sex with the complainant in exchange for the drugs.
        On the day the complainant told Davis about the sexual abuse, Davis took the complainant to see a doctor. Dr. Daniel Metzger testified that, on February 7, 1991, he performed a pelvic examination on the complainant in response to concerns that she had been sexually abused. The exam indicated that there had been previous penetration of the complainant's vagina, probably multiple previous penetrations. It was related to Metzger that the alleged perpetrator may have been exposed to syphilis. Metzger tested the complainant for syphilis, but the test was negative.
        After appellant was arrested, Grady Ford, a detective with the Dallas Police Department, interviewed appellant concerning the charges against him. Appellant gave a written statement. Detective Grady testified that appellant did not appear intoxicated or incoherent at the time he gave the statement. In his written statement, appellant admitted having intercourse with the complainant on several occasions and claimed that the complainant initiated the first of these acts.
        Appellant testified at trial that he did not do any of the things about which the complainant testified. According to appellant, the complainant, her grandmother, and Detective Grady lied when they testified. Appellant stated that, on the day of his arrest, he had been drinking beer and did not remember talking to the detective or giving him a statement. But appellant said he was sober enough to know that he did not write the statement. Appellant suspected that Grady forged his signature on the statement. Appellant testified that if he actually signed the statement, he did not know what he was signing.
ADMISSION OF EXTRANEOUS OFFENSES
        In his second point of error, appellant contends that the trial court erred in admitting evidence of extraneous offenses, namely evidence that appellant had delivered crack cocaine to the complainant's mother. Appellant asserts that the offenses were not admissible under rule of criminal evidence 404(b) and that their admission prejudiced his right to a fair trial. Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Tex. R. Crim. Evid. 404(b).
        The determination of the admissibility of evidence is within the sound discretion of the trial judge, and that determination should not be reversed on appeal absent a clear abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 378-79 & n.6 (Tex. Crim. App. 1990). Evidence of extraneous offenses that are indivisibly connected to the charged offense and necessary to the State's case in proving the charged offense may be admissible as relevant evidence to explain the context of the offense for which the defendant is on trial. Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 849 (1993); Ivatury v. State, 792 S.W.2d 845, 851 (Tex. App.--Dallas 1990, pet. ref'd). Such evidence imparts to the trier of fact information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215 (1994). As such, it is admissible, not for the purpose of showing character conformity, but to illuminate the nature of the crime alleged. Id.
        The evidence of appellant's delivery of cocaine to the complainant's mother was admissible as same transaction contextual evidence of the sexual assault offenses. Evidence that the complainant's mother received cocaine from appellant was necessary to the State's case because it helped explain to the jury how the complainant's mother could have arranged for her daughter to have intercourse with appellant. The drug evidence was so closely interwoven with the offenses on trial that it was admissible to show the complete set of circumstances. See Lincecum v. State, 736 S.W.2d 673, 681 (Tex. Crim. App. 1987) (trial court did not err in admitting evidence that defendant, on trial for murder of one victim, also killed victim's son), cert. denied, 486 U.S. 1061 (1988).
        Appellant did not object at trial on the grounds that the probative value of the evidence was outweighed by its prejudicial effect. Thus, because the evidence has relevance apart from character conformity, this Court need not weigh the probative value of the evidence against its prejudicial effect. See Beasley v. State, 838 S.W.2d 695, 701-02 (Tex. App.--Dallas 1992, pet. ref'd), cert. denied, 510 U.S. 969 (1993); see also Tex. R. Crim. Evid. 403. When evidence of an extraneous offense is admitted because it shows the context of the charged offense, however, the prejudicial effect of the evidence will rarely render it inadmissible. Lockhart, 847 S.W.2d at 572. Accordingly, we conclude the trial court did not abuse its discretion in admitting evidence that appellant gave drugs to the complainant's mother. See Saenz v. State, 843 S.W.2d 24, 27 (Tex. Crim. App. 1992). We overrule appellant's second point of error.
EFFECTIVE ASSISTANCE OF COUNSEL
        In his first point of error, appellant contends that his trial counsel failed to provide effective assistance of counsel. Appellant contends trial counsel was ineffective for two reasons: (1) counsel's failure to request limiting instructions regarding the extraneous drug offenses, and (2) improper closing argument by counsel at the guilt/innocence phase.
Standard of Review
        The court of criminal appeals has adopted the test for ineffective assistance of counsel first set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989). Under this test, a convicted defendant must show that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced the defense to such a degree that he was deprived of a fair trial. Id.; Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Holland, 761 S.W.2d at 314; Wilkerson, 726 S.W.2d at 548 n.3. Whether a defendant has received effective assistance of counsel is to be judged by the totality of the representation, not isolated acts or omissions of trial counsel. Wilkerson, 726 S.W.2d at 548.
        We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for trial counsel's actions. Weeks v. State, 894 S.W.2d 390, 391 (Tex. App.--Dallas 1994, no pet.). When the record contains no evidence of the reasoning behind trial counsel's action, we cannot conclude that counsel's performance was deficient. Weeks, 894 S.W.2d at 391 (citing Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994)). A silent record does not require an appellate court to speculate on the reason for trial counsel's decisions. Weeks, 894 S.W.2d at 391-92. When the "cold record" clearly confirms that no reasonable trial counsel could have made such trial decisions, however, to hold counsel ineffective is not speculation. Weeks, 894 S.W.2d at 392.
        In reviewing a complaint of ineffective assistance of counsel relating solely to the punishment phase of a trial, the two-pronged analysis of Strickland does not apply. Ex parte Walker, 777 S.W.2d 427, 431 (Tex. Crim. App. 1989). The appropriate test is, first, whether counsel was reasonably likely to render effective assistance, and second, whether counsel reasonably rendered effective assistance. Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992); Ex parte Duffy, 607 S.W.2d 507, 541 n.4 (Tex. Crim. App. 1980).
Failure to Request Limiting Instruction
        First, appellant contends that counsel should have requested the inclusion of a limiting instruction in both the guilt/innocence charge and the punishment charge, limiting the jury's consideration of the evidence of appellant's delivery of cocaine to the complainant's mother.
        As previously discussed, evidence that appellant delivered drugs to the complainant's mother was admissible because it was same transaction contextual evidence. When extraneous offense evidence is admissible because it is same transaction contextual evidence, it is not subject to a limiting instruction. Camacho, 864 S.W.2d at 535. Thus, appellant's counsel cannot be considered ineffective for failing to request such an instruction.
Jury Argument
        Second, appellant contends that counsel was ineffective because he assumed the role of the prosecutor in his jury argument at the guilt/innocence phase. Appellant complains about his counsel's argument for various reasons. For example, appellant asserts that counsel did not argue in support of appellant's testimony that he did not commit the offenses and did not sign the confession; instead, he told the jury that appellant had a motive to not be truthful. Among other complaints, appellant disapproves of counsel's referring to him as "a mess," stating that he was feeding the complainant's mother's crack habit, and stating he had a sexually transmitted disease.
        The following are the excerpts from defense counsel's closing argument about which appellant complains:
            One thing we've got to agree on in this trial, beyond any doubt whatsoever, Raymond is a mess. We're going to have to agree on that. Anyone that sat and heard Raymond's testimony today, with reference to Raymond's testimony, Raymond is a mess. Does that mean that Raymond is guilty? Just because he is a mess doesn't mean he is guilty.
 
