Navid Ocheghaz Ghahremani v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmed and Memorandum Opinion filed October 30, 2007

Affirmed and Memorandum Opinion filed October 30, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00729-CR

NO. 14-06-00730-CR

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NAVID OCHEGHAZ GHAHREMANI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause Nos. 1030953 and 1030954

M EM O R A N D U M O P I N I O N

Appellant Navid Ocheghaz Ghahremani appeals his convictions for sexual assault of a child and aggravated sexual assault of a child. He asserts the trial court erred in (1) denying his request for a hearing on his motion for new trial, (2) in denying his request for a voir dire examination of a witness, and (3) in allowing the State=s expert testimony during the punishment phase. Appellant also claims the State committed prosecutorial misconduct during the punishment phase. We affirm.

I. Factual and Procedural Background

Appellant met L.S., a thirteen-year old girl, on the internet. In the course of their conversation, L.S. stated that she was a fifteen-year-old girl. Appellant told L.S. that he was twenty years old. During their internet encounters, appellant and L.S. discussed sexual intercourse and made plans to meet in person. Many of L.S.=s friends knew about her online Arelationship@ with appellant. However, L.S.=s parents believed L.S. was communicating with a boy who attended her school.

With appellant=s encouragement, L.S. developed a story to tell her parents so that she could meet appellant in person. L.S. told her parents that she and her thirteen-year old girlfriend, J.R., planned to spend the night at another school friend=s home. J.R. told her parents the same story. The real plan, however, was for appellant to pick both of the girls up that evening. Appellant picked the girls up and drove them to a mall. After leaving the mall, appellant drove them to a tattoo parlor, and J.R. went inside. During this time, L.S. and appellant talked and kissed. When they stopped kissing, appellant turned his head and then turned back to kiss L.S. again. During this kiss, L.S. felt a pill dissolve in her mouth. When L.S. asked appellant what the pill was, he replied AEcstasy.@ Then, appellant told L.S. to pull her pants down so that he could touch her. Appellant penetrated her vagina with his finger. Appellant pulled his pants down, and L.S. performed oral sex on him. Appellant and L.S. stopped because J.R. was waiting for them.

Soon thereafter, appellant and L.S. joined J.R. in the tattoo parlor. While the girls got their ears pierced, J.R. noticed that L.S. was shaky, and appeared Ahigh.@ Afterwards appellant drove the girls to his apartment. L.S. asked appellant to take them to their friend=s house, and appellant refused. With no way to get to their friend=s house, the girls spent the night at appellant=s apartment. Appellant fixed the girls alcoholic drinks and offered them Xanax pills. L.S. fell asleep and awoke to discover that appellant was having sex with her, which hurt L.S. immensely. However, L.S. was unable to stop appellant and passed out. L.S. awoke one other time to find that appellant was having sex with her again. Also during this same night, J.R. awoke on two occasions to find appellant having sex with her.

The following morning, L.S. asked appellant if they had engaged in sexual intercourse, and appellant confirmed that they had. Appellant was washing his sheets and explained that he was doing so because L.S. had thrown up all over them. Eventually, appellant drove L.S. and J.R to school to drop them off. At school, L.S. became nauseous and had severe pain in her vagina. She had trouble walking, and her speech was slurred. J.R. also had immense pain in her vagina and noticed that she was bleeding.

L.S. called a friend for a ride home. After the friend picked L.S. up from school, L.S. explained to the friend what had happened to her. The friend convinced L.S. to tell her parents. When L.S. arrived at home, she was still in pain, and it was getting worse. After L.S. told her mother what had happened, she went to the bathroom and realized that she was bleeding. L.S.=s father called 9-1-1 for medical help and also summoned the police. L.S. was taken by ambulance to the hospital.

Meanwhile, back at the school, J.R. told a teacher what had happened to her the night before. The teacher called J.R.=s father to pick the girl up from school. When her father arrived, J.R. told him what had happened. Her father called the police. J.R. told the responding officer what had happened to her and L.S. at appellant=s apartment.

Appellant was charged with the offense of aggravated sexual assault of a child in cause number 1030953, and sexual assault of a child in cause number 1030954. Appellant pleaded Anot guilty@ to both charges. A jury found appellant guilty as charged, and assessed punishment at twenty-eight years= confinement in cause number 1030953, and twenty years= confinement in cause number 103954. Appellant timely appealed. On December 28, 2006, appellant filed a motion to abate, claiming that the trial court had abused its discretion by denying him a hearing on his motion for new trial. This court denied appellant=s motion to abate. In his appellate brief on the merits, appellant urges this court to reverse and remand or, alternatively, to abate the appeal.

II. Issues Presented

Appellant raises four issues on appeal:

(1) The trial court abused its discretion by denying appellant=s request for a hearing on his motion for new trial.

(2) The trial court erred in denying appellant=s request to conduct a voir dire examination under Texas Rule of Evidence 705(b) of the state=s expert, Dr. Lawerence Thompson, during the punishment phase of trial.

(3) The trial court erred in allowing Dr. Thompson=s testimony during the punishment phase of trial in violation of Texas Rule of Evidence 702 and over appellant=s repeated objections, leaving the jury with the unmistakable impression that sex offenders are incapable of being cured.

(4) The prosecutor=s repeated attempts to inject inadmissible and highly prejudicial evidence before the jury either by ignoring or circumventing the trial court=s rulings was prosecutorial misconduct that entitles appellant to a new punishment hearing.

III. Analysis

 A. Did the trial court err by denying appellant=s request for a hearing on his motion for new trial?

In his first issue, appellant contends that the trial court erred by denying his request for a hearing on his motion for new trial. In that motion, appellant asserted the following grounds:

(1) Prosecutorial misconduct during the examination of the state=s expert witness, Dr. Thompson.

(2) Fundamental error in the trial court=s punishment charge.

(3) Ineffective assistance of counsel at the punishment stage based on trial counsel=s alleged failure to:

(a) preserve error during direct examination of Dr. Thompson,

(b) interview and present an expert on treatment of sex offenders, and

(c) call punishment witnesses in support of community supervision.

On appeal, appellant contends this court should abate for a hearing in the trial court based on the above grounds.[1] Appellant=s arguments in his first issue on appeal focus on the sufficiency of the affidavit attached to his motion. To be entitled to a hearing, appellant must raise matters not determinable from the record upon which he could be entitled to relief. See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). In addition, appellant must present an affidavit showing the truth of the grounds in the motion, and his motion or affidavit must reflect that reasonable grounds exist for holding that the relief could be granted. See id. For reasons explained below, we conclude that with respect to each ground for relief asserted, the trial court did not err in ruling that appellant failed to satisfy these requirements. Therefore, it is not necessary to resolve appellant=s arguments as to the form of his counsel=s affidavit.

1. Alleged Prosecutorial Misconduct

In his first ground for relief, appellant contends that he is entitled to a hearing on his motion for new trial based on alleged prosecutorial misconduct during the State=s examination of Dr. Thompson during the punishment phase. Appellant alleges that the prosecutor committed prosecutorial misconduct because he continued to ask questions about matters that the trial court correctly had concluded were inadmissible. In his motion, appellant specifies eleven such questions. Appellant asserts that the record and the State=s line of questioning show reversible error due to prosecutorial misconduct. All identified instances of alleged prosecutorial misconduct are in the record. This ground does not raise matters not determinable from the record. Accordingly, the trial court did not abuse its discretion in denying appellant a hearing as to this ground. See Lindley v. State, 24 S.W.3d 435, 436 (Tex. App.CTexarkana 2000, no pet.) (holding that trial court did not err in denying hearing on motion for new trial grounds that were determinable from the record).

2. Alleged Fundamental Error in the Punishment Charge

In his second ground for relief, appellant contends that he is entitled to a new trial because the punishment-phase jury charge was fundamentally defective in omitting the statutory language that he would not be entitled to good-conduct time in calculating his parole eligibility. Appellant does not direct us to any facts outside the record in connection with this ground for relief. The jury charge on punishment is in the record. Because in this ground appellant has not raised matters not determinable from the record, the trial court did not abuse its discretion in denying appellant a hearing as to this ground. See Lindley, 24 S.W.3d at 436.

3. Alleged Ineffective Assistance of Counsel

In his third ground, appellant asserts that he is entitled to a new trial because he was denied effective assistance of counsel during the punishment phase, and appellant specifies three instances of alleged ineffective assistance of counsel.