            . . . .
 
            I'm sure there are exceptions somewhere, but it is the defendant that has the most to gain or lose and the defendant is the one that is looking at being locked up for the rest of his life, so, yeah, he's got a motive not to tell the truth. . . .
 
            Raymond has plenty of motive. I guess Raymond is the only person who has any motive, right? Well, maybe and maybe not. . . .
 
            We know that [the complainant] told you that [she] did not like Raymond. According to [the complainant], Raymond was feeding her mother's crack habit. . . .
 
            . . . .
 
            You say, Driscoll [defense counsel], what about Sergeant Ford, Grady Ford, a Dallas officer for twenty-some-odd years, thirty years, something like that. He seemed like such a nice fellow.
 
            Let's see. The Defendant testified that he had been drinking and I would say it is a reasonable deduction that the sum and total of the Defendant's testimony is that he's just flat not sure what happened that afternoon when he got arrested back in February as a result of his drinking.
 
            . . . .
 
            Say, Driscoll, that statement, what Kilson said, he contradicted himself eighteen times. I would say to you that he contradicted himself thirty-six times. That doesn't necessarily mean he is lying.
 
            . . . .
 
            What else did this objective witness [Dr. Metzger] tell us? Apparently, it is known to the grandmother Raymond had a problem with a communicable social disease, a sexually-transmitted disease. They checked the girl for syphilis. It is negative. That's supposed to be the thing that would nail his hide to the wall and it ain't there.
 
            . . . .
 
            Say, Driscoll, I feel bad for that kid. I feel bad for that kid and Raymond is a mess. If nothing else, I know that Raymond was feeding a woman's crack habit and Raymond is a dirt ball for that. Raymond ain't charged with being a dirt ball. Raymond is charged with aggravated sexual assault. It may have happened the way the girl testified to, but it may not.
 
        When counsel's closing argument is viewed in its proper context, we cannot say that no possible tactical basis existed for the arguments counsel made. See Weeks, 894 S.W.2d at 391-92. We are thus unable to conclude that counsel's performance was deficient. We overrule appellant's first point of error.
MOTIONS TO QUASH THE INDICTMENTS
        In his third point of error, appellant contends that the trial court erred in overruling his motions to quash the indictments for lack of sufficient notice. The motion to quash in cause number F91-03949-QL was filed by appellant pro se, and appellant's attorney filed the motion to quash in cause number F91-03950-QL.
        We conclude that appellant has waived this point of error because his one-paragraph argument is not specific enough to identify his complaint regarding the indictments. The following is the entirety of appellant's argument:
            Appellant filed timely motions to quash the indictments on the grounds that the [sic] failed to provide sufficient notice for Appellant to know the charge he was being required to defend against (T 7, SF 3). The trial judge erred in not granting the motion and Appellant is entitled to a new trial. See Inman v. State, 650 SW2d 417; Castillo v. State, 689 SW2d 443; and Coates v. State, 712 SW2d 520.
 
This argument does not explain to the Court how the indictments failed to provide sufficient notice of the offenses charged. See Tex. R. App. P. 74(f). Although appellant cites to a page in the transcript, he does not specify to which of the two transcripts he refers. A motion to quash is found on page seven of either transcript; however, the motions are not the same.
        Moreover, the indictments in this case tracked the relevant portions of the statute involved. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 1997). An indictment is generally sufficient if it charges an offense in the terms of the statute. Caro v. State, 771 S.W.2d 610, 614 (Tex. App.--Dallas 1989, no pet.); see Broach v. State, 700 S.W.2d 624, 625 (Tex. App.--Eastland 1985, no pet.). We overrule appellant's third point of error.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          RON CHAPMAN
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
922157F.U05
 
 
File Date[11-18-96]
File Name[922157F]