In his first claim of ineffective assistance of counsel, appellant contends that his trial counsel was ineffective for failing to preserve error as to the State=s allegedly improper questioning of the State=s expert (Dr. Thompson) during the punishment phase. In his second claim of ineffective assistance, appellant contends that his counsel failed to interview and present a defense expert on the treatment of sex offenders during the punishment phase. The record reveals these alleged failures, and appellant did not direct the trial court to any facts outside the record to support these allegations. Appellant asserted his trial counsel=s failures in this regard showed conduct that was objectively deficient. Regardless of the merits of these grounds, they raise matters determinable from the record. Therefore, the trial court did not abuse its discretion in denying appellant a hearing as to these grounds. See Lindley, 24 S.W.3d at 436; Castoreno v. State, 932 S.W.2d 597, 605 (Tex. App.CSan Antonio 1996, pet. ref=d) (holding trial court did not err in denying hearing as to new-trial ground that raised matters determinable from the record).

In his final claim for ineffective assistance, appellant contends that his counsel failed to call punishment-phase witnesses who were available to testify. Appellant contends that prior to trial, his counsel interviewed at least six witnesses who were available to testify on his behalf. However, neither in his motion nor in its supporting affidavit does appellant identify these witnesses or state what their testimony would have been had they testified. Furthermore, as appellant states in his motion for new trial, both he and his trial counsel stated on the record that the appellant=s failure to call any witnesses during the punishment phase was (1) a Astrategic decision@ to prevent the State from presenting rebuttal evidence and (2) based on the defense=s determination that the record to that point was sufficient. Appellant states that he should have the opportunity to prove that this strategic decision Awas the result of an unreasonably objective investigation.@ Appellant=s counsel=s affidavit filed in support of the motion for new trial does not develop what the testimony of these witnesses would have been or state how his trial counsel=s failure to call these witnesses was not reasonable trial strategy. Even presuming that appellant alleged that his trial counsel=s investigation was Aobjectively unreasonable,@ the affidavit presented by counsel did not describe in any way what kind of investigation was undertaken or how it was objectively unreasonable. Because appellant=s affidavit did not show that reasonable grounds existed for holding that the relief could be granted, the trial court did not abuse its discretion in denying appellant a hearing as to this ground. See King v. State, 29 S.W.2d 556, 569 (Tex. Crim. App. 2000) (holding that trial court did not err in refusing a hearing when motion for new trial and affidavit failed to explain what investigation trial counsel should have conducted regarding alibi witness, who appellant=s alleged alibi witness was, or how an alibi defense could have been persuasive given the evidence); Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (concluding that trial court did not abuse its discretion in failing to hold a hearing on motion for new trial because the affidavit did not state what the two witnesses who were not subpoenaed would have said, why trial counsel=s investigation was deficient, or what further investigation would have revealed).[2]

We conclude that the trial court did not abuse its discretion in denying appellant a hearing on his motion for new trial. Accordingly, we overrule appellant=s first issue.

 B. Did the trial court err in denying appellant=s request to conduct a voir dire examination under Texas Rule of Evidence 705(b) of the state=s expert during the punishment phase of trial?

In appellant=s second issue, he alleges that the trial court erred in denying his request for a voir dire examination of the State=s expert, Dr. Lawerence Thompson, outside the presence of the jury. Tex. R. Evid. 705 (a)B(b). Texas Rule of Evidence 705(b) provides that, before an expert gives an opinion, a party against whom the opinion is offered, upon request, shall be permitted to conduct a voir dire examination, which shall be outside the hearing of the jury and Adirected to the underlying facts or data upon which the opinion is based.@ Tex. R. Evid. 705 (b). The purpose of such a voir dire examination would have been for appellant to explore the facts and data underlying Dr. Thompson=s opinions. See id; Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 1995) (op. on reh=g).

The State contends that appellant failed to preserve error on this issue because appellant=s attorney did not initially specify whether he was seeking a general voir dire of the witness, or a voir dire under Rule 705(b). We disagree. In this case, before Dr. Thompson gave any expert opinion during the punishment phase, appellant requested a voir dire examination under Rule 705(b), and the trial court denied this request. We find no merit in the State=s preservation argument. Any error was preserved.

Dr. Thompson=s punishment-phase testimony occupies less than fourteen pages of the reporter=s record. After the trial court denied appellant=s request for a voir dire examination directed to the underlying facts or data upon which Dr. Thompson=s opinions are based, the only questions that Dr. Thompson answered on direct examination were the following:

[The State]: Have you dealt with predators in that age group that have groomed young girls?

[Witness]: I have.

. . .

[The State]: Are you familiar with studies dealing with whether these people can be cured of this?

[Witness]: I am.

[The State]: Tell us what specifically C not the findings, but tell us what studies that you are familiar with.

. . .

[Witness]: Okay. Um, I=m specifically, um, familiar with, um, literature from the, um, Association for the Treatment of Sexual Abusers, um, as well as literature from the um, sex offender, um, rehabilitation program, um, within the confines of the Texas Department of Criminal Justice, um, and um, also studies by, um, in terms of one author, Dr. Judy Johnson, um, is one author who=s written, um, some works with regards to sex offenders and there being no cure, um, for sex offenders.

[Defense Counsel]: Judge, objection to that.

[The Court]: Sustained. Approach, please.

(Off the record discussion)

[The Court]: Ladies and gentlemen, you=re instructed to disregard the last response of this witness.

[The State]: All right. Dr. Thompson, without going into the conclusions made in these studies, okay, I want to continue with the studies that you=re familiar with, the training that you had related to the offenders. The last one you left off with was C tell me what that was called again.

[Witness]: Dr. Johnson.

[The State]: Okay.

[Witness]: And I referenced the Sex Offender Rehabilitation Program, Association for the Treatment of Sexual Abusers.

[The State]: What=s that association? What=s their focus?

[Witness]: Their focus is treatment of sex offenders. And as such, they come up with guidelines to help guide the practice of those who work with people who are adjudicated sex offenders.

[The State]: And that C what=s the population that C the number of people for those studies that are used to establish those guidelines and to make those determinations?

[Witness]: Literally, thousands of sex of [sic] offenders who have been worked with.

. . .

[The State]: And you said C the other organization that you mentioned before this last one was theC

[Witness]: Sex Offender Rehabilitation Program.

[The State]: Yes, sir. What do they deal with?

[Witness]: Well, this is a program that=s available in the Texas Department of Criminal Justice.

[The State]: Let me rephrase my question. Are you familiar with studies that address whether these types of behaviors are learned or not? Grooming, for example?

[Witness]: Yes.

[The State] Okay. And what are some of those studies?

. . .

[Witness] Well, the same literature I=m referring to addresses that, as well as the literature on victims of child sexual abuse certainly, um, references that to, [sic] um, the, um, one very important, um, um, literature review pertaining to everything regarding child sexual abuse, um, was done by Lucy Berliner (phonetic), And that references C

[The State]: How many?

[Witness]: It references many, many articles pertinent to just the topics you=re speaking of.

. . .

[The State]: Okay. What=s the rough population that that addresses? How many thousands or millions of sex offenders are we talking about?

[Witness]: Well, I don=t know that I could say millions; but certainly with the literature review referencing, I know it references over fifty studies, um, you know, that C there are hundreds of offenders that are part of what=s went into that. And it=s not just the offenders that are being focused on in those studies. It=s child sexual abuse, more generally offenders, but also victim-related stuff.

[The State]: Sure. And without going into the findings of those studies, tell the jury the areas that that specific study your=re talking about, that review of those studies, what did it C in terms of offenders, what was its focus?

. . .

[Witness]: Okay. Um, the particular literature that I=m referring to, um, that one, um, in terms of offenders, um, it certainly goes into, um, grooming, um, different ways that offenders will lure, um, children, um, to abuse them, um, it, um, goes into some treatment, um, issues.

[The State]: And that=s C without telling the jury the findings, I want you to be specific about the areas of treatment that it addresses, as well as whether or not it addresses curabilities of these offenders.

[Witness]: That particular literature C

. . .

[The State]: Is there specific literature that addresses, just yes or no, specific literature that addresses whether or not sex offenders can be cured? Just yes or no?

[Witness]: Yes.

[The State]: Are you familiar with that body of literature?

[Witness]: Yes.

[The State]: Have you been studying that body of literature since you were a graduate student?

[Witness]: Yes.

[The State]: Have you C have you applied the theories in that literature to your own practice?

[Witness]: Yes.

[The State]: Do you have an opinion as to whether sex offenders can be cured?

[Witness]: Yes.

[Defense Counsel]: Objection, judge.

[The Court]: He may state that he has an opinion.

[The State]: What=s that opinion?

[Defense Counsel]: Objection.

[The Court]: Sustained.

[The State]: Do you have an opinion as to whether or not C just yes or no C whether or not these behaviors of these sex offenders, whether or not this is something that a person chooses to do?

[Witness]: Yes.

[The State]: Okay. And what is that opinion?

[Defense Counsel]: Objection, Judge.

[The Court]: Sustained.

On cross-examination, appellant=s trial counsel asked whether judges are fools for putting people on probation that have any kind of sex offense, and Dr. Thompson answered that he would never characterize a judge as a fool.

On redirect examination, Dr. Thompson testified as follows:

[The State]: [Defense counsel] asked you about sex offenders on probation. Do you have an opinion regarding whether offenders are good candidates for probation?

[Witness]: I do.

[The State]: And what is that opinion?

[Defense Counsel]: Judge, objection.

[The Court]: Sustained.

[The State]: Judge, he ignored it [sic] by asking my witness about probation.

[The Court]: He=s not going to give his opinion.

[The State]: Can a sex offender be cured if he=s left on the streets?

[Defense Counsel]: Objection, Judge. He knows that=s improper.

[The Court]: Sustained. Is there anything else?

[The State]: In your experience, have you known sex offenders that change while being on probation?

[Defense Counsel]: Objection, Judge. It=s backhanded opinion testimony in a different form.

[The Court]: Not this one. Your objection is overruled on this one.

[Witness]: Would you repeat the question, please?

[The State]: Do you have an opinion as to whether or not sex offenders C I=m sorry C in your experience, based on your experience, have you seen sex offenders change if they=re left on the street?

[Witness]: Could C

[The State]: Change for the better if left on the street?

[Witness]: In my clinical experience, I have not seen sex offenders who were just left on the street, as you put it, get better.

The trial court instructed the jury to disregard Dr. Thompson=s volunteered answer that Dr. Judy Johnson believes there is no cure for sex offenders, and we presume that the jury followed this instruction. See Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000). In any event, this answer did not state any opinion of Dr. Thompson. A review of Dr. Thompson=s testimony shows that he never stated any opinion during his punishment-phase testimony. The trial court sustained several of appellant=s objections to questions soliciting Dr. Thompson=s opinions on various matters. When the State again asked for an opinion from Dr. Thompson on redirect, and apparently argued that appellant had opened the door to such testimony by his cross-examination, the trial court again sustained appellant=s objection, stating that AHe=s not going to give his opinion.@ Because the trial court would not let Dr. Thompson offer any expert opinion testimony, it is not apparent that Rule 705(b) even applies, because it states that, upon request, appellant shall be permitted to conduct a voir dire examination Adirected to the underlying facts or data upon which the opinion is based.@ Tex. R. Evid. 705 (b) (emphasis added); see Vasquez v. State, 819 S.W.2d 932, 935 (Tex. App.CCorpus Christi 1991, pet. ref=d) (holding that Rule 705(b) was not implicated because expert witness gave only general opinions about sex offenders and the manifestations of sexual abuse and did not give opinions based on an analysis of the specific facts at issue testify about the specific facts of the case). But even if Rule 705(b) did require the trial court to allow appellant to voir dire Dr. Thompson regarding the facts or data underlying his opinions, Dr. Thompson did not testify as to any opinions regarding appellant, and he never even referred to appellant specifically. Dr. Thompson provided very little testimony that was damaging to appellant at the punishment phase, and the State did not refer to Dr. Thompson=s testimony in its closing.[3]

After examining the record as a whole, this court has fair assurance that the failure to allow a Rule 705(b) voir dire examination did not influence the jury, or had but slight effect on the jury=s punishment verdict. Under a nonconstitutional harm analysis, we conclude that any error in not allowing a Rule 705(b) voir dire examination was harmless. See Tex. R. App. P. 44.2(b); Harris v. State, 133 S.W.3d 760, 774B75 (Tex. App.CTexarkana 2004, pet. ref=d) (concluding that trial court=s error in not allowing Rule 705(b) voir dire examination was harmless because expert did not provide damaging testimony). Accordingly, we overrule appellant=s second issue.

 C. Did the trial court err in allowing the State=s expert to testify because, according to appellant, the proffered expert witness was not qualified to testify as an expert and because his Abackdoor opinion@ violated Texas Rule of Evidence 702?

In his third issue, appellant contends the trial court erred in admitting Dr. Thompson=s testimony because he was not qualified to testify as an expert and because his Abackdoor opinion@ opinion that sex offenders are not capable of being cured violated Rule 702. First of all, as noted above, Dr. Thompson never testified that in his opinion sex offenders are not capable of being cured. Appellant concedes as much but argues that Dr. Thompson left the jurors with Athe unmistakable impression that sex offenders were incapable of being cured.@[4] Presuming, without deciding, that although no witness testifies to an opinion, a party may validly complain that a line of questioning has left the jury with an unmistakable impression of an opinion that is allegedly inadmissible under Rule 702, appellant did not voice this complaint during the punishment phase. Likewise, appellant did not voice any complaint that Dr. Thompson lacked qualifications to testify as an expert. To preserve error based on the erroneous admission of evidence, the objecting party must state the specific ground for the objection unless that ground is apparent from the context. Tex. R. Evid. 103(a); Tex. R. App. P. 33.1. Because neither of these complaints was apparent from the context, appellant failed to preserve error regarding these objections. See Nino v. State, 223 S.W.3d 749, 755 (Tex. App.CHouston[14th Dist.] 2007, no pet.) (holding appellant failed to preserve error as to evidentiary objection during punishment phase); Moore v. State, 109 S.W.3d 537, 542 (Tex. App.CTyler 2001, pet. ref=d) (concluding that appellant=s objection under Rule 702 and Kelly was too general to inform the trial court of the nature of his true complaint as such rules cover numerous requirements for the admission of expert testimony). Accordingly, we overrule appellant=s third issue.

D. Did the trial court err in allowing the prosecutor to allegedly engage in prosecutorial misconduct?

In his fourth issue, appellant contends that the prosecutor=s repeated attempts to inject testimony that sex offenders cannot be cured during Dr. Thompson=s testimony constitutes prosecutorial misconduct. The proper method of preserving error in cases of prosecutorial misconduct is to (1) make a timely and specific objection, (2) request an instruction that the jury disregard the matter inappropriately placed before the jury, and (3) move for a mistrial. See Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (holding that to preserve an objection for prosecutorial misconduct one must not only object but also request an instruction to disregard and move for a mistrial); see also Bailey v. State, No. 14-04-00325-CR, 2006 WL 348132, at *5 (Tex. App.CHouston[14th Dist.] Feb. 6, 2006, no pet.) (same). Regarding specificity, a party should Alet the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the court is in a proper position to do something about it.@ Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). An objection stating one legal basis at trial may not be used to support a different legal theory on appeal. Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996).

Appellant did not object in the trial court on the ground of prosecutorial misconduct, nor did he receive an adverse ruling on such an objection. Appellant did not seek an instruction that the jury disregard any impression or inference that sex offenders cannot be cured, nor did appellant seek a mistrial based on any alleged prosecutorial misconduct. Thus, appellant failed to preserve any error for appeal. See Tex. R. App. P. 33.1; Penry, 903 S.W.2d at 764; see also Bailey, 2006 WL 348132, at *5. Accordingly, we overrule appellant=s fourth issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Opinion filed October 30, 2007.

Panel consists of Justices Anderson, Fowler, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] This court previously denied appellant=s motion to abate for such a hearing.

[2] Appellant contends that because the witnesses were in the courtroom ready to testify, we can presume that they would have given favorable testimony on his behalf. Regardless of this fact, there is no evidence in his motion and supporting affidavit which demonstrates that appellant would have benefitted from their testimony.

[3] Dr. Thompson did state that, in his clinical experience, he has not seen sex offenders who are Aleft on the street@get better. However, because appellant and his trial counsel made a strategic decision not to present any evidence, appellant was not eligible for community supervision. See Speth v. State, 6 S.W.2d 530, 533 (Tex. Crim. App. 1999) (stating that, to be eligible for jury-recommended community supervision, a defendant bears the burden of proving that he has no prior felony convictions).

[4] Appellant refers to this Aunmistakable impression@ as AThompson=s >backdoor=opinion.@